Applicants for a franchise may, for the purposes of promoting improvement in cable services to the community and influencing the motivation of the awarding authority to select the particular applicant as the franchisee, include within their applications the commitment of services, resources or other benefits (including, but not limited to, ongoing financial support, channels or broadcast time thereon, personnel resources or facilities or equipment) to specifically identified parties other than the county or cities. The application shall contain an identification of any such commitments, including a specific description of the nature and extent of all services, resources or benefits committed, the names and addresses of all parties to whom the commitments are made, all terms and conditions of the commitments, and copies of legal instruments such as contracts, leases, memoranda of understanding or other documents by which the commitments, when accepted and the documents executed by the recipients, would be evidenced. Each such legal instrument shall contain provisions requiring that such services, resources or benefits be utilized exclusively for cultural, educational, scientific, character building, recreational or public service purposes, and prohibiting the utilization thereof for commercial purposes.
During the hearing conducted for the purpose of receiving comments from such recipients pursuant to the provisions of Section 5.28.410 of this chapter, the body or bodies conducting the hearing shall:
A. Order such changes in the legal instruments by which the commitment of such services, resources, or benefits are to be evidenced as are found necessary in order to fulfill the objects and purposes of the application submitted by the tentative selectee, without altering the nature or scope of the commitments made; or direct the proposed recipients and tentative selectees to meet separately for the purpose of developing mutually acceptable changes in the legal instruments for later review and approval by the body or bodies conducting the hearing;
B. Approve as to form all legal instruments determined to be sufficient to adequately express the commitments and terms and conditions thereof; and
C. Determine which, if any, of such legal instruments are to be incorporated into the franchise documents and made a part of the terms and conditions of the franchise, and order such incorporation by reference to the instrument in the resolution offering the franchise. Notwithstanding the terms thereof and any other provisions of this ordinance, any such legal instruments which have been incorporated into the resolution offering the franchise pursuant to this section shall be subject to modification upon the written agreement of the franchisee and the commission without the consent of the recipient, the county or the cities, provided that any recipient which is adversely affected by such modification shall be entitled to terminate its contract with the franchisee.
With respect to any legal instrument which is made a part of the franchise documents by reference in the resolution offering the franchise, the violation and breach by the franchisee of the obligations therein shall be deemed to constitute a material violation and breach of the franchise documents. Obligations and prohibitions assumed by the recipient under such legal instruments by either execution of the instruments or acceptance of the services, resources or benefits committed shall be enforceable either by the franchisee or the cable television commission. Violation and breach by the franchisee of any legal instrument which is not made a part of the franchise document by reference in the resolution offering the franchise shall not be deemed to constitute a violation or breach of the franchise documents. Incorporation of such a legal instrument into the franchise documents by reference in the resolution offering the franchise shall not be deemed to obligate the county, cities or commission to fulfill any promise contained therein. Services, resources or benefits committed to specifically identified parties other than the county or cities which are not evidenced by separate legal instruments included with the application, shall not be considered in the selection process.
An applicant who chooses not to commit services, resources or benefits as authorized by this section shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based. (Prior code § 20.04.344)