Ordinance 2096ORDINANCE NO. 2096
AN ORDINANCE OF THE CITY OF ALAMEDA GRANTING
A NON - EXCLUSIVE FRANCHISE TO UNITED CABLE
TELEVISION OF ALAMEDA, INC., FOR THE INSTALLA-
TION, CONSTRUCTION, OPERATION AND REGULATION
OF A CABLE TELEVISION SYSTEM FOR ALAMEDA.
THE CITY OF ALAMEDA ORDAINS AS FOLLOWS:
SECTION 1. Short Title This Ordinance shall be known and
may be cited as the "Alameda Cable Television Franchise Ordinance
with United Cable Television of Alameda, Inc."
SECTION 2. Grant of Franchise This Ordinance is enacted
pursuant to the authority provided in, and all the provisions,
terms and conditions of Ordinance No. 2065, titled
Alameda Cable Communications Ordinance passed and adopted on
August 4, 1981, copies of which are on file in the office of the
City Clerk. The franchise herein granted shall. include the
provisions of said Ordinance; the Request for CATV Proposal
approved by the City Council July 21, 1981, the franchise
application dated October 23, 1981 by United Cable Television of
Alameda, Inc. to the City; the City of Alameda Resolution No.
9770 setting rates and charges; and the City of Alameda
Resolution No. 9769 establishing rules and regulations and
standards of operation, all of which are incorporated herein by
reference and made a part hereof. The franchise requested from
the City by United Cable Television of Alameda, Inc., to install,
construct and operate a cable television system is hereby granted
as herein provided.
SECTION 3. Franchise General Terms and Conditions United
Cable Television of Alameda, Inc., hereinafter referred to as
Grantee, is hereby granted a non - exclusive franchise for a period
of fifteen (15) years from the date of acceptance of this
franchise on the terms and conditions hereinafter set forth.
(a) The Franchise herein granted shall be subject to all of
the terms and conditions of this Ordinance and other documents
comprising the franchise as set forth in Section 2 herein above.
In the event of any conflict between the provisions of this
Ordinance and documents comprising the franchise as set forth in
Section 2, the provisions of this Ordinance will prevail.
(b) Grantee shall build, construct and operate a cable
television system to serve the entire City of Alameda in full
compliance herewith.
(c) Grantee shall meet all Franchise Agreement requirements
regardless of whether or not the assumptions upon which Grantee's
proposal was based prove to be correct. Grantee may make minor
or nonsubstantial deviations to those requirements only where
they do not alter the intent and scope thereof and after notice
to Grantor. Grantor reserves final authority to determine which
changes are minor or nonsubstantial.
(d) Grantor may amend the scope of the franchise from time
to time, upon its own initiative or at Grantee's request, or
where otherwise allowed by law, to allow Grantee to innovate and
implement new levels and /or types of services and developments.
No such services or developments may be implemented by Grantee
without the express prior consent and approval of the City, said
approval not to be unreasonably withheld. Any such amendment
made at the initiative of Grantor shall be made only upon sixty
(60) days notice to Grantee, except that no prior notice shall be
required with respect to any emergency amendment.
SECTION 4. Franchise Recission Requirements The City at
its sole option, may rescind the Franchise Award without
liability to Grantor, if all the following requirements are not
met within sixty (60) days from the effective date of this
Ordinance. The Grantee must:
(a) File with the City Clerk not later than the twentieth
(20th) day from the effective date of this Ordinance, as defined
in Section 24, the Form of Acceptance attached hereto as Exhibit
A accepting the franchise granted herein and the terms and
conditions Grantee agrees to comply with and do all things
required of this Ordinance and the documents comprising this
franchise as set forth in Section 2, and further agreeing to the
payment of liquidated damages as set forth in Sections 6 and 19
herein, to City in the event of Grantee's failure to fulfill its
obligations as set forth in this Ordinance, and the other
documents comprising this franchise.
(b) File with the City Clerk the bond required in Section 19
(b) of this Ordinance and insurance policies as required by
Section 12.2 of Ordinance 2065.
(c) File with the City Clerk proof of the security deposit
required in Section 19(a) herein.
(d) File with the city Clerk within twenty (20) days of
franchise award an agreement to pay the City within thirty (30)
days of receipt of billings the costs realized by the City in the
franchising process leading to the granting of the franchise,
provided that payment shall not become due prior to the effective
date of this Ordinance. Copies of the cost estimates and actual
billings will be submitted to Grantee upon request for same.
(e) File with the City Manager a preliminary construction
and development plan. Such plan will be subject to review by the
City Public Works Director. If comments are not received by
Grantee within thirty (30) days, the plan shall be deemed
approved as submitted. The construction plan shall include but
shall not be limited to, the following items:
(1) A preliminary engineering study or plan, as
appropriate, shall be submitted for the planned
location(s) of the headend, satellite receiver dishes,
antenna tower (if required), and local video produc-
tion studios.
(2) Preliminary local video production studio
design layout and studio capital budget.
(3) Copies of orders or evidence of dedicated
in -stock cable, electronics, and associated parts
and equipment to fifty percent (50 %) of that
necessary to fully construct and equip the Alameda
Cable System, including all interconnects, the studio,
and portable and mobile video production equipment.
(4) Copies of all existing applications for
construction agreements, utility pole contracts, and
contracts for studio construction.
(f) File with the City Manager an agreement to negotiate
with whatever board(s), commission(s), committee(s), or other
agency(s) the City Council establishes for the administration,
regulation, and/or access activities authorized by the franchise
agreement.
(g) File with the City Clerk the hold harmless agreement
required by Section 13(c)(6). Said agreement shall be in the
form set forth in Exhibit B.
SECTION 5. Permits Licenses and Authorizations
Immediately upon acceptance of the franchise, Grantee shall
proceed with due diligence to obtain all necessary permits,
licenses and authorization per Section 7.1 of Ordinance No. 2065.
SECTION 6. Construction Schedule
(a) In addition to the provisions of Subsections 7.1(A) and
Subsections 7.2(A) & ( of Ordinance No. 2065, the Grantee shall
fully complete the system and facilities construction, including
the three initially proposed interconnects, within twelve (12)
months of the effective date of this Ordinance. The complete
system and all facilities shall be fully activated and service
commenced within one (1) month of completion of construction.
(b) Subject to Subsection (4) below, Grantor may, at its
sole option, apply any of the following penalties in connection
with delays in system construction. Prior to Grantor imposing
any of the following penalties, Grantor shall notify Grantee in
writing within thirty (30) days of Grantor's discovery of the
violation alleged and of the penalty to be imposed:
(1) Impose penalty of up to ONE THOUSAND DOLLARS
($1,000.00) a day for each day in excess of thirty (30)
days that any major facility proposed by applicant is not
completed or activated as set forth in Subsection 6(a)
above. For the purpose of this section major facilities
shall include completion of physical plant, signal
processing headend, satellite earth stations, microwave
interconnects, video production facilities including
mobile E.N.G. van, and local office and system
maintenance facilities.
(2) Forfeiture of performance bonds for delays
exceeding four (4) months.
(3) Termination of the franchise for delays exceed-
ing six (6) months.
(4) No penalty shall be imposed without a hearing
before the Council or its so designated representative(s).
No penalty shall be imposed for delays where such delays are
the result of causes beyond the control and without fault or
negligence of the Grantee as determined by Grantor. Grantee
shall be entitled to an extension of time if construction is
suspended or delayed by Grantor or where unusual weather,
acts of God (e.g. major earthquakes, major floods, etc.)
extraordinary acts or extraordinary omissions of third
parties, or other circumstances which are beyond the control
of Grantee, and delay progress, provided that Grantee is not
at fault, and is not negligent under the terms of this
Franchise Ordinance. However, delay in obtaining pole
attachments shall not delay commencement of underground
construction. The degree of fault and /or negligence, and
extension of time allowed shall be reasonably determined by
Grantor.
The extension of time in any case shall not be less than
the actual no- fault /negligence delay experienced by
Grantee. To the extent practicable, the City will assist
the Grantee in resolving any difficulties in obtaining
requisite permits.
(c) Grantee will provide timely notification to all
residents of impending construction in their area by direct mail,
doorhangers, or other effective means, and including statements
as to potential impact on residential properties. Such
notification shall be separate from promotional materiil and
shall itate the approximate date and time for construction
SECTION 7. Undergrounding of CATV Lines The following
requirements are in addition to those set forth in Section 7.3 of
Ordinance 2065.
(a) In new developments or subdivisions the builder,
developer, or subdivider shall be responsible for the performance
of all necessary trenching the backfilling of main line and
service trenches, including furnishing of any imported backfill
material required. Pre- wiring of new homes by builder while
under construction shall be mandatory and acceptable to Grantor
and Grantee. Amplifiers and other active electronic equipment it
the Grantee's transmission and distribution line may be in
concrete boxes, vaults or pedestals on the surface of the ground,
However, all passives for subscriber service taps will be in
pedestals unless otherwise directed by the City. The Grantee
will be responsible for the conduct of the engineering and labor
to put the CATV conduit in the trench. The Grantee will be
responsible for pulling in the cable, and providing the pedestal,
amplifiers, electronics, stub ends and drops to individual homes,
within sixty (60) days following occupancy of thirty -five (35)
housing units or sixty percent (60 %) of housing units, whichever
is less, of each construction phase.
(b) All underground cable installation and procedures must
be approved by the Public Works Director prior to installation.
(c) The word "cable" in the first line of Section 7.9(D) of
Ordinance 2065 is hereby amended to read "conduit ". In lieu of
lease payments referenced in said Section Grantor shall convey
all its interest and title in existing conduit, as is, to Grantee
for the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) in
cash payments as set forth in Section 17 plus one percent (1 %) of
gross revenues. Cash payments credited pursuant to Section 17
shall not be less than TWENTY -FIVE THOUSAND DOLLARS ($25,000.00)
a year until full payment.
SECTION 8. Emergency Power Emergency power sources shall
be provided by the Grantee, at the headend, processing hubs, and
other system locations as may be necessary to guarantee that in
the event of a power failure on any part of the system, service
will be temporarily maintained on the remainder of the system.
SECTION 9. Line Extension Grantee shall extend service
into and throughout new subdivisions, developments and any areas
newly annexed or incorporated into the City at standard
installation and service rates and without regard to any minimum
number of dwelling units per mile.
SECTION 10. Standards of Operation The standards
governing operation of the cable television system adopted by the
City Council by Resolution No. 9769 is by this reference
incorporated herein.
SECTION 11. Customer Service Rules and Regulations
Customer service rules and regulations for the cable television
system adopted by Resolution No. 9769 are by this reference
incorporated herein. The City reserves the right to further
regulate the conduct of the Grantee in regard to the privacy and
property rights of private citizens. Such regulations may
include but are not limited to the security of all records
maintained by the Grantee containing privacy sensitive
information, personnel practices related to such records, and any
other matters related to privacy and individual rights.
SECTION 12. System Outage and Subscriber Complaint Service
(a) The Grantee will maintain a Subscriber Complaint service
operated from Grantee's Alameda office, and qualified technicians
will be permanent members of the Alameda staff.
(b) Routine handling of customer service requests will be
the responsibility of the local staff as follows:
(1) Immediate response and priority correction of
an outage affecting a critical circuit as designated by
the Grantor.
(2) A call involving loss of reception on all channels
will be dispatched to the field immediately via two -way
radio. If the loss of reception on all channels affects
five (5) or more customers, at any time of day or night,
repairs will be commenced immediately and pursued
diligently. Total loss of reception involving less than
five (5) customers will be corrected on the same day
received except if reported after 9:00 p.m.; in which
case, correction may be postponed to the following day.
The majority of all outages (total loss of reception on
all channels) will be corrected in four (4) to eight
(8) hours or less.
(3) The majority of calls involving degraded
reception or signal channel outage will be handled on
the same business day if received prior to 9:00 p.m.
In all cases such service calls will be handled no later
than the following day.
(4) Requests for repairs made after hours or on
weekends shall be answered by an answering service or
staff. Outage calls will be referred immediately to
the standby technician for resolution in accordance
with Subparagraph (1) above. Calls involving degraded
service will be reported by the answering service the
next day. The staff will call the customer to schedule
a service call in accordance with Paragraph (3) above.
(5) Customers will be notified of the complaint
procedure by inclusion of the following text on the
Customer Work Order which is left with the customer:
"Request for repairs should be made to United
Cable Television by calling the local office at
any time. Response will be made immediately or
on the following day, depending on the severity
of the complaint and other circumstances.
Subscribers who have so requested repairs but
are dissatisfied with services rendered are
requested to lodge a written complaint to the
system office."
(c) Grantee will maintain a data base, or "log ", listing
date of consumer complaints identifying the subscriber and
describing the nature of the complaint, and when and what action
was taken by the Grantee in response thereto. From the date when
the system is first energized said record shall be kept
accessible at the Grantee's local office for a period of three
(3) years, and shall be available for inspection during regular
business hours, without further notice or demand by the City
Manager or any other duly authorized representative of the City.
(d) The Grantee will not be responsible for problems created
by subscribers or for problems with subscriber -owned equipment.
The subscriber must allow the service technicians access to the
problem if located on the subscriber's property, or forfeit any
refund due for service outage.
SECTION 13. Local Origination and Ac cess.
(a) The Grantee shall provide and maintain on a permanent
basis Local Origination Studio and Access facilities at an
accessible centrally located position within the City of Alameda.
Location of the facilities to be approved by appropriate
municipal authorities.
(b) The Grantee shall provide, install, maintain and replace
as necessary on a permanent basis equipment for Video Production
Systems at the Local Origination Studio and Access facilities as
proposed in the Grantee's franchise application, except as
modified herein.
(c) The Grantee shall make the video equipment available on
a free rental basis to Alameda residents and non - profit
organizations for public access non - commercial purposes, provided
the following:
(1) Grantee may charge a reasonable deposit for the
safe return of portable equipment.
(2) The user shall be responsible to the Grantee
for any loss of or damage to said equipment.
(3) Said equipment shall be available to Alameda
residents on a "check -out" basis, and Grantee shall be
given reasonable notice by a resident who wishes to use
said equipment.
(4) Residents may not use the equipment for longer
than a reasonable period of time, nor more frequently
than is reasonable.
(5) Grantee may deny use of said equipment to any
resident who, in the judgment of Grantee, is not competent
in the care or use of said equipment.
(6) Grantee shall hold harmless the City from any
damages resulting from the use of Local Origination Studio
and Access facilities and portable equipment, excluding
the use by City employees in City authorized efforts.
(d) Grantee shall provide its staff for training upon reasonable
notice, at the Local Origination Studio, Access facility, and
Alameda public elementary schools, and public middle schools and
high schools as provided in Grantee's Proposal. Grantee may
group potential users of said equipment into training classes for
efficient use of Grantee's and user's time.
(e) Grantee shall provide, in addition to other video
production equipment addressed above, a portapack camera and
appurtenant equipment for both the City's Fire and Police
Departments. Training in the use of this equipment for
appropriate municipal personnel will be provided by Grantee.
(f) The City reserves the right to form a board, commission,
committee, or other agency for the purpose, among other things,
of promoting and administering all Community Access channels
except as preempted by the City Council, State or Federal
authorities. Subject to the approval of the City, the Grantee
shall enter into an agreement or contract with the so designated
agency for support of that agency's responsibilities as addressed
in Section 4 herein. The designated agency may be formed as a
non - profit corporation. The designated agency may be required to
provide administrative services to the community, including the
management and expenditure of the following funds to be deposited
with it by Grantee, but not limited to:
(i) TWO HUNDRED SEVENTY THOUSAND DOLLARS ($270,000.00)
over the term of the franchise to be used to purchase
cablecast rights for programs made by independent
producers, especially those produced locally.
(ii) One (1) ONE THOUSAND DOLLAR ($1,000.00) scholar-
ship to be granted each year to an Alameda communication
student to help in pursuit of studies.
(iii) An annual grant of two percent (2 %) of the gross
revenues of Grantee to be utilized either by the designated
agency to enhance the development of public, educational,
and governmental uses of local production facilities, or
by the City Council for any other purposes permitted by law.
(iv) In the first year of the Franchise Agreement
an amount equal to SEVENTY THOUSAND DOLLARS ($70,000.00)
less the amount received by Grantor under Subsection (iii)
of this Subsection (f) to provide start up funding for
local production facilities.
(v) The monies set forth in Subsections (i) through
(iv) immediately above have been allocated pursuant to
the proposal set forth in Grantee's franchise application,
and the desires of the various institutions involved.
Grantor hereby reserves the right to reallocate all such
monies by appropriate notice in writing to Grantee and
where applicable, enactment of further such ordinances
as it may, in its reasonable judgment, require.
(g) Grantee shall interconnect, at its own cost, the system
with Per to College, so that programming developed and produced
by the college can be routed through the Residential Network
and /or Institutional Network. Grantee's proposed commitment of
ONE HUNDRED EIGHTY SIX THOUSAND DOLLARS ($186,000.00) for the
Peralta Colleges /College of Alameda studio upgrade is to be
reduced to EIGHTY SIX THOUSAND DOLLARS ($86,000.00) with the
remaining ONE HUNDRED 'THOUSAND DOLLARS ($100,000.00) to be
applied to the study(s) addressed in subsection 3(b) of Resolution
No. 9769. Any unused portion of the ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) after the study(s) is complete to
be paid to the City in full within thirty (30) days of demand
by the City.
(h) Grantee will provide the Alameda Unified School District
the services and equipment as proposed in Grantee's franchise
proposal, with the following modifications:
(i) The School District may reallocate in whole,
or in part, Grantee's related funding for the
proposed services and /or equipment (not including
scholarships) to a maximum combined equivalent
cost of TWO HUNDRED THOUSAND DOLLARS ($200,000.00).
The cost basis for reallocation shall be
ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000.00)
for FOUR HUNDRED FIFTY (450) wired classrooms
[calculated at approximately ONE HUNDRED
DOLLARS ($100.00) per drop plus TWO HUNDRED
DOLLARS ($200.00) per converter plus ten
percent (10 %) for converter maintenance
reserve], FORTY THOUSAND DOLLARS ($40,000.00)
for Apple Computers r, nd modems.
(ii) The School District may reallocate in whole, or
in part, Grantee's proposed funding for the nine
scholarships per year remaining from the ten
scholarships per year proposed by Grantee
(reference Section 13(f)(ii) above). The School
District may elect to receive and reallocate upon
reallocation those funds during the first two
years of the franchise term; however, in that
event the maximum equivalent funding required of
Grantee for the nine scholarships per year shall
be a total of ONE HUNDRED THOUSAND DOLLARS
($100,000.00).
(iii) Grantee shall provide the City ONE HUNDRED
SIXTY ONE THOUSAND DOLLARS ($161,000.00)
proposed for development of a second Access
Studio and a Radio Access Studio. ONE HUNDRED
TWENTY THOUSAND DOLLARS ($120,000.00) of said
funds shall be allocated to the Alameda Unified
School District for support of the District's
cable communications production program which
shall, as a condition of said allocation,
operate said studios together with Grantee as
required by this Franchise Agreement. While
said Access Studios may be operated primarily
for educational programming they shall function,
to the extent possible, as a second Public
Access Studio. The School District's plans for
use of said funds shall be approved by the City.
If the School District does not formulate and
execute approved plans within a reasonable time
from initial operation of the system City may
reallocate said funds to another studio location.
The City shall use the remaining FORTY ONE
THOUSAND DOLLARS ($41,000.00) for upgrading the
communications capability of the Council Chambers,
or an alternate second studio site.
(i) Service to private and parochial schools is provided for
in Resolution No. 9770.
SECTION 14. Emergency Alert- Audio /Video Override The
Grantee shall design and construct the CATV system to provide fox
a restricted audio and video simultaneous override of all audit
and video channels during emergencies, as proposed in Grantee's
franchise application, with override to be placed under City
control. The functional design and procedure for implementation
of the Emergency Alert system is to be submitted to the City
Public Works Director for approval prior to construction.
SECTION 15. Rate and Charges Pursuant to the provi =,ions
of said Section 11, of Ordinance No. 2065, and except as
preempted by Federal or State regulations, the Grantee sna.l
charge its subscrit =rs and users the rates and charges a!�r ved
by the City Counci )y Resolution No. 9770, which is by :h e
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reference incorporated herein, and no change in rates and charges
may be made without the prior approval of the City council
expressed by resolution, incorporated herein by reference, as
part of the Franchise Agreement.
SECTION 16. Franchise Fee
(a) In consideration of the granting and exercise of a
franchise as defined in Section 3, of Ordinance No. 2065, for the
operation of a cable television system, the Grantee shall pay to
the City during the life of the franchise, a franchise fee of
three percent (3 %) of the Grantee's annual gross revenues as
defined in Subparagraph (a), Section 12, of Ordinance 2065. Said
fee shall be in addition to the two percent (2 %) fee established
by Section 13(f)(iii).
(b) The franchise fee payments shall be made to the City
Treasurer quarterly based on estimated revenues with a final
year -end payment to be submitted with financial statement within
forty -five (45) days of the end of Grantee's fiscal year,
reflecting any adjustments of the quarterly estimated payments.
All described payments are due within forty -five (45) days of the
end of the subject period.
(c) Upon two working days' notice, the Grantor shall have
the right to inspect all books, records, maps, plans, financial
statements, and other like material of the Grantee at any time
during normal business hours and at Grantee's facilities.
SECTION 17. Initial Payments
(a) Grantee shall pay each year, for the first seven (7)
years of the franchise, monies equal to the sum required by
Sections 7(c), 13(f)(iii), 13(f)(iv) and 16(a), but not less than
TWO HUNDRED SIXTY THOUSAND DOLLARS ($260,000.00).
(b) In the event that the sums required by Subsection (a)
immediately above during the first seven (7) years are less than
ONE MILLION EIGHT HUNDRED AND TWENTY THOUSAND DOLLARS
($1,820,000.00) Grantee shall be entitled to a credit for the
difference beginning in the eighth (8th) year. Said credit shall
be spread out equally over the balance of the franchise.
Payments due beginning in the eighth year shall be equal to the
sums required by Section 7(c), 13(f)(iii) 13(f)(iv) and 16(a)
less any credit due.
SECTION 18. Financing Bonds
The Grantee and Grantor will diligently pursue the use of
Industrial Development Bonds to finance all or a portion of the
costs of construction of the cable system. Any savings generated
through this effort to the Grantee will be shared on the basis of
fifty percent (50 %) to the Grantor and fifty percent (50 %) to the
Grantee.
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SECTION 19. Security Fund and Faithful Performance Bond
(a) Security Fund:
(1) In lieu of the indemnification provisions set forth
in Section 12.5 of Ordinance No. 2065, within sixty (60)
days after the effective date of this Ordinance, the Grantee
shall deposit into a bank account or Certificate of Deposit
established by the Grantor, or provide a bank letter of
credit at a banking institution acceptable to Grantor,
maintaining or guaranteeing the sum of ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) as security for the faithful
performance by it of all provisions of this franchise,
and compliance with all orders, permits and directions
of any agency of the Grantor having jurisdiction over its
acts or defaults under this contract and the payment by
the Grantee of any penalties, claims, liens, and taxes
due the Grantor which arise by reason of the construction,
operation or maintenance of the system. This security
will be maintained throughout the term of the franchise
as a security of aforesaid faithful performance on the
part of Grantee. Provided that upon completion of all
construction provided for in Section 6(a) of this Ordinance
the amount of the Security Fund may be reduced by the
Grantee to FIFTY THOUSAND DOLLARS ($50,000.00).
(2) The Grantee shall be entitled to all interest
if any earned on such account and shall be subject to
any interest penalty for early withdrawal, if any are
incurred, on account of Grantor's withdrawal of funds.
(3) If the Grantee fails, after ten (10) days'
notice to pay to the City any taxes due and unpaid; or
fails to repay to the City within ten (10) days, any
damages, costs or expenses which the City shall be
compelled to pay by reason of any act or default of the
Grantee in connection with this franchise; or fails after
thirty (30) days' notice of each failure by the Grantor
to comply with any provision of the franchise which the
Grantor reasonably determines can be remedied by
expenditure of the security, the Grantor may immediately
withdraw the amount thereof, with interest and any
penalties, from the security fund. Upon such withdrawal,
the Grantor shall notify the Grantee of the amount and
date thereof, in the form of an affidavit stating the
reasons for withdrawal of funds. Within thirty (30)
days after notice to it that any amount has been
withdrawn by Grantor from the security fund, pursuant
to Subsection (a) of this Section, the Grantee shall
restore such security to the original amount.
(4) The security pursuant to this Section shall
become the property of the City if the franchise is
either cancelled by reason of default of the Grantee,
or revoked for cause.
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(5) The rights reserved to the Grantor with respect
to this security are in addition to all other rights of
the Grantor whether reserved by this contract or authorized
by law, and no action, proceeding or exercise of a right
with respect to such security fund shall affect any other
right that Grantor may have.
(6) Any dispute between Grantor and Grantee concerning
the withdrawal of funds from the security by Grantor may
be submitted to arbitration by the Grantee in accordance
with California arbitration statute.
(b) Faithful Performance Bond:
In lieu of Section 12.4 of Ordinance 2065, upon the
effective date of the franchise, the Grantee shall furnish
proof of the posting of a faithful performance bond running
to the City, with good and sufficient surety approved by
the Grantor, in the penal sum of ONE MILLION DOLLARS
($1,000,000.00) conditioned that the Grantee shall well
and truly observe, fulfill, and perform each term and
condition of the franchise, including, but not limited
to, construction. The bond will be both a labor and
materials payment bond whereunder the Surety promises
to pay for the labor and material if the Principal fails
to do so, and a performance bond under which the Surety
agrees that the Principal will perform all of the
franchise terms, not merely for performance of the work
of the franchise. Such bond shall be maintained by the
Grantee throughout the term of this franchise, and any
renewal thereof, plus an additional six (6) months there-
after. Provided that upon completion of all construction
provided for in Section 6(a) of this Ordinance, the
amount of the original bond may be reduced by the
Grantee to THREE HUNDRED THOUSAND DOLLARS ($300,000.00).
SECTION 20. Provisions Relating to Merger of Grantee
In addition to the change of ownership provisions set forth in
Section 5.4 of City Ordinance No. 2065, Grantor reserves the
right to review any proposed merger of Grantee with any company,
corporation or other profit or non - profit enterprise, and should
the merger not meet with the City Council's approval, the City
reserves the right to renegotiate or terminate the franchise.
Such termination shall, however, be made, if at all, not later
than sixty (60) days after receipt of a copy of the merger
agreement. Further, the termination procedure shall be conducted
as set forth in Section 3.4 of City Ordinance No. 2065.
SECTION 21. Capital Commitment Adjustments to Reflect
Change in CPI
Grantee's projected capital commitments proposed in their
franchise application are in 1981 constant dollars, and actual
expenditures, are subject to approval by Grantor and will be
adjusted for inflation as measured by the All Cities CPI and
13
labor costs, rate increases and other factors cnac may cue ueemeu
applicable by the Grantor. This includes, but not limited
to, for example, system upgrade, student scholarships, etc.
SECTION 22. Severability If any section, subsection,
sentence, clause or phrase of this Ordinance is for any reason
held illegal, invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect
the validity of the remaining portions hereof. The Council
hereby declares that it would have passed this Ordinance and
each section, subsection, sentence, clause and phrase hereof,
irrespective of the fact that any one or more sections,
subsections, sentences, clauses, or phrases be declared illegal,
invalid or unconstitutional - The invalidity of any portion of
this Ordinance shall not abate, reduce or otherwise affect any
consideration or other obligation required of the Grantee by the
franchise granted hereunder.
SECTION 23. Notices Every direction, notice or order to
be served upon the Grantee shall be sent to the local office
described in Section 1, of Resolution 9769, establishing rules
and regulations and standards of operations. Every notice to be
served upon the City shall be delivered, or sent by certified
mail to the City Clerk at: City Hall, Santa Clara at Oak,
Alameda, California 94501. The delivery of such notice shall
be deemed to have been at the time of receipt.
SECTION 24. Effective Date This Ordinance shall become
effective thirty (30) days from and after its adoption; provided
however, that the franchise granted by this Ordinance shall not
become effective unless and until Grantee files written
acceptance thereof and an agreement to be bound by and comply
with all of the requirements thereof.
PASSED AND ADOPTED by the City Council of the City of
Alameda, California, this 6th day of liiiy 1982,
by the following vote:
i
AYES: 4 NAYES: 0 ABSENT: ) ABSTAIN:
ATTEST:
j l:a Mayor
t
City Clerk
14
EXHIBIT "A"
ACCEPTANCE OF CABLE TELEVISION FRANCHISE
United Cable Television of Alameda, Inc. (hereinafter
"Grantee "), hereby accepts the nonexclusive Cable Television
Franchise granted by the City of Alameda (hereinafter
"Grantor "). Grantee agrees to comply with all of the
terms and conditions of Ordinance No. , and the
documents comprising the franchise as said documents are
set forth in Section 2 of said Ordinance No. .
Grantee further agrees to the payment of liqui�a£ed
damages, as set forth in Sections 6 and 19 of said Ordinance
No. , to Grantor in the event of Grantee's failure to
fulfill its obligations as set forth in said Ordinance
and other documents comprising this franchise.
Cable Television Franchise
accepted this _ day of
1982
UNITED CABLE TELEVISION OF
ALAMEDA, INC.
By
Vice President
EXHIBIT "B"
INDE MNIFICATION AND HOLD HARMLESS
United Cable Television of Alameda, Inc. (hereinafter
"Grantee "), in accordance with the requirements of Section
13(C)(6) of Ordinance No. , hereby agrees to indemnify
and hold harmless the City of Alameda (hereinafter "City "),
its officers, agents, and employees of and from any
damages resulting from the use of Grantee's Local Origination
Studio and access facilities and portable equipment. Said
indemnification and hold harmless pertaining to said
facilities and equipment shall include the following:
1. Any and all claims and demands which may be made
against City, its officers, agents, or employees by reason
of any injury to or death of any person or damage suffered
or sustained by any person or corporation caused by or
alleged to have been caused by any act or omission,
negligence or otherwise of Grantee, or any employee or
agent of Grantee, or any subcontractor of Grantee, or any
agent or employee of Grantee's subcontractor.
2. Any and all damage to or destruction of the
property of City, its officers, agents, or employees
occurring or used by or in the care, custody or control of
Grantee, caused by any act or omission, negligent or
otherwise, of Grantee, or any subcontractor of Grantee, or
of Grantee's or any subcontractor's employees or agents.
Said indemnification and hold harmless shall not be
applicable where such claims, demands or damages result
from the use of said facilities and equipment by City, its
officers, agents or employees while in the scope of City
employment.
Dated this day of
'r
1982.
UNITED CABLE TELEVISION OF
AMERICA, INC.
By _
Vice President