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,qUG-1 9 1995 ORDINANCE NO. 1981 N.C.S
,
Introduced by Seconded by
Vice Mayor Read
Jane Hamilton
AN ORDINAfVCE OF THE COUNCIL OF THE CITY OF PETALUMA
GRANTING A CABLE CONIMUIVICATIQd.,.~1L$Z~L/1LRANCHISE
TO TELE-VUE SYSTFC~IS, INC•
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
SECTION 1. GRANT OF F ANCHlSE
1.1 Grant The City of Pelaiuma, C~lifrmia (I ~ereinafter calied the "Cit~") er~ters
into this agreement with Tele-Vue Systems, Inc., a Washington corp~ration d/b/a/ Viacom
Cable (hereinafter "Grantee") for the continued ~rovisi~n of cable communication sarvice
within its environs for the benefit of the residents of the City and to ensure that Viacom C~able
meets the cable-related needs and interests of Petaluma. 1'he City hereby grants to Viacorn
Cable a non-exclusive Franchise to engage in the business of aperating and providing a
cable communication system in the City of Petaluma, ar~ci for that purpose ttie City
authorizes the Grantee to use the Streets and public ways to install, constru~t, operate, an~
maintain said cable commur~ication system. The Gr~ntee must pay ~II f~~s and
compensation to the City required by the Franchise or state or federal statutes and
constitutions.
1.2 Term. The Franchise granted hereby shall expire fifteen (15) years after its
effective date unless lawfully terminated in accordance witN its terms or other applicable law,
or altered in accordance with Section 17.
1.3 Effective Date. This Franchise shall become effective sixty (60) days after
adoption, provided that this Franchise sl~all not becom~ effective until the Grantee, within
forty-five (45) days of the date of the introduction of this ordinance: (a) accepts in writing this
Franchise Agreement; and (b) provide all warranties, proofs, and other pocuments required
by the Franchise.
Ord. 1981 NCS
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1.4 Effect of Acce t~. By accepting the Franchise, the Grantee: (a)
acknowledges and accepts the City's legal right to issue and enforce the Franchise; (b)
agrees that it will not oppose intervention by the City in any proceeding affecting the
enforcement of its rights under this franchise; (c) accepts and agrees to each and every
provision contained herein; and (d) agrees that the Franchise was granted pursuant to
processes and procedures consistent with applicable law, and agrees that it will not raise
any claim or defense to the contrary.
1.5 Rights Reserved. The City reserves its rights under its lawful police powers,
and nothing in this Franchise shall be read to limit those rights. The City, among other
things, does not waive requirements of various codes, ordinances, and resolutions, including
zoning codes and codes regarding building permits and f~es, or time or manner of
construction. Any fees or charges paid, so long as generally applicable and not
unreasonably discriminatory, shall be paid in addition to the Franchise fee required under
this Franchise.
1.6 Grantee Com li~. The Grantee agrees to be bound by all the terms,
conditions, and provisions of the Petaluma Cable Enabling Ordinance and all other existing
and future ordinances and regulations of the City, including but not limited to zoning
ordinances and ordinances establishing construction standards or procedures for use of the
streets, provided that the amendments, modifications or future ordinances do not materially
alter the rights, obligations, or performance of the Grantee.
1.7 Legal Qualifications. The Grantee affirms that it meets all the legal
qualifications set forth in the Enabling Ordinance.
1.8 . The Grantee agrees to abide by all of the Conditions of Street
Occupancy set forth in the Enabling Ordinance and to report to and abide by the
requirements of the Director of Public Works of Petaluma in regard to use of the Streets.
1.9 Custom r Protection. The Grantee agrees to meet any and all customer
protection requirements now in force or hereafter established by City. The current
requirements are attached as Exhibit A
2.1 For the purpose of this Franchise, and all Exhibits attached hereto, the
following terms, phrases, and their derivations shall have the meanings given below unless
the context clearly mandates a different interpretation. Where the context so indicates, the
present tense shall imply the future tense, words in plural include the singular, and words in
singular include the plural. The words "shall" and "will" are always mandatory and not
merely directory and the "may" is permissive. Words not otherwise defined shall be given
their common and ordinary meaning. ~
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2.2 This shall be known and be cited as the "Petaluma & Viacom Cable Franchise
Agreement." The following terms, phrases, words and their derivations shall be the meaning
given herein.
"Access" means the availability of the Cable System (as it relates to PEG
access) for use by various agencies, institutions, organizations, groups and individuals in the
community, including the City and its designees, to acquire, create, and distribute
Programming not under the Grantee's editorial control, including, but not limited to:
A. "Public Access" means Access where organizations, groups, or
individual members of the general public, on a non-discriminatory basis, are the primary or
designated Programmers or users having editorial control over their Programming;
B. "Educational Access" means Access where Schools are the primary or
designated Programmers or users having editorial control over their Programming;
C. "Governmental Access" means Access where governmental
institutions or their designees are the primary or designated Programmers or users having
editorial control over their Programming; and
D. "PEG Access" means Public Access, Educational Access, and
Governmental Access, collectively.
"Affiliate shall mean any person which directly owns or controls Grantee, any
person which Grantee directly owns or which it controls, or any person under common
ownership or control with Grantee and is directly or indirectly involved in the management or
operation of the cable communications system in Petaluma.
"Basic Senrice" means any service Tier regularly provided to all Subscribers
which includes the retransmission of local television broadcast signals or such other
definition as may be adopted by federal law. It shall include all public, educational, or
government access channels.
"Cable Act" shall refer to the Cable Communications Policy Act of 1984, 47
U.S.C. § 521 gt sea., as amended by the Cable Television Consumer Protection and
Competition Act of 1992, and as it may be further amended during the term of the Franchise.
"Cable Senrice" means the transmission of video or other service over a cable
system to, from, or between subscribers.
°'Cable System" means all or part of the facility owned, rented, leased or
otherwise controlled by Grantee (including plant, facilities, equipment, and closed signals
transmission paths, I-Net, switches, hardware, and other processing equipment, antenna,
fiber optic, coaxial and other cables, amplifiers, towers, microwave links, real and personal
property, and all associated equipment or facilities) the purposes of which include
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distributing Cable Services or Programming or creating, receiving, amplifying, storing,
processing or distributing voice, data, video, multi-media or other forms of electronic, optical
or other signals in the Franchise area.
°'Cable Operator' means any person or group of persons who: (A) provides
cable service over a cable system and directly or through one or more affiliates, owns a
significant interest in such cable system; or (B) otherwise controls or, through any
arrangement, is responsible for the management and operation of such cable systern.
°'City" or "Petaluma" means the City of Petaluma, a municipal corporation of
the State of California, in its present incorporated form or in any later recognized,
consolidated, enlarged, or reincorporated form.
"Enabling Ordinance'° means the Petaluma Cable Enabling Ordinance.
"Franchise" means the non-exclusive authorization granted pursuant to the
Petaluma Cable Franchising Enabling Ordinance by the City to the Grantee to construct,
Rebuild, maintain, and operate a Cable System under, on, and over Streets within all or
specified areas of the City. The terms and conditions of the Enabling Ordinance and this
Franchise Agreement between the Grantee and the City collectively constitute the Franchise.
The term "Franchise" does not include any other license, permit, or agreement that may be
required for the privilege of transacting and carrying on a business within the City or for
disturbing the surface of any Street.
"Franchise Agreement" shall refer to this contract between the City and the
Grantee, entered into in accordance with the terms of the Petaluma Cable Franchise
Enabling Ordinance.
°'Franchise Area" means the geographic area within the City of Petaluma as
such exists on the date of the issuance of this Franchise and for which this Franchise is
issued and those areas annexed by the City in the future:
"Grantee" means Tele-Vue Systems, Inc., d/b/a Viacom Cable, the Person to
whom this Cable Franchise is granted by the City Council.
"Gross Revenues" shall mean ali cash, credits, or other consideration of any
kind or nature received directly or indirectly by the Grante~, its Affiliates, or any other Person
which constitutes a cable operator under the Cable Act from any source whatsoever arising
from, attributable to, or in any way derived from the Grantee's Cable System within the City.
Gross Revenues include, but are not limited to, fees charged Subscribers for Basic Service;
fees charged Subscribers for any optional, premium, per-channel, or per-program service;
monthly fees charged Subscribers for any Tier of service other than Basic Service;
installation, disconnection, re-connection, and change-in-service fees; leased channel fees;
fees, payments, or other consideration received from Programmers for carriage of
Programming on the Cable System; converter rentals or sales to customers; personnel
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~R~.1981NCS
services fees (over and above Grantee costs); local advertising revenues; regional or
national advertising revenue allocable to this system; revenues from home shopping
channels; sales of Programming guides unique to the Grantee or its affiliates; and such other
revenue sources as may now exist or hereafter develop. The definition shall be interpreted
in a manner which permits the City to collect the maximum Franchise fee permitted by law.
Gross Revenues, however, shall not include any taxes imposed directly upon any Subscriber
or user by the state, City, or other governmental unit and collected by the Grantee on behalf
of said governmental unit. The amount paid as a Franchise fee cannot be deducted from
Gross Revenues, unless prohibited by Federal law.
"Interconnect " or "Interconnection" means the provision by a Grantee of
technical engineering, physical, financial, and all other necessary components to
accomplish, complete, and adequately maintain a physical linking of the Grantee's cable
system and cable services or any designated channel or signal pathway thereof, with any
other designated cable system or programmer within the Franchise area so that cable
services of technically adequate quality may be sent to and received from such other
systems.
"Penalties" means any and all monetary penalties provided for in the Enabling
Ordinance and this Franchise Agreement.
"Person" means any individual, sole proprietorship, partnership, association,
corporation, or other form of organization authorized to do business in the State of
California, and includes any natural person.
°'Programmer" means any Person responsible for Programming on the Cable
System, including, without limitation, any Person who produces or otherwise provides
Programming material for transmission on the Cable System.
°'Programming" means the process of causing television programs or other
patterns of signals in video, voice, or data formats to be transmitted on the Cable System,
and includes all programs or patterns of signals transmitted or capable of being transmitted
on the Cable System. In using this definition, the parties rely upon the definition provided in
47 U.S.C. § 522(16) (Section 602(16) of the Cable Communications Policy Act of 1984).
°°Public Property" is any real property owned by the City that is not otherwise
defined herein as a Street.
"School" means any a~credited public educational institution, including
primary and secondary schools, colleges, and universities.
"Street" shall mean the surface of and the space above and below any street,
road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, right of
way, easement, or other public way, now or hereafter existing within the City that, within its
proper use and meaning and consistent with the terms, conditions, and provisions pursuant
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to which the same was created, is properly used for the purpose of installing, maintaining,
and operating a Cable System.
"Subscriber" means any Person who is lawfully receiving, for any purpose or
reason, any cable service or services provided by the Grantee by means of or in connection
with the Cable System, whether or not a fee is paid for such service.
"Service Tier" means a category of Cable Service provided by Grantee and for
which a separate charge is made by Grantee.
°'Transfer" means the sale, lease, assignment, mortgage, consolidation,
merger, or any other disposition of the Franchise, or any change in the ownership or control
of the Grantee or any Person which owns, controls, or manages the Grantee directly or
through one or more intervening partnerships or corporations.
SECTION 3. FRANCHISE -- LIMITATIONS
3.1 The Franchise does not confer rights other than as provided by the Enabling
Ordinance and this Franchise Agreement, or as mandated by federal or state law.
3.2 The Franchise does not authorize or prohibit the Grantee to construct, operate,
or repair any other type of system, or to provide service to, or install its Cable System upon
private property without owner consent, or to use publicly or privately owned conduits or
poles without a separate agreement with the owners, except that nothing in this section limits
any rights the Grantee may have to use compatible easements pursuant to Section 621 of
the Cable Act, 47 U.S.C. § 541(a)(2).
3.3 All acts which the Grantee is required to perform under the Franchise or
applicable law must be performed at the Grantee's expense.
3.4 No privilege or exemption shall be granted or conferred except those
specifically prescribed herein.
3.5 The City reserves every right and power which is reserved to it by this
Ordinance or by any Ordinance or resolution of the City, and the Grantee, by its acceptance
of this Franchise, agrees to be bound thereby and to comply with any action or requirements
of the City in its exercise of any of its rights or powers.
3.6 The City may transfer or delegate any right, power, or duty from any officer,
employee, department, or body of The City to any other officer, employee, department, or
body of the City.
3.7 To the extent permitted by law, the Grantee shall have no recourse against the
City for any loss, cost, expense, or damage arising out of any provision or requirement of this
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Franchise or because of its enforcement or non-enforcement, except if such losses, costs,
expenses, or damages are due to the sole negligence or misconduct of the City. The rights
of the City under this provision are in addition to, and shall not be read to limit, any
immunities the City may enjoy or rights the Grantee may enjoy under federal or state law.
3.8 The Grantee shall at all times be subject to the exercise of the police power of
the City.
3.9 The provisions of this Franchise will be liberally construed in favor of the City in
order to promote the public interest.
3.10 Nothing in this Franchise Agreement shall be read to create an expectancy of
renewal or to in any respect entitle the Grantee to renewal or extension of this Franchise,
except as may be expressly required by applicable law.
3.11 Any privilege claimed under any Franchise by the Grantee in any street or
other public prope~ty shall be subordinate to any prior lawful occupancy and to the City's
regulation of the streets or other public property, subject to the Enabling Ordinance.
3.12 An independent contractor does not need a Franchise to install a Cable System
for the Grantee.
SECTION 4. NON-EXCLUSIVE FRANCHISE AND CONIPETITIOiV ENCOURAGED
4.1 Franchise PVot Exclusive. The Franchise and the right it grants to use and
occupy the public right of way shall not be exclusive and do not explicitly or implicitly
preclude the issuance of other franchises to operate cable systems or other communications
systems within the City, affect the City's right to authorize use of the public right of way by
other persons to operate cable systems or other communications systems or for other
purposes as it determines appropriate, or affect the City's right to itself to construct, operate
or maintain a cable system or other communications system, with or without a Franchise.
4.2 In the event that, after the effective date of this Franchise, the City grants a
franchise to another person or persons to use and occupy the public right of way for the
purpose of operating a cable system or other communications system that is comparable in
scope to the franchise granted herein, the material terms and conditions of such additional
franchise or franchises shall be reasonably comparable to the material terms and conditions
herein, taking into consideration all of the circumstances in existence at the time such
additional franchise or franchises are granted, including without limitation any applicable
legal limitations on the City's regulatory authority.
4.3 In the event that the City's decision to grant, or not to grant a franchise is
challenged, Grantee shall indemnify the City, its officials, agents and employees and hold
them harmless against any claims, suits, causes of action, proceedings and judgments,
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whether for damages or equitable relief, arising there from, and shall pay fhe City's
reasonable costs, consultant, and attorney fees incurred in defending against the same.
5.1 The failure of the City, upon one or more occasions, to exercise a right or to
require compliance or performance under this Franchise Agreement or any other applicable
law shall not be deemed to constitute a waiver of such right or a waiver of compliance or
performance, unless such right has been specifically waived in writing.
5.2 Waiver of a breach of this Franchise Agreement or the Enabling Ordinance is
not a waiver of any similar or different breach. Neither the granting of this Franchise nor any
provision herein shall constitute a waiver or bar to the exercise of any governmental right or
power of the City, including without limitation the right of eminent domain.
SECTION 6. AflIlEN_~MENTS TO CABLE ORDINANCE AND FRANCHISE
AGREEMENT
6.1 The Enabling Ordinance shall not constitute a contract between the Grantee
and the City. The City may amend any provision of the Enabling Ordinance and may adopt
regulations consistent with the Enabling Ordinance that it finds necessary in the exercise of
the police power. This includes, without limitation, the right to alter the insurance and
security fund requirements herein, to account for inflation or changes in the risk to the City.
6.2 The City may amend this Franchise Agreement upon the application of the
Grantee when necessary to enable the Grantee to take advantage of developments in the
field of telecommunication that, in the opinion of the City, will afford the Grantee an
opportunity to serve its customers more efficiently, effectively, and economically. Such
amendments shall be subject to such conditions as the City determines are appropriate to
protect the public interest.
7.1 Customer Protection. Exhibit A is incorporated into this Franchise Agreement
by reference, and the Grantee agrees that it shall abide by the terms and conditions therein
or be subject to the remedies set forth in Section 17 of this Agreement. Nothing in this
section shall be read to limit the City's right to adopt other consumer/customer protection
laws.
7.2 Privacv. The Grantee shall maintain the right of privacy of any Subscriber,
Programmer, or any other Person resulting from any device or signal associated with the
Cable System. The Grantee shall not place in the building, structure, or facility of any
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Subscriber any equipment capable of two-way communication without the written consent of
the Subscriber, revocable at the discretion of the Subscriber, and shall not use the two-way
communication capability of the Cable System for unauthorized or illegal Subscriber
surveillance of any kind.
7.3 Sale of Subscriber Lists and Personalized Data. The Grantee shall comply
with applicable state and federal laws with regard to consumer protection, privacy, and
personally identifiable information. For purposes of this section "personally identifiable
information" means the name and address or other information regarding an individual
Subscriber, which is associated with or extracted from data obtained from the Subscriber's
use of the Grantee's cable services.
7.4 Maintenance and Com laints.
A. The Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
B. Written complaints concerning billing, employee courtesy (respecting
employee/employer confidentiality), programming, safety, Grantee's operational policies,
outages, signal quality, and service disruptions, shall be recorded. The Grantee will
maintain Records of complaints for three (3) years. Copies of the complaint Records shall
be provided to the City on request.
C. The Grantee shall maintain a repair force of technicians sufficient to
respond promptly to Subscriber camplaints, loss of service, or requests for service. The
Grantee shall have in place at all times the equipment necessary to locate and correct Cable
System malfunctions.
D. All Subscribers and members of the general public in the City may direct
complaints and inquiries regarding the Grantee's service or performance to the City. Upon
the request of a complaining party or the Grantee, the City may review a complaint or
dispute, and recommend action for resolution. The Grantee's good faith or lack thereof in
attempting to resoive complaints in a fair and equitable manner will be considered in
connection with any renewal application filed by the Grantee.
~ E. In the event a complaint or dispute directed to it is determined by the
City to be a potential violation of the Enabling Ordinance or this Franchise Agreement, and
after written notificatio~ to the Grantee of that determination, the City may exercise any of its
other rights and remedies under the Franchise.
7.5 I~lon-discrimination and Equal Emqlovment 0~2 ortunitv.
A. Throughout the term of this Franchise, the Grantee shall fully comply
with the equal employment opportunity requirements of federal, state, and local law and, in
particular, FCC rules and regulations relating thereto. Upon request by the City, the Grantee
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shall furnish the City a copy of the Grantee's annual statistical report filed with the FCC,
along with proof of the Grantee's annual certification of compliance. The Grantee shall
immediately notify the City in the event the Grantee is at any time determined by the FCC not
to be in compliance with FCC rules or regulations.
B. To the extent the City may enforce such a requirement, the Grantee is
specifically prohibited from discriminating in its rates or charges, or in the availability of the
services or facilities of its Cable System, or in any other respect, make or grant undue
preferences or advantages to any Subscriber, potential Subscriber, or group of Subscribers
or potential Subscribers, nor shall the Grantee subject any such Persons of group of Persons
to any undue prejudice or any disadvantage; provided, however, the Grantee may offer
temporary, bona fide promotional discounts in order to attract or maintain Subscribers
provided that such discounts are offered on a non-discriminatory basis to similar classes or
types of Subscribers throughout the City. The Grantee shall not deny, delay, or otherwise
burden service or discriminate against Subscribers within its Franchise Area on the basis of
age, race, creed, religion, color, sex, national origin, marital status, sexual orientation,
physical or mental disability, or political affiliation, except for discounts for basic and other
regulated service tiers to economically disadvantaged subscribers and such other discounts
it is expressly entitled to provide under federal law, if such discounts are applied in a uniform
and consistent manner.
' C. The Grantee shall request in writing and the City may grant temporary
authority to the Grantee to conduct demonstration service projects and service offerings to
particular regions of fhe City without making the service generally available throughout the
City. The Grantee must demonstrate to the City that the selected service area is statistically
valid and not based on invidious classification among subscribers and that the temporary
authority will be used solely to offer services on a demonstration or test marketing basis.
The Grantee must include in its request the duration of the demonstration project and must
pay franchise fees on any revenue received.
D. The Grantee shall not deny cable service to any group of potential
Subscribers because of the income of the residents of the area in which the group resides.
No "redlining" will be tolerated.
E. The Grantee shall comply with federal, state, and local laws and
regulations governing equa! employment opportunities, as the same may be from time to
time amended.
F. The Grantee shall ensure that its services are accessible, as far as
reasonably possible, to people with disabilities.
7.6 Parental Control Device Upon request, the Grantee shall provide parental
control devices to any Subscriber.
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8.1 ~jrstem Desian:
A. The Grantee shall Upgrade its Cable System so that the Cable System
in its entirety uses at least 750 IViHz equipment of high quality and reliability. The Grantee
shall integrate a fiber optic backbone design, in a manner which will reduce the number of
trunk amplifiers in a cascade out of the Headend to a maximum number of eight (8), and so
that optical receive sites have no more than four (4) trunk amplifiers in a cascade. The fiber
optic technology will integrate into the Cable System in a manner which permits the Grantee
to take full advantage of the benefits of that technology, including increased reliability and
improved system performance.
B. The Grantee shall install, replace as necessary, and maintain, a
dedicated, bi-directional fiber optic link between the Access center and the Headend. The
Grantee shall make its best effort to complete the link within twelve (12) months of the
effective date of the Franchise, or the date the Access center is completed. The dedicated
connection shall be designed so that the Access center can: (a) send signals to the
Headend on at least three (3) channels initially and up to the equivalent of 7% of system
(downstream analog) spectrum when the Cable System Upgrade is compfeted; (b) remotely
route signals originated at the Access center or at other origination locations onto any of the
Access or institutional channels on the Cable System; and (c) otherwise control the signals
to allow for smooth breaks, transitions, and insertion of station IDs and other material. The
Grantee shall provide all Headend equipment necessary to accomplish these functions,
including but not limited to laser transmitters, modulators, processors, and switchers.
C. Institutional Network Desian. The Grantee shall install, replace as
necessary and maintain interactive fiber optic and/or coaxial cable bi-directional links and all
headend equipment required so public buildings will be able to transmit and receive
broadband video, data, and voice communications between two (2) or more public buildings
(including the access facility) in two phases.
1. In Phase I, which shall be implemented within 12 months of the
effective date of the Franchise, the Grantee (within ninety (90) days upon notification by the
City) shall activate broadband video, data, and voice communications to the public buildings
at the following locations: City Hall, Petaluma Community Center, Fire Headquarters, PEG
Access Center, Petaluma High School, Petaluma Junior High School, Police Headquarters,
Grant Elementary School, McNear Elementary School, Valley Vista Elementary School, and
the Petaluma High School District Administration Building. The Grantee shall install, operate
and maintain all cable system and network components outside the public buildings
necessary to provide the activated path 6etween the transmitting and receiving locations.
The public agency users shall be responsible for the installation, operation and maintenance
of terminal and interface equipment within the public buildings, provided that Grantee is
obligated to provide a total of six laser transmitters and modulators.
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2. Under Phase II, which shall be implemented between the third
(3rd) and fifth (5th) years after the effective date of the Franchise, Grantee shall install and
activate the software and equipment required to integrate telephony/data transmission and
interactive capability into its system so that the subscriber network may accommodate future
PEG and Institutional Network uses in the City of Petaluma through dynamic spectrum
management technologies or its equivalent. The technological capability described above
shall be provided to all public school and City-occupied locations that are passed by the
cable communication system. If such dynamic spectrum management technologies are not
commercially available and are not financially feasible, Grantee may petition the City of
Petaluma for: (a) relief from implementing such technologies, or (b) a deferral of the
implementation of such technologies. If such relief from implementation or deferral occurs,
the Grantee shall be obligated to provide the capabilities and headend equipment described
above in Sections 8.1.C. and 8.1.C.1 to all public school and City-occupied locations within
the Franchise area.
D. The Grantee shall not levy a charge for access to and use of the Cable
System spectrum/channel capacity, as described in Section 8.1.C. and its subsections, by
the City and such educational institutions and non-profit access management entity(s) as
designated by the City, so long as such use is for the purpose of transmitting video and
audio in the form of a television signal. Further, those locations identified in Section
8.1.C.1., Phase I, shall have such other free access to and use of the cable system for voice,
video and data transmissions until Phase II is completed. At that time, such governmental,
education and access management entities shal! be charged for any data and voice usage at
the going market rate or at an amount negotiated with the Grantee. If the Grantee seeks a
deferral or relief from implementation as described in Section 8.1.C.2., then all future use of
the cable system by City agencies and public schools for voice, data and video purposes
shall be free of charge until the subscriber network is interactive, and interactivity is available
to all residences.
E. The Grantee shall use equipment generally used in high-quality,
reliable, modern Cable Systems of similar design, including but not limited to back-up power
supplies capable of providing power to the Cable System for three (3) hours in the event of
an electrical outage; and including but not limited to modulators, antennae, amplifiers, and
other electronics which permit and are capable of passing through the signals received at
the Headend without substantial alteration or deterioration. This obligation shall include ihe
obligation to install equipment to retransmit in stereo satellite and local broadcast signals
provided in stereo. The obligation to provide back-up power supplies requires the Grantee
to provide back-up power supplies at each fiber optic receive node.
F. The Grantee shall install equipment so that the Headend is capable of
providing at least 77 channels in full configuration and will develop signals of high quality
throughout the Franchise Area (including on channels retransmitting upstream signals
received through the Headend.
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G. The Grantee shall take ali necessary technical and construction steps to
ensure that the cable communications system serving Petaluma is interconnected with all
cable systems capabfe of delivering a cable signal to Grantee's franchise boundary in the
City of Petaluma, provided such interconnection is determined by the City and the operators
to be technically and financially feasible. Additionally, the Grantee shall make reasonable
efforts to interconnect with other cable systems serving Petaluma, provided such
interconnection is technically feasible and such other cable systems use public rights of way.
All interconnected parties shall equitably and fairly share the costs of construction,
operation, and maintenance of the interconnection and related programming.
H. The Upgrade required under this section shall be completed no later
than 12 months after the effective date of this Franchise. The City shall grant reasonable
extensions of time to complete construction in particular areas of the City if, prior to the
scheduled time for completion, the Grantee shows that, notwithstanding its due diligence, it
has been unable to extend service to a specified area because the acts or omissions of a
third party (not including the Grantee's subcontractors or agents) have caused a delay in
construction beyond delays reasonably expected during the course of an Upgrade or
Rebuild, and the Grantee proposes a reasonable alternative deadline for extension of
service to that area.
8.2 ~ystem Desiqn Review Process.
A. At least thirty (30) days prior to the date construction of any required
Upgrade or Rebuild is schedufed to commence, the Grantee shall provide a detailed Cable
System design and construction plan, available for review by the City at the local office of the
Grantee, which shall include at least the following elements:
1. Design type; trunk and feeder design; number and location of
hubs or nodes.
2. Distribution system-cable, fiber, equipment to be used.
3. Headend design and reception facilities including make and
model number of antennae, signal processors, modulators,
demodulators, etc.
4. Plans for standby power at Headend, hubs/nodes, and satellite
terminals. The plan shoufd state the make and model number of
equipment to be used as well as time capacity.
5. Longest amplifier cascade in the Cable System (number of
amplifiers, number of miles, type of cable/fiber).
6. Design maps and tree trunk maps for the Cable System. The
Cable System design will be shown on maps of industry standard
scale using standard symbols, and shall depict all electronic and
physical features of the cable plant.
13
~~~.19 81 N ~ ~
B. The City shall have thirty (30) days from the date the Grantee notifies
the City the design and construction plans are available for revi~w to submit comments on
the plans. The Grantee must submit a written response to the comments including an
amended plan, if appropriate, within ten (10) days of the date it receives the City's
comments. The City reserves any rights it may have under this Franchise, including rights to
impose Penalties or terminate the Franchise based on the design.
8.3 Initial and Continuina Tests. The Grantee shall perform all tests necessary to
demonstrate compliance with the requirements of 47 C.F.R. 76 subpart K. All tests shall be
conducted in accordance with the most current publications of Tektronix, "No Loose Ends,"
and/or NCTA's "Recommended Practices for Measurements on Cable Television Systems."
The Grantee shall perform at least the following tests:
A. All new trunk and distribution cable shall be sweep-tested on the reel to
verify compliance with manufacturer's specification of frequency response and structural
return loss. No component shall be used in the Cable System which fails to meet the
manufacturer's specification.
B. Acceptance Tests. The Grantee shall perform acceptance tests on the
entire Cable System at the conclusion of the Upgrade to demonstrate compliance with 47
C.F.R. 76 subpart K in accordance with Section 8.8. The City will be permitted to witness the
tests. The test results shall be submitted to the City for review. The Grantee shall have the
obligation, without further notice from the City, to take corrective action if any segment is not
operating or pertorming within 47 C.F.R. 76 subpart K in accordance with Section 8.8.
C. Continuing Tests. If the City determines the need for additional tests,
the Grantee and the City will jointly select test points at various points af the Cable System.
The quantity of these test points will be mutually agreed upon based on what best represents
the architecture of the Cable System. The Grantee shall perform Proof of Performance Tests
at these locations annually in conjunction with 47 C.F.R. 76 subpart K through the life of the
Franchise, and at other points mutually agreed upon where Cable System user complaints
indicate tests are warranted or as required to test all major trunk lines. The City will be
permitted to witness the tests. A written report of the test results shall be filed with the City
within thirty (30) days of the test. If a location fails to meet performance specifications as
outlined in 47 C.F.R. 76 subpart K in accordance with Section 8.8, the Grantee, without
requirement of additional notice or request from the City, shall take corrective action, re-test
the locations, and advise the City of the action taken and results achieved.
8.4 1n~S~ections during Construction. The City may conduct inspections of
construction areas and Subscriber installations, including to assuce compliance with
applicable laws, codes, and requirements of this Franchise. The Grantee shall be notified of
any violations found during the course of inspections. The Grantee must bring violations into
compliance within thirty (30) days of date it receives notice, and submit a report to the City
describing the steps taken to bring itself into compliance. Inspection does not relieve the
Grantee of its obligation to build in compliance with all provisions of the Franchise.
14
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8.5 Other Construction Procedures.
The Grantee:
A. shall follow a Cabie System design and construction plan consistent with
its obligations under this Franchise, use the equipment specified (or substitute equipment of
equivalent or better quality) in such distribution system design plan and construction plan
(except insofar as those plans, if carried out, would result in construction of a system which
would not meet requirements of federal, state, or local law; and except for such minor
modifications as are typical in the industry);
B. shall use equipment of good and durable quality;
C. shall provide a quarterly construction report to the City in a form
reasonably agreed to by the City and the Grantee;
D. shall maintain a public file showing its plan and timetable for
construction of the Cable System (the Grantee shall notify residents in any construction area
at least one day in advance before first entering onto property to perform any work in
conjunction with Cable System construction, and shall additionally notify affected residents in
advance of any work which will involve excavation, replacement of poles, or tree trimming);
E. upon request, Grantee shall make available as-built Cable System
design maps for the City's review at the local office of the Grantee; and
F. upon request, Grantee shall provide maps showing the actual location of
additions or extensions to its lines within thirty (30) days of completion of Cable System
construction in any geographic area.
8.6 Joint Trenchina The City will notify Grantee seventy-two (72) hours prior to the
opening of trenches and street excavations in underground areas so that the Grantee will be
allowed to install substructure (i.e., conduit) in order to extend cable service to commercial
and residential areas.
8.7 Svstem Maintenance.
A. Interruntions to be Minimized. The Grantee shall schedule maintenance
so that activities likely to result in an interruption of service are performed during periods of
minimum Subscriber use of the Cable System. The Grantee shall make best efforts to
minimize interruptions of service consistent with reasonable and customary Upgrade
practices.
B. Maintenance Practices. In addition to its other obligations, the Grantee
shall (a) use replacement components of good and durable quality, with characteristics
15
0~~.19 ~ ~ N C S
better or equa~ to replaced equipment; and (b) follow the more stringent of industry
maintenance standards or corporate maintenance standards.
8.8 ~ystem PerFormance. The Cable System shall meet or exceed the standards
set forth in 47 C.F.R. 76 subpart K("FCC Standards"), as those standards may be in effect
at all times. If the FCC Standards are eliminated and not replaced, the City may continue to
enforce the standards which exisfed prior to the date of elimination. If the City has authority
to establish standards, standards may be amended or added in conjunction with, and subject
to, Section 27.1 and/or Section 27.2.
8.9 Future S~rstem l~~grades/Rebuilds. The Grantee shall provide additional or
new facilities and equipment, expand channel capacity, and otherwise Upgrade or Rebuild
its Cable System throughout the Franchise term as needed to incorporate improvements in
technology to reasonably meet the needs and interests of the community in light of the costs
thereof.
8.10 Svstem Extension.
A. The Grantee shall build its Cable System so that it is able to provide
service to all areas located within the City limits as they existed on the effective date of this
Franchise. The Grantee must build the Cable System so that it can extend service to
residents, including residents located in areas which may be annexed in the future, in
accordance with Section 8.10.6.2.
B. Line Extension Reauirements.
1. Existing City Limits. Within the City boundaries as they existed
on the effective date of this Franchise, the Grantee must extend
service upon request to any Person for no charge other than the
then-prevailing normal installation charge, unless the Grantee
demonstrates to the City's satisfaction that extraordinary
circumstances justify a waiver of this requirement. (An example
of an extraordinary circumstance would be an underground
district that is not cabled and in which there is no conduit
available for Grantee's use.)
2. New Areas.
a. For areas annexed after the effective date of this
Franchise, the Grantee will extend its trunk and distribution
system to serve Subscribers requesting service after the
date hereof at the then-prevailing normal installation
charge (unless the Grantee demonstrates to the City's
satisfaction that extraordinary circumstances justify a
higher charge) where:
16
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(i) the new Subscriber requesting service is located
within five hundred (500) feet of the nearest existing
Cable System plant; or
(ii) the number of homes to be passed by such
extension is equal to or greater than five (5) homes
per quarter mile of such extension measured from
the nearest existing Cable System plant.
b. Cost Sharina. In the event that the new Subscriber
requesting service is not located within five hundred (500)
feet of the nearest existing Cable System plant, the
Grantee will extend its Cable System on request based
upon the following cost-sharing formula:
(i) Total Cost to Construct Extension* = Cost Per Quarter
Quarter Miles of Extension Mile of Extension
(ii) Total Cost Per Quarter Mile of Extension = Grantee's Share
5 Per Subscriber
(iii) Total Cost to Construct Extension = Cost Per Subscriber
iVo. of Subscribers Requesting Service
(iv) Cost Per Subscriber nllinus = Subscriber's Share
Grantee's Share Per Subscriber
* Total Cost to Construct Extension is defined as the actual
turnkey cost to construct the entire extension including
electronics, pole make-ready charges, and labor, but not the cost
of the Subscriber drop.
3. Subscriber Drops. The Grantee shall not assess any additional
cost for service drops of one hundred fifty (150) aerial feet or
seventy-five (75) underground feet or less unless the Grantee
demonstrates to the City's satisfaction that extraordinary
circumstances justify a higher charge. Where a drop exceeds
one hundred fifty (150) aerial feet or seventy-five (75)
underground feet in length, the Grantee may charge the
Subscriber for the difference between the Grantee's actual costs
associated with installing a one hundred fifty (150) foot aerial
drop or seventy-five (75) foot underground drop and the
Grantee's actual cost of installing the longer drop. Provided that
drop length shall be the shorter of (1) the actual length of the
installed drop or (2) shortest distance to the point where the
Grantee would be required to extend its distribution system.
17
~~~.19~1NC~
4. In any area where the Grantee would be entitled to install a drop
above-ground, the Grantee will provide the Subscriber the option
to have the drop installed underground, but may charge the
Subscriber the difference between the actual cost of the above-
ground installation and the actual cost of the underground
installation.
5. Time for Extension. The Grantee must extend service to any
Person who requests it: (a) within seven (7) days of the request,
where service can be provided by activating or installing a drop;
(b) after the Upgrade of the Cable System is completed, within
thirty (30) days of the request within the existing City limits as of
January 1, 1995 where an extension is required or in any case
where an extension of one-half mile or less is required; or (c)
within six (6) months for annexed areas where an extension of
one-half mile or more is required.
6. Notwithstanding the foregoing, the Grantee shall install one drop
at no charge to every public school and City-occupied building in
the Franchise territory. The City or public school may install
facilities and equipment to transmit the signal to all rooms within a
building, and shall not be required to pay any more for service
than the Grantee charges for delivery to a single drop point to a
residential Subscriber.
8.11 Public4 Educational and Governmental Use.
A. PEG Access Channel Ca acitv. The Grantee shall initially provide a
minimum of one (1) downstream analog channel for PEG Access. After the Upgrade or
Rebuild of the Cable System is completed, or within 12 months of the effective date of this
Franchise, whichever is shorter, a total of three (3) downstream analog channels for PEG
access shall be provided. These three downstream PEG access channels will remain the
responsibility of the City until such time that the City voluntarily releases them for use by the
Grantee. Thereafter, additional PEG access channels shall be provided up to a total of
seven (7) percent of the downstream analog capacity on the Cable System. The City shall
give the Grantee at least 120 days prior notice of required activation of additional Access
channel/spectrum. The City or its designated access management entity(s) shall assume
responsibility for the management of PEG access channels within twelve (12) months of the
effective date of this franchise, or upon the completion of the access center, whichever is
sooner.
B. Exqansion of PEG Access Channels. In addition to the minimum of
three PEG access(3) channels which must be provided as delineated above in Section
8.11.A., the City may require Grantee to provide additional activated downstream analog
channel capacity for a particular type of PEG Access. The provision of additional PEG
18
~~:~.1 9 ~ ~ N C S
access channel spectrum for a particular type of PEG access shall be based upon a
determination that the following criteria, as applicable to the type of access channel to be
added, have been met:
1. The previously existing PEG access channel must be program-
med 70% of the time between 9:00 a.m. and 10:00 p.m. within a
given day.
(a.) The programming amounts in 6.1.above must occur on any
five (5) days during a week (IVionday through Sunday).
(b.) The programming amounts described above must occur
during any ten consecutive weeks.
(c.) At least 50% of the programming described above must be
locally produced as defined below.
(d.) IVo more than 33% of the programming described in (c.)
above shall be repeat programming.
(e.) No character generated programming shall count toward
the trigger described above.
(f.) No programming that was initially produced by or previous-
ly aired by commercial or qualified noncommercial broad-
cast stations as defined by the FCC shall count toward the
trigger described above.
2. For purposes of Section 6.1.(c.) above, locally produced pro-
gramming is defined as:
(a.) Programming produced in the City of Petaluma or Sonoma
County, or:
(b.) Programming produced by any resident of the City of
Petaluma (or any public or private agency which provides
services to residents located in the City of Petaluma),
regardless of where the programming was actually
developed.
C. Requirements Reaardin~ R~!~PS anci Prnr.P~i~,rP~ fnr t lse of PEG Access
Channels.
1. The City shall designate a non-profit access management
corporation, initially "Petaluma Community Access, Inc."
(hereafter "Access Corporation"), to manage the use of the PEG
Access channels required under the Franchise. To the extent
19
0~~.1 9 81 N C S
permitted by Federal law, the City or its PEG access designate
agrees that it will not use PEG access channel capacity to
provide for-profit commercial services or satellite delivered
commercial programming services that compete with Grantee's
lines of businesses. The City or its PEG access designate may,
however, authorize charges to pay the direct costs of non-
commercial services, such as fees for video class instruction or
charges to recover the cost of special use equipment, and may
solicit and obtain donations and sponsorships to contribute to
PEG access programming and operations.
2. The Access Corporation shall establish and enforce rules for use
of the PEG Access channels (a) to assure non-discriminatory
access to the channels to similarly situated users; and (b) to
promote use and viewership of the channeis, consistent with the
obligation to provide non-discriminatory access to similarly
situated users. The City shall be responsible for establishing and
enforcing rules for use of the PEG Access channel capacity and
managing the use of the PEG Access channels during any period
such Access Corporation does not exist.
3: The Grantee may not exercise any editorial control over the
content of Programming on the designated PEG Access channels
(except for such Programming the Grantee may produce and
cablecast on the same basis as other PEG Access channel
users).
4. The PEG Access channels shall be available at no charge to
users and to the Access Corporation.
D. E~uipment and Facilities. The Grantee shall provide $790,000 to the
City for PEG Access equipment and facilities in the following manner:
1. for initial equipment and facilities for PEG access: $500,000 to
be provided upon submission of an access operating plan.
2. Grantee may comment upon the operating plan and provide
recommendations but may not withhold any requested funding
and resources.
3. for replacement equipment and facilities for PEG access:
$290,000 to be deposited with the City on the third anniversary of
the effective date of the franchise.
20
~~~,1 9 ~1 NC~
E. Access Services. Nothing in this section requires or shall be deemed to
require the Grantee to make any payment which constitutes a Franchise fee under 47 U.S.C.
§ 542.
F. General. The parties agree that any cost to the Grantee associated with
providing Access services, facilities, and equipment under this Franchise, including without
limitation the amounts set forth in 8.11.D.1-2, and payments made outside this Franchise, if
any, are not part of the Franchise fee, and fall within one or more of the exceptions to 47
U.S.C. § 542.
8.12 Leased Use. The Grantee shall provide Leased Access Channels under
reasonable terms and conditions as required by Federal law.
8.13 Subscriber Services.
A. For the period beginning on the effective date of the Franchise through
the completion of the Cable System Upgrade required by Section 8 hereof: a minimum of
thirty-seven (37) activated channels;
B. For the period beginning on completion of the Cable System Upgrade
required by Section 8 hereof, through the end of the Franchise (subject to future agreements
in light of changes in Cable System capacity): a minimum of seventy-seven (77) activated
channels;
C. To the extent required by federal law, the Grantee shall provide to all
residential Subscribers the signals of local commercial television stations and qualified low-
power stations and qualified local non-commercial educational television stations.
D. In addition to such other service requirements as may be contained in
this Franchise, the Grantee agrees to provide broad categories of programming as defined
by Federal law.
8.14 Ascertainment of Programmina.
A. At minimum during years four (4), eight (8), and twelve (12) of the
Franchise, the Grantee shall conduct a systematic customer survey of the needs, interests,
and preferences of the subscribers within its Franchise Area. The Grantee shall report to the
City the results of the Grantee's survey and any actions taken, or to be taken, by the Grantee
pursuant thereto.
B. The City at its sole option and expense may undertake an annual
survey, conducted by an independent researcher, of community views of cable operations in
the City, including but not limited to Programming, response to community needs, and
customer service.
21
~~~.~9~~NCS
8.15 iVo Ci y Control.
A. During the term of this Franchise, the City may not prohibit the Grantee
from providing any program or class of programs, or otherwise censor communications over
the Cable System; except that, nothing in this section shall be read to authorize the Grantee
to engage in communications which are prohibited by law, or to expand or contract any rights
the City may have to enforce generally applicable laws with respect to obscenity, libel,
slander, or otherwise unprotected speech against the Grantee (for channels the Grantee
controls), program producer, or other responsible party.
The construction, installation, operation, and maintenance of the Cable System and
all parts thereof shall be perFormed in an orderly and workmanlike manner. All such work
shall be performed in accordance with the following safety, construction, and technical
specifications, codes and standards, as they may now exist or be amended or adopted
hereafter:
a. Occupational Safety and Health Administration (OSHA) Safety and Health
Standards;
b. National Electrical Code;
c. National Electrical Safety Code (iVESC);
d. Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation
Administration;
e. Construction, Marking and Lighting of Antenna Structures, FCC Rules 47
C.F_R. Part 17;
f. all federal, state and municipal construction requirements, including FCC Rules
and Regulations; and
g. all building and zoning codes, and all land use ~estrictions and local safety
codes.
In the event of a conflict among codes and standards, the most stringent code or
standard shall apply (except insofar as those standards, if followed, would result in a Cable
System which could not meet requirements of federal, state, or local law; and except for such
minor modifications as are typical in the industry). The City may adopt reasonable additional
standards after consultation with the Grantee as required to ensure that work continues to be
performed in an orderly and workmanlike manner, or to reflect changes in standards which
may occur during the Franchise term.
22
~~~.~981NC~
10.1 The City may regulate the Grantee's rates and charges except to the extent it is
prohibited from doing so by applicable law. The term "regulate" means the City may take
any step it is not prohibited from taking under applicable law in order to protect the public
from unreasonable or discriminatory rates and charges, including but not limited to ordering
refunds for overcharges and adopting regulations as appropriate to further implement its
authority to regulate rates.
10.2 Subject to Section 7.5.C., The Grantee shall not, with regard to fees,
discriminate or grant any preference or advantage to any Person; provided, however, that
the Grantee may establish different rates for different classes or types of Subscribers based
upon cost-of-service differentials, provided that the Grantee not discriminate among
Subscribers of the same class.
10.3 The Grantee will notify the City and Subscribers of any proposed increase at
the billing cycle that is at least thirty (30) days before said increase is to become effective.
The notice will list the FCC community identifier for the Cable System and the name,
address, and phone number of a contact person at the City so that informafion regarding
procedures for public participation is readily available to Subscribers.
10.4 Without limiting the foregoing, and except as inconsistent with applicable law
the Grantee may not change a rate or charge that is subject to the City's regulation without
the City's prior approval, except as federal law otherwise provides.
10.5 The Grantee must provide a complete list of all its rates and charges to the City
on the effective date of the Franchise
10.6 Suaqort for Access.
A. The City recognizes that provision of support for PEG Access is a valid
expense associated with the provision of Basic Service under this Franchise, and that the
Grantee is entitled to be compensated through its rates for reasonable costs associated with
the provision of support for PEG Access,
B. The Grantee agrees, if requested by the City by ordinance or resolution,
to collect from subscribers a community access fee. Such fee will be paid quarterly to the
City or its designee identified in the ordinance or r~solution. In the event a subscriber
refuses to participate in the community ~ccess fee payment, the Grantee will not be required
to discontinue service or make the payment on behalf of the customer. Any payment made
by a customer will first be applied to the customer's balance; any remaining amount will then
be allocated to the community access fee. The Grantee shall have the right to identify each
subscriber's community access fee payment as a fine item on the billing statement. Any
amount collected by Grantee under this section shall not be deemed Gross Revenues for
23
~~.~.y9~~N~~
purposes of calculating the Franchise Fee owed to the City, shall not be deemed part of the
Franchise Fee, and falls within one or more of the exceptions to 47 U.S.C. 542.
C. The City shall identify in the initial ordinance or resolution, an amount to
be collected from the subscribers. That amount may be decreased or increased by
resolution or ordinance of the City Council.
~ECTIAN 11. FRANCHIS~ F~~S
11.1 The Grantee shall pay to the City an amount equal to five (5) percent of the
Gross Revenues derived from the operation of its Cable System in the City.
11.2 Payments due to the City under this provision shall be computed at the end of
each calendar quarter and shall be due within 45 days after the end of the preceding quarter.
Each payment shall be accompanied by a statement of revenue received for the quarter in
connection with the operafion of the Grantee's Cable System in the City and a brief report
showing the basis for computation of fees. The reports shall list a line item for every source
of revenue received by the Grantee (as specified within the definition of "Gross Revenues" in
Section 2.2) from the operation of its Cable System.
11.3 No acceptance of any payment shall be construed as an accord that the
amount paid is in fact the correct amount, nor shall acceptance of payment be construed as
a release of any claim the City may have for further or additional sums payable under the
Franchise by the Grantee
11.4 The Grantee shall pay interest as a late fee on franchise fee payments which
are submitted after the due dates as described in Section 11.2. Payment not received by the
due date shall be assessed interest at the maximum rate permitted by law.
11.5 The Franchise fee shall be paid in addition to fees, charges, or assessments
required by the City (including, but not limited to, business license fees), unless such fee,
charge, or assessment must be treated as a Franchise fee under the Cable Act.
11.6 The City shall have authority to arrange for and conduct an audit of the
financial Records of the Grantee, its contractors, subcontractors, or Affiliates for the purpose
of verifying Franchise fee payments. The City shall notify the Grantee in writing at least
fourteen (14) days prior to the date of the audit, and the Grantee shall make available for
inspection and copying its books and Records, and those of any Affiliate or other entity as
may be relevant to the determination of gross revenues and franchise fees due. l~he records
shall be made available by the Grantee at the Grantee's expense at such location as the City
and the Grantee may agree. The City shall have the right to collect past underpayment of
franchise fees and any.applicable interest on any such underpayments shall be for a period
which is consistent with the applicable State of California statute of limitation.
24
~R~.19 ~ 1 N ~ ~
11.7 When the Franchise terminates for any reason (other than through the
issuance of a renewal or superseding Franchise), the Grantee shall file with the City within
ninety (90) calendar days of the date its operations in the City cease a financial statement,
certified by a certified public accountant or the Grantee's chief financial officer; showing the
Gross Revenues recei.ved by the Grantee since the end of the previous fiscal year.
Adjustments will be made at that time for Franchise fees due to the date that the Grantee's
operations under the terminated Franchise ceased.
11.8 New Business Exemptian. If the Grantee offers its subscribers any services in
new lines of business which it has not offered during its previous franchise term, it may
qualify for a one year, one-time exemption from the franchise fee for such new service.
Gross annual revenues from any such new service shall not be subject to franchise fees for
a period beginning on the date the Grantee notifies the City it wishes the new service to be
exempt from the franchise fee. New lines of business exempted from fees by this provision
shall include, but not be limited to services such as downloading games, real time shopping
applications, wireline and wireless telephone, data and personal communications services.
New lines of business do not include pay-per-view television or additional or different
channels of traditional one-way service.
11.9 Any Franchise fee or fee payment attributable to gross revenues derived from
any new, noncable television, data, telephone transmission or other communication services
such as interactive, data, telephone, transmission or othec communication products or
services shall not exceed the percentage of gross revenue payable to the City by any similar
provider of the same product or service subject to the City's jurisdiction and control. As used
in this definition, a non-programming product or service shall be considered "new" if Grantee
was not already providing it as of the enactment of this Franchise.
~ECTIOIV 12. PROTECTION OF CITY AND EfVFORCEMENT -- LIA~I~I~C
INSURANCE
12.1 The Grantee shall purchase and maintain during the term of this Franchise
such insurance necessary to protect it and the City from claims below which may arise out of
or result from the Grantee's construction, operation, or repair of its cable system. The City
shall be an additional named insured or provided with an owner's protective policy written on
an per occurrence basis on coverage set forth in this section, including coverage for:
A. claims under worker's compensation disability benefit as required by the
State of California and other similar employee benefits including but not limited to Employer's
Liability Insurance;
B. claims for damages because of bodily injury, occupational sickness or
disease, or death of its employees;
25
~~~.1 9 ~ 1 N C ~
C. claims for damages because of bodily injury, sickness or disease, or
death of any Person other than its employees;
D. claims for damages insured by personal injury liability coverage which
are sustained (i) by any Person as a result of an offense directly or indirectly related to the
employment of such Person by the Grantee, or (ii) by any other Person; and
E. claims for damages because of injury to or destruction of tangible
property, including loss of use resulting therefrom.
12.2 Original certificates of insurance acceptable to the City shall be filed with the
City at least 10 days before the effective date of this Franchise. These certificates shall
contain a provision that coverages afforded under the policies will not be canceled unless at
least thirty (30) days prior written notice has been given to the City. At the discretion of the
City, the Grantee shall file copies of endorsed insurance policies with the City. Any
deductibles or self insured retention must be declared to and approved by the City. Such
approval shall not be unreasonably withheld. At the option of the City, either the insurer
shall reduce or eliminate such deductibles or self-insured retention as respects the City, its
officers, officials, employees and volunteers; or the Grantee shall provide a financial
guarantee satisfactory to the City guaranteeing payment to cover deductibles, losses and
related investigations, claim administration and defense expenses.
12.3 The Grantee shall procure and maintain General Commercial Public Liability
and Property Damage Insurance, with liability coverage for the Grantee's premises,
operations, automobiles (owned, non-owned, and hired), products, completed operations,
elevators, independent contractors; broad-form contractual liability; and personal and
property injury liability, protecting it and the City from all claims for personal injury, including
death, and all claims for destruction of or damage to property, arising out of or in connection
with construction, operation, or repair of the Grantee's Cable System, whether the same is
executed by itself, by any contractor under it, by anyone directly or indirectly employed by
any of them, or by anyone for whose acts any of them may be liable. Insurance may be
combined Bodily Injury and Property Damage Liability but in no event shall the limit of
Iiability be less than $1,000,000 for all damages arising out of bodily injury, including death,
and all property damage sustained by any one Person in any one accident, and $2,000,000
aggregate for such damage sustained by two or more Persons in any one accident.
12.4 The Grantee shall procure and maintain at its expense, in accordance with the
provisions of the laws of the State of California Worker's Compensation Insurance, including
occupational disease provisions, for all of its employees and in case any work is sublet, it
shall require any contractor similarly to-provide Worker's Compensation Insurance, including
occupational disease provisions, for all of the latter's employees unless such employees are
covered by the protection afforded by the Grantee. In case any class of employees engaged
in hazardous work is not protected under Worker's Compensation Insurance, the Grantee
shall provide, and shall cause each contractor to provide, adequate and suitable insurance
for the protection of its employees not otherwise protected.
26
~~~.~.981NCS"
12.5 The Grantee, in addition to all other insurance requirements herein and
required by the Enabling Ordinance, shall maintain insurance in the type and amount as may
be required in any license, permit, or agreement obtained in connection with the
construction, opecation, or repair of its Cable System and which is necessary to complete
any construction, operation, or repair e.g., Highway Permit, Railroad Crossing Agreement,
Corps of Engineers Permit), regardless of who secured the license, permit, or agreement.
12.6 Insurance shall be placed with insurers with a current A.M. Best's rating of no
less than A:VII unless otherwise acceptable to the City.
SECTION 13. PROTECTION OF CITY AND ENFORCEMENT -- PERFORNIANCE
BOND
13.1 Within ninety (90) days of the effective date of this Franchise, the Grantee shall
establish in the City's favor a performance bond in an amount no less than ten (10) percent
of the estimated cost of constructing, Upgrading, or Rebuilding the Cable System required by
the Franchise Agreement. Bond shall be provided in a form acceptable to the City.
13.2 In the event the Grantee fails to complete the Cable System construction,
Upgrade, or Rebuild in a safe, timely, and competent manner in accord with the provisions of
this Franchise and the Enabling Ordinance, applicable law, and permits, or otherwise fails to
comply with its obligations under this Franchise, there shall be recoverable, jointly and
severally from the principal and surety of the bond, any damages or loss suffered by the City
as a result, including the full amount of any compensation, indemnification, or cost of
removal or abandonment of any property of the Grantee, or the cost of completing or
repairing the Cable System construction, Upgrade, or Rebuild, up to the full amount of the
bond plus a reasonable allowance for attorneys' fees. The City may also recover against the
bond any amount recoverable against the letter of credit pursuant to Section 14 where such .
amount exceeds that available under the letter of credit.
13.3 The City may eliminate the bond requirement upon the satisfactory completion
of the Cable System construction, Upgrade, or Rebuild as evidenced by the completion of
Acceptance Tests described in Section 8.3.8. of this Franchise. It may reinstitute a
performance bond requirement for any subsequent construction, Upgrade, or Rebuild of the
Grantee's Cable System.
14.1 On the effective date of the Francf~ise, the Grantee shall post with the City an
irrevocable letter of credit in the amount of $75,000 or such other irrevocable security as
may be specified in the Enabling Ordinance. The City may draw on the letter of credit as a
security fund to ensure the faithful performance of all provisions of the Enabling Ordinance,
applicable law, and permits, and the payrnent by the Grantee of any Penalties, liquidated
27
~~~.~.9~1NC~
damages, claims, liens, fees, or taxes due the City which arise by reason of the construction,
operation, or maintenance of the Cable System.
14.2 The irrevocable letter of credit shall be subject to approval as to content and
form by the City Attorney. The letter of credit shall in no event require the consent of the
Grantee prior to the collection by the City of any amounts covered by the letter of credit.
14.3 Within three (3) business days of the date it draws on the Grantee's letter of
credit, the City shall send written notice to the Grantee notifying it that the City has drawn on
the fund; the amount withdrawn; and the specific reasons for the withdrawal.
14.4 Within thirty (30) calendar days after notice to the Grantee that an amount has
been withdrawn by the City from the security fund, the Grantee shall deposit a sum of money
sufficient to restore the security fund to the total amount in the fund immediately prior to the
withdrawal. If the Grantee fails to restore the security fund to the original amount within thirty
(30) calendar days, the entire security fund remaining may be forfeited, and/or such failure
may be considered a material breach of this Franchise Agreement and may be used as
grounds for revocation of the Franchise.
14.5 The Grantee's security fund will become the property of the City in the event
the Franchise is revoked. The Grantee is entitled to the return of the balance of the security
fund that remains following expiration of the Franchise, provided that there is no outstanding
default or unpaid amounts owed to the City by the Grantee.
SECTION 15. PROTECTIOPV OF CITY ~4ND ENFORCEIViEIVT -- APPROVAL OF
SURETIES: RELATION TO OTHER REMEDIES
15.1 The insurance, bonds, and letter of credit required by Sections 12-14 shall be
issued by a company (or companies) or bank(s) licensed to do business in California, and/or
a surety (or sureties) admitted to do business in California, all of which shall be approved by
the City.
15.2 Recovery by the City of any amounts under Sections 12-14 shall not in any
respect Iimit the Grantee's duty to indemnify the City under Section 16; nor shall recovery of
any amounts in any respect prevent the City from imposing Penalties under Californi~a law, or
exercising any other right or remedy it may have under the Franchise or at law or equity.
16.1 The Grantee shall, at its sole expense, fully indemnify, and hold harmless the
City, and City's officers, agents, and employees, from and against any and all claims, suits,
actions, liability, and judgment for damages or otherwise arising out of the construction,
operation, or repair of the Grantee's Cable Sysiem, or in any way arising out of the Grantee's
28
~~~.19 ~ ~. N C S
enjoyment or exercise of its Franchise, whether the act or omission giving rise to the same is
authorized, allowed, or prohibited by the Franchise or applicable law except to the extent
such claims, suits, actions, liability or judgments are due to the sole negligence or willful
misconduct of the City. This duty includes the duty to pay the expenses incurred by the City,
its officers, agents, and employees in defending themselves, including but not limited to all
out-of-pocket expenses, attorneys' fees for outside counsel, and the reasonable value. of any
services rendered by the City Attorney or any assistants, or by any employee of the City.
16.2 The City shall fully indemnify and hold harmless the Grantee, its officers,
agents and employees from and against any and all claims, suits, actions, liabilities, and
judgments for damages or otherwise arising out of the City's use (except for content-related
issues) of the Grantee's cable communication system, including Emergency alert override, or
City use of any institutional network, or public and government access use of the Grantee's
cable communication system, except to the extent such claims, actions, liabilities, or
judgments for damages or otherwise are due to the sole negligence or willful misconduct of
the Grantee.
17.1 In addition to all other rights, powers, and remedies reserved by the City, the
City shall have the additional, separate, and distinct rights to revoke the Franchise if:
A. the Grantee becomes fiscally unable or unwilling to pay its debts, or is
judged to be bankrupt;
B. the Grantee attempts to or practices any fraud in its conduct in obtaining
the Franchise or operating under it;
C. the Grantee attempts to evade any material provision of the Enabling
Ordinance or applicable law relating to the construction, operation, or repair of its Cable
system;
D. the Grantee materially violates the terms of its Franchise (without
limitation, the failure to provide or maintain the required reports and Records shall be
deemed a material violation of its Franchise); or
E. the Grantee abandons its Franchise (the Grantee shall be deemed to
have abandoned its Franchise if it willfully refuses to operate the Cable System as required
by its Franchise, when there is no event beyond the Grantee's control that prevents the
operation of the Cable System, ar~d where operation would not endanger the health or safety
of the public or property).
29
~~~.~981NCS
SECTION 'i8. REnAED1ES -- LIQUIDATED DA~AAGE,~
18.1 Because the Grantee's failure to comply with provisions of this Franchise will
result in injury to the City, and because it will be difficult to estimate the extent of such injury,
the City and the Grantee hereby agree to the following liquidated damages, which represent
both parties' best estimate of the damages resulting from the specified injury. Damage
amounts may be adjusted throughout term of Franchise by the City by resolution to take into
account increases in the consumer price index:
A. for failure to complete construction or extend senrice in accordance with
the Franchise: $750/day for each day the violation continues;
B. for failure to comply with material requirements for PEG Access use of
the Cable System: $500/day for each day the violation continues;
C. for repeated, willful, or continuing failure to submit reports, maintain
Records, provide Documents or information: $250/day for each day the violation continues;
D. for violation of customer service standards: $375 per violation per day;
E. for failure to comply with Transfer provisions: $250/day from the date of
any unlawful Transfer; and
F. for all other material violations including an unreasonable claim that a
Document contains a trade secret or confidential information when the Document does not
conta~n a trade secret or confidential information: $250/day for each day the violation
continues.
SECTtQIV 'i9. BENtEDIES -- CUMULATIVE
19.1 The City may apply the following remedies in the event the Grantee violates
this Agreement:
A. Revoke the Franchise pursuant to the p~ocedures specified herein.
B. Impose liquidated damages available under Section 18.
C. Instead of any other remedy, seek legal or equitable relief from any court
of competent jurisdiction.
19.2 The remedies under this Agreement are not exclusive of any remedies
provided by law, and nothing contained in this Franchise shall impair any of the rights of the
City under applicable law.
30
~'~~• Y 9~ 1 N C S
20.1 Notwithstanding the foregoing, before exercising its rights under Sections 13-
14 or Section 17, or imposing any Penalty as provided under California law, the City shall
follow the procedures set forth in Section 20.2.
20.2 If the City believes that the Grantee may have violated its Franchise or
applicable law, the City shall give written notice to the Grantee informing it of such alleged
violation ("Violation Notice"). Within fourteen days of the date of the Violation Notice, the
Grantee shall respond in writing to the City advising the City that (1) the Grantee intends to
contest the Violation Notice; (2) the Grantee has completely corrected the violation, and
describing in detail the steps taken to correct it; or (3) the Grantee has begun to correct the
violation, but that with all due diligence the violation cannot be corrected in fourteen days,
and describing in detail steps already taken and the Grantee's plan and precise schedule for
correcting the violation. If the Grantee intends to contest the Violation Notice, or the Cify
finds that the Grantee may have failed to cure or submit an acceptable plan for curing the
default in performance, the City may schedule a meeting where the Grantee will be asked to
show cause why it should not be found in violation of the Franchise. At least twenty days
notice shall be given prior to such meeting. Notice shall be given to conform to any state law
notice requirements. If, after the meeting, the City finds that the Grantee is in violation of the
Franchise and has failed to correct the default in performance (or the default cannot be
cured), the City may exercise any right it has under Sections 13-14 or 17 by giving written
notice at least thirty (30) days prior to the exercise of such right. If arbitration has been
initiated by the Grantee pursuant to Section 20.3, the City's ability to exercise any right shall
be stayed until the completion of the arbitration. Correction is not complete until all Penalties
and damages, if any are owed, are paid.
20.3 If the Grantee disputes a finding (or findings) made by the City pursuant to the
procedures set forth in Section 20.2 the Grantee may initiate arbitration as set forth in this
Section 20.3. Arbitration shall constitute the sole remedy for disputes regarding the exercise
by the City of its rights under Section 13-14 or 17.
A. Arbitration shall be initiated by the Grantee by providing written notice
("Arbitration Notice") no later than twenty (20) days following receipt of written notice by the
City as provided in Section 20.2 that the City intends to exercise any right it has under
Sections 13-14 or 17. The Arbitration Notice shall set forth the nature of the dispute and the
grounds for the dispute. With the Arbitration Notice the Grantee shall submit the names of
three persons who have knowledge of the cable industry, acceptable to the Grantee as a
neutral arbitrator. Within ten (10) days of receipt of the Notice of Arbitration, the City shall
notify the Grantee either of its acceptance of one of the proposed arbitrators or its rejection
of all such arbitrators. If the City rejects all arbitrators, the Grantee and the City shall confer
within seven (7) days to choose one arbitrator. If they are unable to agree upon and appoint
an arbitrator, either the Grantee or the City may make written application to the American
Arbitration Association (or a similar organization if the American Arbitration Association shall
31
~~~.~.9~~.NCS
not at this time exist) to provide a list of seven potential neutral arbitrators residing in
California. Within ten (10) days after receipt of the list of the seven potential arbitrator from
the American A~bitration Association, if an arbitrator has not been agreed upon, the Grantee
and the City shall confer and take turns striking names from said list, with Grantee striking
first. The last name remaining on said list shall be selected as the arbitrator.
B. The arbitrator so chosen shall proceed promptly to hear and determine
the question or questions in dispute. The Commercial Arbitration Rules of the American
Arbitration Association (or the organization submitting the names of arbitrators if the
American Arbitration Association does not exist at this time) shall govern the conduct of the
arbitration in the absence of contrary agreement by the Grantee and the City.
C. The arbitrator shall render an award within thi~ty (30) days after the
conclusion of the proceeding, which award shall be final and binding upon both Grantee and
the City to the extent permitted by applicable law, except that either the Grantee or the City
may seek to have the award corrected or vacated in accordance with the laws of the State of
California.
D. The fees and expenses of the arbitrator, the American Arbitrator
Association (or similar organization) and the services of the stenographer shall be shared
equally by the Grantee and the City. All other expenses and costs of the arbitration shall be
borne by the party incurring the same.
SECTION 21. RENiEDIES -- CONTINUITY OF SERVIC~
21.1 It is the right of all Subscribers in the Franchise Area to receive all available
services from the Grantee as long as their financial and other obligations to the Grantee are
satisfied.
21.2 In the event of the termination or Transfer of the Franchise, the Grantee shall
ensure that all Subscribers receive continuous, uninterrupted service regardless of
circumstances in accordance with this Section 21. At the City's request, the Grantee shall
cooperate with the City to operate its Cable System for a temporary period (the "Transition
Period") following termination or Transfer of the Franchise as necessary to maintain
continuity of service to all Subscribers, and shall cooperate in the development of plans
required to ensure an orderly transition from one operator to another. The Transition Period
will be no longer than the reasonable period required to select another Grantee and build a
replacement Cable System. During such Transition Period, the Cable System shall be
operated consistent with the terms and conditions of this Franchise Agreement and the
Enabling Ordinance, and the Grantee shall be entitled to the revenues for any period during
which it operates the system.
21.3 In the event the Grantee fails to operate the Cable System for ninety-six (96)
hours during any seven (7) day period without prior approval of the City, or if the System is
32
~~~•198~NCS
abandoned as defined in Section 17.1.E, the City may, at its option, operate the Cable
System or designate an operator until such time as the Grantee restores service under
conditions acceptable to the City or until the Franchise is revoked and a permanent operator
is selected. If the City is required to fulfill this obligation for the Grantee, the Grantee shall
reimburse the City for all costs or damages resulting from the Grantee's failure to perform
that are in excess of the revenues from the Cable System received by the City. Additionally,
the Grantee will cooperate with the City to allow City employees and/or City agents free
access to the Grantee's facilities and premises for purposes of continuing Cable System
operation.
SECTION 22. TERiV~INATION
22.1 Upon revocation, termination, or expiration of the Franchise, or upon any other
termination of the Franchise by passage of time or otherwise, the City shall have the right to
require the Grantee to remove, at the Grantee's expense, its Cable System from Streets,
Public Property, and any private property occupied pursuant to the revoked, canceled, or
terminated Franchise. The City shall notify the Grantee in writing that the Cable System
should be removed, and identify any period during which the Grantee will be required to
continue to operate the Cable System as provided in Section 21. In removing its Cable
System, the Grantee shall refill and compact, at its expense, any excavation that shall be
made and shall leave all Streets, Public Property, and private property in as good a condition
as that prevailing prior to the Grantee's removal of the Cab(e System. The provisions of
Sections 12-16 of this Franchise Agreement and Sections 18-22 of the Enabling Ordinance
shall remain in full force and effect until the Cable System is removed.
22.2 Upon revocation, termination, or expiration of the Franchise, or upon any other
termination of this Franchise by passage of time or otherwise, the City shall have the
alternative right to buy the Grantee's Cable System. If the Franchise is terminated for cause,
the City may purchase the Cable System at an equitable price, within the meaning of the
Cable Act; otherwise, the Cable System may be purchased at fair market value, less the
value of the Franchise, within the meaning of the Cable Act. The Grantee shall sell its Cable
System subject to such warranties and terms as a Seller ordinarily gives a Buyer.
22.3 If the City does not purchase the Grantee's Cable System as provided in
Section 22.2, and the Grantee has failed to commence removal of its Cable System within
ninety (90) days after termination of the Franchise, or such other date specified by the City
under Section 21.2, or if the Grantee has failed to complete such removal within twelve
months after removal is required to have begun, the City may:
A. declare all right, title, and interest to the Grantee's Cable System to be
in the City or its designee with all right of ownership including, but not limited to, the right to
operate the Cable System or Transfer the Cable System to another for operation by it (upon
such declaration by City, the Grantee shall be entitled to receive an equitable price from the
33
~~~.19 ~ 1 N C ~
City for the value of the Cable System, less any costs and damages suffered by the City as a
result of the delay in removal); or
B. declare the Cable System abandoned and cause the Cable System, or
such part thereof as the City shall designate, to be removed at no cost to the City (the cost of
said removal shall be recoverable pursuant to Sections 12-16 herein, or from the Grantee
directly).
SECTIOPV 23. BOOKS AND RECORDS -- INSPECTlON
The City may inspect and copy or have copied the books, records, maps, plans, and
other documents, including financial documents, in the control or possession of the Grantee,
its contractors, Affiliates, or any person that constitutes an operator of the Grantee's cable
system (1) to enforce the City's rights or assess compliance with the Franchise and
applicable law; (2) in the exercise of any lawful regulatory power; or (3) as may be
convenient in connection with any proceeding the City may or must conduct under applicable
law with respect to the Grantee's cable system. After the City has carried out is
responsibilities which involve any copied records of the Grantee, it shall, at Grantee's option,
either destroy such copies or return them to Grantee to the extent permitted by law. . The
records shall be made available by the Grantee at the Grantee's expense at such location as
the City and the Grantee may agree. Grantee may mark documents the City has copied as
"proprietary." The City will notify Grantee if any third party seeks release of any document
so marked and the City will withhold release for the maximum period permitted by law to
provide the Grantee the opportunity to seek court protection against release of the requested
documents.
' SECTION 24. ~006(S AND RECORDS -- REPORTS AND RESPONSES TO
QUESTIONS
24.1 The Grantee shall provide the following reports quarterly, in a form agreed
upon between the City and Grantee, at the time it is scheduled to make its Franchise fee
payment:
A. a report stating the subscriber totals for: (1) each cable service tier; (2)
premium service; (3) pay-per-view, and; (4) any ather programming or information service
provided by the Grantee; the number of subscribers added and the number disconnecting;
B. a franchise fee repo~~t showing revenu~s received, by category.
24.2 Within ninety (90) days after the close of the Grantee's fiscal year, the Grantee
shall submit a written annual report, including, but not limited to, the following information:
34
~~~t.19~1NC~~
A. a summary of the previous year's activities in the development of its
cable system in the City, including, but not limited to, additions, deletions, or improvements
begun or discontinued during the reporting year, services initiated or discontinued, number
of Subscribers (including gains and fosses), homes passed, and miles of cable distribution
plant in service (the summary shall also include a comparison of any construction, including
cable system upgrades, during the year with any projections previously provided to the City,
as well as rate and charge increases and/or decreases for the previous fiscal year);
B. a financial statement of the Petaluma system, including a statement of
income, balance sheet, and a statement of sources and applications of funds which the chief
financial officer of the Grantee states is true and accurate; and
C. the annual report, if any, of the Grantee, or each Affiliate which controls,
owns, or manages the Grantee and issues an annual report.
24.3 Upon request, the Grantee shall provide the following documents to the City in
a timely manner, so as to permit the City to protect any interests it may have in any
proceeding, and in no event later than within thirty (30) days of the date the documents are
received or filed, with out regard to whether the documents are received or filed by Grantee.
A. FCC Forms 325 and 395 (or their successor forms) for the Grantee's
Cable System;
B. any filing made at the FCC or any state or federal agency regarding the
Grantee's Cable System, its proof-of-performance tests, or its RF signal leakage tests;
C. any notice of deficiency, forfeiture, or other document issued by any
state or federal agency instituting any investigation or civil or criminal proceeding regarding
the Cable System, the Grantee, its parent or any entity which controls, owns, or manages the
Grantee, or any operator of the Cable System, to the extent the same may affect or bear on
the operations of the Grantee's Cable System; and
D. any request for protection under Bankruptcy laws, or any judgment
related to a declaration of bankruptcy by the Grantee, or any operator of the Cable System.
24.4 The Grantee shall give the City copies of any other pocument filed with or
received from any federal, state, or local government entity regarding the operation of the
Grantee's Cable System on request.
24.5 The Grantee and any other entity that constitutes an operator of the Grantee's
Cable System which is in control or possession of information respecting that Cable System
shall respond to inquiries from the City concerning the construction, operation, installation,
or maintenance of the Cable System; plans for its expansion; Cable System revenues; or the
Grantee's, Affiliate's, or operator's financial or legal status. The information requested shall
35
0~~.198~NCS
be provided within thirty (30) days of request. Requests for extensions of time to respond
shall not be unreasonably denied.
~ECTION 25. ~OOKS AND R~CC)RDS -- MAIIVT~NAfVCE
25.1 In addition to public file Records and complaint Records required by this
Franchise, the Grantee shall maintain for review by the City, except for personally
identifiable information referred to in Section 7.3.A, Records of the following in a form
acceptable to City:
A. records of outages, indicating date, duration, area and the estimated
number of Subscribers affected, type of outage, and cause;
B. records of service calls for repair and maintenance, indicating date and
time service was requested, date of acknowledgment, date and time service was scheduled
(if it was scheduled), date and time service was provided, and (if different) date and time the
problem was solved;
C. records of installation/reconnection and requests for service extension,
indicating date of request, date of acknowledgment, and date and time service was
extended; and
D. maps showing the location of the Cable System and as-built maps.
25.2 The Records shall be kept at the Grantee's regional office and shall be
available for City review during normal business hours. Records of any event recorded shall
be kept for at least three (3) years. ~
~ECTION 26. INSPEC~IOIV OF PL.ANT
The City may supervise and inspect the Grantee's Cable System during construction,
and upon completion, shall have the right to inspect the Cable System and the Grantee's
equipment used in the maintenance of that Cable System at any time. If, based on
Subscriber complaints or based on its own investigation, the City believes that the Cable
System may not be operating in compliance with this Franchise agreement, it may require
the Grantee to perform tests and to prepare a report to the City on the results of those tests,
including a report identifying any problem found and steps taken to correct the problem.
36
~~~.1 9 ~ ~ N C S~
27.1 Four-year Review.
A. During the years which commence on the fourth, eighth, and twelfth
anniversaries of the effective date of the Franchise, the City may commence a review of the
Grantee's performance under the Franchise. As part of this review, the City may consider:
(1) whether the Grantee has complied with its obligations under Franchise and applicable
law; (2) whether customer service standards, technical standards, or bond or security fund
requirements are adequate or excessive; and (3) other issues as may be raised by the
Grantee, the City, or the public.
B. The City may conduct public hearings to provide the Grantee and the
public the opportunity to comment on the Grantee's pertormance and other issues
considered as part of the four-year review.
27.2 Grantee CooperatioIl. The Grantee shall cooperate in the fourth, eighth, and
twelfth year reviews, including by submitting reports on the state of cable technology.
27.3 Exercise of Authoritv. The City may exercise appropriate regulatory authority
under the provisions of this Franchise and applicable law, as amended from time to time.
SECT[ON 28. TRANSFERS
28.1 Prior written approval cf the C~ty shall be required before a Franchise is
assigned or transferred, either in whole or in part, or disposed of in any manner, directly or
indirectly, either by forced or involuntary sale, voluntary sale, merger, consolidation, or
otherwise; and before title thereto, either legal or equitable, or any right, interest, or property
therein, passes to or vests in any Person or Persons which approval shall not be
unreasonably withh~ld. A change in control of the Grantee or any Person that manages,
owns, or controls the Grantee is a transfer within the meaning of this section.
28.2 The proposed Transferee shall make a written request of the City for approval
of the transfer. The application shall provide complete information regarding the proposed
transfer, including (a) all documents embodying the transaction, (b) financing documents
indicating financial capability of Transferee and any other documents required under 47
C.F.R. §76.502(i), (c) documents identifying any person who will be responsible, through any
arrangement, for managing or controlling the cable system, (d) documents showing that the
proposed Transferee has the financial, technicdl, and I~gal ability to operate the cat~le
system after the transfer so as t~ safisfy all its obliyations under a Franchise without
adversely affecting subscribers, and (E) information regarding the length of time that a
Grantee has held the Franchise(s) involved in ~he transfer so that the City may make a
determination under the FCC anti-trafficking rules 4T r.F.R. §76.502. The proposed
37
~~~.~9~1NCS
Transferee shaii pay a transfer application fee to the City pursuant to the Enabling
Ordinance.
28.3 Upon receiving a transfer application, the City may require additional
information from the Grantee or the proposed Transferee as required to evaluate the
proposed transaction, and both shall cooperate to provide the information to the City. The
City shall be under no obligation to transfer the Franchise if the Grantee's acts or omissions
make the Franchise subject to revocation; nor shall the City be required to transfer the
Franchise unless it is assured that any past non-performance will be corrected and that the
proposed Transferee has the financial, legal, and technical ability necessary to operate the
cable system and is likely to comply with the Franchise in the future. Under no
circumstances shall the Franchise be transferred unless the proposed transferee agrees to
accept all the terms and conditions of the Franchise, agrees that the transfer does not
constitute a waiver of any rights by the City or indication that the prior Grantee is or has
been in compliance with the Franchise, and agrees to assume all the obligations and
liabilities of the prior Grantee. The City may conduct such public hearings as it deems
appropriate to consider the transfer request.
28.4 A"change in control," for purposes of Sections 28.1 through 28.3, includes a
change in actual working control in whatever manner exercised and shall be deemed to have
occurred whenever there is a disposition of twenty percent (20%) or more of any interest in a
Grantee or any person that, through any arrangement, manages or controls the Grantee.
28.5 A Grantee, upon transfer, shall within sixty (60) days thereafter file with the City
a copy of the deed, agreement, mortgage, lease, or other written instrument evidencing
transfer of ownership control or lease of the cable system, ce~tified and sworn to as correct
by the Grantee.
28.6 To the extent permitted by Federal law, any Transfer made without the
authorization required herein renders the Franchise null and void from the time of the
Transfer.
SECTION 29. iVIISCELLAPVEOUS
29.1 Time of Essence; Maintenance of Records of Essence. In determining whether
the Grantee has substantially complied with the Franchise, time is of essence. As a result,
the Grantee's failure to complete construction, extend service, or seek approval of transfers,
shall constitute substantial breaches of the Franchise. The maintenance of records and
provision of reports in accordance with the Franchise is also of essence to this agreement.
2g.2 Fffect of Preem tp ion; Federal and State Law. The Grantee must comply with
all applicable provisions of federal and state law, except to the extent those provisions are
lawfully superseded by a provision of the Enabling Ordinance. If the City's ability to enforce
any Franchise provision is finally and conclusively preempted, then the provision shall be
38
~~~~. ~.~9 ~ 1 N C S
deemed preempted but oniy to the extent and for the period the preemption is required by
law. If, as a result of a change in law or otherwise, the provision would again be
enforceable, it shall be enforceable and the Grantee will comply with all obligations
thereunder without the requirement of any action by the City.
29.3 Force Majeur'e. The Grantee shall not be deemed in default or non-compliance
with provisions of its Franchise where performance was rendered impossible by war, riots,
civil disturbance, hurricanes, floods, other natural catastrophes, or similar events beyond the
Grantee's control, and the Franchise shall not be revoked nor the Grantee penalized for
such non-compliance, provided the Grantee takes immediate and diligent steps to bring itself
back into compliance and to comply as soon as possible under the circumstances with its
Franchise without unduly endangering the health, safety, and integrity of the Grantee's
employees or property, or the health, safety, and integrity of the public, Streets, Public
Property, or private property.
29.4 Severabilitv. If any section, subsection, sentence, clause or phrase or word of
this ordinance is for any reason held to be unconstitutional by a court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council of the City of Petaluma hereby declares that it would have
passed and adopted this ordinance and each and all provisions thereof irrespective of the
fact that any one or more of said provisions be declared unconstitutional.
29.5 Written Notice. Notices shall be given as fellows:
To the City Manager: City of Petaluma, P.O. Box 61, Petaluma, California 94953
with copies to; City Clerk, City of Petaluma, P.O. Box 61, Petaluma,California
94953
To Grantee: Tele-Vue Systems, Inc./ dba Viacom Cable
592 Stoneridge Dr.
Pleasanton, California 94588
with copies to: Tele-Vue Systems, Inc./ dba Viacom Cable
1455 North Mc Dowell Blvd. Suite A
Petaluma, California 94954
Notice shall be deemed given three (3) business days after posting with pre-paid postage,
return receipt requesfed, first class mail.
29.6 This Franchise Agreement shall be subject to the provisions of the Enabling
Ordinance, and in the event of a conflict between this Franchise Agreement and the
Enabling Ordinance, unless expressly stated to the contrary, the provisions of the Franchise
shall apply.
29.7 Except as to matters which are governed solely by federal law, this Franchise
will be governed by and construed in accordance with the laws of the State of California.
39
~~~.19 81 N C S
29.8 The Grantee understands and agrees that the City may require the Grantee to
interconnect with any other Grantee, where the City determines the purposes of the Enabling
Ordinance will be served thereby. The City may determine who is to bear the costs of
interconnection, and the place and manner of interconnection if the interconnecting parties
cannot agree.
29.9 The City Clerk is hereby directed to publish/post this ordinance for the period
and in the manner required by the City Charter.
IN WITNESS WHEREOF, the parties hereto have executed this document the day, month
and year first above written.
THE I OF P~ALUIVIA GRANTE
~ By G~, ~ ~ ,
City M~nager
ame and Title
91-0787092
Taxpayer's FID No.
Not Applicable
ATTEST:
i y Clerk
~,r..--APPROV A O FORfVI:
City ttorney
COMP ETED A OVED:
epartment Head
APPROVED:
~,.~-~~--~ -
Ri k Nlana er
APPROVED:
Finance irector
Social Security No.
Petaluma Business License No.
40
~~~.19 81 N CS
INTRODUCED and ordered posted this 5th day of June , 1995.
ADOPTED this 19th day of June , 1995 by the following vote:
AYES: Shea, Maguire, Stompe, Hamilton, Vice Mayor Read
NOES: None
ABSENT: Mayor Hilligoss
ATf E ST:
i y Clerk
~
~ByOf
41
Ord. 1981 NCS
~~~~~0~ ~
Customer Service Standards
~~~:~ 19 81 N C S
Exhibi4 A
Customer Senrice Standards
1. NOTICES
1.1 The Grantee must provide to each subscriber: (1) prior to initiation of service
or at time of installation; (2) upon reconnection; (3) at least annually; and (4) at
any time upon request; written information on each of the following areas:
1.1.1 Products and services offered;
1.1.2 Prices and options for programming services and conditions of
subscription to programming and other services;
1.1.3 Installation and service maintenance policies, including the procedures
for scheduling a service call;
1.1.4 Instructions on how to use the cable service and the converter;
1.1.5 Instructions on how to interact cable and the subscriber's VCR;
1.1.6 A current channel card listing all the channels offered on the system.
1.1.7 Billing and complaint procedures, including the name or title of the
person responsible for resolving complaints;
1.1.8 Subscriber termination policies;
1.1.9 A notice of subscriber privacy rights as required by federal law;
1.1.10 Federal theft of service law;
1.1.11 The cable system's office hours and local or toll free phone number;
1.1.12 The address of the City office responsible for administering the
Franchise, along with a statement that the office can be called to
register a complaint if the subscriber is dissatisfied with the actions
taken by the Grantee;
1.1.13 The cable system's policies on deposits; and
1.1.14 The subscriber right to obtain a parental control device.
1
~~.~•1981NCS
1.2 Subscribers will be notified of any changes in rates, programming services or
channel positions as soon as possible through announcements on the cable
system and/or in writing. Notice must be given to subscribers a minimum of
thirty (30) days in advance of such changes if the change is within the control
of the Grantee. In addition, Grantee shall notify subscribers a minimum of thirty
(30) days in advance of any significant changes in the other information
required by Section 1.1 above.
1.3 Subscriber bills witl be clear, concise and understandable. Bills must be
itemized, with itemizations including, but not limited to, basic and premium
service charges and equipment charges. Bills will also clearly delineate all
activity during the billing period, including optional charges, rebates and
credits.
1.4 All Grantee promotional material shall clearly and accurately, as reasonably
possible, disclose the price and conditions under which the service will be
provided.
1.5 The Grantee shall maintain a public file containing all annual notices provided
to subscribers under these customer service standards for a period of two
years in accordance with federal law. A separate file will also be maintained,
containing a copy of promotional material submitted to subscribers.
2. LOCAL OPERATIONS
2.1 Any local office of the Grantee must be conveniently located and must be open
and staffed during normal business hours at least nine (9) hours per day on
weekdays (except legal and company holidays) and four (4) hours on
Saturdays for purposes of receiving payments, complaints, and inquiries;
receiving and replacing returned equipment; and modifying service, terminating
service, connecting service and scheduling service calls and similar matters.
The term "normal business hours" means those hours during which most
similar businesses in the community are open to serve customers. In any
event, "normal business hours" must include some evening and/or weekend
hours.
2.2 Telephone service.
2.2.1 A local or, toll-free telephone number must be staffed by trained Grantee
representatives to receive complaints and inquiries, to modify, terminate
and connect service, to schedule service calls and to address other
similar matters during normal business hours, no less than ten (10)
hours per day on weekdays (except legal and company ho{idays) and
eight (8) hours on Saturday.
2
~~~.19 ~8 ~ N C S
2.2.2 Toll-free telephone lines, either staffed or with answering capability,
providing at least emergency referrals, must be operational 24 hours a
day, seven days a week. Inquiries received after normal business hours
must be responded to by a trained Grantee representative no later than
the next business day.
2.2.3 Under normal operating conditions, ninety-seven percent (97%) of calls
to the Grantee, as measured on an annual basis, will not encounter a
busy signal or delay in reaching a customer service representative or
any automated answering equipment. The term "normal operating
conditions" means those service conditions which are within the control
of the Grantee. Those conditions which are not within the control of the
Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or
unusual weather conditions. Those conditions which are ordinarily
within the control of the Grantee include, but are not limited to, special
promotions, pay-per-view events rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the cable
system.
2.2.4 Under normal operating conditions, the telephone answer time by a
customer service representative, including wait time and time required to
transfer the call, shall not exceed thirty (30) seconds when the
connection is made. These standards shall be met no less than ninety
(90) percent of the time under normal operating conditions, measured on
a quarterly basis.
2.2.5 If automated answering equipment is used, the equipment will limit the
number of routine rings to four (4) or fewer. The rate of abandoned calls
on an annual basis shall not exceed four and one-half percent (4.5%).
3. INSTALLATIOhS, RESPONSE TO INQUIRIES, SERVIGE GALLS
3.1 Standard installations will be performed within seven (7) business days after an
order has been placed.
3.2 The Grantee shall provide installation and normal repair service at least during
all hours the local office is open. The Grantee shall take affirmative steps to
respond to events which may endanger the health, safety or property of
persons, and to outages whenever those events or outages occur.
3
~~~.~9~1NCS
3.3 Repair and maintenance for service interruptions or other repairs not requiring
on-premises (in the home) work must be completed within 24 hours of receipt
of the inquiry or complaint. The term "service interruption" means the loss of
picture or sound on one (1) or more cable channels. All other repairs or
maintenance, except for scheduled maintenance which does not affect service
or public health, safety or welfare, must be completed within 48 hours of receipt
of the inquiry or complaint.
3.4 For the purposes of scheduling installations, service calls, and other
instailation activities, the Grantee shall give the customer a four-hour block of
time for a service appointment Monday through Saturday. The Grantee may
schedule service calls and installation activities outside of normal business
hours for the express convenience of the customer. The Grantee may not
cancel an appointment with a customer after the close of business on the
business day prior to the scheduled appointment. If, at any time, an installer or
technician is running late, an attempt to contact the customer must be made
prior to the time of the appointment. The appointment must be rescheduled, as
necessary, at a time which is convenient for the customer.
3.5 The Grantee shall respond to all other inquiries (including billing inquiries), and
respond to written complaints within five business days of the receipt at the
local office of the Grantee of the inquiry or complaint.
3.6 With particular regard to needs of physically-disabled subscribers, on
subscriber request, the Grantee shall arrange for pick-up and/or replacement of
converters or other equipment at subscriber's address, or else a satisfactory
equivalent (such as provision of a postage-prepaid mailer).
4. PARTIGULAR RIGHTS REGARDING SERVICE ALTERATION OR DISCONNECTION
4.1 The Grantee shall comply with all applicable federal or state laws or
regulations if it sends or provides to subscribers unsolicited goods or services,
or changes or restructures the way goods and services are being provided. If
federal and state laws impose different requirements, the Grantee shall comply
with the most stringent requirements unless state requirements have been
preempted by federal legislation.
Current laws and regulations that are applicable include: Cal. Civ. Code
Section 1584.5 and 1716 (West 1994), 16 C.F.R. Section 425, and 47 C.F.R.
Section 76.309. Grantee shall comply with these laws and regulations as they
are now in effect or as they may be changed in the future.
4
~~~.~98~~CS
4.2 In addition to other notices required by the Franchise, before it alters services,
or the manner in which services are provided, the Grantee must provide a
reasonably simple and clear notice explaining the substance and full effect of
the alteration, including the effect on rates and of service options.
4.3 To the extent not precluded by the FCC's rate regulations, the Grantee may not
levy a surcharge or any other fee (whether nominated an upgrade or
downgrade charge, or otherwise) which has the effect of making the price of
receiving basic service alone more expensive than the price of basic service
when coupled with another tier of service. However, a downgrade charge may
be levied in the case where a promotion requires a subscriber to take a service
for a set period of time in order to qualify for the promotion. In such cases the
subscriber shall be notified in the promofional materials that a downgrade
charge will result if the subscriber downgrades before the end of the
designated period and the amount of the downgrade charge.
4.4 To the extent not precluded by the FCC's rate regulations, the Grantee shall
not levy a disconnect fee except in documentable cases of repeated subscriber
abuse of special promotional offers which require subscriber to maintain
service for a defined periad of time in order to qualify for the special offer.
4.5 No charge shall be made for the delivery of any service after the day the
Grantee is notified orally or in writing that a subscriber wishes to disconnect the
service. The Grantee may continue to levy a pro-rata equipment charge on
any equipment the subscriber is required to return to it, if the equipment is not
returned within three business days of the date the subscriber notifies the
Grantee it intends to disconnect service.
~' 4.6 Grantee may not levy a charge for re.connection where the subscribe~ is
improper{y disconnected. Reconnection charges may not be higher than ihe
installation charge being paid at the time of reconnection by similarly situated
new subscribers.
5
~~~~~1981NCS
5. RIGHT TO REFUNDS
5.1 Except for planned outages where subscribers are given at least twenty-four
(24) hours advance notice and cases in which the outage occurs during service
conditions which are not within the control of the Grantee, the Grantee shall,
upon request, credit the charge for the affected senrice tier or 1/30th of the
charge for any service sold on a per-channel basis. For planned outages,
except at cutover, refunds shall be required for any one hour interruption
during the period 7:00 p.m. - 11:00 p.m. or for any 12 hour interruption during
any 24-hour period. The Grantee may be granted a waiver to this section upon
demonsirated need. The charge for any program sold on a per-program basis
shall be refunded in full at any time that the Grantee fails to deliver the program
in substantially the form promised.
5.1.1 Any subscriber who calls the Grantee. to request a credit and whose
service was impaired as described in Section 5.1, or any subscriber who
calls the Grantee to report or complain about impaired service as
delineated in Section 5.1 shall receive a credit. Credits for service will
be issued no later than the customer's next billing cycle following the
determination that a credit is warranted.
5.2 If any subscriber terminates service prior to the end of a prepaid period and
provides Grantee with forwarding address, a pro-rata portion of any prepaid
service fee, using the actual number of days in the month as a basis, shall be
refunded by the Grantee. However, in the case of a subscriber who has in their
possession Grantee equipment, any refund or prepaid period or balance due,
shall be computed at the time equipment is returned in satisfactory condition.
5.3 Upon termination, all refunds shall be made promptly, but not later than either:
(a) the customer's next billing cycle following resolution of the request or thirty
(30) days, whichever is earlier, or (b) the return of the equipment supplied by
the Grantee if service is terminated.
6. DEPOSITS
6.1 The Grantee may require a reasonable, non-discriminatory deposit on
equipment provided to subscribers. Deposits shall be placed in an interest-
bearing account. On termination of service (and except where the subscriber
owes the Grantee money or has damaged or failed to return the equipment) the
Grantee shall return the deposit, plus interest earned to the date of repayment
to the subscriber within the earlier of thirty (30) days or the date which had
been scheduled for the subscriber's next billing cycle.
6
~~~• 19 8~ N C S
7. PROCEDURE FOR DISCONNECTION FOR CAUSE
7.1 The Grantee may disconnect for cause:
7.1.1 If at least thirty (30) days have elapsed from the due date of the bill; and
7.1.2 If the Grantee has provided at least ten (10) days written notice to the
affected subscriber prior to disconnection, specifying the effective date
after which cable services are subject to disconnection; and
7.1.3 If there is no pending inquiry regarding bill to which the Grantee has not
responded in writing; or
7.1.4 At any time and without notice if the Grantee in good faith determines
subscriber has tampered with or abused Grantee's equipment, or is or
may be engaged in theft of cable service or has prevented Grantee
access to subscribers premises to repair a signal leakage problem; or
7.1.5 If subscriber has caused signal leakage in excess of federal limits.
7.2 The Grantee shall reconnect a subscriber on request in accordance with the
Franchise, after the subscriber pays amounts due plus a reconnect charge to
the Grantee and ceases practices which prompted disconnection for cause.
8. PAYMENT/SERVICE CHARGES FOR LATE PAYIVIEiVTS
8.1 The Grantee may not levy unreasonable charges for late payments.
8.2 No late payment fee may be imposed for payments until fifteen (15) days after
commencement of the billing period.
9. COMPLAINT RESOLUTION
9.1 The Grantee shall establish clear procedures for resolving complaints,
involving at least the following elements:
9.1 1 A simple procedure for making complaints orally or in writing, consistent
with these standards, and identification of a person responsible for
resolving complaints.
9.1.2 Notice to subscribers that they may file any complaint with the City if not
resolved to the subscriber's satisfaction after thirty (30) days, and that
the City may recommend a resolution.
7
~~~419~~NC5
9.1.3 The Grantee must provide its initial response to a written complaint
within five (5) days of its receipt at the Grantee's local or regional office.
9.2 Nothing in this agreement shall limit the rights of a subscriber to initiate a court
action to enforce these standards. This paragraph shall not be interpreted to
limit the rights of the City to enforce the Customer Service Standards.
10. PRIVACY
10.1 The Grantee shall at all times comply with the privacy provisions of the Cable
Act.
10.2 IVo penalties or extra charges may be invoked for a subscriber's failure to grant
permission under the privacy provision of the Cable Act.
8
~~~~.~981NCS