CC Ordinance 2035
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ORDINANCE NO. 2035
GRANTING A CABLE FRANCHISE TO COMCAST OF
CALIFORNIA II, LLC, TO CONSTRUCT AND OPERATE A
CABLE SYSTEM TO PROVIDE CABLE SERVICE WITHIN
A FRANCHISE AREA WITHIN THE CITY OF
CAMPBELL; ESTABLISHING THE TERMS AND
CONDITIONS OF THE FRANCHISE GRANT; AND
ESTABLISHING CERTAIN REMEDIES FOR THE
VIOLATION OF THE FRANCHISE.
The Council of the City of Campbell does ordain as follows:
The City Council finds as follows:
A. Comcast of California IT, LLC, providing services as COMCAST, has requested
renewal of its franchise to construct and operate a Cable System in, over, along and under the
Public Rights-of-Way in the City of Campbell (the "City").
B. The City has conducted hearings to identify the future cable-related needs and
interests of the community; to consider the financial, technical, and legal qualifications of
COMCAST; and to determine whether COMCAST's plans for constructing and operating its
System are adequate.
C. The City has relied on COMCAST's written representations and has considered
all information COMCAST has presented to it.
D. The Campbell City Council, having considered the interests proposed and
advanced, has found that the requested renewal of COMCAST's franchise is in the public
interest.
E. COMCAST is willing to accept the Franchise; and
F. The Campbell City Council held a public hearing on the proposed franchise
renewal on the L~I~ day of J'Lt l~ ,2003, after providing legal notice of the hearing, as required
by law.
Pursuant to Campbell Municipal Code, Chapter 5.20, , the City Council hereby grants a cable
television franchise to COMCAST as follows:
Section 1. Definitions.
Except as otherwise provided herein, the definitions and word usage set forth in the Cable
Ordinance shall govern this Franchise. References to any City official or City office also refer to
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any official or office that succeeds to any or all of the responsibilities of the named official,
whether by delegation, succession or otherwise. Subject to the provisions of Section 2.2,
references to law or "Applicable Law" include lawfully applicable Federal, State and local laws
and regulations adopted pursuant to those laws. In addition, the following definitions shall
apply:
1.1. Access, PEG Access, or PEG Use. The use of the Cable System, for Public, Educational
or Governmental ("PEG") purposes by eligible agencies, institutions, organizations,
groups, and individuals, including the City and its Designated Access Providers, for
distribution of video programming and other programming services.
1.2. Public Access or Public Use means Access where organizations, groups, or individual
members of the general public are the designated programmers or users having editorial
control over their communications.
1.3. Educational Access or Educational Use means Access where educational institutions are
the designated programmers or users having editorial control over their communications;
1.4. Governmental Access or Governmental Use means Access where government
institutions or their designees are the designated programmers or users having editorial
control over their communications;
1.5. Cable Ordinance. Campbell City Municipal Code, Chapter 5.20 as amended from time to
time consistent with Sections 2.2.2 and 2.3 of this Franchise.
1.6. Cable System. A facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide Cable
Service which includes video programming and which is provided to multiple
Subscribers within a community, but such term does not include:
1.6.1. A facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
1.6.2. A facility that serves Subscribers without using, or connecting to a facility that
uses, any Public Right-of-Way within the City;
1.6.3. A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title n (Common Carriers) of the Federal Communications Act
of 1934, as amended, except that such facility shall be considered a Cable
System to the extent such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand services;
1.6.4. Any facilities of any electric utility used solely for operating its electric utility
systems; or
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1.6.5. An OVS that is certified by the FCC.
1.7. Designated Access Provider. Any non-commercial entity or entities designated by the
City to manage some or all of the PEG Channels, facilities and equipment.
1.8. Franchise Area. All parts of the City now existing or hereafter annexed.
1.9. Franchise. This Ordinance and any amendments, exhibits, or appendices hereto.
1.10. Franchisee. Comcast of California II, LLC, providing services as COMCAST, and its
lawful and permitted successors, assigns and transferees.
1.11. Standard Drop. An aerial connection extending no more than 125 feet from the potential
Subscriber's demarcation point to the nearest point on the Cable System from which
Cable Service can be provided to that Subscriber.
1.12. PEG Channel. Any channel on a Cable System set aside by a Franchisee for PEG Use,
including by way of example and not limitation, a digital PEG Channel or an analog PEG
Channel.
1.13. School. Any public or private school (K-12) accredited by the State of California.
1.14. Subscriber Network. Fibers, coaxial cables and the electronic devices that are used in the
provision of Cable Service to residential Subscribers.
1.15. Transfer. Any transaction in which (i) an ownership or other interest in the Franchisee,
its System, or any Person that is a cable operator of the System is transferred from one
Person or group of Persons to another Person or group of Persons so that control of the
Franchise is transferred; or (ii) the Franchise and any of the rights granted hereby are
transferred or assigned to another Person or group of Persons. The term "control," as
used in this definition, means working control, in whatever manner exercised.
Section 2. Grant of Franchise: Limits and Reservations.
2.1. Grant. Term and Effective Date.
2.1.1.
A renewal Cable System franchise is hereby granted to Franchisee, subject to
the conditions set forth in this Ordinance and the Cable Ordinance. To the
extent of the City's authority, this Franchise grants the right, subject to
conditions, to construct, upgrade, operate and repair a Cable System in, over,
along and under Public Rights-of-Way within the Franchise Area, and for
providing other facilities or services for PEG Use of the Cable System,
commencing on the effective date of the Franchise through and including
~'r. 4~, 2013, unless terminated prior to that date in accordance with the
Franchise or Applicable Law. City and Franchisee reserve all of their
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2.1.2.
2.1.3.
respective rights with respect to regulation and use of the public Rights of
Way for provision of non-cable services.
The grant shall become effective 30 days after second reading and final
passage of this Ordinance except as provided in Section 2.1.3, provided that,
this Franchise shall become effective no earlier than the day after the date the
Cable Ordinance becomes effecti ve.
The grant shall not become effective unless and until Franchisee has (a) filed
an unconditional acceptance of the grant made by this Ordinance substantially
in the form in Exhibit 1; and (b) made all payments, posted all bonds and
other required security hereunder, and supplied all information that it is
required under this Franchise to supply prior to or upon the effective date of
the Franchise. If Franchisee fails to satisfy these obligations within 30 days of
the effective date of this Ordinance, the Franchise grant shall be deemed
rescinded if the City has given Franchisee an opportunity to cure such default
upon at least thirty days' notice, and Franchisee has not met the conditions of
this paragraph.
2.2. Relation to Other Provisions of Law.
2.2.1.
2.2.2.
2.2.3.
The Franchise issued by the City is subject to Applicable Law. Franchisee
must exercise all rights granted to it hereby and City must exercise any rights
related hereto in accordance with Applicable Law. No privilege or power of
eminent domain is bestowed by this grant. Nothing passes by implication
under this Franchise. Subject to the foregoing, Franchisee shall provide the
Cable Services required hereunder throughout the Franchise Term and any
holdover term, and shall make any Cable Services it provides over its Cable
System available to all residential dwellings in its Franchise Area, assuming
Franchisee's reasonable business terms for offering Cable Services are met.
For non-residential subscribers, cable services will be provided to the extent
that Franchisee can legally do so.
Any amendment of this Franchise or the Franchisee's benefits or burdens
associated herewith shall be subject to acceptance by the Franchisee, except
that nothing herein shall be construed to limit the lawful exercise of the City's
police power, authority lawfully to levy any nondiscriminatory taxes on any
activity conducted by the Franchisee, or other lawful authority, regardless of
whether exercised by amendment of the Franchise, Cable Ordinance or
otherwise.
The grant of the Franchise is not a conveyance by the City of any property or
use rights beyond those the City has the authority to grant. Nothing in this
Franchise shall be construed to constitute or to require the exercise of the right
of eminent domain over private property. The grant of the franchise is not a
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warranty of title or interest in any Right-of-Way, nor does such grant provide
the Franchisee an interest in any specific placement within the Rights-of-Way.
The issuance of the Franchise does not deprive the City of any powers, rights
or privileges it now has or may later acquire in the future to use, perform work
on, construct, operate or repair facilities or systems in, or regulate or control
the use of the Rights-of-Way.
2.2.4.
The Franchise issued and the franchise fee paid hereunder are not in lieu of
any other generally applicable requirements with respect to permits,
authorizations, fees, charges or taxes. Without limiting the foregoing, the
City, among other things, does not waive the requirements of generally
applicable permitting or zoning laws.
2.3. Interpretation and Conflicts.
Subject to section 2.2.2, in the event of a conflict between the Cable Ordinance as it
existed on the effective date of this Franchise, and this Franchise as of its effective date,
the Cable Ordinance shall control except where expressly provided otherwise in the
Franchise. The Cable Ordinance itself is not a contract. Nothing herein prevents the
Franchisee from challenging a particular amendment to the Cable Ordinance as an
impairment of this Franchise, subject to Section 2.2.
2.4. Affiliates Must Comply. The Franchisee shall not evade or attempt to evade its
obligations under this Franchise. Accordingly, the Franchisee shall not use as a defense
the fact that an act and/or omission that results in a breach of this Franchise or a violation
of the Cable Ordinance is the act and/or omission of an affiliate of the Franchisee, and
not that of Franchisee itself.
2.5. Relation to Prior Franchise. As of the effective date of this Franchise, the franchise
granted originally to Gill Industries, Inc. doing business as Gillcable ("Gill") by City
Ordinance 1633, and accepted by Gill on February 17, 1987, and as it may have been
amended from time to time (the "Gill Franchise"), is superseded and of no further force
and effect.
2.6. Validity. Both parties waive any claim or defense that any provision of this Franchise, or
any provision of the Cable Ordinance as it existed on the date the Franchise was signed,
was then unenforceable or otherwise invalid or void. However, both parties shall have
the right to challenge any provision of the Franchise and Cable Ordinance under any state
or federal laws that become effective after the effective date of this Franchise. Neither
party waives the right to challenge the validity of any other Applicable Law.
2.7. Effect of Franchise Acceptance. By accepting the Franchise, the Franchisee:
2.7.1.
Acknowledges and accepts the City's legal right to issue and enforce the
Franchise;
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2.7.2.
2.7.3.
Accepts and agrees to comply with each and every lawful provision of this
Franchise subject to its right to challenge the enforceability of provisions of
the Franchise.
Agrees that the Franchise was granted pursuant to processes and procedures
consistent with Applicable Law, and that it will not raise any claim to the
contrary.
2.8. Franchisee Bears Its Own Costs. The City shall not be liable for any costs or expenses
incurred by Franchisee in the course of performing its obligations under this Franchise or
the Cable Ordinance.
2.9. No Waiver.
2.9.1.
2.9.2.
No course of dealing between the Franchisee and the City, or delay on the
part of the City or Franchisee in exercising any rights, shall operate as a
waiver of such rights, except expressly waived; provided that nothing in this
section is intended to affect the operation of any applicable statute of
limitations or alter any renewal protections afforded the Franchisee by 47
U.S.C. Section 546 (d).
Waiver of a breach of this Franchise is not a waiver of any other breach,
whether similar or different from that waived. Neither the granting of the
Franchise nor any provision herein shall constitute a waiver or bar to the
lawful exercise of any governmental right or power of the City, including
without limitation the right of eminent domain.
2.10. No Monetary Recourse. Without limiting such immunities as the City or other Persons
may have under Applicable Law, in any court proceeding involving any claim by
Franchisee against the City, or any official, member, employee, or agent of the City,
arising from the regulation of the Cable System pursuant to this Franchise or from a
decision of approval or disapproval with respect to a grant, renewal, transfer, or
amendment of a franchise, any relief shall be limited to injunctive relief and declaratory
relief.
2.11. Severability. In the event that a court or agency or legislature of competent jurisdiction
acts or declares that any section, subsection, sentence, paragraph, term or provision of
this Franchise is illegal, invalid, unconstitutional or otherwise unenforceable, said
section, subsection, paragraph, term or provision shall be considered a separate, distinct,
and independent part of this Franchise, and such holding shall not affect the validity and
enforceability of all other sections, subsections, paragraphs, terms or provisions hereof,
all of which remain in full force or effect for the term of the Franchise.
2.12. Effect of Change in Law. In the event that State or Federal laws, rules, or regulations
preempt a provision or limit the enforceability of a provision of this Franchise, then the
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provision shall be read to be preempted to the extent and for the time, but only to the
extent and for the time, that such laws, rules or regulations validly acted to preempt such
provision. In the event such State or Federal law, rule, or regulation is subsequently
repealed, rescinded, amended, or otherwise changed, so that the provision hereof that had
been preempted is no longer preempted, such provision shall thereupon return to full
force and effect and shall thereafter be binding on the parties hereto, without the
requirement of further action on the part of the City.
Section 3. Transfers.
3.1. No Transfer Without City Approval. No Transfer shall occur without the prior consent
of the City. An Application for a Transfer, containing all information required under
Applicable Law, must be filed before a request for a Transfer will be considered by the
City.
3.2. Application for Transfer To Be Considered In Accordance With Cable Ordinance.
Without limiting any provision of Section 2, an Application for a Transfer will be
considered in accordance with the standards set forth in the Cable Ordinance.
3.3. Transfer Review Costs. In the event of a Transfer, the Franchisee shall reimburse or
cause the proposed Transferee to reimburse all reasonable third party costs incurred by
the City in reviewing and evaluating a Transfer application, to a maximum cost of
$10,000.
Section 4. Franchise Fee.
4.1. Pavment to City. The Franchisee shall pay the City a franchise fee in an amount equal to
five percent (5%) of Gross Revenues. To prevent evasion of franchise fees, to the extent
that Franchisee or its Affiliates offer bundles of cable and non-cable services at
discounted rates, the proportion of the discount attributable to cable service will be no
greater than the ratio of the total bundled cable and non-cable service price to the total
unbundled cable and non-cable service price. For example, if the ratio of the bundled
services total to the non-bundled services total is 90%, then the cable services portion of
the bundled rate, upon which the franchise fee is paid can be no less than 90% on the
non-bundled cable service rate.
4.2. Not in Lieu of Anv Other Assessments, Tax or Fee. The franchise fee is in addition to all
other lawful, generally applicable fees, assessments, taxes or payments that the
Franchisee may be required to pay under any Federal, State, or local law, subject to any
limitations set forth in Applicable Law, including, but not limited to, 47 U.S.c. g 542.
4.3. Payments. Franchise fees shall be paid in accordance with the schedule set forth in
section 5.20.520 of the Cable Ordinance, and late payments shall be subject to the
additional charges set forth therein.
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4.4. No Accord or Satisfaction. No acceptance by the City of any regular, periodic franchise
fee payment shall be construed as a release or an accord and satisfaction of any claim the
City may have for further or additional sums payable as a franchise fee.
4.5. Payment Records. The City may, from time to time, and upon thirty (30) days advance
written notice to the Franchisee, inspect and audit books and records at the Franchisee's
office during normal business hours and on a non-disruptive basis, to ensure compliance
with this Section 4. Franchisee shall pay all fees owed plus interest, in the event that the
City reviews the Franchisee's franchise fee payments, and finds that the Franchisee has
underpaid the fees owed in any amount. Said audit shall be conducted no more often
than once every three (3) years and no year may be audited more than once. No audit
shall go back for a period of time exceeding five (5) years from the date the audit is
commenced. Preliminary findings of the audit shall be completed and provided to
Franchisee within ninety (90) days of auditor's receipt from Franchisee of all information
requested by auditor that is reasonably necessary to complete the audit. Any undisputed
additional amounts due to the City as a result of the audit shall be paid within sixty (60)
days following written notice to the Franchisee by the City, which notice shall include a
copy of the audit findings.
4.6. Consumer Disclosure. The amount of a Subscriber's total bill assessed as a franchise fee
may be listed as a separate line item. Franchisee shall not itemize in a way that is
misleading or confusing.
Section 5. Construction Provisions.
5.1. Provision of Service. The Franchisee shall make available Cable Service to any lawful
building within the Franchise Area upon request of a potential Subscriber, except where it
is legally prohibited from doing so and assuming all Subscriber obligations are met.
5.2. Economic Redlining. Franchisee shall extend its Cable System to all areas of the City
without regard to the income status of such areas.
5.3. Drops; prevailing charges. Except as lawful rate orders may otherwise provide, and
except with respect to those locations which are entitled to free drops:
5.3.1.
If Applicable Law permits, nothing in this Franchise prohibits Franchisee
from establishing separate charges for separate classes of drops, such as, for
example, underground and aerial drops.
5.3.2.
Where the drop to a Subscriber is not a Standard Drop or would require the
Franchisee to incur unusual and excessive costs, in addition to the then-
prevailing installation charge for Standard Drops, Franchisee may charge the
Subscriber an amount greater than the installation charge for a Standard Drop,
to the extent not inconsistent with applicable federal law .
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5.4. Subscriber Option for Underground Drops. Where the Franchisee may locate a drop
above ground, but a potential Subscriber requests that the cable drop be placed
underground, the Franchisee shall locate the drop underground, but may assess charges in
addition to the then-prevailing Standard Drop installation charge. An existing Subscriber
may require the Franchisee to relocate an existing aerial drop underground, and
Franchisee may charge the requesting Subscriber for the cost of relocating the drop
underground.
5.5. System Construction SchedulelProcedure.
5.5.1.
5.5.2.
5.5.3.
5.5.4
5.5.5
5.5.6
The rebuild required by Section 7 must be completed by the earlier of
December 31, 2005, or prior to the completion of the system rebuild for the
City of San Jose.
Franchisee shall commence rebuild design (including fiber and radio
frequency designs) not later than December 31,2002.
Franchisee shall commence construction of the Campbell area hub facility not
later than December 31,2003.
Franchisee must submit a construction plan to City at least 60 days prior to the
date construction of the rebuild is scheduled to begin, identifying all known
new above ground structures, any known new below ground vaults and
location of all new trenching in the public Right of Way. That construction
plan shall include a timetable for construction that provides for orderly
commencement and completion of all work that is required for the rebuild of
the Subscriber Network consistent with the end date and construction
commencement date specified in Section 5.5.1.
Franchisee will schedule, at a minimum, quarterly meetings with the City to
exchange information and to discuss issues surrounding the Cable System
rebuild.
Franchisee's obligations to meet the construction deadlines under this Section
5 are material obligations and failure to meet any of the specified dates or
timelines set forth herein shall constitute a material breach of this Franchise.
5.6. Construction Standards. Without limiting Section 2, Franchisee agrees that at all times it
will satisfy the following, minimum conditions:
5.6.1. Minimum Conditions. The construction, operation, and repair of the Cable
System will be in accord with all Applicable Law including but not limited to
the City of Campbell Standard Specifications and Details for Public Works
Construction, IEEE standards, the National Electric Code, the National
Electrical Safety Code. The most stringent applicable code or standard will
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5.6.2.
5.6.3.
5.6.4.
apply in the event of any conflict (except insofar as that standard, if followed,
would result in a system that could not meet requirements of Federal, State or
local law). Franchisee will employ reasonable care at all times, within the
meaning of Applicable Law, and will install and maintain in use commonly
accepted methods and/or devices to reduce the likelihood of damage, injury,
or nuisance to the public. Pursuant to the generally applicable exercise of its
police powers, whether or not such powers have been previously exercised,
the City may reasonably restrict construction, operation, maintenance and/or
repair of a Cable System or of any of Franchisee's facilities located in the
Public rights-of-way to certain specific days and hours as determined by City.
Compliance with Laws. Franchisee shall install, locate, relocate and remove
its Cable System in accordance with the Franchise, the Cable Ordinance and
all other Applicable Law. Franchisee shall not place or maintain its Cable
System, including any poles or other structures, in Public Rights-of-Way or on
private property except in accordance with the requirements of the Franchise,
the Cable Ordinance and all other Applicable Law. Upon written request of
the City, Franchisee shall send a representative to all utility coordination
meetings held by City. .Franchisee shall honor City's 5-year "no cut" policy
for overlaid and reconstructed streets for so long as such policy remains in
effect.
Notice to Public. Franchisee shall comply with any generally applicable local
laws adopted pursuant to the generally applicable exercise of the City's police
powers regarding notice to members of the public regarding construction in
their immediate vicinity. Not less than seven (7) days prior to the beginning
or installation of any part of the Cable system that involves excavation,
obstruction or interference with a public Right of Way, or which otherwise
causes disruption or a nuisance to the immediate vicinity, Franchisee shall
distribute written notice to all residences and businesses that are located
within a node radius of the site of such construction or installation. The notice
shall describe the nature of the construction or installation, the estimated time
the project within the node shall take, and the days and hours when
construction and installation shall occur. The notice shall also provide an
address and telephone number for the recipient to call if they desire more
information about he construction or installation project.
Relocation for Government. Except as provided below, Franchisee will
protect, support, temporarily disconnect, relocate, or remove any of its
property at the time and in the manner required by the City or any other
governmental entity by reason of traffic conditions, public safety, street
vacation, freeway and street construction, change or establishment of street
grade, installation of sewers, drains, water pipes, power lines, signal lines, and
tracks or any other type of structures or improvements of public agencies. If
funds are available to any Person using the Public Rights-of-Way for the
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5.6.5.
purpose of defraying the cost of any of the foregoing, the City shall reimburse
the Franchisee in the same manner in which other Persons affected by the
requirement are reimbursed. If the funds are controlled by another
governmental entity, the City shall reasonably cooperate with any application
Franchisee may make for such funds.
5.6.4.1. Except in an emergency, the City will provide written notice
describing where the work being done pursuant to Section 5.6.4 is
to be performed at least two (2) weeks before the deadline for
performing the work; Franchisee may seek an extension of the time
to perform the work where it cannot be performed in a week even
with the exercise of due diligence, and such request for an
extension will not be unreasonably refused. If Franchisee receives
notice hereunder and does not receive an extension, and Franchisee
fails to take necessary action to protect, support, temporarily
disconnect, relocate, or remove its property as required by City,
then City may take whatever steps it deems reasonably necessary
to protect, support, temporarily disconnect, relocate, or remove
Franchisee's property and Franchisee shall be required to
reimburse City upon written demand for the cost incurred in taking
such action. If Franchisee fails to pay City the amount of these
costs within thirty (30) days of receiving such written demand,
provided Franchisee has not exercised any rights it may have to
lawfully challenge the costs, City shall be entitled to collect these
costs from the Security Fund referred to in section 15.1 of this
Agreement, and, if necessary, to recover against the performance
bond posted by Franchisee in accordance with section 15.2.3.
5.6.4.2. In the event of a relocation for the government pursuant to Section
5.5.4, the Franchisee may abandon any property in Public Rights-
of-Way that is in place upon written notice to the City and separate
notice to the Director of Public Works. However, if the City
determines, in the exercise of its reasonable discretion exercised
within ninety (90) days of the date the required written notices are
received, that the safety, appearance, functioning or use of Public
Rights-of-Way and facilities in Public Rights-of-Way will be
adversely affected, the property sought to be abandoned shall be
removed by Franchisee by the date specified by City. In the event
that a Franchisee does not remove such property by the date
specified by City, City may remove the property without any
further notice and Franchisee shall be required to reimburse City
for the removal cost.
Potholing. Franchisee shall bear the costs of potholing its Cable System
facilities for any City project (whether undertaken by the City alone, or
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5.6.6.
5.6.7.
5.6.8.
jointly) within public Rights of Way where Franchisee's facilities are located.
Within thirty (30) days after receiving the City's written request, unless the
City agrees otherwise, Franchisee will expose its subsurface Cable System
facilities by potholing (digging a test hole) to a depth of one (1) foot below the
bottom of such facilities.
Utility Relocations.
5.6.6.1. If any removal, relaying, or relocation is required to accommodate
the construction, operation, or repair of the facilities of another
Person authorized to use Public Rights-of-Way, Franchisee will,
after fifteen (15) days' advance written notice, use reasonably good
faith efforts to effect the necessary changes requested by such
Person.
5.6.6.2. Unless the matter is governed by a State law, or unless the
Franchisee's Cable System was improperly installed and if
installed properly, the removal, relocation or relaying would be
unnecessary, the reasonable expense associated with such removal,
relaying, or relocation will be borne by the Person requesting the
removal, relaying, or relocation.
5.6.6.3. The City may direct Franchisee to remove, relay, or relocate its
facilities pending resolution of a dispute as to responsibility for
costs upon posting of a bond by the Person requesting such
removal, relaying or relocation in the amount of Franchisee's
estimated costs, and upon agreement by the requesting party to
cover any reasonable expenses of Franchisee related thereto.
Emergencies. In an emergency, or where a Cable System creates or is
contributing to an imminent danger to public health, safety, or property, the
City may remove, relay, or relocate any or all parts of that Cable System
without prior notice; however, the City will make reasonable efforts to
provide prior notice.
Permit Holders. Upon the request of a Person holding a valid building
moving permit issued by the City, the Franchisee will temporarily raise or
lower its wires to allow buildings or other objects to be moved. The
requesting Person will pay for any expense associated with such temporary
removal or raising or lowering of wires. Franchisee will have the authority to
estimate the reasonable material and labor costs and require payment of the
same in advance. The Franchisee will be given not less than seven (7) days
advance notice to arrange for such temporary wire changes.
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5.6.9.
Repair of Disturbances and Damage. The Franchisee shall repair any
disturbance or damage to public property or private property caused by
Franchisee's construction, operation or repair of the Cable System promptly,
to it's original condition and in compliance with all generally applicable laws
and codes adopted pursuant to the generally applicable exercise of the City's
police powers.
5.7. Pole attachments and conduits. Franchisee shall provide free and useable access to its
poles and conduits to the City and for PEG Uses provided that any out-of-pocket costs
incurred by Franchisee associated therewith shall be borne by City and such use does not
hinder the operations of the Franchisee, is used for solely governmental purposes, and is
not used to compete against Franchisee in any manner.
5.8. Notice of use. Franchisee shall notify the City if another party occupies Franchisee's
poles or conduit within the City and will identify the identity of occupant and the location
of occupant's facilities in or on such poles or conduit.
5.9. Contractors and Subcontractors. Franchisee shall ensure that any contractor or
subcontractor used for work on construction, operation, or repair of the Cable System is
properly licensed under laws of the State and all applicable local ordinances. The
Franchisee shall be responsible for ensuring that the work of contractors and
subcontractors is performed consistent with this Franchise and Applicable Law and shall
not use the fact that any contractor or subcontractor performed work as a basis for
asserting that it is not responsible under the Franchise or Applicable Law. This section
is not meant to alter the tort liability, if any, of Franchisee to third parties, or of any
contractor or subcontractor to third parties or to Franchisee.
Section 6. Preservation of Benefits and Status Quo.
6.1. Generally. Under the terms of the Gill Franchise, Franchisee was providing on-call
technical support for Government Access productions and City residents had access to
Franchisee's Public access facilities in San Jose. In addition to its obligations under
Section 10 of this Agreement, Franchisee shall also continue to provide and maintain at
existing levels all existing on-call technical support for Public and Governmental Access,
until and unless the City notifies Franchisee that such support is no longer necessary, and
will continue to provide City residents with access to Franchisee's Public access facilities
in San Jose until such time as Franchisee no longer operates such facilities.
Section 7. System Facilities, Equipment and Services.
7.1. General System Design.
7.1.1.
Franchisee shall rebuild its Cable System to a capacity of not less than 750
MHz.
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. ,
7.1.2.
7.1.3.
7.1.4.
7.1.5.
7.1.6.
7.1.7.
7.1.8.
Franchisee shall increase the number of video programming services (which
could be a combination of digital or analog Channels) offered on the Cable
System to not less than eighty (80) as of the completion of the rebuild.
Franchisee reserves the right to use any additional bandwidth on the System in
the future for other uses based on market factors.
The Cable System rebuild shall use a fiber-to-the-neighborhood node design,
or a design that brings fiber closer to the Subscriber location. The Cable
System will be designed so that an average of a maximum of 1200 dwelling
units may be passed by the distribution system fed from each node. The
Cable System shall be designed so that it may be segmented into smaller
nodes without substantial additional construction.
Upon completion of the rebuild, the entire Cable System shall be two-way
activated and shall include the facilities and equipment (except customer
premises equipment) required to support broadband interactive cable services,
such as Internet services through the Cable System.
Within six (6) months after completion of the rebuild, there shall be reliable,
continuous, auto-start back-up power at the headend. A minimum of three
hours back-up power shall also be provided at each node.
The Cable System shall include the facilities and equipment required to
provide full system status monitoring of power supplies at the nodes as
activated. The status monitoring equipment must, at a minimum, permit the
Franchisee to identify where and when power outages affecting the node have
occurred, and when and where the Cable System has switched to battery back-
up power supplies.
In connection with the rebuild, Franchisee shall install and maintain facilities
and equipment (including but not limited to modulators, antennae, amplifiers
and other electronics) that permit and are capable of passing through the
signals received at the headend without substantial alteration or deterioration
(thus, for example, the system shall include components such that a signal
received at the headend in color may be received by a Subscriber in color, and
a stereo signal in stereo). Without limiting the foregoing, facilities and
equipment should be installed and operated so that Subscribers can receive
closed captioning and secondary audio.
Franchisee shall comply with applicable federal law concerning system
compatibility with Subscribers' consumer electronics equipment. Franchisee
shall comply with all Applicable Law regarding the provision of facilities and
equipment necessary to make its services (including its customer services)
reasonably accessible to persons with disabilities. For example, Franchisee
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7.1.9.
7.1.10.
7.1.11.
should employ TIY or similar technologies to permit communication between
the hearing-impaired community and Cable System representatives.
Upon completion of the Cable System rebuild, the system facilities and
equipment shall be capable of continuous twenty-four hour daily operation,
without severe material degradation of signal, except as a result of inclement
weather or storms that adversely affect utility services or that damage major
Cable System components.
The Cable System, as rebuilt, shall utilize facilities and equipment generally
used in high-quality, reliable, systems of similar design (except where
inconsistent with the specific requirements of the Franchise).
In connection with the Cable System rebuild, the Franchisee shall replace
those parts of its existing network that do not conform to the design
requirements, and any other portion of the network that could diminish the
performance or reliability of any part of the Cable System. To the extent that
portions are retained, those portions need to be visually inspected and fully
tested.
7.2. Transmission Technologies. Franchisee may use any transmission technology (as that
term is defined in federal law), provided that the Cable System is designed and rebuilt so
that it will have characteristics that in all relevant respects meet or exceed the
characteristics of the Cable System described in Section 7, Section 8, and Section 10. If
Franchisee does not, within the time frames specified by this Franchise, rebuild the Cable
System as proposed and required by Section 7.1, it shall constitute a material breach of
the Franchise.
7.3. Emergency Alert System. Franchisee shall install and maintain an emergency alert
system that can override audio and video on all Channels to provide an emergency alert
to all Subscribers in the City that complies with the requirements of federal law. The
City and the Franchisee shall meet periodically to discuss operational procedures for use
of the emergency alert system. As part of those discussions, the parties may agree on
alternative capabilities and activation procedures for the emergency alert system. It
should be integrated to the extent reasonably possible with other emergency alert systems
the Franchisee is required to provide under Federal or State law.
7.4. Parental Controls. In addition to satisfying any obligations that it has under Applicable
Law to provide parental control devices, or otherwise block programming on the Cable
System, Franchisee shall take reasonable measures to prevent children from ordering
programming without parental consent.
7.5. Support Equipment and Facilities.
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7.5.1.
7.5.2.
7.5.3.
Franchisee shall not assert as a defense to a claim that it has failed to meet any
obligation under this Franchise that it does not have sufficient trucks, tools,
testing equipment, monitoring devices, other equipment and facilities and
trained personnel necessary in order to meet such obligations, except in the
event of a strike or labor action.
The Franchisee shall install and maintain equipment necessary to measure its
performance with applicable customer services standards; except that
Franchisee may obtain relief temporarily from this requirement if it shows that
(i) it has a high level of subscriber satisfaction; (ii) there are alternative,
adequate ways to review its performance; or (iii) for other good cause shown.
Franchisee must ensure that its headend has adequate space, and is otherwise
properly designed in order to accommodate the equipment and facilities
necessary to meet its obligations under the Franchise.
7.6. Technical Standards. The Cable System must meet or exceed the technical standards set
forth in 47 C.F.R. ~ 76.601 as amended or superseded from time to time.
7.7. Future Upgrades. Upon written request, Franchisee shall, no more frequently than every
three (3) years following the Effective date of this Franchise, provide the City with
detailed information about Cable Services being offered in similarly situated Cable
Systems. For purposes of this subsection "similarly situated" Cable Systems shall mean
the Cable Systems owned and operated by Franchisee or any of its affiliates in the City of
San Jose, City of Mountain View, City of Cupertino, City of Fremont, Sunnyvale, Santa
Clara and City of Los Gatos. If there are Cable Services that are being offered to a
majority of subscribers in more than fifty percent (50%) of these other similarly situated
Cable Systems that are not also being offered on Franchisee's system in the City,
Franchisee shall provide City with an explanation as to why these Cable Services are not
being offered in the City and the cost to supply such services. After review of such
information, the City may require that Franchisee make available such Cable Services in
the City. In the event that City does require Franchisee to make available such Cable
Services in the City, City and Franchisee shall negotiate in good faith a schedule for
deployment of such services. Negotiations shall take into account the remaining term of
the Franchise, the impact on Subscriber services over the remaining life of the Franchise,
the incremental revenue and cost associated with the provision of such additional Cable
Services, and the financial condition of Franchisee. Notwithstanding the foregoing, the
City shall not be permitted to require the provision of specific video programming
pursuant to this subsection.
7.8. Tests during Construction.
7.8.1.
Franchisee shall conduct acceptance tests on each newly constructed or
upgraded segment prior to Subscriber connection or activation.
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7.8.2.
Franchisee shall prepare reports sufficient to show that the testing required in
Section 7.8.1 has been completed.
7.9. System Maintenance.
7.9.1.
7.9.2.
Franchisee may intentionally interrupt service on the Cable System only for
good cause and for the shortest time possible and, except in emergency
situations or to the extent necessary to fix the affected Subscriber's service
problems, only after a minimum of forty-eight hours' prior notice to
Subscribers and the City of the anticipated service interruption; provided,
however, that the minimum prior notice period shall be twenty-four (24)
hours, rather than forty-eight (48) hours, for planned maintenance that (i) does
not require more than four hours' interruption of service; and (ii) occurs
between the hours of 1 :00 a.m. and 6:00 a.m.
Franchisee shall adopt and upon request review with the City comprehensive
maintenance guidelines, which shall include procedures for preventative
maintenance. Except insofar as the same are inconsistent with Applicable
Law, Franchisee shall follow its maintenance guidelines, subject to such
reasonable deviations as are not likely to significantly affect plant life or
performance. Franchisee shall review and update the guidelines as necessary
to ensure the Cable System is adequately maintained.
7.10. Inspection and Testing. The City may inspect and conduct reasonable tests of the Cable
System upon receipt of reasonable evidence of failure to meet applicable technical
performance obligations, and to ensure compliance with the Cable Ordinance, this
Franchise, and applicable provisions of local, State and Federal law.
7.11. FCC-Mandated Testing. Franchisee shall notify the City in advance of conducting any
Proof-of-Performance test required by the FCC, so that the City may observe the testing.
Upon written request, the City shall be provided the test results and any supporting
documentation regarding the tests and testing equipment and procedures.
Section 8. Modem Connection.
In lieu of an I-Net consisting of physical connections, Franchisee shall supplement
the City's existing fiber network by providing a means of linking to the City's
network three City sites that are currently not part of that network. To accomplish
this goal, Franchisee shall provide, at no charge, one cable modem and one broadband
Internet access account to the two fire stations located in the City, which are
Sunnyoaks Fire Station, 485 West Sunnyoaks Avenue and Campbell Fire Station, 123
Union Avenue, and the Neighborhood Patrol Center located at 2341 Winchester
Boulevard in Campbell. To the extent any such site(s) cannot be served with a
standard drop from Franchisee's existing Cable System, City will bear such costs.
Such services shall be used solely for non-commercial purposes.
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Section 9. Interconnections.
9.1. Generally. Franchisee shall use reasonable efforts to provide interconnections with all
other cable systems and open video systems in the City, for the purpose of sharing
institutional network and PEG communications across networks, provided Franchisee
is able to reach agreement with the other operator for the interconnection on
reasonable terms and conditions and the City obtains any necessary consent from the
adjacent cable system's franchising authority. Nothing in this subsection should be
construed as requiring the Franchisee to increase the number of channels for PEG
beyond the maximum number agreed to in Section 10.
9.2. Relief from Obligations. Franchisee may obtain relief from an interconnection
requirement where Franchisee shows to the satisfaction of the City that it is
technically or economically infeasible to perform.
Section 1 O.Subscriber Network Channels and Facilities for PEG Use.
10.1.1 Access Channels. Except as outlined below, the Franchisee shall provide at least three
(3) PEG Channels for PEG Use, which Channels shall be in addition to any capacity
provided pursuant to Section 8. The channels shall be allocated as follow
10.1.1.1 One full-time PEG Channel for Government Use;
10.1.1.2 One full-time PEG Channel for Educational Use;
10.1.1.3 One full-time analog video channel for Public Access, which shall carry the
San Jose public access channel, unless otherwise directed or permitted by
the City.
In addition, should Santa Clara County begin to transmit meetings of
County agencies over a County government access channel, Franchisee will
not object to such programming on any of the PEG Channels referenced in
this Section.
10.1.2
Capital Grant for Access Equipment and Facilities. The Franchisee shall
provide a capital grant to the City in the amount of $450,000 (the "Capital
Equipment Support Grant"), which shall be used by the City, in its sole
discretion, for PEG equipment (including, but not limited to, studio and
portable production equipment, editing equipment and program playback
equipment) or for PEG-related facilities renovation or construction, and
related costs. The entire Capital Equipment Support Grant in the amount of
$450,000 shall be made within thirty (30) days of the effective date of the
Franchise.
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10.1.3
Return Feed From Facilities. The Franchisee shall continue to provide a
dedicated, bi-directional fiber optic link between the headend and City Hall.
This link shall be used to carry PEG signals from the City to the headend,
where the signals shall be placed on the corresponding PEG channel. In
addition, the Franchisee shall provide return fiber optic connection capacity
between the Heritage Theatre at the Campbell Community Center, 1 West
Campbell Avenue and City Hall, and fiber optic connection capacity
between the Campbell School District district office at 155 N. Third Street
and City Hall each in order to accommodate PEG programming return
needs, but also to permit the two-way transmission of data or the City's
non-commercial PEG needs. These links shall be completed no later than
the date for completion of the rebuild. The Franchisee shall provide and
install all equipment for amplification, conversion, receiving, transmitting,
routing, and headend processing of signals to be used for PEG purposes on
the System. Franchisee shall not be responsible for providing end-user
equipment. The dedicated connections shall be designed and built to
include all equipment required for the transport of video and audio source
material, including but not limited to laser transmitters, modulators, and
processors, drops and wiring, so that each such center can send signals to
the headend on at least two channels initially. City shall bear no cost to
meet the requirement of this Section 10.1.3.
10.2 Miscellaneous PEG Requirements.
10.2.1.
10.2.2.
10.2.3.
10.2.4.
Franchisee shall use reasonable efforts to ensure that PEG Channel
assignments, once made, shall be maintained. Franchisee, without cost to the
City, will provide subscribers with reasonable notice of any changes to PEG
Channel assignments and shall not make any such changes until after it
reasonably consults with the City as to the form and content of such notice.
Franchisee and the City will cooperate to help promote the use and viewership
of the PEG Channels.
The City, or Designated Access Provider (other than a cable operator), shall
adopt reasonable rules regarding the use of PEG Channels pursuant to Section
611(d) of the Cable Act, 47 U.S.c. ~531(d). Such rules shall allow Franchisee
to use any PEG Channel when not being used to deliver PEG
communications.
Members of the public in the Franchise Area may use Public Access on a first-
come, first-serve basis. Obscene or otherwise illegal programming is not
allowed on Public Access. The City or its designee may determine non-
discriminatory rules and regulations regarding the production, administration
and cablecasting of Public access or Public use.
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10.2.5.
10.2.6.
10.2.7.
10.2.8.
10.2.9.
Franchisee shall exercise its best efforts to ensure that a listing of the PEG
Channels and the programs carried on them may, to the extent technically
practicable, be listed on any channel listing programming services offered by
Franchisee, so long as the Designated Access Provider provides the
appropriate party the information that it wishes to have carried in a timely
manner and in the necessary format.
Should the Franchisee cease delivery of all signals in an analog format to
Subscribers, it will assure that PEG signals can be delivered in a digital format
at no cost to the City.
Any downstream and upstream digital PEG Channels provided pursuant to
this Section may be further subdivided, compressed or decompressed at the
sole expense of Designated Access Provider or City, provided that the
Franchisee has first determined, in its sole discretion, that such subdivision,
compression or decompression does not have any adverse impact on the Cable
System.
The facilities, equipment and capacity provided for PEG Use shall be
available at no charge to users, including the City, the public school districts
and any entity that manages a PEG Channel.
Except as expressly permitted by Applicable Law, Franchisee shall not
exercise any editorial control over the content of communications on the
designated PEG Channels (except for such communications as Franchisee
may produce and cablecast on such Channels).
10.3. Cable Outlets for Educational and Government Facilities.
10.3.1.
Upon request, Franchisee shall, without charge, continue to provide the
following number of activated Subscriber Network service drops and outlets:
(a) City Hall: 12; (b) City Service Center: 1; and (c) Campbell Community
Center: 7; all of which were receiving such service without charge as of the
effective date of the Franchise. In addition, upon written request, Franchisee
shall, without charge, provide a standard Installation and one outlet of
Expanded Basic Cable Service or its reasonable equivalent then in effect in
the system to each School in the City passed by the system. In addition, upon
request, Franchisee shall without charge, provide one cable modem and one
broadband Internet access account to each School which receives free
Expanded Basic Cable Service and any Public library in the City, the
Campbell Community Center, the Neighborhood Patrol Center located at 2341
Winchester Boulevard in Campbell and the two fire stations located: at
Sunnyoaks Fire Station, 485 West Sunnyoaks Avenue and Campbell Fire
Station 123 Union Avenue.
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10.3.2.
The Franchisee shall not be required to provide an outlet to such buildings
where a non-Standard Installation is required, unless the City or building
owner/occupant agrees to pay the incremental cost of any necessary Cable
System extension and/or non-standard Installation. If additional outlets of
Basic Cable are provided to such buildings, the building owner/occupant shall
pay the usual installation and service fees associated therewith.
10.3.3.
Costs Not Franchise Fees. The parties agree that the costs to the Franchisee
associated with providing support for PEG Use required under this Franchise
(including the provision of the I-NET and support therefor) are not intended to
be a franchise fee within the meaning of 47 U.S.c. ~542, and are intended to
fall within one or more of the exceptions listed in 47 U.S.c. ~ 542(g)(2).
Section 11. Operation and Reporting Provisions.
11.1. Open Books and Records. Without limiting its obligations under Section 2, Franchisee
agrees that it will collect and make available books and records for inspection by the City
to the extent required by and in accordance with either this Agreement or the Cable
Ordinance. Nothing herein shall be construed to limit any party's rights under applicable
rules of discovery under any proceeding or other rights to information under any other
Applicable Law.
11.2. Time for Production. Upon thirty days prior written notice to the Franchisee, books and
records shall be produced for review at City Hall, or such other location as the parties
may agree. Notwithstanding any provision of the Cable Ordinance, if documents cannot
be moved because (i) they are too voluminous; (ii) of security reasons; or (iii) the
requested records contain confidential or privileged or trade secrets, then the Franchisee
may request that City inspection of such records take place at some other location
mutually agreed to by the City and the Franchisee, which request shall not be
unreasonably denied.
11.3. Reports Required. The Franchisee shall file reports in accordance with the Cable
Ordinance.
11.4. Records Maintained. The Franchisee shall maintain books and records as required by the
Cable Ordinance.
11.5. Material Obligations. Franchisee's obligations to maintain books and records as required
herein and under the Cable Ordinance are material obligations under this Agreement and
Franchisee's failure to meet these record-keeping obligations shall constitute a material
default under this Agreement.
11.6. Retention of Records; Relation to Privacy Rights. Franchisee shall take all steps
required, if any, to ensure that it is able to provide the City all information which must be
provided to the City in order for the City to exercise its enforcement rights under
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Applicable Law or this Franchise in light of any applicable statute of limitation
timeframe. Nothing in this section shall be read to require a Franchisee to violate
47 US.C. S 551 or other Applicable Law governing privacy. Franchisee shall be
responsible for redacting any data that State or Federal law prevents it from providing to
the City.
Section 12. Customer Service Standards. Franchisee shall meet or exceed the customer service
standards set forth by the Cable Ordinance.
Section 13. Rate Regulation. The City may regulate Franchisee's rate and charges, and order
refunds of unreasonable rates charged, as permitted by and except to the extent that it is
preempted from doing so by federal rate regulations.
Section 14. Insurance; Surety; Indemnification.
14.1. Insurance.
14.1.1.
Franchisee agrees to maintain adequate insurance during the entire term of the
Franchise against claims for injuries to persons or damage to property which
in any way relate to, arise from, or are connected with the holding of the
Franchise or the construction, operation or repair of the Cable System by the
Franchisee, its agents, representatives, contractors, subcontractors and
employees.
14.1.2.
The amounts and type of insurance shall be:
14.1.2.1. Commercial General Liability insurance with respect to the
construction, operation and maintenance of the Cable System, and
the conduct of the Franchisee's business in the City, in the
minimum amount of five million dollars ($5,000,000) per
occurrence, combined single limit for property damage and bodily
injury. The policy must include coverage for Contractual Liability,
Premises and Operations, Independent Contractors, Broad Form
Property Damage, Personal Injury, and Products and Completed
Operations. The policy must also include coverage for the
explosion, collapse and underground hazard.
14.1.2.2. Automobile Liability Coverage, with a minimum limit of liability
of two million dollars ($2,000,000), per occurrence, combined
single limit for bodily injury and property damage coverage.
Policy must include coverage for owned automobiles, and leased
or hired automobiles.
14.1.2.3. Broadcasters' Liability Coverage, covering errors and omissions
and negligent acts and other operations of the Franchisee,
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14.1.3.
14.1.4
14.1.5
14.1.6
14.1.7
committed during the term of the Franchise period with the City
with a limit of liability of at least one million dollars ($1,000,000)
per claim and aggregate.
14.1.2.4. Workers' Compensation Coverage meeting all requirements of
California Law and Employer's Liability Coverage with the
following minimum limits: $1,000,000 per occurrence.
All insurance policies and certificates maintained pursuant to this Agreement
shall contain the following endorsement:
It is hereby understood and agreed that this insurance coverage
may not be canceled by the insurance company nor the intention
not to renew be stated by the insurance company until sixty (60)
days after receipt by the Company, by registered mail, of a written
notice of such intention to cancel or not to renew.
All insurance policies shall be with sureties qualified to do business in the
State of California with an A+ or better rating for financial condition and
financial performance by Best's Key Rating Guide, Property/Casualty
Edition,. Upon written request, Franchisee shall provide City Clerk with
written proof of such ratings.
Franchisee shall deliver to the City Clerk a copy of the required certificates of
insurance, evidencing that the required policies are in effect, no later than
thirty (30) days after the effective date of this Franchise.
All liability insurance policies shall name the City, the Redevelopment
Agency and their officers, boards, commissions, commissioners, agents, and
employees as additional insureds and shall further provide that any
cancellation or reduction in coverage shall not be effective unless sixty (60)
days' prior written notice thereof has been given to the City. The Franchisee
shall not cancel any required insurance policy without submission of proof
that the Franchisee has obtained alternative insurance which complies with
this Agreement.
The insurance requirements are material terms of this Franchise.
14.2 Indemnification.
14.2.1 Franchisee agrees to indemnify, save and hold harmless, and faithfully defend the
City, the Redevelopment Agency and each of their officers, commissions,
commissioners, boards and employees, from and against any liability for damages
resulting from, and for claims, suits, causes of action, proceedings and judgments
resulting from: (i) property damage; (ii) bodily injury (including accidental
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death); (iii) invasion of the right of privacy, defamation of any Person, firm or
corporation; and (iv) violation or infringement of any copyright, trade mark, trade
name, service mark, or patent, or of any other right of any Person, firm, or
corporation, including a failure by the Franchisee to secure consents from the
owners, authorized distributors, or licensees of programs to be delivered by the
Cable System; which arise out of the Franchisee's construction, operation, or
maintenance of its Cable System, provided that the City shall give Franchisee
written notice of its obligation to indemnify the City within fifteen (15) days of
receipt of a claim or action pursuant to this subsection. Notwithstanding the
foregoing, Franchisee shall not indemnify the City for any damages, liability or
claims resulting from the willful misconduct or sole negligence of the City.
14.2.2
Notwithstanding the foregoing Section 14.2.1, the Franchisee need not
indemnify the City or the Redevelopment Agency to the extent the liability:
14.2.2.1. is caused by the active negligence of the person or persons covered
by the indemnity;
14.2.2.2. results from communications contributed or produced by the City
or the Redevelopment Agency and transmitted over the Cable
System; or
14.2.2.3. results from communications carried on any Channel set-aside for
PEG Use, or Channels leased pursuant to 47 U.S.C. ~ 532, except
for communications contributed or produced by the Franchisee.
14.2.3.
Pursuant to Section 14.2.1, the City will notify the Franchisee in writing of
Franchisee's duty to indemnify in any case subject to the indemnity in which
the Franchisee is not a named defendant or plaintiff. The Franchisee will
employ competent counsel, reasonably acceptable to the City Attorney.
14.3. No Limit of Liability. The provisions of this Section 14 shall not be construed to limit
the liability of Franchisee for damages.
Section 15. Performance Guarantees and Remedies.
15.1.1.
Security.
15.1.1.1. Except as expressly provided herein, the Franchisee 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
City acknowledges that as of the time of renewal the legal,
financial, and technical qualifications of the Franchisee are
sufficient for compliance with the terms of the Franchise and the
enforcement thereof. The City agrees to require bonds and other
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15.1.2.
15.1.3.
15.1.4.
15.1.5
surety only in such amounts and during such times as there is a
reasonably demonstrated need therefor.
In satisfaction of the security requirements of the Cable Ordinance, Sec.
5.20.430, as the same existed on the effective date of this Franchise, the
Franchisee shall provide an irrevocable letter of credit in the amount of One
Hundred Thousand Dollars ($100,000). The letter of credit shall be used to
assure faithful performance by Franchisee of all provisions of this Agreement
and Franchisee's compliance with all provisions of this agreement and the
Cable Ordinance. The City may require the Franchisee to increase the amount
of the letter of credit once every five years to reflect increases in the U.S. City
Average of the Consumer Price Index.
Not later than thirty (30) days after the effective date of this Franchise,
Franchisee shall provide written proof to the City Clerk that the letter of credit
complies with this Franchise and with all other requirements of the Cable
Ordinance.
Upon termination of the Franchise, the City shall authorize the Franchisee to
terminate the letter of credit, provided that there is then no outstanding
obligation secured by the letter of credit.
The following procedures shall apply to drawing on the letter of credit:
15.1.5.1 If the Franchisee fails to make timely payment to the City of any amount
due under the Cable Ordinance, this Franchise, or other applicable law;
fails to compensate the City for any damages, costs or expenses the City
suffers or incurs by reason of any act or omission of the Franchisee in
connection with this Franchise or its enforcement; or fails to comply with
any provision of the Cable Ordinance or this Franchise that the City
Manager determines can be remedied by payment of liquidated damages,
the City may draw the amount thereof, with any applicable interest, from
the letter of credit.
15.1.5.2 Before drawing on the letter of credit, the City shall provide the
Franchisee thirty (30) days written notice and opportunity to cure.
15.1.5.3 Within three (3) days after a withdrawal from the letter of credit, the City
shall mail to the Franchisee, by certified mail, return receipt requested,
written notification of the amount, date and purpose of such withdrawal.
15.2. Performance Bond.
15.2.1.
Before undertaking the Cable System upgrade required by this Franchise,
Franchisee shall obtain a performance bond in the amount of $1,000,000.
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15.2.2.
15.2.3.
15.2.4.
15.2.5.
15.2.6.
15.2.7.
The performance bond shall:
15.2.2.1. Secure the faithful performance of all work required by the
Franchise, including, but not limited to, completion of the rebuild;
15.2.2.2. Be sufficient to provide for restoration of the Public Rights-of-
Way as determined by the Public Works Director and other
property that may be affected by the construction, given the scope
and nature of the work proposed.
The bond shall state that the City may also recover against the bond any
amount recoverable against the Security Fund where such amount exceeds
that available under the Security Fund.
The bond shall provide that, in the event Franchisee fails to complete the
Cable System construction, upgrade, other work in the Public Rights-of-Way,
or work required by the Franchise, in a safe, timely, and competent manner,
there shall be recoverable, jointly and severally from the principal and surety
of the bond, any damages or loss suffered by the City as a result, including the
full amount of any compensation, indemnification, or cost of removal or
abandonment of any property of the Franchisee, or the cost of completing or
repairing the Cable System construction, upgrade, or other work in the Public
Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full
amount of the bond.
The performance bond shall provide that it shall be forfeited to the City under
following conditions:
15.2.5.1. The Franchisee abandons the Cable System; or
15.2.5.2. The Franchise is revoked for cause.
The performance bond shall be issued by a surety with an A-lor better rating
of insurance in Best's Key Rating Guide, Property/Casualty Edition
acceptable to the City; and shall contain the following endorsement, "this
bond may not be canceled, or allowed to lapse, until sixty (60) days after
receipt by the City, by certified mail, return receipt requested, of a written
notice from the issuer of the bond of intent to cancel or not to renew." The
bond shall be filed with the City Clerk not later than forty-five (45) business
days after the effective date of this Franchise.
The Franchisee may apply for elimination of the bond required by Section
15.2.1 at any time 12 months after the completion of the upgrade. The City
shall either eliminate the bond, or permit Franchisee to reduce it to the amount
of $50,000 if it determines that the Franchisee has faithfully completed the
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upgrade of the Cable System, and is otherwise in material compliance with the
terms and conditions of this Franchise.
15.3. Material Term. The required performance bond and letter of credit are material terms of
this Franchise.
15.4. Liquidated Damages.
15.4.1.
Because the Franchisee's failure to comply with provisions of its Franchise
will result in injury to the City, and because it will be difficult to estimate the
extent of such injury, the City and the Franchisee agree that the Franchisee
will be subject to the following liquidated damages for the following
violations, if the Franchisee has been provided written notice and the violation
continues after the appropriate notice and thirty days opportunity to cure,
following receipt of the notice, pursuant to Section 15.1.5. If, at the
conclusion of the 30-day opportunity to cure period, the City Manager finds
that the violation is not cured, Franchisee will be subject to liquidated
damages described below. The liquidated damages represent both parties' best
estimate of the damages to the City resulting from the specified injury. To
maintain that estimate, the parties agree that the liquidated damage amounts
are in 2000 dollars and shall be increased once every three years by the
increase in the U.S. City Average of the Consumer Price Index. Thus, treating
2000 as the base year, indexed as 100, and assuming that by 2003 the index
had increased a total of 15%, liquidated damages amounts would be increased
by 15%. The parties further agree that the damages specified are to the City,
and are recoverable by the City. Damages accrue from the date of the
violation; provided that, nothing herein prevents Franchisee from raising a
defense to the imposition of liquidated damages from the date of violation
based upon laches, waiver, statute of limitations, or any other similar defense.
Liquidated damages are not Franchise Fees.
15.4.1.1. For failure to complete construction of the System rebuild in
accordance with the Franchise: $1500/day for each day the
violation continues.
15.4.1.2. For transferring the Franchise without required approval: $750/day
for each violation for each day the violation continues.
15.4 .1.3. F or failure to comply with requirements for PEG Use of the Cable
System for which damages to the City are not readily
ascertainable: $250/day for each violation for each day the
violation continues.
15.4.1.4. For violation of customer service standards: Two Hundred Dollars
($200) per violation, except for violations of customer service
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standards, such as telephone answering standards, where the
operator's compliance is not measured in terms of its response to
individual customers, One Thousand Dollars ($1,000) a month for
any period during which it fails to meet applicable performance
standards; and
15.4.1.5. For all other material violations of the Franchise for which actual
damages may not be ascertainable: Three Hundred ($300)/day for
each violation for each day the violation continues.
15.5. Revocation or Termination of Franchise. In addition to all other rights of the City
under this Franchise, the City shall have the right to revoke or shorten the term of the
Franchise for the reasons specified in the Cable Ordinance as ofthe effective date of
this Franchise, pursuant to the revocation procedures specified in the Cable
Ordinance.
15.6. Remedies Cumulative. The City may exercise any rights it has at law or equity
provided that the City is not entitled to recover damages for the same injury under
two separate sections where doing so would result in a double recovery. If the
Franchisee is subject to liquidated damages pursuant to this Franchise, it shall not be
fined for a violation of the Cable Ordinance for the same violation. The exercise of a
remedy or the payment of liquidated damages or penalties shall not relieve the
Franchisee of its obligations to comply with the Franchise.
15.7. Relation to Insurance and Indemnity Requirements. In the event that recovery by the
City of any amounts under insurance, the construction/performance bond, the letter of
credit, or otherwise does not fully compensate the City for any damage it has
incurred, the Franchisee shall not be relieved of its duty to indemnify the City in any
way; nor shall such recovery relieve the Franchisee of its obligations under the
Franchise, limit the amounts owed to the City, or in any respect prevent the City from
exercising any other right or remedy it may have, except that this provision shall not
be construed or applied so as to result in any double recovery.
Section 16. Rights of Individuals Protected.
16.1. General Obligations. Franchisee shall comply with all provisions of the Cable
Ordinance and Applicable Law regarding nondiscrimination, privacy and protection
from exposure to indecent or obscene programming.
16.2. Respect for Property. No cable, line, wire, amplifier, converter or other piece of
equipment owned or controlled by the Franchisee shall be installed by the Franchisee
inside a dwelling or other occupied structure without first securing the permission of
the owner or the lawful occupant of the property involved (except in those cases
where the Franchisee is permitted by Applicable Law to install such facilities and
equipment inside the structure without permission).
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16.3. Non-Discrimination. Without limiting Section 16.1, Franchisee agrees as follows:
16.3.1.
16.3.2.
16.3.3.
16.3.4.
Franchisee will not deny service, deny access, or otherwise discriminate
against Subscribers, PEG programmers, or residents of the City on the basis of
race, color, creed, national origin, sex, age, conditions of physical handicap,
religion, ethnic background, marital status, or sexual orientation. Franchisee
will comply at all times with all Applicable Law relating to non-
discrimination.
Franchisee will not discriminate among Persons or the City or take any
retaliatory action against a Person or the City because of the exercise of any
right the Person or the City may have under Applicable Law relating to non-
discrimination nor may the Franchisee require a Person or the City to waive
such rights as a condition of taking service.
Franchisee will not deny access or levy different rates and charges on any
group of potential residential cable Subscribers because of the income of the
residents of the local area in which such group resides. Nothing in the
foregoing shall prevent a Franchisee from taking reasonable steps to insure
against non-payment or equipment loss based on the credit history of an
individual subscriber, including, but not limited to, denying service or
requiring a security from subscribers that have a history of damaging cable
system equipment or facilities or failing to make timely payments.
Franchisee will comply with all Applicable Law governing employment non-
discrimination and equal employment opportunities.
Section 17. Continuity of Service.
17.1 Franchisee shall make available all of its Cable Services to potential Subscribers in the
Franchise Area as long as the Subscriber's financial and other reasonable obligations to
the Franchisee are satisfied. Nothing in the foregoing shall prevent a Franchisee from
denying service or requiring a security from subscribers as necessary to protect against
cable service theft, bad debt, employee safety, and damage to cable system facilities
and/or equipment.
17.2 At the City's request, the Franchisee shall operate its System for a temporary period
following termination of its Franchise or any Transfer as necessary to maintain Cable
Service to Subscribers, and shall cooperate with the City to assure an orderly transition
from it to another entity.
17.3 If the Franchisee abandons its Cable System during the Franchise term, the City, at its
option, may operate the Cable System or designate another entity to operate the Cable
System temporarily until the Franchisee agrees to restore and restores continuous Cable
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Service in compliance with the Franchise and the Cable Ordinance or until the Franchise
is revoked and a new entity selected by the City is providing Cable Service.
17.4 The Franchisee shall be deemed to have abandoned the Cable System if it fails to provide
Cable Service in accordance with its Franchise over a substantial portion of the Franchise
Area for fourteen (14) consecutive days unless such failure is due to force majeure or the
City authorizes a longer interruption of service.
17.5 Right Upon Franchise Termination or Revocation. If the City revokes the Franchise or
the Franchise otherwise terminates, the City shall have the following rights, in addition to
the rights specified in this Franchise or under Applicable Law:
17.5.1
The City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails
to do so within a reasonable period of time, the City may have the removal
done at the former Franchisee's and/or surety's expense, subject to any right
of abandonment that may be provided for under Applicable Law.
17.5.2
The City, by the City Council resolution, may acquire ownership or effect a
Transfer of the Cable System at fair market value, or, if the Franchise
terminates or is revoked for cause in accordance with the Cable Ordinance, at
an equitable price. The terms "equitable price: and "fair market value" shall
be interpreted in accordance with 47 U.S.C. ~ 547.
Section 18. Warranties.
18.1. Franchisee warrants that it will obtain any lawful and applicable federal, state or local
authorizations before providing any non-cable services over the Cable System.
Section 19. Miscellaneous Provisions.
19.1. Compliance With Laws. The Franchisee shall comply with all applicable Federal State
and local laws and regulations as they become effective, unless otherwise stated herein.
19.2. Governing Law. This Franchise shall be governed and construed in accordance with the
statutes and laws of the State of California.
19.3. No Pledging of City's Credit. Under no circumstances shall Franchisee have the
authority or power to pledge the credit of City or incur any obligation in the name of
City.
19.4. Venue. Unless otherwise agreed by the parties, in the event that suit arising out of this
Franchise shall be brought by either the City or the Franchisee, the parties agree that
venue shall be exclusively vested in the Santa Clara County Superior Court, or, where
otherwise appropriate, exclusively in the United States District Court for the Northern
District of California.
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19.5. Conflict of Interest. Franchisee certifies that to the best of its knowledge, no City
employee or officer of any public agency has any pecuniary interest in the business of
Franchisee and that no person associated with Franchisee has any interest that would
conflict in any manner or degree with the performance of this Franchise. Franchisee
represents that it presently has no interest and shall not acquire an interest, direct or
indirect, which could conflict in any manner or degree with the provisions of California
Government Code Section 87100 et seq., and certifies that it does not know of any facts
which constitute a violation of said provisions. Franchisee will advise City if a conflict
arises; provided, however, nothing herein shall be deemed to create a duty for Franchisee
to disclose any publicly traded securities of Franchisee which may be held by any such
City employee or officer and which are obtained through ordinary public market
transactions, without any financial or special assistance from Franchisee.
19.6. Force Maieure. The Franchisee shall not be deemed in default with provisions of its
Franchise where performance was rendered impossible by war or riots, civil disturbances,
floods or other natural catastrophes beyond the Franchisee's control, or the unforeseeable
unavailability of (i) materials; or (ii) qualified labor to perform the necessary work. The
acts or omissions of Franchisee's parent entities are not beyond the Franchisee's control,
and the knowledge of such parent entities shall be imputed to Franchisee. The Franchise
shall not be revoked or the Franchisee penalized for such noncompliance, provided that
the Franchisee takes immediate and diligent steps to bring itself back into compliance and
to comply as soon as possible under the circumstances with its Franchise without unduly
endangering the health, safety and integrity of the Franchisee's employees or property, or
the health, safety and integrity of the public, Public Rights-of-Way, public property, or
private property.
19.7. Notices. Unless otherwise expressly stated herein, notices required under this Franchise
shall be mailed first class, postage prepaid, or sent overnight delivery to the addressees
below. Each party may change its designee by providing written notice to the other
party, but each party may only designate one entity to receive notice.
19.7.1.
Notices to the Franchisee shall be mailed to:
Vice President, Government Relations
12647 A1costa Blvd., Ste. 200
San Ramon, CA 94583
19.7.2.
Notices to the City shall be mailed to:
City Clerk, City of Campbell
70 North First Street
City of Campbell, CA 95008-1423
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19.8. Calculation of Time. Unless otherwise indicated, when the performance or doing of any
act, duty, matter or payment is required hereunder and a period of time or duration for the
completion thereof is prescribed and is fixed herein, the time shall be computed so as to
exclude the first and include the last day of the prescribed or fixed period of
duration/time.
19.9. Entire Agreement. This Franchise constitutes the entire agreement between the
Franchisee and the City. Amendments to this Franchise shall be mutually agreed to in
writing by the parties.
19.10. Captions. The captions and headings of this Franchise are for convenience and reference
purposes only and shall not affect in any way the meaning and interpretation of any
provisions of this Franchise.
PASSED AND ADOPTED this 5th
day of AU9ust , 2003 by the following
roll call vote:
AYES:
Councilmembers:
NOES:
Councilmembers:
Watson, Kennedy, Dean, Burr, Furtado
None
ABSENT:
Councilmembers:
None
ABSTAIN:
Councilmembers:
None
APPROVED:
~~r~~
ATTEST:
tZ$-~
Anne Bybee, City Clerk
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EXHIBIT 1
ACCEPTANCE
Joe Fischer, President, Comcast Western Division, Comcast of California II, LLC,
12647 Alcosta Blvd., Suite 200, San Ramon, California 94583, hereby accepts and agrees to be
bound by all the terms and conditions of the Franchise granted by Ordinance No.
as adopted by the Campbell City Council.
Signature:
~~)
~. ~
,,-_.j~V" v'\\",~ .l-,-
Jo "scher, President
Comcast Western Division
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