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HomeMy WebLinkAbout20 Telecommunicationsr CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION FROM: Frank Keller SUBJECT: STUBBLEFIELD CONSTRUCTION Cable Television Manager TOLLING AGREEMENT AND INTENT TO RENEW GRANT OF A DEPT: Telecommunications NON - EXCLUSIVE CABLE DATE: December 9 1998 0R' It A L FRANCHISE , Synopsis of Previous Council Action: None Recommended Motion: Adopt the following resolutions. MOTION A: RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A TOLLING AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STUBBLEFIELD CONSTRUCTION dba MOUNTAIN SHADOWS CABLE TV SYSTEM TO PROVIDE CABLE SERVICE TO THE RESIDENTS OF SAN BERNARDINO MOTION B: RESOLUTION OF THE CITY OF SAN BERNARDINO STATING THE CITY'S INTENTION TO RENEW THE GRANT OF A NON - EXCLUSIVE CABLE FRANCHISE TO STUBBLEFIELD CONSTRUCTION dba MOUNTAIN SHADOWS CABLE TV SYSTEM Contact Person(s): Frank S. Keller Ward(s): q Phone: 5147 Supporting Data Attached:0 Staff Report ❑ Resolution(s) ❑ Agreement(s) /Contract(s) ❑ Map(s) ❑ Ltr/Memo FUNDING REQUIREMENTS: Amount: N/A Source: /�qhget Authority: SIGNATURE: FRANK S. KELLER Cable Television Manager Council Notes: ------------------------------------------------------------------------------------------------------------------ FSK: ldl COUNCIL MEETING AGENDA MEETING DATE: 12/21/1998 Agenda Item Number: a a 08 CITY OF SAN. BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: Stubblefield Construction Tolling Agreement and Intent to Renew Grant. BACKGROUND: Stubblefield Construction, dba Mountain Shadows Cable TV System, is the current holder of a cable franchise within the City of San Bernardino. Mountain Shadows Cable TV has approximately 600 cable subscribers in the City of San Bernardino. Mountain Shadows Cable TV's cable franchise will expire on or about December 31, 1998. In accordance with the provisions of the Cable Communications Policy Act of 1984, a federal statute governing renewal of cable franchises, Stubblefield construction, dba Mountain Shadows Cable TV, has the right to demand renewal negotiations, which they did in a timely fashion. However, the informal renewal negotiations, which have been progressing well, will not be completed prior to the December 31, 1998, expiration date for the franchise agreement. It is proposed that both parties enter into a Tolling Agreement, which has the effect of extending the prior franchise agreement from December 31, 1998 through March 8, 1999, so that sufficient time exists to complete the renewal process. The Resolution of Intention will be published within ten days of its passage on December 21, 1998, followed by a public hearing on January 11, 1999. Following the public hearing at the first meeting of the Mayor and Common Council in January, the ordinance granting renewal of the franchise will have its first reading. FINANCIAL IMPACT: Anticipated revenue to the General Fund for the duration of the Tolling Agreement is $1,700. Annual revenue from the franchise agreement with Stubblefield Construction, dba Mountain Shadows Cable TV, approximates $7,400. RECOMMENDATION: Approve Tolling Agreement and Intent to Renew Grant. If not approved, the City will be in violation of Federal Communication Commission Rules and Regulations. f N 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2f DOFT RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A TOLLING AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STUBBLEFIELD CONSTRUCTION dba MOUNTAIN CABLE SERVICE TO THE RESIDENTS OF SAN STEM TO PROVIDE SAN BERNARDINO BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to approve a Tolling Agreement between the City of San Bernardino and Stubblefield Construction dba Mountain Shadows Cable TV System to provide cable service to the citizens of San Bernardino. Said Tolling Agreement is attached hereto as Exhibit "A." SECTION 2. The authorization to execute the above - referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. 111 LEM:js [Mtn- Sha2.Res] 1 �a a� a r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2S RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A TOLLING AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STUBBLEFIELD CONSTRUCTION TO THE RESIDENTS SHADOWS CABLE TV BERNARDINO TO PROVIDE CABLE SERVICE I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1998, by the following vote, to wit COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT ESTRADA LIEN VACANT SCHNETZ DEVLIN ANDERSON MILLER CITY CLERK The foregoing Resolution is hereby approved this day of Approved as to form and legal content: JAMES F. PENMAN, City Attorney .1 1 Y _ By: E ;r LEM:js [Mtn- Sha2.Res] JUDITH VALLES, Mayor City of San Bernardino 98 -344 TOLLING AGREEMENT between THE CITY OF SAN BERNARDINO, CALIFORNIA and STUBBLEFIELD CONSTRUCTION dba MOUNTAIN SHADOWS CABLE TV SYSTEM In consideration of the mutual covenants and agreements contained herein, the City of San Bernardino, California ( "San Bernardino') and Stubblefield Construction dba Mountain Shadows Cable TV System ( "Mountain Shadows ") agree as follows: Mountain Shadows provides cable service to the citizens of San Bernardino. 2. San Bernardino and Mountain Shadows desire to continue negotiations regarding the possible extension, renewal or grant of a cable service franchise to Mountain Shadows and to defer legal proceedings or other actions by either party during the pendency of such negotiations. Except as expressly provided herein, neither San Bernardino nor Mountain Shadows waive, will be deemed to have waived, or shall be estopped from asserting any rights relating to those matters set forth in paragraph 3 below due to the execution of this Agreement. 3. San Bernardino and Mountain Shadows agree that, prior to March 8, 1998, they shall not file any action on their own behalf or as part of a class action in any court of competent jurisdiction or administrative agency asserting claims or defenses arising from or relating to Mountain Shadows' continued operation of a cable system within San Bernardino, its provision of the cable services to its customers, or its commencement of renewal proceedings. San Bernardino further agrees that during this time period, it will not undertake any hearings or make any findings with respect to any such matters. 4. San Bernardino and Mountain Shadows agree that any applicable statute of limitations or other response relating to the judicial or other review of any activities of the parties with respect to matters discussed in paragraph 3 above, including those contained in Sections 626 and 635 of the Cable Communications Policy Act of 1984, 47 U.S.C.A. § §546 and 555, shall be tolled. Any claims, defenses or actions which could have been asserted with respect to such matters shall be legally preserved. 5. For the purpose of this Agreement, the term Mountain Shadows includes Mountain Shadows' affiliates, subsidiaries, successors, assigns and beneficiaries, including those claiming under and through it, and the term "San Bernardino" includes San Bernardino's successors, assigns and beneficiaries, including those claiming under and through it. LEM Js [Mtn-Shad-Toll 98 -344, 6. The parties agree tolling Agreement is made to allow sufficient time for the franchise renewal process to be completed and will be in effect until the sooner of March 8, 1998 or the effective date of a renewed cable franchise Agreement between the parties. THIS AGREEMENT is made and entered into this day of December, 1998. CITY OF SAN BERNARDINO, CA LEM:js [Mtn- Shad.Tol] STUBBLEFIELD CONSTRUCTION dba MOUNTAIN SHADOWS CABLE TV SYSTEM M. Its:President Arnold H. Stubblefield ARD�iyO C I T Y O F r, C ao s� an bernardino R A C H E L C L A R K C I T Y C L E R K December 28, 1998 Barry Radford, General Manager Mountain Shadows CATV Systems 2258 Bradford Avenue Highland, CA 92346 Dear Mr. Radford: At the Mayor and Common Council meeting of December 21, 1998, the City of San Bernardino adopted Resolutions 98 -344 approving a tolling agreement for the Mountain Shadows Cable TV System. Enclosed is one (1) original agreement. Please sign in the appropriate location and return the original agreement to the City Clerk's Office, ATTN: Melanie Miller, P.O. Box 1318, San Bernardino, CA, 92418 as soon as possible. Please retain a copy of the executed contract for your files. If you have any questions, please do not hesitate to contact me at (909) 384 -5002. Sincerely, Rachel Clark City Clerk By: Melanie Miller Senior Secretary Enclosures P. O. B 0 X 1 3 1 8, S A N B E R N A R D I N O, C A 9 2 4 0 2 3 0 0 N O R T H D' S T R E E T S A N B E R N A R D I N O, C A L I F O R N I A 9 2 4 t 8 - 0 0 0 1 ( 9 0 9) 3 8 4 - 5 0 0 2 ( 9 0 9) 3 8 4 - 5 1 0 2 F A X -( 9 0 9) 3 8 4- 5 1 5 8 T D D/ T T Y -( 9 0 9) 3 8 4- 5 5 4 0 l 3 4 5 6 71 8 9 10 11 12 13 '. '4 15 16 17 18 19 20 21 22 23 24 25 26 ').7 Q01PV RESOLUTION NO. 98- RESOLUTION OF THE CITY OF SAN BERNARDINO STATING THE CITY'S INTENTION TO RENEW THE GRANT OF A NON - EXCLUSIVE CABLE FRANCHISE TO STUBBLEFIELD CONSTRUCTION dba MOUNTAIN SHADOWS CABLE TV SYSTEM BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Recitals. A. Stubblefield Construction dba Mountain Shadows Cable TV System is currently providing portions of the City of San Bernardino with cable services pursuant to a grant of franchise effective December 20, 1983. The term of the original franchise was for fifteen (15) years. B. Stubblefield Construction dba Mountain Shadows Cable TV System timely applied for a renewal of the franchise. C. Stubblefield Construction dba Mountain Shadows Cable TV System has substantially complied with the terms and conditions of the franchise. SECTION 2. A. The Mayor and Common Council of the City of San Bernardino intend 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 Stubblefield Construction dba Mountain Shadows Cable TV System, 2258 Bradford Avenue, Highland, California 92346, 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 Stubblefield Construction dba Mountain Shadows Cable TV System" and the San Bernardino Municipal Code, Chapter 14.08. B. Copies of the "Franchise Agreement between the City of San Bernardino and Stubblefield Construction dba Mountain Shadows Cable TV System" may be obtained at the office of the City Clerk. LEM: ch[Mtn -Shad. Res] 1 #_aos December 7, 1998 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2E 21 2� RESOLUTION OF THE CITY OF SAN BERNARDINO STATING THE CITY'S INTENTION TUBBLEFFIELDECONSTRUCTION O NON-EXCLUSIVE CABLE MOUNTAIN SHADOWS CABLE FRANCHISE TV TO O S SYSTEM C. On January 11, 1999, at 10:00 a.m., in the Chambers of the San Bernardino Common Council, 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. D. The City Clerk is directed to publish this resolution at least once within ten (10) days of its passage in a newspaper of general circulation within the City of San Bernardino. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1998, by the following vote, to wit C UNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT ESTRADA LIEN VACANT SCHNETZ DEVLIN ANDERSON MILLER CITY CLERK The foregoing Resolution is hereby approved this day of , 1998 JUDITH VALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney By: LEM Js [Mtn- Shad.Res] 2 98 -345 CABLE FRANCHISE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STUBBLEFIELD CONSTRUCTION DBA/MOUNTAIN SHADOWS CATV SYSTEMS NO 98 -345 FRANCHISE AGREEMENT This Franchise Agreement ( "Franchise ") is between the City of San Bernardino, hereinafter referred to as "Franchising Authority," and Mountain Shadows Cable, hereinafter 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 purpose 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 includes 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 construction 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. 98 -345 H. "Grantee" means Mountain Shadows Cable or the lawful successor, transferee, or assignee thereof. 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 governmental 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, over, 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. FA 98 -345 2.2 Term. The Franchise granted hereunder shall be for an initial term of 5 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. 2.3 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 of the 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 Occupancy. 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 Franchising Authority. 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 Part y. The Grantee shall, on the request of any Person holding a building moving permit issued by the Franchising Authority, temporarily raise 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 98 -345 3.5 Trimming of Trees and Shrubbery. 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 Franchising 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 Safety Requirements. 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 safety of Persons or property in the Service Area. 3.7 Aerial and Underground 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 Required Extensions of the Cable System. The Cable System, as constructed as of the date of the passage and final adoption of this Franchise, substantially complies with the material 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 cable 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. 12 98 -345 3.9 Subscriber Charges for Extensions of the Cable System. No Subscriber shall be refused Cable Service arbitrarily. However, for unusual circumstances, such as a Subscriber's request to locate his /her 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 than 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, multiplied 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 Buildings. 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 Emergency 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 line 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. 6 98 -345 b. If the call needs to be transferred, transfer time will not exceed 30 seconds. 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 no less 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 are 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 scheduled, 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. Notifications to Subscribers: 98 -345 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: (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 control of the Grantee. In addition, the Grantee shall notify Subscribers 30 days in advance 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 the Subscriber's next billing cycle following the determination that a credit is warranted. D. Definitions: For purposes of this Section, the following definitions shall apply: 7 98 -345 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. 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 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. 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 requirements 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 Programming 4.1 Initial PEG Programming 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 Programming 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 any one PEG channel shall not be repetitive to that on any other PEG channel. 4.3 Grantee Use of PEG Programming Channel(s). 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 either on a temporary or permanent basis, subject to such conditions as may be imposed, if it finds that such use will not be contrary to the public interest. 0 98 -345 4.4 Consulting 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. SECTION 5 Regulation by the Franchising 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 Charges. 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 that 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. 9 98 -345 Notwithstanding anything to the contrary set 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. 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 price determined 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 acceptable 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 nondisruptive 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 Grantee pursuant to the rules and regulations of the FCC. 10 98 -345 Notwithstanding anything to the contrary set forth herein, the Grantee shall not be required to disclose information which it reasonably deems to be 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. SECTION 6 Insurance, Indemnification, Bonds and Other Surety 6.1 Insurance Requirements. The Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Commercial General Liability Insurance 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 it 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 bome 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. 11 98 -345 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. 7.2 Grantee's Right to Cure or Respond. 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 within the 30 -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 Hearing. 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 Impossibility 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. 12 98-345 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. 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 provisions 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 under the law. 8.3 Use of The Grantee's Equipment by the Franchising Authority. Subject to any applicable state or federal regulations or tariff s, 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, or 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: Barry Radford, General Manager Mountain Shadows CATV Systems 2258 Bradford Ave. Highland, California 92346 13 98 -345 The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other. 8.5 Descriptive Headings. 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 Severability. If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction 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 Applicable 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 and, subject to the City's exercise of its police 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 January 1, 1999, pursuant to the provisions of applicable law. This Franchise shall expire on December 31, 2003, unless extended by the mutual agreement of the parties. Passed and adopted this /2 -,;?/- 4 9 , subject to ap ,b Clerk City of San By: federal, state and local law. Name/Title: Judith Valles /Mayor Accepted this day of 199 , subject to applicable Federal, state and local law. Mountain Shadows CAN Systems M Name/Title: Arnold Stubbelfield, President Stubblefield Construction 14 • C I T Y O F an Bernardino R A C H E L C L A R K C I T Y C L E R K December 28, 1998 Barry Radford, General Manager Mountain Shadows CATV Systems 2258 Bradford Avenue Highland, CA 92346 Dear Mr. Radford: At the Mayor and Common Council meeting of December 21, 1998, the City of San Bernardino adopted Resolutions 98 -345 stating the City's intention to renew the Mountain Shadows Cable TV Systems franchise. Enclosed is one (1) original agreement. Please sign in the appropriate location and return the original agreement to the City Clerk's Office, ATTN: Melanie Miller, P.O. Box 1318, San Bernardino, CA, 92418 as soon as possible. Please retain a copy of the executed contract for your files. If you have any questions, please do not hesitate to contact me at (909) 384 -5002. Sincerely, Rachel Clark City Clerk By: Melanie Miller Senior Secretary Enclosures P. O. B O X 1 3 1 8, S A N B E R N A R D I N O, C A 9 2 4 0 2 3 0 0 N O R T H D' S T R E E T S A N 8 E R N A R D I N 0 C A L I F O R N I A 9 2 4 1 8 - 0 0 0 1 ( 9 0 9) 3 8 4 - 5 0 0 2 ( 9 0 9) 3 8 4 - 5 1 0 2 F A X -( 9 0 9) 3 8 4- 5 1 5 8 T D D I T T Y - ( 9 0 9 ) 3 8 4 - 5 5 4 0