HomeMy WebLinkAbout6.1 CableOrd&FranchiseAgmt CITY CLERK
FILE # 1050-30 & 600-30
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 20, 2001
SUBJECT:
Public Hearing: Introduction of Cable System Regulatory
Ordinance and Approval of AT&T Broadband Franchise
Agreement
Report Prepared by: Julie Carter, Assistant to the City
Manager
ATTACHMENTS:
1. Cable System Regulatory Ordinance
2. AT& T Franchise Agreement and Side Letter
3. Resolution Requiring AT&T Broadband and Intemet
Services to Continue Providing Cable Services Pending
Final Approval New Franchise Agreement
RECOMMENDATION:
1. Open the Public Hearing
2. Receive the Staff Report
3. Receive Public Testimony
4. Close the Public Hearing
5. Deliberate
6. Waive reading and INTRODUCE Ordinance
7o Authorize Mayor to Execute Franchise Agreement with
AT&T Broadband including Side Letter
8. Adopt Resolution
FINANCIAL STATEMENT:
Over the life of the Franchise Agreement, Dublin will
receive approximately $3 million in Franchise Fees based
on 5% gross annual revenues from AT&T° In addition, the
$.50 subscriber fee will generate approximately $715,000
to Dublin over the 10-year Franchise Agreement. These
figures assume a conservative growth rate of subscribers by
5%° Collectively all four Cities will also receive a one-time
grant of $1 million. All four Cities will also receive several
in-kind commitments from AT&T ranging from free outlets
for pubic buildings, schools and libraries to providing free
fiber optic insertion points for live coverage of City
Council meetings.
DESCRIPTION: The Cities of Dublin, Livermore, Pleasanton and San Ramon
are provided cable service by AT&T's Broadband Division (formerly TCI). The 15-year Cable
Television Franchise Agreement between the cities and AT&T Broadband and Intemet Services
expired on December 31, 2000. In early November 2000, the City Council approved a Resolution
COPIES TO: AT&T Broadband ~ 1
ITEM NO.
authorizing an extension to the existing franchise agreement from December 31, 2000 to March
31, 20010 While the City and AT&T had concluded formal negotiations in-advance of the
December deadline, more time was needed by AT&T and City representatives to develop and
refine contract language that adhered to state and federal regulations, as well as local regulatory
standards.
The attached Franchise Agreement and Cable Ordinance grants AT&T a 1 O-year non-exclusive
Franchise Agreement with the City of Dublin. Because the final adoption of the Ordinance occurs
in May 2001, (30 days after adoption) and the Franchise Agreement must be effective after the
Ordinance effective date, the City Council will need to extend the existing Franchise Agreement to
May 31, 2001. The new 10-year AT&T Franchise Agreement and Side Letter will begin June 1,
2001
The deal points, including the terms and conditions of the AT&T Franchise Agreement and Cable
Ordinance are summarized in this report.
FRANCHISE RENEWAL PROCESS
The 15-year cable television franchise agreement between the Cities and AT&T Broadband
(formerly TCI) expires on March 31, 2001. City of Dublin staff coordinated franchise renewal
efforts with staff from the Cities of Pleasant.n, Livermore and San Ram.n, who share the same
cable system and whose cable franchises are similar in scope and term. Joint pooling of the
jurisdictions' expertise and resources provided opportunities for reducing franchise renewal costs
and maximizing the effectiveness of negotiations. The four Cities signed a consultant services
agreement with Telecommunications Management Corporation (TMC) to provide assistance
with the franchise renewal process.
The following tasks were completed either in advance or in conjunction with the franchise
renewal process.
1. Create a Cable System Regulatory Ordinance
TMC assisted staff with the development of the attached Cable System Regulatory Ordinance.
The City's Ordinance includes new regulatory and consumer protection provisions and is
compatible with the Cable Television Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996. The Ordinance provides consumer service standards and
franchise enforcement capabilities to protect the public interest° Specifically, the proposed
Ordinance includes provisions whereby any future cable operator will be required to meet
operational, service, and billing and information standards as allowed by the Federal
Communications Commission. Verification of compliance with the standards, and written
procedures for receiving, acting upon and resolving subscriber complaints and disputes as well as
other requirements are also included in the Ordinance. After introduction, the Ordinance will be
brought back for adoption. It is anticipated this occur at the April 3,2001 City Council Meeting.
The Ordinance will be effective 30 days after adoption..
2. Public Review Process and Needs Assessment
City staff, along with TMC, has conducted various need assessments, over the course of the
renewal process, to measure public needs from a cable television perspective. The first task
involved assessing public, education and government (PEG) cable access issues. The task
assessed the needs and interests of City agencies and educational institutions within the franchise
area° This included meeting with the CTV Board of Directors, staff representatives from the
Dublin Unified School District and other related organizations° The second task involved
hosting one public workshop in each of the four cities. Each meeting provided an opportunity
for the general public to comment on the franchise renewal process and desired programming
and technological enhancements. The third and final task involved conducting a telephone
subscriber survey. The primary purpose of the survey was to assess the public' s satisfaction with
AT&T Broadband, as well as "scope out" any unmet programming needs in the community. The
telephone survey was conducted by ETROK, under a subcontract from TMC. Survey highlights
indicated that almost 90% of Tri-Valley subscribers are "very" or "somewhat" satisfied with the
cable system's overall performanceo The actual survey results are not included in this report, but
can be obtained from the City Manager's Office upon request,
3. Franchise Fee Audit
Federal law enables local governments in advance of negotiations to conduct a comprehensive audit
of a cable operator's financial records to determine whether franchise payments to a local
jurisdiction are in conformance with negotiated agreements. In Dublin, annual franchise payments
are based on 5% of AT&T Broadband's gross annual revenues within the franchise area, which is
the maximum permitted under federal law. Annually, the City receives approximately $250,000 in
revenue to compensate the community for the use of the public's fight-of-way. This General Fund
revenue is used in the operating budget to support City programs, services and activities on an
annual basis.
Staffs audit of the franchise fees concluded that in general, AT&T computed and paid franchise
fees in accordance with the City's franchise requirements, with the exception of an
underpayment to the Cities in 1996 & 1997. The Cities' legal counsel advised staff that
approximately $50,000 of the underpayment was recoverable, and AT&T has since paid this
amount. AT&T has also agreed to pay the City the requested interest on this amount, which is
approximately $10,000o In addition, the Cities' franchise agreement requires that the cable
operator reimburse the cost associated with any audit that discovers an underpayment of 2% or
more. Hence, AT&T has agreed to pay $10,000 towards consultant fees associated with the
franchise fee audit.
Franchise Renewal Negotiations
The franchise negotiating parameters were developed by the Tri-Valley Cities Cable Television
Franchise Renewal Committee, an ad-hoc committee of elected officials from each jurisdiction
(NOTE: Vice Mayor Janet Lockhart is the City's representative to the Committee). The
Committee has been responsible for developing parameters for negotiations, evaluating
alternatives, and providing direction to staff throughout the negotiation process.
For the past several months the Cities and TMC have been conducting negotiations with AT&T.
The resulting agreement that incorporates the deal 'points shown below meets the Cities'
objectives. At their two most recent meetings, the Committee concluded that the objectives have
been fairly met, and recommended that the cities move ahead with approval of the franchise
agreement and cable franchise ordinance, as soon as the final documents were finalized.
5o Summary of Major Deal Points
The following is a summary of major deal points that have been incorporated into the attached
franchise agreement and cable franchise ordinance:
1. Franchise Term:
10 years; effective June 1, 2001.
AT&T will provide the Cities with a one-time capital grant of $1 million that includes:
$800,000 for cable equipment purchases for the Cities and/or CTV
$200,000 for construction to connect distant facilities to the cable system.
The Cities will have the opportunity to use a portion of the $800,000 to assist Tri-
Valley Community TV (CTV-30) with the enormous expense of replacing aging
equipment. In regards to CTV equipment replacements, the Cities have agreed to
handle the disbursement of these funds, if any, through the current annual budget
review process for CTVo All requests for capital funds by CTV will be reviewed on a
case-by-case basis and evaluated by City staff prior to Council consideration. In
addition, these funds may also be used by the Cities to equip their respective Council
Chambers with new cable equipment and other cable-related technologies. Ultimately,
the final decision on how to disburse this revenue will be determined by each City
Council.
AT&T will provide an on-going grant of up to $0.50 per subscriber per month for the life of
the franchise with adjustments possible for changes in inflation and subscriber growth. This
grant money will be separately itemized on subscriber bills. With over 67,000 current
subscribers, this monetary support could yield $33,500/month or $402,000 annually.
Ongoing funding by the Cities to the Tri-Valley Community Television Corporation (CTV)
has historically been allocated from each City's General Fund. For example, in FY 2000/01,
the Cities provided $359,000 to fund critical capital equipment and a portion of CTV's
operations budget. These subscriber-generated funds will allow the Cities to offset current
General Fund contributions to CTV and provide a consistent source of financing to support
educational and governmental programming in the Tri-Valley.
AT&T will continue to provide a franchise fee established at 5% of gross annual cable
service revenues (same as the current fee and maximum permitted by law). Annually, the
City receives approximately $250,000 in revenue to compensate the community for use of its
public right-of-way for AT&T's commercial and profit-oriented activities. This General Fund
revenue is used annually in the operating budget to offset City programs, services and activities.
5. AT&T will provide one flee cable outlet at all City buildings.
AT&T will provide all schools & libraries with flee outlets and cable services, including
Intemet access. Discounts will be provided on additional outlets to these locations, and on all
outlets for City facilities.
AT&T will be required to install conduit, when trenches are open in new commercial
development areas to enable the delivery of cable, intemet and telephone services to the
business community°
AT&T will continue to provide three Educational & Government (EG) Access channels, with a
fourth channel available if certain levels of usage are achieved. Currently, channels 28, 29 and
30 are considered PEG access, with channel 28 being shared with AT&T as a leased access
channel. This agreement establishes all three channels as dedicated EG access channels.
AT&T Public Access would be moved off the City's channel to enable more CTV-generated
programming° AT&T public access will now appear on a separate channel.
AT&T will provide a separate channel for Public Access and provide support throughout the
life of the franchise. This is an estimated value of $1.5 million over the life of the franchise
agreemenL
10o AT&T will provide fiber optic insertion points in each City and at CTV (for live coverage of
City Council meetings, if so requested). The estimated cost of pulling fiber to all of the Cities
locations combined is $440,000, but will not be capped should it exceed that amount.
11o AT&T has agreed to adhere to specific customer service standards, such as system repair
requirements, billing and information standards, and subscriber complaint and dispute
requirements. The ordinance also includes formal processes for cable competitors to follow
when petitioning the City for a cable franchise agreement.
12. AT&T has indicated:that it was unwilling to set precedent for other communities by having
certain obligations in the franchise agreement. In an effort to permit AT&T to be able to
state that it does not agree to these conditions in any of its franchise agreements, yet provide
the Cities with the assurance that AT&T would perform as has been negotiated, the Cities
and AT&T agreed to utilize a separate "Side Letter" agreement. The Side Letter is fully
enforceable as if it was part of the actual agreement, and has been approved by the City
Attorney's Office. The Side Letter will be presented to the City by AT&T at the same time
the Franchise Agreement is executed. The Side Letter addresses three (3) provisions of the
Franchise Agreement as follows:
The channel number and location of the Educational and Governmental
CEG") Access Channels provide pursuant to Exhibit B, Section 1 of the
Franchise Agreement.
The cost recovery and non-itemization on Subscriber bills of the fiber optic
links provided pursuant to Exhibit B, Section 3 of the Franchise Agreement.
The cost recovery and non-itemization on Subscriber bills of the One Million
Dollar ($1,000,000) capital grant provided pursuant to Exhibit B, Section 5 of
the Franchise Agreement.
EXTENSION OF THE EXISTING FRANCHISE AGREEMENT
The effective date of the AT&T Cable Franchise Agreement must occur after the adoption of the
City' s Cable System Regulatory Ordinance. The effective date of the City's Ordinance will occur
in mid May 2001o The City Council will need to require AT&T to continue operation of the
cable system from April 1,2001 through May 31,2001 under the same terms and conditions as
specified in Chapter 3.20 of the existing Municipal Code and the existing Franchise Agreement.
A similar Resolution was adopted in December 2000 extending the existing Franchise
Agreement to March 31,2001. The adoption of the Resolution will extend the March 31,2001
date to May 31,2001o
In addition, because of the various adoption dates of City Ordinances among the Tri-Valley
Cities, it was agreed that June 1, 2001 would be effective date of the AT&T Franchise
Agreement.
RECOMMENDATION
Staff recommends that the City Council:
2o
3.
4o
5o
6o
7o
Open the Public Hearing
Receive the Staff Report
Receive Public Testimony
Close the Public Hearing
Deliberate
Waive reading and INTRODUCE Ordinance
Authorize Mayor to Execute Franchise Agreement and Side Letter with AT&T
Broadband
Adopt Resolution requiring that AT&T Broadband and Internet Services continue
to provide cable services through May 31,2001.
February 22, 2001
CABLE SYSTEM REGULATORY ORDINANCE
CITIES OF DUBLIN, LIVERMORE, PLEASANTON AND SAN RAMON
ATTACHMENT 1
SECTION 3. INTENT ..........................................................' .............................2
3.1. Authority ..........................................................................................2
3.2 Findings ...........................................................................................2
SECTION 4. SHORT TITLE .............................................................................3
SECTION 5. DEFINITIONS ..............................................................................4
SECTION 6. FRANCHISE TERMS AND CONDITIONS .... · ..............................9
6ol. Franchise Purposes ........................................................................9
6.2. Franchise Required ....................................: ...................................9
6.3. Term of the Franchise ....................................................................10
6.4. Franchise Territory .........................................................................10
6.5. Federal or State Jurisdiction ...........................................................10
6.6. Franchise Non-Transferable ............................................. ..............10
6.7. Geographical Coverage ..................................................................13
6,8. Nonexclusive Franchise .................................................................13
6.9. Multiple Franchises .........................................................................14
6.10. Franchise Modification ...................: ..............................................15
SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL ......................... 16
7.1. Filing of Applications .......................................................................16
7.2. Applications - Contents ...................................................................16
7.3. Consideration of Initial Applications ................................................17
7.4. Franchise Renewal .........................................................................18
SECTION 8. MINIMUM CONSUMER PROTECTION AND SERVICE
STANDARDS ....................................................................................................19
8.1. Operational Standards ...................................................................19
8.2. Service Standards .........................: ................................................21
8.3. Billing and Information Standards ...................................................22
8,4. Verification of Compliance with Standards .....................................24
8.5, Subscriber Complaints and Disputes ...............................- ..............25
8.6. Other Requirements .......................................................................27
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS .............. 29
9.1. Franchise Fee ................................................................................29
9.2. Franchise Fee Audit .......................................................................30
9.3. Security Fund .................................................................................31
SECTION 10. CONSTRUCTION REQUIREMENTS ........................................32
10.1 . System Construction .....................................................................32
10.2. Multiple Franchises .......................................................................36
SECTION 11. TECHNICAL STANDARDS .......................................................38
11.1, Applicable Technical Standards ..; ................ ................................38
11.2. Costs of Technical Assistance ......................................................38
SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS ...... 39
12,1,
12,2,
SECTION 1
13,1,
13,2.
13,3,
13,4,
Hold Harmless .....................................................................:. .......39
Insurance ......................................................................................39
3. RECORDS AND REPORTS ......................................................42
Records Required .........................................................................42
Annual Reports .............................................................................43
Record Maps ...............................~ ................................................46
Opinion Survey .............................................................................47
SECTION 14,
14,1,
14.2.
SECTION 1
15,1.
15,2,
15,3,
15,4,
REVIEW OF SYSTEM PERFORMANCE ..................................48
Triennial Review ...........................................................................48
Special Review .............................................................................49
5. FRANCHISE VIOLATIONS .......................................................50
Remedies for Violations ................................................................50
Procedure for Remedying Franchise Violations ...........................51
Grantor's Power to Revoke ..........................................................52
Appeal of Finding of Revocation ...................................................54
SECTION 16,
SECTION 17,
17,1,
17,2,
17,3,
17,4,
SECTION 1
18,1.
18.2,
18,3.
SECTION 1
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM.., 55
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY56
Abandonment or Removal ............................................................56
Restoration by Grantor: ReimburSement of Costs .......................57
Extended Operation and Continuity of Services ...........................58
Receivership and Foreclosure ......................................................58
8, GRANTOR AND SUBSCRIBER RIGHTS .................................60
Reservation of Grantor Rights ......................................................60
Waiver ..........................................................................................60
Rights of Individuals ....................~ ................................................60
9. SEVERABILITY .........................................................................63
ORDINANCE NO,
THE CITY COUNCIL OF THE CITY OF DUBLIN DOE8 ORDAIN AS
FOLLOWS:
SECTION 1, That existing Ordinance No. 30-85 is hereby repealed in its
entirety.
SECTION 2. That Ordinance No.
Ordinance No. 30-85.
is hereby enacted to supersede
SECTION 3. INTENT
3.1. Authority
The City of Dublin pursuant to applicable Federal and State law, is
authorized to grant one or more non-exclusive franchises to construct, operate,
maintain and reconstruct Cable Systems within the City limits.
3.2 Findings
The City Council finds that the development of Cable Systems has the
potential of having great benefit and impact upon the residents 'of the City.
Because of the complex and rapidly changing technology associated with Cable
Systems, the City Council further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which
should be vested in the City or such Persons as the City may designate. It is the
intent of this Ordinance and subsequent amendments to provide for and specify
the means to attain the best possible Cable Service to the public and any
Franchises issued pursuant to this Ordinance shall be deemed to include this as
an integral finding thereof. It is the further intent of this Ordinance to establish
regulatory provisions that permit the City to regulate Cable System Franchises to
the extent permitted by Federal and State law, including but not limited to the
Federal Cable Communications Policy Act of 1984, the Federal Cable Television
Consumer Protection and Competition Act of 1992, the Federal
Telecommunications Act of 1996, applicable Federal Communications
Commission regulations and applicable California law.
2
SECTION 4, SHORT TITLE
This Ordinance shall constitute the "Cable System Regulatory Ordinance"
of the City of Dublin and may be referred to as such.
3
SECTION 5. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used in the
present tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number. Words not
defined shall be given their common and ordinary meaning.
5.1. "Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals.
"Cable Operator" means any Person or group of Persons who:
(a) provides Cable Service over a Cable System and directly or
through one (1) or more affiliates owns a significant interest in such Cable
System; or
(b) otherwise controls or is responsible for, through any arrangement,
the management and operation of such Cable System°
· 5.3. "Cable Service" means:
(a) The one-way transmission to Subscribers of
(1) video programming; or
(2) other programming service; and
(b) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
5.4. "Cable System" or "System," means a facility, consisting of a set of
closed transmission paths and associated signal generation, reception, and
control equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within a community,
but such term does not include:
(a) a facility that serves only to retransmit television signals of one (1)
or more television broadcast stations;
(b)
of-Way;
a facility that serves Subscribers without using any Public Rights-
(c) a facility of a common carrier which is subject, in whole or in part, to
the provisions of Title II of the Communications Act of 1934, as amended, except
that such facility shall be considered a Cable System (other than for the
purposes of 47 USC 541) to the extent such facility is used in the transmission of
video programming directly to Subscribers; unless the extent of such use is
solely to provide interactive on-demand services;
(d) an open video system that complies with 47 USC 573; or
(e) any facilities of any electric utility used solely for operating its
electric utility system.
5.5. "Channel" or "Cable Channel" means a portion of the
electromagnetic frequency spectrum which is used in a Cable System and which
is capable of delivering a television channel as defined by the Federal
Communications Commission.
5.6. "Council" means the City Council of the City of Dublin.
5
5.70 "Franchise" means an initial authorization, or renewal thereof, issued
by the Council, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a Cable System. Any such
authorization, in whatever form granted, shall not supersede the requirement to
obtain any other license or permit required for the privilege of transacting
business within the City as required by the other ordinances and laws of the City.
5.8. "Franchise Agreement" means a franchise grant ordinance or a
contractual agreement, containing the specific provisions of the Franchise
granted, including references, specifications, requirements and other related
matters.
5.9. "Franchise Fee" means any fee or assessment of any kind imposed
by the City on a Grantee as compensation for the Grantee's use of the Public
Rights-of-Way for the provision of Cable Service. The term "Franchise Fee"
does not include:
(a) any tax, fee or assessment 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);
(b) capital costs which are required by the Franchise to be incurred by
Grantee for Public, Educational, or Governmental Access Facilities;
(c) requirements or charges incidental to the awarding or enforcing of
the Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
6
(d) any fee imposed under Title 17, United States Code.
5.10. "Grantee" means any "Person" receiving a Franchise pursuant to
this Ordinance and under the granting Franchise ordinance or agreement, and
its lawful successor, transferee or assignee.
5o 11. "Grantor" or "City" means the City of Dublin as represented by the
Council or any delegate, acting within the lawful scope of its jurisdiction.
5.12. "Gross Annual Cable Service Revenues" means the annual gross
revenues received by a Grantee from the operations of the Cable System within
the City to provide Cable Service utilizing the Public Rights-of-Way for which a
Franchise is required, excluding refundable deposits, rebates or credits, and any
sales, excise or other taxes or charges imposed externally to the Franchise, and
collected for direct pass-through to local, State or Federal government.
5.13. "Installation" means the connection of the System to Subscribers'
terminals, and the provision of service.
5.14. "Person" means an individual, partnership, association, joint stock
company, trust, corporation or governmentaM entity.
5.15. "Public, Educational or Government Access Facilities" or "PEG
Access Facilities" means the total of the following:
(a) Channel capacity designated for noncommercial public,
educational, or government use; and
(b) facilities and equipment for the use of such Channel capacity.
7
5.16. "'Section" means any section, subsection or provision of this
Ordinance.
5.17. "Service Area" or "Franchise Area" means the entire geographic
area within the municipal boundaries of the City as it is now constituted or may in
the future be constituted, unless otherwise specified in the Franchise.
5. '18. "'Service Tier" means a category of Cable Service or other services
provided by a Cable Operator and for which a separate rate is charged.
5.19. "State" means the State of California.
5.20. "Street" or "Public Way"' or "Public Rights-of-Way" means each of
the following which have been dedicated to the public or are hereafter dedicated
to the public and maintained under public authority or by others and located
within the Service Area: streets, roadways, highways, avenues, lanes, alleys,
sidewalks, easements, rights-of-way and similar public property.
5.21. "Subscriber" or "Customer" or "Consumer" means any Person who
or which elects to subscribe to, for any purpose, Cable Service provided by the
Grantee by means of or in connection with the Cable System, and who pays the
charges therefor.
//y---
SECTION 6. FRANCHISE TERMS AND CONDITIONS
6.1. Franchise Purposes
A Franchise granted by the City under the provisions of this Ordinance
shall encompass the following purposes:
(a) to permit the Grantee to engage in the business of providing Cable
Service, and such other services as may be permitted by law which Grantee
provides to Subscribers within the designated Service Area.
(b) to permit the Grantee to erect, install, construct, repair, rebuild,
reconstruct, replace, maintain, and retain, cable lines, related electronic
equipment, supporting structures, appurtenances, and other property in
connection with the operation of the Cable System in, on, over, under, upon,
along and across streets or other public places within the designated Service
Area.
(c) to permit the Grantee to maintain and operate said Franchise
properties for the origination, reception, transmission, amplification, and
distribution of television and radio signals and for the delivery of Cable Services,
and such other services as may be permitted by iawo
(d) To set forth the obligations of the Grantee under the Franchise.
6.2. Franchise Required
After the effective date of this Ordinance, it shall be unlawful for any
Person to construct, install or operate a Cable System in the City within any
Public Way without a properly granted Franchise awarded pursuant to the
provisions of this Ordinance.
9
6o3.
Term of the Franchise
(a) A Franchise granted hereunder shall be for a term established in
the Franchise Agreement, commencing on the Grantor"s adoption of an
ordinance or resolution authorizing the Franchise.
(b) A Franchise granted hereunder may be renewed upon.application
by the Grantee pursuant to the provisions of applicable State and Federal law.
6.4. Franchise Territory
Any Franchise shall be valid within all the municipal limits of the City, and
within any area added to the City during the term of the Franchise, unless
otherwise specified in the Franchise Agreement.
6.5. Federal or State Jurisdiction
This Ordinance shall be construed in a manner consistent with all
applicable Federal and State laws, and shall apply to all Franchises granted or
renewed after the effective date of this Ordinance to the extent permitted by
applicable law.
6.6. Franchise Non-Transferable
(a) Grantee shall not sell, transfer, lease, assign or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary sale, contract,
consolidation or otherwise, the Franchise or any of the rights or privileges therein
granted, without the prior consent of the Council, which consent shall not be
unreasonably denied, withheld or delayed; provided, however, that the prior
consent of the Council shall not be required for an intracorporate or
intracompany transfer from one wholly-owned subsidiary to another wholly-
10
owned subsidiary. Any attempt to sell, transfer, lease, assign or otherwise
dispose of the Franchise without the consent of the Council shall be null and
void. The granting of a security interest in any Grantee assets, or any mortgage
or other hypothecation or by assignment of any right, title or interest in the Cable
System in order to secure indebtedness, shall not be considered a transfer for
the purposes of this section.
(b) The requirements of Subsection (a) shall apply to any change in
control of Grantee. The word "control" as used herein includes majority
ownership, and actual working control in whatever manner exercised. In the
event that Grantee is a corporation, prior consent of the Council shall be required
where ownership or control of more than twenty percent (20%) of the voting
stock of the Grantee is acquired by a Person or group of Persons acting in
concert, none of whom own or controM the voting stock of the Grantee as of the
effective date of the Franchise, singularly or collectively.
(c) Grantee shall notify Grantor in writing of any foreclosure or any
other judicial sale of all or a substantial part of the Franchise property of the
Grantee or upon the termination of any lease or interest covering all or a
substantial part of said Franchise property. Such notification shall be considered
by Grantor as notice that a change in control of ownership of the Franchise has
taken place and the provisions under this Section governing the consent of
Grantor to such change in control of ownership shall apply.
(d) For the purpose of determining whether it shall consent to such
change, transfer, or acquisition of control, Grantor may inquire into the
qualifications of the prospective transferee or controlling party, and Grantee shall '
assist Grantor in such inquiry. In seeking Grantor's consent to any change of
11
ownership or control, Grantee shall have the responsibility of insuring that the
Grantee and/or the proposed transferee complete an application in accordance
with Federal Communications Commission Form 394 or equivalent. Grantor may
require Grantee to submit such additional information as the Grantor may
reasonably require to determine that the proposed transferee possesses the
legal, technical and financial qualifications, or that Grantee is in compliance with
all substantive Franchise requirements. An application shall be submitted to
Grantor not less than one hundred twenty (120) days prior to the proposed date
of transfer° If the legal, technical and financial qualifications of the applicant are
determined by the Grantor to be satisfactory, and if Grantor determines that
Grantee is in compliance with all substantive Franchise requirements, the
Grantor shall consent to the transfer of the Franchise. If the Grantor has not
taken action on the Grantee's request for transfer within one hundred twenty
(120) days after receiving FCC Form 394 or equivalent, Grantor's consent to
such transfer shall be deemed given. The consent of the Grantor to such
transfer shall not be unreasonably denied or delayed. Grantor does not waive
any lawful authority it may have to impose conditions on the transfer.
(e) Any financial institution having a pledge of the Grantee or its assets
for the advancement of money for the construction and/or operation of the
Franchise shall have the right to notify the Grantor that it or its designee
satisfactory to the Grantor shall take control of and operate the Cable System, in
the event of a Grantee default of its financial obligations. Further, said financial
institution shall also agree in writing to continue Cable Service and comply with
all Franchise requirements during the term the financial institution exercises
control over the System.
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(f) Upon transfer, Grantee shall reimburse Grantor for Grantor's
reasonable processing and review expenses in connection with the transfer of
the Franchise, including without limitation, costs of administrative review,
financial, legal and technical evaluation of the proposed transferee, consultants
(including technical and legal experts and all costs incurred by such experts),
notice and publication costs and document preparation expenses. Any such
reimbursement shall not be charged against any Franchise Fee due to Grantor
during the term of the Franchise.
6.7. Geographical Coverage
. (a) Grantee shall design, construct and maintain the Cable System to
have the capability to pass every residential dwelling unit in the Service Area,
subject to any Service Area line extension requirements of the Franchise
Agreement.
(b) After service has been established by activating trunk and/or
distribution cables for any Service Area, Grantee shall provide service to any
requesting Subscriber within that Service Area within thirty (30) days from the
date of request, provided that the Grantee is able to secure all rights-of-way
necessary to extend service to such Subscriber within such thirty (30) day period
on reasonable terms and conditions.
6o8. Nonexclusive Franchise
Any Franchise granted pursuant to this Ordinance shall be nonexclusive.
The Grantor specifically reserves the right to grant, at any time, such additional
Franchises for a Cable System, as it deems appropriate, subject to applicable
State and Federal law, provided that if the Grantor grants an additional
13
Franchise, then the material provisions of any such additional Franchise shall be
reasonably comparable to the terms and conditions contained in the initial
Grantee's Franchise, so that all Grantees are accorded competitively neutral and.
nondiscriminatory treatment.
6.9. Multiple Franchises
(a) Grantor may grant any number of Franchises subject to applicable
State or Federal law. Grantor may limit the number of Franchises granted,
based upon, but not necessarily limited to, the requirements of applicable law
and specific local considerations, such as:
(1) The capacity of the Public Rights-of-Way to accommodate
multiple cables in addition to the cables, conduits and pipes of the utility
Systems, such as electrical power, telephone, gas and sewerage.
(2) The benefits that may accrue' to Subscribers as a result of
Cable System competition, such as lower rates and improved service.
(3) The disadvantages that may result from Cable System
competition, such as the requirement for multiple pedestals on residents'
property, and the disruption arising from numerous excavations of the Public
Rights-of-Way.
(b) Where electric and telephone utilities are to be placed underground
in any new residential housing developments, Grantor and the developer of such
new residential housing shall give each Grantee serving the Franchise Area
within which the new residential housing development is located at least ten (10)
working days prior written notice of the date on which open trenching will be
available for the Grantee's installation of conduit, pedestals and vaults. On
14
request of the Grantor or developer, the Grantee shall provide specifications
needed for trenching.
(c) Grantor may require that any new entrant, non-incumbent Grantee
be responsible for its own underground trenching and the costs associated
therewith, if, in Grantor's opinion, the Public Rights-of-Way in any particular area
cannot feasibly and reasonably accommodate additional cables.
6.10. Franchise Modification
The Grantee may be required to pay any costs incurred by the Grantor in
processing a Grantee request for Franchise modification, lease, hypothecation or
trust of Franchise. Such costs may include the costs incurred for hiring
consultants to assist in evaluating the request. Such costs shall be paid by the
Grantee prior to final consideration of the request by the Grantor,
SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL
7.1. Filing of Applications
Any Person desiring an initial Franchise for a Cable System shall file an
application with the City. A reasonable nonrefundable initial application fee
established by the City shall accompany the initial Franchise application to cover
all validly documented reasonable costs associated with processing and
reviewing the application, including without limitation costs of administrative
review, financial, legal and technical evaluation of the applicant,. consultants
(including technical and legal experts and all costs incurred by such experts),
notice and publication requirements with respect to the consideration of the
application and document preparation expenses. In the event such validly
documented reasonable costs exceed the application fee, the selected
applicant(s) shall pay the difference to the City .within thirty (30) days following
receipt of an itemized statement of such costs.
7.2. Applications - Contents
An application for an initial Franchise for a Cable System shall contain,
where applicable:
(a) A statement as to the proposed Franchise and Service Area;
(b) A resume of prior history of the applicant, including the expertise of
applicant in the Cable System field;
(c) A list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each stockholder,
if a corporation;
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(d) A list of officers, directors and managing employees of the
applicant, together with a description of the background of each such Person;
(e) The names and addresses of any parent or subsidiary of the
applicant or any other business entity owning or controlling the applicant in whole
or in part, or owned or controlled in whole or in .part by the applicant;
(f) A current financial statement of the applicant verified by a Certified
Public Accountant audit or otherwise certified to be true, complete and correct to
the reasonable satisfaction of the City;
' (g) A proposed construction and service schedule;
(h)
applicable,
Any reasonable relevant additional information that the City deems
7.3. Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise, the City
Manager or a delegate shall prepare a report and make recommendations
respecting such application to the Council.
(b) A public hearing shall be set prior to any initial Franchise grant, at a
time and date approved by the Council. Within sixty (60) days after the close of
the hearing, the Council shall make a decision based upon the evidence
received at the hearing as to whether or not the initial Franchise(s) should be
granted, and, if granted, subject to what conditions. The' Council may grant one
(1) or more Franchises, or may decline to grant any Franchise.
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7,4, Franchise Renewal
Franchise renewals shall be in accordance with applicable law, Grantor
and Grantee, by mutua~ consent, may enter into renewal negotiations at any time
during the term of the Franchise,
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SECTION 8. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS
8.1. Operational Standards
(a) Except as otherwise provided in the Franchise Agreement, Grantee
shall maintain the necessary facilities, equipment and personnel to comply with
the following Consumer protection and service standards under normal
conditions of operation:
(1) Sufficient toll-free telephone line capacity during normal
business hours to assure telephone answer time by a Customer service
representative, including wait time, shall not exceed thirty (30) seconds; and
callers needing to be transferred within Grantee's operation shall not be required
to wait more than thirty (30) seconds before being connected to a service
representative. Under normal operating conditions, a caller shall receive a busy
signaM less than three percent (3%) of the time.
(2) Emergency toll-free telephone line capacity on a twenty-four
(24) hour basis, including weekends and holidays. After normal business hours,
the telephone calls may be answered by a service or an automated response
system, including ~an answering machine. Calls received after normal business
hours must be responded to by a trained company representative on the next
business day. During periods when an answering service or machine is used,
Grantee shall provide on-call personnel who shall contact the answering service
or machine, at a minimum, every four hours to check on requests for service or
complaints.
(3) A conveniently located local business and service and/or
payment office open during normal business hours at least eight (8) hours daily,
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and at least four (4) hours weekly on evenings or weekends, and adequately
staffed to accept Subscriber payments and respond to service requests and
complaints. The Grantee may petition the Grantor to reduce its business hours if
the extended hours are not justified by Subscriber demand.
(4) An emergency System maintenance and repair stYaft, capable
of responding to and repairing major System realfunction on a twenty-four (24)
hour per day basis.
(5) An installation staff, capable of installing service to any
Subscriber. requiring a Standard Installation within seven (7) days after receipt of
a request, in all areas where trunk and feeder Cable have been activated.
"Standard Installations" shall be those that are located up to one hundred
twenty-five (125) feet from the existing distribution System, unless otherwise
defined in any Franchise Agreement.
(6) Grantee shall schedule, within a specified four (4) hour time
period during normal business hours, all appointments with Subscribers for
installation of service, service calls and other activities at the Subscriber location.
Grantee may schedule installation and service calls outside of normal business
hours for the express convenience of the Customer. Grantee shall not cancel an
appointment with a Customer after the close of business on the business day
prior to the scheduled appointment, If a Grantee representative is running late
for an appointment with a Customer and will not be able to keep the appointment
as scheduled, the Customer shall be contacted as soon as possible and the
appointment rescheduled, as necessary, at a time which is convenient for the
Customer, and within reason.
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(b) The standards of paragraphs (a)(1) and (a)(2) above shall be met
not less than ninety percent (90%) of the time measured on a quarterly basis.
The standards of paragraphs (a)(4)-(6) above shall be met not less than ninety-
five percent (95%) of the time measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure to comply.
8.2. Service Standards
(a) Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
Scheduled interruptions of an anticipated duration of two (2) consecutive hours
or longer, insofar as possible, shall be preceded by notice and shall occur during
a period of minimum use of the Cable System, preferably between midnight and
six A.M. (6:00 A.M.) local time.
(b) The Grantee shall maintain a repair force of technicians normally
capable of responding to Subscriber requests for service within the following time
frames:
(1) For a System outage: Within two (2) hours, including
weekends, of receiving Subscriber calls or requests for service which by number
identify a system outage of sound or picture of one (1) or more channels,
affecting at least ten percent (10%) of the Subscribers of the System.
(2) For an isolated outage: Within twenty-four (24) hours,
including weekends, of receiving requests for service identifying an isolated
outage of sound or picture for one (1) or more channels that affects three (3) or
21
SJ
more Subscribers. On weekends, an outage affecting fewer than three (3)
Subscribers shall result in a service call no later than the next business day.
(3) For inferior signal quality: Within two (2) business days of
receiving a request for service identifying a problem concerning picture or sound
quality.
(c) In the event a service problem requires a visit to a Subscriber's
residence, Grantee shall be deemed to have responded to a request for service
under the provisions of this Section when a technician arrives at the service
location and begins work on the problem. In the case of a Subscriber not being
home when the technician arrives, the technician shall leave written notification
of arrival..'
(d) Grantee shall not charge for the repair or replacement of defective
or malfunctioning equipment provided by Grantee to Subscribers, unless the
defect was caused by the Subscriber.
(e) Unless excused, Grantee shall determine 'the nature of the problem
within two (2) business days of beginning work and resolve all Cable System
related problems within five (5) business days Unless technically infeasible.
8.3. Billing and Information Standards
(a) Subscriber bills shall be clear, concise and understandable. Bills
shall be fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills shall also clearly
delineate all activity during the billing period, including optional charges, rebates
and credits.
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(b) In case of a billing dispute, the Grantee shall respond to a written
complaint from a Subscriber within thirty (30) days.
(c) Upon request; Grantee shall provide credits or refunds to
Subscribers whose Cable Service has been interrupted for two (2) or more
consecutive hours for interruption(s) not caused by the affected Subscriber(s).
The minimum credit or refund issued pursuant to this Section shall be
equal to one (1) day's charge for Cable Service for the affected Subscriber.
In the event Grantee has improperly or inadvertently disconnected Cable
Services to a Subscriber, Grantee shall provide for restoration without charge to
Subscriber within two (2) days of discovery of disconnection, Grantee shall
credit or provide refunds to any Subscriber improperly or inadvertently
disconnected from receiving Cable Services for the period of time without Cable
Service°
All credits or refunds for service shall be issued no later than the
customer"s next billing cycle following the determination that a credit is
warranted. For Subscribers terminating service, refunds shall be issued
promptly, but no later than thirty (30) days after the return of any Grantee-
supplied equipment.
(d) Grantee shall provide written information on each of the following
areas (i) at the time of the installation of Cable Service, (ii) at least annually to all
Subscribers, and (iii) at any time upon request:.
(1) Cable Services offered; and
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(2) Prices and options for programming services and conditions of
subscription to programming and other Cable Services; and
(3) Installation and service maintenance policies; and
(4) Instructions on how to use the Cable Service; and
(5) Channel positions of programming carried on the System; and
(6) Billing and complaint procedures, including the address and
telephone number of the Granl~or office designated for dealing with cable-related
issues.
(e) Subscribers shall be notified of any changes in rates, programming
services or channel positions as soon as possible in writing and in accordance
with State and Federal Law. Notice must be given to Subscribers a minimum of
thirty (30) days in advance of such changes if the change is within the control of
the Grantee° In addition, Grantee shall notify Subscribers thirty (30) days in
advance of any significant changes in the information required in paragraph
8o3(d) above.
8.4. Verification of Compliance with Standards
(a) Upon thirty (30) calendar days prior written notice, Grantee shall
respond to a request for information made by Grantor regarding Grantee's
compliance with any or all of the standards required in Sections 8.1, 8.2 and 8.3
above. Grantee shall provide sufficient documentation to permit Grantor to verify
Grantee's compliance for the previous twenty-four (24) month period. Grantee
may request, and Grantor shall not unreasonably deny, a request for a
reasonable extension of time in which to produce such documentation.
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(b) A repeated and verifiable pattern of non-compliance with the
Consumer protection standards of Sections 8.1 through 8.3 above, after
Grantee's receipt of due notice and a reasonable opportunity to cure, may be
deemed a material breach of the Franchise Agreement.
(c) in order to determine whether sufficient telephone lines are
provided, the Grantor may require, upon thirty (30) calendar days written notice,
the Grantee to submit a report verifying the adequacy of its telephone line
capacity. If Grantee is unable to provide such a report, Grantor may require that
a busy study, traffic study or other study be conducted, at Grantee's expense, if
any, by the local telephone company. Should Grantee have its own telephone
equipment which can report on telephone line(S) usage, the Grantee may submit
such report from its own system. The Grantor, pursuant to Section 8.1(c) of this
Ordinance, may require Grantee to acquire equipment to determine compliance
with the telephone answering standards of this Section 8o
(d) Should the Grantor determine that insufficient telephone lines or
inadequate staff exists, Grantee shall take necessary steps to ensure that
adequate telephone lines and/or staffing are available to permit Grantee to
satisfy its obligations under this Ordinance and the Franchise. Consideration
shall be given for periods of promotional activities or outages. The monthly
billing period shall be considered as a normal, daily activity for purposes of
determining the availability of adequate telephone lines and/or staffing.
8.5. Subscriber Complaints and Disputes
(a) Grantee shall establish written procedures for receiving, acting
upon and resolving Subscriber complaints without intervention by the Grantor.
The written procedures shall prescribe the manner in which a Subscriber may
25 "
submit a complaint either orally or in writing specifying the Subscriber"s grounds
for dissatisfaction. Grantee shall file a copy of these procedures with Grantor.
The written procedures shall include a requirement that Grantee respond to any
written complaint from a Subscriber within thirty (30) days of receipt.
(b) Upon prior wdtten request, Grantor shall have the right to review
Grantee's response to any Subscriber complaints in order to determine
Grantee's compliance with the Franchise requirements, subject to the
Subscriber's right to privacy.
(c) Subject to applicable law, it shall be the right of all Subscribers to
continue receiving Cable Service insofar as their financial and other obligations
to the Grantee are honored. in the event that the Grantee elects to rebuild,
modify, or sell the System, or the Grantor gives notice of intent to terminate or
not to renew the Franchise, the Grantee shall act so as to ensure that all
Subscribers receive Cable Service so Bong as the Franchise remains in force.
(d) In the event of a change of control of Grantee, or in the event a
new operator acquires the System, the original Grantee shall cooperate with the
Grantor, new Grantee or operator in maintaining continuity of service to all
Subscribers. During such period, Grantee shall be entitled to the revenues for
any period during which it operates the System.
(e) Grantee response to Subscriber complaints, as well as complaints
made by Subscribers to Grantor and provided by Grantor to Grantee, shall be
initiated within one (1) business day of receipt bY Grantee. The resolution of'
Subscriber complaints shall be effected by Grantee not later than three (3)
· business days after receipt of the complaint. Should a Grantee supervisor not
be available when requested by a Subscriber, a supervisor shall respond to the
26
Subscriber's complaint at the earliest possible time, and in no event later than
the end of the next business day. For complaints received by Grantor and
provided by Grantor to Grantee, Grantee shall notify Grantor of Grantee's
progress in responding to, and resolving, said complaints.
8.6. Other Requirements
(a) In the event Grantee fails to operate the System for seven (7)
consecutive days other than for reasons beyond the control of Grantee, without
prior approval or subsequent excuse of the Grantor, the Grantor may, at its sole
option, operate the System or designate an operator until such time as Grantee
restores service under conditions acceptable to the Grantor or a permanent
operator is selected. !f the Grantor should fulfill this obligation for the Grantee,
then during such period as the Grantor fulfills such obligation, the Grantor shall
be entitled to collect all revenues from the System, and the Grantee shall
reimburse the Grantor for all reasonable costs or damages in excess of the
revenues collected by Grantor that are the result of Grantee's failure to perform.
(b) All officers, agents or employees of Grantee or its contractors or
subcontractors who, in the normal course of work come into contact with
members of the public or who require entry onto Subscribers' premises shall
carry a photo-identification card. Grantee shall account for all identification cards
at all times. Every vehicle of the Grantee or its major subcontractors shall be
clearly identified as working for Grantee.
(c) Additional Customer service standards and standards governing
Consumer protection and response by Grantee to Subscriber complaints not
otherwise provided for in this Ordinance may be established in the Franchise
Agreement or by separate ordinance. A verified and continuing pattern of
27
noncompliance may be deemed a material breach of the Franchise, provided
that Grantee shall receive due process, including prior written notification and a
reasonable opportunity to cure, prior to any sanction being imposed.
28
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS
Franchise Fee
(a) Following the issuance and acceptance of the Franchise, the
Grantee shall pay to the Grantor a Franchise Fee on Gross Annual Cable
Service Revenues in the amount and at the times set forth in the Franchise
Agreement.
(b) In the event that any Franchise Fee payment or payment of any
adjustment to any Franchise Fee is not made on or before the dates specified in
the Franchise Agreement, Grantee shall pay:
(1) an interest charge, computed from such due date, at an
annual rate equal to the highest of the most recently published prime lending
rate of any of the five (5) largest member banks of the New York Clearing House
Association, plus one percent (1%) during the period for which payment was
due; and
(2) if the payment is late by ninety (90) days or more, a sum of
money equal to five percent (5%) of the amount due in order to defray those
additionaa expenses and costs incurred by the Grantor due to Granteels
delinquent payment.
(c) In the event Grantee overpays its Franchise Fee, the Grantee shall
notify the Grantor in writing, and provide sufficient documentation to verify the
alleged overpayment. Upon written authorization by the Grantor, said
authorization not to be unreasonably withheld, the Grantee may begin deducting
the amount overpaid beginning with the next Franchise Fee payment due from
Grantee to Grantor, and Grantee may continue to deduct the amount paid on
29
subsequent Franchise Fee payments until the amount overpaid is fully
reimbursed to Grantee.
(d) The Grantor, on an annual basis,. shall be furnished a statement
within ninety (90) days of the close of the calendar year, either audited and
certified by an independent certified public accountant or certified by an officer of
the Grantee, reflecting the total amounts of Gross Annual Cable Service
Revenues and all payments, deductions and computations for the period
covered by the payment.
(e) Franchise fee payments shall be made in accordance with the
schedule indicated in the Franchise Agreement.
(f) Except as otherwise provided by iaw, no acceptance of any
payment by the Grantor shall be construed as a release or as an accord and
satisfaction of any claim the Grantor may have for further or additional sums
payable as a Franchise Fee under this Ordinance or for the performance of any
other obligation of the Grantee.
9.2°. Franchise Fee Audit
Upon thirty (30) days prior written notice, Grantor shall have the right to
conduct an independent financial audit of Grantee's Gross Annual Cable Service
Revenues and Franchise Fee records, in accordance with Generally Accepted
Accounting Procedures (GAAP), and if such audit indicates a Franchise Fee
underpayment of two percent (2%) or more, the Grantee shall assume all
reasonable documented costs of such audit.
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9°3. Security Fund
(a) Grantor may require Grantee to provide a security fund, in an
amount and form established in the Franchise Agreement. The amount of the
security fund shall be established based on the extent of the Grantee's
obligations under the terms of the Franchise.
(b) The security fund shall be available to Grantor to satisfy all claims,
liens and/or taxes due Grantor from Grantee which arise by reason of
construction, operation, or maintenance of the System, and to satisfy any actual
or liquidated damages arising out of a material breach of the Franchise
Agreement, subject to the procedures and amounts designated in the Franchise
Agreement.
(c) If the security fund is drawn upon by Grantor in accordance with
the procedures established in this Ordinance and the Franchise Agreement,
Grantee shall cause the security fund to be replenished to the original amount no
later than thirty (30) days after receiving written confirmation from the bank
where such security fund is deposited that Grantor has made a draw against the
security fund. Failure to replenish the security fund shall be deemed a material
breach of the Franchise°
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SECTION 10. CONSTRUCTION REQUIREMENTS
10.1 o System Construction
(a) Grantee shall not construct any Cable System facilities until
Grantee has secured the necessary permits from Grantor, or other responsible
public agencies. The Grantee shall be subject to all permit and bonding
requirements applicable to contractors working within the Public Rights-of-Way.
No provision of this Ordinance or the Franchise Agreement shall be deemed a
waiver of the obligation of a Grantee to pay Grantor for the issuance of a permit.
(b) In those areas of the City where transmission lines or distribution
facilities of the public utilities providing telephone and electric power service are
underground, the Grantee likewise shall construct, operate and maintain its
transmission and distribution facilities underground.
(c) In those areas of the City where the Grantee's cables are located
on the above-ground transmission or distribution facilities of the public and/or
municipal utility providing telephone or electric power service, and in the event
that the facilities of both the telephone and electric power utilities subsequently
are placed underground, then the Grantee likewise shall reconstruct, operate
and maintain its transmission and distribution facilities underground, at Granteels
cost. Certain of Grantee's existing equipment, .such as pedestals, amplifiers and
power supplies, which normally are placed above ground, may continue to
remain in above-grOund enclosures, unless otherwise provided in the Franchise
Agreement.
(d) Any changes in or extensions of any poles, anchors, wires, cables,
conduits, vaults, laterals or other fixtures and equipment (herein referred to as
32
"Structures"), or the construction of any additional Structures, in, upon, along,
across, under or over the Streets, alleys and Public Ways shall be made under
the direction of Grantor's City Manager or the City Manager's designee, who
shall, if the proposed change, extension or construction conforms to the
provisions hereof, issue written permits therefor within thirty (30) days of
receiving a complete permit application. The height above public thoroughfares
of all aerial wires shall conform to the requirements of the California regulatory
body having jurisdiction thereof.
(1) All transmission and distribution structures, lines and
equipment erected by the Grantee shall be located so as not to interfere with the
proper use of the Public Rights-of-Way, and to cause minimum interference with
the rights or reasonable convenience of property owners who adjoin any of the
said Public Rights-of-Way, and not to materially interfere with existing public and
municipal utility installations.
(2) Upon issuance of a written finding by the Grantor that any
property or improvement of the Grantor in the Public Rights-of-Way is disturbed
or damaged by the Grantee or any of its contractors, agents or employees in
connection with undertaking any and all work pursuant to the rights granted to
the Grantee pursuant to this Ordinance and the Franchise Agreement, the
Grantee shall promptly, at the Grantee's sole cost and expense, restore as
nearly as practicable to at least its former condition and to the Grantor's
reasonable satisfaction said property or improvement which was so disturbed or
damaged. If such property or improvement becomes uneven, unsettled or
otherwise require additional restorative work, repair or replacement because of
the initial disturbance or damage to the property by the Grantee, then the
Grantee, as soon as reasonably possible, shall, promptly upon receipt of written
33
notice from the Grantor and at the Grantee's sole cost and expense, restore as
nearly as practicable to at least its former condition and to the Grantor's
reasonable satisfaction said property or improvement which was disturbed or
damaged. Any such restoration by the Grantee shall be made in accordance
with such materials and specifications as may, from time to time, be established
by the Grantor.
(3) Prior to commencing any work on the System in the Public
Rights-of-Way, the Grantee shall obtain any and all permits, licenses and
authorizations lawfully required for such work. If emergency work on the System
in the Public Right-of-Way is required, the Grantee shall with all due diligence,
seek to obtain any and all such required permits, licenses and authorizations
within three (3) working days after commencing such emergency work.
(4) There shall be no unreasonable or unnecessary obstruction
of the Public Rights-of-Way by the Grantee in connection with any of the work
provided for herein. The Grantee shall maintain any barriers, signs and warning
signals during any work performed on or aboutthe Public Rights-of-Way or
adjacent thereto as may be necessary to reasonably avoid injury or damage to
life and property.
(5) If the Grantor lawfully elects to alter or change the grade or
location of any Public Right-of-Way, the Grantee shall, upon reasonable notice
by the Grantor, and in a timely manner, remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other fixtures at it own
expense. If, however, other similarly situated users of such Public Rights-of-Way
are compensated or reimbursed for any of the cost associated with the removal,
34
relay or relocation of any equipment or facilities, Grantee shall be entitled to
compensation in kind,
(6) The Grantee shall not place poles, conduits or other fixtures
above or below ground where the same will interfere with any gas, electric,
telephone fixtures, water hydrants or other utility, and all such poles, conduits or
other fixtures placed in any street shall be so placed as to comply with all
ordinances of the Grantor.
(7) In accordance with applicable law, the Grantee or any utility
user of the Public Rights-of-Way may be required by the Grantor to permit joint
use of its poles and/or conduit located in the Public Rights-of-Way, by any
authorized user insofar as such joint use may be reasonably practicable and
upon payment of a reasonable rental fee for such usage. In the absence of
agreement regarding such joint use, each party shall be entitled to exercise any
rights and defenses provided by applicable law,
(8) The Grantee, on request of any Person holding a moving
permit issued by the Grantor, shall temporarily-raise or lower its wires or fixtures
to permit the moving of buildings. The expense of such temporary raising or
~owering of wires or fixtures shall be paid by the Person requesting the same,
and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not less than ten (10) business days prior written
notice to arrange for the temporary wire or equipment changes.
(9) The Grantee shall have the authority to trim any trees or
other natural growth overhanging the Public Rights-of-Way so as to prevent the
branches of such trees or other natural growth .from coming in contact with the
Grantee's wires, cables and other equipment. The Grantor may require all
35
trimming of trees and natural growth to be done under its supervision and
direction, at the expense of the Grantee.
(10) Grantee shall be subject to any and all requirements
established by the Grantor with regard to the location, either above ground or
underground, as well as screening of Grantee's facilities and equipment located
in the Public Rights-of-Way. Such requirements may include, but not be limited
to, use of landscaping to screen pedestals and cabinets and requiring that
construction be flush with the natural grade of the surrounding area.
10.2. Multiple Franchises
(a) Subject to applicable law, in the event that more than one (1)
Franchise is awarded, the Grantor reserves the right to limit the number of
unused drop cables per residence.
(b) The Grantor reserves the right to grant an encroachment permit to
a Cable Franchisee applicant to install conduit and/or cable in anticipation of the
granting of a Franchise. Such installations shall be at the applicant's risk, with
no recourse against the Grantor in the event the pending Franchise application is
not granted, The Grantor may require an applicant to provide a separate trench
for its conduit and/or cable, at the applicant's cost.
(c) If the Grantor authorizes or permits another Cable System to
operate within the municipal limits of the City, it shall do so on conditions that
such new Cable System entrant indemnify and hold harmless the initial Grantee
from and against all costs and expenses incurred in strengthening poles,
replacing poles, rearranging attachments, placing underground facilities and' all
other costs including those of the initial Grantee, the City and utilities, incident to
36
inspections, make ready, and construction of an additional Cable System in the
Franchise Area; and the initial Grantee shall be designated a third party
beneficiary of such conditions as are incorporated into the authorization(s)
granted to such new entrant Cable System,
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SECTION 11. TECHNICAL STANDARDS
11,1, Applicable Technical Standards
(a) TheGrantee shall construct, install, operate and maintain its Cable
System in a manner consistent with all applicable laws, ordinances, construction
standards, governmental requirements, FCC technical standards, and any
detailed standards set forth in its Franchise Agreement. In addition, the Grantee
shall provide to the Grantor, upon written request, a written report of the results
of the Grantee's periodic proof of performance tests conducted pursuant to FCC
and Franchise standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the
Grantee shall make and submit such equivalent proof of performance tests and
reports in response to a written request from the Grantor. Such report shall be
submitted to the Grantor. within sixty (60) days of issuance of the Grantor
request.
(c) Repeated and verified failure to maintain specified technical
standards shall constitute a material breach of the Franchise.
11.2. Costs of Technical Assistance
The Grantee shall pay all reasonable costs actually incurred by the
Grantor for obtaining any technical assistance deemed necessary by the Grantor
for independent verification of technical compliance with applicable technical
standards. The Grantee shall be obligated to pay for such technical review not
more frequently than once per any thirty-six (36) month period.
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SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS
12, 1, Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its officers, agents and
employees harmless from any liability, claims, damages, costs or expenses, to
the extent provided in the Franchise Agreement,
12.2o Insurance
(a) On or before commencement of Franchise operations, the Grantee
shall furnish to Grantor Certificates of Insurance for liability, Workers'
Compensation and property insurance, in the coverage limits provided in the
Franchise Agreement, from appropriately qualified insurance companies, which
shall be "admitted" in the State of California. The Certificates of Insurance shall
provide that the insurance is in force and will not be cancelled or modified
without thirty (30) days prior written notice to Grantor. The Certificates of
Insurance shall be in a form satisfactory to Grantor. The Grantee shall maintain
at its cost throughout the term of the Franchise, the insurance required herein
and in any Franchise Agreement:
(b) The policy of liability insurance shall:
(1) Name Grantor, its officers, agents and employees as
additional insureds;
(2) Indemnify all liability for personal and bodily injury, death
and damage to property arising from activities conducted and premises used
pursuant to this Ordinance by providing coverage therefor, including but not
limited to:
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Negligent acts or omissions of Grantee, and its
agents, servants and employees, committed in the
conduct of Cable System operations, and/or
- Use of motor vehicles;
(3) Provide a combined single limit for comprehensive general
'liability and comprehensive automobile liability insurance in the amount provided
for in the Franchise Agreement.
(c) The policy of Workers' Compensation Insurance shall comply with
the laws of the State of California,
(d) The policy of property insurance shall provide fire insurance with
extended coverage on the Cable System property used by Grantee in the
conduct of Cable System operations in an amount adequate to enable Grantee
to resume Cable System operations following the occurrence of any risk covered
by this insuranceo
The Certificates of Insurance shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and
the date upon which it will expire;
(3) The names of the primary insureds and any additional
insured required by the Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
40
(6) The amount or limit of coverage provided by the insurance.
If the Certificates of Insurance do not provide all of the above information,
Grantor reserves the right to inspect the relevant insurance policies.
(e) The commencement of Franchise operations shall not begin until
Grantee has complied with the aforementioned provisions of this Section.
(f) In the event Grantee fails to maintain any of the above-described
policies in full force and effect, Grantor shall, upon three (3) business days notice
to Grantee, have the right to procure the required insurance and recover the cost
thereof from Grantee. Grantor shall also have the right to suspend the Franchise
during any period that Grantee fails to maintain said policies in full force and
effect. In order to account for increases in consumer prices, no more than once
during any five (5) year period, Grantor shall have the right to order Grantee to
increase the amounts of the insurance provided in the Franchise Agreement.
Such order may be made by Grantor after conducting a duly noticed public
hearing. Increases in insurance coverage shall be based upon current prudent
business practices of like enterprises involving the same or similar risks.
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SECTION 13. RECORD8 AND REPORT8
13.1. Records Required
(a) Grantee shall at all times maintain:
(1) A written or computer-stored record of all service calls and
interruptions or degradation of service experienced for the preceding two (2)
years, provided. that such complaints result in or require a service call, subject to
the Subscriber's right of privacy.
(2) A full and complete set of record drawings showing the
locations of the Cable System installed or in use in the City, exclusive of
Subscriber service drops and equipment provided in Subscriber's homes.
(3) If requested by Grantor, a summary of service calls,
identifying the number, general nature and disposition of such calls, on a
monthly basis. A summary of such service calls shall be submitted to the
Grantor within thirty (30) days following any written request by Grantor, in a form
reasonably acceptable to the Grantor,
(4) If requested by Grantor, a complaint record which shall
contain a semi-annual (January 1 through June 30 and July I through December
31) breakdown indicating the total number of complaints received for the
preceding reporting period, and shall indicate the classifications of complaints as
follows: construction, billing, customer relations/service and miscellaneous.
(5) A full and complete record of rates for Cable Services', such
as programming services, equipment, installations and other Subscriber charges.
This information shall include, but not be limited to, rates for the Basic Service
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Tier, Tiers of service beyond the Basic Tier, premium service, pay-per-view
services, late fees, additional outlets, converters, remote controls and any
charges for installation or service at the Subscriber premises.
(b) The Grantor may impose requests for additional information,
records and documents from Grantee, provided they reasonably relate to the
scope of the City's rights under this Ordinance or the Grantee's Franchise
Agreement.
(c) Upon reasonable written notice, and during normal business hours,
Grantee shall permit examination by any duly authorized representative of the
Grantor of all:
(1) Cable System property and facilities, together with any
appurtenant property and facilities of Grantee situated within the Service Area;
and
(2) All records relating to the operation of the Cable System,
provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under this Ordinance or the Franchise Agreement. Grantee shall
have the right to be present at any such examination.
13.2. Annual Reports
(a) Within ninety (90) days after the end of the calendar year, Grantee
shall, upon written request made within thirty (30) days of the close of the
calendar year, submit a written report to GrantOr with respect to the preceding
calendar year in a form approved by Grantor, including, but not limited to, the
following information:
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(1) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System,
including but not limited to, Cable Services begun or discontinued during the
reporting year;
(2)
A list of Grantee's officers and members of its board of
directors;
(3) A list of stockholders or other equity investors holding five
percent (5%) or more of the voting interest in Grantee;
(4) An indication of any residences in Grantee's Service Area
where service is not available, and a schedule for providing service;
(5) information as to:
(i) the number of homes passed;
(ii) total Subscribers; and
(iii) the number of Basic and Pay Subscribers.
(6) Any other information relevant to Franchise regulation which
the Grantor shall reasonably request, and which is relevant to its regulatory
responsibilities,
(b) Upon written request, Grantee shall submit to Grantor copies of all
pleadings, applications and reports submitted by Grantee to any Federal, State
or local court, regulatory agency, or other governmental body as well as copies
of all decisions issued in response to such pleadings, applications and reports,
44
which are non-routine in nature and which will materially affect its Cable System
within the Franchise Area.
(c) Information otherwise confidential by law and so designated by
Grantee, which is submitted to Grantor, shall be retained in confidence by
Grantor and its authorized agents and shall not be made available for public
inspection. Notwithstanding the foregoing, Grantee shall have no obligation to
provide copies of documents to Grantor which contain trade secrets of Grantee
or which are otherwise of a confidential or proprietary nature to Grantee unless it
receives satisfactory assurances from Grantor that such information can and will
be held in strictest confidence and protected by the Grantor. To the extent
possible, Grantee may provide Grantor with summaries of any required
documents or copies thereof with trade secrets and proprietary matters deleted
therefrom. The burden of proof shall be on Grantee to establish the confidential
nature of any information submitted, to the reasonable satisfaction of the
Grantor,
(d) If Grantee or its parent is publicly held, Grantee shall, upon written
Grantor request, submit a copy of Grantee's or Grantee's parent's publicly filed
annual or quarterly financial statement within forty-five (45) days of such a
· request.
(e) Upon Grantor's written request, but no more than annually, Grantee
shall submit to Grantor a privacy report indicating the degree of compliance with
the provisions contained in Section 18.3(c), (d), and (f) herein and all steps taken
to assure that the privacy rights of individuals have been protected.
45
(f) All reports required under this Ordinance, except those required by
law to be kept confidential, shall be available for public inspection in the
Grantor's offices during normal business hours.
(g) All reports and records required to be delivered to Grantor under
this Ordinance shall be furnished at the sole expense of Grantee, except as
otherwise provided in the Franchise Agreement.
(h) The willful refusal, failure, or willful negligence of Grantee to file any
of the reports required as and when due under this Ordinance, may be deemed
a material breach of the Franchise Agreement if such reports are not provided to
Grantor within sixty (60) days after written request therefor, and may subject the
Grantee to all remedies, legal or equitable, which are available to Grantor under
this Ordinance or the Franchise Agreement.
(i) Any materially false or misleading statement or representation
made knowingly and willfully by the Grantee in 'any report required under this
Ordinance or under the Franchise Agreement may be deemed a material breach
of the Franchise and may subject Grantee to all remedies, legal or equitable,
which are available to Grantor.
13.3. Record Maps
Within sixty (60) calendar days of a written request from Grantor, Grantee
shall provide Grantor with a full and complete set of plans and record drawings
showing the locations of the Cable System installed or in use in the City, exclusive
of Subscriber service drops and equipment provided in Subscriber's homes. It is
the intent of this Section that the Grantor have a complete set of plans and record
drawings. After the initial submission of a complete set of drawings, the Grantee
46
shall provide to Grantor updated portions of those sections of the drawings that
have changed, within sixty (60) calendar days of the change.
13,4o Opinion Survey
Upon written request of the Grantor, but not more than once every two (2)
years, the Grantee shall conduct a Subscriber satisfaction survey pertaining to
quality of service, which may be transmitted to Subscribers in Grantee's invoice
for Cable Services. The results of such survey shall be provided to the Grantor
on a timely basis. The cost of such survey shall be borne by the Grantee.
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SECTION 14. REVIEW OF SYSTEM PERFORMANCE
14.1. Triennial Review
(a) Every three (3) years throughout the term of the Franchise, if
reasonably requested by prior written notice from the Grantor, Grantor and
Grantee shall meet publicly to review System performance and quality of service.
The various reports required pursuant to this Ordinance, results of technical
performance tests, the record of Subscriber complaints and Grantee's response
to those complaints., and the information acquired in any Subscriber surveys,
shall be utilized as the basis for review, In addition, any Subscriber may submit
comments or complaints during the review meetings, either orally or in writing,
and these shall be considered. Within thirty (30) days after the conclusion of
such a review meeting, Grantor may issue findings with respect to the Cable
System's Franchise compliance and quality of service.
(b) If Grantor determines that Grantee is not in compliance with the
requirements of this Ordinance or the Grantee's Franchise Agreement, Grantor
shall provide Grantee, in the form of written findings, the specific details of each
alleged noncompliance. Grantor may then direct Grantee to correct the areas of
noncompliance within a reasonable period of time, but not less than thirty (30)
days. Failure of the Grantee, after due notice, to:
(1) correct the area(s) of noncompliance within the period
specified therefor; or
(2) commence compliance within such period and diligently
achieve compliance thereafter; or
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(3)
demonstrate that the allegations of noncompliance are
incorrect;
shall be considered a material breach of the Franchise, and Grantor may
exercise any remedy within the scope of this Ordinance and the Franchise
Agreement considered appropriate under the circumstances.
14.2. Special Review
When there have been extensive complaints made or where there exists
other demonstrative evidence which, in the reasonable judgment of the Grantor,
casts reasonable doubt on the reliability or quality of Cable Service to the effect
that the Grantee is not in compliance with the requirements of this Ordinance or
its Franchise, the Grantor shall have the right to compel the Grantee to test,
analyze and report on the performance of the Cable System in order to protect
the public against substandard Cable Service° Grantor may not compel Grantee
to provide such tests or reports unless and until Grantor has provided Grantee
with at least thirty (30) days prior written notice of its intention to exercise its
rights under this Section 14.2 and has provided Grantee with an opportunity to
be heard prior to its exercise of such rights. Such test or tests shall be made and
the report shall be delivered to the Grantor no later than thirty (30) days after the
Grantor notifies the Grantee in writing that it is exercising such right, and shall be
made at Grantee's sole cost. Such report shall include the following information:
The nature of the complaints which precipitated the special tests, what System
component was tested, the equipment used and procedures employed in said
testing, the results of such tests, and the method by which such complaints were
resolved. Any other information pertinent to the special test shall be recorded.
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SECTION 15. FRANCHISE VIOLATIONS
15,1. Remedies for Violations
If Grantee fails to perform in a timely manner any material obligation
required by this Ordinance or a Franchise granted hereunder, following
reasonable written notice from the Grantor and a reasonable opportunity to cure
such nonperformance in accordance with the provisions of Section 15 of this
Ordinance and the Franchise, Grantor may at its option and in its sole discretion:
(a) Cure the violation and recover 'the actual cost thereof from the
security fund established in the Franchise Agreement if such violation is not
cured within thirty (30) days after written notice to the Grantee of Grantor's
intention to cure and draw upon the security fund;
(b) Assess against Grantee liquidated damages in an amount set forth
in the Franchise Agreement for any such violations(s) if such violation is not
cured, or if Grantee has not commenced a cure, on a schedule reasonably
· acceptable to Grantor, within thirty (30) days after written notice to the Grantee of
Grantor's intention to assess liquidated damages. Such assessment may be
withdrawn from the security fund, and shall not constitute a waiver by Grantor of
any other right or remedy it may have under the Franchise or applicable law,
including without limitation, its right to recover from Grantee such additional
damages, losses, costs and expenses, including actual attorney's fees, as may
have been suffered or incurred by Grantor by reason of or arising out of such
material breach of the Franchise.
5o
15.2.
Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee specified
in this Ordinance, Grantor shall give Grantee notice and opportunity to be heard
on the matter, in accordance with the following procedures:
(a) Grantor shall first notify Grantee of the alleged violation in writing
by personal delivery or registered or certified mail, and demand correction, or
evidence of non-violation, within a reasonable time, which shall not be less than
fifteen (15) business days in the case of the failure of the Grantee to pay any
sum or other amount due the Grantor under this Ordinance or the Grantee's
Franchise and thirty (30) business days in all other cases. If Grantee fails to:
(1) correct the alleged violation within the time prescribed; or
(2) commence correction of the alleged violation within the time
prescribed and diligently remedy such alleged violation thereafter; or
(3) provide evidence that there is no violation,
the Grantor shall then give, by personal delivery or registered or certified
mail written notice of not less than thirty (30) days of a public hearing to be held
before the Council, Said notice shall set forth in detail each of the violations
alleged to have occurred,
(b) Subsequent to the public hearing, the Council shall hear and
consider all other relevant evidence, and thereafter render findings and its
decision.
(c) If the Council finds that
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(1) the Grantee has corrected the alleged violation; or
(2) the Grantee has diligently commenced correction of such
alleged violation after notice thereof and is diligently proceeding to fully remedy
such alleged violation; or
(3) no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall be
imposed.
(d) If the Council finds that material violations exist and that Grantee:
(1) has not corrected the same in a satisfactory manner; or
(2) has not diligently commenced correction of such violation
after notice thereof and is not diligently proceeding to fully remedy such violation;
then the Council may impose one (1) or more of the remedies provided in
this Ordinance and the Franchise Agreement as it, in its discretion, deems
appropriate under the circumstances.
15.3. Grantor's Power to Revoke
(a) Grantor may revoke any Franchise granted pursuant to this
Ordinance and rescind all rights and privileges associated with it in the following
circumstances, each of which shall represent a default by Grantee and a material
breach under the Franchise:
(1) If Grantee fails to perform any of its material obligations
under this Ordinance or the Franchise Agreement and continues such failure to
perform after receipt of due notice and a reasonable opportunity to cure;
52
(2) · If Grantee fails to provide or maintain in full force and effect
the insurance coverage or security fund as required in the Franchise Agreement;
(3) If Grantee violates any order or ruling of any regulatory body
having jurisdiction over the Grantee relative to the Grantee's Franchise, unless
such order or ruling is being contested by Grantee in good faith in an appropriate
proceeding;
(4)
upon Grantor;
If Grantee knowingly practices any material fraud or deceit
· (5) If Grantee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged a bankrupt.
(b) After completing the procedures set forth in Section 15.2 above,
the Grantor may make a formal request before the Council that the Grantee's
Franchise be revoked. The Council shall cause to be served on the Grantee
written notice of its intent to consider revoking Grantee"s Franchise. Such notice
shall be served on Grantee at least sixty (60) days prior to the date of the
hearing on the issue. The notice shall contain the time and place of the hearing
and shall be published at least once in a newspaper of general circulation within
the Franchise area ten (10) days prior to the hearing date.
(c) The Council shall hear any Person(s) interested in the revocation
and within ninety (90) days after the date of the hearing shall make its
determination, based on a preponderance of the evidence, whether the Grantee
has committed a material breach of the Franchise.
(d) If the Grantor determines that the Grantee has committed a
material breach, then the Grantor may:
53
(1) Declare the Franchise revoked and any security fund and
bonds forfeited; or
(2) if the material breach is curable by the Grantee, direct the
Grantee to take appropriate remedial action within the time and manner and
under the terms and conditions reasonably specified by the Grantor.
The termination and forfeiture of the Grantee's Franchise shall in no way
affect any right of Grantor to pursue any remedy under the Franchise or any
provision of law,
15.4o Appeal of Finding of Revocation
The Grantee may appeal a finding of revocation made pursuant to Section
15.3 to an appropriate court of jurisdiction, which shall have the power to review
"'de novo." Any such appeal must be initiated by the Grantee within sixty (60)'
days of the issuance of the Grantor's decision to revoke the Franchise.
54
SECTION 16. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms, conditions or
obligations required by this Ordinance or a Franchise granted hereunder is
prevented by a cause or event not within Grantee's control, such inability to
perform shall be deemed excused and no penalties or sanctions shall be
imposed as a result thereof; provided, however, that such inability to perform
shall not relieve a Grantee from the obligations imposed by Section 8.3.(0).
pertaining to refunds and credits for interruptions in service. For the purpose of
this Section, causes or events not within the control of Grantee shall include
without limitation acts of God, war, strikes, sabotage, riots or civil disturbances,
labor disputes, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods,
earthquakes, landslides, and fires, but shall not include financial inability of the
Grantee to perform or failure of the Grantee to obtain any necessary permits or
licenses from other governmental agencies or the right to use the facilities of any
public utility where such failure is due solely to the acts or omissions of Grantee,
or the failure of the Grantee to secure supplies, services or equipment necessary
for the installation, operation, maintenance or repair of the Cable System where
the Grantee has failed to exercise reasonable diligence to secure such supplies,
services or equipment.
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SECTION 17. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY
17.1. Abandonment or Removal
(a) If the Grantee discontinues the use of any of its property within the
Public Rights-of-Way for a continuous period of twelve (12) months, such
property shall be deemed to have been abandoned by Grantee. Any part of the
Cable System that is parallel or redundant to other parts of the System and is
intended for use only when needed as a backup for the System or a part thereof,
shall not be deemed to have been abandoned because of its lack of use..
(b) Grantor, upon such reasonable terms as Grantor may lawfully
impose, may give Grantee permission to abandon, without removing, any
System facility or equipment laid', directly constructed, operated or maintained
under the Franchise. Unless such permission is granted or unless otherwise
provided in this Ordinance, the Grantee shall remove all abandoned above-
ground facilities and equipment upon receipt of written notice from Grantor and
shall restore to Grantor's reasonable satisfaction any affected Public Right-of-
Way. In removing its plant, structures and equipment, Grantee shall-refill, at its
own expense, any excavation that shall be made by it and shall leave all Public
Rights-of-Way in as good condition as that prevailing immediately prior to such
removal without materially interfering with any electrical or telephone cable or
other utility wires, poles, or attachments. Grantor shall have the right to inspect
and approve the condition of the Public Rights-of-Way, cables, wires,
attachments and poles prior to and after removal. The liability, indemnity and
insurance provisions of this Ordinance and the security fund as provided herein
shall continue in full force and effect during the' period of removal and until full
compliance by Grantee with the terms and conditions of this Section 17.1.
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(c) Upon the approved abandonment of any Cable System property,
the Grantee, if required by the Grantor, shall submit to the Grantor an instrument,
satisfactory in form to the Grantor, transferring to the Grantor the ownership of
the abandoned Cable System property.
(d) At the expiration, without renewal or extension, of the term for
which the Franchise is granted, or upon its revocation, as provided herein, the
Grantor shall have the right to require Grantee to remove, at its own expense, all
above-ground portions of the Cable System from all streets and public ways
within the Service Area within a reasonable period of time, which shall not be
less than one hundred eighty (180) days,
(e) Notwithstanding anything to the contrary set forth in this Ordinance,
the Grantee may abandon any underground Cable System property in place so
long as it does not materially interfere with the use of the Public Rights-of-Way in
which such property is located or with the use thereof by any public utility or
other Franchise holder.
17.2. Restoration by Grantor: Reimbursement of Costs
Upon reasonable written notice and upon the failure of the Grantee to
commence, pursue or complete any work to be done in any Public Right-of-Way
required by law or by the provisions of this Ordinance or the Franchise
Agreement, within the time prescribed and to the reasonable satisfaction of the
Grantor, the Grantor may cause the work to be commenced and/or completed.
The Grantor shall provide to the Grantee an itemized work order setting forth in
detail the exact nature of the work completed and the supplies used in such
work. The Grantee shall pay to the Grantor the reasonable costs for such work
no later than thirty (30) days after receipt of the itemized work order.
57
17,3. Extended Operation and Continuity of Services.
Upon expiration or revocation of the Franchise, the Grantor shall have the
discretion to permit Grantee to continue to operate the Cable System for an
extended period of time. Grantee shall continue to operate the System under
the terms and conditions of this Ordinance and the Franchise and to provide the
regular Subscriber service and any and all of the Cable Services that may be
provided at that time. It shall be the right of all Subscribers to continue to receive
all available Cable Services provided that financial and other obligations to
Grantee are honored. The Grantee'shall use reasonable efforts to provide
continuous, uninterrupted service to its Subscribers, including operation of the
System during transition periods following Franchise expiration or termination.
17.4. Receivership and Foreclosure
(a) At the option of the Grantor and subject to applicable law, a
Franchise granted hereunder may be revoked one hundred twenty (120) days
after appointment of a receiver(s) or trustee(s) to take over and conduct the
business of Grantee, whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) the receivership or trusteeship shall have been vacated
within said one hundred twenty (120) days; or
(2) such receivers or trustees within said one hundred twenty
(120) days shall have remedied all the defaults under the Franchise or provided
a plan for the remedy of such defaults which is satisfactory to the Grantor; or
(3) such receivers or trustees shall, within said one hundred
twenty (120) days, 'have executed an agreement duly approved by the court
58
having jurisdiction whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the Franchise.
(b) In the case of a foreclosure or other judicial sale of the Cable
System, in whole or in part, the Grantor may serve notice of revocation upon
Grantee and the successful bidder at such sale, and all rights .and privileges of
the Grantee hereunder shall be revoked thirty (30) days after service of such
notice, anless:
(1) a bona fide transfer request has been submitted by Grantee
for Grantor review; or
(2) Grantor shall have approved the transfer of the Franchise, in
the manner provided by law; and
(3) the successful bidder shall have covenanted and agreed
with Grantor to assume and be bound by all terms and conditions of the
Franchise.
59
SECTION 18. GRANTOR AND SUBSCRIBER RIGHT8
18o 1. Reservation of Grantor Rights
In addition to any rights specifically reserved to the Grantor by this
Ordinance, the Grantor reserves to itself every right and power which is required
to be reserved by a provision of any ordinance or under the Franchise,
18.2. Waiver
(a) The Grantor shall have the right to waive any provision of the
Franchise, except those required by Federa~ or State regulation, if the Grantor
determines (1) that it is in the public interest to do so, and (2) that the
enforcement of such provision will impose an undue hardship on the Grantee or
on the Subscribers. To be effective, such waiver shall be evidenced by a
statement in writing signed by a duiy authorized representative of the Grantor.
Waiver of any provision in one (1) instance shall not be deemed a waiver of such
provision subsequent to such instance nor be deemed a waiver of any other
provision of the Franchise. unless the statement so recites.
(b) The Grantee shall not be excused from complying with any of the
requirements of this Ordinance or the Franchise Agreement by any failure of the
Grantor on any one or more occasions to require or seek compliance with any
such terms or conditions.
18.3. Rights of Individuals
(a) Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, :channel users, or general citizens on the basis
of race, color, religion, national origin, age or sex. Grantee shall comply at all
60
times with all other applicable Federal, State and local laws and regulations
relating to nondiscrimination.
(b)' Grantee shall adhere to the applicable equal employment
opportunity requirements of Federal, State and local regulations, as now written
or as amended from time to time.
(c) Unless directed or conducted by an authorized law enforcement
agency, which has obtained all necessary permits, neither Grantee, nor any
Person, or entity shall, without the Subscriber's consent, tap, or arrange for the
tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for
any purpose except routine maintenance of the System, detection of
unauthorized service, polling with audience participation, or audience viewing
surveys to support advertising research regarding viewers where individual
viewing behavior cannot be identified.
(d) In the conduct of providing its Cable Services or in pursuit of any
collateral commercial enterprise resulting therefrom, Grantee shall take
reasonable steps to prevent the invasion of a Subscriber's or general citizen's
right of privacy or other personal rights through the use of the System as such
rights are delineated or defined by applicable law. The Grantee shall not without
lawful court order or other applicable valid legal authority utilize the System's
interactive two-way equipment or capability, if Such equipment or capability
exists, for unauthorized personal surveillance of any Subscriber or general
citizen.
(e) No cable line, wire amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises,
other than in appropriate easements, without first securing any required consent.
61
If a Subscriber requests service, permission to install upon Subscriber's property
shall be deemed granted.
(f) The Grantee, or any of its agents' or employees, shall not sell, or
otherwise make available to any party without consent of the Subscriber
pursuant to State and Federal privacy laws:
(1) Any list of the names and addresses of Subscribers
containing the names and addresses of Subscribers who request in writing to be
removed from such list; and
(2) Any list which identifies the viewing habits of individual
Subscribers, without the prior written consent of such Subscribers. This does not
prohibit the Grantee from providing composite ratings of Subscriber viewing to
any party.
62
SECTION 19. SEVERABILITY
If any provision of this Ordinance is held by any court or by any Federal or
State agency of competent jurisdiction, to be invalid as conflicting with any
Federal or State law, rule or regulation now or hereafter in effect, or is held by
such court or agency to be modified in any way in order to conform to the
requirements of any such law, rule or regulation, such provision shall be
considered a separate, distinct, and independent part of this Ordinance, and
such holding shall not affect the validity and enforceability of all other provisions
hereof. In the event that such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed, so that the provision thereof which
had previously been held invalid or modified is no longer in conflict with such law,
rule or regulation, said provision shall thereupon return to full force and effect
and shall thereafter be binding on Grantor and Grantee, provided that Grantor
shall give Grantee thirty (30) days written notice of such change before requiring
compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
63
/I;L
PASSED, APPROVED,. AND ADOPTED THIS __
,2001.
DAY OF
Mayor
City of Dublin
ATTEST:
City Clerk
64
CABLE SYSTEM FRANCHISE AGREEMENT
BETVVEEN THE CITY OF DUBLIN AND
TELE-VUE SYSTEMS, INC.
EFFECTIVE: JUNE 1, 2001
,,DU..,.FS2,~U.,EO.,Oou~c,..e~o.s,OA ~, F.ano..se Agre~ D.~,.~-O,e~..o~A T T A C H M E N T 2
TABLE OF CONTENTS
SECTION 1
SECTION 2
SECTION 3
SECTION 4
SECTION 5
SECTION 6
SECTION 7
RENEWAL OF FRANCHISE ....... ~ ................................................2
GENERAL REQUIREMENTS ......................................................4
SERVICE AREA AND LINE EXTENSION POLICY .....................13
SYSTEM UPGRADE ....................................................................15
SERVICES AND PROGRAMMING ..............................................19
SUPPORT FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL (PEG) CABLE ACCESS ...............................20
REGULATION ..............................................................................22
EXHIBITS
A OWNERSHIP
B GRANTEE COMMITMENT TO PUBLIC, EDUCATIONAL AND
GOVERNMENTAL (PEG) ACCESS FACILITIES AND EQUIPMENT
AGREEMENT
This Agreement, made and entered into this __ day of ,
2001, at Dublin, California, by and between the City of Dublin, a municipal
corporation of the State of California, and Tele-Vue Systems, Inc., marketing
services as AT&T Broadband.
WITNESSETH
WHEREAS, the City of Dublin (the City), pursuant to Federal and
California law and Ordinance No. __, is authorized to grant and renew one or
more non-exclusive revocable Franchises to own, operate, construct, maintain
and reconstruct a Cable System within the City; and
WHEREAS, the City, after due evaluation of Tele-Vue Systems, Inc., and
after public hearings, has determined that it is in the best interests of the City
and its residents to grant this Franchise to Tele-Vue Systems, Inc.
NOW, THEREFORE, the City (hereinafter the "Grantor") hereby grants to
Tele-Vue Systems, Inc. (hereinafter the "Grantee") a Cable System Franchise in
accordance with the provisions of Ordinance No. __ and this Agreement.
SECTION 1 RENEWAL OF FRANCHISE
1.1 Grant
The Cable System Franchise currently held by Tele-Vue Systems, Inc.,
whose current ownership is indicated in Exhibit "A," is hereby renewed by this
Agreement which extends the Franchise, authority, right and privilege, to
construct, reconstruct, operate and maintain a Cable System within the Streets ·
and Public Ways in the City of Dublin as it is now or may in the future be
constituted, and also provides the authority to offer to Subscribers any Cable
Service that legally may be offered, utilizing the facilities of Grantee's Cable
System.
1.2 Right of Grantor to Issue and Renew Franchise
Grantee acknowledges and accepts the present right of Grantor to issue
and/or renew a Franchise and Grantee agrees it shall not challenge any lawful
exercise of this Agreement in any local, State or Federal court. This is not,
however, a waiver of any constitutional or legal right or privilege on the part of
the Grantee.
1.3 Effective Date of Renewal
The renewal shall be effective on June 1,2001. The renewal is contingent upon
the filing by Grantee with the City Clerk, of the executed Franchise Agreement
and the required security fund, insurance certificates and EG Access grant,
except that if the filing of the security fund or any such insurance certificate or
EG Access grant does not occur by July 31, 2001, the Grantor may declare this
renewal null and void.
2
1,4 Duration
The term of the renewal shall be ten (10) years from the effective date
hereof, after which time it shall expire and be of no force and effect unless
renewed. Renewal shall be in accordance with applicable law.
1.5 Conflict with Cable Ordinance
(a) The provisions of the City's Cable System Regulatory
Ordinance, Ordinance No. , are hereby incorporated herein by
reference as if set out in full, and form part of the terms and conditions of this
Agreement, In the event of any conflict between the terms and conditions of this
Agreement and the provisions of Ordinance No.
prevail.
(b) Should Ordinance No.
, this Agreement shall
be amended, revised,
superseded or otherwise changed after the effective date hereof in such way as
would materially affect the terms and conditions of this Agreement, said
amendment, revision or change shall not apply to this Agreement without
Grantee's approval.
1.6 Definitions
The definitions contained in Ordinance No. are incorporated
herein as if fully set forth.
SECTION 2 GENERAL REQUIREMENTS
2.1 Governing Requirements
Grantee shall comply with all ~awful requirements of this Agreement,
Ordinance No. and applicable State and Federal law.
2.2 Franchise Fee
(a) The Grantee shall pay to the Grantor an annual Franchise
Fee of five percent (5%) of Gross Annual Cable Service Revenues derived by
the Grantee from all operations of the Cable System in the City of Dublin to
provide Cable Services. The fee shall be payable quarterly, by no later than
sixty (60) days after the end of the calendar quarter for which payment is due.
(b) Revenues collected as Franchise Fees shall be included in
Gross Annual Cable Service Revenues.
(c) For the purposes of this Agreement, revenues generated
from the provision of cable modem Internet access services shall be included in
Gross Annual Cable Service Revenues.
(d) For the purposes of this Agreement, revenues collected from
Subscribers for the Educational and Governmental Access capital grants of
Exhibit "B=" Section 54 shall be included in Gross Annual Cable Service
Revenues.
(e) If Federal or State law permits the Grantee to provide non-
video services to Subscribers through the facilities of the Cable System, and to
the extent the Grantor has the regulatory authority to collect either a Franchise
Fee or an in-lieu-of-franchise-fee payment on such services, then the fee for
revenues derived by the Grantee from such services shall be at the maximum
rate permitted by law, following a public hearing and an affirmative Council vote,
and beginning on the date that Grantor has the authority to collect such a fee.
(f) In the event that the Grantee shall, during the term of the
Franchise, bundle, tie or combine Cable Services (which are subject to the
Franchise Fee) with non-Cable Services (which are not subject to the Franchise
Fee) and provide the bundled, tied or combined service at a discount from the
sum of the rates for the individual services, then the discount shall be
apportioned to the Cable Service in proportion to the ratio of the total bundled
Cable Service and non-Cable Service price to the total unbundled Cable Service
and non-Cable Service price. To avoid evasion of payment of Franchise Fees,
and to the extent that discounts reduce revenues for the purpose of calculation
of the Franchise Fee due to Grantor, Grantee shall not unlawfully or unfairly
allocate discounts for bundled service.
2.3 Payment to Grantor
(a) Subject to applicable law, no acceptance of any payment
shall be construed as an accord that the amount is in fact the correct amount,
nor shall such acceptance of payment be construed as a release of any claim
the Grantor may have for further or additional sums payable under the provision
of this Agreement. All amounts shall be subject to audit, as authorized by
Section 9.2 of Ordinance No. Audits shall be limited to no more than
one (1) for the most recent three (3) year Franchise period; provided, that if the
results of the audit indicate that a significant underpayment may have occurred
prior to the three (3) year audit period~ Grantee may extend the audit to include
any relevant time period.
(b) For the purposes of this Agreement, if the results of any
audit indicate an underpayment which meets the criteria defined in Section 9.2 of
Ordinance No. , Grantee shall reimburse Grantor for the costs of the
audit, up to a maximum of Seven Thousand FiVe Hundred Dollars ($7,500).
2.4'Insurance
(a) Upon the effective date of renewal the Grantee shall, at its
sole expense, take out, and maintain during the life of this Agreement and
furnish to the Grantor, a policy of insurance as required by the State of California
for Workers' Compensation, and a policy of liability insurance that shall conform
to the provisions of Section 12.2 of Ordinance No.
The amount of the liability insurance shall ,not be less than the following:
Combined Single Limit Coverage applying to
Bodily and Personal Injury and Property Damage:
Two Million Dollars ($2,000,000) per occurrence
The following endorsements shall be attached to the
liability policy:
(1) The policy shall cover on an "occurrence" basis, if
reasonably available at comparable cost to "claims made"
coverage,
(2) The policy shall cover Personal Injury as well as Bodily
Injury.
(3) The policy shall cover blanket contractual liability subject to
the standard universal exclusions of contractual liability
included in the carrier's standard endorsement as to bodily
injuries, personal injuries and property damage.
(4) Broad Form property damage liability shall be afforded.
(5) The Grantor shall be named additional insured on the policy.
(6) An endorsement shall be provided which states that the
coverage is primary insurance and that no other insurance
effected by the Grantor will be called upon to contribute to a
loss under this coverage,
6
(7) Standard form of cross-liability shall be afforded.
(8) An endorsement stating that the policy shall not be
cancelled without thirty (30) days notice of such cancellation
given to the Grantor.
(b) Grantee shall submit to Grantor documentation of the
required insurance including a certificate of insurance signed by the insurance
agent and companies named, as well as all properly executed endorsements.
(c) Grantee hereby indemnifies Grantor for any damage
resulting to it from failure of either Grantee or any subcontractor to take out and
maintain such insurance.
2.5 Indemnification
(a) Grantee shall indemnify, hold harmless, release and defend
Grantor, its officers, employees and agents from and against any and all actions,
claims, demands, damages, disability, losses, expenses including attorney's fees
and other defense costs or liabilities of any nature that may be asserted by any
person or entity including Grantee from any cause whatsoever arising from the
activities of Grantee, its subcontractors, employees and agents hereunder.
Grantee shall be solely responsible and save Grantor harmless from all matters
relative to payment of Grantee's employees including compliance with Social
Security, withholding, etc.
(b) This indemnification obligation is not limited in any way by a
limitation on the amount or type of damages or. compensation payable by or for
Grantee under Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Agreement, or the terms,
applicability or limitations of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against
Grantee which it may have by reason of this indemnification, because of the
acceptance by Grantor, or the deposit with Grantor by Grantee, of any of the
insurance policies described in this Section,
(d) This indemnification by Grantee shall apply to all damages
and claims for damages of any kind suffered by reason of any of the aforesaid
operations referred to in this Section, regardless of whether or not such
insurance policies shall have been determined to be applicable to any of such
damages or claims for damages.
(e) Grantee shall not be required to indemnify Grantor for
negligence or misconduct on the part of Grantor or its officials, boards,
commissions, agents, or employees (hereinafter "such acts"). Grantor shall hold
Grantee harmless from any damage resulting from any such acts of the Grantor
or its officials, boards, commissions, agents or employees including, without
limitation, in utilizing any Emergency Alert System features, or any Governmental
or Educational Access Channels, equipment, or facilities and for any such acts
committed by Grantor in connection with work performed by Grantor and
permitted by.this Agreement, on or adjacent to.the Cable System.
2.6 Security Fund
(a) in accordance with Section 9.3 of Ordinance No. , within
sixty (60) days of the effective date of this Agreement, or by not later than July
31,2001, Grantee shall establish and provide tO Grantor a security fund, as
security for the faithful performance by Grantee of all material provisions of this
Agreement. The security fund shall be in the form of a letter of credit in the
amount of at least Fifty Thousand Dollars ($50,000), which is revocable at the
term of the expiration of this Agreement, provided that no material dispute
relating to Grantee's compliance with this Agreement exists at that time.
(b) The security fund may be assessed by Grantor for those
purposes specified' in Sections 9.3 and/or 15.1 of Ordinance No. , in
accordance with the procedures of Section 15°2 of said Ordinance, provided that
Grantee has received written notice and thirty (30) days after receipt of notice to
cure any material violations prior to any assessment. As long as the Grantor
follows the procedures specified herein and in Ordinance No. for
assessing and/or withdrawing funds from said security fund, Grantee shall not
initiate litigation to prevent or impair Grantor from accessing those funds.
Grantee's recourse, in the event Grantee believes any taking of security funds is
improper, shall be through legal action after the security has been drawn upon.
If the Grantor's action or taking is found to be improper by any court or agency of
competent jurisdiction, Grantee shall be entitled to a refund of the funds plus
interest and/or any other award which such court or agency shall make.
'(c) Nothing herein shall be deemed a waiver of the normal
permit and bonding requirements made of all contractors working within the
City's Rights-of-Way.
2.7 Procedure for Remedying Franchise Violations
(a) The procedure for remedying Franchise violations or
breaches shall be consistent with the procedures of Ordinance No.
Grantor, by action of the Grantor's City Manager, or a delegate, shall first notify
with specificity Grantee of the violation in writing by personal delivery or
registered or certified mail, and demand correction within a reasonable time,
which shall not be less than fifteen (15) days in the case of the failure of the
Grantee to pay any sum or other amount due the Grantor under this Agreement
9
or Ordinance No. , and thirty (30) days in all other cases. If Grantee fails
to correct the violation within the time prescribed, or if Grantee fails to commence
corrective action within the time prescribed and diligently remedy such violation
thereafter, the Grantee shall then be given written notice of not ~ess than thirty
(30) days of a public hearing to be held before the Council. Said notice shall
specify the violations alleged to have occurred.
(b) At the public hearing, the Council shall hear and consider all
relevant evidence, and thereafter render findings and its decision.
(c) In the event the Council finds that Grantee has corrected the
violations or has diligently commenced correction of such violation after notice
thereof from Grantor and is diligently proceeding to fully remedy such violation,
or that no material violation has occurred, the proceedings shall terminate and no
penalty or other sanction shall be imposed. In determining whether a violation is
material, Grantor shall take into consideration the reliability of the evidence of the
violation, the nature of the violation and the damage (if any), caused to the
Grantor thereby, whether the violation was chronic, and any justifying or
mitigating circumstances and such other matters as the Grantor may deem
appropriate.
(d) In the event the Council finds that a material violation exists
and that Grantee has not corrected the same in a satisfactory manner or has not
diligently commenced correction of such violation, the Council may impose
liquidated damages, assessable from the security fund, of up to Two Hundred
Fifty Dollars ($250) per day or per incident, for all material violations, provided
that all violations of a similar nature occurring at the same time shall be
considered one (1) incident. Breaches of customer service requirements shall
not be considered on an individual basis.
10
If the Grantor elects to assess liquidated damages, pursuant to the
provisions of this Franchise Agreement, then such election shall constitute
Grantor's exclusive remedy for a period of sixty (60) days. Thereafter, if the
Grantee remains in non-compliance with the requirements of the Franchise
Agreement, the Grantor may pursue any available remedy.
2.8 Reservation of Rights
(a) Grantor and Grantee reserve all rights that they may
possess under the law unless expressly waived herein. By entering into this
Agreement, neither Grantee nor Grantor waives any rights which it now or may
later enjoy under applicable law, and specifically Grantor and Grantee reserve
their rights to take full advantage of any changes in law during the term of the
Franchise. '
(b) In addition to the rights otherwise reserved, the Grantor
reserves any rights it may have to impose conditions regarding access by third
parties to Granteels Cable System for the delivery of Internet access service,
and Grantor's approval of this Agreement shall not be deemed to have' waived
any such rights it may have to impose such conditions at a later date, regardless
of whether a transfer or renewal is pending. Grantee likewise does not waive
any right it may have with respect to the imposition of such a condition. Prior to
the enactment or enforcement of any such requirement, Grantee shall be
provided with reasonable notice, an opportunity to be heard, and an opportunity
to provide evidence on any findings made or required to be made with respect to
such a requirement.
2.9 State or Federal Preemption
In the event that the State or Federal Government discontinues
preemption in any area of Cable System regulation over which it currently
:6' 113--
11
exercises jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, Grantor may, if it so elects, adopt rules and regulations in
these areas, to the extent permitted in thethen applicable law. If such
preemption has a material impact upon the terms of this Agreement, Grantor and
Grantee agree to negotiate in good faith to attempt to restore the mutual
considerations provided in this Agreement.
2.10 Other Franchises
Upon the initial award or renewal of any Cable System Franchise
approved by Grantor pursuant to the provisions of Ordinance No. ~ to other
grantees, Grantor shall grant such initial awards or renewals under terms and
conditions which, when taken in their entirety (i.e., not on an item by item basis),
are competitively neutral and non-discriminatory.
12
SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY
3.1 Franchise and Service Area
The Grantee's Franchise and Service Areas shall be the entire City of
Dublin, including any and all territory as may be annexed thereto, during the term
of this Agreement= The Grantee. shall offer thefull range of residential cable
services to all residents in the City of Dublin, at standard installation charges. A
standard installation shall be defined as within one hundred twenty-five (125)
feet from the closest access point of the Grantee's existing distribution plant.
Where a drop exceeds one hundred twenty-five (125) feet in length Grantee may
charge the Subscriber for the difference between Grantee's actual costs
associated with installing a one hundred twenty-five (125) foot drop and
Grantee's actua~ cost of installing the longer drop.
3.2 Service to Unserved Residences
In the event that a new residential dwelling unit requesting Cable Service
is not located within five hundred (500) feet (or the equivalent of twenty-five (25)
homes per linear mile) of the nearest existing Cable System plant, Grantee shall
extend the Cable System on request based upon the following cost-sharing
formula:
i. Total Cost to Construct Extension = Cost Per Cable Mile of
Cable Miles of Extension Extension
ii. Cost Per Cable Mile of Extension =
25
Grantee's Share of Cost
Per Subscriber Unit
iii. Grantee"s Share of Cost Per = Grantee"s Share of Total
Subscriber Unit Times Number Cost of Extension
Of Subscriber Units Passed
iv. Total Cost to Construct Extension =
Minus Grantee's Share of Total
Total Subscriber's Share
v. Total Subscriber Share =
Number of Subscribers
Cost Per Subscriber
Requesting Service
It is the intent of the Grantor and Grantee that the cost-sharing formula
only shall apply to isolated residential dwelling(s). It is not the intent of Grantor
13
and Grantee that the cost-sharing formula apply to significant planned
developments, with many dwelling units that are contiguous to one another.
3.3 Commercial Areas
(a) For areas of the City that are primarily commercial, the
Grantee shall install appropriate conduit at any time that open utility trenches are
available and the Grantee has received at least twenty (20) working days
advance notice of the availability of the trenches. Residences in primarily
commercial areas shall be provided with Cable Service upon request, on a time
and materials basis, to be paid by the Customer in accordance with the formula
contained in Section 3.2 herein.
(b) Grantee shall provide Cable Service to areas of the City that
are primarily commercial; provided, that if Grantee can demonstrate economic or
technical infeasibility for any specific commercial area, Grantor shall waive this
requirement.
3.4 New Developments
It shall be the responsibility of the Grantee to actively participate in being
informed with regard to new residential and commercial developments within the
City so that Grantee will be able to place conduit in trenches when the trenches
are open.
14
SECTION 4 SYSTEM UPGRADE
4.1 Upgrade
The Grantor and Grantee acknowledge that Grantee has upgraded the
Cable System to provide a capacity of up to Seven Hundred Fifty (750)
Megahertz (MHz). The Cable System has the ability to provide at least seventy-
eight (278) analog Channels of video programming to all residential Subscribers,
as well as audio programming, digital video programming and high speed cable
modem (also called Internet access) service to all residential Subscribers.
4.2 Services to Public Agencies
Grantee shall provide Basic Cable Service (consisting of the Basic
Service Tier and the Cable Programming Services Tier) and/or interactive data
services capability (i.e., cable modem or Internet access) to all of the public
buildings and locations listed in Figure 1 of Exhibit "B," and under the terms
specified in Exhibit
4.3 Most Favored Nation
(a) To assure that Grantee's Cable System and Franchise
continues to reflect the general cable industry state-of-the-art throughout the
term of the Franchise, Grantor and Grantee agree to utilize Cable Systems in the
following California communities as a basis for comparison. The comparison
communities (also referred to as the "comparison group") shall be:
('1) City of Castro Valley
(2) City of Concord
(3) City of Fremont
(4) City of Hayward
(5) City of San Jose
(6) City of Walnut Creek
(b) No earlier than five (5) years after the effective date of this
Agreement, when three (3) or more of the comparison group have Cable
15
Systems that are offering new or advanced residential services not available to
Granteels Subscribers, Grantee shall offer comparable services in the City within.
twelve (12) months of receipt of a Grantor written request.
(c) If at any time during the life of this Agreement, Grantee, or
an affiliate of Grantee, permits the usage of digital Channels for Educational or
Governmental Access in any of the communities listed in Section 4.3(a), Grantee
shall provide to Grantor digital Channels for Educational and Governmental
Access in the City within twelve (12) months of receipt of a Grantor written.
request. It is Grantor's and Grantee's intent that the provision of digital Channels
for Educational or Governmental Access shall be provided in conjunction with a
transition of the Cable System from an analog and digital system to an all digital
Cable System. During this transition, the Educational and Governmental Access
Channels shall be provided in both analog and digital form until such time as all
Channels on the Cable System are provided digitally. Upon the conversion of
the Cable System to an all-digital platform, all Educational and Governmental
Access Channels shall be carried digitally (i.e., there will no longer be a
requirement for analog Educational and Governmental Access Channels).
(d) If any Grantor request made pursuant to (b) and (c) above,
would require a substantial new investment of funds in the Cable System,
Grantee may request an appropriate extension of the Franchise term. For this
Section, "substantial investment of funds" shall mean an investment equal to or
greater than One Hundred and Fifty Dollars ($150) per Subscriber. Grantee
shall provide to Grantor written documentation of the projected costs prior to
Grantor approving any Grantee request for an extension of the Franchise term.
In an instance where an extension of the Franchise term is granted in response
to a Grantee representation that the investment of funds was expected to equal
or exceed One Hundred and Fifty Dollars ($150) per Subscriber, and the actual
16
cost per Subscriber is less than One Hundred and Fifty Dollars ($150) per
Subscriber, then the term of the Franchise shall revert to that term contained in
the Franchise Agreement in effect immediately prior to Grantor's approval of the
extension,
4.4 Emergency Alert Capability
Grantee shall provide Emergency Alert System capability in full
compliance with applicable Federal Communications Commission requirements.
Grantee shall establish reasonable procedures for Grantor access and use of
this system in case of an emergency.
4.5 Standby Power
Grantee shall provide standby power generating capacity at the Cable
System headend and/or control center capable of providing at least eight (8)
hours of emergency supply. Grantee shall maintain standby power system
supplies at all nodes and throughout the major.trunk cable networks capable of
providing emergency power within the standard limits of commercially available
power supply units. Nothing herein shah be deemed a waiver of the norma~
permitting and bonding requirements made of all contractors working within the
City's Rights-of-Way.
4.6 Parental Control Lock
Grantee shall provide, for sale or lease, to Subscribers, upon request, a
parental control locking device or digital code that permits inhibiting the video
and audio portions of premium Channels.
4.7 Status Monitoring
Grantee shall provide an automatic status monitoring system or a
functional equivalent when the Cable System has been activated for interactive
17
service provided that such status monitoring is technically and economically
feasible to Grantee"s reasonable satisfaction,
4.8 Technical Standards
The Federal Communications Commission (FCC) Rules and Regulations,
Part 76, Subpart K (Technical Standards), as amended from time to time, shall
apply, to the extent permitted by applicable law.
4.9 Right of Inspection
Grantor shall have the right to inspect all construction, re~,onstruction or
installation work performed subject to the provisions of the Franchise and other
pertinent provisions of law, and as part of Grantor's obligation to protect the
public health, 'safety and welfare of its citizens.
18
SECTION 5 SERVICES AND PROGRAMMING
5.1 Services and Programming
Grantee shah provide Grantor and all Subscribers with a list of program
services offered, which list shall be updated at ~east annually. Grantee shall not
reduce the number of program services without thirty (30) days prior written
notification to the Grantor and System Subscribers, or as soon as feasible if
subject reduction is not under the control of the Grantee. Grantee shall, as a
minimum, continue to provide the broad categories of programming services
offered on the effective date of this Agreement throughout the term of this
Agreement.
5.2 Leased Channel Service
Grantee shall offer leased channel service on terms and conditions and in
accordance with applicable law and regulation.
19
SECTION 6 SUPPORT FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL (PEG) CABLE ACCESS
6.1 Grantee Support for Public, Educational and Governmental
(PEG) Access
Grantee shall provide the following support for PEG Access within the
Franchise Area:
(a) Provision and use of the grant funds and Channels
designated in Exhibit "B" of this Agreement.
(b) Provision of free installation and Basic Cable Service
(consisting of the Basic Service Tier and the Cable Programming Services Tier)
at no cost to the public buildings and locations listed in Figure I in Exhibit "B,"
and any future public buildings and locations designated by the Grantor, under
the terms specified in Exhibit "B."
(c) Provision of interactive communications capability and one
(1) free "cable modem" internet access service to each school and library listed
in Figure 1, Section (2) of Exhibit "B,'" and any future school and library, in
accordance with the requirements of Exhibit "B."
(d) Provision at no charge to Grantor of fiber optic cable(s) to at
least one (1) video and audio insertion location in the City, in accordance with
the provisions of Exhibit "B."
(e) Grantee shall continue to provide fiber optic cable(s) to Tri
Valley Community Television ("CTV") to permit the insertion of video and audio
programming from CTV on to Grantee"s Cable System. Grantor shall have the
ability to terminate this requirement upon reasonable written notice to Grantee.
(f) Grantee shall be required to continue to provide Public
Access at a level equal to, or greater than, the level provided for the immediate
twelve (12) months prior to the effective date of this Agreement. The level of
support shall include personnel, equipment, Channels and facilities. As part of
20
this Agreement, Grantee shall assume full and complete responsibility for Public
Access, and' Grantee shall provide at Meast one (1) Channe~ for Public Access
use above and beyond the Channels provided for Educational and
Governmental Access use,
6.:2 Compliance with Federal Law
In accepting this Franchise, the Grantee agrees that the commitments
indicated in Section 6.1 above shall not be charged against any Franchise Fees
due the Grantor during the term of the Franchise. The Grantee also agrees to
meet all of the commitments of Section 6ol above, through the term of the
Franchise.
21
SECTION 7 REGULATION
7.1 Franchise Regulation
The Franchise renewed under this Agreement shall be subject to
regulation by Grantor in accordance with all of the lawful provisions of Ordinance
No.
7.2 Force Majeure
The force majeure provisions of Section' 16 of Ordinance No.
shall apply.
7,3 Rate Regulation
If Grantor is permitted under Federal and/or State law, to regulate the
rates charged by Grantee, and if Grantor elects to so regulate, Grantor shall
establish reasonable procedures consistent with and applicable laws and
regulations and follow those procedures while regulating.
7.4 Service Standards
A verified and continuing pattern of noncompliance with the customer
service standards contained in Ordinance No. , this Agreement or standards
established by any regulatory body having the authority to formulate customer
service standards for Cable Systems, shall constitute a material breach of this
Agreement, entitling Grantor to utilize the provisions set forth in Sections 9.3
and/or 15.1 of Ordinance No.
7.5 Notices
Notices transmitted by either party to this Agreement to the other party
shall be addressed as follows:
22
Grantor:
Grantee:
with a copy to:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
VoPo of Government Affairs
AT&T Broadband
P.O. Box 5147
San Ramon, CA 94583
Director of Government Affairs
AT&T Broadband
23525 Clawiter Road
Hayward, CA 94525
Either party may designate by written notice a different address to which
notices shall be sent.
7.6 Successors and Assigns
All provisions of this Agreement shall apply to any lawful successors and
assigns.
7.7 Severability
If any provision of this Agreement or the' applicationof such provision to
any circumstance is declared unconstitutional or otherwise invalid by the lawful
judgment of any court of competent jurisdiction, the remainder of this Agreement
or the application of the provision to other circumstances, shall not be affected
thereby.
7,8 Choice of Law
This Agreement shall be governed by and interpreted under the laws of
the State of California.
7.9 No Waiver
Grantee shall not be excused from complying with any of the terms and
conditions of this Agreement by any failure of the Grantor upon any one (1) or
23
more occasions to insist upon or to seek compliance with any such terms or
conditions.
7.10 Possessory Interest
By accepting this Franchise, Grantee acknowledges that notice is and
was hereby given 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 may be subject to the
payment of property taxes levied upon such interest. Grantee shall be solely
liable for, and shall pay and discharge prior to delinquency, any and all
possessory interest taxes or other taxes levied against Granteels right to
possession, occupancy, or use created by this 'Franchise. Grantee shall not be
barred from challenging any amounts assessed pursuant thereto.
7.11 Exhibits
Exhibits A and B are an integral part of this Agreement. All references to
this Agreement shall include all Exhibits.
24
IN WITNESS WHEREOF, Grantor and Grantee have executed this
Agreement the date and year first above written,
APPROVED AS TO FORM:
CITY OF DUBLIN
By:
Mayor
By:
City Attorney
Date:
(SEAL)
ATTEST:
City Clerk
(CORPORATE SEAL)
TELE-VUE SYSTEMS, INC,
By:
Name, Title
Date:
25
EXHIBIT A
OWNERSHIP
A-1
Tele-Vue Systems, Inc.
EXHIBIT B
GRANTEE COMMITMENT TO
PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG)
ACCESS FACILITIES AND EQUIPMENT
B-1
EXHIBIT B:
GRANTEE COMMITMENT TO PUBLIC, EDUCATIONAL AND
GOVERNMENTAL (PEG) ACCESS FACILITIES AND
EQUIPMENT
I. Downstream Video PEG Access Channels
Upon the effective date of this Agreement, Grantee shall continue to make
three (3) downstream analog video Channels available exclusively for
Educationa~ and Governmental lEG) Access use.
Grantor may request and Grantee shall provide one (1) additional analog
video Channel, for a total of four (4) analog video Channels, for EG Access use.
The new EG Access Channel shall be made available, upon request from
Grantor, no later than three (3) months after the currently used EG Access
Channels are utilized to the extent of carrying at ~east fifty percent (50%) non-
duplicated, video programming during the weekday period between 8:00 A.M.
and 11:00 P.M.~ for any consecutive thirteen (1.3) week period. In determining
whether the fifty percent (50%) threshold has been reached, Grantor and
Grantee agree that no more than twenty percent (20%) of the fifty percent (50%)
may be programming which is non-locally produced.
In addition to the EG Channels indicated above, Grantee shall provide
one (1) analog video Channel for Public Access use. Said Channel shall be
subject to the obligations detailed in Section 6.1 (f) of this Agreement.
2. Basic Cable Service to Public Buildings
By not later than twelve (12) months after the effective date of this
Agreement, Grantee shall provide and/or offer at least one (1) connection and
Basic Cable Service (consisting of the analog Basic Service Tier and the Cable
Programming Services Tier), at no installation or monthly service charge (for a
B-2
standard installation), to all of the public buildings listed in Figure I of this
Exhibit. Public buildings listed in Figure 1 of this Exhibit that have Basic Cable
Service as of the effective date of this Agreement shall continue to receive Basic
Cable Service. As used above, an "offer" of the connection and Basic Cable
Service will have been deemed to have been made if, upon Grantor request,
documentation of such an offer is provided to Grantor by Grantee in the form of
written evidence from an authorized representative of the public building at issue
detailing the desire on the part of the authorized representative to either decline
or defer the provision of the free connection and service.
3. Upstream Video Capacity
(a) Not later than six (6) months from Grantor's written request,
Grantee shall provide an upstream fiber optic communications link from the
following locations: ~
(1) From Dublin City Hall located at 100 Civic Plaza to CTV.
(2) From CTV located at 4663 B Bernal, Studio B, Pleasanton, to the
AT&T Cable System headend (fiber optic link already in place shall continue to
be provided throughout the term of this Agreement).
The purpose of these upstream communications links is to permit live
cablecasting of video and audio programming from those locations on Grantee's
Cable System. Grantee shall not charge Grantor for any of the costs associated
with providing this links.
(b) During the term of this Agreement, Grantor may request, in writing
and at least one hundred twenty (120) days in advance, and Grantee shall
provide, one (1) additional upstream fiber optic communications link to a public
facility within the City. If this location is more than one hundred twenty-five (125)
feet from Grantee's nearest Cable plant, Grantee may charge, on a time and
materials basis, for the incremental actual cost.associated with the distance
beyond one hundred twenty-five (125)feet. Grantee shall obtain written
authorization from the Grantor prior to assessing any such charge.
4, Interactive Data Communications Capability to Schools and Libraries
(a) By not later than twelve (12) months after the effective date of this
Agreement, Grantee shall provide and/or offer activated interactive data
communications capability to the public libraries, K-12 public and private
nonprofit schools listed in Figure 1, Section (2), consistent with the Cable System
delivery of "cable modem" Internet access services. It is Grantor's and Grantee's
intent that all public and private schools shall be provided and/or offered the
services described herein, It is Grantor's and Grantee's intent that "home
schools" would not be qualified to receive the free service described herein. As
used in this Section, the word "offer" shall have the same meaning as indicated
in Section 2 of this Exhibit B.
There shall be no installation charge for buildings and locations within the
standard installation distance of one hundred twenty-five (125) feet from
Grantee's contiguous cable plant. For buildings and locations beyond the
standard installation distance, upon Grantor request, Grantee shall provide a
written cost quotation detailing the charges for the distance in excess of the
standard installation. Grantor's written agreement to pay for the additional costs
shall be required prior to Grantee becoming obligated to extend service to the
designated location.
(b) Grantee shall make interactive high-speed cable modem data
service ("@Home" or a functional equivalent) available to the buildings listed in
Figure 1, under the following conditions:
B-4
(1) There shall be no charge for one (1) installation, one (1)
lowest cost residential type interactive data service and one (1) cable modem to
each schooM and library in Figure 1, Section (2).
(2) For additional connections of "@Home" or equivalent
interactive data service to the schools and libraries listed in Figure 1, Section (2),
Grantee shall provide up to four (4) additional Internet Protocol ("IP") addresses
for the free cable modem, so that a total of five (5) computers can be connected
to the free cable modem.
(3) At such time that Grantee, or Grantee's Cable System,
offers cable modem or equivalent service to commercial (non-residential) users,
Grantee shall provide a discount of at least ten percent (10%) from its rate for the
desired services to the public buildings listed in Figure 1. The same discounted
rate shall apply to additional outlets provided to public libraries and schools listed
in Figure 1, Section (2). Each discounted connection shall also be capable of
service to up to a total of five (5) computers as described in (b)(2)'of this Section.
The discount for additional outlets for schools and libraries shall be in addition to
the free outlet described in (b)(1) of this Section.
(c) A point of demarcation shall be established within each public
building and location in Figure 1. Grantee shall be responsible for acquiring,
installing, operating and maintaining all networking equipment and facilities on
the network side of the demarcation point. With the exception of the cable
modems provided by Grantee pursuant to (b) of this Section, each EG Access
user shall be responsible for acquiring, installing, operating and maintaining all
equipment on its side of the point of demarcation necessary to interface with and
utilize Grantee's network. It is the intent of this provision that the Grantee's side
of the point of demarcation shall include all necessary interface equipment
B-5
necessary to insert the signal provided by the EG Access user onto Grantee's
network. Such interface equipment may include, but is not necessarily limited to,
RF modulators and opto-electric equipment.
5. EG Access Funding Support
(a) Starting not later than July 1,200.1, Grantee shall provide a grant of
up to fifty cents ($0.50) per month per Subscriber to Grantor for capital
equipment to support Educational and Governmental Access, including video
programming and Cable System delivered "Cable modem" Internet access
services. This grant shall continue throughout the duration of the Franchise.
Upon the effective date of this Agreement, the grant amount shall be fifty cents
($0.50) per month per Subscriber.
Within sixty (60) days of the effective date of this Agreement, Grantor
shall provide, in writing, the tota~ Basic Service Cable System Subscribers as of
the effective date of the Agreement in the City and the Cities of Livermore,
Reasanton and San Ramon (the "Subscriber Count"). Within thirty (30) days of
the annual anniversary of the effective date of this Agreement, Grantee shall
provide Grantor with a written update of the Subscriber Count. If the change in
the Subscriber Count from one (1) year to the nextdoes not equal or exceed the
change in the San Francisco-Oakland-San Jose Metropolitan Area Consumer
Price Index (all consumers) (the "CPi"), Grantor shall have the option of
increasing the amount of the capital grant of this Section to match the change in
the CPI. For example, if the Subscriber Count increases by two percent (2%)=
and the CR change is five percent (5%), Grantor shall have the option of
increasing the amount of the capital grant by three percent (3%). Grantor, by
action of the City Council, shal~ provide Grantee not less than ninety (90) days
prior written notice of any change in the grant amount.
B-6
If the change in the Subscriber Count from one (1) year to the next equals
or exceeds the change in the San Francisco-Oakland-San Jose Metropolitan
Area Consumer Price Index (all consumers) (the "CPI"), Grantee shall have the
option of decreasing the amount of the capital grant of this Section to match the
change in the CP!. For example, if the Subscriber Count increases by seven
percent (7%), and the CPi change is five percent (5%), Grantor shall have the
option of decreasing the amount of the capital grant by two percent (2%).
Grantee shall provide Grantor not less than ninety (90) days prior written notice
of any change in the grant amount.
(b) In no case shall the capital grant of 5(a) above decrease to less
than forty-five cents ($0.45) per month per Subscriber, or increase to more than
sixty cents ($0.60) per month per Subscriber°
(c)'~, Within forty-five (45) days of the effective date of this Agreement,
Grantee shall provide to Grantor and the Cities' of Livermore, Pleasanton and
San Ramon a capital grant of One Million Dollars ($1,000,000) for capital
expenditures associated with the purchase of video production equipment and
associated facility modifications. From this One Million Dollar ($1,000,000)
capital grant, Grantor agrees to purchase from .Grantee Two Hundred Thousand
Dollars ($200,000) of construction work during the life of this Agreement. It is
anticipated that such construction work may involve the connection of public
buildings that are distant from existing Cable System facilities. Grantor shall
have the right to review and approve all bids for construction work to ascertain
that the expenditure is reasonable.
As required by Exhibit B, Section 3, Grantee shall also provide all
necessary Cable System connections to permit such live or recorded coverage
of events [i.e., shall provide an activated fiber optic Cable System connection
B-7
permitting the insertion of live or recorded programming from the location(s)
within the City designated for the housing of the equipment purchased with the
grants of (a) and (c) of this Section].
(d) If permitted by Federal and State law, Grantor shall not oppose any
itemization of the PEG Access grant provided in 5(a) above, so long as said
itemization is done in a manner consistent with the provisions of said Federal
and State law and regulation'.
(e) The EG Access grants described in this Section may also be
utilized by Grantor, or Grantor"s designee, for EG Access operating expenses
and administrative expenses and, furthermore, Grantor and Grantee agree that
said funds are not Franchise Fees for the purposes of the Cable
Communications Policy Act of 1984, as amended.
(f) The EG Access grant of 5(a) above shall be paid .to the Grantor on
a quarterly basis concurrent with the payment Of Franchise Fees.
6, Title to EG Access Equipment
Grantor shall retain title to all EG Access equipment procured with funding
made available in accordance with Exhibit B, Section 5.
7. Relocation of EG Access Channels
If Grantor agrees to permit Grantee to relocate any EG Access Channel to
a different Channel number, Grantee shall reimburse Grantor for any out-of-
pocket costs that Grantor incurred within the period beginning thirty (30) days
prior to the relocation and ending with ninety (90) after the relocation up to a
maximum of Five Thousand Dollars ($5,000). Subsequent to Grantor°s written
agreement to the relocation of any EG Access channel, Grantee shall provide
Grantor and all Subscribers with at least thirty (30) days advance written notice
of such relocation.
B-8
8. Cablecasting by Headend
Upon written request from Grantor, Grantee shall make it possible for EG
Access channels to be cablecast only within certain jurisdictional boundaries, It
is understood that the current Cable System is capable of being configured so
that EG Access programming is received only in:
· Pleasanton
° Livermore
° Jointly in Dublin and San Ramon
Upon receipt of such a written request from Grantor, Grantee shall make
all necessary Cable System modifications necessary to implement the requested
configuration within a reasonable time period, Any costs associated with said
modifications shall not be recoverable from any regulated rate, shall not be
separately itemized on subscriber invoices, and shall not be deducted from any
Franchise Fees or EG Access grants.
9o Subscriber Notices
Any notice to Subscribers detailing information regarding PEG Access
support required to be provided pursuant to the terms of this Agreement shall be
subject to prior Grantor review and comment. Grantee shall provide Grantor with
not less than thirty,(30) days to comment. Subscriber notices shall include, but
are not limited to, notices detailing the representation of any itemization on
Subscriber bills of PEG Access support.
B-9
(1) City Buildings
Facility
Dublin Civic Center
Council Chamber
Police Wing
Administration Wing
EOC Operations Center
Shannon Community Center
Fire Station #16
Fire Station #17
City Corporation Yard
Dublin Swim Center
Stager Community Gym
(Public School Property)
Dublin Senior'Center
Heritage Center
FIGURE 1
LIST OF PUBLIC BUILDINGS TO BE CONNECTED
Address
100 Civic Plaza
100 Civic Plaza
100 Civic Plaza
100 Civic Plaza
11600 Shannon Avenue
7494 Donohue Dr.
5325 Broder Road
5600 Scarlett Court
8151 Village Parkway
6901 York Drive
7437 Larkdale Ave,
6600 DonIon Way
Outlets
Activated Service as of
Franchise Effective Date
Yes No
X
x
X
X
X
x
X
x
X
X
X
X
X
B-10
(2) Schools and Libraries
Facility
Dublin Branch of the
Alameda County Library
Future Library
DUSD Administrative Offices
Dublin Elementary School
Dublin High School
Frederiksen Elementary School
Murray Elementary School
Nielsen Elementary School
Valley Continuation High School
Wells Middle School
Dougherty Elementary
Private Schools:
St, Philip Lutheran School
St. Raymod's Catholic School
Valley Christian School
Address
7606 Amador Valley Blvd.
Adjacent to 100 Civic Plaza
7471 Larkdale Avenue
7243 Tamarack Drive
8151 Village Parkway
7243 Tamarack Drive
8435 Davona Drive
7500 Amarillo Drive
6901 York Drive
6800 Penn Drive
5301 Hibernia
8850 Davona
11555 Shannon Avenue
7500 Inspiration Drive
Outlets
Activated Service as of
Franchise Effective Date
Yes No
X
X
X
X
X
x
x
x
X
x
X
X
x,
X
(3) Other Locations
(future buildings)
Facility
Future Sr. Center (current library)
Future Fire Station #18
Community Center (Central Parkway)
Youth/Recreation Center
(Central Parkway)
Community Center Pool
(Central Parkway)
Emerald Glenn Park
Address
7606 Amador Valley Blvd.
Fallon Road
Tassaham/Centml Parkway
Tassaham/Centml Parkway
Tassahara/Central Parkway
Outlets
Activated Service as of
Franchise Effective Date
Yes No
X
X
X
X
X
X
The City of Dublin ("City") and Tele-Vue Systems, inc., marketing services as
AT&T Broadband ("AT&T"), have entered into a Cable System Franchise
Agreement effective June 1, 2001 (the "Franchise Agreement"). This letter is a
supplemental agreement ("Side Letter") between the City and AT&T and shall be
binding on AT&T and any AT&T successor in interest to the Franchise
Agreement.
AT&T agrees that the unexcused failure of AT&T to provide the considerations
contained herein may be found by the City to be a material breach of the
Franchise Agreement and subject AT&T to all remedies contained in the
Franchise Agreement. Any finding of a material breach shall be in accordance
with the procedures detailed in the Franchise Agreement.
This Side Letter addresses three (3) provisions of the Franchise Agreement:
The channel number and location of the Educational and
Governmental ("EG") Access Channels provide pursuant to
Exhibit B, Section 11 of the Franchise Agreement.
The cost recovery and non-itemization on Subscriber bills of
the fiber optic links provided pursuant to Exhibit B, Section 3
of the Franchise Agreement.
The cost recovery and non-itemization on Subscriber bills of
the One Million Dollar ($1,000,000) capital grant provided
pursuant to Exhibit B, Section 5 of the Franchise Agreement.
EG Access Channel Location
The three (3) analog EG Access Channels provided pursuant to Exhibit B,
Paragraph 11 of the Franchise Agreement shall be carried on the Basic Cable
Service Tier (as defined by Federal law) and shall be dedicated for EG Access
use for the term of the Franchise Agreement. For the entire term of the
Franchise Agreement, the three (3) analog EG 'Access Channels shall be located
on Channels 28, 29 and 30 of the AT&T Cable System serving the Cities of
Dublin, Livermore, Pleasanton and San Ramon. If at any time subsequent to the
effective date of the Franchise Agreement, there is a conflict between the EG
Access Channel locations and any future Federal Communications Commission
("FCC") "must carry" obligations, FCC retransmission consent requirements, or
for technical reasons beyond AT&T's reasonable control, AT&T reserves the right
to relocate said Channels. Any relocation shall be in accordance with the terms
contained in the Franchise Agreement. In the event that AT&T is required to
fulfill its "must carry" obligations with respect to one or more stations, AT&T shall
not agree, pursuant to 47 CFR 76.57(c), to locate the station or stations on
Channels 28, 29, Or 30, unless otherwise required by federal law.
Fiber Optic Link Cost Recovery
Any and all costs incurred directly or indirectly by AT&T with respect to the fiber
optic communications links provided pursuant to Exhibit B, Paragraph 3 of the
Franchise Agreement maybe recovered by AT&T only to the extent, and in the
manner provided, herein. AT&T agrees that it shall not separately itemize on
Subscriber invoices any costs associated with the fiber optic communications
links. Any recovery by AT&T of costs associated with providing these links
through a rate that is regulated by the City shall be done in a manner consistent
with law and regulation and shall be amortized over the life of the Franchise
Agreement.
Capital Grant Recovery
The costs associated with the One Million Dollar ($1,000,000) capital grant for
EG Access support provide pursuant to Exhibit B, Paragraph 5 of the Franchise
Agreement may be recovered by AT&T only to the extent, and in the manner,
provided herein. AT&T agrees that it shall not separately itemize on Subscriber
invoices the cost associated with the capital grant. Any recovery of costs
associated with providing the grant through a rate that is-regulated by the City
shall be amortized over the life of the Franchise Agreement and shall be limited
to Eight Hundred Thousand Dollars ($800,000). The Eight Hundred Thousand
Dollar ($800,000) limit reflects the requirement that Two Hundred Thousand
Dollars ($200,000) of the original total grant shall be utilized for the purchase of
construction work from AT&T as detailed in the Franchise Agreement.
Agreed to by AT&T
Signature
Name
Title
AT&T
RESOLUTION NO. - 01
///{
A RESOLUTION OF THE CITY COUNCIL
OF THE'CITY OF DUBLIN
REQUIRING AT&T BROADBAND AND INTERNET SERVICES TO CONTINUE PROVIDING
CABLE SERVICES PENDING APPROVAL OF NEW FRANCHISE AGREEMENT°
WHEREAS, on October 28, 1985 the City of Dublin entered into an Agreement with Tele-Vue
Systems Inc, for the operation of cable television system; and
WHEREAS, on January 4, 1996, the City Council approved an resolution transferring control of
Tele-Vue Systems, Inc. from Viacom, Inc. to TCI Communications; and
WHEREAS, on January 5, 1999, the City Council approved a resolution transferring control of
Tele-Vue Systems, Inc. from TCI Communications, Inc. to AT&T Broadband; and
WHEREAS, on December 31, 2000, the 15-year Cable Television Franchise Agreement expired;
and
WHEREAS, on December 9, 2000, the 15-year Cable Television Franchise Agreement was
extended to March 31, 2001; and
WHEREAS, the adoption of the City's Cable System Regulatory Ordinance will occur on April 4,
2001 and become effective 30 days thereafter; and
WHEREAS, while both parties have agreed to the major deal points, the new Franchise
Agreement will have an effective date of June 1,2001; and
WHEREAS, it is not possible to adopt the City's new 10-year AT&T Franchise Agreement prior
to City's Cable System Regulatory Ordinance; and
WHEREAS, Section 3.20.250(D) of the Dublin Municipal Code provides that upon expiration of
the franchise the City may require AT&T to continue to operate the system for a period not to exceed
twenty-four months from the date of expiration under the same terms and conditions as specified in
Chapter 3.20 of the Dublin Municipal Code and the franchise agreement
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does resolve
as follows:
The City Council of the City of Dublin does hereby require AT&T to continue operation of the
Cable System from March 31, 2001 to May 31, 2001 under the same terms and Conditions as
specified in Chapter 3.20 of the Municipal Code and the existing franchise agreement.
2. This resolution shall become effective immediately upon its passage and adoption.
ATTACHMENT 3
PASSED, APPROVED AND ADOPTED this 20th day of March, 2001.
AYES:
NOES:
ABSENT:
ABSTAIN:
lID-
Mayor
ATTEST:
City Clerk
ATTACHMENT 3