O2045•
CA:JL:atty\muni\contract\JL\cable-2001 \franchiseord
City Council Meeting 5-21-2002 Santa Monica, California
ORDINANCE NUMBER 2o4~cs~
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF SANTA MONICA
CONSENTING TO THE RENEWAL OF A CABLE TELEVISION FRANCHISE IN THE
CITY OF SANTA MONICA TO CENTURY-TCI CALIFORNIA, L.P. D/B/A ADELPHIA
CABLE COMMUNICATIONS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN
AS FOLLOWS:
SECTION 1. The Franchise Agreement befinreen Century-TCI California, L.P.
D/B/A Adelphia Cable Communications and the City of Santa Monica, a municipal
corporation, attached as Exhibit "A" to this ordinance, is incorporated into this ordinance by
reference and the Franchise Agreement is hereby approved.
SECTION 2. Each and every term and condition of the Franchise Agreement
approved in Section 1 of this Ordinance shall be and is made a part of the Santa Monica
Municipal Code and any appendices thereto.
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SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court
of competent jurisdiction, such decision shall not render invalid the remaining portions of
this Ordinance. The City Council hereby declares that it would have passed this Ordinance
and each and every section, subsection, sentence, clause, or phrase not declared invalid
or unconstitutional without regard to whether any portion of this Ordinance would be
subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the
passage of this Ordinance. The City Clerk shall cause the same to be published once in
the official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
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Adopted and approved this 11~' day of June, 2002.
Michael ~instein, ayor
State of California
County of Los Angeles ) ss.
City of Santa Monica )
I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2045 (CCS) had it's introduction on May 21, 2002, and was
adopted at the Santa Monica City Council meeting on June 11, 2002, by the following
vote:
Ayes: Council members
Noes: Council members
Abstain: Council members
Absent: Council members
Holbrook, O'Connor, Bloom, Genser, Katz,
Mayor Pro Tem McKeown, Mayor Feinsein
None
None
None
ATTEST:
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FRANCHISE~AGREEMENT
BETWEEN
THE CITY OF SANTA MOlvICA
AND
CENTURY - TCI CALIFORNIA, L.P.
d/b/a ADELPHIA CABLE COMMLJNICATIONS
ORDINANCE NO.
(City Council Series)
AN ORDINANCE CONSENTING TO THE RENEWAL OF A CABLE TELEVISION FRANCHISE IN
THE CITY OF SANTA MONICA ("CITY") TO CENTURY-TCI CALIFORNIA, L.P. DB/A
ADELPHIA CABLE COMMUNICATIONS (`~COMPANY"OR "FRANCffiSEE")
WHEREAS, the Company has requested a franchise renewal and
WHEREAS, pursuant to the Santa Monica City Charter and the Santa Monica Municipal Code
Chapter 6.108 Code, at its meeting, duly and regularly held, the Council of the City of Santa
Monica, after public hearings affording due process and full opportunity for public presentation,
granted a cable television franchise to the Company to serve the City.
NOW THEREFORE,
THE CITY COUNCIL OF THE CTTY OF SANTA MO1vICA
DOES ORDAIN AS FOLLOWS:
An Ordinance granting the renewal of a cable television franchise for the City of Santa Monica to
Century - TCI California, L.P. d/b/a/ Adelphia Cable Communications is entered into upon the following
terms and conditions:
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SECTION 1 -- DEFINTTIONS
For purposes of this Agreement, the following terms, phrases, words, and their derivations shall
have the meanings set forth in this Section, unless the context clearly indicates that another meaning is
intended. When not inconsistent with the context, words used in the present tense include the future,
words used in the plural number include the singular number, and words used in the singular number
include the plural number. Words not defined shall be given their common and ordinary meaning:t any
word or term defined in the Cable Act but not defined below shall have the meaning set forth in the 1934
Communications Act as amended.
(a) Access Channel
Means a Channel on the System which the Company shall make available without charge for
public, educational, or governmental (hereinafter referred to as "PEG" or "Access") use.
(b) Affiliated Person
Means (i) any corporation, partnership or other legal entity under common Control (as such term
is defined in this Section) by or with the Company, (ii) any general partner, joint venture partner
or other Person holding Control of or a Controlling Interest in the Company, or (iii) any director
or officer of the Company; provided that "Affiliated Person" shall in no event mean the City, any
limited partner of the Company, or any creditor of the Company solely by virtue of its status as a
creditor.
(c) Agreement
Means this Agreement, together with the Appendices hereto to the extent expressly incorporated
herein, and all amendments or renewals thereof.
(d) Basic Service
Means any Service tier which includes the retransmission of local television broadcast signals;
(e) Cable Act
Means the federal Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act
of 1996 as said Act may from time to time be further amended.
(fl Cable Pro~ramming Service Tier
Means any video prograxnxning tier provided over a cable system regardless of service tier,
including installation or rental of equipment used for the receipt of such video programming tier
other than (i) video programming carried on the basic service tier, and (ii) video programming
offered on a per channel or per program basis.
(g) Cable Service or Service
Means the one-way transmission to Subscribers of video programming or other programming
services, together with Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming services, which the cable operator makes
available to all Subscribers generally.
(h) Cable System
Means a facility, consisting of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within a community, but such term
does not include (A) a facility that serves only to retransmit the television signals of 1 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 of the Cable Act, except that such facility shall be considered a Cable System (other
than for purposes of Section 621(c) of the Cable Act) to the extent such facility is used in the
retransmission of video programming directly to subscribers, unless the extent of such use is
solely to provide interactive on-demand services; (D) an open video system that complies with
section 653 of the Cable Act; or (E) any facilities of any electric utility used solely for operating
its electric utility systems.
(i) Channel
Means a band of frequencies in the electromagnetic spectrum, or any other means of transmission
(including, without limitation, optical fibers or any other means now available or that may
become available), which is capable of carrying a video Signal, or an audio Signal, a voice
Signal, or a data Signal.
(j) C~
Means the City of Santa Monica of the State of California, or, as appropriate in the case of specific
provisions of this Agreement, the City Council, City Manager, department or any other entity ,
including, without limit, any board or commission, acting on behalf of the City, or any officer,
official, employee, or agent thereof, its designee, or any successor thereto.
Citv Mana~er
Means the City Manager of the City of Santa Monica, or her or his designee, or any successor
thereto.
(1) Closin¢
Means ten (10) business days after the date on which the Council approves this Agreement.
Company
Means the Franchisee duly authorized pursuant to this Agreement.
Construction or Construct
Means any new construction, reconstruction, or upgrade, of the System.
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(o) Consumer or Subscriber
Means any Person lawfully receiving any Cable Service, or the City with respect to the Cable
Services it receives.
(p) Control or Controlling Interest
Means actual working control in whatever manner exercised. 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 pubic) of more than twenty percent (20%) of
any Person (which Person or group of Persons is hereinafter referred to as "Controlling Person").
"Control" or "Controlling InteresY' as used herein may be held simultaneously by more than one
Person or group of Persons.
(c~ Council
Means the City Council of the City of Santa Monica, its designee, or any successor thereto.
(r) Dial Location
Means the position on a television receiver, converter, or other device which is selected to receive
a specific ~Channel or Service.
(s) Educational Access Channel
Means a channel on the System which is made available by the Company for educational
institutions or educators wishing to present non-commercial educational information or
viewpoints to the public, without editorial control, on a first-come, first-served,
nondiscriminatory basis.
(t) Environmental and Public Works Management Department or "EPWM Deparhnent"
Means the Environmental and Public Works Management Deparhnent of the City of Santa
Monica or, where appropriate, another governmental agency or department to the extent that it
may have jurisdiction over the Streets or Public Ways.
(u) FCC
Means the Federal Communications Commission, its designee, or any successor thereto.
(vl Franchise
Means the authority granted by the City Council which shall be subject to the terms and
conditions in this contractual agreement between the Company and the City, which delineates the
parties' rights and responsibilities regarding the provision of Cable Service.
Franchise Area
Means the geographic area within the City in which the Company is entitled to Construct, operate
and maintain the System, as described in this Franchise Agreement.
(x) Franchisee
The Person to whom or to which the Franchise is granted by the Council, or any Person to whom
or which it is hereafter lawfully transferred.
(y) Franchise Fee
Means the payments to be made by the Company to the City as compensation for the franchise
granted herein and shall have the meaning as set forth in Section 622(g) of the Cable Act.
(z) Generally Accepted Terminology
Means phraseology which is applied ordinarily or customarily by the multichannel video provider
industry of local, State, and/or federal laws, orders, and/or regulations.
Gross Revenue
Means all amounts, which are charged and, or received, directly or indirectly, by the Company
from or in connection with the operation of the System including, without limitation: the
distribution of any Service over the System; the provision of any Service Related Activity in
connection with the operation of the System; Basic Service monthly fees; all other Service fees;
installation, reconnection and similar fees to provide Cable Service; fees paid for Channels
designated for commercial use; converter rentals or sales; studio and other facility or equipment
rentals, other than those not associated with the operation of the System; advertising revenues;
revenue derived from the sale of products advertised or promoted on the System, to the extent
such revenue represents payment, in whole or in part, for the use of a Channel on the System;
and to the extent that the City is authorized by Section 2(a)(5) of this Agreement to collect
franchise fees on such services pursuant to this Agreement, revenues received directly or
indirectly from or in connection with Internet access or cable modem service. Gross Revenues
shall not include revenues from the provision of non-Cable Service including telecommunications
services. Gross Revenue shall also include the gross revenue of any other Person which is
derived directly or indirectly from or in connection with the operation of the System to provide
Cable Service to the extent that said revenue is derived, through a means which has the effect of
avoiding the payment of Franchise Fees to the City that would otherwise be paid herein. Gross
Revenue shall not include: (1) the revenue of any Person providing cable service, including,
without limitation, an Affiliated Person or supplier of programming to the Company, to the extent
that said revenue is also included in Gross Revenue of the Company; (2) taxes imposed by law on
Subscribers or other Persons which the Company is obligated to collect and which the Company
passes on, in full, to the applicable tax authority or authorities provided, however, any amount
itemized as a franchise fee on Subscribers bills shall not be considered a tax; (3) amounts
collected by the Company from Subscribers on behalf of commercial use or Access Channel
programmers, other than an Affiliated Person, to the extent that said amounts are passed on, in
full, by the Company to said programmers; (4) any investment income earned by the Company;
(5) bad debt, provided, however, that bad debt recoveries shall be included to the extent such
recoveries are related to sources of revenue included as Gross Revenue; (6) the value of any free
Cable Service to any cable industry employee; or (7) the value of any free service or services
authorized or required by this Agreement.
Government Access Channel
Means a Channel on the System which the Company shall make available to the City, as provided
herein.
Guarantor
Means Adelphia Communications Corporation
(dd) Installation
Means the connection of the System from the nearest feeder cable to the terxninal of a Subscriber.
Leased Channel
Means a Channel on the System designated for commercial use by Persons unaffiliated with the
Company in accordance with the provisions of Section 612 of the Cable Act.
(f fl Mav
Is perxnissive.
Normal Onerating Conditions
Means those service conditions which are within the control of the Company. Those conditions
which are ordinarily within the control of the Company include, but are not limited to, special
promotions, pay-per-view events, rate increase, regular peak or seasonal demand periods, and
maintenance or upgrade of the System. Those conditions which are not within the control of the
Company include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe weather. The definition of Normal Operating Conditions
is relevant in assessing compliance with telephone answering time, installations, service calls, and
repair of Service Interruptions, and other provisions in Appendix C.
Open Access
Means providing all requesting Internet service providers that are not Affiliated Persons with
access to the Cable System's broadband network, or broadband internet access transport services,
on nondiscriminatory terms and conditions, including, but not limited to, such terms and
conditions related to pricing, carriage, and technical requirements. The Company shall be
deemed to provide Open Access if it provides access to each and every Internet service provider
requesting access unless limited due to technical or other limitations of the System.
(ii) Person
Means any individual, or any association, firm, partnership, joint venture, corporation, or other
legally recognized entity, whether for-profit or not for-profit, but shall not mean the City.
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(jj) Premium Service
Means any video programming offered over the Cable System for which a per program or per
channel charge is made.
Public Access Channel
Means a channel on the cable system which is made available by the Company for individuals
and organizations wishing to present non-commercial information or viewpoints to the public,
without editorial control, on a first-come, first-served, nondiscriminatory basis in accordance with
Section 611 of the Cable Act.
(11) Public Way or Street
Means "Streets" as that term is defined in Subchapter 6.108.02.020 of the Santa Monica
Municipal Code.
Service
Means any Basic Service, Cable Programming Service, Premium Service, or any other Cable
Service whether or not originated by the Company, which is offered to any Subscriber in
conjunction with, or which is distr~buted over, the System. Service as used in Appendix C hereof
will mean any level of video programming to be provided to a Subscriber.
Service Drop or Drop
Means the cable or other wires connecting the nearest feeder cable to a Subscriber's terminal.
Service Interruption or Outa~e
Means the loss of picture or sound on one or more Cable Service channels. The definition of
Service Interruption affects the timing of when the Company must respond to a Service problem.
Service Related Activitv
Means any activity or function for which the Company receives revenue from any other Person
and which is directly associated with the operation of the System or the production or distribution
of any Cable Service over the System by any Person other than the Company, including, without
limitation, operation of studio or other facilities or equipment, billing, audience promotion, or
installation or lease of equipment.
Shall and Will
Are mandatory, not merely directive or permissive.
(~') S~
Means any transmission of radio frequency energy or of optical information.
Standards
Refers to the Consolidated Consumer Service Standards set forth in Appenduc C.
(tt) Svstem
Means the Cable System constructed, operated, and maintained by the Company pursuant to this
Agreement, including, without limitation, all rights thereto, and all real and all tangible and
intangible personal property comprising said Facility. System as used in Appendix C will mean
any and all equipment and/or facilities used to deliver Cable Service to a Consumer or
Consumers.
(uu) System Facilities
Means the physical plant and equipment constructed, operated and maintained by the Company
for the provision of Cable Service pursuant to this Agreement, including, but not limited to, the
following: the headend, hubs, antenna, cables, wires, lines, towers, amplifiers, converters,
medical and property security systems, if any, and other equipment, facilities or appurtenances of
the Company which are designed, constructed or wired for the purpose of producing, receiving,
amplifying and distributing by coa~cial cable, fiber optics, microwave, laser or other means, audio
and visual radio, television and electronic Signals to and from Subscribers and any other
equipment or facilities used by a Franchisee in connection with a Cable System located within
the corporate limits of the City.
(w) Terminal
Means the converter, tuner, television receiver, radio, computer terminal or other device used by a
Subscriber to receive a Service from the Company.
(ww) Transfer
Means the disposal by a Franchisee, directly or indirectly, by gift, assignment, sale, merger,
consolidation or otherwise, of the ownership or Control of the System or the franchise, in whole
or in part, to a Person or a group of Persons acting in concert.
Two-Wav Canabilitv
Means the headend, amplifiers and other technical components of the System Facilities have been
designed and constructed to be easily upgraded to activate the two-way transmission of
information over the System Facility, such that all that is required is the insertion of return
modules in the amplifiers.
Videa Channel
Means a frequency band which is capable of carrying one video Signal, or may provide capacity
for a number of audio, or other nonvideo Signals, or a combination thereof.
SECTION 2 - FRANCHISE
(a) Grant of Authoritv
(1) The City hereby grants the Company the privilege to use and occupy the Streets and
Public Ways and other locations specified herein within the Franchise Area for the
Construction, operation, maintenance, repair, and removal of the System to be used for
the purpose of reception, transmission, collection, amplification, origination, distribution,
or redistribution of Cable Service only to and from Subscribers in accordance with the
provisions of this Agreement.
(2) The Franchise Area is the entire area within the incorporated limits of the City of Santa
Monica.
(3) The Company hereby agrees that the grant of this franchise shall be for the territorial
limits of the Franchise Area as described above.
(4) Adelphia Communications Corporation, a Delaware corporation, shall file a Guaranty
with the City Manager on or prior to the effective date of this Agreement which
guarantees the performance of each and every term, covenant and condition imposed on
the Franchisee pursuant to this franchise. Such Guaranty shall be in the form set forth at
Appendix F.
(5) The authority granted herein shall include the privilege to use the System for the
provision of Cable Service. The City and Company agree that, on the Effective Date, the
City shall not have the right to treat any cable modem service, including Internet access,
provided by the Company, an Affiliated Person or any unaffiliated internet service
provider ("ISP") as a Cable Service under this Agreement; provided that the City shall
have the right during the term to treat cable modem service as a Cable Service under this
Agreement at such time that:
(a) a court of competent jurisdiction in a binding and final decision no longer
subject to appeal determines that a franchising authority has the authority to
treat cable modem service as a Cable Service; or
(b) California law or federal law or a California agency or a federal agency in a
binding and final decision determines that a franchising authority has the
authority to treat cable modem service as a Cable Service; or
(c) The Company or an Affiliated Person treats cable modem service as a Cable
Service after the Effective Date on the cable system it controls in the City of
Los Angeles.
With respect to occurrences under (a) or (b), the City's right after the Effective Date to
treat cable modem service, including internet service, as a Cable Service or otherwise
regulate the provision of such service as a Cable Service under this Agreement shall be
subject to any prohibition or limitation imposed by a court of competent jurisdiction3
applicable law or the relevant agency. With respect to an occurrence under (c), the City's
right to treat cable modem service as a Cable Service, or to otherwise regulate the
provision of such service, shall not be permitted if (1) the Company is actively
l0
challenging such treatrnent or regulation in the City of Los Angeles, or (2) the City does
not treat cable modem service as a Cable Service or regulate the provision of such sexvice
in the same fashion in all cable or OVS franchises granted in the City. Nothing in this
Agreement shall deterrnine the City's right, if any, to regulate cable modem service on a
basis other than as a Cable Service to the extent such regulation is pernutted by a court of
competent jurisdiction or the relevant agency, in a binding and final decision no longer
subj ect to appeal, or by applicable law. Upon the occurrence of any of the three events
outlined in (a)-(c) above, the City will provide the Company with reasonable notice of the
City's intent to treat cable modem service as a Cable Service. The City and the Company
reserve all rights either may now lawfully have under federal, state and local law or
subsequently acquire with respect to the right of the City in managing the use of public
rights-of-way by non-Cable Service providers, including, but not limited to, any rights
either may have under 47 U.S.C. §253.
(6) In the event cable modem service becomes subject to this Agreement in accordance with
section 2(a)(5) and pursuant to section 2(a)(5) the City has the right to impose an Open
Access requirement, such right shall be subject to the procedures set forth herein. The
City's right to require Open Access, based on an occurrence under section 2(a)(5)(c),
shall exist only if the Company, without undertaking an active challenge of any such
requirement, provides Open Access in any other cable system it controls in the City of
Los Angeles on a non-test and non-trial basis or if the Company provides Open Access in
the City of Los Angeles on a trial or test basis from the same system headend that serves
the City. Upon the occurrence of any of the events in Section 2(a)(5), the City will
provide the Company with reasonable notice of the City's intent to impose such Open
Access requirement and prior to the imposition of any such requirement, the Company
shall have the opportunity to be heard and to present evidence regarding the level of
competition in the marketplace and the technical and economic feasibility of the
implementation of any such Open Access requirement. After considering such evidence,
the City may, in its sole discretion, impose or not impose such Open Access obligation.
If the City chooses to require Open Access, based on the trial or test in the City of Los
Angeles from the same headend serving the City, Sections 1, 3 and 5 of Appendix C
relating to customer service standards will not be applicable to cable modem service
during any such trial or test period.
(7) The General Counsel of Adelphia Communications Corporation shall advise City in
writing in a timely fashion if it provides Open Access on a non-test or non-trial basis in
the City of Los Angeles or on a test or trial basis in the City of Los Angeles utilizing the
same system headend szrving the City.
(b) Effective Date
This Agreement shall become effective 30 days after adoption of the Franchise Ordinance.
Publication shall occur after the Closing.
(c) Closin~
Closing shall be ten (10) business days after the date of Council approval of this Agreement. At
the Closing, a duly authorized officer of the Company shall execute, by signing, this Agreement,
provided that, prior to executing this Agreement: (i) the Council shall have approved this
Agreement, and (ii) the Company shall have performed all acts and met all conditions which the
Company is required to perform at or prior to Closing, as provided herein.
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(d) Conditions and Limitations on Franchise
Nothing in this Agreement shall affect the right of the City to grant to any Person,
including the City, a franchise, consent or right to occupy and use the Streets or Public
Ways, or any part thereof, for the construction, operation or maintenance of a Cable
System within the Franchise Area.
As consideration for the franchise granted herein, the Company agrees that at all times it
shall comply with all provisions hereof and all mutually agreed to or otherwise lawful
amendments to this Agreement. The Company by acceptance of this Agreement
aclrnowledges that it has not been induced to enter into this Agreement by any
understanding, promise or other statement, whether oral or written, by or on behalf of the
City or by any other third party concerning any term or condition of this Agreement not
expressed herein. Company and its Guarantor agree that neither shall challenge, in any
judicial proceeding or any administrative proceeding involving this Agreement, the
validity, reasonableness or enforceability of this agreement and all proceedings in
connection with the negotiation or approval hereof, nor the City's power or authority to
make the terms and conditions herein. However, the acceptance of this Agreement and
its terms and conditions is not a representation by the Company that it accepts (a) any
subsequently-adopted cable ordinance or other ordinance adopted by the City that affects
the Company's operations or otherwise alters the terms of this Agreement; (b) any part of
the Agreement that characterizes the legal status of various services provided by the
Operator; or (c) any term or condition of this Agreement that would be affected or
modified under a change in state law.
(3) Nothing in this Agreement shall abrogate the right of the City to perform any public work
or public improvement of any description, including, without limitation, all work
authorized by applicable law. In the event that the System interferes with the
construction, operation, maintenance or repair of any such public work or public
improvement, the Company, after reasonable notice from the City, shall, at its own cost
and expense, promptly protect, alter or relocate the System, or any part thereof, as
reasonably directed by the City. In the event the Company refuses or neglects to protect,
alter, or relocate all or part of the System, the City shall have the right in connection with
the performance of such public work or public improvement, to break through, remove,
alter, or relocate all or any part of the System without any liability to the Company,
except such liability as is directly caused by the City's willful misconduct or negligence,
and the Company shall promptly pay to the City the costs incurred by such breaking
through, removal, alteration, or relocation.
(4) Nothing in this Agreement shall be construed as a waiver of any code or ordinance of the
City or the City's right to require the Company ar any Person utilizing the System to
secure all appropriate pernuts or authorizations for such use.
(5) The Company shall comply with: (i) all applicable laws and all requirements of the State
of California, the FCC, and any other federal or State agency or authority of competent
jurisdiction; (ii) all local laws, rules, regulations, and all orders or other directives of the
City issued pursuant to the police powers of the City; and (iii) all rules, regulations, and
all other directives of the City issued pursuant to this Agreement, provided that any such
rules, regulations, orders or directives issued pursuant to this Agreement shall be
12
consistent with the provisions hereof and shall not modify the mutual promises contained
in this Agreement.
The franchise shall be revoked automatically upon any termination of this Agreement by
the Council in accordance with the provisions hereof.
Unless repealed, Section 626 of the Cable Act shall govern the procedures and standards
for renewal of the franchise. The City shall have the right to grant or deny renewal
pursuant to the exercise of its discretion, consistent with applicable law and the
applicable renewal provision in Section 2(d)(2) of this Agreement, provided that, at a
minimum, the Franchisee must provide written notice of its intent to seek renewal at least
thirty (30) but no more than thirty-six (36) months prior to expiration of the franchise
term. At any time prior to the expiration of the initial term of the franchise, the City and
the Franchisee may agree to renegotiate all or any part of this Agreement. As a result of
such a renegotiation, the Council may grant a renewal of the franchise for a period of up
to fifteen (15) additional years, subject to the terms and conditions as may be agreed upon
by the parties.
(8) In the event that in accordance with applicable law and this Agreement: (i) the City does
not grant a renewal of the franchise at the expiration of the term of this Agreement, or (ii)
this Agreement is terminated prior to the expiration of the term hereof, then the franchise
granted hereunder shall be revoked and terminated, and all rights of the City and the
Franchisee to the System, or any part thereof, shall be determined as provided in Section
13 hereof and applicable law.
(e) Term
The term of the Franchise granted pursuant to this Agreement shall be for a period beginning on
October 1, 1999 and ending as set forth in Section ( fl below, unless sooner terminated, as
provided in Section 13 hereof.
( fl Termination Date
(1) As set forth above, this Agreement shall become effective 30 days after approval by the City
Council of the Franchise Ordinance. Once effective, the term of this Agreement shall
continue for five (5) years from the effective date. This Agreement may terminate prior to
the end of the term if Council by ordinance terminates this Agreement in accordance with the
termination rights provided herein, which ordinance shall fix a date of ternunation.
(2) The ternunation of this Agreement shall not operate as a waiver or release of any obligation
of the Company or any other Person, as applicable, arising prior to such termination.
SECTION 3-- TRANSFERS AND HYPOTHECATIONS
(a) Restrictions Against Transfers
This franchise is a privilege to be held in personal trust by the Company. Except as provided in
Section (d) hereof, neither the franchise nor any rights or obligations of the Franchisee in or
pursuant to the franchise, this Agreement or the System shall be transferred in part or as a whole,
13
by assignment, trust, mortgage, lease, sublease, pledge or other hypothecation, and shall not be
sold, transferred, leased, assigned, or disposed of in part or as a whole, either by forced sale,
merger, consolidation, or otherwise, nor shall title thereto, either legal or equitable, or any right or
interest therein, pass to or vest in any Person, nor shall a change in Control of the Company or the
System occur, either by act of the Company, by operation of law or otherwise, in each such case
without the consent of the City, which consent shall not be unreasonably withheld or delayed, and
which shall be expressed by Ordinance and then only under such conditions as may be therein
prescribed.
(b) Effect of Unauthorized Action
(1) The taking of any action described in the foregoing Section (a) hereof without the prior
consent of the City shall be null and void, unless later ratified by the City; and shall: (i)
be deemed a material breach of this Agreement; and (ii) among other remedies available
to the City, be subject to a liquidated damages assessment, which assessment shall be up
to $5,000.00 a day until the taking of an action described in the foregoing Section (a) is
approved, or if not approved, until the prior ownership, Control or other status quo ante is
restored to a condition satisfactory to the City. The amount of such assessment shall be
deternuned by the City Manager, which determination may be appealed to the Council.
(2) If the City denies its consent to any such action and such action has nevertheless been
effected, the Council may revoke the franchise and ternunate this Agreement unless
Control of the Company, the System or this Franchise is promptly restored to its status
prior to such unauthorized action or to a status acceptable to the Council.
(3) T'he grant or waiver of any one or more of such consents shall not render unnecessary any
subsequent consent or consents, nor shall the grant of any such consent constitute a
waiver of any other rights of the City.
(c) Additional Restrictions
(1) The Company shall not enter into any management contract or other arrangement for the
management of the System, to the extent such contract or other arrangement would result
in a change in Control of the Company or the System, without the prior consent of the
City.
(2) Any use by the Company of its own or an existing MATV, SMATV, NIDS, DBS, or
other system in any structure for the distribution of any Service which would otherwise
be distributed over the System, shall not relieve the Company of its obligation to
Construct, operate, and maintain the System in said structure pursuant to this Agreement
and applicable law.
(d) Exceptions
(1) The approval of the City for any change in the ownership of the Company shall not be
required unless such change involves a change in Control of the Company.
(2) Nothing contained in this Section 3 shall be deemed to prohibit or require City approval
of any assignment, pledge, lease, sublease, mortgage, or other Transfer or hypothecation
of all or any part of the stock of (or other evidence of ownership in) or assets (not
including the franchise) of the Company or the System, or any right or interest therein,
14
for securing an indebtedness, provided that each such assignment, pledge, lease, sublease,
mortgage, or other Transfer or hypothecation shall be subject to the rights of the City
pursuant to this Agreement, or applicable law, and such rights of the City shall be
recognized in each such hypothecation agreement between the Company and any such
creditor.
(3) The restrictions contained in this Section 3 shall not apply to any Transfer or
hypothecation, assignment or other disposition, between or among Persons wholly owned
by the Company, each disposition to include transfers of ownership interests between
John J. Rigas, in his individual capacity, or his spouse, in her individual capacity, and/or
his children, in their individual capacities, provided that any such Transfer or
hypothecation, assignment or other disposition does not involve a change in management,
day to day operarions, or adversely affect the financial condition of the Company.
Notwithstanding the above, in any instance where any change in the ownership of the
Company or any other disposition of the Company is to be undertaken, Company shall
provide prior written notice of any such change to the City.
(4) On the Effective Date, the ownership of the Company is as follows:
As of the date of this Agreement, the Santa Monica Cable System is owned by Century-
TCI California, L.P., a joint venture owned approximately 25% by a limited partner, TCI
California Holdings, LLC, as subsidiary of AT&T, and the other 75% owned by Century
Exchange, LLC, which is both a limited partner and the sole general partner. The latter
entity is owned in turn by Century Cable Holding Corp. The Corporate ownership
structure upward from that entity is Century Communications Corporation, Arahova
Communications, Inc., ACC Operations, Inc., and finally, Adelphia Communications
Corporation. Set forth in Appendix G is a chart showing the ownership of the Company
from the franchise level up to AT&T Corporation after the merger with Comcast
Corporation, and Adelphia Communications Corporation, along with information
showing the nature of the ownership interest of each intermediate entity.
(e) Approval Procedure
(1) T'he Company shall promptly notify the City of any action or proposed action requiring
consent of the City pursuant to this Section 3.
(2) The Company shall submit to the City an original and four copies, unless otherwise
directed, of its petition on FCC Form 394, requesting such consent, which petition shall
fully describe the action or proposed action and clearly state the basis on which the
petirion should be approved. The petition shall also contain all reasonably appropriate
documentation and such additional information as the City may reasonably require. T'he
120-day period to review a transfer request under Section 617 of the Cable Act shall not
commence until all of the information required by FCC Form 394, any applicable State
law, and this Agreement is submitted to the City:
(a) Name and address of the proposed transferee or assignee and identification of the
ownership and control of the transferee, including: the names and addresses of the
ten (10) largest holders of an ownership interest in the transferee or assignee and its
cable affiliates and all persons with twenty (20) percent or more ownership interest in
the transferee or assignee and its cable system; the Persons who Control the
15
transferee; all officers and directors of the transferee or assignee and its cable
affiliates; and any other Cable System ownership interest or each named Person;
(b) A demonstration of the transferee's or assignee's technical ability to Construct,
maintain, upgrade and operate the System, including identification of key personnel.
(c) A demonstration of the transferee's or assignee's legal qualifications to Construct,
maintain, upgrade and operate the System;
(d) The transferee or assignee must show that it has not , at any time during the ten (10)
years preceding the submission of the petition , been convicted of any act or omission
of such character that the transferee or assignee cannot be relied upon to deal
truthfully with the City and the Subscribers of the System, or to substantially comply
with its lawful obligations under applicable law;
(e) The transferee or assignee must certify that no elected official of the City holds an
interest in the transferee or an Affiliated Person of the transferee or assignee;
(~ Current ~nancial statements showing the financial condition of the System as of the
date of the petition or other written request and the Company's agreement that the
Company shall submit financial statements showing the condition of the System as of
the date of the proposed action (such statements to have been audited and certified by
an independent certified public accountant and submitted within ninety (90) days of
the closing). If Company does not maintain financial records at the System level,
then the Company may provide such financial statements of the smallest reporting
entity which includes the System;
(g) A statement prepared by a certi~ed public accountant or responsible official of the
transferee or assignee regarding the transferee's or assignee's financial ability to
Construct, upgrade, maintain and operate the System;
(h) A description of the transferee's or assignee's prior experience in Cable System
ownership, construction and operation and identi~cation of communities in which the
transferee or assignee or entities under common control with the transferee or
assignee have a cable franchise or license.
(i) A description of the transferee's or assignee's plans for meeting any System
obligations under this Agreement, including, but not lirnited to, any upgrade
obligations, upgrade completion schedules, channel capacity requirements, technical
design requirements, and performance characteristics;
(j) An affidavit or declaration ofthe transferee or assignee or authorized officer
certifying the truth and accuracy of the information in the petition or other written
request, acknowledging the enforceability of the commitments of the petition or other
written request, and certifying that the proposal meets all federal and state law
requirements; and
(k) A summary of the plans and commitments of the transferee or assignee to remedy
specific and known defaults and violations, if any, in the operation of the System
under the Franchise.
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(3) At any time during the review process, the City reserves the right to require additional
supporting documentation from the Company or any other Person involved in the action
or proposed action. The Company shall provide all requested assistance to the City in
connection with any such inquiry and, as appropriate, shall secure the cooperation and
assistance of all other Persons involved in such action.
(~ Conditions
As a condition to the granting of any consent required by this Section 3, the City may require that
each Person involved in any action described in Section 3(a) or 3(c) hereof shall execute an
agreement, in a form and containing such reasonable conditions as may be required by the City,
specifying that said Person assumes and agrees to be bound by all applicable provisions of this
Agreement. The execution of said agreement by said Person shall in no way relieve the
Company, or any other transferor involved in any such action, of its obligations pursuant to this
Agreement during its tenure as the Franchisee up to and including the date of execution of such
Agreement by such transferee, purchaser and related Persons, without the consent of the City.
SECTION 4 -- SYSTEM REOUIREMENTS
(a) The Franchisee shall Consh-uct, operate, and maintain the System in accordance with the design
specifications and other System characteristics set forth at Appendix A to this Agreement and the
other standards contained in this Section 4.
(b) The Franchisee shall Construct and operate the System and System Facilities in all locations
throughout the Franchise Area so as to provide any Service to each Person requesting such
Service subject at all times to the Franchisee's right to obtain access to all necessary easements
and rights of way on reasonable terms. In order to provide any Service to any Person which can
not be accomplished through a standard Installation, the Franchisee shall be entitled to payxnent
of a fair, reasonable and nondiscriminatory nonstandard Installation charge, as determined by the
Franchisee at a charge not to exceed any applicable maximum rate allowed pursuant to federal
law.
A Person or the Franchisee may petition the City to determine whether the terms,
conditions and provisions of the line extension are fair, reasonable and nondiscriminatory
under the particular conditions and circumstances. All franchisees authorized to provide
Cable Service or open video service will be required to be able to offer cable service to
all residences throughout the City within a reasonable period of time. The Franchisee
shall inform the Person of the provisions of this Section and their right of appeal to the
City.
(c) The System shall have Two-Way Capability as described in Appendix A.
(d) Pursuant to Section 624(d)(2) of the Cable Act, upon the request of any Subscriber, the
Franchisee shall provide to said Subscriber, by sale, lease or at no additional charge, a device by
which said Subscriber can prohibit viewing of a particular Service during periods selected by that
Subscriber.
(e) Throughout the term of this Agreement, the Franchisee shall Construct, install, operate and
maintain the System in a manner consistent with all laws, ordinances, and construction standards
of the City, and the FCC's technical performance standards and testing requirements as provided
17
in Appendix A to this Agreement. In addition, the Franchisee shall provide the City, upon
request, with a written report of the results of annual proof-of-performance tests.
( fl All work involved in the Construction, operation, and maintenance, repair, and removal of the
System shall be performed with due diligence and using materials of good and durable quality.
(g) T'he Franchisee shall at all times comply with the latest version of the following
(1) National Electrical Safety Code (National Bureau of Standards);
(2) National Electrical Code (National Bureau of Fire Underwriters);
(3) California Public Utilities Commission General Order 95;
(4) Joint Utilities CAT'V Construction Standards (Department of Water and Power);
(5) Standards of Good Engineering Practices for Measurements on Cable Television Systems
(Narional Cable Television Association).
In the event of a conflict between the National Electric Safety Code or the National Electric Code and a
State code addressing the same issue, the Company may comply with the State code, to the extent such
code is not~preempted by federal law.
(h) If, at any time, it is deternuned by the City or any other agency or authority of competent
jurisdiction, that any part of the System Facilities, including, without limitation, any means used
to distribute Signals over or within the System, is harmful to the health or safety of any person,
then the Franchisee shall, at its own cost and expense, promptly correct all such conditions.
(i) The Franchisee shall Construct, operate and maintain the System in conformance with FCC
radiation guidelines to prevent interference with the iransmission or reception of over-the-air
broadcast Signals by television receivers. The Franchisee shall not interfere with the ability of
any Subscriber to utilize his or her television receiver for any lawful purpose. The connection of
any cable, input selector device or any converter to a Subscriber's terminal shall not be
considered an interference with the Subscriber's ability to utilize his or her television receiver.
(j) The Franchisee shall employ or contract for, on a full-time basis, a service and repair force of
competent technicians selected consistent with Section 8 hereof which is capable of maintaining
the System in accordance with the technical performance and customer service standards set forth
in this Agreement.
(k) The Franchise shall have the sole responsibility for diligently obtaining, at its own cost and
expense, all pernuts, licenses, or other forms of approval or authorization necessary to Construct,
operate, maintain, or repair the System, or any part thereof, prior to commencement of any such
activity. Upon the request of the Franchisee, the City may assist in securing such approvals or
authorizations.
(1) The Franchisee shall, at its own cost and expense, take all necessary efforts to prevent accidents
at its work sites, including the placing and maintenance of proper guards, fences, barricades, and
security personnel and, at night, suitable and sufficient lighting.
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(m) During Construction, the Franchisee shall provide affected Persons with reasonable advance
written notice generally in accordance with the requirements of the Consolidated Consumer
Service Standards in Appendix C no less than 24 hours prior to commencing Construction
activities. All Construction personnel and equipment shall be clearly identified with the name
and telephone number of the Franchisee and any subcontractor(s).
(n) Whenever existing utility poles, conduits, ducts, vaults or other facilities can physically
accommodate the System Facilities, the Franchisee shall utilize such existing utility facilities in
the Consiruction of the System. To the extent that Construction of the System cannot be
accomplished using existing public utility facilities, the Franchisee may Construct or install its
own poles, conduits, or other facilities for the System, subject to such conditions as the applicable
permit authorities may require and subject further to the conditions and limitations regarding
location of cables above or below ground as set forth in this Agreement. Underground facilities
shall be installed only after obtaining excavation permits issued by the EPWM Department.
Poles may be set only after obtaining the necessary easements and approval for the location of
each pole from the EPWM Depariment and all poles belonging to the Franchisee shall be
identified as such.
(o) In connection with the Construction, operation, maintenance, repair, or removal of the System,
the Franchisee shall give due regard to the aesthetics of the Franchise Area and shall not obstruct
the Public Ways, Streets, railways, passenger travel, or other traffic to, from or within the City,
without prior consent of the appropriate authorities. In addition:
(1) All transmission and distribution structures, lines, and equipment erected by the
Franchisee within the City shall be so located as to cause minimum interference with the
rights and reasonable convenience of property owners who adjoin any Streets or Public
Way.
(2) In case of any disturbance to any Public Way, Street, easement, paved area or other
property, the Franchisee at its own cost and expense and in a manner and time period
approved by the City, shall replace and restore such Public Way, Street, easement, paved
area or other property in as good condition as before the work involving such disturbance
was done.
(3) The Franchisee, at the request of any Person holding a moving pernut issued by the City,
shall temporarily remove, raise, or lower its wires to permit the moving of buildings or
other objects. The expense of such temporary removal or raising or lowering of wires
shall be paid by the Person requesting the same, and the Franchisee shall have the
authority to require such payment in advance. Except in an emergency, the Franchisee
shall be given not less than five (5) working days notice to arrange for such temporary
wire changes.
(4) The Franchisee shall notify the Community and Cultural Services Department or its
successor, on a form required by said Department or successor, regarding the need to trim
trees rooted within the dedicated public ways, streets, alleys and walkways that are open
to the public thoroughfare. The trimming will be required to prevent the branches of such
trees from coming into contact with the wires and cables or other structures of the
Franchisee. Such trimming will be performed at the expense of the Franchisee and in
accordance with all applicable rules, regulations, or procedures established by the
Community and Cultural Services Department or other appropriate City departments.
19
(p) Street Work
(1) In connection with the Construction operation, maintenance, repair, or removal of the
System, the Franchisee shall, at its own cost and expense, protect any and all existing
structures belonging to the City. The Franchisee shall obtain the prior approval of the
City before altering any water main, sewage or drainage system, or any other municipal
structure in any Public Way or Street required because of the presence of the System in
the Public Ways or Streets. Any such alteration shall be made by the Franchisee, at its
sole cost and expense, and in a manner reasonably prescribed by the City. The
Franchisee shall also be liable, at its own cost and expense, to replace or repair and
restore to as close to its prior condition as is reasonably possible and in a manner
reasonably specified by the City, any Public Way, Street or any municipal structure
involved in the Construction of the System that may become disturbed or damaged as a
result of any work thereon by or on behalf of the Franchisee pursuant to this Agreement.
(2) The Franchisee shall, at its own expense, protect, support, temporarily disconnect,
relocate in the same Street or Public Way, or remove from any Street or Public Way, any
System Facilities when required by the EPWM Department, or by any other
governmental agency acting in a governmental capacity, by reason of traf~c conditions,
public safety, Street vacation, freeway construction, or any public improvement or
structure, provided that the Franchisee shall in all such cases have the privileges and be
under the obligation as to abandonment of System Facilities in place which are provided
for herein.
(3) Upon failure of the Franchisee to commence, pursue or complete any work required of it
by law or by the provisions of this Agreement in any Street or Public Way, EPWM
Department, at its option and according to law, may cause such work to be done and the
Franchisee shall pay to the City the cost thereof in the itemized amounts reported by the
Environmental and Public Works Management Department to the Franchisee, within
thirty (30) days after receipt of such itemized report. In the event the City undertakes to
complete such work, the City shall be liable for the willful misconduct or negligence of
the City.
(c~ UnderQround Facilities
(11 Unless otherwise expressly authorized by the EPWM Department, in those areas and
portions of the City where all utility lines are now underground, or may subsequently be
placed underground, the Franchisee shall likewise install or relocate its System Facilities
underground. Incidental appurtenances such as amplifier boxes and pedestal mounted
terminal boxes may remain or be placed aboveground, if approved by the EPWM
Department, but shall be of such size and design and shall be so located as not to be
unsightly or hazardous to the public.
(2) Standard Installation
Standard Installation charges will apply to those installations which consist of an aerial
or underground drop of no more than l50 feet in length running from the nearest feeder
cable of the System to the terminal of the Subscriber, utilizing exposed wiring inside the
Subscriber's premises. Installations requiring materials or procedures which exceed
these minimum lengths, or in the case of any underground drop, which involves
unforeseen or extraordinary conditions, will be subject to additional charges, as
20
determined by the Company in compliance with federal rate regulations, if any, provided
that such additional charges shall be fair, reasonable and nondiscriminatory. All
Installations will also include appropriate grounding, adjustment of the television set in
order to receive cable service, and the provision of appropriate literature to instruct the
Subscriber in the utilization of the services to which he/she subscribed. In addition, the
Company will comply with FCC requirements to offer to provide to each subscriber an
A/B switch.
(3) Undereround Service from Underground Feeder Cable
In the event that a Subscriber independently provides for his or her own trenching and
conduit (including any necessary boring, bac~lling, repaving and/or replanting), the
Installation charge shall be the same as for a standard installation. Provided, however,
that the subscriber agrees, in writing and in a form acceptable to the Franchisee and the
City to hold Franchisee and the City harmless for any injury, loss or damage caused by
or related to the work so undertaken by the subscriber, nor shall the Franchisee be
responsible for any service problems caused as a result of the work performed by the
subscriber. In such case, the Installation by the Franchisee will consist of a service drop
and fittings as required by the Standard Installation specified above.
(4) Underground Service from Overhead Feeder Cable
The charge to a Subscriber for underground service from an overhead feeder cable shall
be a standard installation charge and may additionally include the cost of providing the
underground facilities from the feeder cable to the ternunal of the Subscriber.
(r) Removal or Abandonment of Franchise Propertv
In the event that use of any System Facilities are permanently discontinued, or no franchise has
been obtained therefor, or within twelve (12) months after expiration or any termination of this
Agreement, the City shall have the right to require the Franchisee to remove, at its own expense,
all portions of the System from all Streets and Public Ways within the City. If required by the
City, the Franchisee shall promptly remove from the Streets and Public Ways all System
Facilities involved, other than any such System Facilities which the Environmental and Public
Works Management Department may permit to be abandoned in place. System Facilities to be
abandoned in place shall be abandoned in such manner as the Environmental and Public Works
Management Department shall prescribe. Upon abandonment of any System Facilities in place,
the Franchisee shall submit to the City an instrument satisfactory to the City Attomey transferring
to the City the ownership of such facilities.
(s) Performance Bond
(1) No later than ninety (90) days after the Closing, the Company shall obtain, maintain and
file with the City Manager, , a completion and performance bond or other instrument
approved by the City Attorney and issued by a corporate surety authorized to do business
in the State of California. Such bond or other instrument shall guarantee the safeguarding
against damage to public or private property, and the performance of the Franchisee's
obligations set forth in this Agreement. Such bond or other instrument shall be
maintained in an amount of $220,000. The bond or other instrument shall be maintained
for the duration of this Agreement.
21
(2) The bond or other inst7-ument shall contain the following provisions: (i) "There shall be
recoverable by the City, jointly and severally from the principal and surety any and all
damages, losses, or costs suffered by the City resulting from the failure of the Franchisee
to satisfactorily cornplete Construction or fully activate the System throughout the
Franchisee Area pursuant to the terms and conditions of the Franchise AgreemenY', and
(ii) "It is hereby understood and agreed that this bond may not be canceled by the surety
nor the intention not to renew be stated by the surety until sixty (60) days after receipt by
the City, by registered mail, of written notice of such intent to cancel or not to renew."
(3) Throughout the term of this Agreement, the Franchisee shall maintain the bond or other
instrument in the amount specified in this Section. Within ten (10) business days after
receipt of notice from the City that any amount has been withdrawn from the bond or
other instrument, as provided in this Section, the Company shall restore the bond to the
then applicable amount specified herein, provided that said restoration obligation shall be
suspended during the period of any judicial challenge by the Franchisee to the propriety
of said withdrawal from the bond or other instrument, and provided further that, if it is
deternuned that said withdrawal by the City was improper, the City shall restore to the
bond or other instrument an amount equal to the improperly withdrawn amount.
(4) The bond or other instrument shall further provide that there shall be recoverable by the
City, jointly and severally from the principal and surety, any and all damages, losses or
costs suffered by the City resulting from any impernussible act or omission of the
Franchisee in its performance of this Agreement, any loss or any damage to any
municipal property or Streets during the course of Construction of the System, and the
removal of all or any part of the System from the public ways and streets.
(5) If the Franchisee fails: (i) to make any payment required by this Agreement within the
time fixed herein; (ii) to pay the City, within ten (10) working days after receipt of
written notice, any taxes or liens relating to the System that are due and unpaid; (iii) to
pay to the City within ten (10) working days after receipt of written notice from the City,
any damages, claims, costs or expenses which the City has been compelled to pay or
incur by reason of any material act or default by the Franchisee; or (iv) to comply, within
ten (10) working days after receipt of written notice from the City, with any material
provision of this Agreement which the City reasonably determines can be remedied by an
expenditure of an amount from the bond or other instrument, then the City may order the
withdrawal of the amount thereof from the bond or other instrument for payment to the
City, provided that, prior to each such withdrawal: (A) the Franchisee shall be afforded
an opportunity to cure any of said failures within thirty (30) days after written notice
from the City that the withdrawal is to be made, or (B) if such cure cannot be reasonably
accomplished within such thirty (30) days, then the Franchisee shall have a reasonable
time to cure, provided that the Franchisee commences such cure within such thirty (30)
days and diligently pursues such cure to completion.
(6) The Franchisee expressly agrees that: (i) the rights reserved to the City with respect to the
performance bond or other instrument shall be in addition to all other rights of the City,
whether reserved by this Franchise or authorized by law, and no action, proceeding, or
exercise of a right with respect to such performance bond or other instrument shall affect
any other right which may be held by the City; and (ii) the faithful performance by and
the liability of the Franchise pursuant to this Agreement shall not be limited by the
acceptance of the bond or other instrument required by this Section.
22
SECTION 5 -- CABLE SERVICES
(a) Cable Service Obli ations
(1) Throughout the term of this Agreement, the Franchisee shall promptly furnish, maintain,
and continue to offer all Services distributed over the System to any Person within the
Franchise Area, upon request and payment of all applicable charges, provided that the
Franchisee is able to obtain reasonable and lawful access to said premises in order to
furnish, maintain, and continue to offer each Service and provided that the obligation of
this Section is subject to Section 6(d).
(2) The Franchisee shall not abandon the System, in whole or in part, without the prior
approval of the City as provided herein.
(b) Nondiscrimination
(1) The Franchisee shall not deny any Service, deny accessibility to, or otherwise
discriminate against any Person, Subscriber, or Channel user on the basis of race, color,
religion, national origin, sex, marital status, sexual preference, age, or disa.bility. T'he
Franchisee shall comply at all times with all other applicable Federal, State, and local
laws and regulations relating to nondiscrimination.
(2) The Franchisee shall not deny any Service to any Person or group of Person because of
the income of such Person or Persons or the area in which they live within the Franchise
Area.
The Franchisee shall offer to all Persons those categories of Services described in Appendix B to
this Agreement. Nothing contained in this Agreement shall limit the Franchisee's ability to delete
or relocate any particular program or other service on the System pursuant to Section 625 of the
Cable Act, unless such Section 625 is repealed, in which case the consent of the City shall be
required for any change in broad categories of video programming or other services, or in the
mix, level and quality of the Services provided.
The Franchisee shall, either directly or through the lease of Channels on the System, offer
Services within all categories of Cable Services, as provided in Appendix B to this Agreement.
(e) The Franchisee shall render efficient service, make repairs promptly, and interrupt service only if
unavoidably necessary and for the shortest period possible. Such interruptions, insofar as
possible, shall be preceded by reasonable notice to each affected Person and shall occur during
periods of minimum System use.
( fl The Franchisee shall Construct and operate the System Facilities in accordance with FCC and
local zoning requirements in order to reasonably minimize System interference with television
reception and utility services.
The Franchisee shall, throughout the term of this Agreement, maintain the technical, operational,
and maintenance standards and quality of service set forth in this Agreement.
Continuitv of Service Mandatorv
23
(1) It shall be the right of all Subscribers to receive continuous, uninterrupted service insofar
as their financial and other obligations to the Franchisee are honored.
(2) In the event the Franchisee elects to rebuild, modify, or sell the System, or the City gives
notice of intent to terminate this Agreement or denies any renewal, the Franchisee shall
act so as to ensure that all Subscribers receive continuous uninterrupted service,
regardless of the circumstances, unless otherwise directed by the City or prevented from
doing so by circumstances beyond its control.
(3) In the event of a change of Franchisee, the Franchisee shall cooperate with the City and
any such new franchisee or operator in maintaining continuity of all Services to all
Subscribers. During such period, the Franchisee shall be entitled to the revenues for any
period during which it operates the System, less any amount owed to the City as may be
required pursuant to this Agreement.
(4) In the event the Franchisee willfully fails to operate the System for ninety-six (96)
consecutive hours, except with the prior approval of the City or due to a cause beyond the
Franchisee's control, such action shall constitute an unauthorized abandonment and, in
such event, unless otherwise specifically precluded by law, the City, at its option, may
operate the System or designate an operator until such time as the Franchisee restores
service under conditions acceptable to the City. If the City is required to fulfill such
obligation for the Franchisee, the Franchisee shall reimburse the City for all reasonable
costs or damages, in excess of revenues from the System received by the City, which are
the result of the failure of the Franchisee to perform. Such costs or damages may be
taken from the bond or other instrument required herein. The right provided in this
Section shall be in addition to all other rights of the City in the event of any
abandonment.
(5) Interruption of Service
The Company shall promptly notify the City of any significant interruption in the
operation of the System. For the purposes of this Section a"significant interruption in
the operation of the System" shall mean any interruption of a duration of at least four (4)
continuous hours to at least ten (10) percent of the Subscribers.
(6) The Company shall exercise its best efforts to limit any interruption of Service for the
purpose of maintaining, or repairing, or Construction of the System to periods of
minimum use. Except in an emergency or other situation necessitating a more expedited
or alternative notification procedure, the Company may schedule an interruption of
service for a period of more than four (4) hours during any twenty-four period only after
the City and each affected Subscriber have been given forty-eight (48) hours prior
written notice of the proposed interruption.
(i) Public Benefit Services
(1) The Franchisee shall provide, upon written request of the City Manager, standard aerial
Installation and one outlet, with converter or other equipment, necessary to receive all
Basic Services and Cable Programming Services, without cost, to the public primary and
secondary schools, libraries, and all other government administration facilities owned,
conirolled or leased by the City, located within the Franchise Area. T'he Company shall
24
provide such installations to the reasonable demarcation point specified by the City at
each such location consistent with applicable law.
The Franchisee shall further provide one cable modem and internet access for one
computer to a reasonable demarcation point specified by the City at each such location.
It is agreed that the foregoing installation shall not authorize the redistribution or resale
of any services beyond the one outlet provided without the further agreement of the
Company. The Franchisee will provide, without offset against its Franchise Fee
payments pursuant to this Agreement, the services, facilities and equipment set forth in
this Section. The Franchisee will not pass through any costs to subscribers in basic
service rates resulting from the public benefits services provided to the City pursuant to
this subsection.
(2) With regard to underground Construction, the Franchisee shall provide and install in a
common trench with its conduit, municipal services conduit as specified by the City. The
additional cost to the Franchisee for the conduit, pull boxes, vaults, other materials and
additional Construction work, other than the cost of the trenching itself, will be deducted
from subsequent Franchise Fee payments to the City. The Franchisee shall notify the
City at least sixty (60) days prior to undertaking any underground Construction of its
intention to fulfill this obligation and claim the specified credit, which Construction shall
be subject to the prior approval of the EPWM Department.
(3) The Franchisee shall provide maximum practicable availability of the Services and
facilities of the System to disabled persons. At a minimum, the Franchisee shall provide
at no additional cost a remote control device to those Subscribers who are paraplegic or
quadriplegic. Information regarding the facilities, equipment and ongoing services for
disabled persons shall be kept updated and the Company shall promptly submit to the
City Manager notification of any deletions or additions to such information.
The Franchisee shall comply with FCC rules regarding closed-captioning and shall offer
at no charge to subscribers or the City, closed-captioned programming on all channels
providing such options. The Company shall also provide TDD (or equivalent) equipment
at the Company office that will allow such Subscribers to contact the Company for any
reason related to the System.
SECTION 6-- CABLE SERVICE STANDARDS
(a) Consumer Service Standards.
Cable Service: The Franchisee will comply with the Consolidated Consumer Service
Standards attached hereto as Appendix C and all customer service standards applicable to
cable operators pertaining to the provision of Cable Service under state and federal law,
including, but not limited to, 47 C.F.R. §309. The Franchisee will not pass through any
costs to subscribers resulting from compliance with this Section and the Standards in
Appendix C and shall not treat any such costs as a"franchise fee" or as an offset against
franchise fees.
Internet Access Service: In the event cable modem service becomes subject to this
Agreement in accordance with section 2(a)(5), in deploying and offering any Internet
access service over the Cable System the Franchisee will do so in a manner consistent
25
with Sections 1, 3 and 5 of the Consolidated Consumer Service Standards (except that
compliance with Section 5 will apply only to service interruptions and other service
problems due solely to the Cable System or to an Internet access service owned or
controlled by Adelphia Communications Corporation). In the event that the Franchisee
in the future voluntarily agrees to consumer service standards for Internet access services
which are applicable to all City of Los Angeles cable operators and which contain
standards in addition to or more stringent than the consumer service standards applicable
to Internet access services described above and such standards are not being actively
challenged such additional or more stringent standards will be applicable to Franchisee's
provision of Internet access service in the City by the Franchisee as described above.
Conversely, in the event Franchisee in the future enters into a franchise renewal with the
City of Los Angeles in which the Franchisee is not bound by consumer service standards
for Internet Access services then the Franchisee shall no longer be bound by those
consumer service standards in the City of Santa Monica.
(3) The City may seek the following liquidated damages, following notice and opportunity to
cure, for any material breach of the customer service standards applicable to cable service
as follows:
(A) Two hundred dollars ($200) for each day of each duly noticed material breach
when the material breach is not cured within forty-five (45) days of the notification
and not to exceed six hundred dollars ($600) for the first occurrence of a material
breach.
(B) A maximum of four hundred dollars ($400) for each day duly noticed material
breach when the material breach is not cured within forty-five (45) days of the
notification and not to exceed twelve hundred dollars ($1,200) for a subsequent
material breach of the same nature occurring within twelve (12) months of the
initial breach; and
(C) A maximum of one thousand dollars ($1,000) for each day of each duly noticed
material breach when the material breach is not cured within forty-five (45) days of
the notification and not to exceed ($3,000) for each occurrence of the material
breach where a third or further material breach of the same nature occurs within
twelve (12) months of the initial material breach.
(b) Rates, Fees and CharQes.
For information purposes and for the City to ensure nondiscrimination, the Company shall
provide the City a complete schedule of all current Basic Service Cable Programming Services,
and Premium Service, excluding pay per view, rates and charges and shall give thirty (30) days
prior notice to the City Manager and all effected Subscribers of any pricing changes or additional
charges, excluding temporary marketing and sales discounts or offers. The Company may
petition the City for the right to exclude certain rates from those to be provided to the City, but no
such petition shall be entertained with respect to any Basic Service and Cable Programming
Service rate, term or condition for any individual or any other Basic Service or Cable
Programming Service Subscriber. The Company will maintain the low income discount it
currently offers on Basic Service to qualifying Subscribers in the City throughout the term of this
franchise.
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(c) The City reserves the right to regulate rates for Cable Service to the fullest extent permitted by
federal law. Notwithstanding anything in this Agreement to the contrary, in the event that the
Cable Act is amended or repealed, or restrictions on the authority of the City to regulate rates are
otherwise removed or lessened, or the FCC or any court permits the City to regulate such rates in
a manner greater than currently provided, the City may, at its discretion, establish procedures and
standards for rates and regulate such rates to the fullest extent of its regulatory authority under
federal, State and local laws. ~
(d) The Company shall furnish and maintain Services in accordance with the provisions of this
Agreement to each Person within the Franchise Area who makes a bona fide request to receive
any Cable Service. Nothing in this Agreement shall limit the right of the Company to deny
service to any household or individual which has a negative credit or service history with the
Company, which may include non-payxnent of bills or theft or damage to the Company's
equipment, or who has threatened or assaulted employees of the Franchisee in their course of
their employment. Provided that in the event Service is denied, the Company will give written
notice to the Subscriber of his right to appeal the Company's decision to deny service to the City
Manager's office with further appeal to the City Council.
(e) All charges for Cable Service must be applied on a nondiscriminatory basis subject to applicable
law. The Franchisee may, however, conduct promotional campaigns in which rates are
discounted or waived, and may offer bulk rate discounts for multiple dwelling units, hotels,
motels, and similar institutions all in accordance with any applicable federal rate regulations.
( fl The Franchisee may require refundable deposits in circumstances where such deposits are
necessary to protect equipment or to ensure payment where there is reasonable evidence of a risk
of nonpayxnent, provided that the Franchisee shall be required to pay simple interest at a rate of %z
percent per month (6% per year). Such interest shall be accrued and payable upon termination of
Service. Upon termination of Service for any reason, Subscribers will be entitled to receive a
refund or credit against amounts owed the Company equal to the deposit plus accumulated
interest. The City Manager may be petitioned to modify the interest rate to reflect prevailing
market rates.
(g) Where the actions of the Company, its agent(s) or subcontractor(s) can be shown upon a
reasonable demonstration of evidence to have contributed to the theft, loss or damage of a
converter provided for the use of a Subscriber, the Subscriber's liability with respect to said
converter shall be reduced to the extent of such contributing actions.
(h) Privacy Protections
The Company agrees to comply fully with all applicable State and federal laws relating to the
protection of subscriber privacy in the provision of Cable Service, including, without limitation,
Section 631 of the Cable Act, and Section 637.5 of the California Penal Code. In the event that
the current requirements of Section 631 of the Cable Act are subsequently repealed or lessened,
the requirements in effect on the effective date of this Agreement shall nevertheless continue to
apply to the Company for purposes of this Agreement unless preempted by applicable law.
(i) PEG Access Channels
(1) The Company shall continue to provide three (3) Access Channels now provided by the
Company for the City's use and will immediately dedicate three (3) additional access
Channels for a total of six (6) Access Channels which shall be available on the Basic
27
Service tier for Public, Educational and Government (PEG) access uses. Such six
channels may be used as follows:
the current City of Santa Monica Public Access Channel;
Santa Monica City Channel;
one Government Access Channel;
one GovernmentaUEducational Channel; and
one Educational Access Channel; and
(F) one Regional Government Channel (transmission of the Company's government
channels in West Hollywood, Los Angeles and Beverly Hills).
The Company will not pass through any costs to subscribers in basic service rate, or
other rates to the extent permitted by law resulting from the current level of PEG access
channel obligations contained in this subsection nor treat such costs as "franchise fee" or
as an offset against franchise fees. In the event; the City requests an increase in
monetary or in-kind support for public, educational or governmental access beyond the
annual level described in Appendix E, and the Company does provide, in its discretion,
such increased support may, to the extent permitted by law, be subject to pass through on
subscriber's rates, itemized and, if non-capital support, offset against franchise fees
consistent with applicable law.
(2) All channels designated for PEG access purposes shall be available for PEG access
programming on a twenty-four (24) hour basis. T'he Company and the City may
negotiate to mutual agreement regarding the Company's use of any fallow capacity on
the six PEG access channels.
(3) Neither the Company, nor the City, shall engage in any program censorship or other
control of the content of the PEG access programming on the System, except as
otherwise required or permitted by law.
(4) Access channels shall be capable of receiving live and taped programming signals from
the designated origination locations set forth in Appendix D.
(5) PEG Access Channel Use.
In the event that the Company converts all or part of the basic service tier channels from
analog to digital, upon the City's request, the Company will substitute the six (6) original
PEG Access Channels for a total of thirty-six (36) digital channels as PEG Access
Channels for the City's use. The City's use of any of such digital PEG Access Channels
in excess of the six (6) PEG Access Channels described above will occur whenever the
six (6) existing fully utilized PEG Access Channels are each in use for original
programming only during 80% of the time available on weekdays between the hours of 6
a.m. and midnight, for twelve (12) consecutive weeks, and there is evidence of demand
for use of an additional channel. Notwithstanding the above formula for obtaining
additional access channels, the following uses shall not be included as use for calculation
in the formula:
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Use of the channel to air electronic (character generated) announcements or
programming more than one (1) hour per day.
(B) Use of the channel to repeat programming which has already been repeated more
than once in a calendar month on any PEG access channel excluding non-
character generated timely community announcements of one-half (1/2) hour or
less running time.
(C) Use of the channel more than three and one-half (3 %2) hours per day for the
presentation of programming which is not produced for viewing in the Santa
Monica/Los Angeles area as a primary purpose.
The Company will then have ninety (90) days after receipt of request from the City, in
which to provide a new specially designated access channel for the same purpose. In the
event that the Company converts all basic service tier channels from analog to digital the
Company will be obligated to provide such PEG Access channels only in digital and not
in analog format. The Company will not pass through on basic service rates,, or other
rate to the extent pernutted by law, any increased costs to Subscribers resulting from any
such change in PEG Access channels from analog to digital.
(6) Interconnection of FEG Access Channels with Non-Affiliated Cable Television S, s~
The Company shall initiate negotiations to interconnect its PEG access channels
with the PEG access channels with each cable system and OVS system in the
City upon the request of the City, provided, however, such cable systems or OVS
providers must extend their cable facilities and bear their own cost of extending
and connecting their cable to the Company's facilities. The City may require that
such interconnection occur at the Company's headend or City Hall if technically
and economically practicable.
The Company will agree to interconnect with any such entities only in the event
that such entity extends fiber to attach to the Company's connection, and such
interconnection is subject to reasonable business terms and conditions that ensure
that the Company does not suffer competitive harm.
In the event that the Company has negotiated in good faith and has failed to
obtain an agreement from such entity of the proposed interconnection within
three months after the start of negotiations, the right to, if any, and the terms of
such interconnection shall be determined pursuant to arbitration judged under the
standards established for any such interconnection under (A) and (B) above,.
The Company shall not be required to interconnect any local origination
channels.
The Company shall not pass through any costs to subscribers resulting from
interconnection on basic rates, or other rates to the extent permitted by law, and
shall not treat such costs as a"franchise fee" or as an offset against franchise fees
unless any such other cable system or OVS system authorized in the City is not
similarly precluded.
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(j) Facilities and Equinment
The Company shall maintain its current total level of operational and financial support for PEG
Access in the City as set forth in Appendix E. In the event the City requests an increase in
monetary or in-kind support for public, educational or governmental access beyond the annual
level described in Appendix E, and the Company does provide, in its sole discretion, such
increased support, such increase may, to the extent permitted by law, be subject to pass through
on subscriber's rates, itemized and, if non-capital support, offset against franchise fees consistent
with applicable law.
(k) Channels for Commercial Use
(1) The Company agrees to comply fully with Section 612 of the Cable Act, regarding the
number, use and administration of Channel capacity designated for commercial use by
Persons unaffiliated with the Company.
(2) In the event that the current requirements of Section 612 of the Cable Act are
subsequently repealed, or lessened, the requirements in effect on the effective date of this
Agreement shall nevertheless continue to apply to the Company for purposes of this
Agreement, except as otherwise prohibited by law.
(1) Liquidated Dama es
It is agreed that it would be impracticable and extremely difficult to fix the actual damages to the
City and the public which would result from the failure of the Franchisee to meet the public,
educational and governmental access facilities and equipment provisions in this Franchise
Agreement. Therefore, if the Franchisee is found by the City to be in material violation of any
public, educational or government access facilities and equipment provision contained in this
Agreement, liquidated damages in the amount of five hundred dollars ($500.00) per day shall be
imposed for each and every violation, for each and every day of the violation, commencing from
the date the Company receives written notice from the City of an alleged breach and continuing
until the Franchisee is in compliance unless the alleged breach is cured within the appropriate
cure period. The imposition of such damages will be subject to the notice and opportunity to cure
provisions in Section 13. All determinations shall be made by the City Manager subject to appeal
to the CounciL
(m) Institutional Network
The Company agrees to construct and to maintain an Institutional Network ("I-Net"), which shall
be the subject of a separate agreement between the City and the Company. Such agreement shall
include terms concerning the construction and maintenance of the I-Net, as well as the City's
obligation to pay for the I-Net upon its completion and acceptance by the City. The Company
will not pass through any costs to Subscribers on the basic service tier, or in any other rate
permitted by applicable law, resulting from the requirements of this subsection or such separate
agreement, nor treat such costs as a"franchise fee" or as an offset against franchise fees.
(n) Access Origination Points
For purposes of this Agreement, "access origination points" refer to the facilities which connect
the sites utilized to provide the connection by which access programming is provided to the
Company for immediate retransmission to Subscribers or other users designated by the City. The
30
Company shall provide without charge Signal input points at the locations set forth on Exhibit D
and up to one (1) additional location specified by the City during the term of this Agreement.
Such additional point shall be activated within ninety (90) days of the request by the City.
Transmission hardware at each access origination point shall, unless otherwise specified by the
City, accept baseband composite video and deliver video signals in analog (6 MHz NTSC RF)
format or in that video format (such as digital or HDTV) from time to time used by the City, with
all modulators, demodulators, encoders, decoders (CODEC's), electric to optical converters,
optical to electric converters and similar devices to be the responsibility of Company. The
Access Channels shall include a central video/audio switcher ("Switcher") that permits the
assignment of any Access Channel signal input point to any outbound Access Channel on the
Subscriber Network. The Switcher shall be~capable of remote control from locations in the
Franchise Area designated by the City. The Switcher shall support both programmed (schedule)
switching and real-time (demand) switching from all Access Channels, and shall permit the
connection and scheduling of any character generators or play back equipment used for Access
Channel purposes that is located at the Company's Cable System headend. The Company shall
provide sufficient space at the headend to support the addition of character generator or ather
related equipment. The Company shall not charge the City for the installation or maintenance of
access originarion points. The Company shall not pass through the costs of complying with this
subsection (n) to subscribers, and shall not treat such costs as a"franchise fee" or as an offset
against franchise fees. Adelphia shall connect the access origination points to the headend by the
use of fiber optic transmission lines. Adelphia's obligations pursuant to this section are separate
and in addition to the Institutional Network Agreement described in Section 6(m) of this
Agreement.
SECTION 7-- PAYMENT OBLIGATIONS
(a) Comnensation
(1) The Company shall pay to the City during the term of this Agreement an amount equal to
three percent (3%) of Gross Revenues derived during each year of the franchise, as
Franchise Fees. Subsequent to September 30, 2002, the City shall have the right to
increase the franchise fee up to five percent (5%), with sixty (60) days written notice to
the Company, and the Company shall be entitled to itemize and passthrough any such
increase, as permitted under applicable law.
(2) The Franchise Fees shall be paid quarterly to the City throughout the term of the
Franchise, not later than forty-five (45) days after the end of each calendar quarter. The
Company shall file with each payment a statement certified by a financial representative
of the Company showing the total of all Gross Revenues derived during the prior quarter.
However, at the end of any quarter, the Company may file an estimated payxnent within
forty-five (45) days provided that within sixty (60) days after the end of the calendar
quarter, the Company shall submit a statement of its actual Franchise Fee. In the event
that the Company elects to file an estimated Franchise Fee payment within forty-five (45)
days from the end of the quarter, and the estimated Franchise Fee payment is determined
by the City to be deficient by an amount in excess of 5% of the actual Franchise Fee
owed for the calendar quarter, the Company shall pay an interest charge in an amount
equal to two (2) points above the prime rate of interest compounded quarterly, as printed
in the Wall Street Journal on the date such payment is due. In the event the Company
31
pays an estimated Franchise Fee that exceeds the actual Franchise Fee payment due and
the City fails to return the excess amount within forty-five (45) days from receiving the
statement of actual Franchise Fees due to the City, then the City shall pay an interest
charge in an amount equal to two (2) points above the prime rate of interest compounded
quarterly, as printed in the Wall Street Journal on the date such payment is due.
(3) The Franchise Fee payments shall be in addition to and shall not constitute an offset or
credit against any and all generally applicable taxes, including but not limited to the
City's Utilities User Tax, or other fees or charges which the Company or any Affiliated
Person shall be required to pay to the City, or to any State or federal agency or authority,
as required herein or by law; the payment of said taxes, fees or charges shall not
constitute a credit or offset against the Franchise Fee payments, all of which shall be
separate and distinct obligations of the Company and each Affiliated Person. The
Company agrees that no such generally applicable taxes, fees or charges shall be used as
offsets or credits against the Franchise Fee payments; provided, however, that if, as the
result of a change of applicable law or regulation that would allow an offset or credit
against the Franchise Fee payments during the term of this Agreement subsequent to its
commencement, the Company and the City agree at such time to negotiate in good faith
toward modification of this provision to reach an equitable agreement with regard to the
respective rights and obligations of the City and the Company. For purposes of this
subsection, "generally applicable" shall have the same meaning as set forth in Section
622(g)(2) of the Cable Act.
(4) Consistent with Section 622(h) of the Cable Act, the City intends to impose a fee equal to
five percent (5%) of the Gross Revenue of any Person, such as a Leased Access user, that
distributes any Cable Service over the System. If the Company collects revenues for said
Person, then the Company shall collect said five percent (5%) fee on the Gross Revenues
of said Person and shall pay said amounts to the City along with the Company's
Franchise Fee payments. If the Company does not collect the revenues for a Person that
distributes any Service over the System, then the Company shall notify said Person of
this five percent (5%) fee requirement and shall notify the City Manager of such use of
the System by such Person.
(b) All payments by the Franchisee to the City pursuant to this Agreement shall be made payable to
the City and deposited with the City Treasurer. Acceptance of any payment made by the
Franchisee pursuant to this Agreement shall not be construed as an aclrnowledgment that the
amount paid is the correct amount due, nor shall such acceptance of payment be construed as a
release of any claim which the City may have for additional sums due and payable.
(c) In the event that any payment required by this Agreement is not actually received by the City on
or before the applicable date fixed in this Agreement, then an interest charge shall accrue thereon
from the end of the cure period for such payment, if any, as set forth in this Agreement, at a rate
equal to 2 points above the prime rate of interest, compounded quarterly, as printed in the Wall
Street Journal. The City and the Company agree that this interest charge represents a fair and
reasonable estimate of the damages which the City might suffer from such failure and further
agree that the actual damages which the City might suffer in such event are incapable of
ascertainment or reliable estimate at this time. Any payments to the City pursuant to this Section
shall not be deemed to be part of the Franchise Fees to be paid to the City and shall be within the
exclusion to the term "franchise fee" for requirements incidental to enforcing the franchise
pursuant to Section 622(g)(2)(D) of the Cable Act.
32
(d) In the event that the Franchisee continues to operate all or any part of the System after the
termination of this Agreement, then the Franchisee shall continue to comply with all applicable
provisions of this Agreement, including, without limitation, all Franchise Fee and other payment
obligations of this Section 7 throughout the period of such continued operation, provided that any
such continued operation shall in no way be construed as a renewal or other extension of this
Agreement or the franchise granted pursuant to this Agreement. Nothing herein shall be
construed to abridge the Franchisee's right to receive revenues from the operation of the System
during such period of continued operation.
(e) In the event that the Franchisee disputes or contests any compensation or other payments required
pursuant to this Section 7, the Franchise shall deposit the disputed or contested amount into an
escrow account. Said account must remain in effect until a determination has been made by the
City. At such time the funds deposited in the escrow account will be distributed accordingly.
( fl The Company and the Guarantor shall throughout the term of this agreement and thereafter, for as
long as the Company is required to Construct, operate and maintain the System pursuant to this
Agreement, maintain adequate financial resources to perform all obligations pursuant to this
Agreement. The Company and Guarantor represent and wamant that on the Effective Date, the
Company has and shall maintain the financial resources necessary for it to perform all obligations
pursuant to this Agreement during the term of the Agreement.
(g) All contributions, services, equipment, Channel capacity, facilities, support, resources, and other
things of value to be paid, supplied, or provided by the Company pursuant to this Agreement or
any Appendix to this Agreement, are for the benefit of all Subscribers and the public. Except as
may otherwise be expressly set forth in this agreement, the Company agrees that said
contributions and other things of value are not within the meaning of the term "franchise fee" as
defined in Section 622(g)(1) of the Cable Act and fall within one or more exclusions to the term
"franchise fee" as defined in Section 622 of the Cable Act. The Company agrees that the on-
going existing level of support it has committed to make in Appendix E for public, educational
and governmental access is voluntary and shall not be within the meaning of the term "franchise
fee." Any increases in non-capital PEG support beyond that specified in Appendu~ E as agreed
upon pursuant to Section 6(j), consultant fees incurred by the City in connection with any renewal
proceeding, consultant fees incurred by the City after the Effective Date of this Agreement for
any City-initiated modification or amendment to this Agreement, and any other costs imposed by
the City in any City-initiated modification or amendment to the Agreement or its Ordinance shall
be within the meaning of the term "franchise fee" to the extent paid, in whole or in part, by the
Company and permitted under applicable law, may be passed through on any rates to Subscribers.
SECTION 8- EMPLOYMENT AND PURCHASING
(a) Eaual O~portunitv and Affirmative Action
(1) The Franchisee shall comply with all applicable nondiscrimination and affirmative action
requirements of any laws, regulations, and executive directives of the United States, the
State of California, and the City, including all applicable provisions of the City
Administrative Code.
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(2) The Franchisee shall not discriminate in its employment practices against any employee
or applicant for employrnent because of race, color, religion, national origin, ancestry,
sex, sexual preference, marital status, age, or disability.
(3) Within one (1) year from the effective date of this Agreement and annually thereafter, the
Company shall submit to the City a copy of the Company's EEO submissions filed with
the FCC.
(b) Purchasing
(1) To the extent possible in the administration of this Agreement, the Franchisee agrees to
provide opportunities for small businesses, minority businesses, and women-owned
businesses to participate in procurements under this Agreement pursuant to the
requirements of the FCC and other applicable law and regulation.
(2) The Franchisee shall include small, minority, and women-owned businesses on source
lists and assure that they are solicited whenever they are potential sources.
(3) The Franchisee shall divide total requirements into small requirements to permit
maximum possible opportunities for small, minority, and women-owned businesses to
participate whenever economically feasible.
(4) The Franchisee shall use the services and assistance of the Small Business
Administration, the Minority Business Development Agency of the Department of
Commerce, and the Community Services Administration or their successors, or other
appropriate agencies to identify and contact small, minority, and women owned
businesses.
SECTION 9-- OVERSIGHT AND REGULATION
(a) The City shall have the right to regulate, and periodically inspect the Construction, operation,
and maintenance of the System, and all parts thereof, in accordance with the provisions of this
Agreement.
(b) The City may, from time to time, adopt or issue such reasonable generally applicable rules,
regulations, orders, or other directives governing the Franchisee or the System as it shall find
necessary or appropriate in the valid exercise of its police power, and the Franchisee agrees to
comply with all such rules, regulations, or orders. The City may, from time to time, issue such
orders governing the Franchisee or the System as shall be found reasonably necessary to assure
Franchisee's compliance with or in furtherance of the purposes of this Agreement, provided that
such orders are not materially in conflict with the provisions of this Agreement, and the
Franchisee agrees; to comply with all such orders.
SECTION 10 -- REPORTS, AUDTTS AND RELATED REQUIREMENTS
(a) Upon request of the City, the Franchisee shall promptly submit to the City any information
regarding the Franchisee, its business and operations, or any Affiliated Person, with respect to the
System, any Service or any Service Related Activity, in such form and containing such detail as
may be specified by the City pertaining to the subject matter of this Agreement which may be
34
reasonably required to establish the Franchisee's compliance with its obligations pursuant to this
Agreement. If the Franchisee believes that the required documentation contains proprietary
information, or is otherwise of a nature which the City may, require nondisclosure as a public
record, then the Franchisee must submit a statement to the City Manager explaining the basis for
its confidentiality request. In the event that the City Manager concurs with the assertion of the
Company regarding the proprietary nature of the requested information, the City Manager,
consistent with its legal authority, will take all appropriate actions to ensure that §uch information
is not disclosed to any Person. In the event the City Manager determines it shall disclose publicly
such records, the Company shall retain all rights to appeal such determination under applicable
law.
(b) The Company shall submit to the City Manager, on a quarterly basis, by March 31, June 30,
September 30, and December 31 of each year, throughout the term of this Agreement, a
reasonable, statistical summary of the operations of the System. Such information shall include,
but not be limited to: number of dwelling units passed, the number of Basic Service and Cable
Programming Service Subscribers, and the penetration rates for Basic Service, Cable
Programming Service and Premium Services.
(c) The Company shall retain at its local system office or make available at such office within ten
(10) days after notice from the City, all reports, petitions, applications, communications, and
other significant filings it has received from or submitted to any governmental, State, county or
federal agency or official which materially pertains to or in any way materially affects
Franchisee's compliance with this Agreement. Such records shall be available for inspection by
the City upon reasonable notice during normal business hours and shall be retained by the
Company for a period of four (4) years.
(d) The Company shall conduct proof of performance tests of the System as required in Appendix A
to this Agreement, and shall submit the results of such tests to the City within thirty (30) days
after the completion of such tests.
(e) Books and Records/Audits
Throughout the term of the franchise, the Company shall maintain a local system office within
the Franchise Area, and shall make available at the office within seven (7) days after receipt of a
written request by the City, complete and accurate books of account records, maps, plans, and
other like materials of the Company applicable to Franchisee's compliance with this Agreement.
The City, or its designated representatives, shall have the right to inspect, examine, or audit such
materials during normal business hours and upon reasonable notice to the Company at reasonable
intervals and for reasons related to the enforcement and administration of this Agreement, and to
obtain information which has not otherwise been provided the City or which the City has
reasonable basis to believe has not been reported fairly and accurately. Any confidentiality
concerns by the Company will be handled in accordance with the procedures described above.
All documents which pertain to financial matters which may be the subject of an audit by the City
shall be retained by the Company far ,:~ i~~}~:iyii~~~tr~w of three (3) years following any ternunation of
this Agreement.
( fl The City, or its designated representatives, may require written certification by the appropriate
directors, officers, or other employees of the Company with respect to all documents referred to
in this Section.
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(g) Throughout the term of this Agreement, the Company shall maintain, in a file available for public
inspection during normal business hours at its local system office in the franchise area, or if
maintained in another office shall, upon request of the City and within a reasonable time, make
the documents available for inspection in the local office, whose location has been approved by
the City, the following documents: .
(i) The initial version of all plans to be submitted to the City by the Company, all updates to
said plans and any modifications to said plans that have become effective;
(ii) All periodic and other reports submitted to the City by the Company, as provided in this
Agreement; and
(iii) A copy of this Franchise Agreement and all amendments thereto.
(h) The Franchisee shall maintain an outage log showing the date, approximate time, duration, type
and probable cause of all headened, trunk, or distribution line service failures due to causes other
than routine testing or maintenance at reasonable times. Upon prior notice to the Franchisee,
such log is subject to review by the City Manager. Such logs will be retained by the Company for
a period of four (4) years or forwarded annually to the City.
(i) The Franchisee shall maintain a written record of all complaints showing the date, the name, the
address of the Subscriber, the nature of the complaints and the action taken by the Franchisee to
resolve said complaint. Such records shall be maintained for a period of four (4) years or
forwarded annually to the City. For the purposes of this Section, a complaint shall mean any
verbal or written inquiry, allegation or assertion made by a person which requires subsequent
corrective action to the System or any portion thereof, or any subsequent investigation, research
and, or a service call to be undertaken by the Company, its employees or agent. An inquiry which
is immediately answered by the Company representative receiving the inquiry is not required to
be included within the written record of complaints.
(j) Investi atg ions
The Company and each Affiliated Person shall cooperate fully and faithfully with any lawful
investigation, audit, or inquiry conducted by a City governmental agency.
(k) Notices
(1) Notice of a public meeting relating to this Agreement shall be posted not less than 72
hours prior to the meeting, and shall remain posted until after the meeting.
(2) The Franchisee shall maintain an address on file with the City Manager. Notices to the
Franchisee shall be addressed or delivered to the Franchisee at said address.
(3) Notices to the City required by law or by this Agreement shall be delivered in person or
as appropriate, by certified mail, first class, receipted mail or an overnight delivery
service to the City Manager, 1685 Main Street Santa Monica, California, 90401 and the
City Attorney, 1685 Main Street, Santa Monica, California 90401, not less than ten (10)
business days prior to the day on which the party giving such notice shall commence any
activity which requires the giving of notice. In computing business days, Saturdays,
Sundays and holidays recognized by the City shall be excluded.
36
(4) All required notices shall be in writing.
SECTION 11 -- MATERIAL EVENTS
(a) Foreclosure and Condemnation
Upon the occurrence of any event which may reasonably lead to the foreclosure or other judicial
sale of the System, or upon termination of any lease or mortgage which may materially affect the
Company's ability to perform its obligations pursuant to this Franchise, the Company shall
immediately notify the City Manager and the City Attorney of such occurrence. Such notification
shall serve as a request for consent of the proposed change, and the provisions of Section 3 of this
Agreement shall apply.
(b) Receivershin
(1) The Company shall immediately notify the City Attorney in writing i£ (i) the Compar~y
files a voluntary petition in banla~uptcy, a voluntary petition to reorganize its business, or
a voluntary petition to effect a plan or other arrangements with creditors; (ii) the
Company files an answer admitting the jurisdiction of the court and the material
allegations of an involuntary petition filed pursuant to the Bankruptcy code as amended;
(iii) the Company is adjudicated bankrupt, makes an assignment for the benefit of
creditors, applies for or consents to the appointment of any receiver or trustee of all or
any part of its property, including all or any part of the System; (iv) the Company
institutes dissolution or liquidation proceedings with respect to its business; (v) an order
is entered approving an involuntary petition to reorganize the business of the Company or
to effect a plan or other arrangement with creditors or appointing a receiver or Trustee for
the Company including all or any part of the System; or (vi) a writ of warrant or
attachment, execution, distraint, levy, possession, or any similar process shall be issued
by any court against all or any material part of the property of the Company, including all
or any material part of the System.
(2) In the event that said petition, writ, or warrant shall not be dismissed or a stay of
foreclosure obtained or said assignment, appointment, or proceedings shall not be
rescinded or terminated, within one hundred and twenty (120) days of the issuance,
making, or commencement thereof, and the effect thereof is to materially frustrate or
impede the ability of the Company to carry out its obligations pursuant to, and the
purposes of, this Agreement, then the City may revoke the franchise, unless:
within one hundred and twenty (120) days after his election or appointment, any
receiver or trustee of the Company, or, within one hundred and twenty (120) days
of the commencement thereof, the Company itself as a debtor-in-possession in
connection with any such reorganization or similar proceedings, shall have
remedied any uncured failure to comply with any provision of this Agreement;
and
within said one hundred and twenty (120) days, said receiver or trustee, or the
Company itself as a debtor-in possession, shall have executed an agreement, duly
approved by the City and the court having jurisdiction over the premises,
whereby said receiver or trustee or the Company, in said capacity, assumes all
37
obligations and agrees to be bound fully by each and every provision of this
Agreement.
SECTION 12 -- LIABILTTY AND INSURANCE
(a) Indemnification of Citv
Except for the sole negligence or willful misconduct of the City, the Franchisee shall, at its sole
cost and expense, fully indemnify, defend and hold harmless the City, its officials, its officers,
commissions, boards, departments, agents, employees and volunteers against any and all claims,
demands, actions, suits, judgments, and proceedings by others and against any loss, cost, and
expense, including reasonable legal fees resulting therefrom, arising out of any act or omission of
the Company, its agent(s), subcontractor(s), or any Affiliated Person(s) arising out of or in
connection with the performance of this Agreement.
(b) Insurance
(1) Without limiting the Franchisee's indemnification of the City, pursuant to Section 12(a)
hereof, the Franchisee shall provide and maintain, at its own, expense, continuously
throughout the term of this Agreement and any subsequent operation of the System by the
Franchisee, the insurance listed in this Section covering its operations pursuant to this
Agreement, commencing no later than the effective date of this Agreement and subject to
the following conditions:
(2) The City, including its officials, its officers, boards, commissions, agents, employees and
volunteers shall be named as an additional insured, as their interest may appear, in all
liability insurance policies.
(3) Such insurance shall be primary with respect to any insurance maintained by the City and
shall not call on the City's insurance for contributions. Insurance is to be placed with
insurers rated A- or better by A.M. Best's rating service or approved by the City Risk
Manager.
(4) Such insurance shall be obtained from brokers or carriers authorized to transact insurance
business in California.
(5) Evidence of insurance shall be submitted to the City Attorney and Risk Manager.
(6) With respect to the interests of the City, such insurance shall not be cancelled, reduced in
coverage or limits, or non-renewed except after thirty (30) days written notice, by hand
delivery or certified mail, has been given to the City Manager and the City
Attorney.
(7) The appropriate City Special Endorsement forms, obtainable from the City Manager, are
the preferred form of evidence of insurance. Alternatively, the Franchisee may submit a
certificate of insurance and appropriate endorsement forms reflecting the provisions
contained herein.
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(8) Commercial General Liabilitv
The Franchisee shall provide insurance with combined single limits of One Million
Dollars ($1,000,000) per occurrence for Bodily Injury and Property Damage and not less
than Five Million Dollars ($5,000,000) aggregate limits. Such insurance must include:
personal injury, premises and operations, completed operations, contractual liability,
independent contractors and, during the course of Construction, collapse and
underground hazards. Said liability limits may be attained through one, or a combination
of, liability policies.
(9) Business Automobile Liabilitv
The Franchisee shall provide insurance with combined single limits of One Million
Dollars ($1,000,000) per occurrence, for Bodily Injury and Property Damage, including
coverage for owned automobiles, non-owned automobiles, and hire automobiles.
Worker's Comnensation and Emplover's Liabili
By acceptance of this Franchise, the Franchisee certifies that it is aware of the provisions
of Section 3700, et seq. of the Labor Code which require every employer to be insured
against liability for worker's compensation or to undertake self-insurance in accordance
with such provisions before commencing the performance of the work on this contract.
A minimum limit of one million dollars ($1,000,000) per employee is required for
Employer's Liability.
A~gre~ate LimitsBlanket Coveraee
If any of the required insurance coverages contain aggregate limits less than those
specified or apply to other operations or tenancy of the Franchisee outside this franchise,
the Franchisee shall give the City prompt, written notice of any incident, occurrence,
claim, settlement, or judgment against such insurance which may diminish the protection
such insurance affords the City. The Franchisee shall also take immediate steps to restore
such aggregate limits or shall provide other insurance protection for such aggregate
limits.
Self-Insurance and Self-Insured Retentions
Self-Insurance programs and self-insured retentions in insurance policies are subject to
separate approval by the City upon review of evidence of the Franchisee's financial
capacity to respond. Additionally, such programs or retentions must provide the City
with at least the same protection from liability and defense of suits as would be afforded
by first-dollar insurance.
Failure to Procure Insurance
The Franchisee's failure to procure or maintain the required insurance or a self-insurance
program shall constitute a material breach of this Agreement. In such event the City may
procure or renew such insurance to protect the City's interests and pay any and all
premiums in connection therewith, and recover all monies so paid from the Franchisee.
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14) Underlvin~ Insurance
The Franchisee shall be responsible for requiring indemnification and insurance as it
deems appropriate from its employees receiving mileage allowance and agents and
subcontractors, if any, to protect the Franchisee's and the City's interest, and for ensuring
that such Persons comply with any applicable insurance statutes.
(c) Insvection of Property and Records
(1) Upon reasonable notice, during normal working hours, and at reasonable intervals for
reasons related to the enforcement and administration of the Agreement, and to obtain
information which has not otherwise been provided the City or which City has a
reasonable basis to believe has not been reported fairly and accurately, the Franchisee
shall permit any duly authorized representative of the City to examine all the property of
the Franchisee, together with any appurtenant property of the Franchisee situated within
the City, and to examine and transcribe any and all maps and other records kept or
maintained by the Franchisee, or under its conirol, which affect the Franchisee's
compliance with this Agreement. All costs and expenses for bringing all such materials
to the Franchisee's office in the local system area, or if the Company fails to bring the
material to the office in the Franchise Area, all costs and expenses for sending City
personnel to their location elsewhere, shall be borne by the Franchisee. All costs incurred
in copying or transcribing such materials shall be borne by the City. Any con~dentiality
concerns of the Company will be handled in accordance with the procedures described in
Section 10 hereof.
(2) Upon reasonable prior notice and request by the City, and to the extent not addressed by
reporting requirements otherwise provided for herein, the Franchisee shall respond in
writing to the City regarding specific issues, concerns or disputes which affect or may
affect the operations of the System and which reasonably relate to the City's enforcement
and administration of the Agreement.
(d) Nothing in this Agrcement shall be interpreted as a waiver by the City of any of its rights or
protections under Section 635A of the Cable Act, 47 U.S.C. §SSSa.
SECTION 13 -- TERMINATION AND RELATED RIGHTS
(a) Material Breach
(1) In the event that the Franchisee fails to comply with a material provision of this
Agreement, then, in accordance with the procedures provided in Section 13(a) hereof, the
Council may revoke the franchise granted herein and terrninate this Agreement in
accordance with the procedure set forth below.
(2) The Franchisee agrees that a failure to comply with a material provision of this
Agreement shall include, without limitation, any of the following acts or failures to act by
the Franchisee, an Affiliate Person or the Guarantor of any of the following events, unless
excused by the City.
(A) Substantial failure to provide the financial information required by Section 7
hereof;
40
(B) Substantial failure to satisfy the requirements regarding System characteristics or
repeated failure to meet the technical performance standards, as provided in
Appendix A to this Agreement;
(C) Substantial or repeated failure to provide any Cable Service to any Person as
required by this Agreement;
(D) Substantial failure to maintain the mix, level, and quality of Services within the
broad categories of video programming and other services as set forth in this
Agreement; nothing in this paragraph shall imply any regulatory authority or
power of censorship over the content of programming on the Company Channels
or Leased Channels;
(E) Abandonment of the System, in whole or in material part, without the prior
written consent of the Council;
Substantial and repeated failure to comply with the Leased Access requirements
of Section 612 of the Cable Act;
Substantial failure to supply the Access Channels and related facilities and
equipment after the date by which said items must be supplied, as provided in
Section 6 and Appendix F hereof;
Substantial failure to supply the Government Access Channels and other support
and any related services, equipment and facilities, as provided herein;
(n Substantial failure to comply with the interconnection requirements, as provided
in this Agreement;
(~ Substantial and repeated imposition of any nonstandard Installation and other
charges for Basic Service which are discriminatory;
Substantial and repeated failure to comply with the employment or purchasing
provisions, as provided in section 8 hereof;
Substantial and repeated failure to comply with consumer service standards and
requirements set forth in Section 6 and Appendix C hereof;
Substantial failure to comply with the privacy rights of Subscribers as provided
in this Agreement or Section 631 of the Cable Act or Section 637.5 of the
California Penal Code;
Substantial failure to make any of the Franchise Fee compensation payments as
provided herein, or any other payxnents required by this Agreement, or to
maintain the bond or other instrument in the amount required herein;
Substantial failure to deposit in an escrow account, as provided in Section 7(e),
any compensation or other payments which the Franchisee disputes or contests,
that have not otherwise been paid to the City;
41
(P) Substantial failure to comply with any rules, laws, regulations, orders or other
directives of the City issued pursuant to the police powers or pursuant to this
Agreement;
(Q) Willful violation of any prohibition set forth in Section 7(a)(3) hereof;
(R) The taking of any material action which requires the approval or consent of the
Council without having first obtained said approval or consent, as provided in
Section 3 or 11 of this Agreement;
(S) Substantial failure to furnish and maintain throughout the term of this Agreement
the liability and indemnification insurance coverage, as provided in Section 12
hereof;
(T) To engage in a course of conduct intentionally designed to practice any fraud or
deceit upon the City, any Subscriber, or any other use of the System;
(i~ Failure to cooperate fully and faithfully with any lawful investigation, audit or
inquiry conducted by a City governmental agency;
(V) Any material written misrepresentation, intentionally made by or on behalf of the
Company in its proposal for the franchise granted pursuant to this Agreement, or
in connection with the negotiation or renegotiation of, or any amendment or other
modification to this Agreement, to the extent that any such misrepresentation was
relied upon by the City;
The conviction of the Company, any Affiliated Person, any director or executive
officer of the Company or of an Affiliated Person, any Person holding Control of
or a Controlling Interest in the Company, or any employee or agent of the
Company or of any Affiliated Person acting under the express direction or with
the actual consent of the Company, its directors or officers, of any criminal
offense, including„ without limitation, bribery, fraud or obscenity, arising out of
or in connection with this ~4greement or the award of the franchise granted
pursuant to this Agreement, provided that the right to terrninate this Agreement in
the event of said convictions shall arise only with respect to any of the foregoing
convictions of the Company itself and, in the event of the conviction of any other
Persons specified in this subsection, if the Company fails to disassociate itself
from, or terminate the employment of, such other Persons with respect to
activities in the Franchise Area or any other activities affecting the System
pursuant to this Agreement, within thirty (30) days after the time in which
appeals from such conviction may be taken, or within thirty (30) days following
the final determination of all appeals which are in fact taken;
The conviction of any City officer, City employee, or City agent of the offense of
bribery or fraud with respect to this Agreement which arises out of or in
connection with any intentional action by the Company, any Affiliated Person,
any director or executive officer of the Company or of any Affiliated Person, any
Person holding Control of or a Controlling Interest in the Company, or of any
employee or agent of the Company or of any Affiliated Person acting under the
express direction or actual consent of the Company or any of the foregoing,
which act was undertaken for the benefit of the Company;
42
(I~ Any material false entry lrnowingly made in the books or accounts or records of
the Company, or any substantial false statements lrnowingly made in any report
to the City or otherwise by the Company, any director, officer, or other Person
holding a Controlling Interest in the Company, any Affiliated Person, or any
employee or agent of the Company acting under the express direction or with the
actual consent of the Company;
(Z) Failure to comply with a duly constituted order or substantial ruling of any City
regulatory body having jurisdiction over the Franchisee; or
(AA) Substantial failure to comply with the access origination point requirements as set
forth in Section 6(n) and Appendix D.
(BB) Substantial failure to comply with the Construction requirements set forth in this
Agreement.
Notwithstanding the foregoing, if, as a result of a failure or alleged failure to comply
with a material provision of this Agreement as delineated in the foregoing subsections,
the Franchisee is unable to comply with any other material provision(s) which
necessarily and directly arise(s) out of said failure or alleged failure as delineated in said
subsections, such inability to comply with such other provision(s) shall not be deemed to
be an independent failure to comply with a material provision of this Agreement.
(3) The Council shall exercise its right to revoke the franchise and terminate this Agreement
for a failure by the Franchisee to comply with a material provision of this Agreement in
accordance with the following procedures:
The City shall notify the Franchisee, in writing, of an alleged failure to comply
with a material provision of this Agreement which notice shall specify the
alleged failure with reasonable particularity. The Franchisee shall, within forty-
five (45) days after receipt of said notice or in the event such failure cannot be
reasonably cured within said forty-five (45) days, within a reasonable time,
provided the Franchisee commences to cure within said forty-five (45) days and
diligently pursues such cure to completion, either cure such alleged failure or, in
a written response to the City, either present facts and arguments in refutation or
excuse of such alleged failure or state that such alleged failure will be cured and
set forth the method and time schedule for accomplishing said cure.
The City shall investigate: (a) whether a failure to comply with a material
provision has occurred; (b) whether said failure is excusable; and (c) whether
said failure has been cured or will be cured by the Franchisee.
If the City determines that a failure to comply with a material provision has
occurred and that either said failure is not excusable or has not been or will not
be cured by the Franchisee, then the City shall so notify the Franchisee.
At the conclusion of or in the event that the investigation is not concluded, as
provided above, the City shall, within thirty (30) days, provide notice of a public
hearing at which the Franchisee shall have the opportunity to respond to the
claim that a material breach has occurred and to present facts and arguments in
43
refutation or excuse of such alleged breach, or to demonstrate that such failure
shall be cured as provided in this Agreement.
(E) All final City determinations with respect to revocation or termination must be
made by the City Council. Notwithstanding any final deternunation by the City
Council, the Company maintains its rights of appeal, if any, under applicable law.
(b) Circumstances Bevond Control of the Franchisee
The Franchisee shall not be subject to sanction under this Agreement when its performance is
prevented for reasons beyond its control, unless such occurrences or conditions are intentionally
caused or created by the Franchisee, or by an Affiliated Person at the Franchisee's express
direction.
(c) Except when enjoined by a court of law, litigation pending against the Franchisee shall not excuse
the Franchisee from the performance of its obligations under this Agreement. Failure of the
Franchisee to perform its obligations solely because of pending litigation may result in revocation
of its franchise pursuant to the provisions of Section 13 hereof. The Company may petition the
City Manager to be excused from the performance of its obligation under this Agreement because
of pending litigation. Any decision by the City Manager may be appealed to the Council.
(d) Termination and Related Ri~hts
(1) The termination of this Agreement and the Company's rights herein shall become
effective upon the earliest to occur of: (i) the revocation of the franchise by action of the
Council, as provided in Section 13 hereof; (ii) the abandonment of the System, in whole
or material part, as defined in Section 4 hereof by the Company without the express prior
approval of the City; or (iii) the expiration of the term of the franchise, if not renewed ar
extended. In the event of any termination, the City shall have all rights as provided in
this Agreement, including, without limitation, the right to order the Company or another
Person to continue to operate the System or to then or thereafter remove the System, or to
acquire or effect a transfer of the System. In any event, the Company maintains its rights
of appeal, if any, under applicable law.
(2) In the event of any termination of this Agreement, the Council may direct the Company
or a third party to operate the System on behalf of the City pursuant to the provisions of
this Agreement and such additional terms and conditions as are equitable and mutually
agreeable to the City and the Company or a third party, for a period of up to twelve (12)
months, in which event the Company or third party, as applicable, shall be entitled to all
revenues generated by the System during such period of continued operation. In the case
of operation of the System by a third party, the Company shall be entitled to a fair rental
for use of the System.
(3) Upon the termination of this Agreement due to the expiration of the term of the franchise
granted herein, the Company shall be entitled to cancel the performance bond required by
Section 4 hereof, after account is taken for all offsets necessary to compensate the City
for any uncured failure to comply with any provision of this Agreement as herein
provided. If the Company continues to operate the System following the termination of
this Agreement, the Company shall not be entitled to cancel such bond until the end of
such continued operation. In the event of a termination of this Agreement for cause due
to a material breach by the Company or otherwise, said bond shall become the property
44
of the City to the extent necessary to cover any costs, loss, or damage incurred by the
City as a result of said ternunation or material breach, provided that any amounts in
excess of said costs, loss or damage shall be refunded to the Company or surety, as
applicable.
(4) In the event of any termination, the City may order that the entire System shall become
the sole property of the City or may effect a transfer of the System to a third party. In
such event, the price to be paid for the System shall be the price the Cable Act requires.
(5) Upon any such acquisition or transfer, and, if applicable, receipt of payment by the
Company from the City, the Company shall:
(A) Cooperate with the City in maintaining the distribution of all Services over the
System during such acquisition transfer of ownership;
(B) Promptly execute all appropriate documents to transfer to the City or third party,
free of any and all encumbrances, title to the System, as well as all contracts,
leases, licenses, and rights necessary to maintain the System and the distribution
of Services over the System; and
(C) Promptly supply the City with all necessary records to operate the System,
including, without limitation, all Subscriber records and plant equipment layout
documents.
(6) Upon any termination of this Agreement, if so directed by the Council, the Company
shall, at its own cost and expense, promptly remove that part of the System located in the
Streets and Public Ways and shall replace or repair and restore to serviceable condition
each affected Street, Public Way, and governmental structure therein, in such manner as
may be reasonably specified by the City.
(7) In the event of any acquisition of the System by the City pursuant to this Section 13, and
subject to the requirements of applicable law: (i) the City shall not be required to assume
any of the obligations of any collective bargaining agreements or any other employxnent
contract held by the Company or any other obligations of the Company to any of its
officers, employees, or agents, including, without limitation, any pension or other
retirement, or any insurance obligations; and (ii) the City may lease, sell, operate, or
otherwise dispose of all or any part of the System in any manner, provided that the
Company may seek the award of any franchise to construct, operate, or maintain the
System in connection with any such sale.
SECTION 14 -- SiJNDRY PROVISIONS
(a) The Appendices to this Agreement, attached hereto, and all portions thereof and elchibits thereto,
are, except as otherwise specified in this Agreement or in said Appendices, incorporated herein
by this reference and expressly made a part of this Agreement. Any changes or modifications to
this Agreement, including Appendices, must be in writing and signed by both parties.
(b) For the ptuposes of all proceedings pursuant to this Agreement, wherever this Agreement requires
that an action be taken or not taken by the Franchisee or the City on the basis of operational,
technical, or economic feasibility or viability, the burden of demonstrating the existence or lack,
45
as applicable in the case of a particular provision of this Agreement, of said feasibility or
viability, shall be on the party asserting such claim.
(c) In the event that any provision of the Cable Act, which is relied on herein for any definition or
requirement, is repealed, then the language of such provision at the time of such repeal shall
nevertheless continue to apply for purposes of this Agreement, regardless of such repeal, except
as otherwise provided herein or as prohibited by such subsequent repeal or amendment.
(d) The Company agrees that a material breach of any of the terms and conditions o the Settlement
Agreement entered into by the City, the Company and the Guarantor o ~
("Settlement Agreement"), including, but not limited to, any failure of Adelphia Communications
Corporation to make the payments required by Section 2(a) of the Settlement Agreement, shall
constitute a material breach under this Agreement and shall entitle the City to pursue any
remedies under this Agreement or applicable law for such breach. The Company further agrees
that the City may require as a condition for any consent required by Section 3 of this Agreement
the payment of any remaining portions of the $3 million payable to the City pursuant to Section
2(a) of the Settlement, plus interest, if applicable.
(e) This Agreement embodies the entire understanding and agreement of the City and the Company
with respect to the subject matter hereof and merges and supersedes all prior representations,
agreements, and understandings, whether oral or written, between the City and the Company with
respect to the subject matter hereof, including, without limitation, all prior drafts of this
Agreement and any Appendix to this Agreement and any and all written or oral statements or
representations of any official, employee, or agent of the City and by the Company.
Notwithstanding t e above ntence, neither the Settlement Agreement entered into by the City
and Company on ~(~nor the I-Net agreement is superceded by this Agreement.
( fl The Company warrants, represents and acknowledges, and agrees that at or before the effective
date of this Agreement the Company shall submit to the City, in a form reasonably acceptable to
the City Attorney, an appropriate document evidencing its warranties, that, as of the effective date
of this Agreement:
(1) The Company is duly organized, validly existing, and in good standing under the laws of
the State of California;
(2) The Company has the requisite power and authority under applicable law and its by-laws
and articles of incorporation or other organizational documents, is authorized by
resolutions of its Board of Directors or other governing body, and has secured all
consents which are required to be obtained as of the effective date of this Agreement, to
enter into and legally bind the Company to this Agreement and to take all actions
necessary to perform all of its obligations pursuant to this Agreement;
(3) This Agreement is enforceable against Century - TCI California, L.P. and the Guarantor,
in accordance with the provisions hereof;
(4) To the best of the Company's knowledge, there is no action or proceedings pending or
threatened against the Company which questions its performance of this Agreement; and
(5) Insofar as the legal capacity of the Company to carry out any obligation pursuant to this
Agreement is concerned, the execution of, and performance pursuant to this Agreement
will not result in the breach or violation or any provision of the articles of incorporation
46
or by-laws of the Company or of any statute, regulation, agreement, judgment, or decree
to which it is subject.
(g) At or before the Closing, the Company shall submit to the City, in a form acceptable to the City
Attorney, a statement from the Company's Chief Executive Officer (or equivalent), stating that,
as of the effective date of this Agreement:
(1) None of the officers, directors, general partners, or manager of the Company have any
relation or interest in any local broadcast station or telephone company that would be
violation of Section 613 of the Cable Act;
(2) The performance of all terms and conditions of this Agreement is commercially
practicable.
(h) At or before the effective date of this Agreement, the Company shall deliver to the City, in a form
acceptable to the City Attorney, a certified copy of the resolution(s) of the Board of Directors or
other governing body of the Company authorizing execution of this Agreement.
(i) All of the provisions of this Agreement shall apply to the City, the Company, and their respective
successors, and assignees.
(j) The rights and remedies of the parties pursuant to this Agreement are cumulative, except as
otherwise provided in this Agreement, and shall be in addition to and not in derogation of any
other rights or remedies which the parties may have with respect to the subject matter of this
Agreement. A waiver of any right or remedy by a party at any one time shall not affect the
exercise of said right or remedy or any other right or other remedy by such party at any other
time. The failure of the City to take any action in the event of a material breach by the Company
shall not be construed or otherwise be deemed to constitute a waiver of the right of the City to
take such action at any other time in the event that said material breach has not been cured, or
with respect to any other material breach by the Company.
(k) In the event that, after the effective date of this Agreement, any court, agency, commission,
legislative body, or other authority of competent jurisdiction: (i) declares this Agreement invalid,
in whole or in part, or (ii) requires the Company either to: (a) perform any act which is
inconsistent with any provision of this Agreement or (b) cease performing any act required by
any provision of this Agreement, the City Attorney shall reasonably deterxnine whether said
declaration or requirement has a material and adverse effect on this Agreement. When the
Company intends to exercise its rights pursuant to such declaration, the Company shall so notify
the City of said declaration or requirement. If the City determines that said declaration or
requirement does have a material and adverse effect on this Agreement, then Company shall then
enter into good faith negotiations with the City to amend this Agreement to eliminate any
inconsistency or conflict between said declaration or requirement and the provisions of this
Agreement and to meet the original intent of the parties as the circumstances warrant and unless
prohibited by law.
(1) The headings contained in this Agreement are to facilitate reference only, do not form a part of
this Agreement, and shall not in any way affect the construction or interpretation hereof. All
references to any other gender or number shall be deemed to include all others, as the context
may require.
47
In the case of a conflict between a provision in Chapter 6.108 of the Santa Monica Municipal
Code and this Agreement, the provision of this Agreement shall apply.
~
Attest•
t'` aria St art
,~ City Clerk
Approved as to form:
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48
CITY OF SANTA MOIVICA
a Municipal Corporation
APPENDIX A
SYSTEM CHARACTERISTICS AND DESIGN SPECIFICATIONS
FCC TECffivICAL PERFORMANCE STANDARDS AND TESTING REQUIREMENTS
The Cable System shall meet the requirements set forth below. The Company will not pass through any
costs to subscribers resulting from the requirements set forth in this Appendix A, nor treat such costs as
"franchise fee" or as an offset against franchise fees.
SYSTEM FiJNCTIONAL REOUIItEMENTS: The Cable System shall pass frequencies of at
least 750 megahertz (MHZ) cable bandwidth and be capable of providing (a) the continuous,
downstream, one-way transport without compression of at least 116 analog multicast
VideoChannels in 6 MHZ NTSC amplitude modulaton/vestigial side band format ("NTSC") to all
points and Subscribers on the Cable System in the City. The Cable System shall provide at least
78 activated downstream channels. The Cable System shall be designed, spaced and constructed
for system operation to 750 MHZ meeting all FCC standards at full channel loading.
At a minimum, the Cable System shall use a hybrid fiber/coaxial trunk and coaxial
feeder/distribution network architecture. The fiber/coaxial transfer points ("nodes") shall be
placed so that the maximum amplifier cascades from the node to the Subscriber shall not exceed
four (4) amplifiers.
The Cable System shall support applications such as pay-per-view and other selection oriented
services in an addressable format. The approximately 25 MI~Z of upstream spectrum shall be
fully activated to support two-way services.
The Cable System shall be capable, without modification, of providing the continuous, one-way
downstream transport of digital multicast service. Such digital multicast service shall support
such applications as they become available for digital set top boxes.
For both analog and digital multicast service the video signal delivered to the Subscriber shall
meet or exceed the FCC standards for signal quality set forth at 47 CFR § 76.601 and following,
as amended from time to time.
Company shall install backup power which starts automatically in the event of loss of
conventional power to provide to the Cable System head-end and associated equipment in the
event of a power failure. Company shall provide backup power at all locations on the Cable
System where the loss of power might disrupt the provision of service within the City such that
the Cable System shall operate for at least four (4) hours even if electric service from
conventional utility lines is interrupted. The Company shall provide such backup power in
compliance with local laws, ordinances and regulations.
II. CABLE SYSTEM ARCHITECTURE: Company shall obtain most of its signals by satellite
from its metropolitan-area headend. The only signals to be obtained (and then inserted) locally
are local signals, such as Access Channels, Local Off Air Channels and Local Origination
channels.
49
Subscribers shall be grouped into nodes that are arranged geographically. Node size shall not
exceed 1300 homes per node. From each node, coaxial cable shall be used to deliver all
information streams to and from Subscribers; optical cable shall be used to carry upstream and
downstream communication from Company's headend to the node.
All coaxial cable portions of the Cable System, coaxial cable drops and coaxial cable installed by
Company on Subscriber premises (to the outlets typically located on a subscriber's wall), shall
allow the passage of 1 GHZ of spectrum while meeting the FCC standards for signal quality
described above so as to allow for channel expansion without replacement of such coaxial cable.
The nodes shall be so arranged, or if necessary rearranged, so that the subscribers served by each
correspond with the corporate boundaries of the City such that each individual Subscriber
receives only the Access Channels corresponding to the City.
III. MULTIPLE DWELLING UrTIT WIRING REOUIREMENTS:
(A) Within twenty-four (24) months of the Effective Date of this Franchise, the Company
shall have inspected the Drops used to receive Cable Service in all Multiple Dwelling
Units ("MDUs") within the City to ensure that such Drops meet all federal, state and
local regulations, rules and standards, including but not limited to, signal leakage
regulations and grounding standards and the California Electric Safety Code.
Subject to the requirements of Paragraph (C) below, during the term of the Agreement
Company shall complete repair of all 1VIDU drops that do not meet the FCC technical
standards regarding signal quality and applicable provisions of law and the California
Electric Safety Code (latest edition.
In the event that during the term of the franchise the Company's technical personnel call
on a MDU for the purpose of an installation, a service call or for any other business
reason, such technical personnel will inspect the Company's Internal Wiring at such
MDU for the purpose of identifying Internal Wiring which is out of compliance with
FCC technical standards regarding signal quality and applicable provisions of law and the
California Electrical Safety Code (latest edition). While on the premises, if Company
personnel discover the 1VIDU's drops fail to meet any of the aforementioned standards,
repair work on the entire building shall commence immediately in accordance with the
repair schedule pernutted under Paragraph (D) below.
Upon identification by Company of any noncompliance pursuant to (A) or (C) above or
upon notice of any such non-compliance by the City pursuant to any audit performed by
the City or a consultant hired by the City or by a customer, the Company will commence
work to achieve compliance in accordance with the Company's normal repair schedule
for any such MDU. Such thirty (30) day period will be extended in the event that the
Company is unable to obtain access to a customer's dwelling or the Company is unable to
obtain approval to make such repairs from the owner of any such NIDU or the Company,
using reasonable efforts, is unable to obtain the materials necessary to make such repairs
within such thirty (30) day period. Further, in the event that an increase in the number of
service calls or other technical repairs necessary pursuant to this Appendix A
substantially exceeds the Company's ability, using reasonable best efforts, to commence
the repairs within the Company's normal repair schedule the City and the Company will
meet to discuss and mutually agree upon a reasonable time frame for the commencement
of such repairs.
50
(E) The Company will meet with the City throughout the first thir ,ty (30) months after the
Effective Date of this franchise within fourteen (14) days of the close of each ninety (90)
day period commencing with the effecrive date of this franchise to review the status and
progress of the work described in this Section. Such reviews will include the number of
MDUs inspected, the nature of the repairs, if any, and the number of NIDUs where the
Company has been denied the ability to make repairs, during such ninety (90) day period.
The City agrees that the information contained in such reports and discussed at such
meetings will be kept confidential, to the extent permitted by applicable law.
(F) For purposes of Appendix A, a"Multiple Dwelling Unit" or "NIDU" shall be any
dwelling with eight (8) or more individual residential units provided however, for
purposes of the repair work required in Subsection (C) of this Appendix A, an MDU shall
be any dwelling with two (2) or more individual residential units.
(G) For purposes of this Appendix A, a"Drop" will be the coaxial cable connecting the
feeder cable to an external location at each MDU.
(H) The Company shall pay the reasonable and documented costs of technical consultants the
City hires for conducting technical inspections permitted in Section III(D).
(n For purposes of this Appendix A, "Internal Wiring" will be the coaxial cable from the
point of feeder cable connection to twelve (12) inches from the external point of
demarcation.
(~ The Company will not pass through any costs to subscribers resulting from the costs of
bringing drops to such Multiple Dwelling Units into compliance as required in this
section, and shall not treat such costs as a"franchise fee" or as an offset against franchise
fees,.
N. PERFORMANCE AND TESTING REOUIREMENTS: As required by Subchapter
6.108.10.120(c) of the Santa Monica Municipal Code, the City shall establish procedures for
testing the technical performance of the System. After adoption by the City, such procedures
shall be set forth as E~ibit 1 to this Appendix A and shall be incorporated herein and made a part
of this Agreement
V. ENGINEERING ANALYSIS AND SYSTEM ARCHITECTIJRE: The version of the
Engineering Analysis and System Architecture accepted by the City, and all subsequent additions
or modifications to such version, as accepted by the City, are set forth in paragraph I and II of the
Appendix A and as E~chibit 2 to this Appendix A and shall be incorporated herein and made a part
of this Agreement.
51
Apnendix B
Services/Channel Line Up
(See Attached)
52
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Cable Entertainment
Santa Monica
Channel Line-up
02 CBS KCBS 2 Los Angeles ^
03 DSC Discovery Channel ^
04 NBC KNBC 4 Los Angeles ^
05 WB KTLA 5 Los Angeles ^
06 PBS KCET 26 Los Angeles O
07 ABC KABC 7 Los Angeles O
OB ESPN 24 Hour Sports ^
09 IND KCAL 9 Los Angeles ^
10 AC Adelphia Channel: la pm• 9 am, M•Tnl
13 pm - 9 am, Fri~ 24 hours Sat & Sun. ^
CAL The Califomia ChanneC ~s am - a~rn, M-in1
19 am - 3 pm, Fri) ^
11 FOX KTTV 11 Los Angeles ^
12 NICK Nickeladeon ^
13 UPN KCOP 13 Los Angeles O
14 QVC Qualiry, Value, Convenience ^
15 SHOW Showtime •
i6 PEG Santa Monica City Channel ^
17 TMC The Movie Channel •
18 IND KSCI 18 San Bernardino ^
19 ABCFAM ABC Famity Channel ^
20 HBO H80 •
21 A&E A&E ^
22 IND KWHY 22 Las Angeles O
23 FSN Fox Sports Net ^
24 FSN2 Fox Sports Net 2 ~
25 FNC Fox News Channel ^
26 E!N Entertainment Television ^
27 LIFE Litetime ^
28 PEG Santa Monica City College ^
29 TRAVEL The Travel Channel ^
30 PAXNET KPXN 30 San Bernardino ^
31 DISNEY Disney Channel ^
32 CNN Cable News Network ^
33 CNBC Consumer/Business News ' ^
34 UNIV KMEX 34 Los Angeles ^
35 MN Music Televisiort
~36 ESPN2 24 Hour Sports ^
]7 SCI-FI Sci-Fi Channel ~^
38 TLC The Leaming ~hannei i~.
39 BET Black Entertainment Television ~
40 TBN KTBN 40 Santa Ana ^
41 TBS Turner Broadcasting System ^
42 TNT Tumer Network Television ^
43 FOOD Food Network ^
44 IND KXLA 44 Los Angeles O
45 HSN Home Shopping Network ^
46 IND KFTR 46 Ontario ^
47 HN Headline News ^
48 MSNBC All News Network ^
49 BRAVO Bravo ^
50 PBS KOCE 50 Huntington Beach p
51 NL N Land i
52 TELE KVEA 52 Corona !~
53 FX FX Network ^
54 IND KAZA 54 Los Angeles ^
55 USA USA Network ^
56 IND KDOC 56 Anaheim p
57 IND KJLA 57 Los Angeles ^
56 LAUSD KLCS 58 Los Angeles ^
59 AP Animal Planet ^
60 HGN Home & Garden Television ^
61 GALA Galavisi6n ^
62 IND KRCA 62 San Bernardino ^
63 INt Adelphia iN DEMAND t •
64 THN The Health Network ^
65 TNN The National Network ^
66 TOON The Cartoon Network ^
61 VH1 Vitleo Hits One ^
66 CSPAN2 Senate ^
69 CSPAN
NG House of Representatives
N Guide Channel ^
^
10 HIST The History Channel ^
71 STYLE style. ^
72 NATGEO National Geographic ^
73 COM Comedy Central ^
74 TWC The Weather Channel ^
75 ED Educational Access ^
76 COURT Court N ^
77 PUBLIC Public Access ^
18 TCM Turner Classic Movies ^
95 LEASED Leased Access ^
98 AMC American Movie Classics
_ ^
-_--
99 MAX Cinemax •
Key
^ Basic Channel
^ Adelphia Select Channel
• Premium Channel
• Adelphia Pay-Per•View Channel
800-626-6299
Effective Uate: 12N1
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Santa Monica
Channel Line-ups
2939 Nebraska Ave.
Santa Monica, CA 90404
Call 800-626-6299
for customer service
Lobby Hours:
Monday - Friday
8:OOam-6:OOpm
Saturday
B:OOam-4:30pm
Visit our website at
www.adelphia.net
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Ap~endix C
Consolidated Consumer Service Standards For the Provision of Cable Service
STANDARDS
TELEPHONE AND OFFICE AVAILABILITY
The Company shall provide Consumers a toll-free or local telephone number for installation,
Service, and complaint calls.
1.2 The Company must have telephone lines, either adequately staffed or with answering capability,
providing at least emergency referral information, which are operational twenty-four (24) hours a
day, every day, including weekends and holidays.
1.3 Under "Normal Operating Conditions" and when phones are staffed, Consumer calls to the
Company will be answered on average within thirty (30) seconds ninety percent (90%) of the
time; and Consumers will receive a busy signal three percent (3%) of the time or less. Repeated
failure to meet these Standards shall be grounds for Franchise revocation or other enforcement
actions in accordance with the terms of the franchise.
1.4
.4.01 On weekdays, the Company must have local or toll-free telephone lines and its office(s) located
within the Franchise Area open and adequately staffed to respond to Consumers in at least four
ways:
A. to accept payments;
B. to exchange or accept return of converters;
C. to schedule and conduct technical calls; and
D. to answer Consuxner inquiries.
1.4.02 On Saturdays, the Company must have telephone lines and adequate staff available: to accept or
exchange equipment, such as converters, at the option of the Company either at its office or in the
field; to schedule and perform emergency service or emergency technician calls; to answer
Consumer inquiries which may be answered by advising the caller when and what number to call
back during weekdays; and must have the capability to accept payments.
1.4.03 The Company shall notify the City as promptly as possible, by any available means including
accessing telephones away from the Company's premises, whenever there is an interruption of the
telephone service which affects the Company's Consumer Service phone lines, the phone line of
the Company's General Manager or other designated officer, or the phone line of the Company's
designated Consumer Service contact.
1.5 The Companies franchised by the City shall have an office located within the Franchise Area at
which they shall be able to respond to Consumers a minimum of fifty-four (54) hours a week,
eight (8) hours per day, on weekdays and four (4) hours on Saturdays.
53
2 DISABLED ACCESS
2.1
2.1.01 The Company shall provide maximum practicable availability of the Services and facilities of the
System to disabled persons. At a minimum, the Company shall provide at no additional cost a
single remote control device for each television set connected to the Service to those Consumers
who are paraplegic or quadriplegic.
2.1.02 Upon initiation of Service in the City, the Company shall submit to the City a plan and/or report
describing the equipment, facilities, and ongoing services the Company intends to or does make
available to disabled persons. Such information regarding the facilities, equipment, and ongoing
services for disabled persons shall be kept updated and the Company shall promptly submit to the
City Manager notification of any deletions or additions to such information.
2.2 The Company shall provide within forty-five (45) days of a request from a Consumer, for rental
or purchase, equipment which facilitates the reception of all Services by hearing-impaired
Consumers in accordance with the FCC's regulations regarding Closed Captioning. The
Company shall also provide TDD (or equivalent) equipment at the Company office that will
allow such Consumers to contact the Company for any reason related to the System.
3. EMPLOYEE IDENTIFICATION
3, All personnel of the Company contacting Consumers or potential Consumers outside the office of
the Company must be clearly identified as associated with the Company.
4. INSTALLATIONS
4.1
4.1.01 When applicable, standard installation charges will apply to those installations which consist of
an aerial or underground drop of no more than 150 feet in length running from the nearest feeder
cable of the System to the terminal of the Consumer, utilizing exposed wiring inside the
Consumer's premises. Installations requiring materials or procedures which exceed those
minimum lengths, or in the case of any underground drop which involves unforeseen or
extraordinary conditions, will be subject to additional charges, as determined by the Company,
provided that such additional charges shall be fair, reasonable, and nondiscriminatory.
4.1.02 All installations will include appropriate grounding, adjustment of the television set in order to
receive Service, and the provision of required consumer information and literature to instruct the
Consumer in the utilization of the Services.
4.2
4.2.01 The Company shall offer Consumers the option to receive an A/B switch at the time of initial
Service installation for no additional installation cost, and shall provide Consumers with written
information on how to use such a switch.
4.2.02 Upon Consumer request, the Company shall provide an A/B switch after the initial installation of
Service. If the Consumer requests installation of such a switch, the Company may charge
54
reasonable fees for such installation which fee shall not exceed the maximum rate permitted by
applicable law.
4.3 When applicable, if the Company cannot perform standard installations within nine (9) calendar
days of request by a Consumer (provided that the schedule or preferences of the person
requesting installation have not been responsible for the delay), the Consumer may request and is
entitled to receive a credit equal to one month of Basic Service. If the Company fails to provide
this credit and the request was made by the Consumer within sixty (60) days of the installation
request, the City may direct the Company to issue the credit. Repeated failure to perform
standard installations within the nine (9) calendar days or to provide the credit for late
installations shall be grounds for Franchise revocation or other enforcement actions.
4.4 All requests for installation (subject to the Company's Service Obligations), except where new
building construction is required, must be completed within thirty (30) days of the request,
provided, however, that the Company shall have been able to obtain any necessary easements or
other consents necessary to complete the installation, and that the schedule or preferences of the
person requesting the installation have not been responsible for delay, and that all applicable fees
and charges have been timely paid and collected. In those situations where new building
construction, including postwiring of multiple dwelling units, is required, installation shall be
completed within one hundred twenty (120) days of completion of the new building construction
subject to the Company's receipt of all necessary permits, easements and rights of access to such
multiple dwelling units on reasonable terms. Consent of the City Manager must be obtained for
installations exceeding the periods specified above, which consent shall not be unreasonably
withheld.
5. SERVICE INTERRUPTIONS AND O'THER SERVICE PROBLEMS
s-1 The Company shall render efficient service, make repairs promptly, and interrupt Service only if
unavoidably necessary and for the shortest period possible. Such interruptions, insofar as
possible, shall be preceded by reasonable notice to each affected person and shall occur during
periods of minimum System use.
5.2 The Company shall promptly notify the City of any significant "Service Interruption" in the
operation of the System. For the purposes of this Section, a"significant Service Interruption in
the operation of the System" shall mean any intemiption of a duration of at least four (4)
continuous hours to at least ten percent (10%) of the Consumers in the area or areas of the City
served by the Company.
5.3 The Company shall exercise its best efforts to limit any Service Interruption for the purpose of
maintaining, repairing, or Construction of the System to periods of minimum use. Except in an
emergency or other situation necessitating a more expedited or alternative notification procedure,
the Company may schedule a Service Interruption for a period of more than four (4) hours during
any twenty-four (24) hour period only after the City and each affected Consumer in the City have
been given forty-eight (48) hours prior written notice of the proposed interruption.
5.4 Technicians employed by the Company and capable of performing Service-related emergency
repairs and maintenance must be available twenty-four (24) hours a day, every day, including
weekends and holidays.
55
5.5.01 The Company must aclrnowledge complaints from Consumers within twenty-four (24) hours
(excluding weekends and holidays except in the case of Service Interruptions).
5.5.02 Excluding conditions beyond the control of the Company, the Company will begin working on
Service Interruptions promptly and in no event later than twenty-four (24) hours after the
interruption becomes lmown (including weekends and holidays). "Working on" constitutes
taking positive steps toward rectifying the problem not merely aclrnowledging the problem.
5.5.03 'The Company must begin actions to coirect Service problems other than Service Interruptions the
next business day after notification of the Service problem.
5.5.04 Verification of Consumer complaints, including but not limited to billing complaints, and
resolution must occur within forty-eight (48) hours (provided that the schedule or preferences of
the person requesting installation have not been responsible for the delay); and in any event,
resolution must occur within one (1) week. Those matters requiring additional maintenance,
repair, or technical adjustments that are documentable as necessitating in excess of one (1) week
to reasonably complete, must be finally resolved within thirty (30) days of the initial complaint.
The City Manager's office may require reasonable documentation to be provided by the
Company to substantiate the request for additional time to resolve a complaint.
5.6
5.6.01 The Company shall provide an automatic credit to all Consumers when there is an Outage of all
channels for a period of twenty-four (24) consecutive hours or more which affects an entire
service area, franchise area, or other discrete area of the City served by the Company, regardless
of the cause of the Outa.ge. The credit for such an Outage shall equal, at a minimum, the value of
one-thirtieth (1/30) of each Consumer's monthly bill for the first twenty-four (24) consecutive-
hour period and prorated for each additional four (4) hour period or portion thereof that the
Outage continues.
5.6.02 The Company shall provide an automatic credit to all affected Consumers when there is an
Outage of any Premium Service for a period of twenty-four (24) consecutive hours or more which
affects an entire service area, franchise area, or other discrete area of the City served by the
Company, regardless of the cause of the Outage. The credit shall equal, at a minimum, the value
of one-thirtieth (1/30) of each Consumer's monthly bill for the first twenty-four (24) hour
consecutive hour period and prorated for each additional four (4) hour period or portion thereof
that the Outage continues.
5.6.03 Upon request of the Consumer, the Company shall provide a credit to a Consumer whenever an
Outage or Outages of four or more hours in a twenty-four (24) hour period has affected any of the
non-premium channels received by a Consumer as part of their Service. The credit shall equal
the value of one-thirtieth (1/30) of each Consumer's monthly bill for Outages of four (4)
hours or greater duration occurring in a twenty-four (24) hour period. In the event that a premium
channel is affected by the Outage, the credit shall equal the value of one-thirtieth (1/30) the
Consumer's monthly premium rate for each Outage of four (4) hours or greater duration occurring
in a twenty-four (24) hour period.
5.6.04 Repeated failure to provide the proper credit for Outages shall be grounds for Franchise
revocation or other enforcement actions.
56
6. SERVICE APPOINTMENTS
6.1 The "appointment window" alternatives for installations, service calls for Cable Service, and
other installation activities will be either a specific time or, at maximum, a four-hour time block
during normal business hours. (The Company may schedule services calls for Cable Service and
other installation activities outside or normal business hours for the express convenience of the
Consumer).
6.2 If the Company does not arrive for appointments for installations or service calls within a
designated 4-hour time frame agreed to by the Consumer, the Consumer may request and is
entitled to receive a credit equal to one month of Basic Service. If the Company fails to provide
such credit, and the request was made by the Consumer within 60 days of the missed
appointment, the City may direct the Company to issue the credit. Repeated failure to provide the
credit shall be grounds for Franchise revocation.
6.3 Under Normal Operating Conditions, the Company may not cancel an appoinhnent with a
Consumer after the close of business on the business day prior to the scheduled appointment.
6.4 If the Company's representative is running late for an appointment with a Consumer and will not
be able to keep the appointrnent as scheduled, the Company will document a diligent effort to
contact the Consumer directly. If, however, the Consumer is unavailable at the time the contact
attempt is made, the Company will attempt a second documented contact at least one more time
during the previously agreed upon appointrnent window. The appointment will be rescheduled,
as necessary, at a time which is convenient to the Consumer. Contacting the Consumer will not
necessarily excuse a missed appointment. In the event that it is necessary for Company to contact
the Consumer regarding the scheduled appointment and Consumer is not available, Company will
use its best efforts to provide the Consumer with a phone number to contact Company.
7. NOTICES & CUSTOMER COMMUNICATIONS
7.1 The Company shall send semi-annually, written notice to all Consumers informing them that any
complaints or inquiries not satisfactorily handled by the Company may be referred to the City
Manager. Such notification shall be either:
A. A separate document that may be included with a billing statement; or
B. Included on the portion of the monthly bill that is to be retained by the Consumer.
The Company's telephone number for Service and the telephone number for the City shall be
contained in the notice. This notice shall also fully describe the Company's telephone hours and,
when applicable, the lobby hours and shall include the telephone number(s) available to
Consumers after the Company's normal business hours through which Consumers can obtain, at a
minimum, emergency refenal information. No promotional material may be included on the
separate document or the portion of the bill containing this notice. This notice shall be forwarded
to the City Manager, for a check of its accuracy and the City Manager shall respond in a
reasonable time frame, in compliance with Section 7.4.01 herein. This semi-annual notice may
be combined with the notice delineated in Section 7.3.
7.2
7.2.01 For informational purposes and for the City to ensure nondiscrimination, the Company shall
provide the City Manager a complete schedule of all current programming services, excluding
57
pay-per-view, rates and charges. The Company may petition the City Manager for the right to
exclude certain rates from those to be provided to the City Manager, but no such petition shall be
entertained with respect to any Basic Service rate, term, or condition for any individual or any
other Basic Service Consumer.
7.2.02 The Company shall notify Consumers of any pricing changes or additional charges (excluding
temporary marketing and sales discounts or offers) andlor any changes in programming services
(including the scrambling or descrambling of channels - except the descrambling of a channel(s)
for promotional purposes as provided for in Section 7.2.03) as soon as possible through
announcements on the System and in writing. Notice must be given to Consumers a minimum of
thirty (30) days in advance of such changes if the change is within the control of the Company.
In addition, the Company shall notify Consumers thirty (30) days in advance of any significant
changes in the other information required by Sections 7.3(A) through (K).
7.2.03 The Company shall notify all Consumers prior to making available any channel(s) full or part-
time without charge if programming rated NC-17, R, X, or the equivalents thereof will be
available for viewing. This notification shall include the rating(s) of the programming to be made
available for viewing and the right of the Consumer to have the Company block the
programming. The Company shall not charge Consumers for blocking this programming.
7.3 The Company shall provide written information to Consumers on each of the following areas at
the time of installation of Service, at least annually to all Consumers, at any time upon request,
and at least thirty (30) days prior to making significant changes in the information required by
this Section:
A. products and services offered;
B. prices and options for programming services and conditions of subscription to
programming and other services and facilities;
C. installation and maintenance policies including, when applicable, information regarding
the Consumer's home wiring rights and information describing ownership of internal
wiring during the period Service is provided;
D, instructions on how to use the Services;
E. channel positions of programming carried on the System;
F. billing and complaint procedures, including the name, address and telephone number of
the City Manager's Cable Television Division;
G, the availability of the Signal control device required by Section 624(d)(2) of the Cable
Act and A/B switches;
N the procedures by which the Consumer will be notified of changes in fees, charges,
deposits, or associated terms and conditions for any Service;
I. the Company's practices and procedures for protecting against invasions of privacy as
required by Section 631 of the Cable Act, and Section 637.5 of the California Penal
Code;
J. the address and telephone number of the Company's office to which complaints may be
reported; and
K. when applicable, the Company's Community Unit Identifier as specified by the FCC.
In all Consumer communications the Company must use Generally Accepted Terminology. The
Company must provide the notice the City Manager prior to transmitting it to Consumers
pursuant to Section 7.4 herein.
58
7.4
All Consumer notices, including but not limited to changes in rates, programming services,
channels positions, policies, instructions, equipment availability, or other Consumer information
that are within the control of the Company shall be submitted for review and comment to the
City Manager prior to its finalization and at a minimum fifteen (15) days prior to being
transmitted to Consumers.
Notices of changes in rates, programming services, channel positions policies, instruction,
equipment availability or other Consumer information that are not within the control of the
Company shall be submitted to the City Manager for review and comment as soon as practicable
allowing the City Manager as much lead-time as possible prior to finalization. This submission to
the City Manager must always take place prior to the transmission of the notices to the
Consumers:
7.4.03 Notices of changes in rates shall indicate the new rate inclusive of all fees and/or other fees and
the amount the rate has increased or decreased from the current rate. Specific words such as
"increase" or "decrease" must be used to describe the changes (as opposed to less specific terms,
such as "adjustment").
7.4.04 Notices of changes of programming services and/or channel locations shall include a description
of the new programming service, the specific Dial Location, and the hours of operation of that
programming service. In addition, should the Dial Location, hours of operation, or existence of
other programming services be affected by the introduction of a new service, such information
must also be included in the notice.
7.5.01 In order that Consumers are fully apprised of the charges they may incur, the Company will
generally be required to advertise rates that include all costs and fees. However, in those cases
where a System covers multiple areas that have differing franchise fees or other costs, different
channel line-ups or have slightly different rate structures, that Company should be permitted
some flexibility for efficient advertising that will reasonably advise potential Subscribers of the
true cost of Service. In such circumstances, the Company can advertise visibly a range of fees, or
a"fee plus" rate that indicates the core rate plus the actual dollar amount of the range of possible ~
additions based on the particular location of the Consumer. This provision does not apply in any
way to bills or rate-change notices.
7.5.02 In order that Consumers are fully apprised of the charges they may incur, the telephonic
communications with Consumers that quote rates, fees, and/or other charges shall quote the rates,
fees, and/or charges inclusive of all applicable franchise fees and/or other fees.
7.6 Every notice of termination of Service shall include all of the following information:
A. the name and address of the Consumer whose account is delinquent.
B. the amount of the delinquency.
C. the date by which payxnent is required in order to avoid termination of Service.
D. the telephone number of a representative of the Company who can provide additional
information and handle complaints or initiate an investigation concerning the Service and
charges in question.
59
7.7 For informational purposes only, a listing of the Company closings or holidays (e.g.
"nonbusiness" days) will be provided to the City Manager annually, by no later than July and by
no later than every anniversary thereafter.
8. BILLS
8.1 Bills will be clear, concise, accurate and understandable. Bills must be fully itemized, with
itemizations including, but not limited to, charges for each programming service to which the
Consumer subscribes and equipment charges. When, on bills, a Company chooses, consistent
with federal law, to itemize as a separate line item franchise fees and/or other governmentally-
imposed fees or taxes attributable to the total bill, such fees or taxes must be accurately calculated
and quoted regardless or whether the rates are regulated.
8.2 Every residential Consumer sending payment directly to the Company shall have at least fifteen
(15) days from the date the bill for Services is mailed to Consumer to pay the listed charges
(unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy).
8.3 A specific due date shall be indicated on every Consumer bill.
8.4 Any Consumer who, in good faith, disputes all or part of any bill has the option of withholding
the disputed amount without the threat of disconnection until the dispute is resolved provided
that:
A. The Consumer pays all undisputed charges;
B. The Consumer provides written notification of the dispute to the Company in a timely
manner; and
C. The Consumer cooperates in determining the appropriateness of the charges in dispute.
8.5 Consumer bills from the Company will include the name, address, and telephone number of the
FCC. Consumer bills from the Company shall include the name, address and telephone number
of the City Manager (the City Manager's Cable Television Division will issue approved
wording).
8.6 The Company shall forward, on a monthly basis, a sample bill for the current billing period to the
City Manager. The bill shall show, at a minimum, the charges for each programming service tier
offered by the Company, at least on Premium Service, and, for Companies that itemize franchise
fees and/or other fees on their bills; the amount of franchise fees and/or other fees. The bill shall
include charges for prior months only if the charges are credited on the bill prior to the listing of
new charges.
8.7 The Company shall forward all billing inserts and copies of all other mailings forwarded to
Consumers to the City Manager prior to or at the same time that they are provided to Consumers.
(Copies of notices to Consumers must be forwarded to the City Manager prior to being forwarded
to Consumers pursuant to the applicable sections of these Consumer Service Standards).
9. DISCONNECTIONS/DENIAL OF SERVICE
9.1 The Company shall not ternunate residential Service for nonpayment of a delinquent account
unless the Company furnishes a notice of the delinquency and impending termination at least
fifteen (15) day prior to the proposed ternunation. The notice shall be mailed, postage prepaid, to
the Consumer to whom the Service is billed. This notice shall not be mailed until the sucteenth
60
(16th) day after the date the bill for Services was mailed to the Consumer. The notice of
delinquency and impending termination may be part of a billing statement.
The Company shall not assess a late fee any earlier than the twenty-second (22nd) day after the
bill for Services has been mailed.
9.3 The Company shall only terininate Service on days when the Consumer can reach a
representative of the Company either in person or by telephone. Service terminated without good
cause must be restored without charge for the Service restoration. Good cause includes, but is not
limited to, failure to pay, payment by check for which there are insufficient funds, theft af
Service, abuse of equipment or System personnel, or other similar Consumer actions.
9.4 The Company shall furnish and maintain Services to each person who makes a bona fide request
to receive any programming service. Nothing in these Standards shall limit the right of the
Company to deny Service to any household or individual which has a negative credit or sexvice
history with the Company, which may include non-payment of bills or theft or damage to the
Company's equipment, or who has threatened or assaulted employees of the Company in the
course of their employment. Provided that in the event Service is denied, the Company will give
written notice to the Consumer of the right to appeal, to the City Manager, the Company's
decision to deny Service. The City Manager's decision may then be appealed to the City CounciL
10. DEPOSTTS, REFITNDS, AND CREDTTS
The Company may require refundable deposits in circumstances where such deposits are
necessary to protect equipment or to ensure payment where there is reasonable evidence of a risk
of nonpayment, provided that the Company shall be required to pay simple interest at a rate of
one-half percent (%z%) per month (6% per year). Such interest shall be accrued and payable upon
termination of Service. Upon termination of Service for any reason, Consumers will be entitled
to receive a refund or credit against amounts owed the Company equal to the deposit plus
accumulated interest. The City Manager may be petitioned to modify the interest rate to reflect
prevailing market rates.
10.2
10.2.01 Refund checks will be issued promptly following the resolution of the event giving rise to the
refund; and by the earlier of either:
A. the Consumer's next billing cycle; or
B. thirty (30) days.
10.2.02 If the Company does not mail a check for a refund (including applicable interest) to any
Consumer disconnecting Service with an outstanding credit within 45 days of the date Service is
ended, and the Consumer has returned all Company owned equipment, the Consumer may
request and is entitled to receive a$10.00 payment, in addition to the total refund (and applicable
interest) due. If the Company fails to provide the $10.00 payment and the request was made by
the Consumer within 60 days after failure to receive the refund, the City may direct the Company
to provide the $10.00 payment as well as any outstanding refund (and applicable interest) due.
Repeated failure to provide the $10.00 payxnent shall be grounds for Franchise revocation and/or
other enforcement actions.
61
Credits for Service will be issued no later than the Consumer's next billing cycle following the
determination that a credit is warranted.
11. RATES, FEES, AND CHARGES
11 The Company shall not, except to the extent expressly permitted by law, impose any fee or charge
on any Consumer for: (A) any service call to said Consumer's premises to perform any repair or
maintenance work related to Company, installed equipment necessary to receive Service, except
any such work which was necessitated by a negligent or wrongful act of said Consumer; or (B)
the disconnection of any Services to a Consumer, provided that the Company may impose
appropriate charges if, at the time of disconnection, some or all of the Company's equipment is
not returned to the Company or the Consumer has not paid all outstanding fees and charges due to
the Company; or there is damage to the equipment of the Company, excluding normal wear and
tear and the circumstances described in the next paragraph.
Where the actions of the Company, its agent(s) or subcontractor(s) can be shown upon a
reasonable demonstration of evidence to have contributed to the theft, loss or damage of a
converter or other equipment lawfully used by a Consumer, the Consumer's liability with respect
to said converter or other equipment shall be reduced to the extent of such contributing actions.
All charges for Services must be applied on a nondiscriminatory basis recognizing that the 1992
Cable Act allows for reasonable discounts to senior citizens andJor the economically
disadvantaged and that the Company may conduct promotional campaigns in which rates are
discounted or waived, and may offer bulk rate discounts for multiple dwelling units, hotels,
motels, and similar institutions.
11.4 The Company shall not assess late fees which exceed the reasonable costs incurred to collect past
due amounts.
12. PRNACY PROTECTIONS
The Company shall comply fully with all applicable State and federal laws relating to the
protection of Consumer privacy, including, without limitation, Section 631 of the Cable Act and
Section 637.5 of the California Penal Code. The Company shall not disclose the telephone
number of any Consumer for any purpose that is not directly related to the provision of Cable
Service. In the event that the current requirements of Section 631 of the Cable Act are
subsequently repealed or lessened, the requirements in effect on the effective date of these
Standards shall nevertheless continue to apply to the Company for the purposes of these
Standards.
12.2 The Company shall not request any more personally-identifiable information than is necessary to
confirm the identity of a Consumer. The type of information considered to be necessary may
vary depending on the individual Consumer, but a Company may not deny service to a Consumer
who fails to provide a driver's license number or social security number, however, the Company
may deny service if a Consumer fails to produce any verifiable personally-identifiable
information after being requested to do so.
62
13. ENFORCEMENT
Repeated failure to comply with any or all of the provisions delineated above shall be grounds for
Franchise revocation in accordance with the Franchise Agreement revocation procedures and/or
other enforcement actions.
The City may seek injunctive relief or any other judicial remedy available pursuant to state or
federal law in order to enforce compliance with these standards.
14. RIGHTS RESERVED BY THE CITY
The City reserves the right to establish additional, reasonable consumer service standards from
time to time, as may be necessary, after making a finding of need and after notice to and
opportunity to be heard from the Company has been afforded.
T'he City reserves the right to regulate rate for Cable Service to the fullest extent permitted by
law. Notwithstanding anything in these Standards to the contrary, in the event that the Cable Act
is amended or repealed, or restrictions on the authority of the City to regulate rates are otherwise
removed or lessened, or the FCC or any court permits the City to regulate such rates, the City
may, at its discretion, establish additional procedures and standards for rates and regulate such
rates to the fullest extent of its regulatory authority under federal, State, and local laws.
15. QUARTERLY PERFORMANCE MEETINGS
15.1 Within 90 days of the effective date of the franchise and every 90 days thereafter, upon request of
the City, the Company will meet with the City to review the requirements set forth in this
Appendix C. The Company's operational and technical personnel shall review with the City such
items as trouble calls and outage reports, installation records, system performance standards, new
product rollout progress reports and other items required by the City.
63
Appendix D
Origination Locations
Santa Monica City Hall Complex/Public Safety Facility - 1685 Main Street
Santa Monica Library and Branches - 1343 6~' Street
Ken Edwards Center - 1527 4~' Street
Virginia Avenue Park - 2200 Virginia Ave.
415 PCH
Santa Monica Civic Auditorium - 1855 Main Street
Santa Monica Unified School District Headquarters 1651 16'~ St.
Santa Monica High School Complex: District Admin. Bldg. Gym and
Barnum Hall - 601 Pico Blvd.
Santa Monica College and Stadium - 1900 Pico Blvd.
Santa Monica Academy of Entertainment & Technology - 1702 Stewart
64
Appendix E
PEG Access Support
The Company has provided an annual average of eighty two thousand four hundred eighty dollars
($82,480) of PEG Access support to the City of Santa Monica for the period calendar year 1988 through
calendar year 1999. Pursuant to Section 6(j), the Company will continue throughout the term of this
Agreement to maintain the current level of PEG support to the City, including maintaining the existing
fiber links from City Hall and the Santa Monica Public Library to Adelphia's headend. The current PEG
support will be accomplished, as needed in the sole discretion of Company, through staffing;
maintenance; repair and replacement of equipment; rent; training; playback; and such other types of
support necessary to replace or otherwise maintain the existing PEG equipment in good working order.
65
Appendix F
CORPORATE GUARANTY
THIS AGREEMENT is made this day of May, 2002, between ADELPHIA
COl~~]~IUIVICATIONS COF:PORATION ("Guarantor"), THE CIT'y OF SANTA MONICA,
CALIFOItNIA ("Franchisin,g Authority"), and CENTURY-TCI CALIFORNIA, L.P., d/b/a ADELPHIA
CABLE COI~~]!VIUNICATIC~NS ("Company").
WITNESSETH
WHEREAS, the Franchising Authority by action of its governing body adopted an Ordinance
dated May _, 2002 ("Ordinance") renewing the Cable Television Franchise ("Franchise") held by the
Company, an affiliate of Gu~~rantor; and
WHEREAS, the Fra~nchise is subject to the terms and conditions set forth in a Franchise
Agreement executed by the (;ity and the Company of an even date herewith (the "AgreemenY')• and
,
WHEREAS, the Fra~lchising Authority has requested and the Guarantor has agreed to provide it:
guaranty to fulfill the requirements of the Agreement; and
WHEREAS, Guarantor has a substantial interest in the cable system operated by the Company in
tAe City of Santa Monica ancl the conduct of the Company in complying with the Agreement which is
hereby specifically referred t~o, incorporated herein, and made a part hereof;
NOW, THEREFORI's, in order to induce the Franchising Authority to renew the Franchise on the
terms set forth in the Agreem~ent, and in consideration of the foregoing premises and for other good and
valuable consideration, the re~ceipt and sufficiency of which are hereby aclrnowledged, Guarantor hereby
guarantees unconditionally tc- the City, the prompt performance of all of the debts, liabilities and
obligations of Company contained in the Agreement, and agrees to comply fully with all obligations of
the Guarantor to be performed as provided in this Agreement. The Guarantor also affirms all
representations and warrantie~s made by the Company in the Agreement.
Guarantor hereby gu,arantees to Franchising Authority that all payments due and payable under
the Franchise, including payrnents of fees, penalties and interest shall be fully and punctually paid in
accordance with the Santa Monica Cable Ordinance and the Agreement.
This Guaranty-shall i•emain in full force and effect for the duration of the term of the Franchise,
except as expressly provided otherwise in the Agreement. No ternunation, amendment, waiver or
modification of this Guarant~~ or any of its terms or provisions shall be effective unless it is set forth in a
written instrument signed by the Guarantor and the Franchising Authority. Any ternunation of this
Guaranty shall not affect liability incurred or accrued under this Guaranty prior to the effective date of
such termination. This Guar;~nty shall be enforceable against Guarantor and any successors and assigns.
66
This Guaranty shall. be interpreted in accordance with the laws of the State of California.
IN WITNESS WH]:REOF, the Company, Franchising Authority, and Guarantor have executed
this Corporate Guaranty as ~~f the day, month and year ~rst above written.
f~ ~ ~ ~. ~. ~~ :'~.,`~~~~`fi ~~b C~
:~i:)~ f l~E~l; "~ ~'~.~~u~"~~~.~I~ ~l~~t:~'~~; t°t°,~1~1~~~~~~~~~I~~~;
,f•~ ~, ~.
! :A `L~'. .f ~~~'~~ ~ ~ ~.*~ d r a~ ..,? .k
I~~p M1 ~r~ € {~,~~~ ~~ ~~ Q ~~~ '~,., ~
~ ~ ~~ _..~.: ~~.~~ d ~_~ f ~~° "~.~~~ ~A~~~~~., ~ .,.._ b' ~" < ~.~ ~
/
COMPANY:
CENTURY-TCI CAL~ ~~+;~~1~~~' C ~~k., L.P.
~ ,~
~~ ~ ~ ~ ~ ~ ~
~ ~ ~
By: ~~ ~ ~~ ~a~~~.~~`~ ~~ ,~~~ ~,~t.- ~.
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~ ~ ~~~~`~ _ ~ ~~ _.~, .~ ~~'~~ ~'.~ ~~` - _ ~~"~,~
t,t~
~~i~j~~~=ki~~~~~., F~~;~~~~~~~~~ i ~T
67
APPENDIX G
CORPORATION ORGAhTIZATIONAL CHART
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68