HomeMy WebLinkAboutAS1-City Attorney
.
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
.
Date: November 21,1996
OBJGJNA/.
Subject: Resolution of the City of San Bernardino
Stating the City's Intention to Renew the
Grant of a Non-Exclusive Cable Franchise
to TCI Cablevision, Inc.
From: James F. Penman, City Attorney
Dept: City Attorney
Synopsis of Previous Council action:
Ordinance No. MC-59, dated June 3,1981, granted TCI Cablevision of California, Inc.'s predecessor-in-interest a
non-exclusive cable franchise in the City of San Bernardino, with a term of fifteen (15) years, in accordance with San
Bernardino Municipal Code Section 14.08.
Resolution No. 96-312a, October 2,1996, authorized the Mayor to sign a Tolling Agreement between TCI
Cablevision of California, Inc. and the City of San Bernardino, to extend the time for either party to exercise their
rights under current federal law relating to cable franchising, in lieu of the cable franchise agreement.
Recommended motion:
Adopt resolution.
'~i~
Contact person:
Stacey R. Aldstadt
Phone:
5355
Supporting data attached: Staff ReJ;lort: Cable Franchise A\!reement
FUNDING REQUIREMENTS:
Amount: N/ A
Source: (Acct. No.) N/A
(Acct. Description) N/A
Finance:
Council Notes:
75-0262
1,),/ :;.)q ro
Agenda Item No.-.AS /
Res 96- 363
TCtCable.rea
.
STAFF REPORT
Council Meeting Date: December 2.1996
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
Stacey R. Aldstadt, Deputy City Attorney
November 21,1996
Resolution of the City of San Bernardino Stating the City's
Intention to Renew the Grant of a Non-Exclusive Cable
Franchise to TCI Cablevision of California, Inc.
TCI Cablevision of California, Inc. is the current holder of a cable franchise within the City
of San Bernardino. TCI has approximately 200 cable subscribers in the City of San Bernardino.
TCl's cable franchise expired on or about October 8,1996. By way ofa Tolling Agreement entered
into between TCI and the City of San Bernardino, the franchise has been extended to at least
December 31, 1996 and possible later, if a pending resolution extending the Tolling Agreement is
approved.
In accordance with San Bernardino Municipal Code Chapter 14.08 and applicable provisions
of the Cable Communications Policy Act of 1984, TCI Cablevision of California, Inc. did timely
request a renewal of the original grant of cable franchise.
Section 14.08.120 of the San Bernardino Municipal Code provides that the franchise granted
by the Council under Chapter 14.08 shall be for a term of fifteen years from the date of its
acceptance by the grantee. During the fourteenth year of the franchise, the grantee may apply to the
Council for a renewal of the franchise. Permission to renew for additional terms of ten years shall
not be unreasonably withheld if the grantee has substantially complied with the terms and conditions
of the existing franchise. [Emphasis added.]
Staff affirms that TCI Cablevision of California, Inc. has substantially complied with the
terms and conditions of the existing franchise.
Staff and TCI have completed negotiating the written terms of a "Cable Franchise Agreement
between the City of San Bernardino and TCI Cablevision of California, Inc." A copy of that
proposed Agreement is attached hereto as Exhibit "A".
In accordance with San Bernardino Municipal Code Section 14.08.240, relating to actions
taken on franchise applications, the Council must first pass a resolution of intention to renew its
granting of franchise. If the Council passes the resolution of intention, the City Clerk must then post
notice of a public hearing to permit any person having an interest in the renewal of grant of franchise
or objecting to the renewal an opportunity to be heard. A public hearing must then follow.
SRNAO[Slaff.Rpl]
I
Staff recommends that the Mayor and Common Council state its intention to consider the
renewal of the non-exclusive grant of a franchise to construct, operate and maintain a cable television
system within the City of San Bernardino to TCI Cablevision of California, Inc, pursuant to and
subject to all the terms and conditions of that certain agreement entitled "Cable Franchise Agreement
between The City of San Bernardino and TCI Cablevision of California, Inc."
Staff further recommends that the Mayor and Common Council set a public hearing for
December 16, 1996, at 10:00 a.m., in the Chambers of the San Bernardino Common Council, at
which time any person having an interest in the renewal of grant of the franchise or objecting to the
renewal of grant of the franchise may file written protests and appear before the Common Council
and be heard.
Staff further recommends that the Mayor and Common Council direct the City Clerk to
publish the attached resolution at least once within ten (IO) days of its passage in a newspaper of
general circulation within the City of San Bernardino.
tci2stff.rpt
2
.
.
.
"
'.
CABLE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
AND
TCI CABLEVISION OF CALIFORNIA, INC.
EFFECTIVE
~
~
.199....::..
.
.
.
FRANCHISE AGREEMENT
This Franchise Agreement ("Franchise') is between the City of San Bernardino, hereinafter
referred to as "Franchising Authority," and TCI Cablevision of California, Inc., hereiniifter'..
referred to as "Grantee."
The Franchising Authority, having determined that the financial, legal, and technical ability of
the Grantee is reasonably sufficient to provide services, facilities, and equipment necessary to
meet the future cable-related needs of the community, desires to enter into this Franchise with
Grantee for the construction and operation of a Cable System on the terms set forth herein.
SECTION 1
Definition of Terms
1.1 Terms. For the'f!urpose of this Franchise, the following terms., phrases, words and
abbreviations shall have the meanings ascribed to them below. When not inconsistent with the
context, words used in the present tense include the future tense, words in the plural number
include the singular number, and words in the singular number include the plural number:
A. "Basic Cable" is the lowest priced tier of Cable Service that iJ'lcludes the
retransmission of local broadcast television signals.
B. "Cable Act" means the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996, as amended.
C. "Cable Service" means the one-way transmission to Subscribers of video
programming or other programming service, and Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming
service.
D. "Cable System" means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed to
provide Cable Service to Subscribers.
E. "FCC" means Federal Communications Commission, or successor governmental
entity thereto.
F. "Franchise" shall mean the initial authorization, or renewal thereof, issued by the
Franchising Authority, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, or otherwise, which authorizes constri:Jction and
operation of the Cable System for the purpose of offering Cable Service to Subscribers.
G. "Franchising Authority" means the City of San Bernardino or the lawful
successor, transferee, or assignee thereof.
H. "Grantee" means TCI Cablevision of California, Inc. or the lawful successor,
transferee, or assignee thereof.
1
.
I. "Gross Revenues" mean any revenue received by the Grantee from the
operation of the Cable System to provide Cable Services in the Service Area, provided,
however, that such phrase shall not include any fees or taxes on Cable Service which
are imposed directly or indirectly on any Subscriber thereof by any governmt;lntal 'unit or
agency, and which are collected by the Grantee on behalf of such governmental unit or
agency.
J. "Person" means an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
.
K. "Public Way" shall mean the surface of, and the space above and below, any
public street, highway, freeway, bridge, land path, alley. court. boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but
not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated.
for compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Franchising Authority in the Service Area which
shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose
of installing, operating, repairing, and maintaining the Cable System. Public Way shall
also mean any easement now or hereafter held by the Franchising Authority within the
Service Area for the purpose of public travel, or for utility or public service use dedicated
for compatible uses, and shall include other easements or rights-of-way as shall within
their proper use and meaning entitle the Franchising Authority and the Grantee to the
use thereof for the purposes of installing and operating the Grantee's Cable System
over poles. wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary and
pertinent to the Cable System.
L. "Service Area" means the present municipal boundaries of the Franchising
Authority, and shall include any additions thereto by annexation or other legal means
that are specifically designated by the Franchising Authority as areas to be served by
the Grantee on such terms and conditions as may be established by the parties.
M. "Subscriber" means a Person who lawfully receives Cable Services of the Cable
System with the Grantee's express permission.
SECTION 2
Grant of Franchise
2.1 Grant. The Franchising Authority hereby grants to the Grantee a nonexclusive
Franchise which authorizes the Grantee to construct and operate a Cable System and offer
Cable Service along, among, upon, across, above, ov.er, under, or in any manner connected
with Public Ways within the Service Area and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public
Ways and all extensions thereof and additions thereto, such poles, wires, cables, conductors,
ducts, conduits, vaults. manholes, pedestals, amplifiers, appliances, attachments, and other
related property or equipment as may be necessary or appurtenant to the Cable System.
.
2.2 Term. The Franchise granted hereunder shall be for an initial term of 10 years
commencing on the effective date of the Franchise as set forth below, unless otherwise lawfully
terminated in accordance with the terms of this Franchise.
2
.
.
.
2.3 Franchise Review Session. On or about the seventh anniversary date of the effective
date of this Franchise, the Franchising Authority may schedule a public review session for the
purpose of reviewing the Grantee's performance under the terms of the Franchise; the quality
of service provided to customers; and identifying the cable related needs and interests 0/1l1e
community. Grantee shall, upon the Franchising Authority's request, submit a written report
detailing the comments provided at the review session and any actions to be taken by the
Grantee in response to said comments. If the Franchising Authority believes the Grantee to be
in default or non-compliance with the Franchise, it shall provide written notice and the
opportunity to cure as provided for in Section 7.
SECTION 3
Standards of Service
3.1 Conditions of Street Occuoancv. All transmission and distribution structures, poles,
other lines, and equipment installed or erected by the Grantee pursuant to the terms hereof
shall be located so as to cause a minimum of interference with the proper use of Public Ways
and with the rights and reasonable convenience of property owners who own property that
adjoins any of such Public Ways.
3.2 Restoration of Public Ways. If during the course of the Grantee's construction,
operation, or maintenance of the Cable System there occurs a disturbance of any Public Way
by the Grantee, the Grantee shall, at Grantee's sole expense, replace and restore such Public
Way to a condition reasonably comparable to the condition of the Public Way existing
immediately prior to such disturbance. Grantee shall comply with all applicable rules,
regulations, resolutions and ordinances regarding general use of the Franchising Authority's
Public Ways.
3.3 Relocation at Request of FranchisinQ Authoritv. Within six (6) weeks of notice to
relocate, the Grantee shall, at its own expense, protect, support, temporarily disconnect,
relocate in the Public Way, or remove from the Public Way, any property of the Grantee when
lawfully required by the Franchising Authority by reason of traffic conditions, public safety, street
abandonment, freeway and street construction, change or establishment of street grade,
installation of sewers, drains, gas or water pipes, or any other type of structures or
improvements by the Franchising Authority; but, the Grantee shall in all cases have the right of
abandonment of its property. If public funds are available to any Person using Public Ways for
the purpose of defraying the cost of any of the foregoing, the Franchising Authority shall make
application for such funds on behalf of the Grantee.
3.4 Relocation at Request of Third Party. The Grantee shall, on the request of any Person
holding a building moving permit issued by the Franchising Authority, temporarily rais.e or lower
its wires to permit the moving of such building, provided: (a) the expense of such temporary
raising or lowering of wires is paid by said Person, including, if required by the Grantee, making
such payment in advance; and (b) the Grantee is given not less than 15 business days advance
written notice to arrange for such temporary wire changes.
3
. 3.5 Trimmina of Trees and Shrubberv. For reasons of safety, the Grantee shall have the
authority to trim trees or other natural growth overhanging any of its Cable System in the
Service Area so as to prevent branches from coming in contact with the Grantee's wires,
cables, or other equipment. The Grantee shall reasonably compensate the Franchjsing , , ,
Authority for any damages caused by such trimming, or shall, in its sole discretion and at its
own cost and expense, reasonably replace all trees or shrubs damaged as a result of any.
construction of the Cable System undertaken by the Grantee. Such replacement shall satisfy
any and all obligations the Grantee may have to the Franchising Authority pursuant to the terms
of this Section.
3.6 Safetv Reauirements. Construction, installation, and maintenance of the Cable System
shall be performed in an orderly and workmanlike manner. All such work shall be performed in
substantial accordance with applicable FCC or other federal, state, and local regulations and
the National Electric Safety Code. The Cable System shall not unreasonably endanger or
interfere with the safetyoof Persons or property in the Service Area. .
.
3.7 Aerial and Underaround Construction. In those areas of the Service Area where all of
the transmission or distribution facilities of the respective public utilities providing telephone
communications and electric services are underground, the Grantee likewise shall construct,
operate, and maintain all of its transmission and distribution facilities underground; provided
that such facilities are actually capable of receiving the Grantee's cable and other equipment
without technical degradation of the Cable System's signal quality. In those areas of the
Service Area where the transmission or distribution facilities of the respective public utilities
providing telephone communications and electric services are both aerial and underground, the
Grantee shall have the sole discretion, subject to local building codes and ordinances of
general applicability, to construct, operate, and maintain all of its transmission and distribution
facilities, or any part thereof, aerially or underground. Nothing contained in this Section shall
require the Grantee to construct, operate, and maintain underground any ground-mounted
appurtenances such as Subscriber taps, line extenders, system passive devices (splitters,
directional couplers), amplifiers, power supplies, pedestals or other related equipment.
Notwithstanding anything to the contrary contained in this Section, in the event that all of the
transmission or distribution facilities of the respective public utilities providing telephone
communications and electric services are placed underground after the effective date of this
Franchise, the Grantee shall only be required to construct, operate, and maintain all of its
transmission and distribution facilities underground if it is given reasonable notice and access to
the public utilities' facilities at the time that such are placed underground.
3.8 Reauired Extensions of the Cable Svstem. The Cable Syster[1, as constructed as of the
date of the passage and final adoption of this Franchise, substantially complies with the
materiai provisions hereof. Whenever the Grantee shall receive a request for Cable Service
from at least 15 residences within 1320 cable-bearing strand feet (one-quarter cabler mile) of its
trunk or distribution cable, it shall extend its Cable System to such Subscribers at no cost to
said Subscribers for Cable System extension, other than the standard installation fee charged
to all Subscribers, provided that such extension is technically feasible, and if it will not adversely
affect the operation, financial condition, or market development of the Cable System, or as
provided for under Section 3.9 of this Franchise.
.
4
.
.
.
3.9 Subscriber Charaes for Extensions of the Cable Svstem. No Subscriber shall be
refused Cable Service arbitrarily. However, for unusual circumstances, such as a Subscriber's
request to locate hislher cable drop underground, existence of more than 150 feet of distance
from distribution cable to connection of service to Subscriber, or a density of less tl:1an 15 .
residences per 1320 cable-bearing strand feet of trunk or distribution cable, Cable Service may
be made available on the basis of a capital contribution in aid of construction, including cost of
material, labor, and easements. For the purpose of determining the amount of capital
contribution in aid of construction to be borne by the Grantee and Subscribers in the area in
which the Cable System may be expanded, the Grantee will contribute an amount equal to the
construction and other costs per mile, muitiplied by a fraction whose numerator equals the
actual number of residences per 1320 cable-bearing strand feet of its trunk or distribution cable,
and whose denominator equals 15 residences. Subscribers who request Cable Service
hereunder will bear the remainder of the construction and other costs on a pro rata basis. The
Grantee may require that the payment of the capital contribution in aid of construction borne by
such potential SubscriBers be paid in advance.
3.10 Service to Public Buildinas. The Grantee shall, upon request, provide without charge,
one outlet of Basic Service to those Franchising Authority offices, fire stations, pOlice stations,
and public school buildings that are passed by its Cable System.
3.11 Emeraencv Use. In the case of any emergency or disaster, the Grantee shall, upon
request of the Franchising Authority, make available its facilities for the Franchising Authority to
provide emergency information and instructions during the emergency or disaster period. The
Franchising Authority shall hold the Grantee, its employees, officers and assigns harmless from
any claims arising out of the emergency use of its facilities by the Franchising Authority,
including, but not limited to, reasonable attorneys' fees and costs.
3.12 Customer Service Standards.
A. System Office Hours and Telephone Availability.
1. The Grantee will maintain a local, toll-free or collect call telephone access
line which will be available to Subscribers 24 hours a day, seven days a week.
a. Trained representatives of the Grantee will be available to
respond to Subscriber telephone inquiries during Normal Business Hours, as defined herein.
b. After Normal Business Hours, an access.:!ine will be available to
be answered by a service or an automated response system, including a phone answering
system. Inquiries received after Normal Business Hours must be responded to by a trained
representative of the Grantee on the next business day. .
2. Under Normal Operating Conditions, each of the following three
standards will be met no less than 90 percent of the time, as measured by the Grantee on a
quarterly basis:
a. Telephone answer time by a customer representative, including
wait time, will not exceed 30 seconds from when the connection is made.
seconds.
b. If the call needs to be transferred, transfer time will not exceed 30
5
.
.
.
c.
Subscribers will receive a busy signal less than 3 percent of the
time.
"
Grantee shall not be required to acquire equipment or perform surveys to measure'compliance
with the telephone answering standards set forth above unless an historical record of
complaints indicates a clear failure to comply with such standards.
3. Bill payment locations will be open at least during Normal Business Hours
and will be conveniently located.
B. Installations, Outages and Service Calls.
1. Under Normal Operating Conditions, each of the following three
standards will be met Ililless than 95 percent of the time, as measured by the Grantee on a
quarterly basis: '.
a. Standard installations will be performed within seven business
days after an order has been placed. 'Standard' installations are those that ani located up to
150 feet from the existing Cable System.
b. Excluding conditions beyond its control, the Grantee will begin
working on Service Interruptions, as defined herein, promptly and in no event later than 24
hours after the interruption becomes known to the Grantee. The Grantee will begin actions to
correct other service problems the next business day after notification of the service problem.
c. The Grantee will provide "appointment window" alternatives for
installations, service calls, and other installation activities, which will be either a specific time or,
at maximum, a four-hour time block during Normal Business Hours. This requirement does not
preclude the Grantee from offering additional alternative appointment windows to the
Subscriber which are longer than four hours, as long as at least one four-hour maximum
appointment window is offered to the Subscriber within the prescribed time limit.
2. The Grantee shall not cancel an appointment with a Subscriber after the
close of business on the business day prior to the scheduled appointment. The appointment
may be rescheduled as necessary, but shall not be canceled unless by Subscriber request.
3. If a representative of the Grantee is running late for an appointment with
a Subscriber and will not be able to keep the appointment as schedulM. the Subscriber will be
contacted. The appointment will be rescheduled, as necessary. at a time which is convenient
for the Subscriber. ' '.
C. Communications between the Grantee and Subscribers.
1. Notifications to Subscribers:
a. The Grantee shall provide written information on each of the
following areas at the time of installation of Cable Service, at least annually to all Subscribers,
and at any time upon request:
6
I
.
.
.
(i)
products and Cable Service offered;
(ii) prices and options for Cable Service and conditions of
subscription; , "
(iii) installation and service maintenance policies;
(iv) instructions on how to use the Cable Service;
(v) channel positions of programming carried on the Cable
System; and
(vi) billing and complaint procedures, including the address
and telephone number of the Franchising Authority's cable office.
.".
b. 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 in writing. Notice will be given to Subscribers and the Franchising Authority a
minimum of 30 days in advance of such changes if the change is within the conirol of the
Grantee. In addition, the Grantee shall notify Subscribers 30 days in advan.ce of any significant
changes in the other information required by the preceding paragraph.
2. Billing:
a. Bills will be clear, concise and understandable. Bills will be fully
itemized, with itemizations including, but not limited to, Basic Cable, premium service and
equipment charges. Bills will also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
b. In case of a billing dispute, the Grantee will respond to a written
complaint from a Subscriber within 30 days from receipt of the complaint.
3. Refund checks will be issued promptly, but no later than either (i) the
Subscriber's next billing cycle following resolution of the request or 30 days, whichever is
earlier, or (ii) the return of the equipment supplied by the Grantee if Cable Service is
terminated.
4. Credits for service will be issued no later than tlJe Subscriber's next billing
cycle following the determination that a credit is warranted.
D. Definitions: For purposes of this Section, the following definitions shaH apply:
1. Normal Business Hours - The term 'Normal Business Hours" means
those hours during which most similar businesses in the community are open to serve
Subscribers. In all cases, 'Normal Business Hours" shall include some evening hours at least
one night per week and/or some weekend hours. The Grantee will notify its Subscribers and
the Franchising Authority of its Normal Business Hours.
7
.
.
.
2. Normal Operating Conditions - 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,
civic disturbances, power outages, telephone network outages, cable network outag.es, 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.
3. Service Interruption - The term "Service Interruption" means the loss of
picture or sound on one or more channels.
3.13 Technical Standards. Grantee shall be responsible for insuring that the Cable System is
designed, installed and operated in a manner that fully complies with the technical and .
performance requiremlKlts of the FCC. Upon request, Grantee shall provide the Franchising
Authority with a copy of any technical test results and/or other performance records required by
the FCC.
SECTION 4
Public, Education and Governmental Access Proaramlllina
4.1 Initial PEG Proarammina Channel. Grantee shall dedicate one full-time activated
channel for non-commercial public, educational and governmental access ["PEG"] programming
during the term of this Franchise.
4.2 Additional PEG Proarammina Channels. Grantee shall make an additional full-time
channel for PEG programming available to the Franchising Authority when the initial PEG
channel is used for original, non-character generated PEG programming fifty percent (50%) of
the time between 10:00 a.m. and 10:00 p.m. during any consecutive ten week period. Upon
meeting this condition, the Franchising Authority shall give Grantee 180 days notice of the need
to activate the additional PEG channel. Upon both the initial and the second PEG channel
meeting this utilization condition, the Franchising Authority may give the Grantee 180 days
notice of the need to activate a third PEG channel. The programming on anyone PEG channel
shall not be repetitive to that on any other PEG channel.
4.3 Grantee Use of PEG Proarammina Channel(sl. Grantee may request permission to
utilize channel(s) dedicated for PEG programming for other purposes if such channels are not
being used for public, educational or governmental access programming, such use is not
reasonably foreseeable and other channel capacity is not available for the use desired by the
Grantee. The Franchising Authority, in its sole discretion, may approve such use eith~r on a
temporary or permanent basis, subject to such conditions as may be imposed, if it firtds that
such use will not be contrary to the public interest.
4.4 Consultina and Technical Assistance. Grantee shall provide to the Franchising Authority,
at Grantee's expense, consulting and technical assistance for PEG programming activities as
reasonably requested by the Franchising Authority.
8
.
.
.
SECTION 5
Reaulatlon bv the Franchislna Authority
5.1
Franchise Fee.
. .
A. The Grantee shall pay to the Franchising Authority a franchise fee equal to. five
percent of Gross Revenues received by the Grantee from the operation of the Cable System to
provide Cable Services in the Service Area. Any tax, fee, or assessment of any kind imposed
by any governmental entity upon a cable operator or cable subscriber, or both, solely because
of their status as such, or which is unduly discriminatory against cable operators or Subscribers,
shall be a credit against such franchise fee. Such franchise fee payment shall be payable
annually, within ninety (90) days of the close of the preceding calendar year, unless otherwise
agreed to in writing by the Franchising Authority and the Grantee. Each payment shall be
accompanied by a brief report from a representative of the Grantee showing the basis for the
computation. ""'"
B. Limitation on Franchise Fee Actions. The period of limitation for recovery of any
franchise fee payable hereunder shall be five years from the date on which payment by the
Grantee is due. Unless the Franchising Authority initiates a lawsuit for recoverY of such
franchise fees in a court of competent jurisdiction, within five years from and after such
payment due date, such recovery shall be barred and the Franchising Authority shall be
estopped from asserting any claims whatsoever against the Grantee relating to any such
alleged deficiencies.
5.2 Rates and Charaes. The Franchising Authority may regulate rates for Cable Service as
expressly permitted by applicable law.
5.3 Renewal of Franchise. The Franchising Authority and the Grantee agree that any
proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's
Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act,
as amended, unless the procedures and substantive protections set forth therein shall be
deemed to be preempted and superseded by the provisions of any subsequent provision of
federal or state law.
In addition to the procedures set forth in said Section 626(a), the Franchising Authority agrees
to notify the Grantee of all of its assessments regarding the identity of future cable-related
community needs and interests, as well as the past performance of the Grantee under the then
current Franchise term. The Franchising Authority further agrees thai such preliminary
assessments shall be provided to the Grantee promptly so that the Grantee has adequate time
to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the
Franchise prior to expiration of its term. Notwithstanding anything to the contrary se~forth in
this Section, the Grantee and the Franchising Authority agree that at any time during the term
of the then current Franchise, while affording the public appropriate notice and opportunity to
comment, the Franchising Authority and the Grantee may agree to undertake and finalize
informal negotiations regarding renewal thereof. The Grantee and the Franchising Authority
consider the terms set forth in this Section to be consistent with the express provisions of
Section 626 of the Cable Act.
9
.
.
.
5.4 Conditions of Sale. If a renewal or extension of the Grantee's Franchise is denied or the
Franchise is lawfully terminated, and the Franchising Authority either lawfully acquires
ownership of the Cable System or by its actions lawfully effects a transfer of ownership of the
Cable System to another party, any such acquisition or transfer shall be at the pric~ getermined
pursuant to the provisions set forth in Section 627 of the Cable Act.
The Grantee and the Franchising Authority agree that in the case of a final determination of a
lawful revocation of the Franchise, at the Grantee's request, which shall be made in its sole
discretion, the Grantee shall be given a reasonable opportunity to effectuate a transfer of its
Cable System to a qualified third party. The Franchising Authority further agrees that during
such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms
of its prior Franchise; however, in no event shall such authorization exceed a period of time
greater than six months from the effective date of such revocation. If, at the end of that time,
the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System .
which is reasonably acc;eptable to the Franchising Authority, the Grantee and the Franchising
Authority may avail themselves of any rights they may have pursuant"to federal or state law; it
being further agreed that the Grantee's continued operation of its Cable System during the six
month period shall not be deemed to be a waiver, nor an extinguishment of, any.rights of either
the Franchising Authority or the Grantee.
5.5 Transfer of Franchise. The Grantee's right, title, or interest in the Franchise shall not be
sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling,
controlled by, or under common control with the Grantee, without the prior consent of the
Franchising Authority, such consent not to be unreasonably withheld. No such consent shall be
required, however, for a transfer in trust, by mortgage, by other hypothecation, or by
assignment of any rights, title, or interest of the Grantee in the Franchise or Cable System in
order to secure indebtedness. Within 30 days of receiving the request for transfer, the
Franchising Authority shall, in accordance with FCC rules and regulations, notify the Grantee in
writing of the information it requires to determine the legal, financial and technical qualifications
of the transferee. If the Franchising Authority has not taken action on the Grantee's request for
transfer within 120 days after receiving such requested information, consent by the Franchising
Authority shall be deemed given.
5.6 Books and Records. The Grantee agrees that the Franchising Authority, upon a thirty
(30) day notice to Grantee, may review such of its books and records at the Grantee's local
business office, during normal business hours and on a non disruptive basis, as is reasonably
necessary to monitor compliance with the terms hereof. Such records shall include, but shall
not be limited to, any public records required to be kept by the Grante_e pursuant to the rules
and regulations of the FCC. Notwithstanding anything to the contrary-set forth herein, the
Grantee shall not be required to disclose information which it reasonably deer/)s to bEt
proprietary or confidential in nature. The Franchising Authority agrees to treat any information
disclosed by the Grantee as confidential and only to disclose it to employees, representatives,
and agents thereof that have a need to know, or in order to enforce the provisions hereof. The
Grantee shall not be required to provide Subscriber information in violation of Section 631 of the
Cable Act.
10
.
.
.
SECTION 6
Insurance. Indemnification. Bonds and Other Surety
6.1 Insurance Reauirements. The Grantee shall maintain in full force and effec;t, at its,own
cost and expense, during the term of the Franchise, Commercial General Liability lrisurance in
the amount of $1,000,000 combined single limit for bodily injury and property damage. Such
insurance shall (a) name the Franchising Authority, its appointed and elected officials, and its
employees as additional insureds; and (b) be primary with respect to insurance or self-
insurance programs maintained by the City. Such insurance shall be non-cancelable except
upon thirty (30) days prior written notice to the Franchising Authority.
6.2 Indemnification. The Grantee agrees to indemnify, save and hold harmless, and defend
the Franchising Authority, its officers, boards and employees, from and against any liability for
damages and for any liability or claims resulting from property damage or bodily injury
(including accidental death), which arise out of the Grantee's construction, operation, or
maintenance of its Cable System, including, but not limited to, reasonable attorney's fees and
costs, provided that the Franchising Authority shall give the Grantee written notice of its
obligation to indemnify the Franchising Authority as promptly as possible after receipt of a claim
or action pursuant to this Section. If the Franchising Authority determines that ii is necessary
for it to employ separate counsel, the costs for such separate counsel shall ,be the responsibility
of the Franchising Authority.
6.3 Bonds and Other Surety. Except as expressly provided herein, the Grantee shall not be
required to obtain or maintain bonds or other surety as a condition of being awarded the
Franchise or continuing its existence. The Franchising Authority acknowledges that the legal,
financial, and technical qualifications of the Grantee are sufficient for compliance with the terms
of the Franchise and the enforcement thereof. The Grantee and the Franchising Authority
recognize that the costs associated with bonds and other surety may ultimately be borne by the
Subscribers in the form of increased rates for Cable Service. In order to minimize such costs,
the Franchising Authority agrees to require bonds and other surety only in such amounts and
during such times as there is a reasonably demonstrated need therefor. The Franchising
Authority agrees that in no event, however, shall it require a bond or other related surety in an
aggregate amount greater than $10,000, conditioned upon the substantial performance of the
material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will
be required. In the event that a bond or other surety is required in the future, the Franchising
Authority agrees to give the Grantee at least 60 days prior written notice thereof stating the
exact reason for the requirement. Such reason must demonstrate a change in the Grantee's
legal, financial, or technical qualifications which would materially prohibit or impair its ability to
comply with the terms of the Franchise or afford compliance therewith,
SECTION 7
Enforcement and Termination of Franchise
'.
7,1 Notice of Violation. In the event that the Franchising Authority believes that the Grantee
has not complied with the terms of the Franchise, it shall notify the Grantee in writing of the
exact nature of the alleged noncompliance.
11
. 7.2 Grantee's Riaht to Cure or ResDond. The Grantee shall have a reasonable time not to
exceed 30 days from receipt of the notice described in Section 7.1: (a) to respond to the
Franchising Authority, contesting the assertion of non-compliance, or (b) to cure such default,
or (c) in the event that, by the nature of default, such default cannot be cured withi/') the 3G-day
period, initiate reasonable steps to remedy such default and notify the Franchising Authority of
the steps being taken and the projected date that they will be completed. .
7.3 Public Hearina. In the event that the Grantee fails to respond to the notice described in
Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged
default is not remedied within 30 days or the date projected pursuant to 7.2(c) above, the
Franchising Authority shall schedule a pUblic hearing to investigate the default. Such public
hearing shall be held at the next regularly scheduled meeting of the Franchising Authority which
is scheduled at a time which is no less than five business days therefrom. The Franchising
Authority shall notify the Grantee in writing of the time and place of such meeting and provide.
the Grantee with an opportunity to be heard.
7.4 Enforcement. Subject to applicable federal and state law, in the event the Franchising
Authority, after such meeting, determines that the Grantee is in default of any provision of the
Franchise, the Franchising Authority may: .
A. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages;
.
B.
Commence an action at law for monetary damages or seek other equitable relief;
or
C. In the case of a substantial default of a material provision of the Franchise,
declare the Franchise to be revoked.
The Grantee shall not be relieved of any of its obligations to comply promptly with any provision
of the Franchise by reason of any failure of the Franchising Authority to enforce prompt
compliance.
7.5 ImDossibility of Performance. Grantee shall not be held in default or noncompliance with
the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where
such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or
other events reasonably beyond its ability to control.
-
SECTION 8
Miscellaneous Provisions
..
8.1 Actions of Parties. In any action by the Franchising Authority or the Grantee that is
mandated or permitted under the terms hereof, such party shall act in a reasonable,
expeditious, and timely manner. Furthermore, in any instance where approval or consent is
required under the terms hereof, such approval or consent shall not be unreasonably withheld.
.
12
.
8.2 EQual Protection. In the event the Franchising Authority enters into a franchise, permit,
license, authorization, or other agreement of any kind with any other Person other than the
Grantee to enter into the Public Ways for the purpose of constructing or operating a Cable
System or providing Cable Service to any part of the Service Area, the material pro,!isiorts.
thereof shall be reasonably comparable to those contained herein, in order that one operator
not be granted an unfair competitive advantage over another, and to provide all parties equal
protection underthe law.
8.3 Use of The Grantee's EQuipment bv the FranchisinQ Authoritv. Subject to any
applicable state or federal regulations or tariffs, the Franchising Authority shall have the right to
make use of any poles or conduits controlled or maintained exclusively by or for the Grantee in
any Public Way; provided that: (a) such use by the Franchising Authority does not interfere with
a current or future use by the Grantee; (b) such use is restricted to non-commercial municipal
purposes; (c) the Franchising Authority holds the Grantee harmless against and from all claims,.
demands, costs, or liabilities of every kind and nature whatsoever arising out of such use of
said poles or conduits, including, but not limited to, reasonable attorneys' fees and costs; (d) at
the Grantee's sole discretion, the Franchising Authority may be required either to pay a rental
fee or otherwise compensate the Grantee for the use of such poles, conduits, o~ equipment;
and (e) the Franchising Authority does not use the poles or conduits for any purpose that is in
competition with any service offered by the Grantee.
.
8.4 Notice. Unless expressly otherwise agreed between the parties, every notice or
response required by this Franchise to be served upon the Franchising Authority or the Grantee
shall be in writing, and shall be deemed to have been duly given to the required party five
business days after having been posted in a properly sealed and correctly addressed envelope
when hand delivered or sent by certified or registered mail, postage prepaid.
The notices or responses to the Franchising Authority shall be addressed as follows:
City Clerk
City of San Bernardino
300 N. D Street
San Bernardino, CA 92418
The notices or responses to the Grantee shall be addressed as follows:
with a copy to:
General Manager
TCI Cablevision of California, Inc.
1722 Orange Tree Lane
Redlands, CA 92374
--
..
TCI West, Inc.
Attention: Legal Department
P.O. Box 91220
Bellevue, WA 98009
.
The Franchising Authority and the Grantee may designate such other address or addresses
from time to time by giving notice to the other.
13
.
.
.
8.5 Descriotive Headinos. The captions to Sections contained herein are intended solely to
facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the
text herein.
8.6 Severabilitv. If any Section, sentence, paragraph, term, or provision hereof is
determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdictiol'l.or by
any state or federal regulatory authority having jurisdiction thereof, such determination shall
have no effect on the validity of any other Section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the term of the Franchise, or any
renewal or renewals thereof.
8.7 Aoolicable Law. This Franchise shall be interpreted and enforced pursuant to the laws
of the United States, the State of California, and all generally applicable provisions of the
Municipal Code of the City of San Bernardino. The parties acknowledge, however, that this
Franchise is a contract~d, subject to the City's exercise of its polic~ and other powers for
legitimate public safety and welfare purposes, neither party may take 'any unilateral action which
materially changes the explicit performance promised in this contract. In particular, Grantee
does not waive its rights to challenge the lawfulness of any particular enactment by the
Franchising Authority, including actions it considers to be an impairment of its contractual or
federal rights.
8.8 Effective Date. The effective date of this Franchise is
to the provisions of applicable law. This Franchise shall expire on
unless extended by the mutual agreement of the parties.
,199_, pursuant
Passed, adopted and effective this
federal, state and local law.
day of
, 199_, subject to applicable
IN WITNESS WHEREOF, the parties hereto have entered into this Franchise Agreement on
,199_.
City of San Bernardino
By:
Title:
Clerk
Accepted this _ day of
and local law.
, 199_, subject to applicable federal, state
.
TCI Cablevision of California, Inc,
,
By:
Title:
14