Loading...
HomeMy WebLinkAbout6.4 Cable TV Franchise Ordinance and Agree a CITY OF DUBLIN /0so- 30 . AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 28, 1985 PUBLIC HEARING SUBJECT Cable Television Franchise Ordinance & Agreement EXHIBITS ATTACHED Ordinance; Agreement; Letter from Viacom dated September 24, 1985 and attachment RECOMMENDATION 1) Open Public Hearing; 2 ) Hear Negotiating Team Presentation; 3) Hear Public Testimony; 4 ) Close Public Hearing; 5 ) Waive reading and introduce Cable Television Ordinance; 6) Adopt Cable Television Agreement with effective date of January 1 , 1986 contingent upon the City Council ' s adoption of the Cable Television Ordinance at its next meeting FINANCIAL STATEMENT: City' s Franchise Fees Fiscal Year 1984-85 $25, 450 ; Estimated Franchise Fees for Fiscal Year 1986-87 $72, 500 DESCRIPTION BACKGROUND The City' s present Cable Television Franchise Agreement will expire on February 1 , 1988. In anticipation of this renewal, the City Council authorized participation with the Cities of Livermore, Pleasanton and San Ramon in jointly negotiating a franchise agreement with Viacom Cablevision. The City Council also authorized the City' s financial participation in the hiring of a Cable Television Consultant, Mr. Carl Pilnik, to assist the cities in providing technical advice in the negotiations with Viacom. Approximately 3 year ago, the City Council also authorized the City' s participation in a valleywide cable television committee and appointed representatives from the City of Dublin to that committee. As the Council may recall, the purpose of the committee was to provide additional input to the cities regarding the needs of the valley as they relate to cable television in the renewal of each cities ' respective franchise agreement. Vice Mayor Hegarty and City Manager Ambrose were appointed as the City' s representatives to the negotiating team, which was responsible for negotiating the Cable Television Ordinance and revised Cable Television Franchise Agreement. Last month, the negotiating team reached agreement with Viacom on the language of both the proposed ordinance and franchise agreement. However, the Cities of Dublin and San Ramon expressed some reservations with respect to the provisions made for service to public buildings. Since that meeting, representatives from Dublin and San Ramon have met with Viacom Cablevision to arrive at a satisfactory agreement with respect to the provision of service to public buildings. PROPOSED ORDINANCE The proposed Ordinance was developed with the assistance of the Cable Television Committee, Cable Television Negotiating Team and the Cable Television Consultant. The Ordinance incorporates the requirements of recent federal legislation, as well as provisions that will require more from the franchise operator during the term of the franchise agreement. Some of the provisions which are of particular note in the Ordinance are as follows: 1. The cable operator is required to have a franchise agreement in order to operate in the City of Dublin streets. 2. The City has the right to approve a franchise agreement which would be non-exclusive. 3. The City has the right to revoke the franchise given specific grounds. ---------------------------------------------------------------------------- COPIES TO: Viacom Cablevision ITEM NO. 6• i J 4. The City at its option can annually review the performance, quality of service, etc. , of the cable operator. 5. Provisions are made for remedies associated with franchise violations. 6. The cable operator is required to maintain a local office. The Ordinance basically provides the City with the authority to issue a franchise to an operator for cable television services within the City. FRANCHISE AGREEMENT As you are aware, recent changes in the federal law have made it more difficult for cities to regulate cable television franchises. Some of the major provisions of the federal law which impact the ability of a city to negotiate a franchise include the loss of the ability to negotiate rates for cable television service. This provision of federal law becomes effective December 29, 1986. Under state law, the cable operator could deregulate if they could not reach agreement over rates as they did� last year with the City of Livermore. Therefore, because of these limitations, the provision regarding rate review is limited just to review in accordance with stae and federal law. Some of the major provisions of the franchise agreement negotiated by the four cities include the following: 1. Viacom would be granted a 15 year non-exclusive franchise to operate a cable television system within the City. 2. Viacom would be required to pay a 5% franchise fee of gross revenues on all services to the City. 3 . Viacom would be required to reimburse the City for the cost of consultant services associated with renewing the franchise agreement. 4. Viacom would have to upgrade its existing system of 34 channels to 40 channels. This upgrade varies from community to community. In the case of Dublin, Viacom would be required to upgrade the cable system to 40 channels after certain findings were made. This could be done no sooner than one year after the effective date of the agreement, and Viacom would have six years to complete the upgrade. The franchise agreement also requires Viacom to upgrade to a maximum capacity of 54 channels under certain criteria. 5. Viacom would be required to provide the capability for interactive cable services. 6. Viacom is required to provide one free installation and basic service to schools, Dublin San Ramon Services District buildings and City buildings as indicated in Exhibit F. They are also required to provide the same service to new buildings within a period not to exceed one year. 7. Viacom is required to give the City a $55, 000 grant for public access facilities as well as $1, 000 per year for maintenance of the access equipment and facilities. Viacom is also required to make a mobile van available at least 5 hours per week for public access. The funds given to the City can possibly be combined with the funds given to the other cities in the valley to build a joint facility in the future. 8. Viacom is required to provide emergency alert capability allowing the City to interrupt a broadcast to announce a message in the event of an emergency or disaster. RECOMMENDATION Considering the limitations of the federal and state laws , it is the position of the negotiating committee that the proposed ordinance and franchise agreement provide the cities with considerable benefits beyond the existing franchise agreement. In conjunction with the renewal of the cable television franchise agreement, Viacom has indicated the desire to implement a rate increase for basic service from $9. 00 to $9. 95 per month. They have also indicated that as part of this rate increase, they would include ESPN ( Sports Network) as part of the basic service. Viacom has also indicated their desire to implement this rate increase as uniformly as possible throughout the cities and has requested that, if at all possible, the cities have the. same effective date for the renewal of their respective franchise agreements. It is therefore recommended that the City Council introduce the attached Cable Television Ordinance and approve the attached Franchise Agreement contingent upon the adoption of the Ordinance at the City Council. meeting of November 12 , 1985. ORDINANCE NO. AN ORDINANCE TO PROVIDE FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES OR PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF CABLE' COMMUNICATION, OR CABLE TELEVISION SYSTEMS AND FURTHER PROVIDING FOR THE CONTINUING REGULAT_TON AND ADMINISTRATION OF THESE FRANCHISES AND THE ACTIVITIES RELATIVE TO THE:i. s t TABLE OF CONTENTS Page SECTION 1: INTENT . . . . . . . . . . . . . . . . . . 1 SECTION 2: SHORT TITLE . . . . . . . . . . . . . . . . . 2 SECTION 3: DEFINITIONS . . . . . . . . . . . . . . 3 SECTION 4: GRANT OF FRANCHISE . . . . . . . . . . . . 11 SECTION 5 : REGULATION OF FRANCHISE . . . . . . . . . . 27 SECTION 6 : GENERAL FINANCIAL AND INSURANCE PROVISIONS . 36 SECTION 7: DESIGN AND CONSTRUCTION PROVISIONS . . . . . 43 SECTION 8 : SERVICE PROVISIONS.. . . . . . . . . . . . 56 SECTION 9 : OPERATION AND MAINTENANCE . . • . . . • . . 59 SECTION . 10 : RIGHTS RESERVED TO THE GRANTOR • . • • . . . 65 SECTION 11: RIGHTS RESERVED TO THE GRANTEE . . . . . . . 67 SECTION 12 : FRANCHISE VIOLATIONS. . . . . . . . .. . . 68 SECTION 13: REPORTS . . . . . . . . . . . . . . . . 71 SECTION 14 : MISCELLANEOUS PROVISIONS . . . . . . . . . . 76 1 - 1 - SECTION 1. INTENT The City of Dublin finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of Dublin. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this ordinance shall be deemed to include this finding as an integral part thereof. It is further the intention of the City Council of the City of Dublin that this ordinance shall supersede all City ordinances which govern the grant of a cable television franchise. . t 2 - SECTION 2. SHORT TITLE This Ordinance shall be known and may be cited as the "City of Dublin Cable Television Franchise Ordinance". . r 3 - SECTION 3. DEFINITIONS For the purpose of this ordinance the following terms , phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning. 3.1 "Additional Service" means any service not included in "Basic Cable Service" , or "Basic Radio Service" or "Institutional Service" , incluc?ina, but not limited to, nay-cable services . 3 . 2 "Agency Subscriber" means a subscriber who receives a service in a government or public agency , school, or non- profit corporation. 3 . 3 "Basic Radio Service" means the provision and the transmission of other audio signals, provided to subscribers at a monthly rate . t i 4 - 3. 4 "Basic. Cable Service" means the provision of any service tier which includes the retransmission of local television broadcast signals, and the equipment necessary for the reception of those signals at a subscriber's first cable outlet. 3 .5 "Broadcast Signal" means a television or radio signal that is licensed by the FCC and is transmitted over the air to a wide geographic audience and is received by a Cable Communications System. 3.6 "Cable Communications stem" or "System" , also referred to as "Cable Television System" , or "CATV 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. 3. 7 "Cable Service" means (a) the one-way transmission to subscribers of (1) video programming, or (2) other programming service, and (b) subscriber interaction, if any, which is required for the selection of such video programming or other programming service. 3. 8 "Cablecast Signal" means a nonbroadcast signal that originates within the facilities of the Cable Communications System. 3. 9 "Channel" means a six (6) Megahertz (MHz) frequency band, which is capable of carrying either one (1) standard television or video signal, a number of audio, digital or other non-video signals, or some combination of such signals . 3. 10 "Class IV Channel" means a signaling path provided by a Cable Communications System to transmit signals of any type from a subscriber terminal to another point in the cable television system. 5 - 3 . 11 "Closed-Circuit" or "Institutional Service" means such video, audio, data and other services provided to institutional users on an individual requirement, private channel basis . These may include, but not be limited to, two-way video, audio or digital signals among institutions , or from institutions to residential subscribers . 3 . 12 "Commence Construction" means that time and date when construction of the Cable Communications System is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (strand mapping) and of ter all necessary permits and authorizations have been obtained. 3. 13 "Commence Operation" means that time and date when operation of the Cable Communications . System is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to at least ten percent (10%) of the dwelling units located within the service area. 3. 14 "Commercial Subscriber" means a subscriber who receives a service in a place of business , where the service may be utilized in connection with a business, trade, or profession. 3. 15 "Converter" means an electronic device which converts signal carriers from one form to another. 3 . 16 "Council" means the governing body of the City of Dublin. 6 - I 3. 17 "Educational Channel" , or "Educational Access Channel" means any locally originated non-broadcast channel where local accred- ited educational institutions are the primary designated programmers . 3. 18 "FCC" means the Federal Communications Commission and any legally appointed or elected successor. 3. 19 "Franchise" means an initial authorization, or renewal thereof, issued by a franchising authority, which authorizes the con- struction or operation of a Cable System along the public way within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City. . 3. 20 "Franchise Agreement" means a franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted . 3. 21 "Franchise Fee" means the fee paid by the Grantee to the Grantor in consideration of the use of the public streets and rights-of-way. 3. 22 "Government Channel" or "Government Access Channel" means any locally originated non-broadcast channel where local government agencies are the primary designated programmers . 3. 23 "Grantee", means any "person" receiving a franchise pursuant to this ordinance and under the granting franchise ordinance, and its lawful successor, transferee or assignee. I' 1 - 7 - 3. 24 "Grantor" or "City" means the City of Dublin, as .represented by the City Council or any delegate acting within the scope of its jurisdiction. 3. 25 "Gross Annual Receipts" means the annual gross revenues received by the Grantee from all sources of operations of the Cable Communications System in the franchise area, except that any sales, excise or other taxes collected for direct pass-through to local, state or federal government shall not be included. 3. 26 "Initial Service Area" means the area of the City which will receive service initially, as set forth in the franchise agreement. 3. 27 "Installation" means the connection of the system from feeder cable to subscribers ' terminals, and the provision of service. 3. 28 "Leased" or "Commercial Use Channel" means any channel or portion of a channel available for lease and programming by persons or entities other than the Grantee, as defined by federal law. 3. 29 "Local Origination Channel" means any channel where the Grantee is the primary designated programmer, and provides video programs to subscribers . 3. 30 "Monitoring" means observing a communication signal, or the absence of a signal, where the observer is neither the subscriber, the Grantee nor the programmer, whether the signal is observed by visual or electronic means , for any purpose whatsoever. Monitoring shall not include systemwide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths transmissions, billing for pay-cable, or determining illegally received signals. r 8 3. 31 "Nonbroadcast Signal" means a signal that is transmitted by a Cable Communications System and that is not involved in an over-the-air broadcast transmission path . 3. 32 "Open Channel" means any channel that can be received by all subscribers, without the necessity for special equipment. 3. 33 "Pay-Cable" or "Pay-Television" means the delivery to subscribers , over the Cable Communications System, of television signals for a fee or charge to subscribers over and above the charge for Basic Subscriber Service, or a per program, per channel, or other subscription basis . 3. 34 "Penetration" means the result expressed in the percentage obtained by dividing the total number of potential subscribers in the franchise area into the number of subscribers receiving service. 3. 35 "Person" means an individual, partnership, association, organization, corporation or any lawful successor, transferee or assignee of said individual, partnership, associa- tion, organization or corporation. 3. 36 "Private Channel" , or "Closed-Circuit Channel" means any channel which is available only to subscribers who are provided with special converter or terminal equipment to .receive signals on that channel. 3. 37 "Programmer" means a person who produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals , either live or from recorded tapes or other storage media, to subscribers, by means of the Cable Communications System. 9 - 3. 38 "Public Access Channel" , or "Community Access Channel" means any channel where any member of the general public or any local noncommercial organization may be a programmer, without charge, on a first-come, first-served, nondiscrim- inatory basis, in accordance with the terms of the franchise agreement. 3. 39 "Reasonable Notice" shall be written notice addressed to the Grantee at its principal office or such other office as the Grantee has designated to the Grantor as the address to which notice should be transmitted to it, which notice shall be certified and postmarked not less than ten (10) days prior to that day in which the party giving such notice shall commence any action which requires the . giving of notice. In computing said ten (10) days , Saturdays , Sundays and holidays recognized by the Grantor shall be excluded. 3. 40 "Reasonable Order" shall be written orders not excessive or extreme as to costs or time to comply, governed by sound thinking. 3. 41 "Resident" means any person residing in the City as otherwise defined by applicable law. 3. 42 "Residential Subscriber" means a subscriber who receives a service in an individual dwelling unit, where the service is not to `be utilized in connection with a business , A trade, or profession. 3. 43 "Sale" shall include any sale, exchange , or barter. 10 - 3. 44 "School" means any nonprofit educational accredited institution including primary and secondary schools, colleges and universities , both public and private. 3. 45 "Service Area" means the entire geographic area within the City. 3. 46 "Service Tier" means a category of cable service "or other services provided by a cable operator and for which a separate rate is charged by the cable operator. 3. 47 "State" - means the State of California. 3. 48 "Street" shall include but not be limited to each of the following which have been dedicated to the public or hereafter dedi- cated to the public and maintained under public authority or by others and located within the City limits: streets , roadways, highways, avenues , lanes , alleys, sidewalks , easements , tights- of-way and similar public property and areas that the Grantor shall permit to be included within the definition of street from time to time. 3. 49 "Subscriber". means any person who subscribes to, for any purpose, a service provided by the Grantee through the operation of the Cable Communications System. 3. 50 "Substantially Completed" means that sufficient distribution facilities have been installed by the Grantee so as to permit the offering of full_ network service to at least ninety percent (9,0%) of the potential subscribers in the service area. 3. 51 "Tapping" means observing a two-way communica- tions signal exchange, where the observer is neither of the communicating parties , whether the exchange is observed by visual or electronic means, for any purpose whatsoever. SECTION 4 . GRANT OF FRANCHISE 4 .1 Grant. In the event that Grantor shall grant to a Grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a Cable Communications System within the franchise area, said franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as required by the provisions of this ordinance and the franchise agreement. The franchise agreement shall include those provisions of the Grantee ' s "Application for Franchise" that are finally negotiated and accepted by the Grantor and Grantee. Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and _tate general laws and regulations . In the event of conflict between the terms and conditions of the franchise and the terms and conditions on which the Grantor can grant a franchise, the applicable federal and state laws and regulations , shall, without exception, control . Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the other. codes and ordinances of the Grantor regarding permits, fees to be paid or manner of construction. 12 - 4 .2 Franchise Required. No Cable Communications System shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise in accordance with the provisions of this ordinance. 4 .3 Establishment of Franchise Requirements. The Grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of art in the cable television industry. Such requirements shall not be retroactive to franchises then in effect. 4 . 4 Franchise Area. The service area shall be the entire territory defined in the franchise agreement. The initial service area shall be that portion of the franchise territory scheduled to receive initial service , as stated in the franchise agreement. 4 .5 Use of Public Streets and Ways. For the purpose of operating and maintaining a Cable Communications System in the franchise area, and subject to the provisions of Section 7 .10 herein, the Grantee may erect, install , construct, r,_pair , replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise territory such wires, 'cables, conductors, ducts, conduits , vaults, manholes, amplifiers, appliances, pedestals, attachments , and other property and equipment as are necessary and ap=urtenant to the operation of the Cable Communications System. Prior to 13 - construction or alteration, however, the Grantee shall in each case file plans with the appropriate Grantor agencies and local utility companies, and receive written approval before proceeding. Grantor shall in any event comply with all applicable City _ construction codes and procedures. 4 . 6 Duration. ' The term of any franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as stated in the franchise agreement, unless terminated sooner as hereinafter provided. The effective date of the franchise shall be the date of execution of the franchise agreement by the Grantor, subject to prior execution by the Grantee. 4 . 7 Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The Grantor specifically reserves the -right to grant, at any time, such additional franchises for a Cable Communications System as it deems appropriate. 4 .8 Franchise Applications. Applicants for a franchise shall submit to the Grantor written applications utilizing the standardized format provided by the Grantor, at the time and place designated by the Grantor for accepting applications, and including the designated application fee. 4 .9 Grant Procedure. All franchise applications when filed shall be availab;e for public inspection at places designated by the Grantor. No later than ninety (90) days after filing, a public hearing shall be held on the application. A decision shall be made by the Grantor not later than ninety (90) 14 - r days after such hearing based upon an evaluation of the application (s) , the hearing, and other information that the Grantor may deem relevant. Grantor may grant one or more franchises, or may decline to grant any franchise, as it determines to be in the best public interest. 4 .10 Transfer of Ownership or Control. (a) Transfer of Franchise. Any franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the Grantor. Such consent as required by the Grantor, shall, however, not be unreasonably withheld. (b) Ownership or Control . The Grantee shall promptly notify the Grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of ten percent (10%) or more of the beneficial ownership interest of the Grantee . Every change, transfer, or acquisition of control of the Grantee shall make the franchise subject to cancellation 15 - unless and until the Grantor shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the Grantor may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the Grantor in any such inquiry. In seeking the Grantor' s consent to any change in ownership or control, the Grantee shall have the responsibility: (1) To show to the satisfaction of the Grantor whether the proposed purchaser, transferee, or assignee (the "proposed transferee") , which in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest in five percent (5%) or more of its voting stock, or any of the proposed transferee ' s principals : a . Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to any violation of federal, state or local law or regulations , or is presently under an indictment, investigation or complaint charging such acts; b. Has ever had a judgment in an action for fraud, decit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or C . Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system. 16 - (2) To establish, to the satisfaction of the Grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the Grantee was required to submit in its franchise application, and such other data as the Grantor may request. Financial statements shall be audited, certified and qualified by an independent Certified Public Accountant. (3) To establish to the satisfaction of the Grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms . (c) The Grantor agrees that any financial insti- tution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor will take control and operate the Cable Communications System, in the event of a Grantee default in its financial obligations . Further, said financial institution shall also submit a plan for such opera- tion that will insure continued service and compliance with all franchise requirements during the term the financial insti- tution exercises control over the system. The financial insti- tution shall not exercise control over the system for a period exceeding one- ( 1) year unless extended by the Grantor in its discretion and during said period of time it shall have the 17 - right to petition the Grantor to transfer the franchise to another Grantee. If the Grantor finds that such transfer after con- sidering the legal, financial, character, technical and other public interest qualities of the applicant are satisfactory, the Grantor will transfer and assign the rights and obligations of such franchise . The consent of the Grantor to such transfer shall not be unreasonably withheld. (d) The consent or approval of the Grantor to any transfer of the Grantee shall not constitute a waiver or release of the rights of the Grantor in and to the streets , and any transfer shall by its terms, be expressly subordinate to the terms and conditions of any franchise. (e) In the absence of extraordinary circumstances , the Grantor will not approve any transfer or assignment of the franchise prior to substantial completion of construction of the proposed system. (f) In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the franchise agreement. 4 .11 Franchise Renewal. Franchise renewal shall be in accordance with federal law. Nothing in any franchise agreement shall require renewal by the Grantor after the term of the . franchise has expired, nor shall renewal by presumed as a matter of vested interest. (a) Term. The renewal term of any franchise renewal shall not be greater than the initial term. 18 - i (b) Renewal Procedure. ! (1) The franchise renewal procedure shall be in accordance with applicable law. Based on the criteria and procedures required by applicable law, Grantor may decide to renew the franchise under appropriate terms and conditions , or not to renew the franchise. (2) If Grantor' s decision is not to renew the franchise, Grantor may initiate public solicitations for applications for a new franchise. The original Grantee shall not be precluded from submitting such an application. (3) In any renewal or public solicitation, the Grantor may require facilities and equipment, including a system upgrade or any other conditions appropriate in the light of the needs of the community, and applicable law. 4 .12 Police Powers. In accepting a franchise, the Grantee acknowledges that its rights hereunder are subject to the police power of the Grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the Grantor pursuant to such power. Any conflict between the provisions of this ordinance and any other present or future lawful exercise of the Grantor ' s police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any Cable Communi- cations System franchise which contains provisions inconsistent 19 - with this franchise shall prevail only if upon such exercise the Grantor declares an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law. 4 .13 Franchise Fee. (a) Annual Franchise Payment. A Grantee of a franchise hereunder shall pay to the Grantor an annual fee in an amount as designated in the franchise agreement. Such payment shall commence as of the effective date of the franchise. The Grantor, if it so requests, annually shall be furnished, within sixty (60) days of the close of the calendar year, a statement, audited and certified by a Certified Public Accountant, reflecting the total amounts of gross receipt and all payments , deductions and computations for the period covered by the payment. Grantor shall have the right to conduct an independent audit of Grantee ' s records, and if such audit indicates a franchise fee underpayment of two percent (2%) or more, the Grantee shall assume all reasonable costs of such an audit. (b) Acceptance by Grantor. No acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the Grantee. (c) Failure to Make Required Payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, or paid immediately upon noti- fication, Grantee may be required to pay as additional compensation: 20 - ( 1) An interest charge , computed from such due date, at an annual rate equal to the average prime interest rate for the period in question. I (2) A sum of money equal to five percent ( So ) of the amount due in order to defray those additional expenses and costs incurred by the Grantor by reason of delinquent payment. (d) Payment due the Grantor under this provision shall be computed annually, for the preceding calendar year. Each annual payment shall be due and payable no later than thirty ( 30) days after the close of the calendar year. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the Grantor. (e) Any Grantee "pass through" or itemization of franchise fee costs on subscribers ' bills shall be in accordance with federal law. 4 . 14 Forfeiture or Revocation. (a) Grounds for Revocation. The Grantor reserves the right to revoke any franchise granted hereunder and rescind all rights%'and privileges associated with the i franchise in the following circumstances , each of which shall represent a default under this ordinance and a material breach of the franchise : i 21 - (1) If the Grantee should default in the per- formance of any of its material obligations under this ordinance or the franchise agreement, subject to the provisions of Section 12 . 3 . (2) If the Grantee should fail after receiving thirty (30) days written notice, to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required herein. (3) If any court of competent jurisdiction, or any federal or state regulatory body by rules, decisions or other action determines that any material provision of the franchise documents, including this ordinance, is invalid or un- enforceable prior to the commencement of system construction. (4) If the Grantee ceases to. provide all services for any reason within the control of the Grantee over the Cable Communications System. (5) If the Grantee willfully violates any of the material provisions of this ordinance or the franchise agreement, or is proven to have practiced any fraud or deceit upon the Grantor. (6) If the Grantee' s construction schedule is delayed for more than eighteen (18) months later than the schedule contained in the franchise agreement and Grantor finds that the delay was not excusable under the provisions of Section 12 . 3 . (7) If the Grantee becomes insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Grantee in a bankruptcy proceeding . 22 - (b) Procedure Prior to Revocation. (1) The Grantor may make written demand that the Grantee do so comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30)' days following such written demand, the Grantor may place its request for termination of the franchise upon a regular Council meeting agenda. The Grantor shall cause notice to be served upon such Grantee, at least ten (10) days prior to the date of such meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, ten (10) days before such meeting in a newspaper of general circulation within the franchise area. (2) The Grantor shall hear any persons interested therein, and shall determine, based upon substantial evidence, whether the Grantee has committed a material breach of this ordinance or the franchise agreement, and, if so , whether such breach was willful. (3) If the Grantor determines that the Grantee has committed a material breach, which was not willful , the Grantor shall direct the Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as are reasAable under the circumstances. (4) If the Grantor determines that the Grantee has committed a material breach, which was willful, then the Grantor may, if the material breach is capable of being cured by the Grantee, direct the Grantee to take appropriate remedial action within such ' - 23 time and manner and upon such terms and conditions as the Grantor shall determine are reasonable under the circumstances . (5) If the Grantee fails to begin appropriate remedial action upon receiving notification of a material breach by the Grantor then the Grantor may, by resolution, declare that the franchise of such Grantee shall be terminated. (6) In the event that the Grantor declares , by resolution, that the franchise of a Grantee shall be terminated, then such Grantee shall have the right to have such declaration of termination reviewed in a court of appropriate jurisdiction. No such termination shall be effective until a final decision is reached by the court. 4 .15 Procedures in the Event of Termination or Expiration. (a) Disposition of Facilities. In the event a franchise expires, is revoked, or otherwise terminated, the Grantor may order the removal of the above-ground system facilities from the franchise area within a reasonable period of time as determined by the Grantor or require the original Grantee to maintain and . operate its network until a subsequent Grantee is selected and a subsequent or modified cable system becomes operational . (b) Restoration of Property. In removing its plant, structures and equipment, the Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee ' s removal of its equipment and appliances without affecting the electrical or telephone cable wires, or attachments. Any liability, indemnity and insurance, and the security fund and bonds provided shall 24 - continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this Section. (c) Restoration by Grantor, Reimbursement of Costs. In the event of a failure by the Grantee to complete any work required by Subsection (a) above and/or Subsection (b) above, or any other work required by Grantor by law or ordinance within. the time as may be established and to the satisfaction of the Grantor, the Grantor may cause such work to be done and the Grantee shall reimburse the Grantor the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the Grantor may recover such costs through any security fund or bonds provided by Grantee. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section. (d) Extended Operation. Upon either the expiration or revocation of a franchise, the Grantor may require the Grantee to continue to operate the Cable Communications System for a defined period of time not to exceed twenty-four (24 ) months from the date of such expiration or revocation. The Grantee shall , as trustee for its successor in interest, continue to operate the Cable Communications System under the terms and conditions of this ordinance and the franchise agreement and to r provide the regular subscriber service and any and all of the services that may be provided at that time. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section. 25 - (e) Grantor' s Right Not Affected. The termina- tion and forfeiture of any franchise shall in no way affect any of the rights of the Grantor under the franchise or any provision of law. 4 . 16 Receivership and Foreclosure. (a) Any franchise herein granted shall, at the option of the Grantor, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless : (1) Such receivers or trustees shall -have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this ordinance and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the franchise; and, (2) Such receivers or trustees shall , within said one hundred twenty (120) days, execute an agree- ment duly approved by the Court having jurisdiction on the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement . - 26 - (b) In the case of a foreclosure or other involuntary sale of the plant, property and equipment of the Grantee, or any part thereof, the Grantor may serve notice of termination upon the Grantee and to the purchaser at such sale, in which event the franchise and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless : (1) The Grantor shall have approved the transfer of the franchise, as and in the manner in this ordinance provided; and, (2) Such successful purchaser shall have covenanted and agreed with the Grantor to assume and be bound by all the terms and conditions of the franchise agreement. 4 . 17 Franchise Processing Costs. For either a new franchise award or a franchise renewal, costs to be bcrne by Grantee shall include, but shall not be limited to, all costs of publications of notices prior to any public meeting provided for pursuant to a franchise, development and publication of relevant franchise ordinances and franchise agreement, fees , and any cost not covered by the application fees , incurred by the Grantor in its preparation of proposal solicitation documents , evaluation of all applications, including, but not limited to consultant and attorney fees . These franchise processing costs are over and above the construction inspection and permit fees specified in Section 7 . 11 (a) (1) . 27 - SECTION 5 . REGULATION OF FRANCHISE 5. 1 Regulatory Authority. The Grantor shall exercise appropriate regulatory authority under the provisions of this ordinance and applicable law. If the franchise area served by the Cable Communications System also serves other contiguous or neighboring communities, Grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications . 5 . 2 Regulatory Responsibility. The Grantor, acting alone or acting jointly with other Grantors , may exercise or delegate the following regulatory responsibility : (a) Administering and enforcing the provisions of the Cable Communications System franchise (s) . (b) Coordination of the operation of government and educational channels . (c) Providing technical, programming and operational support to public agency users , such as government departments , schools and health care institutions . (d) Establishing, jointly with the Grantee, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement. • (e) Planning, jointly with the Grantee, expansion and growth of public benefit cable services . ( f) Analyzing the possibility of integrating cable communications with other local, state or national tele- communications networks . 28 - (g) Formulating and recommending long-range telecommunications policy. 5. 3 Public Usage of the System. If so specified in the franchise agreement, the Grantor may utilize a portion of the Cable Communications System capacity, and associated facilities and resources, to develop and provide noncommercial cable services that will be in the public interest. In furtherance of this purpose, the Grantor may establish a commission, public corpora- tion, or other entity to receive and allocate facilities , support funds and other considerations provided by the Grantee, and/or others. Such an entity, if established, may be delegated the following responsibilities : (a) Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the Cable Communications System. (b) Review the status and progress of each service developed for public benefit. (c) Reallocate resources on a periodic basis to conform with changing priorities and public needs . (d) Report to the Grantor annually on the utili- zation of resources, the new public services developed and the benefits achieved for .-the City and its residents . 5 . 4 Reservation by Grantor. The Grantor reserves the right, at its discretion, from time to time , to determine if the entity described in Section 5 . 3 above is performing its purposes in a manner satisfactory to the Grantor, and if it 29 - is not, the Grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with -such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in Section 5 . 3. 5 . 5 Rates . (a) The Grantee shall establish rates for its services that must be applied fairly within all classes of subscribers in the franchise area. (b) Grantor may regulate basic cable service rates for the period permitted by applicable law. (c) Schedule of Rates . The Grantee shall file and maintain current with the Grantor, a complete schedule of subscriber rates and charges . (d) Disconnections . There shall be no charge for disconnection from the system. 5 . 6 Annual Review of Performance. At Grantor' s sole option, within ninety (90) days of the first anniversary of the effective date of each franchise , and each year there- after throughout the term of the franchise, the Grantor and Grantee shall meet publicly to review the performance, quality of service and rates of the cable communications system. The f reports required in Section 9 regarding subscriber complaints , the records of performance tests and any opinion survey report may be utilized as the basis for review. In addition, any subscriber 30 - may submit appropriate information or complaints during the review meetings, either orally or in writing, and these shall be considered. (a) Within thirty (30) days of ter the conclusion of the system performance review meetings, Grantor shall issue a report with respect to the adequacy of system performance and quality of service. If substantial inadequacies are found, Grantor may direct Grantee to correct the inadequacies within a reasonable period of time. (b) Failure of Grantee, after due notice, to correct the inadequacies shall be considered a material breach of the franchise, and Grantor may, at its sole discretion, exercise any remedy within the scope of this ordinance con- sidered appropriate. 5 . 7 System and Capability Review. To provide for technological, economic, and regulatory changes in the state of the art of cable communications , to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established: (a) At Grantor' s sole option, the Grantor and Grantee shall hold a System and Capability Review Session within sixty (60) days before or after the third anniversary date of the franchise agreement. Subsequent System Review Sessions shall be scheduled by the Grantor each three (3) years thereafter. (b) Sixty (60) days prior to the scheduled System and Capability Review Session, Grantee shall submit a report to Grantor indicating the following: I I 31 - (1) All cable system services that are being provided on an operational basis , excluding tests and demonstrations, to cities in the United States with popula- tions above ten thousand (10 ,000) , that are not provided to the Grantor. (2) A plan for provision of such services , or a justification indicating why such services are not feasible for the franchise area. (c) Topics for discussion and review at the System and Capability Review Sessions shall include but shall not be limited to, application of new technologies , system performance, subscriber complaints , user complaints, rights of privacy, amendments to the franchise, undergrounding processes , developments in the law, and regulatory constraints . (d) Either the Grantor or the Grantee may select additional topics for discussion at any Review Session. (e) Not later than sixty (60) days after the conclusion of each System and Capability Review Session, Grantor shall issue a report, including specifically a listing of any cable services not then being provided to the Grantor that are considered technically and economically feasible. Grantor may request Grantee to provide the system capability for such services within a reasonable time, under reasonable rates and conditions . 32 - 5 . 8 Access Channel Management. (a) Intent. It is the intent of the Grantor to insure that access and community channels provided for in any franchise agreement, shall be managed in the best public interest, so that programming on such channels will be free of censorship, open to all residents, and available for all forms of public expression, community information and debate of public issues . Pursuant to these objectives, the Grantor may delegate the responsibility for access channel management to a nonprofit entity which may include, but not be limited to, any of the following: (1) A nonprofit public coraoration. (2) An access management commission or committee, appointed by Grantor, and representing a broad spectrum of the community . (3) An established nonprofit entity with special cablecasting capability, such as a local or regional community college. (b) Functions . The entity designated to manage the access channels shall have the following functions : (1) Responsibility for program production for and management of the Public Access Channel and all other channels as may in the franchise agreement be designated for community-based programming. Community channels may include Government and Educational Access channels , as designated in the franchise agreement. ' I 33 - (2) To assure that the Public Access and Community channels are made available to all residents of . the franchise area on a nondiscriminatory, first-come, first- served basis . (3) To assure that no censorship or control over program content of the Public Access and Community channels exist, except as necessary to comply with all applicable laws , rules and regulations , including the prohibition of material that is obscene, or contains commercial advertising, or conducts a lottery. (4) To devise, establish, and administer all rules , regulations, and procedures pertaining to the use and scheduling of the Public Access and Community channels . (5) To prepare, in conjunction with the Grantee, such regular or special reports as may be required or desirable. (6) To hire and supervise staff. (7) To make all purchases of materials and equipment that may be required. (8) To develop additional sources of funding, such as foundation or federal or state grants , to further PEG access . (9) To perform such other functions relevant to the Public Access channels as may be appropriate. (10) To establish budgets on an annual basis, and to utilize funds and resources received from the Grantor or the public usage entity designated in Section 5 . 3, for the purpose of access programming. i 34 - (c) Access Rules. The access management entity shall complete a set of rules for the use of the Access and Community channels which shall be promptly forwarded to the Grantor. The rules shall be prepared in cooperation with the Grantee, and confirmed by agreement between the access manage- ment entity and the Grantee. The rules shall, at a minimum, provide for: (1) Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise area. (2) Prohibition of commercial use. (3) Prohibition of any presentation of lottery information, or obscene or indecent material. (4) Public inspection of the log of producers , which shall be retained by the Grantor or its designee for a period of four (4) yea (5) Procedures by which individuals or groups who violate any rule may be prevented from further access to the channel. (6) Free use of such reasonable amounts of channel time, cablecasting facilities , and technical support as are provided for in the agreement between the access manage- ment entity and the Grantee. (d) Access Management Entity Reports to Grantor. The access management entity shall provide a report to the Grantor, at least annually, indicating achievements in community- based programming and services , and also shall provide a special 35 - report each time Grantee requests an increase in rates that are subject to Grantor regulation, indicating the level and quality of Grantee' s support during the period elapsed since any previous rate increase was implemented. • I - 36 - SECTION 6. GENERAL FINANCIAL AND INSURANCE PROVISIONS 6 .1 Construction Bond. (a) Within thirty (30) days after the granting of a franchise and prior to the commencement of any construction work by the Grantee, the Grantee may be required to file with the Grantor a construction bond in the amount specified in the franchise agreement in favor of the Grantor and any other person who may claim damages as a result of the breach of any duty by the Grantee assured by such bond. (b) Such bond as .contemplated herein shall be in the form approved by the Grantor and shall , among other matters, cover the .cost of removal of any properties installed by the Grantee in the event said Grantee shall default in the performance of its franchise obligation. - (c) In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages . (d) Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified, respectively in Section 6 . 2 and 6 . 3 . I - 37 - 6 . 2 Performance Bond (a) In addition to the construction bond set forth above, the Grantee may be required to file, at least thirty (30) days prior to the commencement of operation, with the Grantor a performance bond in the amount specified in the franchise agreement in favor of the Grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the Cable Communications System operated under the franchise agreement, and including the payments required to be made to the Grantor hereunder. (b) Such bond as contemplated herein shall be in the form approved by the Grantor and shall among other matters cover the cost of removal of any properties installed by the Grantee in the event said Grantee shall default in the performance of its franchise obligation. (c) In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages . 6 . 3 Security Fund (a) Within thirty (30) days after the effective date of the franchise, the Grantee may be required to deposit into a bank account, established by the Grantor and maintain on deposit through the term of this franchise, the sum specified I 38 - I in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the Grantor having jurisdiction over its acts or defaults under this ordinance, and the payment by the Grantee of any claims, liens and taxes due the Grantor which arise by reason of the construction, operation or maintenance of the system. The security fund may be assessed by the Grantor for . purposes including, but not limited to, the following : (1) Failure of Grantee to pay Grantor sums due under the terms of the franchise. (2) Reimbursement of costs borne by the Grantor to correct franchise violations not corrected by Grantee, after due notice . (3) Monetary remedies or damages assessed against Grantee due to default or violation of franchise requirements. (b) At Grantor ' s sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit. i i i �I 39 - (c) Within thirty (30) days after notice to it that any amount has been withdrawn by the Grantor from the security fund pursuant to Subsection (a) of this Section, the Grantee shall deposit a sum of money sufficient to restore such security fund to the original amount. (d) If the Grantee fails, after ten (10) days notice to pay to the Grantor any franchise fee or taxes due and unpaid; or, fails to pay to the Grantor within such ten (10) .days, any damages, costs or expenses which the Grantor shall be compelled to pay by reason of any act or default of the Grantee in connection with the franchise; or fails, after thirty (30) days notice of such failure by the Grantor to comply with any provision of the franchise which the Grantor reasonably determines can be remedied by an expenditure of the security fund, the Grantor may immediately withdraw the amount thereof, with interest and any penalties , from the security fund. Upon such withdrawal , the Grantor shall notify the Grantee of the amount and date thereof. (e) The Grantee shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety (90) Odays after the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the Grantee. i 40 - (f) The rights reserved to the Grantor with respect to the security fund are in addition to all other rights of the Grantor whether reserved by this ordinance or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the Grantor may have 6 . 4 Indemnification (a) The Grantee shall by acceptance of any franchise granted indemnify, defend and hold harmless the Grantor, its officers, boards, commissions, agents, and employees from any and all third party claims, suits, judgments for damages or other relief, costs and attorneys ' fees in any way arising out of or through or alleged to arise out of or through: (1) The act of the Grantor in granting the franchise; and (2) The acts or omissions of Grantee , its servants , employees , or agents including, but not limited to, any failure or refusal by Grantee, its servants , employees or agents to comply with any obligation or duty imposed on Grantee by this Ordinance or the franchise agreement. ( 3) The exercise of any right or privilege granted or permitted by this Ordinance or the franchise agreement. Such indemnification shall include , but not be limited to, all claims arising in tort, contracts , infringement of copyright, violations of statutes; ordinances or regulations or otherwise . (b) In the event any such claims shall arise, the Grantor shall tender the defense thereof to the Grantee. Provided, however, that the Grantor in its sole discretion may participate in the defense of such claims at its expense. - 41 - (c) The Grantee shall not be required to indemnify the Grantor for negligence or willful misconduct on the part of Grantor' s officials, boards, commissions , agents or employees . 6 . 5 Insurance (a) The Grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows: (1) worker ' s Compensation Insurance. In such coverage as may be required by the worker ' s compensation insurance and safety laws of the State of California and amendments thereto . (2) Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum (s) specified in the franchise agreement. (3) Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, non-ownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement. 42 - (b) upon request, the Grantee shall furnish the Grantor with copies of such insurance policies or certificates of insurance . (c) Such insurance policies provided for herein shall name the Grantor, its officers, boards, commissions, agents, and employees as additional insureds and shall contain an endorsement similar to the following: "It is hereby understood and agreed that this insurance policy may not be cancelled by the surety or the intention not to renew be stated by the surety until thirty (30) days after receipt by the City by registered mail of written notice of such intention to cancel or not renew. " (d) The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the Grantee to the Grantor under the franchise issued hereunder to the amounts of such insurance. (e) All insurance carriers providing coverage under (a) above shall be duly licensed to operate in the state of California, and shall be subject to approval of Grantor. - 43 - SECTION 7 . DESIGN AND CONSTRUCTION PROVISIONS 7 .1 System Design. The Cable Communications System shall be constructed in accordance with the design requirements contained in the franchise agreement. 7 . 2 Geographical Coverage. The Grantee shall design and construct the Cable System in such a manner as to have the eventual capability to pass by every single- family dwelling unit, multiple-family dwelling unit, school and public agency within the area of the franchise . Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. Cable system construction and provision of service shall be non-discriminatory, and Grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference. 7 . 3 Cablecasting Facilities. The Grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement. 7 . 4 System Construction Schedule (a) The Grantee shall comply with the require- ments of the system construction schedule contained in the franchise agreement. A 44 - (b) The Grantee may be required to provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the Grantee may be required to update this information on a monthly basis, showing specifically whether schedules are being met and the reasons for any delay. 7 . 5 Remedies for Delay in Construction. The Grantor may at its sole option, apply any or all of the following remedies in connection with delays in system construction: (a) Reduction in the duration of the franchise on a month-for-month basis for each month of delay exceeding six (6) months . (b) Forfeiture of construction bonds and/or assess- ment of monetary damages up to the maximum per day and per incident limits specified in the franchise agreement, levied against the security fund, for delays exceeding one (1) year. (c) Termination of the franchise within one (1) year after award of the franchise if the Grantee has failed to initiate system construction. (d) Termination of the franchise for other delays exceeding eighteen (18) months . Any remedies applied shall be in accordance with the procedures contained in Section 12 herein. 45 - 7 . 6 Provision of Service. After service has been established by activating trunk and distribution cables for any area, the Grantee shall provide service to any requesting subscriber within that area within thirty (30) days from the date of request. 7 . 7 Undergrounding of Cable. The undergrounding of cable is encouraged., In any event, cables shall be installed underground at Grantee ' s cost where all existing utilities are already underground. Previously installed aerial cable shall be undergrounded and relocated in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction. 7 . 8 New Development Undergrounding. In cases o-f new construction or property development where utilities are to be placed underground, upon request by the Grantee, the developer or property owner shall give Grantee reasonable notice of the particular date on which open trenching will be available for Grantee ' s installation of conduit, pedestals and/or vaults, and laterals to be provided at Grantee ' s expense. Grantee shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install - 46 - its conduit, pedestals and/or vaults, and laterals within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period , the cost of new trenching is to be borne by Grantee. 7 . 9 Underground at Multiple-Dwelling Units. In cases of multiple dwelling units serviced by aerial utilities, Grantee shall make every effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit. The burden of proof shall be upon the Grantee to demonstrate why undergrounding of drop cables is technically or economically unfeasible. 7 .10 Street Occupancy (a) Grantee shall utilize existing poles , conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities above, under or on streets until the written approval of the Grantor is obtained . However, no location of any pole or wire holding structure of the Grantee shall be a vestoed interest and such poles or 47 - structures shall be -removed or modified by the Grantee at its own expense whenever the Grantor determines that the public convenience would be enhanced thereby. (b) Grantee shall notify the Grantor at least ten (10) days prior to the intention of the Grantee to commence any construction in any streets . The Grantor shall cooperate with the Grantee in granting any permits required, providing such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the Grantor. (c) All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a same, adequate and substantial condition, and in good order and repair. The Grantee shall , at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably - 48 - required for the safety of all members of the public . Any poles or other fixtures placed in any public way by the Grantee shall be placed in such a manner as not to interfere with the usual travel on such public way. (d) Grantee shall, at its own expense, and in a manner approved by the Grantor, restore to at least its previous condition any damage or disturbance caused to the public way as a result of its operations or construction on its behalf. (e) Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Grantor to remove any of the Grantee ' s facilities, no charge shall be made by the Grantee against the Grantor for restoration and repair . (f) Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect is wires and facilities, subject to the supervision and direction of the Grantor. Trimming of trees on private property shall require written consent of the property owner. (g) The Grantee at its expense shall protect, support, temporarily disconnect, relocate,, or remove any property of Grantee when, in the opinion of the Grantor the same is required by reason of traffic conditions, public safety, street vacation, freeway or street - 49 - grade, separation or realignment,- .installation of sewers, drains , waterpipes, power line, signal line , transportation facilities, tracks, or any other types of structure or improvements by govern- mental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of buildings , redevelopment, or any general program under which the Grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing hereunder shall be deemed a taking of the property of Grantee and Grantee shall be entitled to no surcharge by reason of anything hereunder. (h) Upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this ordinance to be done in any street, within the time prescribed and to the satisfaction of the Grantor, the Grantor may, at its option, cause such work to be done and the Grantee shall pay to the Grantor the cost thereof in the itemized amounts reported by the Grantor to Grantee within thirty (30) days after receipt of such itemized report. (i) The Grantee shall make no paving cuts or curb cuts within the :public rights-of-way unless absolutely necessary, and only after written permission has been given by the Grantor. - 50 - (j) Grantor reserves the right to require conduit for underground cabling, 7. 11 Construction and Technical Standards. (a) Construction Standards . (1) City Codes and Permits . Grantee shall comply with all applicable City construction codes and permit procedures . Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction of the cable system. ( 2) Compliance with Safety Codes. All con- struction practices shall be in accordance with all applicable sections of federal and state Occupational Safety and Health Acts and any amendments thereto as well as all state and local. codes where applicable . ( 3) Compliance with Electrical Codes . All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the Basic BOCA Electrical Code as amended, and all applicable state and local codes . (4) Antennas and Towers . Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R. S. 222-A specifications. (5)'`,, Compliance with Aviation Recruirements . Antennas supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations . 51 - (6) Construction Standards and Requirements. All of the Grantee ' s plant and equipment, including but not limited to the antenna site, head-end and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed,' located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the Grantor may deem proper to make, or to interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic. (7) Safety, Nuisance , Requirements. The Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. (b) Technical Standards. The Cable Communications System shall meet all technical and performance standards contained in the franchise agree- ment. (c) Test and Compliance Procedure . The Grantee shall submit, within sixty (60) days after the effective date of the franchise agreement, a detailed test 52 - plan describing the methods and schedules for testing the Cable Communications System on an ongoing basis to determine compliance with the provisions of the franchise agreement. The tests for Basic Subscriber Television Services shall be performed at intervals no greater than every twelve (12) months , on a minimum of twenty (20) subscriber television receivers, located throughout the service area. At least eight (8) of these locations shall be at the far end of the distribution trunk cables . Upon Grantor request, the tests may be witnessed by representatives of the Grantor, and written test reports shall be submitted to the Grantor. If more than ten percent (10%) of the locations tested fail to meet the performance standards, the Grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated for at least twenty (20) different locations . A second failure of more than ten percent (100) may be considered, at the Grantor' s option, as a material breach of the franchise. (d) Special Tests. At any time after commencement of service to subscribers the Grantor may require additional tests, full or partial repeat tests, i different test procedures, or tests involving a specific - 53 - subscriber' s terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The Grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber. 7 .12 Areawide Interconnection. (a) Interconnection Required. The Grantor, based upon demonstrable community need, may direct Grantee to inter- connect public usage channels of the Cable Communications System with any or all other cable systems in adjacent areas . Interconnection of systems shall permit interactive transmission and reception of program material , and may be done by direct cable connection, microwave link, satellite, or other appropriate method. (b) Interconnection Procedure. Upon receiving the directive of the Grantor to interconnect, the Grantee shall immediately initiate negotiations with the other affected system or systems. The cost shall be borne by both Grantees, in the proportion of number of channels received to, total number of channels transmitted and received, under the assumption that benefits accrue primarily through receipt of additional channels . 54 - In the case of regional or state-wide interconnection, the same principle shall apply. (c) Relief . The Grantee may be granted reasonable extensions of time to interconnect or the Grantor may rescind its order to interconnect upon petition by the Grantee to the Grantor. The Grantor may grant said request if it finds that the Grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed inter- connection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates. (d) Cooperation Required . The Grantee shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise territory . (e) Initial Technical Requirements to Assure Future Interconnection Capability. (1) Every Grantee receiving a franchise to operate a Cable Comm9nications System within the franchise territory shall use the same frequency allocations for 55 - r commonly provided television signals so far as is technically and economically feasible. (2) Grantee shall provide local origination and access equipment that is compatible throughout the franchise area. 56 - SECTION 8 . SERVICE PROVISIONS 8 .1 Service to be Provided. The Grantee shall provide, initially, the services listed in the franchise agreement. Services shall not be reduced without adequate prior notifica- tion to Grantor. - 8 . 2 Basic Cable Service. The ."Basic Cable Service" shall be available to all subscribers at the established and uniform monthly subscription rates . 8 . 3 Basic Radio Service. The "Basic Radio Service" may be made available to all subscribers at the established and uniform monthly subscription rates . 8 . 4 Institutional Service . If specified in the franchise agreement, the "Institutional Service" shall include the provision of transmission and/or reception services to institutional users., on a commercial use channel basis at rates established by Grantee . Services may include the distribution of video or non-video signals . 8 .5 Additional Subscriber Services . "Additional Sub- scriber Services" , not included in the services specified above, may be provided, either within the basic cable service rates , or on a premium basis, subject to applicable law. 8. 6 Local Origination Channel (s) . The Grantee may operate cablecasting studios on a high-quality, professional basis for the purpose 'bf providing cablecast programming respon- i sive to local needs and interests . 57 - 8. 7 Government Access Channel (s) . The Grantee shall provide the number of channels and the facilities specified in the franchise agreement for the use of the Grantor at no charge to the Grantor. The Grantee shall provide facilities to aid in the utilization of these channels, as specified in the franchise agreement. 8 . 8 Educational Access Channel (s) . The Grantee shall provide the number of channels and the facilities specified in the franchise agreement for the use of the .local educational institutions at no charge . The Grantee shall provide facilities to aid in the utilization of these channels, as specified in the franchise agreement. 8 .9 Public Access Channel (s) . The Grantee shall provide the number of channels and the facilities specified in the fran- chise agreement to be available to the public at no charge . The Public Access Channel (s) may be managed and operated by the access management entity, as described in Section 5 . The Grantee shall make available for programmers of the public access channel the facilities specified in the franchise agreement. 8 .10 Public Access (Closed Circuit) . If the Cable Communications System includes a closed-circuit institutional network, the Grantee shall make a portion of the network capacity, as specified in the franchise agreement, available for local i government, educational and public use at no charge. The Public Access two-way channels shall be managed and operated by the access management entity. 58 - 8. 11 Commercial Use Channels . Grantee shall make channels available for commercial use, on a nondiscriminatory basis , as required by federal law. All commercial channel service revenues shall be included in gross receipts subject to the franchise fee. 8 . 12 Alternative Use of Access Channels . If Grantor determines that a new service affecting the public safety, health or welfare, would be in the public interest and receives a bona fide offer from a third party to provide such a service, Grantee shall be offered the first right of refusal to provide the service on the same terms . If Grantee declines to provide the service, Grantor may utilize appropriate access channel capacity to accommodate that service. 8 . 13 Universal Connection. The Grantor may require that all dwelling units within the franchise area shall be connected physically to the cable system by the Grantee by means of drop cables terminating at each dwelling unit, whether or not the dwelling unit' s occupants desire to subscribe to cable service . The cost and charges for providing universal connection shall be determined by the Grantee at the time such connection is requested and furnished to the Grantor. If Grantor elects to require universal connection, Grantee shall be entitled to recover the incremental cost o-f providing a universal connection. 59 - SECTION 9 . OPERATION AND MAINTENANCE 9 . 1 Open Books and Records. The Grantor shall have the right to inspect, upon reasonable notice, at any time during normal business hours, all books , records, maps, plans, financial state- ments, service complaint logs, performance test results and other like materials of the Grantee which relate to the opera- tion of the franchise and are maintained at the local office. If any such books or records required by this ordinance or the franchise agreement are not kept in the local office, or upon reasonable request made available to the Grantor, and if the Grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of Grantor ' s duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by Grantee. 9 . 2 Records Required. (a) In any event the Grantee shall at all times maintain: (1) The complaint file required by Section 13 . 5- herein. 60 - (2) A full and complete set of plans , records and "as-built" maps showing the exact location of all Cable Communications System equipment installed or in use in the franchise territory, exclusive of subscriber service drops . 9 . 3 Maintenance and Complaints. (a) The Grantee shall maintain a local office which shall be open during all usual business hours, have a publicly listed toll-free telephone, and be so operated to receive subscriber complaints and requests for repairs or adjustments on a twenty-four (24) hour a day basis . A written log shall be maintained listing all complaints and their disposition as required by Section 9 . 2 (a) (1) above. (b) The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions , insofar as possible, shall be preceded by notice and shall occur during period of minimum use of the system. A written log shall be maintained for all service interruptions as required by Section 9 . 2 (a) (1) above. (c) The Grantee shall maintain a repair force of technicians normally capable of responding to subscriber complaints or requests for service within twenty-four (24) hours after receipt of the complain-it or request. No charge shall he made to the subscriber for normal repair service. 61 - / (d) The Grantee shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures, furnish information concerning the procedures for making inquiries or complaints, including the address and local telephone number to whom such inquiries or complaints are to be addressed, and furnish information concerning the Grantor office responsible for administration of the franchise with the address and telephone number of the office . 9 . 4 Rights of Individuals (a) Grantee shall not deny service, deny access, or otherwise discriminate against subscribers , channel users , or citizens on the basis of income, race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal , state and local laws and regulations, and all executive and administrative orders relating to non-discrimination which are hereby in- corporated and made part of this ordinance by reference . (b) Grantee shall strictly adhere to the equal employ- ment opportunity requirements of federal, state and local law and regulations in effect on the date of the franchise grant, and as amended from time to time. (c) The Grantee' s policy with regard to personally identifiable information shall comply with federal law. 62 - (d) Fairness of Accessibility. The entire system of the Grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels studios and other services -to all citizens, businesses , public agencies and other entities having a legitimate use for the system, and no one shall be arbitrarily excluded from its use . Allocation of use of said facilities shall be made according to the rules or decisions of the Grantee , the Grantor in its lawful exercise of regulatory authority, and any state or federal regulatory agencies affecting the same. 9 . 5 Continuity of Service Mandatory (a) It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the Grantee are honored . In the event that the Grantee elects to overbuild, rebuild, mofify, or sell the system, or the Grantor gives notice of intent to terminate or fails to renew this franchise, the Grantee shall act so as to ensure that all subscribers receive continuous, un- interrupted service regardless of the circumstances . In the event of a change of franchisee, or in the event a new operator acquires the system, the Grantee shall cooperate with the Grantor, new franchisee or operator in maintaining continuity 4f service to all subscribers . - 63 - During such period, Grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system. (b) In the event Grantee fails to operate the system for seven ( 7) consecutive days without prior approval of the Grantor or without- just cause , the Grantor may, at its option, operate the system or designate an operator until such time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the Grantor is required to fulfill this obligation for the Grantee, then during such period as the Grantor fulfills such obligation, the Grantor shall be entitled to collect all revenues from the system, and the Grantee shall reimburse the Grantor for all reasonable costs or damages in excess of the revenues collected by the Grantor that are the result of the Grantee ' s failure to perform. 9 . 6 Grantee Rules and Regulations. The Grantee shall have the authority to promulgate such rules , regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its obligations under the franchise , and to assure an uninterrupted service to each and all of its customers . Provided, however, that such rules , regulations, terms and conditions shall not be 64 - in conflict with the provisions hereof or applicable state and federal laws, rules and regulations. 9 . 7 Tenant Rights. Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by Grantee, to the following : (a) To Grantee ' s providing of the service to units of the facility; (b) To reasonable conditions and times for installation, maintenance, and inspection of the system on the facility premises; (c) To reasonable conditions promulgated by Grantee to protect Grantee ' s equipment and to encourage widespread use of the system; and (d) To not discriminate in rental charges , or otherwise, between tenants who receive cable service and those who do not. 65 - SECTION 10 . RIGHTS RESERVED TO THE GRANTOR 10 .1 Right to Purchase the System. The Grantor may in any lawful manner and upon the payment of a fair valuation lawfully ascertain, purchase , condemn, acquire, take over and hold the property and plant of the Grantee in whole or in part. If such purchase or .taking over be upon revocation of the franchise or at the expiration of the term of the franchise such valuation shall be at the fair market value of the system as defined by federal law. 10 . 2 Right of Inspection of Records . There shall be kept in the Grantee ' s office a separate record for the cable system, which record shall show the items hereafter set forth. The Grantee shall provide such information as may reasonably be required by the Grantor from said records . (a) The true and entire cost of construction equipment, of maintenance and of the administration and operation thereof ; the amount of stock issued, if any; the amount of cash paid in, the number of and par value of shares , the amount and character of indebtedness, if any; the rate of taxes, the dividends declared; the character and amount of all fixed charges; the allowance, if any, for interest, for wear and tear or depreciation; all amounts and sources of income. 66 - (b) Any amount collected annually from the Grantor treasury and the character and extent of the service rendered therefor to the Grantor. (c) The amount collected annually from other users of service and the character and extent of the service rendered therefor to them. The books and records kept by the Grantor shall be open to Grantor examination upon reasonable notice at any time during the business hours of the Grantor' s office. 10 . 3 Right of Inspection of Construction. The Grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law. 10 . 4 Right of Intervention. The Grantor shall have the right of intervention in any suit or proceeding to which the Grantee is party, and the Grantee shall not oppose such intervention by the Grantor. 10 . 5 Right to Require Removal of Property. At the expiration of the term for which the franchise is granted, or upon its revocation or expiration, as provided for herein, the Grantor sh-all have the right to require the Grantee to remove, at its own expense , all above-ground portions of the Cable Communications System from all streets and public ways within the franchise area. 67 - SECTION 11 . RIGHTS RESERVED TO THE GRANTEE 11 . 1 Right of Grantee. In the event of any dispute between Grantee and Grantor over this Ordinance or the franchise agreement, or with respect to any rights or obligations arising therefrom, Grantee shall first pursue and exhaust all available administrative remedies. Thereafter, Grantee may pursue any appropriate legal action which such action may be brought only in a Superior Court situated in the County of Alameda. 68 - SECTION 12 . FRANCHISE VIOLATIONS 12. 1 Remedies for Franchise Violations. If the Grantee fails to perform any material obligation under the franchise, or fails to do so in a timely manner, the Grantor may at its option, and in its sole discretion; (a) Assess against the Grantee monetary damages up to the limits established in the franchise agreement for material franchise violations, said assessment to be levied against the security fund, hereinabove provided, and collected by Grantor immediately upon said assessment. The amount of such assessment shall be deemed, without proof, to represent liquidation of damages actually sustained by Grantor by reason of Grantee ' s failure to perform. Such assessment shall not constitute a waiver by the Grantor of any other right or remedy it may have under the franchise or under applicable law, including without . limitation, its right to recover from Grantee such additional damages , losses, costs and expenses, including actual attorney fees , as may have been suffered or incurred by Grantor by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart from Grantor ' s right to enforce the provisions of the construction and performance bonds provided for in Section 6 , and is intended to provide compensation to Grantor for actual damages . - 69 - (b) Terminate the franchise, for any of the causes stated in Section 4 , above. (c) No remedy shall be imposed by Grantor against Grantee for any violation of the franchise without Grantee being afforded due process of law, as provided for in 12 . 2 below. Any remedies imposed shall be in addition to any and all other legal or equitable remedies available to Grantor under the franchise or under any applicable law. 12 . 2 Procedure for Remedying Franchise Violations . In the event that the Grantor determines that the Grantee has violated any material provision of the franchise, the Grantor may make a written demand on the Grantee that it remedy such violation. If the violation is not remedied to the satisfaction of the Grantor within thirty (30) days following such demand, the Grantor shall determine whether or not such violation by the Grantee was excusable or inexcusable, in accordance with the following procedure: (a) A public hearing shall be held and the Grantee shall be provided with an opportunity to be heard upon thirty (30) days written notice to the Grantee of the time and the place of the hearing provided and the allegations of franchise violations . (b) If, 'after notice is given and, at the Grantee ' s option, a full public proceeding is held, the Grantor determines that such violation by the Grantee was excusable as provided -in Section 12 . 3 below, the Grantor shall direct the Grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the Grantor may direct. 70 (c) If, after notice is given Option, a full an Public Proceeding , at the Grantee 's that such violation was g is held the Grantor determines inexcusable, then the Grantor ma a remedy in accordance with Section 12.1 above. Y impose 12. 3 Force Majeure•In - Grantee 's the event Inabilit Grantee 's performance of Y to Perform• conditions any of the • obligations, Or terms, is prevented or requirements of the franchise impaired due to any cause beyond reasonable control or d its inability to not reasonably foreseeable perform shall be d , such Penalties or be imposed to be excused be shall and no as a result notified therof, thirt Grantor in wrttin ' Provided Grantee has Y (30) days of its discovery of the g within occurence of an event. such Such causes beyond Grantee 's reasonable or not reasonably foreseeable col shall include, but shall be limited to Acts of God not emer war or acts of war, and gencies , civil f 71 - SECTION 13 . REPORTS 13. 1 Annual Reports. At Grantor' s sole option, within sixty (60) days after the close of Grantee ' s fiscal year, Grantor may request Grantee to submit a written annual report, including, but not limited to, the following information: (a) A summary of the previous year' s (or, in the case of the initial report year, the initial year' s) activities in development of the cable system, including, but not limited to, services begun or discontinued during the reporting year, and the number of subscribers for each class of service; (b) A statement of receipts, audited by an .independent Certified Public Accountant, or certified by an officer of the Grantee. (c) A list of Grantee 's officers , members of its board of directors , and other principals of Grantee; (d) A list of stockholders or other equity investors Bolding five percent (50) or more of the voting interest in the Grantee and its parent, subsidiary and affiliated corporations and other entities , if any . 13 . 2 Plant Survey Report. At Grantor ' s sole option, 'irantee shall. submit to the Grantor an annual plant survey report which shaltl be a complete survey of the Srantee ' s plant and a full report thereon. Said report shall include, but not be limited to, a description and "as-built" maps of the portions of the franchise area that have been cabled and have all services available, i - 72 - an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such requirements, including supervision, as the Grantor may prescribe . Said report shall be in sufficient detail to enable the Grantor to ascertain that the service require- - ments and technical standards of the FCC and/or the franchise are achieved and maintained . If Grantor has reason to believe that portions or all of the systcm do not meet either the FCC technical standards , or those incorporated into the franchise agreement, at Grantor ' s request, but no more often than once per three (3) years, the Grantee and the Grantor shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the Cable System. The cost of such evaluation shall be borne equally by the Grantee and the Grantor . 13 . 3 Copies of Federal and State Reports . The Grantee shall make available to the Grantor, upon reasonable request, copies of all publicly available pleadings , applications, reports, communica- tions and documents of any kind, submitted by the Grantee to, as well as copies of all decisions , correspondence and actions by, any federal, state and local courts, regulatory agencies and other government bodies relating to its cable television operations within the franchise area . Grantee hereby waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of federal or state agencies . - 73 - 13 . 4 Public Reports . A copy of each of Grantee ' s annual and other periodic public reports and those of its parent, subsidiary and affiliated corporations and other entities , as the Grantor requests and is reasonably appropriate, shall be submitted to the Grantor within five (5) days of availability by the Grantee. 13 . 5 Complaint File and Reports . An accurate and comprehensive file shall be kept by the Grantee of any and all service related complaints regarding the cable system. A pro- cedure shall be established by the Grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the Grantor . Complete records of Grantee ' s actions in response to all service related complaints shall be kept. (a) A summary of service related complaints , identifying the number and nature of complaints and their disposition shall be completed for each month and submitted to the Grantor by the tenth day of the succeeding month . (b) The results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with- cable communications services offered by the Grantee shall be submitted to the Grantor no later than two (2) :.months after the end of Grantee ' s fiscal year. The surveys required to make said report may be in a form that can be transmitted to subscribers with any bill for service . 74 - 13 . 6 Miscellaneous Reports . Grantee shall submit to the Grantor such other information or reports in such forms and at such times as the Grantor may reasonably request or require. 13 . 7 Inspection of Facilities . The Grantee shall allow the Grantor to make inspections of any of the Grantee ' s facilities and equipment at any time upon reasonable notice, or, in case of a declared emergency, upon demand without prior notice , to allow Grantor to verify the accuracv of any submitted report. 13. 8 Business Office and Files . Grantee shall keep complete and accurate books and records . The Grantor, upon reason- able notice, shall have the right to inspect at any time during normal business hours all books , records , maps , plans , income tax returns, financial statements, service complaint logs, performance test results and other like materials of the Grantee which relate to the operation of the Cable System. 13 . 9 Public Inspection. All reports subject to public disclosure, shall be available for public inspection at a designated Grantor office during normal business hours. 13 . 10 Failure t-6 Report . The refusal or willful failure of the Grantee to file any of the reports required, or such other reports as the Grantor reasonably may 75 - request, shall be deemed a material breach of the franchise, and shall subject the Grantee to all remedies, legal or equitable, which are available to the Grantor under the franchise or otherwise . 13 . 11 False Statements. Any materially false or misleading statement or representation made knowingly by the Grantee in any report required under the franchise shall be deemed a material breach of the franchise and shall subject the Grantee to all remedies , legal or equitable, which are available to the Grantor under the franchise or otherwise . 13 . 12 Cost of Reports . All reports and records required under this or any. other Section shall be furnished at the sole expense of the Grantee. - 76 - SECTION 14 . MISCELLANEOUS PROVISIONS 14 .1 Compliance with State and Federal Laws. Notwithstanding any other provisions of the franchise to the contrary, the Grantee shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof . Provided, however, if any such state or federal law or regulation shall require the Grantee to perform any service, or shall permit the Grantee to perform any service, or shall prohibit the Grantee from performing any service , in conflict with the terms of the franchise or any law or regulation of the Grantor, then as soon as possible following knowledge thereof , the Grantee shall notify the Grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the Grantor or the franchise . 14 . 2 Separability von-Material Provisions . If any provision of this ordinance or any related agreements is held by any court or by any federal , state, or local agency of competent jurisdiction to be invalid as conflicting with any federal , state , or local law, rule or regulation now or hereafter in effect , or is held by such court or agency to` be modified in any way in order to conform to the requirements of any such law, rule or 77 _ regulation, and if said provision is considered non- material by the Grantor, said provision shall be considered a separate, distinct and independent part of this ordinance, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on the parties hereto, provided that the Grantor shall give the Grantee thirty (30) days written notice of such change before requiring compliance with said provision. 14 . 3 Separability-Material Provisions . If any material section of this ordinance, as determined by the Grantor, is held to be invalid or preempted by federal , state or county regulations or laws, the Grantor shall negotiate with Grantee appropriate modifications to the francs so to provide reasonable relief to the Grantor from such in- validity or premption, including the payment of damages . If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually acceptable arbitrator, in accordance with 78 - state law, who shall determine what modifications and/ or liquidated damages are appropriate . The arbitrator ' s decision shall be binding on the parties, provided, that no decision of the arbitrator shall require the Grantor or Grantee to be in violation of any federal or state law or regulation. 14 . 4 Notices . Grantee shall maintain throughout the term of the franchise, a local address for service of notices by mail . 14 . 5 Captions . The captions to sections through- out this ordinance are intended solely to facilitate reading and reference . Such captions shall not affect the meaning or interpretation of this ordinance . 14 . 6 No Recourse Against the Grantor. The Grantee shall have no recourse whatsoever against the Grantor or its officials , boards , commissions, agents, or employees for any loss, costs , expense , or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise , except for negligence or willful misconduct on the part of Grantor' s officials, boards , commissions, agents or employees . 79 - 14 . 7 Nonenforcement by the Grantor. The Grantee shall not be relieved of its obligation to comply with any of the provisions of this Ordinance by reason of any failure of the Grantor to enforce prompt compliance. 80 - The City Clerk is directed to certify the adoption of this ordinance and shall cause the same to be published or posted in the manner prescribed by law. PASSED AND ADOPTED this day of 1985 AYES : NOES : ABSENT: Mayor of the City o-f Dublin ATTEST: City Clerk of the City of Dublin P R O P O S E D A G R E E M E N T AN AGREEMENT RENEWING A NON-EXCLUSIVE FRANCHISE TO TELE-VUE SYSTEMS, INC. , TO OPERATE A CABLE TELEVISION SYSTEM IN THE CITY OF DUBLIN AND SETTING FORTH CONDITIONS ACCOMPANYING THE RENEWAL OF THE FRANCHISE. - 1 - A G R E E M E N T THIS AGREEMENT, made and entered into this day of at , by and between the City of Dublin a municipal corporation of the State of California, ("Grantor" ) , and Tele-Vue Systems , Inc. , d/b/a Viacom Cablevision, a wholly-owned subsidiary of Viacom International, Inc. , hereinafter known as "Grantee ", "Viacom Cablevision" or "Viacom" . W I T N E S S E T H WHEREAS, the City of Dublin pursuant to Ordinance No. is authorized to grant and/or renew one or more non- exclusive revocable franchises to operate, construct, maintain and reconstruct a cable television system within the City; and WHEREAS, after public hearings , the City has determined that it is in the best interest of the City and its residents to renew the franchise previously granted to Viacom Cablevision, 6640 Sierra Lane, Dublin, CA. 94568 . NOW, THEREFORE, the City (hereinafter also known as the Grantor) hereby grants to Viacom Cablevision a cable television franchise renewal in accordance with the provisions of Ordinance No. and this Agreement. 2 - 1. GRANT OF FRANCHISE RENEWAL 1. 1 Grant. Viacom Cablevision, a wholly-owned subsidiary of Viacom International Inc. , a corporation with its principal place of business located at 1211 Avenue of the Americas, New York, New York 10036, is hereby granted for itself, its successors and asigns, subject to the terms and conditions of this Agreement and Ordinance No. the franchise, authority, right and privilege, for a fifteen ( 15 ) year period from and after the effective date hereof, to operate, maintain and reconstruct a cable television system within the streets and public ways within the City of Dublin. 1 . 2 Right of Grantor to Issue Franchise. Grantee acknow- ledges and accepts the right of Grantor to issue cable television franchises and Grantee agrees it shall not during the term of this franchise challenge this right in any way or in any City, State or Federal Court. 1. 3 Effective date of Franchise. The effective date of the franchise renewal shall be November 1 , 1985. 1. 4 Duration. The term of the franchise shall be fifteen ( 15) years from the effective date hereof at which time it shall expire and be of no force and effect. Renewal shall be in accordance with applicable law. 1. 5 Franchise Not Exclusive. This franchise shall not be construed as any limitation upon the right of Grantor, through its proper officers, to grant to other persons or corporations 3 - rights, privileges or authority similar to or different from the rights, privileges and authority herein set forth, in the same or other streets and public ways or public places by franchise, permit or otherwise, provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein. 1. 6 Franchise Acceptance . The Grantee, by executing this Agreement, guarantees performance by Grantee of all of Grantee ' s obligations hereunder imposed by Ordinance No . and this Agreement. 1 . 7 Other Communities . It is recognized that the cable television system serving the City of Dublin also serves the Cities of Livermore Pleasanton and San Ramon and unincorporated areas of Alameda County . Some requirements of this franchise may be consolidated with like provisions of one or all of the franchises granted by the other jurisdictions . 4 - 2. DEFINITIONS For the purposes of this Agreement, the following words, terms , phrases, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The definitions contained in Ordinance No, are incorporated herein as if fully set forth. 2 .1 "Agreement" or "Franchise Agreement" means this agreement and any amendments or renewals thereof. 2 . 2 "Grantee" means Viacom Cablevision, or any person or entity who or which suceeds Viacom Cablevision in accordance with the provisions of this franchise. 2 . 3 "Grantor" or "City" means the City of Dublin or its delegate acting within the scope of its jurisdiction. 2 . 4 "Section" means any section, subsection or provision of this franchise agreement. 2 , 5 . "System Upgrade Construction" means construction, expansion or upgrading of the existing cable television system in accordance with the provisions of this Agreement. 2 . 6 "Upgraded Seryice" means the level of service provided to subscribers subsequent to the upgrading and/or expansion of the system. 5 - 3 . GENERAL REQUIREMENTS 3. 1 Governing Requirements . Grantee shall comply with the requirements of this Agreement and Ordinance No. 3 . 2 Franchise Fee. The Grantee shall pay to the Grantor an annual franchise fee of five percent (5%) of Gross Annual Receipts . 3 . 3 Recovery of Franchise Costs . (a) As provided for in Ordinance No. Grantee , within sixty (60) days after receipt from Grantor of a written itemization, shall reimburse Grantor for its reasonable costs 'incurred during the franchise renewal process , not to exceed $ (b) As necessary to aid in the analysis of all future disputed matters relative to the franchise, the Grantor or the Grantee in cooperation with the other, shall be entitled to employ the services of technical , financial or legal consultants . All reasonable fees of the consultants incurred by the Grantor or the Grantee in this regard shall be equally borne by the Grantee and the Grantor, regardless of the outcome of any specific dispute under consideration . An upper cost limit will be estab- lished by the Grantor and Grantee prior to retaining any consultant under this subsection. 3 . 4 Payment to Grantor. No acceptance of any payment shall be construed as ap accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim that Grantor may have for further or additional sums payable under the provisions of 6 - this Agreement. All amounts paid shall be subject to audit and recomputation by the Grantor: The Grantor shall notify the Grantee, in writing, at least thirty (30) days in advance of any intent to audit and recompute. 3. 5 Liability Insurance and Indemnification. Upon the effective date of the franchise, Grantee shall furnish proof that satisfactory liability insurance policies are in force, in the minimum amounts of : ° Worker ' s Compensation -- As required by the State of California . ° Comprehensive General Liability -- $ 1, 000 , 000 per occurrence . ° Comprehensive Automobile Liability -- $ 1 , 000 , 000 per occurrence . The liability insurance policies shall be maintained throughout the duration of this franchise, with a copy filed with Grantor. The insurance carriers shall be authorized to do business in California, and subject to Grantor approval . 3. 6 Security Fund. Within thirty (30) days after the effective date of the franchise, Grantee shall deposit into a bank account of Grantor, established by Grantor, and maintain on deposit throughout the term of this franchise, the sum of not less than Fifty Thousand Dollars ($50 , 000) as security. Of said amount, a portion or all may be in the form of an irrevocable letter of credit, the form of which is subject to the prior approval of the Grantor. lifter the completion of • t 7 - the system upgrade construction specified in Exhibit A, the amount of the security fund may be reduced to Five Thousand Dollars ($5 , 000) , all of which may be in the form of an irrevocable letter of credit. 3 . 7 Construction and Performance Bonds . Grantor waives any requirement for construction and performance bonds , in favor of the security fund required by 3 . 6 above. 8 - ' 4 . CONSTRUCTION AND SERVICE REQUIREMENTS 4 . 1 General . The Grantee shall meet or exceed all the material construction and system upgrade requirements set out in this Agreement. The Grantee shall meet the requirements regardless of whether subscriber penetration and/or revenue projections prove to be correct. 4 . 2 Construction Schedule . Grantee shall complete system upgrade construction and offer upgraded service to all residents in accordance with the requirements of Exhibit A. Consistent with sound engineering practice, system upgrade construction shall follow a logical construction schedule, so that no geographic portion of the City is discriminated against in receiving prompt upgraded service. Upgraded service shall be offered to all residents within the City no later than ninety (90) days after the cables have been energized therein. 4 . 3 Liquidated Damages . It is understood that it is impractical at this time to reasonably ascertain the total extent of -damages which may be incurred as a result of a failure by Grantee to complete system upgrade construction within the time period specified in this Agreement. Such impracticality arises out of the difficulty of establishing a cost for future damages suffered by the public:-who are denied upgraded services or the f effect of noncompletion with respect to inconvenience, anxiety, frustration, financial loss , effective and efficient regulation of the franchise for the promotion and protection of the public convenience, health, safety and/or welfare , or other factors which are incapable of measurement in precise monetary terms . 9 - Therefore, Grantee offers and agrees to compensate the Grantor upon Grantor request, in the amount of Two Hundred Fifty Dollars ($250) per day for each calendar day on which Grantee has not completed system upgrade construction in accordance with this Agreement, and where Grantor, in accordance with the procedures of Section 10 . 2 has found that the delay was within Grantee ' s reasonable control or was reasonably foreseeable. 4 . 4 Delay in Construction . For any schedule in delay in system upgrade construction that may occur, the burden of proof shall be on the Grantee to demonstrate that such delay was beyond its reasonable control or was not reasonably foreseeable. The imposition by Grantor of any damages shall be in accordance with the procedures set forth in Section 10 . 2 hereof. 4 . 5 Right of Inspection of Construction. Grantor shall have the reasonable right to inspect all construction or installa- tion work performed subject to the provisions of the franchise and to make such tests as are reasonably necessary to ensure compliance with the terms of the franchise and other pertinent provisions of law. 4 . 6 Provision of Residential Service. Grantee shall provide all upgraded cable service to all residents of the City at standard installation charges and monthly rates , in accordance A with Exhibit A. New occupied residences in active cable areas shall be offered service within ninety (90) days after Grantee receipt of a request for service . 10 - 4 . 7 Residences Outside Residential Areas . Grantee may petition Grantor for relief from serving residences located in primarily commercial or industrial areas, or residences isolated from normal residential areas . Grantor shall not unreasonably - deny such relief. 5 . SYSTEM DESIGN AND PERFOPMANCE REQUIREMENTS 5 . 1 Channel Capacity. The upgraded cable television system shall be constructed to deliver forty (40) channels of video programming. Subsequent to the completion of the second System and Services Review, in accordance with Section 5 . 7 of Ordinance No. , and in accordance with Exhibits B and C, the Grantor may direct Grantee to expand the system capacity to the minimum levels indicated below, based upon the number of services generally provided at that time to comparable cable systems in other communities . (minimum) Signal Video Cable Signal Frequency Channel Network Direction Rance_ Capacity Residential (A) Outbound 54-400 MHz 54- + FM Residential (A) Inbound* 5-30 MHz 4+ data Institutional (B) Outbound 15 ** Institutional (B) Inbound 15 ** (Note : *Activated in accordance with Exhibit B . **Activated in accordance with Exhibit C. ) 5 . 2 Satellite Earth Stations . Grantee shall reasonably provide a sufficient number of earth stations to receive signals from all operational communications satellites that generally carry programs carried icy cable systems, throughout the life of the franchise . 12 - 5. 3 Capacity for Interactive Residential Services . Grantee shall provide initially the capability for interactive residential services . Activation of this capability and provision of interactive residential services shall be provided according to the provisions of Exhibit B. All customer equipment necessary for such services, such as addressable interactive converters , home terminals and home detectors, shall be provided to subscribers by Grantee in accordance with established and uniform rate schedules, when interactive services are offered. 5 . 4 Capacity for Institutional Services . Grantee shall provide the capacity for bidirectional video, voice and data communications among designated businesses and/or public institu- tions in the franchise area. This capacity shall be activated in accordance with the provisions of Exhibit C . 5 .5 Cablecasting Facilities . (a) Grantee shall provide. a capital grant of Fifty-five Thousand Dollars ($55 ,000) for local cablecasting facilities to be used for PEG access . The grant may be utilized either by the Grantor independently or in conjunction with other jurisdictions served by the same cable system to establish PEG cablecasting studios and related facilities in the form and configuration that the franchising jurisdictions determine to -be in the_best common interest of the subscribers . The grant shall not be chargeable to franchise fees, in accordance with the provisions of the Cable Communications Policy Act of 1984 . 13 - (b) Grant funds for these PEG access facilities shall be provided as follows : ° $25 , 000 within sixty (60) days after the effective date of this Agreement. ° $20 ,000 within one (1) year after the effective date of this Agreement. ° $10, 000 within two (2) years after the effective date of this Agreement. (c) Grantee shall provide an annual grant of One Thousand Dollars ($1, 000) for the term of the franchise for maintenance and repair of PEG cablecasting equipment and facilities . This grant shall not be chargeable to franchise fees . (d) Grantee shall make available , for PEG access , the use of a mobile studio van, for at least five (5) hours per week . The use of the van shall include Grantee technical personnel necessary to properly supervise the operation of the van and equipment. 5 . 6 Interconnection. Upon Grantor request, Grantee shall negotiate in good faith to interconnect the cable television system with neighboring cable systems in the future . Within six (6) months of a Grantor request, Grantee shall report to Grantor the results of the negotiations . 5 . 7 Emergency Alext Capability. Grantee shall provide an emergency audio override capability to permit Grantor to interrupt and cablecast an audio message on all channels simultaneously in the event of disaster .or public emergency . 14 - 5 . 8 Standby Power. Grantee shall provide standby power generating capacity at the cable communications system headend capable of providing forty-eight (48) hours of emergency power supply. Grantee shall maintain standby power system supplies at critical system locations capable of providing two (2) hours of emergency power supply. 5 . 9 Parental Control Lock. Grantee shall provide subscribers , upon request, with a parental control locking device or digital code that permits inhibiting the video portions of the premium channels . 5 . 10 Status Monitoring. Grantee shall provide an automatic status monitoring system when two-way communications capacity is activated. 5 . 11 Technical Standards . The Federal Communications Commission (FCC) Rules and Regulations , Part 76 , Subpart K (Technical Standards) and any amendments thereto, shall apply. However, because of the recent development of interactive and other innovative services, modifications of FCC standards, as presented in the specifications below, are considered as necessary to meet system service objectives . Applicable technical Standards (1) Forward Signals -- Class I Channels . The upgraded system shall be capablejof carrying forty ( 40 ) Class I Television Channels and the full FM broadcast band. The combined forward trunk and distribution system shall deliver siqnals to each subscriber ' s TV receiver that will meet or exceed the 15 - following specifications at the mean system temperature + 70° F. This shall include the effects of drop cables , interior splits and any terminal equipment such as descramblers and set-top converters . A. Second order beat ratio 51 dB B. Third order beat ratio 51 dB. C. Hum 5 % D. Composite beat ratio 51 dB E. Cross modulation ratio 51 dB F. Signal to noise ratio 43 dB (2) Reverse Signals (When two-way capacity is activated. ) The reverse channels shall have the capability of providing return signals from any subscriber tap to the extreme end of any area without visually noticeable signal degradation or interference . A. The system capability shall include transmission of video, and both low and high speed data , whether analog or digital . B . No more than +54 dBmV output level shall be required out of any customer interface device to meet the system specifications . C. Where applicable, the end of the system specifi- cations shall include the effects of any signal reprocessing equipment necessary to achieve forward transmission. D. For video signals , the signal delivered to the subscriber' s TV receiver, after being transmitted to the headend, processed and retransmitted down a forward channel , shall meet f the Technical Standards of the FCC regulations , Part 76 , Subpart K . 16 - 6 . SERVICES AND PROGRAMMING 6 .1 Initial Services and Programming. Grantee shall initially provide the services and programming in the tier format as shown in Exhibit D. Grantee shall not reduce the number of program services without sixty (60) days prior written notification to Grantor , if possible. 6 . 2 Leased Channel Service . Grantee shall offer leased channel service at nondiscriminatory rates and on reasonable terms and conditions in accordance with applicable law. 17 - 7. SUPPORT FOR LOCAL CABLE . USAGE 7.1 Public Cable Usage Management. Grantor may delegate to an independent non-profit entity, such as a Commission, Board or nonprofit corporation the authority to manage any resources _ and other considerations provided by the Grantee and/or others , designed to promote and develop public-benefit usage of the cable system. 7 . 2 The Commission, Board or nonprofit corporation may be established jointly with neighboring jurisdictions , at Grantor' s sole option. 7. 3 Grantee Support for Public Cable System Usage. Grantee shall provide the following or equivalent support for public cable usage, as a minimum: (a) Provision of the capital funds for PEG access equipment and facilities designated in Section 5 . 5 of this Agreement. (b) Reasonable and nondiscriminatory use of Grantee ' s local origination facilities , to the extent available, by non- commercial tax-exempt organizations at no char6e . (c) Conducting three (3) free video training workshops annually for the first five (5) years of this Agreement, to train community and access users in cablecasting techniques and equipment. (d) Conducting a piromotional campaign to familiarize residents of the City with the cable system' s access facilities . - -18 - (e) Dedication of up to ten percent (100) of the upgraded cable system' s Residential Network downstream capacity and twenty- five percent (25a) of the cable system's Residential Network upstream capacity for PEG use throughout the life of the franchise . Should system capability be expanded in the future, additional channels shall be dedicated for public use to total the percentages indicated above . A new PEG access channel shall be made available, upon request, no later than six (6) months after the currently used PEG channels are utilized to the extent of carrying at least 50% non-duplicated video programming during the weekday period between 8 A.M. and 11 P.M. , for a consecutive thirteen (13) week period. 19 - 8 . RATES AND CHARGES 8 . 1 Initial Rates . The initial rates and charges for all services shall be in accordance with Exhibit E . 8. 2 Regulation of Basic Service Rates . Grantor shall retain the authority to regulate basic service rates for the period permitted by applicable law. 20 - 9 • TRAINING AND EMPLOYMENT REQUIREMENTS 9 . 1 Equal Employment Opportunity and Affirmative Action Programs . Throughout the term of the franchise, Grantee shall conduct its business as an Equal Employment Opportunity/- Affirmative Action Employer. In addition, throughout the term of the franchise, the Grantee shall maintain a policy that all employment decisions, practices and procedures are based on merit and ability without discrimination in violation of state of federal law on the basis of an individual ' s race, color, religion, age, sex, national origin, or physical or mental handicap. The Grantee 's policy shall apply to all employment actions including advertising, recruiting, hiring, promotion, transfer, remuneration, selection for training, company benefits , disciplinary action, lay-off and termination. The Grantee shall carry out this policy through continued dedication to a determined and sustained effort to provide equal employment opportunities to all by taking affirmative action to employ and advance in employment qualified women, minorities , persons who are physically or mentally handicapped and veterans . The Grantee shall provide to the City a written Affirmative Action Program to carry out this policy no later than sixty (60) days after the effective date of this franchise. A# 21 - 10 . REGULATION 10 . 1 Franchise Regulation. The franchise granted under this Agreement shall be subject to regulation by Grantor in accordance with the provisions of Ordinance No. and applicable law. Grantor may, at its sole option, enter into joint regulatory agreements with other Grantors in adjacent jurisdictions served by the same cable system. 10 . 2 Remedies for Franchise Violations . (a) In addition to the remedies for delays in construction as specified in Ordinance No . and Section 4 . 3 of this Agreement, Grantor reserves the right to impose the following remedy in lieu of liquidated damages in the event Grantee violates any other material provision of the franchise , provided that Grantee has not commenced corrective action within thirty ( 30) days written notice by certified mail to the general manager of the Grantee : Assess damages , not to exceed One Hundred Dollars ($100) per day or per violation, for Grantee ' s individual willful and/or repeated violation of any material provision of the franchise or failure to take corrective action with respect to a violation of any material provision of the franchise. (b) In the event the stated violation is not reasonably curable within sixty (60) days, the franchise will not be terminated or revoked or damages assessed pursuant to Section 4 . 3 of this Agreement if the Grantee provides, within the said sixty (60) days, a plan, 22 . - satisfactory to the Grantor, to remedy the violation and continues to demonstrate good faith in seeking to correct said violation. (c) In determining what level of remedy for Grantee ' s violation is appropriate, Grantor shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further such violations and such other matters as the Grantor may deem appropriate; provided , however, that adequate remedies must be imposed if the quality of service is in any way materially lessened, or if any material provision of this Agreement is not complied with. (d) Within ten (10) days after receipt of • written notice of a violation from Grantor , Grantee may request • hearing before a Grantor-designated hearing officer in a full public proceeding affording due process . Such hearing shall be held within thirty ( 30) days of the receipt of the request therefore . No remedies shall be imposed prior to the conclusion of the hearing and a reasonable opportunity for the Grantee to cure the violation. - 23 - 11. SEPARABILITY 11. 1 If any material section of Ordinance No. and this Agreement, as determined by the Grantor or Grantee, is held to be invalid or preempted by Federal or State regulations or laws , the Grantor and Grantee shall negotiate appropriate modifications to this Agreement 'to provide reasonable relief from such invalidity or preemption. If the parties are unable to reach agreement on such modifications ; and if in Grantor ' s and Grantee ' s opinion Grantor and Grantee may be bound legally with respect to arbitration of the specific dispute, then the dispute will be submitted to an arbitrator, in accordance with California law, who will determine what modifications are appropriate and the arbitrator' s decision shall be binding on the parties . 24 - 12 . FORCE MAJEURE; GRANTEE ' S INABILITY TO PERFORM 12 .1 In the event Grantee ' s performance of any of the terms , conditions , obligations or requirements of this fran- chise or Ordinance No. is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified Grantor in writing within thirty ( 30) days of its discovery of the occurrence of such an event. Such causes beyond Grantee 's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, war or act of war, civil emergencies and labor unrest or strikes . i 25 - / 13. HOLD HARMLESS 13. 1 The Grantee on behalf of itself, its successors and assigns, shall defend , indemnify and hold harmless the Grantor , its officers, boards, commissions , agents and employees , and each of them, against and from any and all claims , demands, actions , suits, liabilities and judgments of every kind and nature and regardless of the merits of the same , arising out of or related to the exercise or enjoyment of the franchise granted pursuant to this Agreement and to Ordinance No . including costs of investigations , attorneys ' fees and court costs in the defense of any actions , to the extent that such claims or demands are alleged to be the result of any error, omission, intentional act or negligent act of Grantee or any persons employed by Grantee, even if that Grantee employee is in error or by misinformation alleged to be a Grantor employee . 26 - IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement the date and year first above written. APPROVED AS TO FORM: CITY OF A Municipal Corporation By City Attorney Mayor Date : ATTEST: City Clerk (SEAL) Corporate Seal By President Date Corporate Seal , By President Date (OVER) � 1 I EXHIBIT A CONSTRUCTION AND SERVICE SCHEDULE i EXHIBIT A CONSTRUCTION AND SERVICE SCHEDULE No sooner than one (1) year after the effective date of this Agreement, Grantor, in conjunction with the other Grantors of jurisdictions served by the cable system, may direct Grantee to begin a system upgrade to provide channel capacity of a minimum of forty (40) programmable video channels. This direction shall be based on a review of the programming carried on cable systems in the San Francisco Bay Area, and findings that a significant number of program services, which are considered desirable for local viewing, are not provided on Grantee' s system due to channel capacity limitations . If Grantor does not find that an upgrade to forty (40) channel capacity is necessary based on the initial review,. Grantor may conduct subsequent ,reviews at intervals no more often than each six (6) months . The findings of any such subsequent review may be utilized to direct Grantee to commence a system upgrade. Grantee agrees to abide by such findings and direction. Grantee agrees to complete the system upgrade within seventy-two ( 72) months after receiving direction from Grantor to commence. When upgraded service is available, all residents, except as indicated in Exhibit G, shall be offered upgraded service at standard installation charges and monthly rates. No earlier than three (3) years after the completion of system upgrade to forty (40) channels, the Grantor may issue findings that the forty (40) channel capacity of the system is inadequate in light of the available services generally offered to comparable communities, and direct the Grantee to expand the system capacity to no more than fifty-four (54) channels within a three (3) year period. The burden of proof shall be upon the Grantee, to demon- strate that such expansion would not be feasible, and, in the absence of such proof, the Grantor may find that a material breach of the franchise will occur if the Grantee refuses to expand system capacity accordingly. For the purpose of reviewing the average number of program services carried on cable systems in the San Francisco Bay Area, the following list of cable systems shall be used: MSO/System Gill San Jose Jones/Castro Valley Hearst/Santa Clara Hearst/Los Gatos Hearst/Newark Hearst/Milpitas TCI/Berkeley TCI/Richmond TCI/San Carlos TCI/San Mateo TCI/Millbrae TCI/Daly City TCI/Sunnyvale TCI/Pacifica United/Cupertino United/Alameda United/Foster City United/Hayward United/San Leandro Viacom/Pittsburg Viacom/Napa Viacom/Marin Viacom/San Francisco Viacom/Healdsburg Viacom/Pinole Western/South San Francisco Western/San Mateo Western/Concord EXHIBIT B PLAN FOR PROVISION OF INTERACTIVE RESIDENTIAL SERVICES EXHIBIT B PROVISION OF INTERACTIVE RESIDENTIAL SERVICES Viacom shall provide interactive service to residential subscribers in the City within one (1 ) year of the same interactive service being regularly and commercially available on a non-experimental basis to subscribers in forty percent (40%) of comparable systems in the San Francisco Bay Area, and upon receipt of a written request from the City to initiate such service. Prior to making such a request, the City shall conduct a public hearing to review testinony about interactive service, including the need for such service within the City and the potential cost to subscribers of such .services. EXHIBIT C PLAN FOR PROVISION OF INSTITUTIONAL SERVICES EXHIBIT C PROVISION OF INTERACTIVE INSTITUTIONAL SERVICES Viacom shall provide interactive service to public agencies and businesses in the City within one (1 ) year of the sane interactive service being regularly and commercially available on a non-experinental basis to subscribers in forty percent (40%) of comparable systems in the San Francisco Bay Area, and upon receipt of a written request from the City to initiate such service. Prior to making such a request, the City shall conduct a public hearing to review testimony about interactive service, including the need for such service i►ithin the City and the potential cost to subscribers of such services. EXHIBIT D PROGRAMMING, SERVICES AND TIER STRUCTURE EXHIBIT D INITIAL SERVICES AND PROGRAMPIING The following channel line-up is for informational purposes only. Viacom reserves the he� FCC or by thiseagreement substitute not required for carriage Y BASIC SERVICE Presently Offered Broadcast Call city Channel Letters Affiliate Y L KTVU IND Oakland 3 KCRA NBC Sacrarento 4 KRON NBC San Francisco 5 KPIX CBS San Francisco 36 KICU IND San Jose 7 KGO ABC San Francisco 20 KTZO IND San Francisco 9 KQED PBS San Francisco .10 KXTV CBS Sacramento 40 KTXL IND Sacranento 44 KBHK IND San Francisco 13 KOVR ABC Sacramento 32 KQEC PBS San Francisco 38 KVOF IND San Francisco 11 KNTV ABC San Jose 54 KTEH PBS San Jose 60 KCSM PBS San Mateo 14 KDTV IND San Francisco 29 PEG Christian Channel Local 33 PEG School Channel Local 30 PEG Local Access Local 26 KTFS IND San Francisco 48 KSTS IND San Jose 42 KFCB IND Concord SATELLITE SERVICES , Presently Offered: CNN HTV ESPN C-SPAN Li fetine WTBS Anticipate Adding: USA Network Nickelodeon PAY SERVICES Presently Offered: Plavhoy Disney HBO Showti ne Anticipate Adding: The Classic Movie Channel EXHIBIT E INITIAL RATES AND CHARGES EXHIBIT E INITIAL RATES AND CHARGES The following rates and charges are, being provided for informational purposes only.* Grantee nay revise rates in accordance with Federal law. Basic Service $ 9.95/month Basic Additional Outlet $ 3.50/nonth Satellite Tier $ 4.95/nonth Showtirie $10.95/nonth Hone Box Office $11 .95/nonth Disney $10.95/nonth Playboy $ 8.95/nonth Classic Movie Channel $ 5.95/nonth Remote Control $ 3.00/nonth First Outlet Installation $45.00 Secondary Outlet Installation $15.00 Reconnection $20.00 Relocations $20.00 VCR Hook-ups $20.00 *These rates are exclusive of franchise fees. EXHIBIT F FREE PUBLIC BUILDING INSTALLATIONS EXHIBIT F The following buildings are entitled to receive one free drop and free basic cable service. Building Number of Drops Schools Cronin School - 6901 York Drive 3 Dublin High - 8151 Village Parkway 3 Fallon School - 7425 Larkdale Avenue 8 Frederiksen School - 7243 Tamarack Drive 3 Murray School - 8435 Davona Drive 21 Nielsen School - 7500 Amarillo Road 2 Valley High School - 6900 Dublin Boulevard 2 Wells School —6800 Penn Drive 7 Shannon Community Center 1 11600 Shannon Avenue Dublin San Ramon Services District Offices 1 7051 Dublin Boulevard Dublin San Ramon Services District Fire Station 1 7494 Donohue Drive Dublin Library 7606 Amador Valley Boulevard 1 Upon request, the Grantee shall provide more than one drop per building, or shall internally cable a building at the cost of time and materials, plus 10% overhead. When the cable television system is activated for two-way communications, each of the above locations shall be capable of transmitting and/or receiving such communications. When new municipal , DSRSD, and accredited educational buildings are constructed or acquired, the Grantee shall provide a free drop and free basic cable service to the new building. That service shall be provided at a time to be negotiated between Grantee and Grantor, not to exceed one ( 1) year, unless an extension is approved by the Grantor. EXHIBIT G LINE EXTENSIONS EXHIBIT G LINE EXTENSIONS The Grantee' s cable distribution system will be extended to the following locations upon agreenent between the Grantee and the property owner, or owners of said locations such that the property owner, or owners, will reimburse the Grantee for its cost of time, materials and customary and reasonable overhead for extending its cable distribution systen. Location Number of Dwelling Units Arroyo Vista 131 CITY OF DUBLIN LOCATION/DEVELOPMENT NO. HOMES ESTIMATED COST TO BUILD Arroyo Vista 131 35,200 iacomCablemslon September 24, 1985 Mr. Richard Ambrose City Manager City of Dublin 6500 Dublin Boulevard Dublin, CA 94568 Dear Mr. Ambrose: As I promised in our phone conversation this morning, I am enclosing a copy of.my November 1982 letter to Pete Snyder regarding cable service to Arroyo Vista. This was one of those predicable situations where everyone loses. Very truly yours, 4 M.J. Jones General Manager MJJ/po Enclosure: 1 6640 Sierra Lane Telephone :\ DIXIS m (d Dublin 415 828-8510 V\'incolll fillernaliimal Inc. California 94568 i VViacomCablevisio-n November 5, 1982 Mayor Peter W. Snyder City of Dublin P. 0. Box 2340 Dublin, California 94568 Dear Pete: As you know, the Housing Authority is building the second phase of Arroyo Vista on Dougherty Road .in Dublin. Prior to the development of the first phase, we were contacted by HUD for conduit and box spec- ifications, as their intentions were to install a master antenna system and provide for cable TV at the same time.. We supplied them with those specifications. Later, when we observed that the recepticles they were installing were not adequate for cable, we were told that they would not be wanting cable service. Now, phase II has been a repeat of the above scenario, and I am concerned that at some future date, someone will contact The City of Dublin and want us to serve this project. If we are forced to do this after the fact, it would be extremely expensive to do so. We have contacted Mike Parsons, with the Pleasanton Housing Authority in charge of this H.U.D. project, and he has assured us that they are going to install an MATV system;-and cable will not be necessary. I am writing to you, since this project is in the Dublin City service area, to document the fact that Viacom was willing to service Arroyo Vista, should the subject be raised at a later date. If you have any questions regarding this, please feel free to tali. Very truly yours, Myrt Jon General Manager Viacom Cablevision MJJ:ss 6640 Sierra Lane, Dublin,CA 94566 • Mail; P.O. Box 2056, Dublin,CA 94566 • (415) 828-8510