04-0907_COX COM, INC._Bond Cancellation (2)ISSUE DATE: FEBRUARY 18, 2003
L/C NO.: P-234822
APPLICANT:
************* DIRECT ************** COX COMMUNICATIONS ORANGE COUNTY,
INC
1400 LAKE HEARN DRIVE, N.E.
ATLANTA, GA 30319
CITY OF SAN JUAN CAPISTRANO AMOUNT: USD 10,000.00
32400 PASEO ADELANTO (TEN THOUSAND AND 00/100
SAN JUAN CAPISTRANO, CA 92675 UNITED STATES DOLLARS)
ATTN: CITY MANAGER
WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO.P-234822
IN YOUR FAVOR FOR THE ACCOUNT OF THE ABOVE REFERENCED APPLICANT, UP
TO THE AGGREGATE AMOUNT OF EXACTLY USD10,000.00, EXPIRING AT OUR
COUNTERS IN TAMPA, FLORIDA WITH OUR CLOSE OF BUSINESS ON JUNE 22,
2003, OR ANY FUTURE EXTENDED DATE AS PROVIDED HEREIN.
THIS LETTER OF CREDIT IS AVAILABLE FOR PAYMENT BY PRESENTATION OF
YOUR DRAFTS AT SIGHT DRAWN ON US BEARING THE CLAUSE: "DRAWN UNDER
JPMORGAN CHASE BANK LETTER OF CREDIT NO.P-234822", ACCOMPANIED BY THE
FOLLOWING:
1. BENEFICIARY'S STATEMENT PURPORTEDLY SIGNED BY THE "CITY MANAGER"
READING AS FOLLOWS: "WE CERTIFY THAT THE AMOUNT DRAWN UNDER JPMORGAN
CHASE BANK LETTER OF CREDIT NO.P-234822 IS DUE TO THE FAILURE OF COX
COMMUNICATIONS ORANGE COUNTY, INC. TO COMPLY WITH THE TERMS AND
CONDITIONS OF THE FRANCHISE GRANTED TO COX COMMUNICATIONS ORANGE
COUNTY, INC.".
2. THE ORIGINAL LETTER OF CREDIT.
SPECIAL CONDITIONS:
PARTIAL DRAWINGS) ALLOWED.
ALL DRAFTS MUST INDICATE THE NUMBER AND DATE OF THIS CREDIT.
WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED UPON PRESENTATION
OF DOCUMENTS TO US ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF
CREDIT.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR FROM ITS
EXPIRATION DATE, OR FROM ANY FUTURE EXPIRATION DATE, UNLESS AT LEAST
SIXTY DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE SHALL NOTIFY YOU BY
REGISTERED/COURIER MAIL, THAT WE ELECT NOT TO CONSIDER THIS LETTER OF
CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS DOCUMENTARY CREDIT
IS SUBJECT TO UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
1993 REVISION, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO.500.
PLEASE DIRECT ANY CORRESPONDENCE INCLUDING DRAWING OR INQUIRY QUOTING
-CONTINUED-
4 '% 0 0
P-234822- -001-L1-01-
- 1 -
ISSUE DATE: FEBRUARY 18, 2003
L/C NO.: P-234822
APPLICANT:
************* DIRECT ************** COX COMMUNICATIONS ORANGE COUNTY,
INC
1400 LAKE HEARN DRIVE, N.E.
ATLANTA, GA 30319
CITY OF SAN JUAN CAPISTRANO AMOUNT: USD 10,000.00
32400 PASEO ADELANTO (TEN THOUSAND AND 00/100
SAN JUAN CAPISTRANO, CA 92675 UNITED STATES DOLLARS)
ATTN: CITY MANAGER
OUR REFERENCE NUMBER TO JPMORGAN CHASE BANK, C/O JPMORGAN TREASURY
SERVICES, 10420 HIGHLAND MANOR DRIVE, 4TH FLOOR, TAMPA, FLORIDA
33610, ATTENTION: STANDBY LETTER OF CREDIT DEPARTMENT. CUSTOMER
INQUIRY NUMBER IS (866) 632-5101 AND CHOOSE OPTION 3.
THIS LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
P-234822- -001-L1-01-
2 _
I% • 0
TO:
CITY OF SAN JUAN CAPISTRANO
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
ATTN: CITY MANAGER
OCT 5, 2004
OUR L/C NO.: P-234822
AMENDMENT NO.: 1
APPLICANT:
COX COMMUNICATIONS ORANGE COUNTY,
INC
1400 LAKE HEARN DRIVE, N.E.
ATLANTA, GA 30319
IN ACCORDANCE WITH INSTRUCTIONS RECEIVED, THE ABOVE REFERENCED STANDBY
LETTER OF CREDIT HAS BEEN AMENDED AS FOLLOWS:
RECEIVER'S REFERENCE: NONREF
L/C INCREASED BY: USD162,500.00
NEW L/C AMOUNT: USD172,500.00
ALL OTHER TERMS AND CONDITIONS OF THE CREDIT REMAIN UNCHANGED.
AUTHORIZED SIGNATURE
0
Christy Jakl
0
From: Douglas Dumhart
Sent: Monday, April 20, 2009 4:40 PM
To: Christy Jakl
Subject: FW: Expiring franchise bond _ (pox{
-----Original Message -----
From: James. Leach@cox.com [mai Ito: James. Leach @cox. com]
Sent: Monday, April 20, 2009 4:39 PM
To: Douglas Dumhart
Subject: RE: Expiring franchise bond
We'll run it down. Ordinarily they'll come to us with new materials prior to cancellation.
I'm on it. Thanks.
Jim Leach I Vice President I Cox Communications
29947 Avenida de las Banderas I Rancho Santa Margarita, CA 192688 voice 949/546-2406 1 fax
949/546-3406
-----Original Message -----
From: Douglas Dumhart [mailto:DDumhart@sanjuancapistrano.org]
Sent: Monday, April 20, 2009 3:54 PM
To: Leach, Jim (CCI -Orange County)
Subject: Expiring franchise bond
Jim:
Looks like we received notice your Bonds are being cancelled. Does Cox have a new Bonding
Company? When might we see the new paperwork?
Regards, Douglas.
1
0
Liberty NOTICE OF BOND
MutuAlm CANCELLATION
CC: COXCOM, INC. DIBA COX COMMUNICATIONS ORANGE COUNTY
MARSH USA INC 41-0600
(OBLIGEE'S NAME/ADDRESS)
TO: CITY OF SAN JUAN CAPISTRANO: CITY CLERK
32400 PASEO ADELANTO
SAN JUAN CAPISTR CA 92675
is Liberty Mutual Surety
1001 4th Avenue
Suite 1700
Seattle, WA 98154
You are hereby notified that SAFECO INSURANCE COMPANY OF AMERICA Surety upon
TypeofBond: FRANCHISEBOND
Bond No. 4151531- 0155
date effective 03/05/1985
(MONTH, DAY, YEAR)
on behalf of (PRINCIPAL'S NAME/ADDRESS)
COXCOM, INC. DBA COX COMMUNICATIONS ORANGE COUNTY
C/O 1400 LAKE HEARN DRIVE
ATLANTA GA 30319
desires to cancel and does hereby cancel said bond in accordance with the cancellation provisions contained therein or in
applicable laws or regulations. This notice is Cj
mailed to you ori0�K / O
(MONTH, DAY, YEAR)
and is effective O ac, 'r C+C/Yl &t-C—L -?-k
S CO INSURANCE OMPANY OF AMERICA o
By:
(ATTORNEY- ACT)
Cancellation Acknowledged: (PLEASE SIGN, PRINT NAME, TITLE, AND RETURN THE DUPLICATE OF THIS NOTICE)
M
(PRINT)
(SIGN)
Dated:
(MONTH, DAY, YEAR)
CANCEL REASON: PER V. MCMANUS
S-1209/SA 5/03
(TITLE)
IED
COOPERATIVE AGREEMENT
0
This COOPERATIVE AGREEMENT is made and entered into on this 7t' day of
September 2004, by and between the City of San Juan Capistrano, California
(hereinafter "CITY") and CoxCom, Inc. dba Cox Communications (hereinafter "COX").
RECITALS
WHEREAS, in the course of its cable television franchise renewal activities, the City
conducted an ascertainment study comprising of a citizens survey and
financial review; and
WHEREAS, the City participated in a "Agreed Upon Procedures Review" (hereinafter
"Review") conducted by Diehl, Evans, & Co., LLP, which reviewed, among
other things, the franchise fees paid to the City by Cox for the calendar
years 1997 through 2001 and identified certain discrepancies in such
franchise fee payments to the City; and
WHEREAS, the City participated in scientific Survey of Cable subscribers and non -
subscribers to identify community needs and interests as they relate to
cable television services (hereinafter "Survey"); and
WHEREAS, City and Cox are entering into this cooperative agreement in order to
resolve those franchise fee discrepancies and the other findings from the
ascertainment study; and
WHEREAS, City and Cox are entering the cooperative agreement in order to
reimburse the City for its portion of the expense of the Survey as part of
the franchise renewal process:
NOW, THEREFORE, in consideration of the promises and undertakings herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties do hereby agree as follows:
1. Cox will pay the City the sum of fifty-seven thousand six hundred dollars
($57,600.00) within 30 days of the full and complete execution of this
agreement. Such payment will be made by Cox to resolve any and all
outstanding issues under the Franchise Agreement and the Review and not
as an admission of any liability or wrongdoing on the part of Cox. Such
payment shall not be deducted from any franchise fee payments owing to the
City or be passed through to subscribers or itemized on a subscriber's bill.
2. Except as otherwise provided herein, the City hereby releases all known and
unknown liabilities, claims, and causes of action which were or could have
been asserted against Cox or its officers, directors, employees, agents,
1
SD
t
parents, subsidiaries and affiliated companies, with regard to events or
occurrences related to the Review conducted on behalf of the City covering
periods up to and including December 31, 2001.
This Agreement shall bind and benefit the parties hereto and their respective
heirs, beneficiaries, administrators, executors, receivers, trustees, successors
and assigns.
4. This Agreement is freely and voluntarily given by each party, without any
duress or coercion, and after each party has consulted with its counsel. Each
party has carefully and completely read all of the terms and provisions of this
Agreement.
This Agreement shall be governed and construed in accordance with the laws
of the State of California and exclusive venue shall be in the County of
Orange whether Federal or State Court as may be appropriate.
IN WITNESS WHEREOF the parties hereto certify that they have read and understand
all of the terms and conditions herein and have duly authorized and caused this
Agreement to be executed as of September 7, 2004.
ATTEST:
R. Monahan,
APPROVED AS TO FORM
Clerk
,Special Counsel
fornia
CoxCom, Inc. dba Cox Communications
Leo Brennan, Vice President/Region Manager
0
AGENDA REPORT
TO: Dave Adams, City Manager:�)ti
• 9/7/2004
FROM: Douglas D. Dumhart, Economic Development Manager
SUBJECT: Consideration of Cable Television Franchise Agreement and Cooperative
Agreement — Cox Communications
RECOMMENDATION:
By Motion, approve the Cooperative Agreement and Franchise Agreement for Cable
Television Services with Cox Communications.
SUMMARY:
The City's Cable Television (CATV) Franchise Agreement has been under contract
negotiations for the last 3 '/z years. On November 7, 2000, the City entered into a
Mutual Aid and Cooperation Agreement with several other South Orange County Cities
to form a collective bargaining unit for Franchise renewal.
This bargaining consortium contracts with William Marticorena of Rutan & Tucker to
provide special counsel for franchise agreement negotiation. William Marticorena has
represented the City of San Juan Capistrano for several years on this specialty issue.
Mr. Marticorena also represents several other South Orange County cities in their
franchise dealings with Cox Communications.
The first step of the franchise renewal process is an Ascertainment Study. The
Ascertainment Study is comprised of two components: a citizen survey and a financial
audit.
Using common legal counsel, auditors, and research firm the consortium updated their
CAN ordinances, conducted a citizens satisfaction survey, and an agreed-upon
procedures financial review of Cox CATV services. On January 7, 2003, the City
adopted its updated CAN ordinance. On October 31, 2002, the citizen's satisfaction
survey was completed; and on July 5, 2004, the financial audit was concluded.
A Cooperative Agreement was reached to resolve matters pertaining to the financial
review and a portion of the expenses associated with the franchise renewal process.
Staff and legal counsel have completed a new Franchise Agreement for CATV services
and are recommending its approval.
Agenda Report
Paae 2
BACKGROUND:
Citizens' Survev
September 7, 2004
Godbe Research was retained to implement a scientific survey and produce an
objective, reliable measurement of resident's attitudes, behaviors and needs as they
relate to cable television services. The study was prepared for the collective bargaining
group of the Cities of Dana Point, Laguna Niguel, Laguna Beach, Lake Forest, Rancho
Santa Margarita, San Clemente and San Juan Capistrano.
Fourteen hundred residents were polled, representing approximately 200 residences in
each community. The survey was conducted from September 13, 2002 to September
30, 2002. The overall synopsis is out of 10,930 households in San Juan Capistrano,
8,963 households have cable TV, representing an 82% penetration rate. Close to 80%
of the cable TV subscribers surveyed were more than satisfied with cable services, and
12% were neutral. The satisfaction level and penetration rate are very high for the
industry standard and the City and Cox should be happy with the results.
Agreed -Upon Procedures Review
Diehl, Evans and Company, LLP, prepared the financial audit of Cox Communications.
The audit period covers the five-year period from January 1, 1997 through December
31, 2001. The audit revealed issues in three categories. They are:
1.) Advertising Revenues - Most cable companies utilize a separate legal entity to
conduct their advertising operations. CableRep is a wholly owned subsidiary of
Cox. If the advertising entity is under common ownership or control by the cable
company (51% interest) the general accounting practice is to "look through" to
the books of the advertising entity as to the gross revenues that should be
reported for franchise tax purposes.
2.) Bundle Discount Program - Cox runs a discount program to customers that order
all three services (voice, video and data). Because the franchise authorities do
not regulate voice and data mediums, Cox would not share their books on these
services. The City could not ascertain whether those customers who have the
triple play discount are applying their discount to CATV (video) and thus lowering
gross receipts for franchise fee purposes.
3.) Cable Launch Fees — These are fees the cable company receives from
programming networks for launching a new network on the cable system. The
cable companies book these launch fees as a reduction of operating costs
associated with updating printed material and on -air programming awareness
spots. No Franchising Authority has seen these contracts and thus has not been
privy to the amounts or purposes of these launch fees. If they are in the form of a
lump sum cash payment and not a reimbursement of actual specific
0
Agenda Report
Paae 3
0
September 7, 2004
expenditures, then the cable company should allocate such amounts as gross
receipts.
The Cooperative Agreement and new Franchise Agreement address the audit issues.
Cooperative Agreement
Cox has agreed to reimburse the City its cost for the citizens' survey in the amount of
$4,969.10. Cox has also agreed to pay $57,600.00 to globally address all audit issues.
This amount is equal to the franchise fees due on advertising revenues for the review
period. The bundle discount issue is addressed going forward with language in the new
Franchise Agreement. The Launch Fees are believed to be a one-time industry
phenomenon associated with the technology bubble. As discussed above, no
franchising authority has seen the terms of such launch fee agreements. A more
lucrative public programming grant (described below) was offered by Cox to cover
issues like launch fees. The Cooperative Agreement is provided as Attachment 1.
Franchise Agreement
Cox is seeking a 15 -year agreement. The City has been annually renewing their
contract while it continued to participate in collective negotiations for nearly 4 years.
Staff sought the term to initiate from the expiration of the Original Agreement in
December 2000. Cox offered to split the difference since they felt the delay of 4 years
was not solely attributable to their actions. Hence, the agreed upon Franchise is a 15 -
year term starting from 2002. The Franchise term is through January 1, 2017.
In exchange for a 15 -year franchise, Cox was offering a Programming grant of $60.00
per subscriber. This offer is $20.00 per subscriber more than what the City of Mission
Viejo and Also Viejo had recently negotiated. The programming grants are funds to be
paid to the City in a lump sum up front payment and will not show up as a line item on
the CATV bill. San Juan Capistrano has approximately 10,000 subscribers. The
summary deal points of this agreement are as follows:
Franchise Term
Franchise Term of fifteen (15) years measured from 2002. New Franchise
expires January 1, 2017.
Public, Education, Government (PEG) Grants
Initial PEG Grant of $60.00 per Basic Service Tier ("BST") Subscriber as of the
Effective date.
Additional Pro -rata PEG Grants payable on the Sixth Anniversary based upon
subscribers secured by Cox through new construction in the City.
Agenda Report
Paae 4
September 7, 2004
Cox will not pass-through or line itemize PEG Grants and will not charge rates
higher than those charged in other communities served off the same head end
which have received lesser PEG Grants.
Public. Educational and Government ("PEG") Channels
Cox will provide a minimum of three (3) dedicated analog PEG Channels for
exclusive municipal use.
Expansion of PEG Channel capacity to a maximum of five (5) analog channels
based upon Usage Triggers.
Reimbursement of up $7,500 for City costs incurred in change in channel line-up.
Digital conversion factor of 4:1 (if Cox goes all digital, Cities receive up to twenty
(20) digital channels).
PEG Channels, at City's election, viewable only in City or may be broadcast on a
regional basis.
City will control all PEG Channels although it may enter into agreements with
educational institutions to administer and program the Education Channel.
Support for Public Assess Programming
Public access channel available at the discretion of the City.
Cox will maintain existing level of studio and administrative support for public
access programming throughout Franchise Term.
Definition of Gross Revenue for the Purposes of Calculating Franchise Fees
Broader definition of Gross Annual Revenue than currently exists in the
Franchise.
Bundled discounts to be allocated "pro rata" among Cable Service and Non -
Cable Service revenues as defined by the Mission Viejo franchise.
No reduction in Advertising Revenues.
Liquidated Damages and other Enforcement Remedies
Liquidated damages of Two Hundred Dollars ($200.00) for most franchise
violations.
Liquidated damages collectable against Letter of Credit, which will be provided in
a minimum amount of $100,000.
0
Agenda Report September 7, 2004
Rape 5
Connections to City Facilities
Four (4) cable drops provided to each existing public facility.
All public facilities to receive Basic and Cable Service and residential speed
cable modem service without charge.
All future facilities located within five hundred (500) feet of the Cable Plant will be
connected.
Designated facilities such as City Hall, to be connected to "reverse path" of Cable
System allowing transmission of live programming directly to subscribers via
Cox's head end.
System Design
Hybrid Fiber Coax architecture engineered to deliver signals at forward
frequencies up to and including a minimum bandwidth of 750 MHz.
Cable System to provide no less than 110 analog channels.
Cable System will be two way activated and provide standby power.
Cable System will provide an audio -only emergency alert system on a dedicated
basis so that emergency transmissions can be sent only to residents located
within the City.
Universal Service
The Cable System will pass all residential structures, except those specifically
delineated in the franchise.
Most Favored Nations Clauses
Subscribers within the City will be provided all services offered by Cox in its
California, Arizona and Nevada Cable Systems.
All Subscribers in the City will be offered the same services offered by Cox in
other communities served from the same head end.
To the extent that Cox enters into new franchises, renewed franchises, or
franchise extensions with other cities located in Orange County or with the
County of Orange itself, it will be required to extend to the City any PEG access
provisions, including PEG Grants or Cable System technology to subscribers in
this community.
Agenda Report September 7, 2004
Page 6
The Franchise Agreement is provided as Attachment 2. At this time staff is
recommending approval of the Cooperative Agreement and new Franchise Agreement
for Cable Television services.
COMMISSION/BOARD REVIEW & RECOMMENDATIONS:
Not Applicable
FINANCIAL CONSIDERATIONS:
The City does not set cable television subscription rates. The Cable Television
Consumer Protection and Competition Act of 1992 regulates cable television systems.
The Federal Communication Commission (FCC) implements the 1992 act, and its rate
provisions. The Cable operator sets rates that fall within the FCC's set rate schedule.
The City does set the franchise fee. The franchise fee is 5% of gross revenues. The
City receives approximately $350,000 annually in cable television franchise fees. The
new franchise agreement also provides for a Public, Education, Government (PEG)
Grant for the purpose of technological development and implementing non-commercial
public, benefit uses of the cable system. The grant in the amount of $60.00 per basic
subscriber is to be utilized for any capital or non -capital purpose.
The combined franchise fee and PEG grant over the term of the franchise are valued in
excess of $5M.
NOTIFICATION:
*William Marticorena, Rutan & Tucker
*Jim Leach, Cox Communications
RECOMMENDATION:
By Motion, approve the Cooperative Agreement and Franchise Agreement for Cable
Television Services with Cox Communications.
RespectfullyVOL144-4--
A(
ouglas D. Dumhart
Economic Development Manager
Attachment 1: Cooperative Agreement
Attachment 2: Franchise Agreement
0 0
COOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT is made and entered into on this 7t" day of
September 2004, by and between the City of San Juan Capistrano, California
(hereinafter "CITY") and CoxCom, Inc. dba Cox Communications (hereinafter "COX").
RECITALS
WHEREAS, in the course of its cable television franchise renewal activities, the City
conducted an ascertainment study comprising of a citizens surrey and
financial review; and
WHEREAS, the City participated in a "Agreed Upon Procedures Review" (hereinafter
"Review") conducted by Diehl, Evans, & Co., LLP, which reviewed, among
other things, the franchise fees paid to the City by Cox for the calendar
years 1997 through 2001 and identified certain discrepancies in such
franchise fee payments to the City; and
WHEREAS, the City participated in scientific Survey of Cable subscribers and non -
subscribers to identify community needs and interests as they relate to
cable television services (hereinafter "Survey"); and
WHEREAS, City and Cox are entering into this cooperative agreement in order to
resolve those franchise fee discrepancies and the other findings from the
ascertainment study; and
WHEREAS, City and Cox are entering the cooperative agreement in, order to
reimburse the City for its portion of the expense of the Survey as part of
the franchise renewal process:
NOW, THEREFORE, in consideration of the promises and undertakings herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties do hereby agree as follows:
Cox will pay the City the sum of fifty-seven thousand six hundred dollars
($57,600.00) within 30 days of the full and complete execution of this
agreement. Such payment will be made by Cox to resolve any and all
outstanding issues under the Franchise Agreement and the Review and not
as an admission of any liability or wrongdoing on the part of Cox. Such
payment shall not be deducted from any franchise fee payments owing to the
City or be passed through to subscribers or itemized on a subscriber's bill.
2. Except as otherwise provided herein, the City hereby releases all known and
unknown liabilities, claims, and causes of action which were or could have
been asserted against Cox or its officers, directors, employees, agents,
ATTACHMENT
parents, subsidiaries and affiliated companies, with regard to events or
occurrences related to the Review conducted on behalf of the City covering
periods up to and including December 31, 2001.
3. This Agreement shall bind and benefit the parties hereto and their respective
heirs, beneficiaries, administrators, executors, receivers, trustees, successors
and assigns.
4. This Agreement is freely and voluntarily given by each party, without any
duress or coercion, and after each party has consulted with its counsel. Each
party has carefully and completely read all of the terms and provisions of this
Agreement.
6. This Agreement shall be governed and construed in accordance with the laws
of the State of California and exclusive venue shall be in the County of
Orange whether Federal or State Court as may be appropriate.
IN WITNESS WHEREOF the parties hereto certify that they have read and understand
all of the terms and conditions herein and have duly authorized and caused this
Agreement to be executed as of September 7, 2004.
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
William �Marticorena., Special Counsel
City of San Juan Capistrano, California
Joe Soto, Mayor
CoxCom, Inc. dba Cox Communications
Leo Brennan, Vice President/Region Manager
0 0
FRANCHISE TO PROVIDE CABLE TELEVISION SERVICES
BETWEEN THE CITY SAN JUAN CAPISTRANO, CALIFORNIA
AND COX COMMUNICATIONS, INC.
THIS AGREEMENT AND FRANCHISE (the 'Franchise") is made and entered into this
7`d day of September, 2004, by and between Cox Com, Inc., dba (hereinafter "Cox") and
the City of San Juan Capistrano, California ("City").
1. Authority
This Franchise has been granted and approved pursuant to the provisions of
Title 7 Chapter 2 of the Municipal Code of the City of San Juan Capistrano. This
franchise is in the form of a nonexclusive franchise, contract and agreement.
2. Definitions
All terms used in this Franchise Agreement shall be as defined herein and in Title
7 Chapter 2 of the San Juan Capistrano Municipal Code ("SJCMC"). The
provisions of the Municipal Code and the wordings, specifications, and
requirements in this Franchise Agreement shall constitute the terms of a
franchise as authorized in said SJCMC in the form of an agreement to permit use
of the public rights of way by City and to provide the cable television services by
Cox. Where this Franchise and the aforementioned Chapter conflict, the
Franchise shall prevail.
A. For the purposes of this Franchise, the following words, terms, phrases,
and their derivations have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the
future tense, and words in the singular number include the plural number.
Complaint means a dispute in which a Subscriber notes Grantee of an
outage or degradation in picture quality, billing or other issue pertaining to
the Subscriber's Cable Service which is not corrected during the initial
telephone or service call.
Control or Controlling Interest means actual working control in whatever
manner exercised, including, without limitation, working control through
ownership, management, debt instruments, or negative control, as the
case may be, of the Cable System or a Grantee. A rebuttable
presumption of the existence of Control or a Controlling Interest shall arise
from the beneficial ownership, directly or indirectly, by any Person or
group of Persons acting in concert (other than underwriters during the
period in which they are offering securities to the public) of twenty percent
(20%) or more of any Person (which Person or group of Persons is
referred to as "Controlling Person"), or being a parry to a management
contract.
ATTACHMENT 2
Gross Annual Revenue or Gross Annual Receipts or Gross Receipts
means all revenue, as determined in accordance with Generally Accepted
Accounting Principles, which is received, directly or indirectly, by Grantee
and by each Affiliated Person from or in connection with the distribution of
any Cable Service, and any other Service which may, under now or then
applicable federal law, be included in the Cable Act definition for the
purpose of calculating and collecting the maximum allowable franchise fee
for operation of the System whether or not authorized by any Franchise,
including, without limitation, leased or access channel revenues received,
directly or indirectly, from or in connection with the distribution of any
Cable Service. It is intended that all revenue collected by the Grantee
from the provision of Cable Service over the System, whether or not
authorized by the Franchise, be included in this definition. Gross Annual
Revenue also specifically includes any revenue received, as reasonably
determined from time to time by the Grantor, through any means which is
intended to have the effect of avoiding the payment of compensation that
would otherwise be paid to the Grantor for the Franchise granted. Gross
Annual Revenue also includes any bad debts recovered. Gross Annual
Revenue also includes all advertising revenue, which is received directly
or indirectly by Grantee, or any Affiliated Person from or in connection with
the distribution of any Service over the System or the provision of any
Service -related activity in connection with the System. Gross Annual
Revenue does not include: (i) the revenue of any Person to the extent that
said revenue is also included in the Gross Annual Revenue of Grantee; (ii)
taxes imposed by law on Subscribers which Grantee is obligated to
collect; and (iii) amounts which must be excluded pursuant to applicable
law.
B. Terms Not Defined — Words, terms, or phrases not defined herein shall
first have the meaning as defined in the Cable Act, and then the special
meanings or connotations used in any industry, business, trade, or
profession where they commonly carry such special meanings. If those
special meanings are not common, they will have the standard definitions
as set forth in commonly used and accepted dictionaries of the English
language.
3. Scope of Franchise
A. Cox is authorized and obligated to construct, reconstruct, and operate the
System within the public streets and rights-of-way. This authority includes
the privilege to use Cox's cable television system in City. (the "System") to
provide Cable Service to customers in the Service Area located in all
residential dwellings, commercial structures and industrial structures.
B. This Franchise Agreement solely and exclusively creates, defines, and
limits the legal rights and. obligations between City and Cox and does not;
in any way, obligate City to take any action, actions or refrain from taking
any action, or actions, to or in relation to any third party.
-2-
4. Payments
Regular Percentage Franchise Fee. Cox shall pay a sum equal to five percent
(5%) of Gross Annual Revenue for the quarter to City within forty-five (45) days
after the close of each calendar quarter. Cox expressly acknowledges and
agrees that:
A. Except for the payments expressly required by this Section 4, none of the
payments or contributions made by, or the services, equipment, facilities,
support, resources, or other activities required to be provided or performed
by Cox pursuant to this Agreement are franchise fees chargeable against
the compensable payments to be paid to City by Cox pursuant to this
Section 4; and
B. As applicable, except for the compensation payments expressly required
by this Section, each of the payments or contributions made by, or the
services, equipment, facilities, support, resources, or other activities to be
provided by Cox, are voluntary and are not "franchise fees" within the
meaning of the Cable Act (47 U.S.C. §542.(g)(2)); and
C. The compensation payments due from Cox to City pursuant to this Section
shall take precedence over all other payments, contributions, services,
equipment, facilities, support, resources, or other activities to be paid or
supplied by Cox pursuant to this Franchise; and
D. The compensation and other payments to be made pursuant to this
Franchise Agreement shall not be deemed to be in the nature of a tax, and
shall be in addition to any and all taxes of general applicability or other
fees or charges which Cox or any Affiliated Person shall be required to
pay to the City or to any state or federal agency or authority, all of which
shall be separate and distinct obligations of Cox and Affiliated Persons;
and
E. Neither Cox nor any Affiliated Person shall have or make any claim for any
deduction or other credit of all or any part of the amount of the
compensation or other payments to be made pursuant to this Franchise
from or against any city or other governmental taxes of general
applicability (including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services but not including a tax, fee, or
assessment which is unduly discriminatory against cable operators or
cable subscribers or income taxes) or other fees or charges which Cox or
any Affiliated Person is required to pay to City or other governmental
agency; and
F. Neither Cox nor any Affiliated Person shall apply or seek to apply all or
any part of the amount of the compensation or other payments to be made
pursuant to this Franchise as a deduction or other credit from or against
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any city or other government taxes of general applicability (other than
income taxes) or other fees or charges, each of which shall be deemed to
be separate and distinct obligations of Cox and Affiliated Persons; and
G. Neither Cox nor any Affiliated Person shall apply or seek to apply all or
any part of the amount of any City or other government taxes or other fees
or charges of general applicability (including any such tax, fee, or
assessment imposed on both utilities and cable operators or their
services) as a deduction or other credit from or against any of the
compensation or other payments to be made pursuant to this Franchise,
each of which shall be deemed to be separate and distinct obligations of
Cox and Affiliated Persons; and
H. Grantor acknowledges that, during the term of this Agreement, Grantee
may offer to its subscribers, at a discounted rate, a bundled or combined
package of certain cable services that are subject to the franchise fee
referenced above in paragraph (a), and other services that are not subject
to that fee. With regard to such bundled or combined services, the
following provisions are applicable:
During the term of this Agreement, if Grantee offers to individual
subscribers cable services subject to the franchise fee that are bundled or
combined with non -cable services that are not subject to the franchise fee,
then the revenue from those bundled or combined services must be
allocated on the basis of proportionality, as follows:
a. The percentage that the price for all bundled services is discounted
from the established retail rates for the individual services, as those
rates are advertised by Grantee in its marketing materials or
published rate cards, will be prorated across all services in the
bundled package, subject to the adjustment referenced below in
subparagraph (b).
b. The revenue derived by Grantee from services that are subject to
mandatory tariff rates imposed by the California Public Utilities
Commission, or any similar governmental rate -setting authority, will
be deducted from the aggregate revenue to determine the revenue
that is subject to the franchise fee. By way of example, Grantee
may offer a bundle of voice, video, and data services for a flat fee
of $75, where the aggregate retail rate of those services when
purchased on an individual basis would equal $100. If there is no
service in that bundled package subject to a mandated tariff rate,
Grantee would apply a 25 percent discount to each individual
service. Thus, if the established retail rate for video service was
then $50, Grantee would recognize revenue in the amount of
$37.50 and would pay a franchise fee on that amount.
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C. Grantee will not structure the pricing of any bundled or combined
services so as to intentionally or unreasonably cause a reduction in
the Gross Annual Revenue against which franchise the Grantor
may impose fees or other proportionately derived taxes,
surcharges, or fees.
d. If Grantor reasonably determines that Grantee has unlawfully,
inequitably, or contrary to this paragraph (b) allocated Gross
Annual Revenue between video services and non -video services in
calculating franchise fee payments, then the parties will meet upon
advance notice from the Grantor to discuss the allocation
methodology. If the parties cannot resolve the dispute within a
reasonable period of time, then the parties will submit the matter to
a mutually agreeable third party for mediation. The parties will
share the cost of the mediation equally. If the mediation is not
successful, or if the parties cannot mutually agree upon a mediator,
then either party may file an action in a court of competent
jurisdiction or pursue any other remedies available under the law or
this Agreement.
If any franchise payment or recomputed amount is not made on or before
the dates specified above in subsection 2, Grantee shall pay as additional
compensation the greater of the following:
a. An interest charge, computed from the applicable due date, at an
annual rate equal to the prevailing commercial prime interest rate in
effect upon the due date, plus three percent (3%).
b. In addition to any late payment made pursuant to this section, if a
payment is late by sixty (60) days or more, Grantee shall pay a sum,
of money equal to five percent (5%) of the amount due in order to
defray reasonable additional documented and itemized expenses
and costs incurred by Grantor as a result of such delinquent
payment.
C. No acceptance of any payment shall be construed as a release of,
or an accord, or satisfaction of, any claim that the Grantor might
have for further or additional sums payable under the terms of this
Ordinance, or for any other performance by Grantee of an
obligation hereunder.
d. Payments of compensation made by a Grantee to the Grantor
pursuant to the provisions of this Ordinance are in addition to, and
exclusive of, any and all authorized taxes, business license fees,
and other fees, levies, or assessments now in effect or
subsequently adopted in accordance with state and federal law.
5. Letter of Credit
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A. Pursuant to Section 7-2.05(c) of the SJCMC within thirty (30) days of the
Effective Date of this Franchise shall post an irrevocable standby Letter of
Credit in the amount of ($17.25 per current subscriber but not less than
One Hundred Thousand dollars ($100,000). The Letter of Credit provider
shall have, at a minimum, a credit rating of A issued by Moody's or
Standard & Poor's. The letter of credit shall incorporate wording approved
by City enabling City to draw such sums from time to time as the City may
find necessary to satisfy any material default of Cox or to meet any
payment due City under or in connection with the SJCMC or this
Franchise, upon ten (10) days' written notice to the Letter of Credit
provider. The Letter of Credit shall provide in substance that, upon written
notice by City of a material default or failure to make a payment due to
City under or in connection with the SJCMC or this Franchise, City may
draw upon the Letter of Credit without any offset, contingencies or
conditions of any kind. This Letter of Credit shall provide that it may not be
revoked or amended without City's prior written approval. The wording and
form of the Letter of Credit and the Letter of Credit provider must be prior
approved by City, and such approval shall not be unreasonably withheld.
B. The Letter of Credit requirement may, in the unilateral discretion of the
City, be increased by up to three times its original amount if there is an
assignment, transfer, and/or change of control of the Franchise and/or the
Grantee.
C. The Letter of Credit required by this Section satisfies the financial security
requirements of this Franchise Agreement and is in lieu of a Security Fund
or Faithful Performance Bond pursuant to Section 7-2.05(b) of the
SJCMC.
6. Insurance
Within ten (10) days of the Effective Date of this Franchise, Cox, at its sole cost
and expense, for the full term of this contract (and any extension thereof), shall
obtain and maintain at minimum all of the following insurance coverage:
A. Types of insurance and Minimum Limits. The coverages required herein
may be satisfied by any combination of specific liability and excess liability
policies.
1. Workers' Compensation and Employers Liability Insurance in
conformance with the laws of the State of California (not required if
Cox has no employees).
2. Cox's vehicles, including owned, non -owned (e.g., owned by Cox's
employees and used in the course and scope of employment),
leased or hired vehicles, shall each be covered with Automobile
Liability insurance in the minimum amount of two million dollars
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($2,000,000) combined single limit per accident for bodily injury and
property damage.
3. Cox shall obtain and maintain comprehensive or commercial
General Liability Insurance coverage in the aggregate annual
amount of two million five hundred thousand dollars ($2,500,000)
combined single limit, including bodily injury, personal injury, and
broad form property damage. Such insurance coverage shall
include, without limitation:
a. Contractual liability coverage adequate to meet Cox's
indemnification obligations under this Contract; and
b. A cross -liability clause.
C. Cox shall obtain and maintain Slander/Libel/Defamation
Liability Insurance in the aggregate annual amount of one
million dollars ($1,000,000).
B. All required Automobile Liability insurance and Comprehensive or
Commercial General Liability Insurance shall contain the following
endorsement as a part of each policy:
"The City of San Juan Capistrano is hereby added as an additional
insured as respects the operations of the named insured pursuant to cable
television franchise as granted by the City and said insurance shall
specifically cover the acts and omissions of Cox and the acts and
omissions of its employees, agents and subcontractors in the performance
of work hereunder."
C. Within thirty (30) days from effective date of this Franchise, Cox shall
furnish proof to City that a satisfactory insurance policy for General
Comprehensive, Bodily Injury Liability, Property Damage, and
Slander/Libel/Defamation Liability insurance is in place. The insurance
policies for vehicles shall be in effect prior to usage and the City may, from
time to time, reasonably increase the required amount of said insurance
so long as said increased coverage is reasonably available at reasonable
prices.
D. The insurance required of Cox pursuant to this Franchise shall be primary
and no insurance held by City shall be called upon to contribute to a loss
under this coverage.
E. All insurance policies shall provide that in the event of material change,
reduction, or cancellation or non -renewal by the insurance carrier for any
reason, not less than thirty (30) days' notice will be given to City by
registered mail of one (1) copy of a written notice of such intent to cancel,
materially change, reduce or not renew the coverage. An authorized agent
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of such insurance carrier shall provide to City, on such schedule as is
requested by City, a certification that all insurance premiums have been
paid and all coverage's are in force. If for any reason Cox fails to obtain or
keep any of such insurance in force, City may (but shall not be required to)
obtain such insurance, in which event Cox shall promptly reimburse City
its premium cost therefore plus interest at the City's portfolio rate until
paid.
F. All insurance shall be contracted through companies licensed to do
business in California.
G. Any deductible or self-insured retention must be declared to and approved
by City. At the option of City, insurer shall reduce or eliminate. Such
deductible or self-insured retention as respects City, its officials, officers,
employees and agents, or Cox shall procure a bond guaranteeing
payment of losses and related investigations, claims, administration and
defense expenses.
7. Defense and Satisfaction of Claims.
A. Cox shall, at the sole cost and expense of Cox, upon demand by City,
defend City, its officers, boards, commissions or employees, in any and all
suits, actions, or other legal proceedings, whether judicial, quasi judicial,
administrative, or otherwise arising out of the negligent or willful acts or
omissions of Cox, its employees, subcontractors and agents. Where Cox
is required to provide legal services to City under this paragraph, and
chooses to utilize joint counsel, the parties shall make a good faith effort to
cooperate and agree upon litigation strategy and implementation thereof.
In the event that Cox's litigation strategy or choice of legal counsel create
a conflict of interest, or result in inadequate representation to protect the
City's interests and separate counsel is necessary for the representation
of City, City may obtain separate legal counsel chosen by City at Cox's
cost and expense provided, however, that if City obtains separate legal
counsel as set forth above, Cox is only obligated to pay an hourly amount
for legal services which does not exceed one hundred percent (100%) of
the highest hourly rate that City has paid for legal services within the
twenty-four (24) month period prior to obtaining legal services as provided
in this paragraph. City shall submit to Cox on a regular basis statements
for attorney's fees, which shall be paid to City within sixty (60) days of
Cox's receipt of said statement.
B. Cox shall cause to be paid and satisfied any judgment, decree, or order
rendered, made, or issued against Cox, City, its officers, boards,
commissions, or employees, and hold City harmless there from, arising
out of Cox's negligent or willful acts or omissions in connection with the
construction, operation, maintenance, or other activities in relation to
Cox's cable television system including, but not limited to, damages
arising out of copyright infringement, defamation, personal and property
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liability; and antitrust liability, whether or not said damages are
compensatory or punitive, provided, however, Cox shall not be required
pursuant to this paragraph to hold City harmless for actions relating to
programming decisions outside of Cox's control. Such indemnity shall
exist and continue without reference to the amount of any bond, policy of
insurance, deposit, undertaking, or other assurance; provided, however,
City may not enter into any compromise or settlement which imposes any
obligation on Cox without Cox's consent, which consent shall not be
unreasonably withheld, and Cox shall not make or enter into any
compromise or settlement of any claim, demand, causes of action, suit, or
other proceedings which settlement involves anything other than the
payment of money by Cox without contribution by City, without first
obtaining the written consent of City, which consent shall not be
unreasonably withheld.
C. The indemnification provided pursuant to paragraphs 7(A) and 7(B) above
shall apply to all damages and claims for damages of any kind suffered by
reason of any of the aforesaid operations referred to in those paragraphs,
regardless of whether or not City has prepared, supplied, or approved the
plans and/or specifications for the operation or regardless of whether or
not any insurance policies shall have been determined to be applicable to
any of such damages or claims for damages.
8. Liquidated Damages and Other Remedies.
A. Damages for Violation of Technical Standards, Customer Service
Standards and Other Violations.
In addition to, and without limiting the damages for delays as specified in
Section 8(A) of this Franchise, City may impose any of the other liquidated
damages described below for the violations and in the amounts described
below:
Technical Standards violations.
a. If more than ten percent (10%) of the locations tested
pursuant to FCC regulations fail to meet the FCC technical -
standards, City may impose liquidated damages in an
amount equal to two hundred dollars ($200) per day,
measured from the first day non-compliance is detected.
b. Cox shall be entitled to the appeal rights provided in Section
8 (13)(2) below.
2. Customer Service Violations.
If Cox violates, in any material way, any of the customer service
standards specified in the SJCMC or this Franchise, City may
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impose liquidated damages in the amount of two hundred dollars
($200) per violation per day, however, no liquidated damages shall
be imposed until Cox has been given actual notice of said violation
and failed to cure said violation within the cure period provided in
this Franchise or the SJCMC.
3. Other Violations.
For all violations and breaches specified in the Franchise or the
SJCMC, the City may impose liquidated damages in the amount of
two hundred dollars ($200) per day. No liquidated damages shall
be imposed pursuant to this subsection unless. the City shall have
first provided Grantee with the specific section of this Franchise
Agreement, or section of the SJCMC which has been breached or
violated, and has given Grantee an opportunity to cure said breach
or violation pursuant to Section 8(B)(1).
4. Reduction of Damages and Letter of Credit.
If City does not impose any damages on Grantee for delays in
violation of technical standards, violation of customer service
standards or for other violations in the four (4) year period which
shall commence on the date which is sixty (60) days from the
Effective Date of this Franchise, after such four (4) year period, the
penalties contained in Sections 8(B)(1) and 8(B)(2) above shall be
reduced to one hundred fifty dollars ($150) per day per violation,
and the letter of credit contained in Section 7 above shall be
reduced to seventy-five percent (75%) of the original amount
thereof; provided however, that the original, penalties and the
original amount of the letter of credit, as increased as allowed
herein upon transfer, assignment or change of control, shall be
immediately reinstated if (a) City imposes two (2) penalties on Cox
in any twelve (12) month period, and/or (b) if Cox assigns, sells,
leases or otherwise transfers this Franchise or control of the
System. This entire paragraph shall immediately cease to have
any force or effect if City imposes a penalty or penalties on Cox
within the four (4) year period, which commences sixty (60) days
from the Effective Date of this Franchise Agreement.
B. Payment of Damages.
1. Cure
In the event that City has reason to believe that Cox has failed to
comply with any material provision of this Franchise or the SJCMC
and therefore desires to impose damages on Cox as stipulated
above and in Title 7, Chapter 2 of the SJCMC, except in the case of
Section 8(A)(2) violations where the internal provisions thereof shall
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govern, City shall notify Cox in writing of the provision or provisions
which City believes may be in default as well as the applicable cure
period. Cox shall, upon receipt of said Notice.
a. Cure the alleged violation within the cure period provided by
the SJCMC, or if no cure period is provided, within five (5)
working days of said notice. In the event that Cox does not
correct said violation within the applicable cure period, said
liquidated damages may be imposed from the date of
original violation; or
b. Respond to City in writing during the cure period contesting
City's assertion of violation and providing such information or
documentation as may be necessary to support Cox's
position and/or request an extension of the cure period.
2. Appeal and Payment.
In the event Cox fails to respond to said notice of violation, or to
cure the violation within the applicable cure period, or provide an
explanation for failure to cure acceptable to City, City or its
designee shall schedule a hearing no sooner than ten (10) days
after written notice to Cox of the expiration of the cure period and
the scheduling of said hearing. Cox shall be provided an
opportunity to be heard at such hearing, including the right to
present evidence, cross-examine witnesses, and be represented by
counsel. Within thirty (30) days after said hearing, City shall
determine whether or not Cox is in violation and submit written
findings of facts supporting such determination. The hearing
described above may be conducted, at City's selection, either
before the City Council or before an administrative officer or
commission selected by the City Council. In the event that said
hearing is not held before the City Council, Cox shall possess the
right to appeal said determination to the City Council within ten (10)
days of issuance of the statement of decision and findings of fact.
The City Council shall decide said appeal pursuant to a hearing at
which Cox has an opportunity to be heard and the right to present
evidence, examine witnesses and be represented by Counsel. Cox
shall have the right to appeal the City Council's decision to a court
of competent jurisdiction within ninety (90) days of -any final
decision by the City Council. In the event a court orders repayment
of said liquidated damages from City to Cox, interest on such
amounts shall be included at the City's portfolio rate. All liquidated
damages shall be due and owing thirty (30) days after the final
decision by either the City Council or the hearing officer in the event
of no appeal to the City Council. The aforesaid assessment may be
levied directly against the letter of credit and collected by City thirty
(30) days from date said damages are due and owing. Such
assessment shall not constitute a waiver by City of any other right
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C.
or remedy it may have under the Franchise or under applicable law
including, without limitation, its right to recover from Cox such
additional damages, losses, costs and expenses, including
reasonable attorneys' fees, as may have been suffered or incurred
by City by reason of or arising out of such breach of the Franchise.
Nothing in this paragraph is intended to waive, modify or otherwise
affect Cox's rights under the SJCMC, this Franchise, or any
applicable law, except for the speck procedures expressly
provided herein, including without limitation the right to judicial
review of the legal rights and obligations of the parties with respect
to each other, Cox's right to challenge the decision of City under
applicable legal standards, and any issue of performance or breach
by either party to this Franchise.
Validity of Liquidated Damages.
The parties acknowledge that it would be impractical or extremely difficult
to fix actual damages in the case of Cox's default, and that the amount of
damages specified above is a reasonable and complete estimate of City's
damages. Cox recognizes that Cox's prompt development and offering of
cable television service for which penalties can be imposed is of critical
importance to City.
City:
(Initials)
D. Sole Financial Remedy
Cox: 1.1P p
(Initials)
No penalties will be applied pursuant to Ordinance or other similar
document for the same offenses to which the liquidated damages apply.
Cox Support for Development of Technology and Programming.
Cox shall provide the following support for the purpose of technology
development and implementing non-commercial public, benefit uses of the cable
system. The provision of the support items listed herein shall be considered as
binding commitments of Cox within the terms of this Franchise, and if not
provided, shall subject Cox to applicable
the Franchise.
Cox shall provide the following support:
A. Channel Capacity Requirements.
Grantee Support for PEG Access:
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remedies and penalties for violations of
1. Grantee shall designate three (3) channels for the exclusive use of
the City ('PEG channels"). The PEG channels shall be under the
exclusive management and editorial control of the City and shall not
be shared with other cities. The City may designate a
representative, such as a non-profit entity, to use and administer to
said channels, with all of the attendant rights and obligations
provided to the City hereunder.
In the event Grantee is required by federal law or regulations to
change the channel number of a PEG channel, Grantee shall
provide thirty (30) days advance notice to the City and its
customers. Should Grantee desire to change the channel number
of a PEG channel that is in use by a PEG user within the criteria set
forth in paragraph 2 of this Section for any other reason, Grantee
shall provide the City with the reason for change at least ninety (90)
days prior to the proposed change, advertise the change to
customers on its website, in at least three (3) bill messages prior to
the change, and in a television spot announcement that Grantee
shall carry on its system for at least six weeks prior to the change.
Grantee shall also reimburse the City for its actual costs for
reprinting any materials such as program guides or other
promotional materials occasioned by the change in an amount not
to exceed $7,500.00 for its costs of remarketing the channel.
2. Grantee shall make available additional PEG channels designated
for use exclusively by the City pursuant to the following criteria:
a. The initial governmental channels must be in use and
programmed with non-commercial PEG programming, of
which no more than ten (10) hours can be character
generated programming, during at least 80% of the
weekdays for at least 80% of the time during any
consecutive 6 -hour period for ten (10) consecutive weeks.
b. The initial public and educational channel must be in use
and programmed with non-commercial and at least 50%
locally produced programming, of which no more than ten
(10) hours per week can be character -generated
programming during at least 80% of the weekdays for at
least 80% of the time during any consecutive 6 -hour period
for ten (10) consecutive weeks.
C. No more than 33-1/3% of the aggregate hours utilized for
PEG programming during such ten -week period can
represent repeat programming.
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d. Any additional PEG channel shall be made available within
180 days following the City's written request and verification
of compliance with each of the foregoing conditions.
e. Whenever such additional PEG channels but not the original
three PEG channels, are programmed for less than ten (10)
hours per day for six (6) days per week for a continuous
period of not less than twelve (12) consecutive weeks, the
City may permit the Grantee to utilize unused channel
capacity on that channel under the following conditions:
(i) Any request from the Grantee to use any fallow
capacity designated for PEG Access must be
submitted in writing to the City:
(ii) The City shall approve the request from the Grantee
to use fallow channel capacity if it finds that: (i) the
utilization of the channel is as represented; (ii) the
Grantee has not acted in violation of any of the
provisions of the Franchise regarding utilization of the
channel; and (iii) there are no special circumstances
which would justify the denial or delay of
implementation of the use of the channel. After
approval, the Grantee may continue to utilize the
channel for any other purposes it so chooses,
consistent with the Franchise, until it is required to be
designated for PEG purposes pursuant to the
provisions hereof.
(iii) Unless the Grantee receives written notice within one
hundred and twenty (120) days that the City
disapproves the Grantee's request, the City's
approval shall be deemed granted.
The maximum number of access channels, which may be
required under this Franchise, shall be five (5), subject to the
City's right to exchange channels, as set forth herein. On six
months notice to Grantee, City may exchange each analog
PEG channel for four (4) digitally compressed channels upon
satisfaction of the following conditions:
(i) Grantee provides digitally compressed channels
which offer at least as many services as are available
by analog channels on the system; and
(ii) Digital decompression terminal devices are installed
in the homes of a least 50% of Grantee's subscribers,
and are used to receive Grantee's services; and
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(iii) City provides six (6) months notice to Grantee.
(iv) City provides written waiver of any state or federal
laws pertaining to requirements for the placement of
such channels.
As used in this section, a "digitally compressed channel"
shall mean a data stream capable of delivering video
programming on a basis comparable to the delivery of other
digitally compressed video programming.
3. The City shall have sole responsibility for the administration and
programming of the Governmental channel(s) provided by the
Grantee, including without limitation, the carriage of programming
on the channel(s) to include trafficking of tapes and playback and
the establishment and administration of all rules, regulations and
procedures pertaining to the use and scheduling of the
programming presented over the channel(s). The channel(s) shall
be used for noncommercial, public, governmental or educational
programming. In relation to the public access channel(s), Grantee
shall continue its current practices of providing studio facilities,
equipment, trafficking of tapes, playback, for public access users in
a quality and quantity generally consistent with that provided over
the past franchise term.
B. A Grant in the amount of sixty dollars ($60.00) per Basic Service Tier
subscriber ("BST') of Cox in the City as of the Effective Date ('Threshold
Subscribers") to be utilized for any capital or non -capital purposes (the
"Initial Grant'). Cox shall pay said Initial Grant within thirty (30) days of the
Effective Date of this Agreement.
C. On January 1, 2010, the City shall provide Cox with a list of residential
units which have been constructed in the City subsequent to the effective
date, if any, list of newly constructed units (the "Construction List"). Within
thirty (30) days of receipt of the Construction List, Cox shall determine and
report in writing to the City the number of newly constructed units which
are BST Subscribers as of that (the "New Construction Subscriber List").
Cox shall also report to the City the number of BST Subscribers contained
in the City other than those subscribers set forth on the New Construction
Subscriber List (the "Continuing Subscribers"). Within ten (10) days
thereafter, Cox shall pay to the City an additional grant (the "Additional
Grant") equal to the number of New Construction Subscribers, less the
difference between Threshold Subscribers and Continuing Subscribers
times $30.00 per subscriber.
D. City and Cox agree that said Initial Grant and Additional Grants are neither
franchise fees nor off settable against franchise fees, irrespective of how
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they are expended, for the purposes of the Cable Communications Policy
Act of 1984, as amended. City shall waive normal permit fees, but not
inspection fees, for residential dwelling units, constructed subsequent to
the Effective Date in new subdivisions where Cox installs its cable
television plant in otherwise open trenches along with other utilities at the
time of new subdivision construction. Other than the waiver of normal
permit fees as provided above, Cox will comply with all other City
requirements.
E. In the event any dedication to PEG Programming required by this
Franchise is deemed by a legislative body, administrative body, or court of
competent jurisdiction to constitute a payment which must or may be
offset against the franchise fee, City hereby reserves the right, but is not
required to do so, to terminate said program and/or requirement so as to
provide the maximum allowable franchise fee. Cox shall not offset any
charge, of any kind, against a franchise fee or other payment due City
without prior written consent of City. Nothing in this Franchise is intended,
and shall be so construed, to confer any third party beneficiary rights on
any party(s), and no rights are created by this Agreement other than rights
in City and Cox.
10. Governmental and Institutional Drop Policy; Provision of Live Local Insertion
Locations.
A. Drops to City Facilities.
Within one hundred eighty (180) days of written notice provided by the
City, Cox shall provide, without charge, up to four (4) cable drops, as
determined by City, for all levels and all tiers of Cable Service per building,
excluding premiums and pay-per-view, a cable modem drop, and cable
modem service (residential speed of up to 3 mbs) per drop for those
buildings, institutions and facilities on Exhibit A, plus those buildings,
institutions and facilities which are constructed subsequent to the Effective
Date of this Franchise Agreement, as designated by City in writing.
Except for a City Hall, which Cox shall construct at its sole expense, drops
to all buildings, institutions and facilities which are constructed subsequent
to the Effective Date of this Franchise Agreement shall be limited to 250
feet from the closest point to Cox's distribution system. In the event that
requested drops exceed said distance, Cox shall determine the
incremental cost beyond said distance and the City shall pay such
incremental costs to Cox upon completion of construction. Cox shall not
impose programming or other charges for any additional outlets within
said buildings. Installation and maintenance of interior wiring of said
building(s) beyond the four (4) drops per building shall be the
responsibility of the building owner, provided that if Cox is requested to
install such wiring, it will do so within a reasonable time at its actual cost of
labor and materials.
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B. Live Insertion Locations.
Cox shall upon written notice provide live insertion points at the locations
set forth on Exhibit B by way of fiber connection so that the City can insert
and transmit audio, video, and digital programming from said site to Cox's
head end for retransmission over one or more of the PEG Channels
specified in Section 9(A) (collectively, the "Return Feeds"). The Return
Feeds shall be constructed pursuant to technical standards mutually
agreed upon by Cox and the City (the "Design Specifications"). The City
shall possess no obligation to insert programming upon the Governmental
Channel pursuant to Section 9(A)(3) until such time as the Return Feeds
are constructed and activated pursuant to the Design Specifications.
Within one hundred and twenty (120) days of the completion and
activation of the Return Feed, any playback of local government
programming or insertion of audio, data or other information on the
Govemment Access channel shall be the sole responsibility of the City.
11. Services and Broad Categories of Video Programming.
Cox should provide, at a minimum, the following broad categories of services and
video programming: local broadcast, public affairs, satellite services, news,
sports, cultural, foreign language programming, general entertainment, and
children's. If any listed broad category of service or video programming shall
become unavailable, or is commercially, impractical, or cannot be provided under
existing FCC regulations, Cox should provide substitute programming of the
same category if reasonably available. City may request Cox to cooperate with
City in developing and distributing a printed PEG channel guide at City's cost.
Said printed guide shall be of a reasonable weight and size and could include,
but is not limited to; a printed guide distributed through the bills, via direct mail, or
included in local newspaper or Cox's printed guide, all at City's cost, if any, but
shall not include advertising. If City requests Cox to distribute a printed guide
through the bills, Cox shall comply so long as City produces said guide at its own
cost for production and insertion and provides Cox sufficient advance notice and
there is room for said guide in Cox's billing envelopes, and said guide does not
take the place of other inserts desired by Cox. City shall have complete
responsibility for the content of any information included in said guide: The
payments by City referred to in this Section shall be limited to reimbursing Cox's
actual incremental cost of providing and distributing the guide.
12. Minimum System Design and Capacity Requirements.
A. Channel Capacity.
The cable television system shall be constructed with hybrid fiber coax
("HFC") architecture and engineered to deliver signals at forward
frequencies up to and including a minimum bandwidth of seven hundred
and fifty (750) megahertz (MHz) on the Residential Network. The System
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will be engineered to allow simultaneous downstream delivery of no less
than one hundred ten (110) analog video channels and shall be
constructed pursuant to the specifications and routing described herein.
B. Interactive Capacity and Services.
The cable television system shall be two-way activated in all of the
distribution plant.
C. Minimum Design Criteria.
In addition to the requirements of Sections 14(A) -(B) above, minimum
system construction requirements shall be as follows:
1. Cox shall at all times maintain equipment capable of providing
standby power for the entirety of the cable system for a minimum of
two hours.
2. Emergency Override System.
a. Grantee shall provide, install, activate, and maintain an
emergency override system which includes audio override
on all analog channels of Grantee's system and character
generated message capabilities on a designated channel,
receivable only within the City. City shall be able to activate,
provide audio programming, and terminate such emergency
audio override via dial-up or dedicated telephone control
upon system upgrade. City shall use the audio override and
character generated system only in emergency situations, as
declared by the City Council or the City Manager when there
is threat to the public welfare, health or safety.
b. In addition to subsection (a) above, and in accordance with
the provisions of FCC Rules and Regulations Part 11,
Subpart D, Section 11.5(h)(1), and as such provisions may
from time to time be amended, Licensee shall install and
maintain an Emergency Alert System (EAS). As allowed by
FCC Order FCC 97-338, Paragraph 33, Licensee shall
transmit all national, state, and local activations of the
Federal EAS, utilizing the four-part message protocol
specified in FCC Rules and Regulations Part 11, Subpart B,
or successor protocols. This shall include such local and
state-wide situations as may be designated to be an
emergency by the Local Primary (LP), the State Primary
(SP) and/or other authorities identified and defined within
FCC Rules and Regulations, Part 11 or the Local and State
Plans provided for under those rules.
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3. Cox shall provide subscribers, upon request, with a parental control
locking device or' digital code or other means that permits inhibiting
the viewing of parental designated channels.
4. All new underground trunk and distribution cables shall be in
conduit.
5. Minimum Technical Standards for Forward (Downstream) and
Reverse (Upstream) Directions.
The minimum technical standards shall be those adopted by the
FCC from time to time. To the extent that no FCC standards exist,
the standards shall be those FCC technical standards in effect on
the Effective Date, or, if none, those established by City.
13. Universal Service.
Cox shall design, construct and maintain the cable television system in such a
manner as to pass by every existing single or multiple -family dwelling unit in the
City, except those dwelling units specified in Exhibit A, and shall make the
system available on an identical basis to all single or multiple family dwelling
units constructed during the term of this Franchise Agreement. For new
construction in residential, and industrial areas, Cox shall make the system
available at the, same time as. The units, residential, or otherwise, are
constructed. Nothing herein shall preclude Cox from providing service to multi-
family dwellings and other residential developments on a discounted bulk -billing
basis.
14. System Extension Policies.
Description of Service Area(s).
A. The service area shall constitute the existing entirety of City plus all areas
annexed thereto (the "Service Area").
B. All subscribers, residential, or otherwise, within one hundred twenty-five
(125) feet from the closest public right-of-way or easement, shall be
provided service for the standard installation fee. Subscribers located
beyond one hundred twenty-five (125) feet from the closest public right-of-
way or easement will be connected upon the payment of Cox's time and
materials for that portion of the installation, which exceeds one hundred
twenty-five (125) feet.
15. Provision of Service.
Unless the subscriber requests otherwise, Cox shall deliver initial service within
seven (7) business days after receipt of a subscriber order so long as the
subscriber is within the existing Service Area. Service additions or deletions shall
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be made within twenty-four (24) hours of a subscriber request, unless additional
terminal equipment is required, in which case Cox shall make such service
change within seven (7) calendar days. Cox shall provide all subscribers, prior to
the initiation of cable service and thereafter, with the ability to subscribe to only
Basic Service.
16. Technical Standards Testing.
A. Cox's cable television system shall be periodically tested by Cox, at Cox's
sole expense, at the times, and pursuant to the procedures, described in
the then applicable rules and regulations of the FCC or, if no such rules
and regulations exist, in the manner prescribed in rules and regulations in
effect on the Effective Date.
B. Reimbursement of City Expenses. City shall bear all costs associated with
its attendance, either directly or through an independent consultant, in the
initial testing but not retesting procedure described herein except as
provided below:
1. Upon written request by the City and based on a pattern of
customer complaints to the City regarding system performance,
Cox shall measure and report to City the number of service
complaints, which related to customer dissatisfaction with the
quality of the picture excluding partial or tonal system outages. The
number of said complaints over a twelve (12) month period shall be
divided by twelve (12) and constitute the "base year average
monthly subscriber complaints" for the purposes of this paragraph.
2. At the conclusion of said twelve (12) month period, Cox shall
calculate and report to City monthly the number of subscriber
complaints relating to the quality of the picture ("Monthly Subscriber
Complaints"). Said information shall be provided to City within
fifteen (15) working days of the last day of each calendar month.
3. So long as Monthly Subscriber Complaints, as defined herein,
remain within twenty percent (20%) of the base year average
monthly subscriber complaints, as defined herein, City shall bear all
costs relating to its participation in the technical standards testing
process defined herein. However, if, for any given two (2)
consecutive months or any three (3) nonconsecutive months in any
six (6) month period, said Monthly Subscriber Complaints increase
more than twenty percent (20%) over the base year average
Monthly Subscriber Complaints, Cox shall reimburse City for City's
actual and reasonable cost of supervising and/or participating in the
technical standards testing for a three (3) quarter period
commencing upon the occurrence of the contingency(ies) provided
herein if the unsupervised periodic testing, as defined herein,
indicates that Cox's system during said period is operating in
conformance with the technical performance standards provided by
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Section 17 hereof; Cox shall reimburse City for any and all costs
incurred by it in monitoring Cox's technical standards testing for
twelve (12) months subsequent to a determination by City that
liquidated damages pursuant in Section 10(3)(1) may be imposed.
4. Grantee shall maintain a written or computerized record of
subscriber complaints, including: loss of signal requiring a field visit,
non -receipt of programming or services ordered, billing disputes,
missed appointments, unsatisfactory performance of maintenance,
malfunctioning signal traps on blocked channels, and unresolved or
chronic technical problems. Said record shall indicate:
a. date and time of Subscriber complaints;
b. street name of complainant;
C. nature of complaint;
d. Grantee's action(s) to resolve complaint; and
e. date(s) and time(s) actions(s) taken.
Said record shall be kept at Grantee's local office for a period of
two (2) years. A copy of said Subscriber complaint record shall be
submitted by a Grantee to. City within ten (10) working days
following receipt of a written request by City.
5. To the extent that Grantee maintains and provides Subscriber
complaint information consistent with the above requirements, it
shall be deemed to have maintained and provided sufficient
Subscriber complaint information as required by this paragraph.
17. Equipment in Rights of Way.
A. Design and construction requirements, permit and other fees, public and
customers notifications, requirements for public communication, and other
oversight requirements by Grantor imposed on Grantee shall be
consistent to the extent legally permissible and technically feasible, with
those requirements imposed upon other users of the public rights-of-way
and easements within the City of San Juan Capistrano
B. The Cable System shall be constructed or installed in the City only after
the express written approval of the City and only at such locations and in
such manner, design, and size as shall be approved by the City. In
granting such approvals, the City shall exercise reasonable discretion in
accordance with applicable law. Upon Grantee's written request, City staff
shall meet and confer with Grantee in order to develop a process for
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expediting City processing and approval of proposed Cable System
installation of multiple "like -kind" facilities.
C. The Cable System shall be placed underground or where all other utilities
are located in all areas, which are subject to the provisions of the SJCMC
unless otherwise approved by the City Engineer. Such approval shall not
unreasonably be withheld.
D. All construction or maintenance work shall be conducted in a good and
workmanlike manner consistent with industry standards. Installation of
new facilities shall occur, whenever practical, concurrent with the
installation of subdivision public improvements.
E. Upon its receipt of reasonable advance notice, not to be less than five (5)
business days, the Grantee shall, at its own expense, protect, support,
temporarily disconnect, relocate in the Public Way, or remove from the
Public Way, any property of the Grantee when lawfully required by City by
reason of traffic conditions, public safety, street abandonment, freeway
and street construction, change or establishment of street grade,
installation of sewers, drains, gas or water pipes, or any other type of
structures or improvements by the Franchising Authority; but, the Grantee
shall in all cases have the right of abandonment of its property.
18. Franchise Term
The term of this franchise shall commence upon its approval by the City Council
(the "Effective Date"), and shall expire on January 1, 2017.
19. Most Favored Nations Review.
A. At any time and at City's request, Cox shall provide information on any
Cable Services not being provided in the City which are being provided on
an operational basis in systems operated by Cox, or any affiliate thereof in
the States of California, Arizona and Nevada (the "Comparison Systems").
For purposes of this section, "operational basis" means that Cox has
offered a Cable Service to all Subscribers in the Comparison Systems for
at least six (6) months, but does not include Cable Services that are
offered on a trial or test basis to a limited number of subscribers.
B. If Grantee is providing Cable Services on an operational basis in any
Comparison Systems, City may require Cox, and Cox shall comply, to
provide said Cable Service(s) within one (1) year of the City's written
request, and to upgrade its Cable System, if necessary, to provide said
Cable Service. Further, City shall reasonably consider not requiring such
service based upon information supplied by Cox but, after considering
said information, may still require the provision of these Cable Services.
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C. After the Effective Date of the Franchise, if Cox, or any affiliate, parent, or
subsidiary thereof, enters into any renewal, franchise extension, of a
franchise or a new franchise to provide cable television service to any city
located within Orange County or the County of Orange itself, within thirty
(30) days thereof, Cox shall provide to the City a copy of the Other
Franchise.
D. In the event that the City concludes that the Other Franchise contains
terms, conditions or provisions regarding Public, Educational or
Government access ("PEG Access") (the "PEG Access Provision",
including, without limitation, the financial support thereof) or Cable System
Technology (i.e., channel capacity, services offered, etc.) (hereinafter the
"Technology Provision"), as originally contained therein or as modified that
are more favorable than those contained in the Franchise when
considering the Franchise and its requirements taken as a whole, then the
City may, at its sole discretion, require Cox to provide the more favorable
PEG Access Provision and the more favorable Technology Provision, or
either of them; provided, however, (1) the City must notify Cox in writing of
its election to require Cox to provide the more favorable provision within
one hundred eighty (180) days of the City's receipt of the Other Franchise
or the City shall be deemed to have irrevocably declined to impose such
requirement; and (2) any requirement imposed pursuant to this paragraph
of the Franchise to incorporate the more favorable PEG Access Provision
and the Technology Provision, or either of them, shall also include, upon
Cox's identification and request, the imposition of any and all other terms
or conditions in the Other Franchise which are more favorable to Cox than
those contained in the Franchise when considering the Franchise and its
requirements taken as a whole (by way of example, if the Other Franchise
contains a franchise fee less than the franchise fee in the Franchise or has
a term longer than the term of the Franchise, then the Franchise shall be
modified to include such more favorable terms to the City at the same time
that the Franchise is modified to include the more favorable PEG Access
Provision or the more favorable Technology Provision).
E. Cox shall provide the same Cable Services to customers in the City of San
Juan Capistrano as it provides to customers in communities served off the
same head end as of the date of this Agreement. In the event Cox
deploys new or different Cable Services as a result of a Cable System
upgrade in one or more of the communities served off the same head end
as of the date of this Agreement, then Cox shall deploy those new or
different services within 24 months to customers in the City of San Juan
Capistrano provided however Cox may request an extension for good
cause and the City may or may not in its discretion consent to the
extension.
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20. Construction Responsibility.
Cox shall be responsible for the acts and omissions of its contractors,
subcontractors and employees. Only authorized employees and/or agents of Cox
shall apply for and be issued all necessary permits and building authorizations.
Cox shall designate to City a construction manager who is an employee of Cox to
be contacted regarding all cable construction issues.
21. Compliance with Construction Standards.
Cox shall not construct any portion of its cable television system in City streets
and rights-of-way without obtaining all necessary City building permits and
paying in addition to, the franchise fee, all then applicable fees to the extent
legally and practically feasible to be required of all users of the public rights-of-
way and public utility easements and shall only construct said system in
accordance with City standards for methods of construction in public rights-of-
way.
22. Compliance with City Orders and the SJCMC.
Cox shall promptly comply with all lawful City orders, resolutions and the SJCMC
related to Cox's operation of the System, including all lawful rate orders. Failure
to so comply shall be considered a breach of this Franchise and shall subject
Cox to (1) all liquidated damages contained in this Franchise and the SJCMC,
and (2) all other actions, remedies and penalties available to City as a result of
such failure to comply.
23. Grantor may require, at its option, that performance audits of the System be
conducted every two (2) years by an independent technical consultant selected
and employed by Grantor at its sole expense to verify that the System complies
with all technical standards and other specifications of the Franchise.
24. Franchise Construction
This Franchise shall be construed according to the internal laws of the State of
California and all federal laws of the United States. Any action brought relating
thereto must be brought exclusively in the state or federal courts located in
Orange County, California.
25. Notices
Any notice required to be given by this Agreement shall be presumed given five
(5) days after deposit in the United States mail, properly addressed by certified
mail and return receipt requested, as follows:
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To City: City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
With a COPY to: City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To Cox: Cox Com, Inc.
Cox Communications Orange County
29947 Avenida de las Banderas
Rancho Santa Margarita, CA 92688
Attn: Vice President, Government Affairs
With a COPY to: Cox. Com, Inc.
Attn: Director, Government Affairs
1400 Lake Hearn Drive
Atlanta, GA 30319
26. Pass -Through of Expenses
Cox will not separate out, line itemize, or surcharge the cost of the Initial Grants
and the Additional Grants described in Section 9. on any other cost related to this
Agreement (except the franchise fee) as a line item on City customer's cable
bills. Additionally,. Cox shall not impose rates and charges on subscribers, which
are higher for like -kind services or of packages of services than those imposed
upon subscribers in any of the cities of Mission Viejo, Laguna Hills, Tustin,
Rancho Santa Margarita, and Aliso Viejo.
27. Possessory Interest
By accepting this Franchise, Cox acknowledges that notice is and was hereby
given to Cox pursuant to California Revenue and Taxation Code Section 107.6
that use or occupancy of any public property pursuant to the authorization herein
set forth may create a possessory interest, which maybe subject to the payment
of property taxes levied upon such interest. Cox shall be solely liable for, and
shall pay and discharge prior to delinquency, any and all possessory interest
taxes or other taxes levied against Cox's right to possession, occupancy or use
of any public property pursuant to any right of possession, occupancy or use
created by this Franchise. Cox shall not be barred from challenging such try on
any amounts assessed pursuant thereto.
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28. Rates
City may, without amendment of this Franchise, regulate Cox's rates, charges,
and prices to the maximum extent permitted by law.
29. Local Office
Cox shall maintain, in full compliance with all requirements of the SJCMC, a local
office within twelve (12) miles of the City boundary. This office may be moved,
relocated, or closed without City's prior written consent.
30. Force Majeure
In the event Cox's performance of any of the terms, conditions, obligations or
requirements of this Franchise is prevented or impaired due to any cause beyond
its reasonable control and not reasonably foreseeable, such inability to perform
shall be deemed to be excused, and no penalties or sanctions shall be imposed
as a result thereof. Such causes beyond Cox's reasonable control and not
reasonably foreseeable shall include, but not be limited to, any acts of God, civil
emergencies, labor unrest, strikes, inability to obtain access to an individual's
property and any inability of Cox to secure necessary permissions or permits to
utilize necessary poles or conduits so long as Cox utilizes due diligence to timely
obtain said permissions or permits.
31. Meet and Confer
Prior to exercising any rights of audit or inspection upon Cox pursuant to
Sections 7-2.12 of the SJCMC, City and Cox shall reasonably attempt to meet
and confer to achieve voluntary compliance.
In recognition of the obligations stated in this Agreement, the parties have executed this
Agreement on the date indicated above.
ATTEST;
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Willi6rdWfAarticorena, Special Counsel
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COX COMMUNICATIONS, INC.
Z1::Q &,U_
Leo Brennan, VP/Regional Manager
CITY OF SAN JUAN CAPISTRANO
Joe Soto, Mayor
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EXHIBIT A
➢
City Municipal Offices
➢
City Corporate Yard
➢
City Community Center
➢
Community Library
➢
Fire Stations
➢
Public Schools
9.