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HomeMy WebLinkAbout90-493 - Resolutions RESOLLrfION NO. 90-493 A RESOI/Ii~ON OF THE ciTY COUNCIL OF THE c±'l~ OF RANCHO ~, CALIFORNIA, GRANr/NG A CABLE '1'~:~ .~V-/SION FRANf~ISE TO TIMES MIRROR CABLE T":~ .k"V/SION OF RIVqS~IDE COUNTY, INC., DBA DIMenSION CABLE S~VICES A. Recitals. (i) 7he city is authorized to grant, renew, and deny franchises for the construction, maintenance and operation of cable television systems, and to otherwise regulate cable television within the City's bouDd~ries by virtue of Federal and State statu~, the City's polioe powers, the City's authority over its public rights-of-way, and city Ordinance No. 220; and (ii) Times Mirror O~hle Television of Riverside County, Inc., dba Dimension C~hle Services has requested the wzonting of a fifteen (15) year non-exclusive and revocable franchise to construct, maintain and operate a cable television syst~ pursuant to guidelines established by the ~hle C~uLunications Policy ~t of 1984; and (iii) ~ne city of Rancho Cucamonga desires to grant said franchise in accordance with its Ord/nance No. 220 and all other applicable statutes and regulations; and (iv) Ail legal prerequ/sites to t.he adoption of this Resolution have B. Resolution. NOW, THfREFORE, the city Council of the City of Rancho Cucamonga does hereby find, determine, and resolve as follows: 1. In all respects as set forth in the Recitals, Part A, of this Resolution. 2. Times Mirror Cable Television of Riverside County, Inc., dba Dimension Cable Services is hereby granted a fifteen (15) year non-exclusive and revocable franchise to construct, maintain and operate a cable television system pursuant to the terms and conditions set forth in said franchise. 3. Times Mirror Cable Television of Riverside County, Inc., dba Dimension Cable Services shall, within ten (10) days of the passage of this R~solution, file a written acknowledgment and acceptance of the franchise with the city Clerk whereupon said franchise shall immediately become effective. 4. ~he City Clerk shall certify to the adoption of this Resolution. PASS,I), APF~)VfD, and ADOFr3~13 this 27th day of December, 1990. Resolution No. 90-493 Page2 AYES: Alexander, Buquet, Stout, Williams NOES: None ABSf~T: Wright f - ~\ Dennis L. Stout, Mayor D~bra J. ~3ms, City Clerk I, DEBRA J. ADAMS, Cl'l~ CT,k'~K of the city of Rancho Cucan~)nga, Califc~-nia, do hereby certify that the foregoing Resolution was duly passed, approved, and adopted by the City Council of the City of Rancho Cucamonga, California, at a regular raeeting of said City Cotn~cil held on the 27th day of Dec~, 1990. Executed this 28th day of Dec, mgm_r, 1990 at Rancho Cuca~nga, California. D~bra J. ~ ~ms, City Clerk~ - Resolution No. 90-493 Page 3 AN AG~kn~T G~ANrANG A NON-EXCLUSIVE FRANCHISE TO TIMES MIRROR CARLF. U'.:..k~v-/SION OF ~IDE OOL~TY. INC. TO OPERATE A CABLE U'.:,,k~V-iSION SY~r~M IN THE c£'rf OF RANCHO CUCAMDNGA AND s~rriNG FORI~ OOND±'£~ONS ACCOMPANYING THE GRANi'ANG OF THE FRANCHISE Resolution No. 90-493 Page 4 TABLE OF CONTENTS Page SECTION 1: GRANT OF FRANCHISE. SECTION 2: DEFINITIONS 4 SECTION 3: GENERAL R~QUIREM~NTS. 5 SECTION 4: CONSTRUCTION AND SERVICE REQUIREMENTS. SECTION 5: SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS. 10 SECTION 6: SERVICES AND PROGRAMMING. 13 SECTION 7: SUPPORT FOR LOCAL CABLE USAGE . 14 SECTION 8: PURCHASING, TRAINING AND EMPLOYMENT REQUIREMENTS 16 SECTION 9 ~ REGULATION. . 17 SECTION 1(~: FORCE MAJEU~ GRANTEE'S INABILITY TO PERFORM. 19 SECTION 11: HOLD HARMLESS 20 SECTION 12: SEPA~ILITY. 12 EXHIBIT A: CONSTRUCTION AND SERVICE SCHEDULE EXHIBIT B: SCHEDULE OF GRANTEE COMMITMENTS EXHIBIT C: CALIFORNIA LAW A.A. 543 EXHIBIT D: CALXFOI~NIA ~AW A.B. 2892 Resolution No. 90-493 Page 5 AGREEMENT THIS AGR~-MENT, made and entered into ~his 27th day of n~mh~. , 1990 at Rancho Cucamonga, California, by and between the City of Rancho Cucamonga, a municipal corporation of Ye State of Califronia ("Grantor"), and Times Mirror Cable Television of Riverside County, Inc., dba Dimension Cabl~Services ("Grantee ") . W ITNE S S £ TN WHeReAS, the City of Rancho Cucamonga, pursuant to Federal and State law and to Title 7 of ~he Rancho Cuca~onga Municipal Code (referred =o es Title 7 hereafter), is au~.horized tO grant one or more non-exclusive revocable franchisee to operate, construct, maintain and reconstruct a cable television system within the City; and WHEREAS, ~he City, after public hearings, has determined that it ia in ~he best interest of the City and its residents to granu a fra~lchise to Times Mirror Cable Telov~sion of Riverside County, Inc., dba Dimension Cable Services. NOW, TH~R=FOR~, the City (hereinafter also known as Grantor) hereby gran~s ~o Times Mirror Ca~lo Television of Riverside County, Inc., (hereinafter the Grantee) a cable tel.,,ieion franchise in accordance wi=h ~/~e provisions of Title 7, and ~his Agreement. Resolution No. 90-493 Page 6 - 2 - 1. GRANT OF FRANCMISE 1.1 Grant. Times Mirror Cable Television of Riverside County, Inc., a corporation with its principal place of business located at 26858 Cherry Hills Boulevard, Sun City, C~% 92381 is hereby granted for i~self, i~s successors and assigns, ~ ~he ~srms and conditions of ~is Agreement ~d Ti=lc 7 ~e franchise, au=horley, right and privilege, for a fifteen (15) year period from and aS=er the effective da=e hereof, %o cons=rue=, opera~ and ~intain a c~le television system wi:bin %he and p~lic ways within ~e City of Ran~o Cuc~nga. 1.2 Right of Grater to Issue Franchise. Gr~ee acknowledges and accepts ~o right of Grantor ~o issue a franchise ~d Gran~ee agrees i= shall no= now or a= ~y ti~ hereafter challenge right in any way or in any local, s~a~e or FeStal court. ~e franchise ~all bm ~o da~ of e~cu=ion o~ ~is Agreemen~ by ~he Grantor, s~Ject to prior execution by ~O Gran~ee. ~.4 D~m~ion. ~e =m~ of ~e fr~chise shall be fifteen (15) yea~s f~m ~e effec~i~ da~ he.of at whi~ ~me it shall expire and be of no ~or~ an~ effect. ~newal shall bo in accordance wl~h Ti%lo 7 and mpplic~le law. ~.5 Franchise No= Excl,~ive. Tho fr~lse shall no~ cons=rued as any limi=a=ion upon ~e righ~ of Gran=o=, its ~roper officers, ~ grant =o o~er persons or co.re=ions Resolution No. 90-493 Page 7 - 3 - rights, privileges or authority similar =o or di~feren= ~rom the rights, pr&vileges and authority herein se= forth, in the same or other s~ree=s and public ways or public places by franchise, permit Or otherwise, provided, however, =hat such additional grants shall not operate to ma=erially modify, r~voke or terminate any rights grante~ to Grantee herein. 1.6 Franchise Acceptance. The Granuee, by exucu:ing this Agreement, guarantees performance by Grantee of all uf Grantee's obligations hereunder imposed by Title 7 and ~his Agreement. Resolution No. 90-493 Page 8 - 4 - 2. DEFINITIONS For ~e purposes of ~hzs Agreement, the following words, terms, phrases, and e. heir derivations shall have the meanings given herein. When not in¢onsisten~ with ~he context, words used in ~he present tense include ~he fu:ure t~nse, words in the p~uraA number include the singular number and words &n t_he szngular number include ~%e plural number. The word "shall" is always mandatory and not merely directory. The definitions contained in Title 7 are incorporated herein as if fully set forth. 2.1 "A~reement# or "Franchise A~rcemen=" ~anm ~is agreement and ~y amen~en~s or renewals ~ereof. 2.2 "Grante~" ~ans Times Mirror C~le Television of Riverside County, Inc. or any person or en~i=y who or which succeeds Times Mirro= Ca~le Television of Riverside Counzy, !nc. · n accordance w&=h ~e provisions of this fran~ise. ~.3 "Gran,~or" or "Ci=y" mean~ the C~%y of R~cho Cucamonga or i~s ~miega~e acC!n9 wi~in ~%e sc~pe of i~s juris~c=ion. area of ~e City, idmn~ified in =his Agreemen=, whose residents mus~ be p~vided wi~ c~le service prior =o Gr~ee providing service =o ~ other area of ~e Ci=y. 2.5 "Section" ~ans ~y sec=ion, s~sec~ion or provision of ~is Franchise Agrme~n=. Resolution No. 90-493 Page 9 3. GENERAL REQUiReMENTS 3.1 Governin~ Requirements. Granneo shall comDly wi%h the r~quirements of ~his Agreement and Title 7. 3.2 ~ranchise Fee. The Grantee shall pay to :he Granuor an annual franchise fee of five percent (5%) of Gross Annual Revenues derived from operations wi%bin =he City, payable quarterly no la%er =hah April 30, July ]l, October 31 and January 31 of each year, for the preceding quarter. 3.3 Recovery o~ Franch&se .Costs. As provided for in Ti%is 7, Gran=me wi~in ~ir=y (30) days after re=eipt from Grantor of a written i~mmiza:ion, shall rmi~urse Gran=or for irs reasonable ou~-of-9ocket costs in=urred during ~m franchise proce~s, not ~o excee4 ~en~y ~ousand ~llars ($20,000). 3.4 ~ayment to Grantor. No acceptance of any pay~n= shall be construed as an accord ~aC ~e a~ pai~ is in fac~ ~e correct a~t, nor shall ~uch accordance of pay~n= be cons=rued as a release of ~y claim ~e Grantor may have for f~er or effective 4a~e of ~e fran~ise, Grantee shall fu~ish ~roof =ha% sa%&sfac=ory li~ill=y insurance policies are in for=e, in %he minim~ ~o~s of: Resolution No. 90-493 Page 10 - 6 - e Workers' Compensation -- As required by the State of California. o Com~rehensive General Liabili~ -- $I,000,000 each occurrence: $5,000,000 umbrella. · Com~rehensiv_e Automobile Liability -- $1,000,000 The liability insurance policies shall be maintained throughout t. he duration of this franchise, wi~h a certificate %ndicating coverage filed wi~h Grantor. The insuranc~ carrier shall be authorized to do business in California. 3.6 Securit~ Fund. Within t.~irty (30) days a~tsr the effective da~e of t. he franchise, Grantee shall deDosi= into a bank account of Grantor, established ky Grantor, and maintain on deposit, the sum of no% less ~han ?wo Hu~red Fifty Thousand Dollars ($250,000) as security. O~ said amount, no less %hen Twenty-F&ve Thousand Dollars ($25,000) must be in cash~ the £~ma£nder may be in ~he ~orm of an irrevocable letter of th- form of which is stLb4ect to the prior approval of =he Grantor. When service has been made available to all residents of Area of the ISA, 'Chl sec-ari~y fund shall be reduced =0 Twenty-Five Thousand Dollars ($25,000) in t/%e form of an irrevocable of credit, and maintained at this amounU ~hroughou= the term of the franchise. Resolution No. 90-493 Page 11 - 7 - 4. CONSTRUCTION AND SERVICE REQUIREMENTS 4.1 General. The Grantee shall meet or ex=meal all material cons:ruction and service requirements smt out in this Franchise Ag=semen:, regardless of whm~her its s~scriber pene- tration and/c= rmvenue assumptions ~rove to De 4.2 Cons=ruction Schedule. The ISA is ~efinm4 as in ~i= A of ~is Agree~n=. Gr~t~e shall complete cons=rue=ion ~d offer service ~o all ~served residences in Area S of ~he ISA wi~in ~elve (12) ~n~s after ~e effective date of ~is Agreement. Gran~e shall co. lets construc=ion and provide service to all residences in Area A Of ~m ISA concurrent wi~ the occupan~ of ~e residences. of d~ges w~ich ~y be incur=m4 as a ~sul= of a failure by Grantee =o co.lets construction wl~l~ ~e cons~uc:ion period specified in ~ia Agree~n=. Such i~rac=Lcali=y arises ou= of ~y the public who arm denied services or ~m effmc= of non- comple=iun w~ ~spec~ ~ inconven~encm, ~e=~, financial loss, effective and efficimn: ~gula=ion oZ ~m fr~chise for the pro~:ion and pro=mc=ion of ~m ~lic convenience, safe~y and/or welfa~, or o~he= fac~rs which a~ incap~lm of and agrees =o compensate ~e Gr~r in ~e a~un% of Five ~llarm ($500) per day for each calendar day on which Gran:~e Resolution No. 90-493 Page 12 has not completed construcnion of t. he system and provided service to the residents of Area B of the ISA in accordance The Grantor, upon a proper showing, agrees to waive Such liquidated d~ges in the event that a failure =o coolers such construction arises out of Ac:s of God: ear,quake, lightning; flood, fir~; explosion, riots or civil dis=urb~ces; or o:her causes no~ formsee~le ~d beyond ~e control of Gran=ee. For any schedule delay ~a= ~y occur, ~e burden of proof shall be on ~e Grantee =o d~ns=ra~ ~a= su~ delay was beyond i:s reason~le control or was not reasonably foreseeable. The i~osi=ion by Grantor of any da~ges sh~l be In accordance with =he ~rocedures se: for~ in Sec:ion 9.2 hereof.. 4.4 RiCh= of Ins~c=ion of Construction. Grantor shall have =he righ~ ~o inspect all ~ns=~c=ion or ins~llation work perfor~d sub)sc= to ~e ~rovisions of ~e fran~ise and =o make such tests as it shall find necmssa~ to ensure compliance the ter~ of ~e franchise ~d o~mr ~mr=inen= provisions of law. 4.5 P~ovision of Service Outside the ~SA. S~sequen= provision O~ sm~lce to all residences of ~ea B of ~e ISA, Grantor ~d Grates shall nego~a~ in g~d fai~ ~ reach an agree~n= wi~in ninety (90) days afar a Gran~e rmq~s=, ex=end Grantee's franchise and service area as mu:uakly agreed and consistent wl~ app~ic~le law. ~e nego=ia~ons shall include approgria~ lnde~lfica:ion %o Grantor against litigation ~at may con~s= ~m vali~=y of any such ex~nsion of service area, superseding or ~difying ~e hold harmless p~visions of Secnion 1L.1 herein. Resolution No. 90-493 Page 13 - 9 - 4.6 Poe~{ble Termination of Franchise. Grantor and Grant~e agree ~ha~ Granto- may terminate this Franchise A~rmemen~ under either of the following circumstances: (a) If Gran=ee offers ~he f£anchise for ~ale, prior to the provision of service to Area B of the !SA and to all occupied residences of Area A cf the ISA. (b) If Grantee has not acquired a suitable headend site for its cable system in the City, wl~in six (6) months of the effective dar,' of t. his Agreement. 4.7 Office. Grantee shall provide an office wit/~in the City no later than the date of completion of service to Area B of the ISA. Grantee shall provide a ~oll-free telephone number for calla from City subscribers. Resolution No. 90-493,. Page 14 - 10 - 5. SYSTEM DESIGN AND PERFORMANCE ~QUIREMENTS 5.1 System Capacity. The cable television system shall bc installed to deliver signals at f~quencies up ~o at least four hundred fifty (450) megahertz (MHz), with specific capacity as indicated below. Signal Signal Frequency Channel Direction Range Capaci~7 Outbo%~ld 54-450 M]lz 60-62 Video · FM I~o~nd 5-90 MHz 4 Video ~'Data 5.2 ~apa¢ity for Interactive,Residential Services. Grantee shall provide ~he capability for interactive residential services. when such services are offered, all customer equipment necessary ~or such services, such as addressable interac%ive conver=ers, home terminals and home detectors, shall be provided to subscr%~ers by Grantee in acco=dance with established and uniform rate schedules. 5.3 Cablecasting Facilities. Upon ~-he effective da~ of ~his Agremmmn=, Gran~me shall provide a capital grant of $15,000 for cablecasting equipment, which may be located at Charley Community College. The College, through contrac= with the City, may manage t. he Public, Educational and Governman~ (PEG) access program fo= all access users of ~he cable s¥~=em. In considers=ion of %he equLpman= grant, Gran=ee shall ~ot be requi=~d Co p~ov~de any cddit~onal local ~ri~ina=i~n or access facilities or personnel. :' 5.4 In~erconnection. Upon Gran=or request, Gran:ee shall negotiate in good faith to in=erconnec= access channels of =he cable television system with other cable systems in ~he Ci=y. Resolution No. 90-493 Page 15 o Within ~hree (3) months of a Grantor request, Grantee shall report =o Grantor the resulus of ~he negotiations. 5.5 Emer~en~ Aler~ Capability. Wi=bin six (6) ~n~s to ~r~smi~ an e~=gency alert signal ~0 all participating s~scribers. Grantee shall also provide ~ e~rgmncy audio override cap~ili~y =o permi% Gran~r ~ interrupt an~ cablecas~ an audio message on all channels simul=a~eousLy in ~e ~ven= o~ disaster or public e~rgency. 5.6 Stan~y P~r. Grantee shall provide stan~y power generating capacity at ~e cable co~ications system control center and at all hubs capable of providing =~lve (12) hours of emergency p~er supply. 5.7 ~a~ental Control Loc~. Gran~e shall provide su~scr&~srs, upon request, wi~ a parental con=tel locking device or digi=al code ~a: pm~i=s inhibiting ~e v~deo ~ au~o ~or=ions of pay channels. 5.8 ~echnical Standards. ~e Federal Con, ica=ions Co~ission (FCC} Rules ~d ~gula~ions, Par= 76, S~part K Grantee ag=ems, ho~ver, =o u=ilizm ~e following ~:fo~anue objec:~vus as in~e~al ~als and one indica~ion of Gr~=me's qualiby service. Grantor ~d Grantee agree t~= ~e pmrfo~ancm objectives, in ~e~e~ves, will no% be used to ind~ca~ ~y breach of ~e franchise. Resolution No. 90-493 Page 16 - 12 - Performan~-~ Objectives (longest amplifier cascade) A. Signal to noise ratio 45 ~. Hum C. Composite best ratio -55 dB D. Cross ~odulation ratio -55 dB Resolution No. 90-493 Page 17 - 13 - 6. SERVICES AND PROGRAMMING 6.1 Services end Pro~ramm£n~. Unless emergency conditions preva&l, Gran=ee shall not reduce ~:~e number of basic program services wi~hou~ at least thirty (30) days prior W~it~n notification to ~he Grantor and to subscribers. 6.2 Leased Channel Service. Gran=ee shall offer leased channel service at nondiscriminatory re=es and on reasonable terms and conditions, in accordance wi~h applicable law. 6.3 Public, Educational and Government (~EG) Channel,. Grantee shall provide ~he system capacity indicated in Sec=ion 7.2(c) herein for public, educational and gove~nmmn~ usage throughout the life of ~he franchise. Grantee may utilize such channels if no= utilized for PEG purposes, but shall relinquish ~he channels within six (6) months of a Grant~r notification of intended use. Resolution No. 90-493. Page 18 - 14 7. SUPPORT FOR LOCAL CA~L~ USAGE 7.1 PubLic, ~duca~ional and Governmen~ Access. Grantor, at i=s option, may delegate ~o an indepen~nn non-profi~ en~i=y, such as Chaffey Co~i=y Collage, ~e au~ori=y %o manage PEG ch~nels, supper= funds ~d o~or considerations provided by ~e Gran~ee and/or o~e=s, designed ~o pro~=e and develop p~lic-benefit usage of ~e c~le system. 7.2 Grantee Super% for P~li= C~%e System Us~e. Gran~ee shell provide ~e following or eq~valen~ sup~r~ for 9~lic in Sec=ion 5.3 of ~is Agreemen=. (b) P~vision of a gr~= of one ~ollar ($1.00) per subscriber per year for PEG acctss support ~nu~lly for ~e life of =he franchise, based on ~e n~er of basic that ~his arant is no= a fran~ise ~ee, but ra~er is made in lieu of ~e Grantee provid~g ~d ~in:aininq p~lic access (c) Gr~e agrees =o ~o available fo= Gover~nt chapel sh~l ~ dedica~ed for ~e ~e~ of ~o fr~chise, provi~d ~at Gr~o My u~ilizm ~y ~r=ion of ~lS ch~nel no= sched,,~ed for ~rnmn= and Educa~onal provide a second shared ch~nml for Educational and use. G~n~r My ~o= s~mi= such a requeo: ~leso ~e access c~nne~ aL~eud~ M~n~ utilized ~s c~ecas~n~ a~ ~eas~ one Resolution No. 90-493 Page 19 - ~5 - hundred (100) hours per month for six (6) continuous of unduplica=ed v£deo p=ogramming, ~nd, fur=her, =ha= addi'.ional ¢on:empla=ed Governmen= and ~duca=ional programming cannot effec=lvely u=ilize ~he exis=ing channel during ~e %i~ available. 7.3 Ail items in~ica=e~ in Sec%ion 7.2 ~ove shall provided in accordance wi=h the schedule a==ached in Resolution No. 90-493 Page 20 16 - 8. PURCHASING, TRAINING AND EMPLOYMENT REQUIREMENTS 8.1 Local Purchaeinc{ and Hirin~ Policy. Grantee shall es=au~sn a policy of employing City residents within i~s o~ opera:ions, and/or u=illzing City-based fi~s for ~chases and Gran%ee shall provide Gr.=or wi~ a written r~por= of local purchasing and hiring achimve~n=s, upon reas~n~lm reque · =. 8.2 ~qual E~loy~n= 0pport~i=~ and Affir~=i~ Ac=ion P,ro~rams. ~roughou= ~e ~ of ~e franchise, Gran~e shall conduct its business as an =q~l E~loy~n= Affirmative At.on E~loyer. In a~on, ~ro~hou~ of the franchise, ~e Grantee shell ~in~in a 9oli~ ~a= all employment decisions, practices an~ procedures arm ~ase~ merit and ability wi~ou= 41scri~na=ion in violation or Fe4eral law on ~he basis of ~ in~vidual's race, color, religion, age, sex, national origin, or physical ~r ~n~al ac%ions inclu~ing a~ver~sing, ~crui=ing, hiring, =ransfmr, ~era~on, smlec~on for ~raining, ~any carry out ~il poll~ ~rough confined ~ld~ca~on ~ a 4e~e~ined and sustained effort ~ provxdm equal e~loy~n= to all by =aking affi~ ac~on ~ employ ~ ~d~a~ce in e~lOy~nt ~ualifie~ worn, ~norities, ~rsons who physically or ~n=ally ~dicappea ~a Resolution No. 90-493 Page 21 - 17- 9. R~GULATION 9.1 Franchise Regulation. The franchise granted un,er this Agreement shall be subjecn no regulation by Grantor in accordance wi~ ~e provisions of Ti%!e 7 and app[ic~le law. 9.2 ~dies for ~ranchise Violations. (a) In addition to ~e remedies for delays in con- struc=ion as s~cified in Ti=le 7 and Sec=ion 4.3 of Agreemen:, Grantor reserves ~e righ= =0 impose ~e foll~ing remedies in lieu of liquidated ~ages in ~e even= viola=es any o~e= material provision of ~e franchise, ~a= Gran~e ~as no= ~enced corrective ac=ion wi~in (30) days written no~ice by certified mail to ~e general ~ager of ~he Gran~ee. (1) Assess damages, no= =o exceed Fifty ~llars ($50) per day or per incident, for Grantee's individual willful correc=ive ac=ion wl~ respect to a viola=ion of any me,rial provision of ~m customers or classes of customers for degra~ or service LA lu~ m~: and on such ~asis as Gr~o= ~y deem reason~le. Resolution No. 90L493 Page 22 ':~' - 18 - (b) In ~he event the sca=ed violation is not reasonably curable within sixty (60) days, the ~ranchise will not be terminated or revoked or damages amsessed pursuant to Section 4.3 or 9.2(a)(1) of ~is Agreement if ~e StanCes wi=bin ~e said sixty (~0) days, a 91an, satisfac=o~ =o the Granaor, to re~dy ~o viola=ion and continues ~ de~ns~ra=e good ~ai~ in seeking ~o correct said viola=ion. (c) In dete~ining which remedy or re.dies for Gran=ee'~ viola=ion are appropriate, Gr.=or shall take into considera%ion ~e nature of ~e violation, ~he ~rson or persons bear%ng ~he impac= of ~e viola%ion, ~e nature of ~e required in order =o prevent f~er such violation~ and o~%e~ ma=~e=s as ~e Gr~or may deem appropria=e; provided, however, ~a= adequa~ re.dial must be i~osed if service in any way ~erially lessened, or ~f any ~rial provision ~is franchise is no= ~lie~ wi~. (d) within ten (10) ~ayl after rocmi~c o~ a no=ice of a viola=ion from Grantor, Gran~e may request a hearing before a Grantor-designated hearing o~flcer in a full public ~o~eding affor~ng d~ process. SUCh hearing shall be held wi~in ~ir=y (30) days of ~e receip~ of ~e reques= there fo ~e. R~solution No. 90-493 Page 23 - 19 - 10. FORC= MAJEUP. E~ GRANTEE'S INABILITY TO PERFOP, M 10.1 In ~ne even= Grantee's performance of any of the terms, conditions, obligations or requirements of this franchise or Title 7 is preven~d or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penal=les or sanc=ions shall be imposed as a result thereof, provided Grantee has notified Grantor in writing within ~hir=y (30] days of its discovery of ~he occurrmnce of such an event. Such causes beyond Gran~e'e reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes. Resolution No. 90-493 Page 24 '~ - 20 - 11. HOLD HARMLESS 11.1 The Grantee shall defend, indemnify and hold harmless =he Grantor, its officers, boards, commissions, agents and employees, and each of them, against and from any a~d all claims, demands, actions sui%s, liabilities and judgments of every kind and nature and regardless of the merits of =he same, arising out of or related to Grantee's exercise of rights arising from the franchise granted pursuant to'this Agreement and to Ti:!e 7 including costs of investigations, attorneys' fees and court costs in r_he defense of any actions, to t. he extent that such claims or demands are alleged to be ~he result of any error, omission, intentional act or negligent act of Grantee or any persons e~loyed by Grantee. With specific reference to California law, Grantee agrees to lndea~i-y and hold Grantor harmless from and against any lawsuits which challenge Grantor's issuance of a cable television franchise to Grantee under California Assembly Bill 543 ("AB 543"), which bec~ effective January 1, 1990 (a copy of which is at=ached hereto as Exhibit C) and California Assembly Bill 2892 {"AB 2892") which becomes effective january 1, 1991 (a copy of which is a=:ac~ed hereto as Exhibit D). In the event of any lawsuit alleging fha= G=antor violated AS 543 and/or A~ 2892 in ~hu issuance of a franchise to Grantee, Grantor shall= (a) Promptly notify Gran=ee; and Resolution No. 90-493 - 21 - Page 25 (b) Grant to Grantee full control of the defense and settlement of such action; and (c) Cooperat~ fully with Grantee; a~d (d) ,Make no compromise or settlement of any such action without the prior wr&t~n consent of Grantee. The settlement of any claim or action by ~he Grantor without Grantee's prior written consent will release Grantee from its obligations contained in t. his AB 543 and/or AB 2892 indemn&fication. This indemni£ica=ion shall continue in effect for a period of up to one (I) year following the effective date of this Agreement, or when Grantee has completed its service requirements for Area B of the ISA, whichever occurs later, and provided, that Grantee shall continue that indemnification throughout the full period of li%igation, should any such litigation take place. Resolution No. 90-493 Page 26 12. SEPARABILITY 12.1 If any ma=oriel sec=ion of Title 7 and this Agreement, as determined by ~he Grantor, is hold =o be invalid or proemgtsd by Federal or State regulations or laws, ~he Gran~r shall negotia~ with Grantee appropriate modifications ~ ~his Agreement to provide reasonable relief from such invalidi=y or preemption. If ~he part&os are unable ~o roach agreement on such modifica- tions, the dispute will be submi=ted to an arbitrator, in accordance with Califoz~%ia law, who will de~ermine what modlfi- ca=ions are appropriate and the arbitrator's decision shall be binding or% the parties. Resolution No. 90-493 Page 27 - 23- this Ag=eemen= ~he ~a~e and year firs= a~ov~ wri=%en. cITY OF rd44Cl~O CUCA~ONGA A Muni¢igal Corpora:ion ATTEST Resolution No. 90-493 Page 28 EX/{IBIT A CONSTRUCTION A~D SERVICE SCH~DUL= Resolution No. 90-493 Page 29 EXHIBIT A (1) The Initial Service Area (ISA) is definud as Area A and Area B, as outlined in ~hf enclosed map. Area B lies within the f~&n~h~s~ and service areas of other Grant.es (Comcast and DCA Cablevision). Grantee agrees to make ~ervice available within twelve (12) months of tho effective date of this Agreement to all homes within Area B not currently served by any other franchisee. Grantee has no obligation to offer service to any residence served by another Grantee. Grantme shall be permitted to construct a transportation trunkline between Area A and Area B for the purpose of delivering signals from its headend to the ISA. (2) Grantee shall offer service to Area A concurrently with completion and occupancy of residences in Area A. (3) Gran~ee shall no: be required to provide activated two-way capacity on the Fesidential network for at least three (3) years after the effective date of this Agreement. After the fi=st system and services review called for in Section 7.03.080 of Title 7, the City may issue findings indicating that activation ia economically and technically feasible and may require such activation within a reasonable period. Resolution No. 90-493 Page 30 (4) After the second (2nd) system and services revieW, six (6) years from the effective da%e of ~his Agree~n%, the City may issue findings indicating that an independent Institutional Network is economically and technically fo&sible and may require =he construction of =~is ne=work. Such a requirement shall be imposed on all Grantees concurrently. Resolution No. 90-493 Page 31 MAP Resolution No. 90-493 Page 32 Resolution No. 90-493 Page 33 £XMIB%T B SCH£DUL~ 0T GRART~g COMMITMgNT$ Resolution No. 90-493 Page 34 EXIt?B ~.T B (1) Franchiae payments shall be made quarterly on a calendar basiS, and be due and payable wi~in 30 days of the end of each quarter. (2) The cablecas~ing equipment grant of Section 5.3 shall bo provided upon the 0£fec~ivm da~e of franchise. (3) l~e PEG a~¢ess support gran% of Section 7.2(b) shall be provided no la,er than January 31 of each year. P~solution No. 90-493 Page 35 £XHIB%T C CALIFORNIA LAW A.B. 543 P~solution No. 90-493 Page 36 PAGE 1 Display 1989-1990 Bill Text - INFORMATION BILL NUMBER: AB 543 BILL TEXT CHAPTER 700 APPROVED BY GOVERNOR SEPTEMBER 22, 1989 FILED WITH SECRETARY OF STATE SEPTEMBER 25, 1989 PASSED THE ASSEMBLY SEPTEMBER 5, 1989 PASSED THE SENATE SEPTEMBER 1, 1989 AMENDED IN SENATE AUGUST 25, 1989 A~LENDED IN SENATE AUGUST 21, 1989 INTRODUCED BY Assembly Member Moore FEBRUARY 8, 1989 An act to amend Section 53066 of, to add Section 53066.3 to, the Government Code, relating to cable television. LEGISLATIVE COUNSEL'S DIGEST AB 543, Moore. Cable television. Existing law authorizes the granting by a city, county, or city and county of a cable or community antenna television system. Existing law also requires the Public Utilities Commission to establish and enforce rates, terms, and conditions for pole attachments or rearrangements when a public utility and cable television corporation or association cannot agree. This bill would prohibit commencement of the construction of a cable television system without a franchise. The bill would state legislative findings and declarations, and would specify matters that would have to be considered at a public hearing and conditions that woul4 have to be met before a cable television franchiae could be granted in an area where a franchise has already been granted. The bill would provide that nothing in the bill prevents any city, county, or city and county from considering the approval or denial of an additional cable service franchise in any area of the city, county, or city and county, Or the imposing of additional terms and conditions upon the granting of the franchise. The bill would require the jurisdiction to make a final determination on whether or not to grant the additional franchise within 6 months of the application date, as specified. Resolution No. 90-493 Page 37 PAGE 2 Display 1989-1990 Bill Text - INFOP44ATION BILL NUMBER: AB 543 BILL TEXT THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS~ SECTION 1. (a) The Legislature declares that because federal and state courts are examining the permissible scope of regulation of cable television under the First Amendment, it is in the public interest to declare a comprehens£ve policy involving the governmental interests pertinent to the regulation of a cable television franchise. (b) The Legislature finds and declares the following~ (1) The First Amendment interests regarding the provision and reception of cable television are varied and numerous. (2) Access to aboveground facilities may be conditioned upon the franchisee'e ability to minimize any unreasonable impact on the aesthetics of private and public property in the area. (3) ACCESS tO facilities such as utility poles and conduits may be limited, so long as the limitation ia not contrary to the intent of Section 767.5 of the Public Utilities Code, and may be regulated to reflect the policies of the city, county, or city and county regarding the public's right to receive information from a diversity of sources. (4) Access to facilities such as easements, rights-of-way, and streets may be limited to effectuate certain local governmental interests, such as, but not limited to, minimizing unreasonable disruption of existing underground facilities and unreasonable disruption of traffic. (5) If a city, County, or city and county elects to grant an additional franchise in any given area, it shall weigh the positive and negative impacts on the community being served. SEC. 2. Section 53066 of the Government Code is amended to read: 53066. (a) Any city or county or city and county in the State of California may, pursuant to such provisions as may be prescribed by its governing body, authorize by franchise or license the construction of a community antenna television system. In connection therewith, the governing body may prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system. (b) The award of the franchise or license may be made on the basis of quality of service, rates to the subscriber, income to the city, county or city and county, experience and financial responsibility of the applicant plus any other consideration that will safeguard the local public interest, rather than a cash auction bid. (c} The maximum franchise fee for any franchise or license hereafter awarded pursuant to this section or pursuant to any ordinance adopted under authority of this section by any city or county or city and county shall be 5 percent of the grantee's gross receipts from its operations within such city Resolution No. 90-493 Page 38 .. PAGE 3 Display 1989-1990 Bill Text - INFORMATION BILL NUMBER: AB 543 BILL TEXT or county or city and county. Intrastate telecommunications services subject to taxation under Part 22 (co~nencing with Section 44000) of Division 2 of the Revenue and Taxation code shell not be included, prior to July 1, 1988, in the gross receipts subject to any cable television franchise fee. (d) Any cable television franchise or license awarded by a city or county or city and county pursuant to this section may authorize the grantee thereof to place wires, conduits and appurtenances for the community antenna television system along or across such public streets, highways, alleys, public properties, or public easements of said city or county or city and county. Public easements, as used in this section, shall include but shall not be limited to any easement created by dedication to the city or county or city and county for public utility purposes or any other purpose whatsoever. (e) No person may commence the construction of a cable television system without a franchise or license granted by the city, county, or city and county in which the cable television system will operate. SEC. 3. Section 53066.3 is added to the Government Code, to read: 53068.3. (a) If a city, county, or city and county elects to grant an additional cable television franchise in an area where a franchise has already been granted to a cable television operator, it shall do so only after a public hearing notice~ pursuant to Section 6066, in a newspaper of general circulation as defined in Section 6000, where all of the following have been considered: (1) Whether there will be significant ~aitive or negative impacts on the community being served. (2) Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the area. (3) Whether there will be an unreasonable disruption or inconvenience =o existing users, or any adverse effect on future use, of utility poles, public easements, and the public rights-of-way contrary to the intent of Section 767.5 of the Public Utilities Code. (4) Whether the franohise applicant has the technical and financial ability to perform. (5) Whether there is any impact on the franchising authority's interest in having universal cable service. (6) Whether other societal interests generally considered by franchising authorities will be met. (7) Whether the operation of an additional cable television system in the community is economically feasible. (8} Such other additional matters, both procedural and substantive, as the franchising authority may determine to be relevant. (b} Nothing in this section prevents any city, county, or =ity and county from considering the approval or denial of an additional cable service franchise in all or any par~ of the area of the city, county, or city and county, or the imposing of additional terms and conditions upOn the granting of the franchise, as the city, county, or city and county determines is necessary or appropriate. (c) The city, county, or city and county shall make a final determination aa to whether to grant the additional franchise within six months of the application date unless the Jurisdiction can establish that the applicant has unreasonably delayed proceedings designed to consider the matters set forth in Resolution No. 90-493 Page 39 PAGE 4 Display 1989-1990 Bill Text - INFORNATION BILL NUNBKR: AB 543 t BILL TI~XT paragraphm (1) to (8), inclusive, of subdivision (a). (d) Any franchise to provide cable television service in an area already franchise~ and served by an existing c~e o~rator shall re. ire the franchis~ to wire and serve the s~ g~raphical area, and shall contain the s~e public, educational, and gover~ental access retirements that are forth in the existing franchise. Resolution No. 90-493 Page 40 EX}{IB IT D CALIFORNIA LAW A.B. 2892 Resolution No. 90-493 Page 41 ,._ ASSEMBLY BII,I, No. ~8~2 Xntmduced by Assembly Member Moore February 1~, 1990 An act to amend Section 53066.3 of the Covernment Code, relating to cable television. tZC~SCAnV~ COUNSn.'S m~rr AB 1892, as introduced, Moore. Cable television. Existing law empowers any city, county, or city and county in the state to authorize by franchise or license the construction of it community antenna television system. Existing law requires any franchise grant?l, to provide cable television service in an area already, franchised and served by an existing cable operator to require the franchisee to wire and serve the same geographical area, and to contain the same public, educational, and $overnmental access requirements that are set forth in the existing franchise. This bill would limit that requirement to any additional franchise to provide cable television service in an area in which a franchise has already been granted and where an existing cable operator is providing s.e. rvlce or certil~es to the franchising authority that the existing operator is ready, willing, and able to provide service. It would also require the franchisee to wire and serve the geographical area within a reasonable t/me, and in a sequence which does not discriminute agnir~st lower income or minority residents. Vote:. majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. Resolution No. 90-493 Page 42 2892 -- 2 -- Thc people o£ t~c State o£ CM,'for,~ia do enact as follows: '-' SE~ION L Section ~.3 of ~he Governmen~ Code is amended ~o read: ~.3. (a) If a city, county, or city ~d county elects [° 8rant ~ addition~ cable television franc~e in an area where a fr,nch~e h= already ~en grant~ to a cable mlev~ion o~rator, it sh~l do so only ~er a public he=lng noUced p~sum~t ~o S~tion ~, In a newspaper o~ senegal circu]a~lon ~ defm~ in Section ~, where all of ~he {oUowmg have been comtder~: (1) Whether there will ~ =t~tflcan~ ~=itive n.~i~.i~p.ct~3n the ?~munity b.ins ~ed. or t I nemer mer~ ~u oe ~n unre~son~bl~ advers~ e~no~c or ~the~ic impact u~n public or private property wifl~ ~ (~) Whe~er th~r~ wi~ b~ ~ unre~n~ble ~srupfion or inconvonionc~ to exist~ ~rs, or any ~dvers~ ~ffect on ru~re u~e, or utfli~ pol~s, public ~ements, and the pubic ri~h~s~f-w~y contrary to th~ inten~ o~ Section 7~.5 of the Pubic U~ ~e. (4) ~ether the franchise applic~t h= the technical and ~nan~al abi~ty to ~rform. (5) Whether there is any impact on the franchising authofity's interest in having unive~ cable service. (6) Wheth~ other societal inter.ts generally co~dered by fran~is~g autho~tizs will be met, (7) Whether the operation of an addi~onal cable tele~on ~ystem in the ~mmuni~ i~ e~nomically ~sible. (8) Such o~er addi~o~ml matters, ~th procedural and mbstan~ve, m the ~chising authority may dete~in~ to ~ re,ever. (b) Nothing in thh s~on prev~ ~y ~ty, count, or ~ty and county from comidering the approval or deni~ of an additional cable.set.ce fr~ch~e in ~ ~ any ~ ~ ~ ~ea of the city, county, or city and county, subj~t to ~pliaoc~ with su~ivi~o~ (d). or the i~npostng of sd&tion~ ter~ and ~ndiHo~u upon the ~an~ng of thz franchise, m the city, co~ty, or ~ty and Resolution No. 90-493 Page 43 1 county determines is necessary or appropriate. Il (c) The ci~, county, or city and county shall make a 3 final determination as to whether to srant the additional 4 franchise within six montks of the application date unless $ the jurisdiction e~.n establish that ,ti? applicant hms 6 unreasonably delayed proceedings des,Shed to consider ? the matters set forth in paragraphs {1) to (8), inclusive, 8 of subdi¥i.sion (a), 9 (d) An), additiona; franchise gr~nted to provide cable 10 television service in an area ~ ~ ~ 11 se~l~mesistit~ea4~e~ii wMch,a£ranch~e 12 has already been gmmted and where az~ existing cable 13 operator i$ providing service or certi6e~ to the 14 £ra~chising autho~ty that it is ready, v~illiag, and able to t5 provide service, shall require the franchis~e to wire and t6 serve the same Seographical area within a reasonable 17 time and in a sequence which doe~ not discriminate 18 against lower/ncome or rrg~ortty re. dents, and shall 19 contain the same public, educational, and governmental Ilo access requirements that are set forth in the existing 21 franchise. This subdivi~on does not apply where o.o.existing cable operators certify to the 23 authority that they do not intend to provide service 24 with~ a reasonable time to the area to be initially served 25 by the additional £ranchtse.