HomeMy WebLinkAbout6.4 1996 ReviewPerformTCI
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CITY CLERK
File # m[Q]{Dj(Ol-!3l~
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: (March 18, 1997)
SUBJECT:
PUBLIC HEARING: 1996 Annual Review of Performance By TCI (Cable
eMt. Television Provider) Prepared By: Paul Rankin, Assistant City Manager
EXHIBITS ATTACHED:
1. Annual Performance Review Report
2. Draft Resolution Containing A Report of System Performance,
Quality of Service, and Noted Inadequacies
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(Copies of: Franchise Agreement Dated January 1, 1986;
and Municipal Code Chapter 3.20
Cable Television and Communications Systems
Are Distributed Under Separate Cover.
Additional Copies Are Available From
The Office Of The City Clerk)
RECOMMENDATION(';~
1) Open the Public Hearing
2) Receive the Staff Report and testimony from TCI and the public.
3) Close the public hearing.
4) Deliberate.
5) Review the Draft Resolution and provide direction on any additional items
to be included or changes to be made.
6) Direct Staff to proceed with a rate review of the Equipment Rates (FCC
Form 1205) proposed to be implemented in June of 1997.
FINANCIAL STATEMENT:
See Report
DESCRIPTION:
This Agenda Statement deals with the Annual Performance Review of TCI. A separate public hearing
will be conducted regarding violations of FCC Regulations, for which the City has already provided the
Company with a Notice. At the City Council Meeting of January 21, 1997 the City Council directed Staff
to conduct an Annual Performance Review of TCI, as allowed under the municipal code regulating cable
television franchise operators. TCI has a non-exclusive franchise with the City to provide these services.
At the present time there is not any other competing cable operator in this market area.
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...." COPIES TO: Tom Baker, TCI - General Manager Tri-Valley
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ITEM NO.
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FORMAT OF PERFORMANCE REVIEW HEARING
As stated in Section 3.20.330 of the Dublin Municipal Code the purpose of the Annual Review is to meet
publicly to review the performance; quality of service; and rates of the cable system. Under Federal Law
the City has limited ability to review rates, which will be discussed later in this report. The Municipal
Code also provides that information required to be submitted in Article VII of the Municipal Code
(Sections 3.20.530 - 3.20.650) including: subscriber complaints; records of performance tests; and any
opinion survey report may be utilized as a basis for the review. Any subscriber may also submit
appropriate information or complaints. Therefore, Staff has placed this item on the Agenda as a Public
Hearing.
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Following the Public Hearing the City is to issue a Report which may provide notice to the Cable
Operator of any inadequacies and direct the company to correct the inadequacies within a reasonable
period of time. A Draft Resolution is included as Exhibit 2 which may be modified by the City Council
based upon information presented at the Public Hearing.
On February 5, 1997 the City requested information from TCI in order to prepare the annual review. The
request for information was made to Mr. Tom Baker, General Manager TCI-Tri-Valley and Dr. John C.
Malone, CEO TCI Communications Inc. A response was received from TCI is in a letter dated March 3,
1997 from Mr. Baker. In addition, Mr. Baker met with Staff on March 10, to discuss the information
presented in writing by TCI.
The actual Annual Performance Report is attached as Exhibit 1. This report evaluates responses from TCI
an analyzes various aspects of cable television services including:
Annual Report By TCI of 1996 Activities
Statistical Analysis of Subscribership Trends
Information Regarding Current & Proposed Rates With Comparisons
Customer Service Information
Areas ofInadequacy Related To Items Not In Compliance
Information On The Status Of TCI Plans For A System Upgrade
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In addition to the information in the Annual Report Staffhas also included in the following sections a
review of options available to the City regarding a proposed rate increase by TCI. The final portion of this
Staff report addresses inadequacies identified as part of the Staff review.
LEGAL RATE REVIEW PROCESS
As previously noted, the City has limited authority to regulate cable television rates. The City regulates
the basic service tier (Limited Service). In 1996 approximately 5% of the subscribers (347) subscribed to
the basic tier (Limited Service) without receiving any other programming from TCI. In addition the City
is responsible for the regulation of equipment and installation activities.
The Satellite Value Tier is regulated by the FCC and it represents 51 % of the current combined Limited
plus Satellite rate. (Limited = $12.28 / Satellite = $12.77 / Combined Rate = $25.05) This represents the
rate category selected by at least 95% of the Basic Customers. Upon receipt of a complaint the FCC will
regulate the rates for any optional Cable Programming Services Tier. (i.e. Satellite Value Package) The
Consultant who performed previous rate reviews informed Staff, that subscribers must file complaints
with the City within 90 days of a rate increase. The City as the franchising authority then makes a
decision whether a complaint shall be filed with the FCC for this tier of service. The fees charged for
Premium Services (i.e. HBO, Disney, Showtime, etc.) are not regulated by any entity.
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RECOMMENDATIONS REGARDING RATE REVIEW
In the past, Dublin has jointly reviewed rates with the other Tri- Valley cities. This has proven to be cost
effective since some economy of scale is achieved by having the same consultant review rate applications
prepared on the same overall system. Staff will be contacting the other cities to determine the interest of a
joint review of the current application.
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Of most interest to Dublin will be the review of equipment and service rate calculations. The Consultant
has indicated a not to exceed amount of$I,OOO for a stand alone review of these rates. If other agencies
participate it is expected that the cost will be lower. In the event that the City desired a review of the rate
proposed for the Limited Service Tier an additional cost of up to $2,000 could be incurred. Again, some
cost savings may occur if the City were a participant with other agencies in obtaining a concurrent review.
The adopted 1996/97 Budget included an appropriation of $2,000 for rate reviews. Based on the
information gathered in the Annual Report (EXHIBIT 1) Staff recommends that the City Council
authorize the review of the equipment and installation rates at this time. It is not currently recommended
by Staff that a review of the Limited Tier be conducted. As noted in Exhibit 1, the rate will be decreasing
and the City did conduct a review of the original base rate. In the event that additional information is
learned which would justify a review of this rate, Staff will only proceed without further authorization if
the work can be performed within the current budget authorization. Any decision on a request that the
FCC conduct a review of the Satellite Value Tier, is premature until such time as the City receives a
complaint regarding the new rates.
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REPORT OF FINDINGS OF INADEQUACIES - PERFORMANCE REVIEW
Dublin Municipal Code Section 3.20.330 (A) requires that within 30 days of the system review meeting,
that a report on the adequacy of system performance and quality of service be prepared. Staff has
prepared a Draft Resolution (Exhibit 2) which summarizes key fmdings in this report. The report will be
incorporated as an attachment to the Resolution. Further, the City may require correction of inadequacies
within a reasonable period of time. Failure by TCI to comply after this notice is given shall be considered
a material breach and the City may proceed with an appropriate remedy.
Attached to the Draft Resolution is an Exhibit which identifies the following inadequacies and
recommended time for completion:
. An audited report of Franchise Fees is to be provided within 60 days of the close of the Fiscal Year. If
not already provided for 1996, the report shall be provided within 30 days.
. The Company shall conduct and provide a copy of the subscriber satisfaction survey report. Staff
would recommend that this information be provided within the next 90 days.
. The Company shall provide meaningful monthly reports of the upgrade construction plans and
schedule. The report shall be provided not later than the 10th of the month, with the next report due
by April 10, 1997.
. The Company shall be responsible for obtaining City approval of any expansion plan which deviates
from the upgrade contemplated in the Change of Control Agreement. This shall include but not be
limited to reimbursement of City costs incurred analyzing the impact of the change, as well as any
costs resulting from delays.
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· The Company shall provide the SecuritY Fund of $50,000 required by section 3.6 of the Franchise
Agreement. It is proposed that this be provided within 10 days. The form of the security shall be
either cash or a Letter of Credit in a form acceptable to the City.
Based upon input at the Public Hearing the City Council may wish to include additional items or modify ..
the proposed timing for the correction of the items as stated in the exhibit attached to the Draft Resolution.
Further Staff suggests that the City Council concur with the proposal to seek a review of the proposed
Equipment Installation and Service /Maintenance Rates.
Staff recommends that the City Council conduct a public hearing including: presentation by Staff of
information contained in the annual report; and provide an opportunity for members of the public and TCI
to comment on the provision of services. Following the Public Hearing it would be appropriate for the
City Council to consider the adoption of the draft Resolution (Exhibit 2).
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ANNUAL PERFORMANCE REVIEW OF Tel
Issued By City of Dublin March 13, 1997
Attached to this Performance Review are the following Exhibits:
A. ' Letter Dated February 5, 1997 to TCI from City of Dublin
Requesting Information To Conduct Performance Evaluation
B. Letter dated March 3, 1997 from TCI addressed To Paul Rankin,
Assistant City Manager Regarding 1996 Franchise Review
C. Comparison of Proposed June 1, 1997 Rates - Tri-Valley
D. Letter dated February 5, 1997 to Tom Baker, TCI from Paul Rankin
Regarding the status of Insurance/BondslLetter of Credit.
E. Response From TCI dated February 11, 1997 regarding Security
Fund.
PERFORMANCE REVIEW - Annual Report
Responses contained in items 1 (a) - 1 (d) (Exhibit B pages 1 and 2) reflect the submittal by TCI of an
Annual Report as required in Section 3.20.820 of the Dublin Municipal Code. The Company outlined
several tasks undertaken to develop the required upgrade to the existing system. The activities have
included securing a site for the transmission equipment as well as design related activities. The upgrade is
discussed in more detail later in this report.
As noted by TCI, Arts & Entertainment was temporarily dropped from the system in December and was
restored in January. This change will be addressed in greater detail in a separate agenda item analyzing
compliance with the FCC regulations. TCI also provided notices to Dublin Customers on or about
January 25, 1997, announcing that MTV, USA, American Movie Classics, and Nickelodeon would be
included in a separate Tier. The Channel Listing issued by TCI with their March billing, rescinded the
announcement of the new tier, and indicated that it would not be implemented March 1, 1997. The notice
indicated that the Company chose to test market the special tier in other systems.
Staffhas analyzed some of the subscriber data presented in Exhibit B by TCI, and noted the following
findings:
. The total number of subscribers to either Limited Service Tier or Satellite Value Tier of cable
service in the City of Dublin decreased by <2.290/0> between 1995 and 1996 (7,463 in 1995
and 7,292 in 1996). TCI representatives indicate that a portion of this change may be due to
changes in the type of service at the 224 unit Parkwood Apartments. Note: Satellite Value Tier
includes the Limited Service Channels.
. Although there was an overall decline in the combined Limited and Satellite Value service
categories, when each service level is analyzed individually the Limited Service Tier (Basic
Broadcast Channels) actually had a small 0.75% increase in the number of subscribers.
EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 1 of7
· In 1996 there was a 1.69% increase in the percentage of households which had an addressable
converter box. This allows subscription to premium channels and receipt of Pay - Per - View
Programming. 3,336 in 1995 and 3,383 in 1996. (Also, see note in next statement below.)
· Approximately 46.39% of the Dublin Subscribers have an addressable Converter Box.
Note: This does not account for households which may have more than one converter box. All
boxes offered to Dublin Customers are addressable.
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· The total the number of subscribers to the four premium services with the most subscribers
(Disney, HBO, Movie Channel, and Showtime) there was a <5.13%> decrease in the number
of subscriptions. Note: A single household may subscribe to more than one premium service.
· Despite recent declines in subscribership, TCI enjoys the benefit of a very high rate of
subscriptions in this location compared to the number of households passed. This is partly
caused by the fact that off air signals cannot be easily received on a standard antenna. TCI
representatives calculate that they pass approximately 8,200 households (including commercial
establishments with service), which could subscribe to service. Based on the reported
subscriber figures for 1996, approximately 88.93 % of the potential households are currently
subscribing to some level of service. Note: No adjustment has been made for any vacancy
factor or multiple units.
It would appear that some of the trends reflect recent press articles which identify a growing trend for
households to seek alternatives to Cable Television. This includes seeking alternative Direct Broadcast
Satellite systems. This competitive impact may be especially apparent given that the Limited Service Tier
had an increase in subscribers. This tier includes channels which are local networks and are typically not
included in the package offered to small home satellite systems.
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Staff does not have adequate information to conclusively assess the cause for the decline in
subscribership, beyond what is presented in this report. Other possible reasons include public comments
indicating that the quantity of programming made available on the Dublin System is not state of the art.
TCI has committed to the provision of a system upgrade by December 31, 1997.
Section 5.5 of the Franchise Agreement with TCI identifies their obligations to support the Public
Educational Government (pEG) Programming. Some of the items noted in this section were one-time
actions which had already been fulfilled by Viacom in prior years. Section 5.5(d) requires TCI to provide
the use of a mobile studio van for at least 5 hours per week as part of the franchise Agreement. This is to
be available for P.I;:G Access and TCI must also provide the technical personnel to supervise the operation
of the van and the equipment. It should be noted that this van and personnel are separate and apart from
the CTV operation. As the City Council is aware, the City has contracted with CTV for the televising of
City Council meetings. Mr. Baker generally describes in his response numbered 1 (d) the types of support
provided to CTV by TCI personnel and their mobile studio van. TCI edits and airs local school programs,
Chamber of Commerce Luncheons and the St. Patrick's Day Parade and other broadcasts independent of
CTV. Mr. Baker explained to Staff that he is sensitive to the need to fairly assign hours for this service
among the cities served and that the City is receiving allocated time in accordance with the agreement.
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EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 2 of7
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FINANCIAL INFORMATION
Section 3.20.220 of the Municipal Code allows the City to request an audited accounting of the Franchise
Fees to be provided within 60 days of the close of the calendar year. On January 29, 1997 TCI did make a
payment of$148,846.97 for 1996 Franchise Fees. However, no detail was provided as to the computation
of the payment. Staffmade the request for the audited report on February 5, 1997.
Staffwill provide an oral report on the status of the receipt of the report at the public hearing. In
discussions with Mr. Baker on March 10, 1997 he anticipated delivery of the report by March 14, 1997.
In the event that it is not received or that discrepancies are noted, it may be appropriate to consider
whether further action by the City Council is required. The lack of the availability of this report within
the prescribed time limits is noted and Staff has suggested that the report be required to be submitted
within 30 days.
TCI PROPOSED DUBLIN RATE CHANGE EFFECTIVE JUNE 1. 1997
Recently TCI has announced planned rate changes to become effective June 1, 1997. The following table
displays the current rate and proposed rates for selected services offered to Dublin Customers.
COMPARISON OF CURRENT DUBLIN RATES AND
RATES TCI HAS PROPOSED TO IMPLEMENT JUNE 1, 1997
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: Limited Service Tier ProDosed i
I I Current I 1-Jun-97 i j Difference I
! Limited Service $ 11.66 $ 11.19 I I
, Franchise Fee Limited $ 0.58 $ 0.56 I
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i FCC Fee $ 0.04 $ 0.05 I I I
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! SUB-TOTAL LIMITED $ 12.28 $ 11.80 i i -3.94%
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!-Satellite Value Tier I
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i Satellite Value $ 12.16 $ 12.55 I
i Franchise Fee Satellite Tier I $ 0.61 I I $ 0.63 ,
: SUB-TOTAL SATELLITE , I $ 12.77 $ 13.18 I I 3.21%
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i LIMITED TIER FROM ABOVE $ 12.28 $ 11.80 ,
! GRAND TOTAL $ 25.05 $ 24.98 I I -0.30%
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: EQUIPMENT I
i Addressable Converter $ 1.48 $ 3.00 I 102.70%
The rate shown for the converter box represents the amount filed by TCI as an "Operator Selected Rate."
They have calculated a Maximum Permitted Rate of$3.54. Mr. Baker has indicated in discussions with
Staff, that the rate to be charged to Dublin customers has not been determined. He is seeking approval
from ICI Management to implement a lower rate. The City does have the authority to review and
approve equipment rental rates.
At the January City Council meeting questions were also asked about charges to subscribers when a
e,. change in service level is made. In the proposed June rate schedule TCI has proposed the following
"" .,:~.,: changes to service rates:
EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 3 of7
Service Category Current Rate Proposed Rate
Upgrade Or Downgrade If $ 2.09 $ 2.09
Addressable Box Is In Place
Upgrade -No Converter Box $ 20.04 $ 13.60 .:
Downgrade -No Converter Box $ 20.04 $ 7.30
Hourly Service Charge $ 40.81 $ 30.45
Mr. Baker has explained to Staff that making changes to service levels when an addressable box is not in
place, requires the Company to dispatch a truck to make the modification. Therefore, the rate for these
types of changes is higher than those that can be done remotely through an addressable box. The service
rates under Federal Law may also be reviewed by the local franchising authority.
COMP ARISON OF RATES ON NEIGHBORING SYSTEMS
TCI provided Staff with updated data on comparative rates under their announced June 1, 1997 rate
proposal. EXHIBIT C includes a comparison of the proposed June 1, 1997 rate adjustments in 5 local
communities. As expressed by TCI officials in local press announcements programming costs are a
significant contributing factor to the proposed adjustments. Therefore, Staff has shown a per channel cost
in the comparison displayed in Exhibit C.
As shown, on a per channel basis Dublin and San Ramon rate payers pay a higher cost than neighboring
systems. In the Limited Tier Dublin rates will be approximately 5.18% more than the average per channel
cost between 5 systems in this area. The rate difference is the greatest on the Expanded Satellite Tier,....
which is regulated by the FCC. Dublin rates on a per channel basis for this tier are approximately 22.09%
more than the average for the systems surveyed.
It should be noted that although the per channel costs are lower in the systems which offer more
programming, the total cost is more than Dublin subscribers currently pay. For example the combined
cost of Limited & Satellite Value in Dublin is proposed to be $24.98, while Livermore and Pleasanton
which receive more channels will pay $28.66. This is a difference of$3.68 per month. It is expected that
once the system upgrade is completed in Dublin the total rate for Dublin subscribers will also increase as
new programming is added, however, the per channel cost would be expected to drop significantly.
Mr. Baker met with Staff and provided some additional explanations regarding additional factors which
contribute to the calculation of the rates. As noted in his written response (Exhibit B -Response 2(b)) the
number of channels provided is only one component of the total rate. Mr. Baker noted that some of the
costs associated with cable television operations are allowed to be spread over the rate base on a per
subscriber basis. Therefore, if an jurisdiction has a smaller subscriber base the costs are higher. This also
results in different rates among systems carrying the same programming. TCI has also noted in their
response that the City had an independent Consultant review the base rate used to calculate the Limited
Service Tier Adjustment. (As shown in the precedin~ section this rate is actually scheduled to be reduced
in June).
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EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 4 of7
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Although the City has had a Consultant review the Limited Service Tier, a request has not been filed with
the FCC to request a review of the Satellite Value Tier. As previously noted, prior to filing such a request
the City would need to receive complaints regarding the rate for the Satellite Value tier. Given that the
combined Limited / Satellite Tiers will have a small decrease, it is unknown as to whether required
complaints will be received.
CUSTOMER SERVICE INFORMATION
TCI has provided limited information related to customer service statistics (Exhibit B - Response 3(a))
As noted in Mr. Baker's response the Company only tracks those items which require a response and do
not maintain statistics related to complaints called in which are resolved on the telephone. Further TCI
has provided no data for the period prior to August, which they state is when they formally assumed the
operation from Viacom.
In discussions with Staff, Mr. Baker indicated that many problems are items requiring customer education
about connection of equipment to the cable system. This includes customers attempting to hook-up video
games, "picture - in picture" features, etc. TCI believes that segregating these types of problems highlights
their feeling that the number of service calls, do not reflect failure of the cable system to operate properly.
The data in the response from Mr. Baker, appears to support the conclusion that service call frequency is
low for a system servicing over 7,000 households on a daily basis. Mr. Baker notes that it is one of the
lowest call rates compared to other TCI systems. Based on the August to December data, service calls
averaged less than 4 per day. Mr. Baker notes in response number 3(c) that there were no issues brought
forth by subscribers that resulted in any decision or action by the FCC.
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SUBSCRIBER SATISFACTION OPINION REPORT NOT PROVIDED
Section 3.20.860(B) of the Dublin Municipal Code requires the results of an annual opinion survey to be
submitted to the City no later than two months following the end of the cable operator's fiscal year. Mr.
Baker has advised the City that the fiscal year for TCI ended on December 31, 1996. Staff requested the
survey document on February 5, 1997.
Mr. Baker indicates in his response that TCI has not conducted the required survey. It was also indicated
in discussions with Staff, that the Company officially assumed operation of the system in August of 1996,
which would somehow change the timing of the obligation for a 1996 report. It is Staffs position that the
timing of the TCI acquisition of Via com, did not modify the requirement for the Company to submit the
survey within two month's of the end of the Fiscal Year. The Company elected to operate for 5 months
without preparing a survey and as part of their acquisition presumably had the opportunity to verify the
status of any efforts by Viacom to comply. Staff believes that it is noteworthy that there was a lack of any
customer survey data, during a period when the Company was making plans for programming changes.
Mr. Baker has indicated to Staff that at this time the Company has not established a time frame for the
undertaking of a survey.
Based on the fact that the preparation of the report is a requirement of the Municipal Code, the City
Council may determine that this is an inadequacy and put the Company on notice that they must cure the
violation within a reasonable period oftime. Staff would propose that the delivery should be made within
120 days. The City Council may wish to consider whether the completion of this report will
automatically meet the Company's obligation to provide a report at the end of the current year.
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EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 5 of7
CONSTRUCTION I SYSTEM UPGRADE PLANS
In responses numbered 4a, 4b, and 4c (Exhibit B), Mr. Baker provided information about the construction
I upgrade plans. Prior to the purchase of Viacom, TCI entered into a Change of Control Consent
Agreement with the City of Dublin. Section 6 of this agreement reads as fOllOWS:'.
SECTION 6
TCIC agrees that it will cause the Franchisee to complete the Dublin portion of the voluntary
system upgrade currently under construction in Livermore, and shall offer expanded programming
on the Dublin system no later than December 31, 1997. If the Dublin portion of the voluntary
system up grade is not completed by January I, 1998, TCIC will cause the Franchisee to pay the
Grantor liquidated damages as described in Section 4.3 of the Franchise Agreement...
The upgrade referred to in the agreement and now in operation in both Livermore and Pleasanton included
fiber optic links to panels located in neighborhoods. A coaxial cable similar to the type now in use was
used to connect the panels to individual households. The upgrade was supposed to provide improved
reliability for the system as well as increased channel capacity. In addition, it is Staff's understanding that
the design of the Livermore system provided for the ability in the future to offer a variety of services
beyond cable television programming.
Mr. Baker indicated to Staff that he is continuing to press TCI Management for a decision on the upgrade
plans. Although he is hopeful for an early decision, TCI corporate officials are not anticipated to release
capital plans for their holdings until the second quarter. (After April 1 st) TCI has been extremely
noncommittal about specific plans for the Dublin upgrade other than to state that they are evaluating
alternative technologies which could increase channel capacity and reduce their capital outlay compared
to the system installed in Livermore.
City Staff does not have the expertise to evaluate the technical impact of the possible change in the type of ,:.
upgrade to be provided to the City of Dublin. Staff believes that a change in the design from the system
provided with the Livermore upgrade, may require an amendment to the Transfer Agreement. In the
event that this option is pursued Staffhas indicated to Mr. Baker, that it would be our position that TCI
should absorb any consulting costs necessary to verify the impacts.
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Staff is concerned with the lack of any document produced by the Company showing a schedule for the
completion. Staff has requested monthly reports as authorized under Municipal Code Section
3.20.440(B). TCI has indicated the publication of a progress report will occur when construction
commences. The Dublin Municipal Code clearly authorizes the City to request information indicating the
progress schedule, and projected dates of service. It is the interpretation of Staff that construction
includes the design of the system and securing sites for facilities. In essence the construction period has
already begun based on representations by TCI in Exhibit B. As stated in the TCI Annual Report (Exhibit
B Response la.) the Company has proceeded with activities necessary to complete the upgrade. In
discussions with Staff, Mr. Baker has indicated that even the use of compression technology will require
physical alterations to the cable infrastructure, however, the design details differ depending on the overall
system design.
In the event that the upgrade is not complete by December 31, 1997, the liquidated damages section of the
Franchise Agreement provides for a penalty of$250 per day. Tel has indicated on several occasions that
they are aware of the contractual obligation contained in Section 6 of the Transfer Agreement and they
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EXHIBIT 1
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Tel Annual Performance Report
March 13, 1997
Page 6 of7
intend to comply. Staffwould recommend that the requirement for meaningful monthly reports be
required as a result of this review.
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REQUIRED SECURITY FUND / LETTER OF CREDIT
As a part of the annual review it is also appropriate to consider whether TCI is complying with its
obligations to provide insurance, bonds and Letters of Credit. Section 3.6 of the Franchise Agreement
requires the Cable Operator to deposit with the City $50,000 or provide a Letter of Credit in this amount.
Once the upgrade is complete the amount is to be reduced to $5,000. Dublin Municipal Code Section
3.20.380 identifies some of the purposes of the security fund. Further, the code states that the fund is to
be in the form of funds deposited with the City or a Letter of Credit.
The original Franchise Agreement was adopted by the City in 1985 and at that time, the date of the
planned upgrade was unknown. In response to an inquiry from Viacom, the Consultant that negotiated
the Franchise Agreement advised that the intent was to have the larger amount of funds available during
the period that the Company was obligated to provide the upgrade only, and not all years preceding the
decision to undertake an upgrade. Based on this understanding the City advised Viacom that only $5,000
was required until the Dublin portion of the upgrade was to commence. A letter dated February 10, 1986
clarifying this interpretation was executed by the City Manager and provided to Viacom. The City
currently holds a $5,000 Letter of Credit and Staff requested that the amount now be increased to the full
$50,000 (Exhibit D).
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As noted in Exhibit 5, TCI advised Staff that they had continued to rely on the interpretation noted above
that the amount would be increased when an upgrade commenced. In discussions with Staff, TCI
representatives stated that it was their position that the larger amount did not have to be provided until
such time as they secured Building Construction Permits. As previously noted the Company has
processed a Site Development Review on a parcel to be used for the transmission facility. Further, TCI
has had a contractual obligation to complete the Dublin upgrade since execution of the agreement in
December of 1995.
TCI had also suggested to Staff in Exhibit E that the allowed form of the Security Fund should be a bond.
Although TCI has submitted a Bond, the City also holds a $5,000 Letter of Credit. Staffhas informed
Tel that the only acceptable form of the security fund is a cash deposit or an irrevocable letter of credit.
These requirements are clearly dictated by the Municipal Code (Section 3.20.380) and the Franchise
Agreement.
The requirement for submittal of a $50,000 Security Fund in the form of cash or Letter of Credit be
included in the identified Inadequacies as a result of this review.
CONCLUSION
Changes have been observed in the subscribership over the past two years. The provision of services
under the corporate ownership ofTCI is relatively new for the Dublin community. There are areas
identified in the report which require attention by the Company. The provision of information to the City
of Dublin and subscribers has been lacking specific details of planned changes. Although the Company
and the industry may be going through certain changes this should not impair its obligation to meet the
minimum requirements of adopted rules, regulations, and contractual obligations.
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EXIDBIT 1
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Tel Annual Performance Report
March 13,1997
Page 7 of7
CITY OF DUBLIN
P.O. Box 2340, Dublin, California 94568
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City Offices, 100 Civic Plaza, Dublin, California 945.:
February 5, 1997
Certified Mail # P 332469775
Mr. Tom Baker, General Manager
TCI Tri- Valley
2333 Nissen Drive
Livermore, California 94550
Certified Mail # P 332 469 776
Dr. John C. Malone
TCI Comm . IOns, Inc.
Post e Box 5630
ver', Colorado 80217
RE: Information Requested To Conduct Performance Evaluation
· Information Related To Programming Changes Instituted Prior To January 1, 1997 and
Confirmation of Status of Variety Package Announced For March 1, 1997
( Please Provide Information By February 12, 1997 See Letter)
· Information For Detailed Annual Performance Review
(Please Provide Information By March 5, 1997 See Attached)
Gentlemen:
.
At the Dublin City Council Meeting of January 21, 1997, Staffwas directed to prepare an annual review
of services rendered by TCI to subscribers in the City of Dublin. The services are provided pursuant to a
Franchise Agreement in accordance with adopted laws and regulations.
In recent months information related to some issues was not forthcoming from TCI, Tri- Valley and Staff
was informed that decisions were being made by others in the corporate offices in Colorado. Therefore
tillS request and notice is also being addressed to Mr. Malone as suggested in Mr. Baker's letter of January
1St 1997. By sending requests to both the Corporate parent organization and the local operation it is our
hope to obtain full disclosure of the information necessary to complete the review.
\ "
The request for information and scheduling of a performance review is undertaken in accordance with
Chapter 3.20 of the Dublin Municipal Code as well as applicable sections of the Franchise Agreement.
The documentation necessary for City Staff to prepare the item for City Council consideration has been
segregated into two sections.
The first section relates to background information associated with the changes made in January, as well
as the status of the Variety Package. The depth of information required on these issues is not extensive
and we would request a response by February 12, 1997. The information requested is shown below:
.
EXHIBIT A
7
Administ,
Tel Annual Performance Report
March 13, 1997
1.
Please provide a copy of tile public notice printed in tile newspaper announcing the changcs in
progranuning to be effective January 1, 1997. (Notice was referenced in Mr. Baker's letter of
January 15, 1997.) Include the name ofthe publication(s) it appeared in and the date(s) of
appearance.
.
2. Please provide copies of any other notices or publications, which TCI intended to fulfill its
obligation for notice to the subscribers and franchising authority, regarding changes in
progranuning. (This refers to notices as may have been applicable with 53088 et seq. California
Govenunent Code, FCC Regulations, and/or the Franchise Agreement.)
3. The Notice received by Dublin subscribers on or about January 25, 1997 announcing changes
effective January 1, 1997 also announces the creation ofa Variety Package effective March 1,
1997. At the January 21, 1997 City Council Meeting, Mr. Baker stated that despite press reports
TCI had no intent to introduce a new product tier at this time. Please provide a written explanation
of the impact to the customer of the' March 1, 1997 implementation of a Variety Package tier.
The ilcms required for the AIulUal Performance Review are delailed in the attachment to this letler. When
applicable I have noted ncxt to cach request a reference to tile Dublin Municipal Code (DMC) or franchise
agreement. This information should be provided not later than March 5, 1997. Staff will be preparing a
Staff Report and analysis of the information submitted.
e,
As provided for in Dublin Municipal Code Section 3.20.910 the refusal or willful failure by TCI to file
any of the required reports shall be deemed a material breach of the franchise, and subject TCI to remedies
which are available to the City. In accordance with the City Council direction, it is anticipated that the
public hearing regarding the Annual Performance Review will be conducted on March 18, 1997.
Typically the Staff report would be available on the preceding Friday.
Your cooperation in responding to this request is greatly appreciated. In the event you require
clarification about the information to be provided, or need additional information please fel;:l free to
contact me at (510) 833-6654.
Sincerely,
c?aJ~.~
Paul S. Rankin
Assistant City Manager/
Administrative Services Director
e.:
9
CITY OF DUBLIN CALIFORNIA
REQUEST FOR INFORMATION FROM
TCI COMMUNICATIONS, INC. - TRI~VALLEY SYSTEM
1996 ANNUAL REVIEW
[3.20.330 - Dublin Municipal Code (DMC)]
:.
Issued February 5, 1997
To Be Submitted Not Later Than March 5,1997
1. Annual Report (Section 3.20.820 DMC)
TCI is requested to prepare and submit a written Annual report. The report shall include the
following information:
(a) Please provide a summary of the activities undertaken by TCI in the development of the
cable system. The information should include approximate timeframes in which the
activities took place.
(b) Please provide a description of all services begun or discontinued during the year.
( c) Provide information identifying the number of subscribers for each class of service and a
comparison to the historical figures applicable to calendar year 1995. .
(d)
TCI shall describe the activities and extent to which PEG production efforts were
supported in accordance with Section 5.5 of the Franchise Agreement.
::.
2.
Financial Information
(a) Audited Franchise Fee Calculation: (3.20.220 DMC)
Please provide the City of Dublin with a statement audited and certified by a certified
public accountant, reflecting the total amount of gross receipts and all payments,
deductions and computations for the 1996 Franchise Fee payment.
(b) Comparative Rate Information
The City requests the provision of current rate schedules and corresponding program
channels for each tier of service in the communities of: Castro Valley, Danville, Fremont,
Livermore, and Pleasanton.
3.
Customer Service Information
(a) Service Related Complaints (3.20.860 (A) DMC)
Provide a summary of the complaints received during the year. The information submitted
should be capable of identifying: a monthly breakdown of the total number received from
Dublin customers; the breakdown shall be categorized by general type of complaint (Le.
billing, service interruption, etc.); an analys.is of the disposition of complaints at month end
(Le. resolved/closed, open, etc.)
-'.
;0
CITY OF DUBLIN REQUEST FOR INFORMATION FROM
TCI COMMUNICATIONS, INC. ~ TRI-V ALLEY SYSTEM
1996 ANNUAL REVIEW
(page 1 of 2)
3.
.
Customer Service Information (Continued)
(b) Subscriber Satisfaction Opinion Report (3.20.860 (B) DMC)
Please provide the results of an annual opinion survey report identifying satisfaction or
dissatisfaction among subscribers with the services offered by TCI. The information
should briefly describe the method used to obtain the information, the number of
respondents from Dublin, and a statement as to the Company's interpretation of the data.
(c) Federal/State / FCC Actions Relatin~ To Operations In City of Dublin (3.20.840 DMC)
TCI shall provide a,summary of all decisions, correspondence, or actions taken by federal,
state, and local courts, and regulatory agencies including the FCC. The summary shall
only address those matters relating to cable television operations in the City of Dublin and
limited to issues brought forth by subscribers. By requesting a summary and limited
information, the City does not waive its rights to request a copy of the original documents
and/or an increased in the scope of the request, if desired at a later date.
4. Construction / Upgrade Activities
Back~round
Section 6 of the Change of Control Consent Agreement dated December 11, 1995 provided that
TCI would proceed with a voluntary system upgrade. Expanded service is to be offered not later
than December 31, 1997. It is our understanding that planning and design of the upgrade is
undelWay although there may be a modification of the technology to be utilized.
.
.~
(a)
Construction Schedule (3.20.440 (B) DMC)
TCI is required to submit a detailed written construction schedule. The information
submitted shall include a description of:
. Construction completed to date.
· Construction planned to occur in the future.
. Written description of any phasing of the project and the sequence to be followed.
(Maps higWighting the location of major components and phasing shall be
included.)
. Projected dates of service.
(b) Emer~ency Alert Capability (Section 5.7 Franchise A~reement)
TCI is requested to explain in writing the capabilities of the proposed system upgrade to
accommodate Section 5.7 of the Franchise Agreement. This section requires the ability for
EMERGENCY ALERT CAPABILITY, allowing the City to interrupt and cable cast an
audio message on all channels simultaneously in the event of a disaster or emergency.
(c)
Monthly Updates (3.20.440 $) DMC)
Subsequent to the submittal of this information and until the project is complete, TCI shall
provide written monthly updates to the construction schedule. The updates shall: (i)
describe progress achieved in the prior month;(ii) briefly describe the work to be
undertaken in the current month; (iii) provide a statement as to whether the submitted
schedule is being met; (iv) provide an explanation of any delays or changes in the
schedule; (v) provide a statement as to any change in the projected date for offering
servIces.
/1
CITY OF DUBLIN REQUEST FOR INFORMATION FROM
TCI COMMUNICATIONS, INC. - TRI-V ALLEY SYSTEM
1996 ANNUAL REVIEW
(page 20f 2)
@.
Tel
.
March 3, 1997
CITY C?F bUnUl\f
[":lM) (J r '1[""
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City of Dublin
Attn: Paul s. Rankin
Assistant City Manager
100 Civic Plaza
Dublin, CA 94568
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RE: 1996 Franchise Review
Dear Mr. Rankin,
Below please find TCl's response to your request for infonnation per your letter(s) received on
February 6,1997.
1a.
For the 1996 calendar year, TCI has taken an active role in the ongoing development of
the Dublin cable system since it was acquired from Viacom. In the ear1y spring of 1996
we entered into negotiations for approximately 6,000 sq.ft. of property to construct a
building to house receiving and transmission equipment to feed the cities of Dublin and
San Ramon. This process included the following and took place between March and
December.
1. Preparation of site plan, building and building elevations.
2. Preparation of boundary survey, subdivision map, topographic survey, grading and
drainage plans and utility locations.
3. Site development review. (Planning application # PA 96-046)
4. Environmental site assessment.
5. TCI engineering to include electrical loads and corresponding emergency generator
sizing, HVAC, fire suppression and alann systems.
;.
We have also redesigned the coaxial cable plant for our impending upgrade including
identification of preliminary routes and node locations. However this design is being
rethought given the breakthroughs in digital technology. The Dublin system consists of
70 miles of plant, of which 25.73 miles is underground and 44.26 miles is overhead.
New construction in 1996 was in Hansen Hill Ranch and the California Highlands
(ongoing). We now pass near1y 8,200 homes in the city.
TCI currently offers 41 video services on 38 channels and also carries DMX, an optional
digital audio service.
1 b. Services added include BayTV which was added on December 29, 1997. The only
service discontinued was Arts and Entertainment on December 29, 1997, which has
since been reinstated.
:-.
I)...
EXHIBIT B
Tel Annual Performance Report
March 13, 1997
Tri-Valley System Office
2333 Nissen Drive
Livennore, CA 94550
(510) 443-0470
FAX (510) 443-3618
An Equal Opportuniry Employer
.
;,:.... .
. 1c. Class of Service 1995 Count 1996 Count
Limited (incl/bulk) 7,463 7,292
SVP 7,159 6,945
Guide 443 423
Showtime 1,622 1,597
HBO 1,932 1,719
Playboy 124 122
Movie Channel 1,621 1,658
Disney 1,122 1,000
DMX 194 174
Sportschannel 429 389
Addr. Converter 3,336 3,383
1d. TCI is in compliance with the Cablecasting provisions as outlined in Section 5.5 of the
franchise agreement. Items 5.5a, 5.5b, and 5.5c are monetary provisions that have
been complied with over the franchise term. In compliance with section 5.5d, we work in
concert with channel 30 on many endeavors. We assist in the production of the local
news programs, local election coverage, and other programming. We also have included
a bill stuffer last fall that asked for citizen support of CTV-30 and air many spots
promoting CTV-30 programming. Independent of channel 30, we edit and air local
productions produced by several Dublin schools. We film and air local events such as
Dublin Chamber of Commerce luncheons and the St. Patrick's Day parade. We support
many community causes such as Hope Hospice's Lights of the Valley. CTV 30 also asks
for and receives technical on-site assistance in the wiring and delivery of its signal on the
cable system.
e-
The audited Franchise Fee Report is still being written by our auditors. TCI has chosen
to use the same independent auditor that was used in prior years by Via com for
consistency in reporting (Can and Cansen, an independent auditing firm in Seattle,
Washington). We expect that this report will be sent to you in a matter of days and had
hoped to enclose the report with this letter.
2b. Rates are set by FCC formulas in accordance with the 1992 and 1996 Cable Acts. The
rates are based on many factors, only one of which is the number of channels offered.
In the past, our rates have been audited by the city of Dublin who contracted with
Telecommunications Management, Inc., a cable television consultant. Our rates were
found to be in compliance with these laws. Shown below are the rates for the regulated
classes of service as of March 1, 1997 (excluding fees):
2a.
Community Ltd Chnls Ltd Rate SVP Chnls SVP Rate
Danville 21 $ 12.64 22 $ 14.00
Castro Valley 24 $14.33 26 $ 13.04
Pleasanton 24 $ 12.39 25 $ 11.83
Livermore 24 $ 11.72 25 $ 14.88
Dublin 19 $11.66 15 $ 12.16
Channel lineups for these communities are enclosed with this letter.
.
/3
3a.
Service Related Complaints - TCI was not able to provide infonnation for the period pnor
to when Tel took over ownership of the system in August 1996. We keep all customer
correspondence we receive directed to the Tn-Valley office in our public files in
accordance with FCC regulations. If a customer problem or billing question can be
answered over the phone, we do so but do not keep an electronic record of each phone
call we receive by location. We do however track calls where service problems are
reported by customers. Below is that summary:
e'
Auo SeD Oct Nov Dec ..%.
.__..n..._..__n...............____..____n_n...._...nn.__........___...__n.....nn............._....._..........................nnn...."
Coaxial Plant 4 3 3 1 7 5 %
Drop 21 14 1 8 1 3 1 5 22 %
Converter/Remote 26 18 21 17 21 28%
Customer Equip 16 13 16 8 10 17%
Customer Education 16 14 17 10 16 20%
Other 7 3 5 7 3 7 %
Total Truck Rolls
90 65 80 56 72 100%
This service call rate is one of the lowest for TCI systems in the surrounding area. If a
customer calls for a service problem and is receiving no picture, it is immediately
dispatched the same day regardless of the hour. If the problem is less severe, it is
scheduled. Many of these are handled the same day, and at most it is scheduled within
46 hours. Accordingly at the end of each day. what currently remains unresolved are
those problems called in that day that are scheduled for the next day or two.
3b.
Subscriber Opinion Report - TCI has not taken a local subscriber survey since acquiring
the franchise in August. 1996.
.
3c. The major piece of legislation from the Federal level is the Telecommunications Act of
1996 which further clarifies the Cable Act of 1992. I have enclosed a summary of that
Act. On the State Level, S8 610 was passed which defined what late fees could be
charged by cable operators statewide. Since the Dublin system was part of a late fee
class action lawsuit brought in 1993 under Viacom ownership, TCI was already
operating under the tenns of that settlement. TCI charges a late fee of $4.25 when a
customer has not made payment in 50 days from the date the billing was initially mailed
and is only assessed when the past due balance is greater than $13.00. S8 610 allows a
late fee of $4.75. No issues were brought forth by subscribers that resulted in any
decision or action by government entities or regulators.
4a. We are still in the process of examining various alternatives for the Dublin upgrade. We
have not yet decided on a final course of action. however, because of the latest
developments in digital technology. As we did with both'the cities of Pleasanton and
Livennore before construction began, we would welcome the opportunity to discuss with
staff our plans including routes, schedule, maps. and the like as soon as these plans are
finalized.
:.
It!
.
.
.
15
4b.
Emergency Alert Capability - TCI has the capability to interrupt our service in the event
of an emergency. It would require installation of a telephone line to our master headend
for Dublin. This item was discussed with the franchise administrators at the time of the
franchise transfer. However, the cities must agree on who would be responsible for
activating such an alert. There was discussion that this should not be left up to an
individual city and that perhaps the county should be responsible for it.
4c. Monthly Construction Report - We will be happy to publish a progress report regarding
our construction when it commences.
You also sent a letter dated February 19, 1997 inquiling about the capabilities of digital
technology. We are presently looking at various scenarios regarding the Dublin upgrade, only
one of which is the use of digital compression. We have not yet reached a decision on our final
course of action. We agree that we have an obligation to discuss with staff once those plans are
set, including plant quality and reliability, rates, and the like. Digital is still a new technology and
we are just now evaluating its capabilities. We are also well aware of our obligations under
Section 6 of the Franchise Transfer agreement.
Thank you for the opportunity to address these concerns. I will see you on March 18th.
Sincerely,
~%~
Tom Baker
General Manager
Tel Tn-Valley
COMP ARlSON OF PER CHANNEL COST
BASED ON PROPOSED Tel RATES
Tri-Valley Communities & Castro Valley
-.
NOTE:
Tel Provided Rate Information Without Fees
For this Comparison It is Assumed Franchise Fees Are 5.00%
Also, a 5 cent FCC Charge is included in the Limited Tier
This results in a total amount which a customer would
typically be billed.
LIMITED BROADCAST CHANNELS
Cost Of # Of
Limited Channels
DUBLIN $ 11.80 19
Cost Per
Channel
$0.62
CITY OF DUBLIN
P.O. Box 2340, Dublin, California 94568
.
City Offices, 100 Civic Plaza, Dublin, California 94568
l'vlr. Tom naker, Gcncral Manager
TCI Tri- Valley
2333 Nisscn Drive
Livermorc, California 94550
P 5'3 ~ l..f {, ~
~-:r':f
RE: Review of Status of Insurance! Bonds! and Letter of Credit
As Required By Agreements Between City of Dublin and TCI
~ E\ -;- ~1 G5-G~
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I C., r.-' ..C'..' .L~_ I 0.
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J kar To III :
J have recently completed an inventory of our files regarding documentation related to bonds, insurance and letters of
credit I have identified several dcficicncies which may have been overlooked following the transition from Viacom to
Tel.
We are in receipt of a $5,000 Franchise Bond #64-8640-00689-97, which was transmitted by your office on January 23,
1997. The amount and form of this security does not appear to correspond with the requirements I have noted in the
Agreements. It appears that in order to be in compliance with the Agreements TCl will need to provide the following:
Insurance SectiolJ 3.6 Franchise Agreement
euirement: Furnish proof that policies are in force in the minimum amounts noted below:
. __: - Worker's Compensation -- As required under California laws.
- Comprehensive General Liability -- $1 million per occurrence
· Comprehensive Automobile Liability -- $1 million per occurrence
Acceptable Form: Insurance Carriers shall be authorized to do business in California, and are subject to City
approval.
Transfer of Ownership: Section 2 - Chan~e of Control Consent Agreement
Requirement: $50,000 (Fifty Thousand dollars)
I\r:ceptable Form: Replenishable Letter of Credit Issued To City
Purpose: Guarantee Performance of Franchisee in Satisfaction of3.20.190 DMC
Security Fund Section 3.6 Franchise Agreement
Requirement: $50,000 (Fifty Thousand dollars)
Acceptable Form: Cash or Letter ofCredit(The form of the Letter of Credit requires approval of City)
Note: Agreement permits reduction to $5,000 following system upgrade.
In order to resolve these outstanding items, I would request that the appropriate documents be submitted within 10 (ten)
days. In the event that there will be a delay, please provide a written explanation including the date at which we can
expect to have the item fully resolved.
Your prompt attention in reconciling these deficiencies is appreciated.
.rely, n....
""U~,~
~ S. Rankin EXHIBIT D
Assistant City Manager! Administrative Serv,.ces Director .Tel Annual p~rfi~I~~~eport
Admmistration (510) 833-6650 · City Counci (010) B33-6005 · Finance (510) 833.6640 · ~ulramg,rnspeclion (51 ctiof3',1997
/ '7 Code Enforcement (510) 833-6620 . Engineering (510) 833-6630 · Parks & Commumty Services (510) 833- 2[
~
/7
@.
Tel
February 11, 1997
(e,cc. tvJ>D
.ctr,{ OF'
Ft . DUBLIf,!,
tB 7 2 1997
FJkt),
1'(K..Ncr: Do.
R E C ~ ;.. tpr..
. -,VED'
City of Dublin
Attn: Paul S. Rankin
Assistant City Manager
100 Civic Plaza
Dublin. CA 94568
Dear Mr. Rankin,
Below find TCl's response to your request for information per your letter(s) received on February 6, 1997.
1. Insurance Requirements - I have enclosed copies of insurance certificates as specified in section
3.6 of our franchise agreement (Enclosure 1)
2. Change of Consent Letter of Credit - I have enclosed the letter of credit per the transfer
agreement from Viacom to TCl. (Enclosure 2).
3.
Security Fund - You have asked about the $5,000 bond we posted in order to comply with the
Security Fund provision set forth in Section 3.6 of the Franchise Agreement. The system has
been posting a $5,000 bond annually since 1986 pursuant to the express direction and
understanding of the City of Dublin. Pursuant to a letter dated February 10, 1986 (Enclosure 3)
to then General Manager Ms. Myrt Jones, City Manager Richard C. Ambrose stated his express
understanding, reached with the advice of the City's consultant, Mr. Carl Pilnick, that $5,000
was intended to be posted as security until such time as the upgrade commenced. The larger
amount of $50,000 was intended to be posted as security only during the actual construction
phase itself. Therefore, in reliance upon this letter and pursuant to the eX'Press understanding
and the established course of dealing of the parties over the ensuing years, we correctly posted
Franchise Bond #64-8640-00689.97 in the amount of $5,000.
With regards to your letter regarding our recent programming changes, enclosed find the following:
4. Public notice - The copy of the public notice published in the Tri-Valley Herald on November
29, 1996 is enclosed (Enclosure 4).
5. Other notices - The copy of the press release made public on November 27, 1996 (along with
channel change information) is enclosed (Enclosures 5 and 6).
EXHIBIT E
e:
.
A1f~-'
Tri.Valley System Office Tel Annual Performance Report
March 13, 1997
An Equal Opportunity Emplo ar
.
..:. .
. ..
Enclosure 3
CITY OF DUBLIN
~po. Box 2340
.,.blin. CA 94568
(415) 829-4600
February 10, 1986
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Ms. Myrt Jones, General Manager
Viacom Cablevision
6640 Sierra Lane
Dublin, CA 94568
fj~.t~~,,!\!-'--~ ,....."..,..._
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- j . t:
Dear Ms. Jones:
e:
The purpose of this correspondence is to clarify our
understanding of the Security Funds Provisions contained in the
agreement between Viacom and the City of Dublin.
It is my understanding that the City's consultant Mr. Carl
Pilnick has reviewed our interpretation and has agreed that this
was the intent. Section 3.6 outlines a security fund of $50,000
which may be in the form of a letter of credit. This section
also indicates that the amount of the fund may be reduced to
$5,000 upon completion of the outlined system upgrade.
Mr. Pilnick has indicated that the larger amount of funds were to
be required for the construction phase only.
Therefore, Viacom should make arrangements to immediately post a
security fund in the amount of $5,000. 'At the time that the
Dublin portion of the upgrade is to commence, this must be
increased to $50,000.
If you have any further questions, please feel free to contact
me.
RCA: ck
Sincerely,
~~~
City Manager
'"
.~.:
/9
DRAFT
RESOLUTION NO. - 97
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
....
.'
*********
Containing A Report of System Performance, Quality of Service, and Noted
InadequaciesNiolations
( TCI Cable Television Provider)
WHEREAS, Dublin Municipal Code Section 3.20.330 provides for a public Annual Review of
services provided by franchised cable television operators; and
WHEREAS, TCI currently holds the franchise for the provision of service within the City of
Dublin; and
WHEREAS, Information was requested on February 5, 1997 from TCI in order to conduct a the
review; and
WHEREAS, The City provided notice to TCI on February 5, 1997 that a Public Hearing would be
conducted on March 18, 1997; and
WHEREAS, attached hereto as Exhibit 1 and by reference incorporated into this resolution, is the ..;.
Annual Report dated March 13, 1997; and
WHEREAS, information submitted to the City of Dublin by TCI identifies that the firm has
commenced activities necessary to complete the City of Dublin system upgrade construction; and
WHEREAS, the City Council did conduct a public hearing on March 18, 1997 and accepted
testimony relative to the performance of TCI; and
WHEREAS, as a result of this review certain inadequacies and or violations were determined to
exist; and
WHEREAS, in accordance with Municipal Code Section 3.20.330(A) the City must issue a report
within 30 days of the review; and
WHEREAS, the City may require that TCI correct inadequacies and violations within a reasonable
period of time or be subject to further remedies.
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby adopt and issue the
report attached hereto as Exhibit 1 as the report required in section 3.20.330 (A) of the Dublin Municipal
Code.
,:.
;...0
AGENDA STATEMENT
EXHIBIT 2
DRAFT
.
BE IT FURTHER RESOL VED that the City Council has determined that inadequacies and or
violations exist in the manner in which TCI has performed in the City of Dublin. Exhibit 2 attached
hereto and by reference made a part hereof specifies the scope of the inadequacies and a time frame for
TCI to complete corrective action. Staff is hereby authorized to forward this information to TCI.
BE IT FURTHER RESOLVED that Staff shall provide Notice to TCI that in the event there is a
failure to comply with correcting the inadequacies I violations within the permitted time, shall be
considered a material breach and the City may proceed with an appropriate remedy.
PASSED, APPROVED AND ADOPTED this day of
-
,1996.
AYES:
NOES:
ABSENT:
ABSTAIN :
.
Mayor
ATTEST:
City Clerk
Hlee-forms!
e:
;1./
AGENDA STATEMENT
EXHIBIT 2
.
EXHIBIT 1
CITY COUNCIL RESOLUTION
..
---., . :
TCIANNUAL PERFORMANCE REPORT
DATED MARCH 13,1997
WILL BE INSERTED AS EXHIBIT 1
....
J)-
.
.'_3.
.
~5
Noted InadequaciesNiolations
As A Result Of Annual Performance Review
Conducted March 18, 1997
( TCI Cable Television Provider)
Issued By City of Dublin
1.
Requirement For Submittal of Audited Statement of Franchise Fees Paid
Authorized By: Section 3.20.220 Dublin Municipal Code
An audited report of Franchise Fees is to be provided within 60 days of the close of the Fiscal
Year. If not already provided for 1996, the report shall be provided to the City of Dublin within
30 days.
2.
Provision Of Subscriber Satisfaction Survey
Authorized By: Section 3.20.860 (B) Dublin Municipal Code
TCI shall conduct or make arrangements to obtain, and provide a copy of the subscriber
satisfaction survey report identifying satisfaction or dissatisfaction with the services provided by
TCI. TCI shall takes steps to comply with this requirement and provide the information within the
next 120 days.
Provision Of Monthly Progress Reports On the Progress of the Upgrade Construction
Authorized By: Section 3.20.440 (B) Dublin Municipal Code
TCI shall provide meaningful monthly reports of the upgrade construction plans and schedule as
required by the Municipal Code. The report shall be provided not later than the 10th of each
month, with the next report due by April 10, 1997.
4.
Obtaining City Approval of Any Changes to The Proposed Design of The Dublin Upgrade
Authorized By: Section 6 of the Change of Control Consent Agreement Dated December 11,
1995
In the stated agreement TCI committed to proceeding with the upgrade "...currently under
construction in Livermore..." TCI shall be responsible for obtaining City approval of any
expansion plan which deviates from the upgrade contemplated in the Change of Control
Agreement. This shall include but not be limited to reimbursement of City costs incurred
analyzing the impact of the change, as well as any costs resulting from delays.
5.
Provision of a $50,000 Security Fund
Authorized By: Section 3.6 of the Franchise Agreement and Dublin Municipal Code Section
3.20.380
TCI shall provide the full Security Fund of $50,000. This shall be provided within 10 days. The
form of the security shall be either cash or a Letter of Credit in a form acceptable to the City.
EXHIBIT 2 - City Council Resolution
.
CABLE TELEVISION BACKGROUND
DOCUMENTS
.
PUBLIC HEARING AGENDA ITEM:
MARCH 18, 1997
· Chapter 3.20 - Dublin Municipal Code
· Franchise Agreement Dated January 1, 1996
· Change of Control Consent Agreement Dated December 11, 1995
.
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Chapter 3.20 3.20.190 Transfer of ownership
or control.
CABLE TELEVISION AND 3.20.200 Franchise renewal.
COMMUNICATION SYSTEMS 3.20.210 Police powers.
3.20.220 Franchise fee.
Sections: 3.20.230 Grounds for revocation.
Article I. General Provisions 3.20.240 Procedure prior to
3.20.010 Intent. revocation.
3.20.020 Short title. 3.20.'250 Termination or
3.20.030 Captions in chapter- expiration-Procedures.
For reference only. 3.20.260 Receivership and
3.20.040 Compliance with state foreclosure.
and federal laws 3.20.270 Franchise processing
required. costs.
3.20.050 Grantee-Local address
required. Article IV. Regulation of Franchise
3.20.060 Grantee-No recourse 3.20.280 Regulatory authority.
against Grantor. 3.20.290 Regulatory
3.20.070 Nonenforcement by responsibility.
.:' Grantor. 3.20.300 Public usage of the
3.20.080 Severability of system.
provisions. 3.20.310 Grantor reserves right
to determination of
Article II. Definitions public use.
3.20.090 Deli nitions. 3.20.320 Rates for services.
3.20.330 Annual review of
Article III. Grant of Franchise performance.
3.20.100 Grant procedure. 3.20.335 FCC Cable Regulations.
3.20.110 Franchise required. 3.20.340 System and capability
3.20.120 Establishment of review.
franchise requirements. 3.20.350 Access channel
3.20.130 Service area. management.
3.20.140 Use of public streets
and ways. Article V. General Financial and
3.20.150 Term of franchise. Insurance Provisions
3.20.160 Franchise nonexclusive. 3.20.360 Construction bond.
3.20.170 Franchise applicatio~ 3.20.370 Performance bond.
Generally. 3.20.380 Security fund.
3.20.180 Franchise applicatio~ 3.20.390 Indemnification.
Procedure. 3.20.400 Insurance required.
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61 (Dublill 9-94)
Article VI. Design and Construction
Provisions
System design.
Geographical coverage.
Cablecasting facilities.
System construction
schedule.
Remedies for delay in
construction.
Provision of service.
Undergrounding of
cable.
New development
undergrounding.
Undergrounding at
multiple dwelling units.
Street occupancy.
Construction and
technical standards.
Areawide
interconnection.
Article VII. Service Provisions
3.20.530 Service to be provided.
3.20.540 Basic cable service.
3.20.550 Basic radio service.
3.20.560 Institutional service.
3.20.570 Additional subscriber
services.
Local origination
channel(s).
Government access
channel(s).
Educational access
channel(s).
Public access channel(s).
Public access-Closed
circuit network.
Commercial use
channels.
3.20.410
3.20.420
3.20.430
3.20.440
3.20.450
3.20.460
3.20.470
3.20.480
3.20.490
3.20.500
3.20.510
3.20.520
3.20.580
3.20.590
3.20.600
3.20.610
3.20.620
3.20.630
(Dublin 9-94)
62
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3.20.640
Alternative use of
access channels.
Universal connection.
3.20.650
Article VIII. Operation and
Maintenance
3.20.660 Grantor-Right to
inspect books and
records.
3.20.670 Grantee-Records
required.
3.20.680 Grantee-Maintenance
and complaints.
3.20.690 Grantee-Equality in
accessibililty required.
3.20.700 Continuity of service
mandatory.
3.20.710 Grantee rules and
regulations.
3.20.720 Tenant rights.
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Article IX. Rights Reserved to the
Grantor
Right to purchase the
system.
Right of inspection of
records.
Right of inspection of
construction.
Right of intervention.
Right to require
removal of property.
3.20.730
3.20.740
3.20.750
3.20.760
3.20.770
Article X. Rights Reserved to the
Grantee
3.20.780 Right of Grantee.
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Article XI. Franchise Violations
3.20.790 Remedies for franchise
violations.
3.20.800 Remedying franchise
violations-Procedure.
3.20.810 Force majeure-
Grantee's inability to
perform.
Article XII. Reports
3.20.820 Annual reports.
3.20.830 Plant survey report.
3.20.840 Copies of federal and
state reports.
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62-1
(Dublin 5.94)
:.
3.20.850
3.20.860
Public reports.
Complaint file and
reports.
Miscellaneous reports.
Inspection of facilities.
Business office files and
records-Inspection by
Grantor.
Public inspection.
Failure to report.
False statements-
Grantee subject to
remedies.
Cost of reports.
3.20.870
3.20.880
3.20.890
3.20.900
3.20.910
3.20.920
3.20.930
Article I. General Provisions
.
3.20.010 Intent.
A. The city finds that the develop-
ment of cable television and
communications systems has the poten-
tial of having great benefit and impact
upon the residents of the city. Because of
the complex and rapidly changing tech-
nology associated with cable television,
the city further finds that the public con-
venience, 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 shall designate.
It is the intent of this chapter and subse-
quent amendments to provide for and
specify the means to attain the best possi-
ble public interest and public purpose in
these matters and any franchise issued
pursuant to this ordinance shall be
deemed to include this finding as an inte-
gral part thereof.
B. It is further the intention of the City
Council that this chapter shall supersede
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3.20.010
all city ordinances which govern the
grant of a cable television franchise.
(Ord. 30-85 ~ 1)
3.20.020 Short title.
This chapter shall be known and may
be cited as the "city of Dublin cable tele-
vision franchise ordinance." (Ord. 30-85
~ 2)
3.20.030 Captions in chapter-For
reference only.
The captions to sections throughout
this chapter are intended solely to facili-
tate reading and reference. Such captions
shall not affect the meaning or interpreta-
tion of this chapter. (Ord. 30-85 ~ 14.5)
3.20.040 Compliance with state and
federal laws required.
Notwithstanding any other provisions
of the franchise to the contrary, the
Grantee shall at all times comply with all
laws and regulations of the state and
federal government or any administra-
tive agencies thereof; provided, however,
if any such state or federal law or regula-
tion shall require the Grantee to perform
any service, or shall permit the Grantee
to perform any service, or shall prohibit
the Grantee from performing any serv-
ice, in conflict with the terms of the fran-
chise or any law or regulation of the
Grantor, then as soon as possible follow-
ing knowledge thereof, the Grantee shall
notify the Grantor of the point of conflict
believed to exist between such regulation
or law and the laws or regulations of the
Grantor or the franchise. (Ord. 30-85 ~
14.1)
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3.20.050
3.20.050 Grantee-Local address
required.
Grantee shall maintain throughout
the term of the franchise a local address
for service of notices by mail. (Ord. 30-85
9 14.4)
3.20.060 Grantee-No recourse
against Grantor.
The Grantee shall have no recourse
whatsoever against the Grantor or its
officials, boards, commissions, agents, or
employees for any loss, costs, expense, or
damage arising out of any provision or
requirement of the franchise or because
of the enforcement of the franchise,
except for negligence or wilful miscon-
duct on the part of Grantor's officials,
boards, commissions, agents or employ-
ees. (Ord. 30-85 9 14.6)
3.20.070 Nonenforcement by
Grantor.
The Grantee shall not be relieved of its
obligation to comply with any of the
provisions of this chapter by reason of
any failure of the Grantor to enforce
prompt compliance. (Ord. 30-85 9 14.7)
3.20.080 Severability of provisions.
A. Nonmaterial Provisions. If any
provision of this chapter or any related
agreements is held by any court or by any
federal, state, or local agency of compe-
tent jurisdiction to be invalid as conflict-
ing with any federal, state, or local 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, and if said provi.
sion is considered nonmaterial by the
e:
Grantor, said provision shall be consid-
ered a separate, distinct and independent
part of this chapter, and such holding
shall not affect the validity and enfor-
ceability of all other provisions hereof. In
the event that such law, rule or regulation
is subsequently repealed, rescinded,
amended or othexwise changed, so that
the provision hereof or thereof which has
been held invalid or modified is no longer
in conflict with the law, rules and regula-
tions then in effect, said provision shall
thereupon return full force and effect and
shall thereafter be binding on the parties
hereto; provided, that the Grantor shall
give the Grantee thirty (30) days' written
notice of such change before requiring
compliance with said provision.
B. Material Provisions. If any mate-
rial section of this chapter, as determined
by the Grantor is held to be invalid or
preempted by federal, state or county
regulations or laws, the Grantor shall
negotiate with Grantee appropriate mod-
ifications to the franchise to provide rea-
sonable relief to the Grantor from such
invalidity or preemption, including the
payment of damages. If the parties are
unable to reach agreement on such modi-
fications, then the dispute shall be sub-
mitted to a mutually acceptable
arbitrator, in accordance with state law,
who shall determine what modifications
and/or liquidated damages are appropri-
ate. The arbitrator's decision shall be
binding on the parties; provided, that no
decision of the arbitrator shall require the
Grantor or Grantee to be in violation of
any federal or state law or regulation.
(Ord. 30-85 99 14.2, 14.3)
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Article II. Definitions
e,:
3.20.090 Definitions.
For the purpose of this chapter the fol-
lowing terms, phrases, words and their
derivations shall have the meaning given
herein. When not inconsistent with the
context, 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:
"Additional service" means any serv-
ice not included in "basic cable service"
or "basic radio service" or "institutional
service," including, but not limited to,
pay-cable services.
"Agency subscriber" means a sub-
scriber who receives a service in a govern-
ment or public agency, school, or
nonprofit corporation.
"Basic cable service" means the provi-
sion of any service tier which includes the
retransmission of local television broad-
cast signals, and the equipment necessary
for the reception of those signals at a
subscriber's first cable outlet.
"Basic radio service" means the provi-
sion and the transmission of other audio
signals, provided to subscribers at a
monthly rate.
"Broadcast signal" means a television
or radio signal that is licensed by the FCC
and is transmitted over the air to a wide
geographic audience and is received by a
cable communications system.
"Cable communications system" or
"system," also referred to as "cable tele-
vision system" or "CATV system,"
means a facility, consisting of a set of
e_..
3.20.090
closed transmission paths and associated
signal generation, reception, and control
equipment that is designed to provide
cable service which includes video pro-
gramming and which is provided to mul-
tiple subscribers within a community.
"Cable service" means (1) the one-way
transmission to subscribers of: (a) video
programming, or (b) other programming
service; and (2) subscriber interaction, if
any, which is required for the selection of
such video programming or other pro-
gramming service.
"Cablecast signal" means a nonbroad-
cast signal that originates within the facil-
ities of the cable communications
system.
"Channel" means a six (6) Megahertz
(MHz) frequency band, which is capable
of carrying either one (1) standard televi-
sion or video signal, a number of audio,
digital or other non video signals, or some
combination of such signals.
"Class IV channel" means a signaling
path provided by a cable communica-
tions system to transmit signals of any
type from a subscriber terminal to
another point in the cable television sys-
tem.
"Closed-circuit" or "institutional
service" means such video, audio, data
and other services provided to institu-
tional users on an individual require-
ment, private channel basis. These may
include, but not be limited to, two-way
video, audio or digital signals among
institutions, or from institutions to resi-
dential subscribers.
"Commence construction" means
that time and date when construction of
the cable communications system is con-osidered to have commenced, which shall
65
3.20.090
be when the first connection is physically
made to a utility pole, or undergrounding
of cables is initiated, after preliminary
engineering (strand mapping) and after
all necessary permits and authorizations
have been obtained.
"Commence operation" means that
time and date when operation of the
cable communications system is consid-
ered to have commenced which shall be
when sufficient distribution facilities
have been installed so as to permit the
offering of full service to at least ten per-
cent (10%) of the dwelling units located
within the service area.
"Commercial subscriber" means a
subscriber who receives a service in a
place of business, where the service may
be utilized in connection with a business,
trade, or profession.
"Converter" means an electronic
device which converts signal carriers
from one form to another.
"Council" means the governing bOdy
of the city of Dublin.
"Educational channel" or "educa-
tional access channel" means any lOCally
originated non broadcast channel where
local accredited educational institutions
are the primary designated program-
mers.
"FCC" means the Federal Commu-
nications Commission and any legally
appointed or elected successor.
"Franchise" means an initial authori-
zation, or renewal thereof, issued by a
franchising authority, which authorizes
the construction or operation of a cable
system along the public way within all or
a specified area in the city. Any such
authorization, in whatever form granted,
shall not mean and include any license or
e-.
permit required for the privilege of trans-
acting and carrying on a business within
the city as required by other ordinances
and laws of this city.
"Franchise agreement" means a fran-
chise award ordinance, or a contractual
agreement, containing the specific provi-
sions of the franchise granted.
"Franchise fee" means the fee paid by
the Grantee to the Grantor in considera-
tion of the use of the public streets and
rights-of-way.
"Government channel" or "govern-
ment access channel" means any locally
originated nonbroadcast channel where
local government agencies are the pri-
mary designated programmers.
"Grantee" means any "person"
receiving a franchise pursuant to this
ordinance and under the granting fran-
chise ordinance, and its lawful successor,
transferee or assignee.
"Grantor" or "city" means the city of
Dublin, as represented by the City Coun-
cil or any delegate acting within the scope
of its jurisdiction.
-"Gross annual receipts" means the
annual gross revenues received by the
Grantee from all sources of operations of
the cable communications system in the
franchise area, except that any sales,
excise or other taxes collected for direct
pass-through to local, state or federal
government shall not be included.
"Initial service area" means the area of
the city which will receive service ini-
tially, as set forth in the franchise agree-
ment.
"Installation" means the connection
of the system from feeder cable to sulJ.
scribers' terminals, and the provision of
servIce.
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"Leased" or "commercial use chan-
nel" means any channel or portion of a
channel available for lease and program-
ming by persons or en tities other than the
Grantee, as defined by federal law.
"Local origination channel" means
any channel where the Grantee is the
primary designated programmer, and
provides video programs to subscribers.
"Monitoring" means observing a
communication signal, or the absence of
a signal, where the observer is neither the
subscriber, the Grantee nor the program-
mer, whether the signal is observed by
visual or electronic means, for any pur-
pose whatsoever. Monitoring shall not
include systemwide, nonindividually
addressed sweeps of the system for pur-
poses of verifying system integrity, con-
trolling return paths transmissions,
billing for pay-cable, or determining
illegally received signals.
"Non broadcast signal" means a signal
that is transmitted by a cable commu-
nications system and that is not involved
in an over-the-air broadcast transmission
path.
"Open channel" means any channel
that can be received by all subscribers,
without the necessity for special equip-
ment.
"Pay-cable" or "pay-television"
means the delivery to subscribers, over
the cable communications system, of
television signals for a fee or charge to
subscribers over and above the charge for
basic subscriber service, or a per pro-
-gram, per channel, or other subscription
basis.
"Penetration" means the result
expressed in the percentage obtained by
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3.20.090
dividing the total number of potential
subscribers in the franchise area into the
number of subscribers receiving service.
"Person" means an individual, part-
nership, association, organization, cor-
poration or any lawful successor,
transferee or assignee of said individual,
partnership, association, organization or
corporation.
"Private channel," or "closed-circuit
channel" means any channel which is
available only to subscribers who are pro-
vided with special converter or terminal
equipment to receive signalS on that
channel.
"Programmer" means a person who
produces or otherwise provides program
material or information for transmission
by video, audio, digital, or other signals,
either live or from recorded tapes or
other storage media, to subscribers, by
means of the cable communications sys-
tem.
"Public access channel" or "commu-
nity access channel" means any channel
where any member of the general public
or any local noncommercial organiza-
tion may be a programmer, without
charge, on a first-come, first-served, non-
discriminatory basis, in accordance with
the terms of the franchise agreement.
"Reasonable notice" shall be written
notice addressed to the Grantee at its
principal office or such other office as the
Grantee has designated to the Grantor as
the address to which notice should be
transmitted to it, which notice shall be
certified and postmarked not less than
ten (10) days prior to that day in which
the party giving such notice shall com-
mence any action which requires the giv-
ing of notice. In computing said ten (10)
67
3.20.090
days, Saturdays, Sundays and holidays
recognized by the Grantor shall be
excluded.
"Reasonable order" means written
orders not excessive or extreme as to
costs or time to comply, governed by
sound thinking.
"Resident" means any person residing
in the city as otherwise defined by
applicable law.
"Residential subscriber" means a sub-
scriber who receives a service in an indi-
vidual dwelling unit, where the service is
not to be utilized in connection with a
business, trade, or profession.
"Sale" means and includes any sale,
exchange, or barter.
"School" means any nonprofit educa-
tional accredited institution including
primary and secondary schools, colleges
and universities, both public and private.
"Service area" means the entire geo~
graphic area within the city.
"Service tier" means a category of
cable service or other services provided
by a cable operator and for which a sepa-
rate rate is charged by the cable operator.
"State" means the state of California.
"Street" means and includes but not
be limited to each of the following which
have been dedicated to the public or here-
after dedicated to the public and main-
tained under public authority or by
others and located within the city limits:
streets, roadways, highways, avenues,
lanes, alleys, sidewalks, easements,
rights-of-way and similar public property
and areas that the Grantor shall permit to
be included within the definition of street
from time to time.
"Subscriber" means any person who
subscribes to, for any purpose, a service
..'....
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provided by the Grantee through the
operation of the cable communications
system.
"Substantially completed" means that
sufficient distribution facilities have been
installed by the Grantee so as to permit
the offering of full network service to at
least ninety percent (90%) of the poten-
tial subscribers in the service area.
"Tapping" means observing a two-
way communications signal exchange,
where the observer is neither of the com-
municating parties, whether the
exchange is observed by visual or elec-
tronic means, for any purpose what~
soever. (Ord. 30-85 9 3)
Article III. Grant of Franchise
3.20.100 Grant procedure.
A. In the event that Grantor shall
grant to a Grantee a nonexclusive,
revocable franchise to construct, operate,
maintain, and reconstruct, a cable com-
munications system within the franchise
area, said franchise shall constitute both
a right and an obligation to provide the
services of a cable commmunications
system as required by the provisions of
this chapter and the franchise agreement.
The franchise agreement shall include
those provisions ofthe Grantee's applica-
tion for franchise that are finally negoti-
ated and accepted by the Grantor and
Grantee.
B. Any franchise granted under the
terms and conditions contained herein
shall be consistent with federal laws and
regulations and state general laws and
regulations. In the event of conflict
between the terms and conditions of the
franchise and the terms and conditions
."
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68
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on which the Grantor can grant a fran-
chise, the applicable federal and state
laws and regulations, shall, without
exception, control.
C. Any franchise granted is made sub-
ject to the general ordinance provisions
now in effect or hereafter made effective.
Nothing in the franchise shall be deemed
to waive the requirements of the other
codes and ordinances of the Grantor
regarding permits, fees to be paid or man-
ner of construction. (Ord. 30-85 9 4.1)
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3.20.110 Franchise required.
No cable communications system
shall be allowed to occupy or use the
streets in the franchise area or be allowed
to operate without a franchise in accord-
ance with the provisions of this chapter.
(Ord. 30-85 9 4.2)
3.20.120 Establishment of franchise
requirements.
The Grantor may establish appropri-
ate requirements for new franchises or
franchise renewals, and may modify
these requirements from time to time to
reflect changing conditions and state of
art in the cable television industry. Such
requirements shall not be retroactive to
franchises then in effect. (Ord. 30-85 9
4.3)
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3.20.130 Service area.
The service area shall be the entire ter-
ritory defined in the franchise agreement.
The initial service area shall be that por-
tion of the franchise territory scheduled
to receive initial service, as stated in the
franchise agreement. (Ord. 30-85 9 4.4)
3.20.100
3.20.140 Use of public streets and
ways.
For the purpose of operating and
maintaining a cable communications
system in the franchise area, and subject
to the provisions of Section 3.20.500
herein, the Grantee may erect, install,
construct, repair, replace, reconstruct,
and retain in, on, over, under, upon,
across, and along the public streets and
ways within the franchise territory such
wires, cables, conductors, ducts, con-
duits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and
other property and equipment as are nec-
essary and appurtenant to the operation
of the cable communications system.
Prior to construction or alteration, how-
ever, Grantee shall in each the case file
plans with the appropriate Grantor agen-
cies and local utility companies, and
receive written approval before proceed-
ing. Grantor shall in any event comply
with all applicable city construction
codes and procedures. (Ord. 30-85 9 4.5)
3.20.150 Term of franchise.
The term of any franchise and all
rights, privileges. obligations and
restrictions pertaining thereto shall be as
stated in the franchise agreement, unless
terminated sooner as hereinafter pro-
vided. The effective date of the franchise
shall be the date of execution of the fran.
chise agreement by the Grantor, subject
to prior execution by the Grantee. (Ord.
30-85 9 4.6)
3.20.160 Franchise nonexclusive.
Any franchise granted shall be nonex-
clusive. The Grantor specifically reserves
69
3.20.160
the right to grant, at any time, such addi-
tional franchises for a cable communica.
tions system as it deems appropriate.
(Ord. 30-85 ~ 4.7)
3.20.170 Franchise applications-
Generally.
Applicants for a franchise shall submit
to the Grantor written applications uti-
lizing the standardized format provided
by the Grantor, at the time and place
designated by the Grantor for accepting
applications, and including the desig-
nated application fee. (Ord. 30.85 ~ 4.8)
3.20.180 Franchise applications-
Procedure.
All franchise applications when filed
shall be available for public inspection at
places designated by the Grantor. No
later than ninety (90) days after filing, a
public hearing shall be held on the
application. A decision shall be made by
the Grantor not later than ninety (90)
days after such hearing based upon an
evaluation of the application(s), the hear-
ing, and other: information that the Gran-
tor may deem relevant. Grantor may
grant one or more franchises, or may
decline to grant any franchise, as it deter-
mines to be in the best public interest.
(Ord. 30-85 ~ 4.9)
3.20.190 Transfer of ownership or
control.
A. Transfer of Franchise. Any fran-
chise granted hereunder cannot in any
event be sold, transferred, leased,
assigned or disposed of, inclUding but not
limited to, by forced or voluntary sale,
merger, consolidation, receivership, or
other means without the prior consent of
...
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the Grantor. Such consent as required by
the Grantor, shall, however, not be
unreasonably withheld.
B. Ownership or Control. 1. The
Grantee shall promptly notify the Gran-
tor of any proposed change in, or transfer
of, or acquisition by any other party of,
control of the Grantee. The word "con-
trol" as used herein is not limited to
major stockholders but includes actual
working control in whatever manner
exercised. A rebuttable presumption that
a transfer of control has occurred shall
arise upon the acquisition or transfer by
any person or group of persons of ten
percent (10%) or more of the beneficial
ownership interest of the Grantee. Every
change, transfer, or acquisition of control
of the Grantee shall make the fraQ.chise
subject to cancellation unless and until
the Grantor shall have consented thereto,
which consent will not be unreasonably
wi thheld. For the purpose of determining
whether it shall consent to such change,
transfer, or acquisition of control, the
Grantor may inquire into the qualifica.
tions of the prospective controlling party,
and the Grantee shall assist the Grantor
in any such inquiry.
2. In seeking the Grantor's consent to
any change in ownership or control, the
Grantee shall have the responsibility:
a. To show to the satisfaction of the
Grantor whether the proposed pur-
chaser, transferee, or assignee (the pro-
posed transferee), which in the case of a
corporation, shall include all officers,
directors, employees and all persons hav-
ing a legal or equitable interest in five
percent (5%) or more of its voting stock,
or any of the proposed transferee's prin-
cipals:
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i. Has ever been convicted or held lia-
ble for acts involving moral turpitude
including, but not limited to any vio-
lation of federal, state or local law or
regulations, or is presently under an
indictment, investigation or complaint
charging such acts,
ii. Has ever had a judgment in an
action for fraud, deceit or misrepresenta-
tion entered against it, her, him, or them
by any court of competent jurisdiction,
or
iii. Has pending any legal claim, law-
suit or administrative proceeding arising
out of or involving a cable system;
b. To establish, to the satisfaction of
the Grantor, the financial solvency of the
proposed transferee by submitting all
current financial data for the proposed
transferee which the Grantee was
required to submit in its franchise
application, and such other data as the
Grantor may. request. Financial state-
ments shall be audited, certified and
qualified by an independent certified
public accountant;
c. To establish to the satisfaction of
the Grantor that the financial and tech-
nical capability of the proposed trans-
feree is such as shall enable it to maintain
and operate the cable system for the
remaining term of the franchise under
the existing franchise terms.
C. The Grantor agrees that any finan-
cial institution having a pledge of the
franchise or its assets for the advance-
ment of money for the construction andl
or operation of the franchise shall have
the right to notify the Grantor that it or its
designee satisfactory to the Grantor will
take control and operate the cable com-
munications system, in the event of a
.
3.20.190
Grantee default in its financial obliga-
tions. Further, said financial institution
shall also submit a plan for such opera-
tion that will insure continued service
and compliance with all franchise
requirements during the term the finan-
cial institution exercises control over the
system. The financial institution shall
not exercise control over the system for a
period exceeding one (I) year unless
extended by the Grantor in its discretion
and during said period of time it shall
have the right to petition the Grantor to
transfer the franchise to another Grantee.
If the Grantor finds that such transfer
after considering the legal, financial,
character, technical and other public
interest qualities of the applicant are sat-
isfactory, the Grantor will transfer and
assign the rights and obligations of such
franchise. The consent of the Grantor to
such transfer shall not be unreasonably
withheld.
D. The consent or approval of the
Grantor to any transfer of the Grantee
shall not constitute a waiver or release of
the rights of the Grantor in and to the
streets, and any transfer shall by its terms
be expressly subordinate to the terms and
conditions of any franchise.
E. In the absence of extraordinary cir-
cumstances, the Grantor will not
approve an y transfer of assignment of the
franchise prior to substantial completion
of construction of the proposed system.
F. In no event shall a transfer of
ownership or control be approved with-
out the successor in interest becoming a
signatory to the franchise agreement.
(Ord. 30-85 S 4.10)
71
3.20.200
3.20.200 Franchise renewal.
Franchise renewal shall be in accord~
ance with federal law. Nothing in any
franchise agreement shall require
renewal by the Grantor after the term of
the franchise has expired, nor shall
renewal be presumed as a matter of
vested interest.
A. Term. The renewal term of any
franchise renewal shall not be greater
than the initial term.
B. Renewal Procedure. 1. The fran-
chise renewal procedure shall be in
accordance with applicable law. Based on
the criteria and procedures required by
applicable law, Grantor may decide to
renew the franchise under appropriate
terms and conditions, or not to renew the
franchise.
2. If Grantor's decision is not to renew
the franchise, Grantor may initiate pub-
lic solicitations for applications for a new
franchise. The original Grantee shall not
be precluded from submitting such an
application.
3. In any renewal or public solicita-
tion, the Grantor may require facilities
and equipment, including a system
upgrade or any other conditions appro-
priate in the light of the needs of the
community, and applicable law. (Ord.
30-85 9 4.11)
3.20.210 Police powers.
A. In accepting a franchise, the
Grantee acknowledges that its rights
hereunder are subject to the police power
of the Grantor to adopt and enforce gen-
eral ordinances necessary to the safety
and welfare of the public; and it agrees to
e-:-
comply with all applicable general laws
and ordinances enacted by the Grantor
pursuant to such power.
B. Any conflict between the provi-
sions of this chapter and any other
present or future lawful exercise of the
Grantor's police powers shall be resolved
in favor of the latter, except that any such
exercise that is not of general application
in the jurisdiction or applies exclusively
to any cable communications system
franchise which contains provisions
inconsistent with this franchise shall pre-
vail only if upon such exercise the Gran-
tor declares an emergency exists
constituting a danger to health, safety,
property or general welfare or such exer-
cise is mandated by law. (Ord. 30-85 9
4.12)
...~
..
. ..
3.20.220 Franchise fee.
A. Annual Franchise Payment. A
Grantee of a franchise hereunder shall
pay to the Grantor an annual fee in an
amount as designated in the franchise
agreement. Such payment shall com-
mence as of the effective date of the fran-
chise. The Grantor, if it so requests,
annually shall be furnished, within sixty
(60) days of the close of the calendar year,
a statement, audited and certified by a
certified public accountant, reflecting the
total amounts of gross receipts and all
payments, deductions and computations
for the period covered by the payment.
Grantor shall have the right to conduct
an independent audit of Grantee's
records, and if such audit indicates a
franchise fee underpayment of two per-
cent (2%) or more, the Grantee shall
assume all reasonable costs of such an
audit.
.:
72
.
e,
B. Acceptance by Grantor. No accept-
ance 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
chapter or for the performance of any
other obligation of the Grantee.
C. Failure to Make Required Pay-
ment. In the event that any franchise pay-
ment or recomputed amount is not made
on or before the dates specified herein, or
paid immediately upon notification,
Grantee may be required to pay as addi-
tional compensation:
I. An interest charge, computed from
such due date, at an annual rate equal to
the average prime interest rate for the
period in question;
2. A sum of money equal to five per-
cent (5%) of the amount due in order to
defray those additional expenses and
costs incurred by the Grantor by reason
of delinquent payment.
D. Payment due the Grantor under
this provision shall be computed
annually, for the preceding calendar year.
Each annual payment shall be due and
payable no later than thirty (30) days
after the close of the calendar year. Each
payment shall be accompanied by a brief
report showing the basis for the computa-
tion and such other relevant facts as may
be required by the Grantor.
E. Any Grantee pass through or
itemization of franchise fee costs on sub-
scribers' bills shall be in accordance with
federal law. (Ord. 30-85 ~ 4.13)
e-
3.20.230 Grounds for revocation.
The Grantor reserves the right to
revoke any franchise granted hereunder
':.'
3.20.220
and rescind all rights and privileges asso-
ciated with the franchise in the following
circumstances, each of which shall repre-
sent a default under this chapter and a
material breach of the franchise:
A. Ifthe Grantee should default in the
performance of any ofits material obliga-
tions under this chapter or the franchise
agreement, subject to the provisions of
Section 3.20.810;
B. If the Grantee should fail after
receiving thirty (30) days' written notice,
to provide or maintain in full force and
effect, the liability and indemnification
coverages or the security fund or bonds as
required herein;
C. If any court of competent jurisdic-
tion, or any federal or state regulatory
body by rules, decisions or other action
determines that any material provision
of the franchise documents, including
this chapter. is invalid or unenforceable
prior to the commencement of system
construction;
D. If the Grantee ceases to provide all
services for any reason within the control
of the Grantee over the cable commu-
nications system;
E. If the Grantee wilfully violates any
of the material provisions of this chapter
or the franchise agreement, or is proven
to have practiced any fraud or deceit
upon the Grantor;
F. If the Grantee's construction sched-
ule is delayed for more than eighteen (18)
months later than the schedule contained
in the franchise agreement and Grantor
finds that the delay was not excusable
under the provisions of Section 3.20.810;
G. If the Grantee becomes insolvent,
unable or unwilling to pay its debts, or
73
3.20.230
upon listing of an order for relief in favor
of Grantee in a bankruptcy proceeding.
(Ord. 30-85 ~ 14.4 (a))
3.20.240 Procedure prior to
revocation.
A. The Grantor may make written
demand that the Grantee do so comply
with any such requirement, limitation,
term, condition, rule or regulation or cor-
rect any action deemed cause for revoca-
tion. If the fail ure, refusal or neglect of
the Grantee continues for a period of
thirty (30) days following such written
demand, the Grantor may place its
request for termination of the franchise
upon a regular Council meeting agenda.
The Grantor shall cause notice to be
served upon such Grantee, at least ten
(10) days prior to the date of such meet-
ing, a written notice of this intent to
request such termination, and the time
and place of the meeting, notice of which
shall be published at least once, ten (10)
days before such meeting in a newspaper
of general circulation within the fran-
chise area.
B. The Grantor shall hear any persons
interested therein, and shall determine,
based upon substantial evidence,
whether the Grantee has committed a
material breach of this chapter or the
franchise agreement, and, if so, whether
such breach was wilful.
C. If the Grantor determines that the
Grantee has committed a material
breach, which was not wilful, the Grantor
shall direct the Grantee to take appropri-
ate remedial action within such time and
manner and upon such terms and condi-
tions as are reasonable under the circum-
stances.
e
D. Ifthe Grantor determines that the
Grantee has committed a material
breach which was wilful, then the Gran-
tor may, if the material breach is capable
of being cured by the Grantee, direct the
Grantee to take appropriate remedial
action within such time and manner and
upon such terms and conditions as the
Grantor shall determine are reasonable
under the circumstances.
E. If the Grantee fails to begin appro-
priate remedial action upon receiving
notification of a material breach by the
Grantor then the Grantor may, by reso-
lution, declare that the franchise of such
Grantee shall be terminated.
F. In the event that the Grantor
declares, by resolution, that the franchise
of a Grantee shall be terminated, then
such Grantee shall have the right to have
such declarataion of termination
reviewed in a court of appropriate juris-
diction. No such termination shall be
effective until a final decision is reached
by the court. (Ord. 30-85 94.14 (b))
.:"
3.20.250 Termination or
expiration- Procedures.
A. Disposition of Facilities. In the
event a franchise expires, is revoked, or
otherwise terminated, the Grantor may
order the removal of the aboveground
system facilities from the franchise area
within a reasonable periOd of time as
determined by the Grantor or require the
original Grantee to maintain and operate
its network until a subsequent Grantee is
selected and a subsequent or modified
cable system becomes operational.
B. Restoration of Property. In remov-
ing its plant, structures and equipment,
the Grantee shall refill, at its own
.'
- . ..- ~
.. &-.
74
...
. .
~:.
expense, any excavation that shall be
made by it and shall leave all public ways
and places in as good condition as that
prevailing prior to the Grantee's removal
of its equipment and appliances without
affecting the electrical or telephone cable
wires, or attachments. Any liability,
indemnity and insurance, and the
security fund and bonds provided shall
continue in full force and effect during
the period of removal and until full com-
pliance by the Grantee with the terms
and conditions of this section.
C. Restoration by Grantor - Reim-
bursement of Costs. In the event of a
failure by the Grantee to complete any
work required by subsection A and/or
subsection B of this section, or any other
work required by Grantor by law or <?rdi-
nance within the time as may be estab-
lished and to the satisfaction of the
Grantor, the Grantor may cause such
work to be done and the Grantee shall
reimburse the Grantor the cost thereof
within thirty (30) days after receipt of an
itemized list of such costs or the Grantor
may recover such costs through any
security fund or bonds provided by
Grantee. The Grantor shall be permitted
to seek legal and equitable relief to
enforce the provisions of this section.
D. Extended Operation. Upon either
the expiration or revocation of a fran-
chise, the Grantor may require the
Grantee to continue to operate the cable
communications system for a defined
period oftime not to exceed twenty-four
(24) months from the date of such expira-
tion or revocation. The Grantee shall, as
trustee for its successor in interest, con-
tinue to operate the cable communica-
tions system under the terms and
.
3.20.250
conditions of this chapter and the fran-
chise agreement and to provide the reg~ .
ular subscriber service and any and all of
the services that may be provided at that
time. The Grantor shall be permitted to
seek legal and equitable relief to enforce
the provisions of this section.
E. Grantor's Right Not Affected. The
termination and forfeiture of any fran-
chise shall in no way affect any of the
rights of the Grantor under the franchise
or any provision of law. (Ord. 30-85 9
4.15)
3.20.260 Receivership and
foreclosure.
A. Any franchise herein granted shall,
at the option of the Grantor cease and
terminate one hundred twenty (120) days
after the appointment of a receiver or
receivers or trustee or trustees to take
over and conduct the business of the
Grantee, whether in a receivership,
reorganization, bankruptcy or other
action or proceeding, unless such receiv-
ership or trusteeship shall have been
vacated priorto the expiration of the one
hundred twenty (120) days, or unless:
I. Such receivers or trustees shall
have, within one hundred twenty (120)
days after their election or appointment,
fully complied with all terms and provi-
sions of this chapter and the franchise
granted pursuant hereto, and the receiv-
ers or trustees within the one hundred
twenty (120) days shall have remedied all
defaults under the franchise; and
2. Such receivers or trustess shall,
within the one hundred twenty (120)
days, execute an agreement duly
approved by the court having jurisdic-
tion on the premises, whereby such
75
3.20.260
receivers or trustees assume and agree to
be bound by each and every term, provi-
sion and limitation of the franchise
agreement.
B. In the case of a foreclosure or other
involuntary sale of the plant, property
and equipment of the Grantee, or any
part thereof, the Grantor may serve
notice of termination upon the Grantee
and to the purchaser at such sale, in
which event the franchise and all rights
and privileges of the Grantee hereunder
shall cease and terminate thirty (30) days
after service of such notice, unless:
I. The Grantor shall have approved
the transfer of the franchise, as and in the
manner in this chapter provided; and
2. Such successful purchaser shall
have covenanted and agreed with the
Grantor to assume and be bound by all
the terms and conditions of the franchise
agreement. (Ord. 30-85 ~ 4.16)
3.20.270 Franchise processing costs.
A. For either a new franchise award or
a franchise renewal. costs to be borne by
Grantee shall include, but shall not be
limited to, all costs of publications of
notices prior to any public meeting pro-
vided for pursuant to a franchise, devel-
opment and publication of relevant
franchise ordinances and franchise
agreement, fees. and any cost not covered
by the application fees, incurred by the
Grantor in its preparation of proposal
solicitation documents, evaluation of all
applications, including, but not limited
to, consultant and attorney fees.
B. These franchise processing costs
are over and above the construction
inspection and permit fees specified in
Section 3.20.510 AI. (Ord. 30-85 ~ 4.17)
.. "
e
Article IV. Regulation of Franchise
3.20.280 Regulatory authority.
The Grantor shall exercise appropriate
regulatory authority under the provi~
sions of this chapter and applicable law. If
the franchise area served by the cable
comm unications system also serves
other contiguous or neighboring com-
munities, Grantor may, at its sole option,
participate in a joint regulatory agency,
with delegated responsibility in the area
of cable and related communications.
(Ord. 30-85 ~ 5.1)
3.20.290 Regulatory responsibility.
The Grantor, acting alone or acting
jointly with other Grantors, may exercise
or delegate the following regulatory
responsibility:
A. Administering and enforcing the
provisions of the cable communications
system franchise(s);
B. Coordination of the operation of
government and educational channels;
C. Providing technical, programming
and operational support to public agency
users, such as government departments,
schools and health care institutions;
D. Establishing, jointly with the
Grantee, procedures and standards for
use of channels dedicated to public use
and sharing of public facilities, if pro-
vided for in any franchise agreement;
E. Planning, jointly with the Grantee,
expansion and growth of public benefit
cable services;
F. Analyzing the possibility of inte-
grating cable communications with other
local, state or national telecommunica~
tions networks;
e-,
,.
". ...
".". -. ~ .
". -
76
.'
G. Formulating and recommending long-
range telecommunications policy. (Ord. 3()'"
85 ~ 5.2)
e:
3.20.300 Public usage of the
system.
If so specified in the franchise agreement.
the Grantor may utilize a portion of the
cable communications system capacity and
associated facilities and resources. to devel-
op and provide noncommercial cable servic-
es that will be in the public interest. In
furtherance of this purpose. the Grantor may
establish a commission. public coIpOration.
or other entity to receive and allocate facili-
ties. support funds and other considerations
provided by the Grantee. and/or others.
Such an entity. if established. may be dele-
gated the following responsibilities:
A. Receive and utilize or reallocate for
utilization. channel capacity. facilities. fund-
ing and other support provided specifically
for public usage of the cable communica-
tions system;
B. Review the status and progress of
each service developed for public benefit;
C. Reallocate resources on a periodic
basis to conform with changing priorities
and public needs;
D. Report to the Grantor annually on the
utilization of resources. the new public
services developed and the benefits
achieved for the city and its residents. (Ord.
30-85 ~ 5.3)
e,.
3.20.310 Grantor reserves right to
determination of public
use.
The Grantor reserves the right, at its
discretion. from time to time. to determine
if the entity described in Section 3.20.300
is performing its purposes in a manner
3.20.290
satisfactory to the Grantor. and if it is not.
the Grantor may receive and reallocate all
or a portion of the channel capacity. opera-
tions appropriation. and capital appropria-
tion. including any facilities and equipment
purchased previously with such appropria-
tion. to another entity. A new entity shall be
required to comply in all respects with the
legal responsibilities described in Section
3.20.300. (Ord. 30-85 ~ 5.4)
3.20.320 Rates for service.
A. The Grantee shall establish rates for
its services that must be applied fairly with-
in all classes of subscribers in the franchise
area.
B. Grantor may regulate basic cable
service rates for the period pennitted by
applicable law.
C. Schedule of Rates. The Grantee shall
file and maintain current with the Grantor.
a complete schedule of subscriber rates and
charges.
D. Disconnections. There shall be no
charge for disconnection from the system.
(Ord. 30-85 ~ 5.5)
3.20.330 Annual review of
performance.
At Grantor's sole option. within ninety
(90) days of the first anniversary of the
effective date of each franchise. and each
year thereafter throughout the term of the
franchise. the Grantor and Grantee shall
meet publicly to review the performance.
quality of service and rates of the cable
communications system. The reports re-
quired in Article vm regarding subscriber
complaints. the records of performance tests
and any opinion survey report may be uti-
lized as the basis for review. In addition.
any subscriber may submit appropriate
77
(Dublin 5.94)
3.20.330
infonnation or complaints during the review
meetings, either orally or in writing, and
these shall be considered:
A. Within (30) days after the conclusion
of the system perfonnance review meetings,
Grantor shall issue a report with respect to
the adequacy of system perfonnance and
quality of service. If substantial inadequa-
cies are found, Grantor may direct Grantee
to correct the inadequacies within a reason-
able period of time;
B. Failure of Grantee, after due notice,
to correct the inadequacies shall be consid-
ered a material breach of the franchise, and
Grantor may, at its sole discretion, exercise
any remedy within the scope of this chapter
considered appropriate. (Ord. 30-85 ~ 5.6)
3.20.335 FCC Cable Regulations.
A. Incoqxuation of FCC Cable Regula-
tions.
Grantor adopts and incorporates by refer-
ence the FCC Cable Regulations implement-
ing the Cable Television Consumer Protec-
tion and Competition Act of 1992 (47
U.S.C 521 et seq.), including but not limit-
ed to those rules and regulations regarding
rate regulation as set forth in 47 CPR
76.9<X) to 76.985 and regarding customer
service standards as set forth in 47 CPR
76.309. Amendments to FCC rules and
regulations implementing the Cable Act of
1992 made after the effective date of this
section shall also be incorporated by refer-
ence without further legislative action by
the Grantor.
The FCC Cable Regulations supersede
any different or inconsistent provisions in
Chapter 3.20 or in the franchise granted
under it
A copy of the FCC regulations is on file
in the City Clerk's office.
(Dublin 5-94)
e:-
B. Implementation. Grantor shall imple-
ment the FCC Cable Regulations in the city
with the existing Grantee and any future
franchisees. In implementing the Regula-
tions, Grantor will ensure a reasonable
opportunity for consideration of the views
of interested parties. (000. 3-94 ~ 1)
3.20.340 System and capability
review.
To provide for technological, economic,
and regulatory changes in the state of the
art of cable communications, to facilitate
renewal procedures, to promote the maxi-
mum degree of flexibility in the cable sys-
tem, and to achieve a continuing, advanced
modem system, the following system and
services review procedures are established:
A. At Grantor's sole option, the Grantor
and Grantee shall hold a system and capa-
bility review session within sixty (60) days
before or after the third armiversary date of
the franchise agreement Subsequent system
review sessions shall be scheduled by the
Grantor each three (3) years thereafter;
B. Sixty (60) days prior to the scheduled
system and capability review session, Grant-
ee shall submit a report to Grantor indicat-
ing the following:
1. All cable systems services that are
being provided on an operational basis,
excluding tests and demonstrations, to cities
in the United States with populations above
ten thousand (10,000), that are not provided
to the Grantor,
2. A plan for provision of such services,
or a justification indicating why such servic-
es are not feasible for the franchise area;
C. Topics for discussion and review at
the system and capability review sessions
shall include, but shall not be limited to,
application of new technologies. system
e:-
.
78
,..
penonnance, subscriber complaints, user
complaints, rights of privacy, amendments
to the franchise, undergrounding processes,
developments in the law, and regulatory
constraints;
D. Either the Grantor or the Grantee
may select additional topics for discussion
at any review session;
E. Not later than sixty (60) days after
the conclusion of each system and capabili-
ty review session, Grantor shall issue a
report, including specifically a listing of any
cable seJvices not then being provided to
the Grantor that are considered teclmically
and economically feasible. Grantor may
request Grantee to provide the system capa-
bility for such services within a reasonable
time, under reasonable rates and conditions.
(Ord. 3D-85 ~ 5.7)
".
3.20.350 Access channel
management.
A. Intent. It is the intent of the Grantor
to ensure that access and community
..-
3.20.340
78-1
(Dublin 5-94)
.
e'-
channels provided for in any franchise
agreement, shall be managed in the best
public interest, so that programming on
such channels will be free of censorship,
open to all residents, and available for all
forms of public expression, community
information and debate of public issues.
Pursuant to these objectives, the Grantor
may delegate the responsibility for access
channel management to a nonprofit
entity which may include, but not be lim-
ited to, any of the following:
I. A nonprofit public corporation;
2. An access management commis-
sion or committee, appointed by Gran-
tor, and representing a broad spectrum of
the community;
3. An established nonprofit entity
with special cablecasting capability, such
as a local or regional community college.
B. Functions. The entity designated to
manage the access channels shall have
the following functions:
I. Responsibility for program produc-
tion for management of the public access
channel and all other channels as may in
the franchise agreement be designated for
community-based programming. Com-
munity channels may include govern-
ment and educational access channels, as
designated in the franchise agreement;
2. To assure that the public access and
community channels are made available
to all residents of the franchise area on a
nondiscriminatory, first-come, first-
served basis;
3. To assure that no censorship or
control over program content of the pub-
lic access and community channels exist,
except as necessary to comply with all
applicable laws, rules and regulations,
e--
3.20.350
including the prohibition of material that
is obscene, or contains commercial
advertising, or conducts a lottery;
4. To devise, establish, and administer
all rules, regulations, and procedures per-
taining to the use and scheduling of the
public access and community chanpels;
5. To prepare, in conjunction with the
Grantee, such regular or special reports
as may be required or desireable;
6. To hire and supervise staff;
7. To make all purchases of materials
and equipment that may be required;
8. To develop additional sources of
funding, such as foundation or federal or
state grants, to further PEG access;
9. To perform such other functions
relevant to the public access channels as
may be appropriate;
10. To establish budgets on an annual
basis, and to utilize funds and resources
received from the Grantor or the public
usage entity designated in Section
3.20.300, for the purpose of access pro-
gramming.
C. Access Rules. The access manage-
ment entity shall complete a set of rules
for the use of the access and community
channels which shall be promptly for-
warded to the Grantor. The rules shall be
prepared in cooperation with the
Grantee, and confirmed by agreement
between the access management entity
and the Grantee. The rules shall, at a
minimum, provide for:
I. Access on a first-come, first-served
nondiscriminatory basis for all residents
of the franchise area;
2. Prohibition of commercial use;
3. Pro~ibition of any presentation of
lotteryinf<;>rmation, or obscene or inde-
cent material;
79
3.20.350
4. Public inspection of the log of pro-
ducers, which shall be retained by the
Grantor or its designee for a period of
four (4) years;
5. Procedures by which individuals or
groups who violate any rule may be pre-
vented from further accesss to the chan~
nel;
6. Free use of such reasonable
amounts of channel time, cablecasting
facilities, and technical support as pro-
vided for in the agreement between the
access management entity and the
Grantee.
D. Access Management Entity
Reports to Grantor. The access manage-
ment entity shall provide a report to the
Grantor, at least annually, indicating
achievements in community-based pro-
gramming and services, and also shall
provide a special report each time
Grantee requests an increase in rates that
are subject to Grantor regulation, indi-
cating the level and quality of Grantee's
support during the period elapsed since
any previous rate increase was imple-
mented. (Ord. 30-85 ~ 5.8)
Article V. General Financial and
Insurance Provisions
3.20.360 Construction bond.
A. Within thirty (30) days after the
gIaming of a franchise and prior to the
commencement of any construction
work by the Grantee, the Grantee may be
required to file with the Grantor a con-
struction bond in the amount specified in
the franchise agreement in favor of the
Grantor and any other person who may
claim damages as a result ofthe breach of
any duty by the Grantee assured by such
bond.
B. Such bond as contemplated herein
shall be in the form approved by the
Grantor and shall, among other matters,
cover the cost of removal of any proper-
ties installed by the Grantee in the event
the Grantee shall default in the perform-
ance of its franchise obligation.
C. In no event shall the amount of the
bond be construed to limit the liability of
the Grantee for damages.
D. Grantor, at its sole option, may
waive this requirement, or permit con-
solidation of the construction bond with
the performance bond and security fund
specified, respecti vely in Sections
3.20.370 and 3.20.380. (Ord. 30-85 9 6.1)
3.20.370 Performance bond.
A. In addition to the construction
bond set forth above, the Grantee may be
required to file, at least thirty (30) days
prior to the commencement of opera-
tion, with the Grantor a performance
bond in the amou~t specified in the fran-
chise agreement in favor of the Grantor
and any other person who may be
entitled to damages as a result of any
Occurrence in the operation or termina-
tion of the cable communications system
operated under the franchise agreement,
and including the payments required to
be made to the Grantor hereunder.
B. Such bond as contemplated herein
shall be in the form approved by the
Grantor and shall, among other matters,
coverthe cost of removal of any proper-
ties installed by the Grantee in the event
the Grantee shall default in the perform-
ance of its franchise obligation.
80
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.
. -"- .
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C. In no event shall the amount of the
bond be construed to limit the liability of
the Grantee for damages. (Ord. 30-85 9
6.2)
:.
'. .
3.20.380 Security fund.
A. Within thirty (30) days after the
effective date of the franchise, the
Grantee may be required to deposit into
a bank account, established by the Gran-
tor and maintain on deposit through the
term of this franchise, the sum specified
in the franchise agreement, as security for
the faithful performance by it of all the
provisions of the franchise, and com-
pliance with all orders, permits and direc-
tions of any agency of the Grantor having
jurisdiction over its acts or defaults under
this chapter, and the payment by the
Grantee of any claims, liens and taxes
due the Grantor which arise by reason of
the construction, operation or mainte-
nance of the system.
The security fund may be assessed by
the Grantor for purposes including, but
not limited to, the following:
l. Failure of Grantee to pay Grantor
sums due under the terms of the fran-
chise;
2. Reimbursement of costs borne by
the Grantor to correct franchise vio-
lations not corrected by Grantee, after
due notice;
3. Monetary remedies or damages
assessed against Grantee due to default or
violation of franchise requirements.
B. At Grantor's sole option, some
portion of the security fund may be pro-
vided in the acceptable form of an irre-
vocable letter of credit, in lieu of a cash
deposit.
e-
3.20.370
C. Within thirty (30) days after notice
to it that any amount has been with-
drawn by the Grantor from the security
fund pursuant to subsection A of this
section, the Grantee shall deposit a sum
of money sufficient to restore such
security fund to the original amount.
D. If the Grantee fails, after ten (10)
days' notice to pay to the Grantor any
franchise fee or taxes due and unpaid; or
fails to pay to the Grantor within such ten
(10) days, any damages, cost or expense
which the Grantor shall be compelled to
pay by reason of any act or default of the
Grantee in .connection with the fran-
chise; or fails, after thirty (30) days'
notice of such failure by the Grantor to
comply with any provision of the fran-
chise which the Grantor reasonably
determines can be remedied by an expen-
diture_ of the security fund, the Grantor
may immediately withdraw the amount
thereof, with interest and any penalties,
from the security fund. Upon such with.
drawal, the Grantor shall notify the
Grantee of the amount and date thereof.
E. The Grantee shall be entitled to the
return of such security fund, or portion
thereof, as remains on deposit no later
than ninety (90) days after the expiration
of the term of the franchise; provided,
that there is then no outstanding default
on the part of the Grantee.
F. The rights reserved to the Grantor
with respect to the security fund are in
addition to all other rights of the Grantor
whether reserved by this chapter or
authorized by law, and' no action, pro-
ceeding or exercise of a right with respect
to such security fund shall affect any
other right the Grantor may have. (Ord.
30-85 9 6.3)
81
3.20.390
3.20.390 Indemnification.
A. The Grantee sh~i, by acceptance
of any franchise granted, indemnify,
defend and hold harmless the Grantor,
its officers, boards, commissions agents,
and employees from any and all third
party claims, suits, judgments for
damages or other relief, costs and attor-
neys' fees in any way arising out of or
through or alleged to arise out of or
through:
1. The act of the Grantor in granting
the franchise; and
2. The acts or omissions of Grantee,
its servants, employees, or agents includ-
ing, but not limited to, any failure or
refusal by Grantee, its servants, employ-
ees or agents to comply with any obliga-
tion or duty imposed on Grantee by this
chapter or the franchise agreement;
3. The exercise of any right or priv-
ilege granted or permitted by this chapter
or the franchise agreement.
Such indemnificaiton shall include,
but not be limited to, all claims arising in
tort, contracts, infringement of
copyright, violations of statutes, ordi-
nances or regulations or otherwise.
B. In the event any such claims shall
arise, the Grantor shall tender the
defense thereof to the Grantee; provided,
however, that the Grantor in its sole dis-
cretion may participate in the defense of
such claims at its expense.
C. The Grantee shall not be required
to indemnify the Grantor for negligence
or wilful misconduct on the part of Gran-
tor's officials, boards, commissions,
agents or employees. (Ord. 30-85 9 6.4)
3.20.400 Insurance required.
A. The Grantee shall maintain
throughout the term of the franchise
insurance in amounts at least as follows:
e'..,,"
. -
1. Worker's Compensation Insurance.
In such coverage as may be required by
the worker's compensation insurance
and safety laws of the state of California
and amendments thereto;
2. Comprehensive General Liability.
Comprehensive general liability insur-
ance, including, but not limited to, cov-
erage for bodily injury and property
damage shall be maintained at the sum(s)
specified in the franchise agreement;
3. Comprehensive Automobile Lia-
bility. Comprehensive automobile lia-
bility including, but not limited to,
nonownership and hired car coverage as
well as owned vehicles with coverage for
bodily injury and property damage shall
be maintained at the sum(s) specified in
the franchise agreement.
B. Upon request, the Grantee shall
furnish the Grantor with copies of such
insurance policies or certificates of in sur-
ance.
C. Such insurance pOlicies provided
for herein shall name the Grantor, its
officers, boards, commissions, agents,
and employees as additional insureds
and shall contain an endorsement similar
to the following:
e.
It is hereby understood and
agreed that this insurance pOlicy may
not be cancelled by the surety or the
intention not to renew be stated by the
surety until thirty (30) days after
receipt by the City by registered mail of
written notice of such intention to can-
cel or not renew.
D. The minimum amounts set forth
in the franchise agreement for such insur-
ance shall not be construed to limit the
-e
A._.
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82
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, ,
liability of the Grantee to the Grantor
under the franchise issued hereunder to
the amounts of such insurance.
E. All insurance carriers providing
coverage under subsection A of this sec-
tion shall be duly licensed to operate in
the state of California, and shall be sub-
ject to approval of Grantor. (Ord. 30-85 S
6.5)
Article VI. Design and Construction
Provisions
3.20.410 System design.
The cable communications system
shall be constructed in accordance with
the design requirements contained in the
franchise agreement. (Ord. 30-85 S 7.1)
e
3.20.420 Geographical coverage.
The Grantee shall design and con-
struct the cable system in such a manner
as to have the eventual capability to pass
by every single-family dwelling unit,
multiple-family dwelling unit, school
and public agency within the area of the
franchise. Service shall be provided to
subscribers in accordance with the sched-
ules and line extension policies specified
in the franchise agreement. Cable system
construction and provision of service
shall be nondiscriminatory, and Grantee
shall not delay or defer service to any
section of the franchise area on the
grounds of economic preference. (Ord.
30-85 S 7.2)
e,
3.20.430 Cablecasting facilities.
The Grantee shall provide cablecast-
ing facilities in accordance with the
requirements of the franchise agreement.
(Ord. 30-85 S 7.3)
3.20.400
3.20.440 System construction
schedule.
A. The Grantee shall comply with the
requirements of the system construction
schedule contained in the franchise
agreement.
B. The Grantee may be required to
provide a detailed construction plan
indicating progress schedule, area con-
struction maps, test plan, and projected
dates for offering service. In addition, the
Grantee may be required to update this
information on a monthly basis, showing
specifically whether schedules are being
met and the reasons for any delay. (Ord.
30-85 S 7.4)
3.20.450 Remedies for delay in
construction.
A. The Grantor may at its sole option,
apply any or all of the following remedies
in connection with delays in system con-
struction:
1. Reduction in the duration of the
franchise on a month-to-month basis for
each month of delay exceeding six (6)
months;
2. Forfeiture of construction bonds
and/or assessment of monetary damages
up to the maximum per day and per inci-
dent limits specified in the franchise
agreement, levied against the security
fund for delays exceeding one (I) year;
3. Termination of the franchise within
one (I) year after award of the franchise if
the Grantee has failed to initiate system
construction;
4. Termination of the franchise for
other delays exceeding eighteen (18)
months.
83
3.20.450
B. Any remedies applied shall be in
accordance with the procedures con~
tained in Sections 3.20.790 through
3.20.810. (Ord. 30-85 ~ 7.5)
3.20.460 Provision of service.
After service has been established by
activating trunk and distribution cables
for any area, the Grantee shall provide
service to any requesting subscriber
within that area within thirty (30) days
from the date of request. (Ord. 30~85 ~
7.6)
3.20.470 Undergrounding of cable.
The undergrounding of cable is
encouraged. In any event, cables shall be
installed underground at Grantee's cost
where all existing utilities are already
underground. Previously installed aerial
cable shall be undergrounded and relo-
cated in concert, and on a cost-sharing
basis, with other utilities, when such
other utilities may convert from aerial to
underground construction. (Ord. 30-85 9
7.7) _
3.20.480 New development
undergrounding.
A. In cases of new construction or
property development where utilities are
to be placed underground, upon request
by the Grantee, the developer or property
owner shall give Grantee reasonable
notice of the particular date on which
open trenching will be available for
Grantee's installation of conduit, ped-
estals and/or vaults, and laterals to be
provided at Grantee's expense. Grantee
shall also provide specifications as
needed for trenching.
.-
B. Costs of trenching and easements
required to bring service to the develop-
ment shall be borne by the developer or
property owner, except that if Grantee
fails to install its conduit, pedestals and/
or vaults, and laterals within five (5)
working days of the date that trenches are
available, as designated in the notice
given by the developer or property
owner, then should the trenches be
closed after the five (5) day period, the
cost of new trenching is to be borne by
Grantee. (Ord. 30-85 9 7.8)
3.20.490 Undergrounding at
multiple dwelling units.
In cases of multiple dwelling units
serviced by aerial utilities, Grantee shall
make every effort to minimize the
number of individual aerial drop cables
giving preference to undergrounding of
multiple drop cables between the pole
and the dwelling unit. The burden of
proof shall be upon the Grantee to dem~
onstrate why undergrounding of drop
cables is technically or economically
unfeasible. (Ord. 30-85 9 7.9)
.:.:
3.20.500 Street occupancy.
A. Grantee shall utilize existing poles,
conduits and other facilities whenever
possible, and shall not construct or install
any new, different, or additional poles,
conduits, or other facilities above, under
or on streets until the written approval of
the Grantor is obtained. However, no
location of any pole or wire-holding
structure of the Grantee shall be a vested
interest and such poles or structures shall
be removed or modified by the Grantee
.
84
.
e.
at its own expense whenever the Grantor
determines that the public convenience
would be enhanced thereby.
B. Grantee shall notify the Grantor at
least ten (10) days prior to the intention of
the Grantee to commence any construc-
tion in any streets. The Grantor shall
cooperate with the Grantee in granting
any permits required; providing, such
grant and subsequent construction by the
Grantee shall not unduly interfere with
the use of such streets and that proposed
construction shall be done in accordance
with the pertinent provisions of the ordi-
nances of the Grantor.
C. All transmission lines, equipment
and structures shall be so installed and
located as to cause minimun interference
with the rights and reasonable conve-
nience of property owners and at all
times shall be kept and maintained in a
safe, adequate and substantiai condition,
and in good order and repair. The
Grantee shall, at all times employ ordi-
nary care and shall install and maintain
in use commonly accepted methods and
devices for preventing failures and acci-
dents which are likely to cause damage,
injuries, or nuisances to the public. Suit-
able barricades, flags, lights, flares or
other devices shall be used at such times
and places as are reasonably required for
the safety of all members of the public.
Any poles or other fixtures placed in any
public way by the Grantee shall be placed
in such a manner as not to interfere with
the usual travel on such public way.
D. Grantee shall, at its own expense,
and in a manner approved by the Gran-
tor, restore to at least its previous condi-
tion any damage or disturbance caused
to the public way as a result of its opera-
tions or construction on its behalf.
e,
3.20.500
E. Whenever, in case of fire or other
disaster, it becomes necessary in the judg-
ment of the Grantor to remove any of the
Grantee's facilities, no charge shall be
made by the Grantee against the Grantor
for restoration and repair.
F. Grantee shall have the authority to
trim trees on public property at its own
expense as may be necessary to protect its
wires and facilities, subject to the supervi-
sion and direction of the Grantor. Trim-
ming of trees on private property shall
require written consent of the property
owner.
G. The Grantee at its expense shall
protect, support, temporarily discon-
nect, relocate, or remove any property of
Grantee when, in the opinion of the
Grantor the same is required by reason of
traffic conditions, public safety, street
vacation, freeway or street grade, separa-
tion or realignment, installation of
sewers, drains, waterpipes, power line,
signal line, transportation facilities,
tracks, or any other types of structure or
improvements by governmental agencies
whether acting in a governmental or a
proprietary capacity, or any other struc-
ture or public improvement, including,
but not limited to, movement of build-
ings, redevelopment, or any general pro-
gram under which the Grantor shall
undertake to cause any such properties to
be located beneath the surface of the
ground. Nothing hereunder shall be
deemed a taking of the property of
Grantee and Grantee shall be entitled to
no surcharge by reason of anything here-
under.
H. Upon failure of Grantee to com-
mence, pursue or complete any work
required by law or by the provisions of
85
3.20.500
this chapter to be done in any street,
within the time prescribed and to the
satisfaction of the Grantor, the Grantor
may, at its option, cause such work to be
done and the Grantee shall pay to the
Grantor the cost thereof in the itemized
amounts reported by the Grantor to
Grantee within thirty (30) days after
receipt of such itemized report.
1. The Grantee shall make no paving
cuts or curb cuts within the public rights-
of-way unless absolutely necessary, and
only after written permission has been
given by the Grantor.
J. Grantor reserves the right to require
conduit for underground cabling. (Ord.
30-85 S 7.10)
3.20.510 Construction and technical
standards.
A. Construction Standards.
1. City Codes and Permits. Grantee
shall comply with all applicable city con~
struction codes and permit procedures.
Grantor shall be entitled to charge rea-
sonable permit and inspection fees to
recover the special nonrecurring inspec-
tion costs imposed by the construction of
the cable system.
2. Compliance with Safety Codes. All
construction practices shall be in accord-
ance with all applicable sections of
federal and state Occupational Safety
and Health Acts and any amendments
thereto as well as all state and local codes
where applicable.
3. Compliance with Electrical Codes.
All installation of electronic equipment
shall be of a permanent nature, durable
and installed in accordance with the
..:..
- .
provisions of the Basic BOCA Electrical
Code as amended, and all applicable
state and local codes.
4. Antennas and Towers. Antenna-
supporting structures (towers) shall be
designed for the proper loading as spec-
ified in Electronics Industry Associa~
tion's R.S. 222-A specifications.
5. Compliance with Aviation
Requirements. Antenna-supporting
structures (towers) shall be painted,
lighted, erected and maintained in
accordance with all applicable rules and
regulations of the Federal Aviation
Administration and all other applicable
state or local codes and regulations.
6. Construction Standards and
Requirements. All of the Grantee's plant
and equipment~ including but not lim-
ited to, the antenna site, head-end and
distribution system towers, house con-
nections, structures, poles, wire, cable,
coaxial cable, fixtures and appurtenances
shall be installed, located, erected, con-
structed, reconstructed, replaced,
removed, repaired, maintained and
operated in accordance with good
engineering practices performed by expe-
rienced maintenance and construction
personnel so as not to endanger or inter-
fere with improvements the Grantor may
deem proper to make, or to interfere in
any manner with the rights of any prop-
erty owner, or to hinder or obstruct
pedestrian or vehicular traffic.
7. Safety, Nuisance Requirements.
The Grantee shall at all times employ
ordinary care and shall install and main-
tain in use commonly accepted methods
and devices preventing failures and acci-
dents which are likely to cause damage,
injury or nuisance to the public.
..-
.
86
.'.
..
B. Technical Standards. The cable
communications system shall meet all
technical and performance standards
contained in the franchise agreement.
C. Test and Compliance Procedure.
The Grantee shall submit, within sixty
(60) days after the effective date of the
franchise agreement, a detailed test plan
describing the methods and schedules for
testing the cable communications system
on an ongoing basis to determine com-
pliance with the provisions of the fran-
chise agreement. The tests for basic
subscriber television services shall be per-
formed at intervals no greater than every
twelve (12) months, on a minimum of
twenty (20) subscriber television receiv-
ers, located throughout the service area.
At least eight (8) of these locations shall
be at the far end of the distribution trunk
cables. Upon Grantor request, the tests
may be witnessed by representatives of
the Grantor, and written test reports shall
be submitted to the Grantor. If more than
ten percent (10%) of the locations tested
fail to meet the performance standards,
the Grantee shall be required to indicate
what corrective measures have been
taken, and the entire test shall be
repeated for at least twenty (20) different
locations. A second failure of more than
ten percent (10%) may be considered, at
the Grantor's option, as a material
breach of the franchise.
D. Special Tests. At any time after
commencement of service to subscribers
the Grantor may require additional tests,
full or partial repeat tests, different test
procedures, or tests involving a specific
subscriber's terminal. Requests for such
additional tests will be made on the basis
of complaints received or other evidence
.-
3.20.510
indicating an unresolved controversy or
significant noncompliance, and such
tests shall be limited to the particular
matter in controversy. The Grantor shall
endeavor to so arrange its requests for
such special tests so as to minimize hard-
ship or inconvenience to Grantee or to
the subscriber. (Ord. 30-85 S 7.11)
3.20.520 Areawide interconnection.
A. Interconnection Required. The
Grantor, based upon demonstrable com-
munity need, may direct Grantee to
interconnect public usage channels of the
cable communications system with any
or all other cable systems in adjacent
areas. Interconnection of systems shall
permit interactive transmission and
reception of program material, and may
be done by direct cable connection,
microwave link, satellite, or other appro-
priate method.
B. Interconnection Procedure. Upon
receiving the directive of the Grantor to
interconnect, the Grantee shall immedi-
ately initiate negotiations with the other
affected system or systems. The cost shall
be borne by both Grantees, in the propor-
tion of number of channels received to
total number of channels transmitted
and received, under the assumption that
benefits accrue primarily through receipt
of additional channels. In the case of
regional or statewide interconnection,
the same principle shall apply.
C. Relief. The Grantee may be
granted reasonable extensions of time to
interconnect or the Grantor may rescind
its order to interconnect upon petition by
the Grantee to the Grantor. The Grantor
may grant the request if it finds that the
Grantee has negotiated in good faith and
87
3.20.520
has failed to obtain an approval from the
system or systems of the proposed inter-
connection, or that the cost of the inter-
connection would cause an unreasonable
or unacceptable increase in subscriber
rates.
D. Cooperation Required. The
Grantee shall cooperate with any inter-
connection corporation, regional inter-
connection authority or city, county,
state or federal regulatory agency which
may be hereafter established for the pur-
pose of regulating, financing, or other-
wise providing for the interconnection of
cable systems beyond the boundaries of
the franchise territory.
E. Initial Technical Requirements to
Assure Future Interconnection
Capability.
1. Every Grantee receiving a franchise
to operate a cable communications sys-
tem within the franchise territory shall
use the same frequency allocations for
commonly provided television signals so
far as is technically and economically fea-
sible.
2. Grantee shall provide local origi-
nation and access equipment that is com-
patible throughout the franchise area.
(Ord. 30-85 ~ 7.12)
Article VII. Service Provisions
3.20.530 Service to be provided.
The Grantee shall provide, initially,
the services listed in the franchise agree-
ment. Services shall not be reduced with-
out adequate prior notification to
Grantor. (Ord. 30-85 ~ 8.1)
."~
3.20.540 Basic cable service.
The basic cable service shall be avail-
able to all subscribers at the established
and uniform monthly subscription rates.
(Ord. 30~85 ~ 8.2)
3.20.550 Basic radio service.
The basic radio service may be made
available to all subscribers at the estalr
lished and uniform monthly subscrip-
tion rates. (Ord. 30-85 ~ 8.3)
3.20.560 Institutional service.
Ifspecified in the franchise agreement,
the institutional service shall include the
provision of transmission and/or recep-
tion services to institutional users, on a
commercial use channel basis at rates
established by Grantee. Services may
include the distribution of video or non~
video signals. (Ord. 30-85 ~ 8.4)
.
3.20.570 Additional subscriber
services.
Additional subscriber services, not
included in the services specified above,
may be provided, either within the basic
cable service rates, or on a premium
basis, subject to applicable law. (Ord.
30~85 ~ 8.5)
3.20.580 Local origination
channel(s).
The Grantee may operate cablecasting
studios on a high-quality, professional
basis for the purpose of providing
cablecast programming responsive to
local needs and interests. (Ord. 30-85 ~
8.6)
.
88
'.
3.20.590 Government access
channel(s).
The Grantee shall provide the number
of channels and the facilities specified in
the franchise agreement for the use of the
Grantor at no charge to the Grantor. The
Grantee shall provide facilities to aid in
the utilization of these channels, as spec-
ified in the franchise agreement. (Ord.
30-85 9 8.7)
e."
3.20.600 Educational access
channel(s).
The Grantee shall provide the number
of channels and the facilities specified in
the franchise agreement for the use of the
local educational institutions at no
charge. The Grantee shall provide facili-
ties to aid in the utilization of these chan-
nels, as specified in the franchise
agreement. (Ord. 30-85 9 8.8)
3.20.610 Public access channel(s).
The Grantee shall provide the number
of channels and the facilities specified in
the franchise agreement to be available to
the public at no charge. The public access
channel(s) may be managed and oper-
ated by the access management entity, as
described in Article IV of this chapter.
The Grantee shall make available for
programmers of the public access chan-
nel the facilities specified in the franchise
agreeement. (Ord. 30-85 9 8.9)
.
3.20.620 Public access-Closed
circuit network.
If the cable communications system
includes a closed-circuit institutional
network, the Grantee shall make a por.
tion of the network capacity, as specified
in the franchise agreement, available for
..
..
3.20.590
local government, educational and pub--
lic use at no charge. The public access
two-way channels shall be managed and
operated by the access management
entity. (Ord. 30-85 9 8.10)
3.20.630 Commercial use channels.
Grantee shall make channels available
for commercial use, on a non-
discriminatory basis, as required by
federal law. All commercial channel serv-
ice revenues shall be included in gross
receipts subject to the franchise fee. (Ord.
30-85 9 8.11)
3.20.640 Alternative use of access
channels.
If Grantor determines that a new serv-
ice affecting the public safety, health or
welfare, would be in the public interest
and receives a bona fide offer from a third
party to provide such a service, Grantee
shall be offered the first right of refusal to
provide the service on the same terms. If
Grantee declines to provide the service,
Grantor may utilize appropriate access
channel capacity to accommodate that
service. (Ord. 30-85 9 8.12)
3.20.650 Universal connection.
The Grantor may require that all
dwelling units within the franchise area
shall be connected physically to the cable
system by the Grantee by means of drop
cables terminating at each dwelling unit,
whether or not the dwelling unit's occu-
pants desire to subscribe to cable service.
The cost and charges for providing uni-
versal connection shall be determined by
the Grantee at the time such connection
is requested and furnished to the Gran-
tor. If Grantor elects to require universal
89
3.20.650
connection, Grantee shall be entitled to
recover the incremental cost of providing
a universal connection. (Ord. 30~85 9
8.13)
Article VIII. Operation and
Maintenance
3.20.660 Grantor-Right to inspect
books and records.
A. The Grantor shall have the right to
inspect, upon reaSonable notice, at any
time during normal business hours, all
books, records. maps, plans, financial
statements, service complaint logs, per-
formance test results and other like mate-
rials of the Grantee which relate to the
operation of the franchise and are main-
tained at the local office.
B. If any such books or records
required by this chapter or the franchise
agreement are not kept in the local office,
or upon reasonable request made avail-
able to the Grantor, and if the Grantor
shall determine that an examination of
such records is necessary or appropriate
to the performance of any of Grantor's
duties, then all travel and maintenance
expense necessarily incurred in making
such examination shall be paid by
Grantee. (Ord. 30-85 g 9.1)
3.20.670 Grantee-Records
required.
In any event the Grantee shall at all
times maintain:
A. The complaint file required by Sec-
tion 3.20.860 herein;
B. A full and complete set of plans
records and as-built maps showing the
exact location of all cable communica-
tions system equipment installed or in
use in the franchise territory, exclusive of
subscriber service drops. (Ord. 30-85 9
9.2)
3.20.680 Grantee-Maintenance
and complaints.
A. The Grantee shall maintain a local
office which shall be open during all
usual business hours, have a publicly
listed toll-free telephone number, and be
so operated to receive subscriber com-
plaints and requests for repairs or adjust-
ments on a twenty-four (24) hour a day
basis. A written log shall be maintained
listing all complaints and their disposi-
tion as required by Section 3.20.670 A.
B. The Grantee shall render efficient
service, make repairs promptly, and
interrupt service only for good cause and
for the shortest time possible. Such inter-
ruptions, insofar as possible, shall be pre-
ceded by notice and shall occur during a
period of minimum use of the system. A
written log shall be maintained for all
service interruptions as required by Sec-
tion 3.20.670 A.
C. The Grantee shall maintain a
repair force of technicians normally
capable of responding to subscriber com-
plaints or requests for service within
twenty-four (24) hours after receipt ofthe
complaint or request. No charge shall be
made to the subscriber for normal repair
servIce.
D. The Grantee shall furnish each
subscriber at the time service is installed,
written instructions that clearly" set forth
procedures, furnish information con-
cerning the procedures for making inqui-
ries or complaints, including the address
and local telephone number to whom
such inquiries or complaints are to be
90
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addressed, and furnish information con-
cerning the Grantor office responsible for
administration of the franchise with the
address and telephone number of the
office. (Ord. 30-85 S 9.3)
.:.
3.20.690 Grantee-Equality in
accessibility required.
A. Grantee shall not deny service,
deny access, or otherwise discriminate
against subscribers, channel users, or cit-
izens on the basis of income, race, color,
religion, national origin, age or sex.
Grantee shall comply at all times with all
other applicable federal, state and local
laws and regulations, and all executive
and administrative orders relating to
nondiscrimination which are incorpo-
rated and made 'part of this chapter by
reference.
B. Grantee shall strictly adhere to the
equal employment opportunity require-
ments of federal, state and local law and
regulations in effect on the date of the
franchise grant, and as amended from
time to time.
C. The Grantee's policy with regard to
personally identifiable information shall
comply with federal law.
D. Fairness of Accessibility. The
entire system of the Grantee shall be
operated in a manner consistent with the
principle of fairness and equal
accesiblitiy of its facilities, equipment,
channels, studios and other services to all
citizens, businesses, public agencies and
other entities having a legitimate use for
the system, and no one shall be arbitrarily
excluded from its use. Allocation of use
of the facilties shall be made according to
the rules or decisions of the Grantee, the
e.
3.20.680
Grantor in its lawful exercise of reg.
ulatory authority, and any state or federal
regulatory agencies affecting the same.
(Ord. 30-85 S 9.4)
3.20.700 Continuity of service
mandatory.
A. 1. It shall be the right of all sub-
scribers to continue receiving service
insofar as their financial and other obli-
gations to the Grantee are honored. In
the event that the Grantee elects to over-
build, rebuild, modify, or sell the system,
or the Grantor gives notice of intent to
terminate or fails to renew this franchise,
the Grantee shall act so as to ensure that
all subscribers receive continuous, unin-
terrupted service regardless of the cir-
cumstances.
2. In the event of a change of fran-
chisee, or in the event a new operator
acquires the system, the Grantee shall
cooperate with the Grantor, new fran-
chisee or operator in maintaining con-
tinuity of service to all subscribers.
During such period, Grantee shall be
entitled to the revenues for any period
during which it operates the system, and
shall be entitled to reasonable costs for its
services when it no longer operates the
system.
B. In the event Grantee fails to oper-
ate the system for seven (7) consecutive
days without prior approval of the Gran-
tor or without just cause, the Grantor
may, at its option, operate the system ,or
designate an operator until such time as
Grantee restores services under condi-
tions acceptable to the Grantor or a per-
manent operator is selected. If the
Grantor is required to fulfill this obliga-
tion for the Grantee, then during such
91
3.20.700
period as the Grantor fulfills such obliga-
tion, the Grantor shall be entitled to col-
lect 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 the Grantor
that are the result of the Grantee's failure
to perform. (Ord. 30-85 ~ 9.5)
3.20.710 Grantee rules and
regulations.
The Grantee shall have the authority
to promulgate such rules, regulations,
terms and conditions governing the con-
duct of its business as shall be reasonably
necessary to enable the Grantee to exer-
cise its rights and perform its obligations
under the franchise, and to assure an
uninterrupted service to each and all of
its customers; provided, however that
such rules, regulations, terms.and condi-
tions shall not be in conflict with the
provisions hereof or applicable state and
federal laws, rules and regulations. (Ord.
30-85 ~ 9.6)
3.20.720 Tenant rights.
Grantee shall be required to provide
service to tenants in individual units of a
multiple housing facility with all services
offered to other dwelling units within the
franchise area, so long as the owner of the
facility consents in writing, if requested
by Grantee, to the following:
A. To Grantee's providing of the serv-
ice to units of the facility;
B. To reasonable conditions and
times for installation, maintenance, and
inspection of the system on the facility
premises;
e..
C. To reasonable conditions promul-
gated by Grantee to prote~ Grantee's
equipment and to encourage widespread
use of the system; and
D. To not discriminate in rental
charges, or otherwise, between tenants
who receive cable service and those who
do not. (Ord. 30-85 ~ 9.7)
Article IX. Rights Reserved to the
Grantor
3.20.730 Right to purchase the
system.
The Grantor may in any lawful man-
ner and upon the payment of a fair
valuation lawfully ascertain, purchase,
condemn, acquire, take over and hold
the property and plant of the Grantee in
whole or in part. If such purchase or tak-
ing over be upon revocation of the fran-
chise or at the expiration ,of the term of
the franchise such valuation shall be at
the fair market value of the system as
defined by federal law. (Ord. 30-85 ~ 10.1)
.,:
3.20.740 Right of inspection of
records.
A. There shall be kept in the Grantee's
office a separate record for the cable sys-
tem, which record shall show the items
hereafter set forth. The Grantee shall pro-
vide such information as may reasonably
be required by the Grantor from the
records:
1. The true and entire cost of con-
struction equipment, of maintenance
and of the administration and operation
thereof; the amount of stock issued, if
any; the amount of cash paid in, the
number of and par value of shares, the
amount and character of indebtedness, if
.
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92
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any; the rate of taxes, the dividends
declared; the character and amount of all
fixed charges; the allowance, if any, for
interest, for wear and tear or deprecia-
tion; all amounts and sources of income;
2. Any amount collected annually
from the Grantor treasury and the char-
acter and extent of the service rendered
therefor to the Grantor;
3. The amount collected annually
from other users of service and the char-
acter and extent of the service rendered
therefor to them.
B. The books and records kept by the
Grantor shall be open to Grantor exam-
ination upon reasonable notice at any
time during the business hours of the
Grantor's office. (Ord. 30-85 S 10.2)
,e-
3.20.750 Right of inspection of
construction.
The Grantor shall have the right to
inspect all construction or installation
work performed subject to the provisions
of the franchise and to make such tests as
it shall find necessary to ensure com-
pliance with the terms of this franchise
and other pertinent provisions of law.
(Ord. 30-85 S 10.3)
3.20.760 Right of intervention.
The Grantor shall have the right of
intervention in any suit or proceeding to
which the Grantee is party, and the
Grantee shall not oppose such interven-
tion by the Grantor. (Ord. 30-85 S lOA)
..-
3.20.770 Right to require removal of
property.
At the expiration of the term for which
the franchise is granted, or upon its
revocation or expiration, as provided for
3.20.740
herein, the Grantor shall have the right to
require the Grantee to remove, at its own
expense, all aboveground portions of the
cable communications system from all
streets and public ways within the fran-
chise area. (Ord. 30-85 9 10.5)
Article X. Rights Reserved to the
Grantee
3.20.780 Right of Grantee.
In the event of any dispute between
Grantee and Grantor over this chapter or
the franchise agreement, or with respect
to any rights or obligations arising there-
from, Grantee shall first pursue and
exhaust all available administrative rem-
edies. Thereafter, Grantee may pursue
any appropriate legal action which such
action may be brought only in a superior
court situated in the county of Alameda.
(Ord. 30-85 S 11.1)
Article XI. Franchise Violations
3.20.790 Remedies for franchise
violations.
A. If the Grantee fails to perform any
material obligation under the franchise,
or fails to do so in a timely manner, the
Grantor may at its option, and in its sole
discretion:
L Assess against the Grantee mone-
tary damages up to the limits established
in the franchise agreement for material
franchise violations, the assessment to be
levied against the security fund, here-
inabove provided and collected by Gran-
tor immediately upon the assessment.
The amount of such assessment shall be
deemed, without proof, to represent liq-
uidation of damages actually sustained
93
3.20.790
by Grantor by reason of Grantee's failure
to perform. Such assessment shall not
constitute a waiver by the Grantor of any
other right or remedy it may have under
the franchise or under applicable law,
including without limitation, its right to
recover from Grantee such additional
damages, losses, costs and expenses,
including actual attorney fees, as may
have been suffered or incurred by Gran-
tor by reason of or arising out of such
breach of the franchise. This provision
for assessment of damages is intended by
the parties to be separate and apart from
Grantor's right to enforce the provisions
of the construction and performance
bonds provided for in Article V of this
chapter, and is intended to provide com-
pensation to Grantor for actual damages;
2. Terminate the franchise, for any of
the causes stated in Article III of this
chapter,
3. No remedy shall be imposed by
Grantor against Grantee for any vio-
lation of the franchise without Grantee
being afforded due process ofIaw, as pro-
vided for in Section 3.20.800.
B. Any remedies imposed shall be in
addition to any and all other legal or
equitable remedies available to Grantor
under the franchise or under any applica-
ble law. (Ord. 30-85 ~ 12.1)
3.20.800 Remedying franchise
violations- Procedure.
In the event that the Grantor deter-
mines that the Grantee has violated any
material provisiosn of the franchise, the
Grantor may make a written demand on
the Grantee that it remedy such vio-
lation. If the violation is not remedied to
the satisfaction of the Grantor within
...-,.:.:,.
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thirty (30) days following such demand,
the Grantor shall determine whether or
not such violation by the Grantee was
excusable or inexcusable, in accordance
with the following procedure:
A. A public hearing shall be held and
the Grantee shall be provided with an
opportunity to be heard upon thirty (30)
days' written notice to the Grantee of the
time and the place of the hearing pro-
vided and the allegations offranchise vio.
lations;
B. If, after notice is given and, at the
Grantee's option, a full public proceed-
ing is held, the Grantor determines that
such violation by the Grantee was
excusable as provided in Section
3.20.810, the Grantor shall direct the
Grantee to correct or remdy the same
within such additional time, in such
manner and upon such terms and condi-
tions as the Grantor may direct;
C. If, after notice is gi ven and, at the
Grantee's option, a full public proceed-
ing is held, the Grantor determines that
such violation was inexcusable, then the
Grantor may impose a remedy in accord-
ance with Section 3.20.790. (Ord. 30-85 9
12.2)
e..
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3.20.810 Force majeure-Grantee's
inability to perform.
In the event Grantee's performance of
any of the terms, conditions, obligations,
or requirements of the franchise is pre-
vented or impaired due to any cause
beyond its reasonable control or not rea-
sonably foreseeable, such inability to per-
form shall be deemed to be excused and
no penalties or sanctions shall be
imposed as a result thereof; provided,
Grantee has notified Grantor in writing
,tIt-.
94
-e
within thirty (30) days of its discovery of
the occurrence of such an event. Such
causes beyond Grantee's reasonable con-
trol or not reasonably foreseeable shall
include, but shall not be limited to, acts
of God, war or acts of war, and civil
emergencies. (Ord. 30-85 9 12.3)
Article XII. Reports
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3.20.820 Annual reports.
At Grantor's sole option, within sixty
(60) days after the close of Grantee's
fiscal year, Grantor may request Grantee
to submit a written annual report,
including, but not limited to, the follow-
ing information:
A. A summary of the previous year's
(or, in the case of the initial report year,
the initial year's) activities in develop-
ment of the cable system, including, but
not limited to, services begun or discon-
tinued during the reporting year, and the
number of subscribers for each class of
servIce;
B. A statement of receipts, audited by
an independent certified public accoun-
tant, or certified by an officer of the
Grantee;
C. A list of Grantee's officers, mem-
bers of its board of directors, and other
principals of Grantee;
D. A list of stockholders or other
equity investors holding five percent
(5%) or more of the voting interest in the
Grantee and its parent, subsidiary and
affiliated corporations and other entities,
ifany. (Ord. 30-85 S 13.I)
:..
3.20.830 Plant survey report.
At Grantor's sole option, Grantee
shall submit to the Grantor an annual
3.20.810
plant survey report which shall be a com-
plete survey of the Grantee's plant and a
full report thereon. The report shall
include, but not be limited to, a descrip-
tion and as-built maps of the portions of
the franchise area that have been cabled
and have all services available, an
appropiate engineering evaluation,
including suitable electronic measure-
ments conducted in conformity with
such requirements, including supervi-
sion, as the Grantor may prescribe. The
report shall be in sufficient detail to
enable the Grantor to ascertain that the
service requirements and technical stan-
dards of the FCC and/or the franchise are
achieved and maintained. If Grantor has
reason to believe that portions or all of
the system do not meet either the FCC
technical standards, or those incorpo-
rated into the franchise agreement, at
Grantor's request, but no more often
than once per three (3) years, the Grantee
and the Grantor shall agree upon the
appointment of a qualified independent
engineer to evaluate and verify the tech-
nical performance of the cable system.
The cost of such evaluation shall be
borne equally by the Grantee and the
Grantor. (Ord. 30-85 9 13.2)
3.20.840 Copies of federal and state
reports.
The Grantee shall make available to
the Grantor, upon reasonable request,
copies of all publicly available pleadings,
applications, repons, communications
and documents of any kind, submitted
by the Grantee to, as well as copies of all
decisions, correspondence and actions
by, any federal, state and local couns,
95
3.20.840
regulatory agencies and other govern-
ment bodies relating to its cable televi-
sion operations within the franchise area.
Grantee waives any right to claim confi-
dential, privileged or proprietary rights to
such documents unless such confidential
rights are determined to be confidential
by law or by the practices of federal or
state agencies. (Ord. 30-85 9 13.3.)
3.20.850 Public reports.
A copy of each of Grantee's annual
and other periodic public reports and
those of its parent, subsidiary and affili~
ated corporations and other entities. as
the Grantor requests and is reasonably
appropriate, shall be submitted to the
Grantor within five (5) days ofavailabil-
ity by the Grantee. (Ord. 30-85 9 13.4)
3.20.860 Complaint file and reports.
An accurate and comprehensive file
shall be kept by the Grantee of any and all
service-related complaints regarding the
cable system. A procedure shall be estab-
lished by the Grantee by the time of
installation of the cable system to remedy
complaints quickly and reasonably to the
satisfaction of the Grantor. Complete
records of Grantee's actions in response
to all service-related complaints shall be
kept:
A. A summary of service-related
complaints, identifying the number and
nature of complaints and their disposi-
tion shall be completed for each month
and submitted to the Grantor by the
tenth day of the suceeding month;
B. The results of an annual opinion
survey report which identifies satisfac-
tion or dissatisfaction among subscribers
with cable communications services
e>.
.... .
offered by the Grantee shall be submitted
to the Grantor no later than two (2)
months after the end of Grantee's fiscal
year. The surveys required to make the
report may be in a form that can be trans-
mitted to subscribers with any bill for
service. (Ord. 30-85 9 13.5)
3.20.870 Miscellaneous reports.
Grantee shall submit to the Grantor
such other information or reports in such
forms and at such times as the Grantor
may reasonably request or require. (Ord.
30-85 9 13.6)
3.20.880 Inspection of facilities.
The Grantee shall allow the Grantor to
make inspections of any of the Grantee's
facilities and equipment at any time
upon reasonable notice, or, in case of a
declared emergency, upon demand with-
out prior notice, to allow Grantor to ver-
ify the accuracy of any submitted report.
(Ord. 30-85 S 13.7)
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3.20.890 Business office files and
records-Inspection by
Grantor.
Grantee shall keep complete and accu-
rate books and records. The Grantor,
upon reasonable notice, shall have the
right to inspect at any time during nor-
mal business hours all books, records,
maps, plans, income tax returns, finan-
cial statements, service complaint logs,
performance test results and other like
materials of the Grantee which relate to
the operation of the cable system. (Ord.
30-85 9 13.8)
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96
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3.20.900 Public inspection.
All reports subject to public disclosure,
shall be available for public inspection at
a designated Grantor office during nor-
mal business hours. (Ord. 30-85 S 13.9)
3.20.910 Failure to report.
The refusal or wilful failure of the
Grantee to file any of the reports
required, or such other reports as the
Grantor reasonably may request, shall be
deemed a material breach of the fran-
chise, and shall subject the Grantee to all
remedies, legal or equitable, which are
available to the Grantor under the fran-
chise or otherwise. (Ord. 30-85 S 13.10)
.
.
3.20.900
3.20.920 False statements-Grantee
subject to remedies.
Any materially false or misleading
statement or representation made know-
ingly by the Grantee in any report
required under the franchise shall be
deemed a material breach of the fran-
chise and shall subject the Grantee to all
remedies, legal or equitable, which are
available to the Grantor under the fran-
chise or otherwise. (Ord. 30-85 S 13.11)
3.20.930 Cost of reports.
All reports and records required under
this or any other section shall be fur-
nished at the sole expense of the Grantee.
(Ord. 30-85 9 13.12)
97
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A G R E E MEN T
AN AGREEMENT RENEWING A NON-EXCLUSIVE
FRANCHISE TO TELE-VUE SYSTEMS, INC., TO
OPERATE A CABLE TELEVISION SYSTEM IN THE CITY
OF DUBLIN AND SETTING FORTH CONDITIONS
ACCOMPANYING THE RENEWAL OF THE FRANCHISE.
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A G R E E MEN T
THIS AGREEMENT, made and entered into this 1st day of
January, 1986 at Dublin, California
by and between the City of
Dublin
, a municipal corporation
of the State of California, ("Grantor"), and Tele-Vue Systems, Inc.,
d/b/a Viacom Cablevision, a wholly-owned subsidiary of Viacom
International, Inc., hereinafter known as "Grantee", "Viacom
Cablevision" or "Viacom".
WIT N E SSE T H
WHEREAS, the City of
Dublin
pursuant to Ordinance
No.
, is authorized to grant and/or renew one or more non-
exclusive revocable franchises to operate, construct, maintain and
reconstruct a cable television system within the City; and
WHEREAS, after public hearings, the City has determined that
it is in the best interest of the City and its residents to renew
the franchise previously granted to Viacom Cablevision, 6640 Sierra
Lane, Dublin, CA. 94568.
NOW, THEREFORE, the City (hereinafter also known as the
Grantor) hereby grants to Viacom Cab1evision a cable television
franchise renewal in accordance with the provisions of Ordinance
No.
30-85
, and this Agreement.
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1. GRANT OF FRANCHISE RENEWAL
1.1 Grant.
Viacom Cablevision, a wholly-owned subsidiary
of Viacom International Inc., a corporation with its principal
place of business located at 1211 Avenue of the Americas, New
York, New York 10036, is hereby granted for itself, its
successors and asigns, subj ect to the terms and conditions of
this Agreement and Ordinance No. 30-85 the franchise, authority,
right and privilege, for a fifteen (.12) year period from and
after the effective date hereof, to operate, maintain and
reconstruct a cable television system wi thin the streets and
public ways within the City of Dublin.
1.2 Right of Grantor to Issue Franchise.
Grantee acknow-
.
ledges and accepts the right of Grantor to issue cable television
franchises and Grantee agrees it shall not during the term of
this franchise challenge this right in any way or in any City,
state or Federal Court.
1.3 Effective date of Franchise. The effective date of the
franchise renewal shall be January 1,1986.
1.4 Duration.
The term of the franchise shall be
fifteen (~) years from the effective date hereof at which time
it shall expire and be of no .force and effect. Renewal shall be
in accordance with applicable law.
1.5 Franchise Not Exclusive.
This franchise shall not
be construed as any limitation upon the right of Grantor, through .
its proper officers, to grant to other persons or corporations
.
.
.
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- 3 -
rights, privileges or authority similar to or different from
the rights, privileges and authority herein set forth, in the
same or other streets and public ways or public places by
franchise, permit or otherwise, provided, however, that such
additional grants shall not operate to materially modify, revoke
or terminate any rights granted to Grantee herein.
1.6 Franchise Acceptance. The Grantee, by executing this
Agreement, guarantees performance by Grantee of all of Grantee's
obligations hereunder imposed by Ordinance No.
and
30-85
this Agreement.
1.7 Other Communities. It is recognized that the cable
television system serving the City of Dublin
also serves the
Cities of
Livermore
San Ramon
Pleasanton
and
and unincorporated areas of Alameda
County. Some req~irements
of this franchise may be consolidated with like provisions of
one or all of the franchises granted by the other jurisdictions.
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2. DEFINITIONS
.
For the purposes of this Agreement, the following words,
terms, phrases, and their derivations shall have the meanings
given herein. When not inconsistent with the context, words
used in the present tense include the future tense, words in
the plural number include the singular number and words in the
singular number include the plural number. The word "shall"
is always mandatory and not merely directory. The definitions
30-85are incorporated herein as if
contained in Ordinance No.
fully set forth.
2.1 "Agreement" or "Franchise Agreement" means this
agreement and any amendments or renewals thereof.
2.2 "Grantee" means Viacom Cablevision, or any person or .
entity who or which suceeds Viacom Cablevision in accordance
with the provisions of this franchise.
2.3 "Grantor" or "City" means the City of Dublin
or its delegate acting within the scope of its jurisdiction.
2.4 "Section" means any section, subsection or provision
of this franchise agreement.
2.5 "System Upgrade Construction" means construction,
expansion or upgrading of the existing cable television system
in accordanc~ with the provisions of this Agreement.
,~
2.6 "Upgraded Service" means the level of service provided
to subscribers subsequent to the upgrading and/or expansion of
the system.
.
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3. GENERAL REQUlREt1ENTS
3.1 Governing Requirements. Grantee shall comply with the
requirements of this Agreement and Ordinance No. 30-85
3.2 Franchise Fee. The Grantee shall pay to the Grantor
an annual franchise fee of five percent (5%) of Gross Annual
Receipts.
3.3 Recovery of Franchise Costs.
(a) As provided for in Ordinance No. 30-85 , Grantee,
within sixty (60) days after receipt from Grantor of a written
itemization, shall reinmurse Grantor for its reasonable costs incurred
during the franchise renewal process, not to exceed $
(b) As necessary to aid in the analysis of all future
.
disputed matters relative to the franchise, the Grantor or the
Grantee in cooperation with the other, shall be entitled to
employ the services of technical, financial or legal consultants.
All reasonable fees of the consultants incurred by the Grantor
or the Grantee in this regard shall be equally borne by the
Grantee and the Grantor, regardless of the outcome of any specific
dispute under consideration. An upper cost limit will be estab-
lished by the Grantor and Grantee prior to retaining any consultant
under this subsection.
3.4 Payment to Grantor. No acceptance of any payment
shall be construed as a~ accord that the amount paid is in fact
the correct amount, nor shall such acceptance of payment be
.
construed as a release of any claim that Grantor may have for
further or additional sums payable under the provisions of
_oC <:'\
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.--;.)
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this Agreement. All amounts paid shall be subject to audit and
.
recomputation by the Grantor. The Grantor shall notify the
Grantee, in writing, at least thirty (30) days in advance of any
intent to audit and recompute.
3.5 Liability Insurance and Indemnification. Upon
the effective date of the franchise, Grantee shall furnish
proof that satisfactory liability insurance policies are in
force, in the minimum amounts of:
o
Worker's Compensation
As required by
the State of California.
o
Comprehensive General Liability
$ 1,000,000 per occurrence.
o
Comprehensive Automobile Liability
$ 1,000,000 per occurrence.
.
The liability insurance policies shall be
I
maintained throughout the duration of this franchise, with a
copy filed with Grantor. The insurance carriers shall be
authorized to do business in California, and subject to
Grantor approval.
3.6 Security Fund. Within thirty (30) days after the
effective date of the franchise, Grantee shall deposit into a
bank account of Grantor, established by Grantor, and maintain
on deposit throughout the term of this franchise, the sum of
not less than Fifty Thoysand Dollars ($50,000) as security.
Of said amount, a portion or all may be in the form of an
irrevocable letter of credit, the form of which is subject to .
the prior avvroval of the Grantor.
After the completion of
.
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the system upgrade construction specified in Exhibit A, the
amount of the security fund may be reduced to Five Thousand
Dollars ($5,000), all of which may be in the form of an
irrevocable letter of credit.
3.7 Construction and Performance Bonds. Grantor waives
any requirement for construction and performance bonds, in favor
of the security fund required by 3.6 above.
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4. CONSTRUCTION AND SERVICE REQUIREt1ENTS
.
4.1 General. The Grantee shall meet or exceed all the
material construction and system upgrade requirements set out
in this Agreement. The Grantee shall meet the requirements
regardless of whether subscriber penetration and/or revenue
projections prove to be correct.
4.2 Construction Schedule. Grantee shall complete system
upgrade construction and offer upgraded service to all residents
In accordance with the requirements of Exhibit A.
Consistent with sound engineering practice, system upgrade
construction shall follow a logical construction schedule,
so that no geographic portion of the City is discriminated
against in receiving prompt upgraded service. Upgraded service .
shall be offered to all residents within the City no later
than ninety (90) days after the cables have been energized
therein.
4.3 Liquidated Damages.
It is understood that it is
impractical at this time to reasonably ascertain the total extent
of damages which may be incurred as a result of a failure by
Grantee to complete system upgrade construction within the time
period specified in this Agreement. Such impracticality arises
out of the difficulty of establishing a cost for future damages
suffered by the public,~who are denied upgraded services or the
~
effect of noncompletion with respect to inconvenience, anxiety,
frustration, financial loss, effective and efficient regulation
.
of the franchise for the promotion and protection of the public
convenience, health, safety and/or welfare, or other factors
which are incapable of measurement in precise monetary terms.
.
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Therefore, Grantee offers and agrees to compensate the Grantor
upon Grantor request, in the amount of Two Hundred Fifty Dollars
($250) per day for each calendar day on which Grantee has not
completed system upgrade construction in accordance with this
Agreement, and where Grantor, in accordance with the procedures
of Section 10.2 has found that the delay was within Grantee's
reasonable control or was reasonably foreseeable.
4.4 Delay in Construction. For any schedule ln delay in
system upgrade construction that may occur, the burden of proof
shall be on the Grantee to demonstrate that such delay was
beyond its reasonable control or was not reasonably foreseeable.
The imposition by Grantor of any damages shall be in accordance
with the procedures set forth in Section 10.2 hereof.
4.5 Right of Inspection of Construction. Grantor shall
have the reasonable right to inspect all construction or installa-
tion work performed subject to the provisions of the franchise
and to make such tests as are reasonably necessary to ensure
compliance with the terms of the franchise and other pertinent
provisions of law.
4.6 provision of Residential Service. Grantee shall provide
all upgraded cable service to all residents of the City at
standard installation cl1arges and monthly rates, in accordance
~
with Exhibit A. New occupied residences in active cable areas
shall be offered service within ninety (90) days after Grantee
receipt of a request for service.
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4.7 Residences Outside Residential Areas. Grantee may
petition Grantor for relief from serving residences located in
primarily commercial or industrial areas, or residences isolated
from normal residential areas. Grantor shall not unreasonably-
deny such relief.
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5. SYSTEH DESIGN AND PERFOru.1ANCE REQUIREHENTS
5.1 Channel Capacity. The upgraded cable television system
shall be constructed to deliver forty (40) channels of video
programming.
Subsequent to the completion of the second System and Services
Review, in accordance with Section 5.7 of Ordinance No.
30-85
and in accordance with Exhibits Band C, the Grantor may direct
Grantee to expand the system capacity to the minimum levels
indicated below, based upon the number of services generally
provided at that time to comparable cable systems in other
communities.
.
O.hnimum)
Signal Video
Cable Signal Frequency Channel
Net\'lork Direction ~~~ Capacity
Residential (A) Outbound 54-400 MHz 54 + FM
Residential (A) Inbound* 5-30 MHz 4+ data *
---
Institutional (B) Outbound 15 **
Institutional (B) Inbound 15 **
(Note:
*Activated in accordance with Exhibit B.
**Activated in accordance with Exhibit C.)
5.2 Satellite Earth Stations.
Grantee shall reasonably
provide a sufficient number of earth stations to receive signals
from all ope:r=ational communications satellites that generally
carry programs carried ~y cable systems, throughout the life of
the franchise.
.
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5.3 Capacity for Interactive Residential Services.
.
Grantee shall provide initially the capability for interactive
residential services. Activation of this capability and provision
of interactive residential services shall be provided according
to the provisions of Exhibit B. All customer equipment necessary
for such services, such as addressable interactive converters,
home terminals and home detectors, shall be provided to subscribers
by Grantee in accordance with established and uniform rate
schedules, when interactive services are offered.
5.4 Capacity for Institutional Services.
Grantee shall
provide the capacity for bidirectional video, voice and data
communications among designated businesses and/or public institu-
tions in the franchise area. This capacity shall be activated .
in accordance with the provisions of Exhibit C.
5.5 Cablecasting Facilities.
(a) Grantee shall provide a capital grant of Fifty-five
Thousand Dollars ($55,000) for local cablecasting facilities to
be used for PEG access.
The grant may be utilized either by the Grantor independently
or in conjunction with other jurisdictions served by the same cable
system to establish PEG cablecasting studios and related facilities
in the form and configuration that the franchising jurisdictions
determine to .be in the best common interest of the subscribers.
"
.i
The grant shall not be chargeable to franchise fees, in
accordance with the provisions of the Cable Communications Policy
.
Act of 1984.
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.
(b) Grant funds for these PEG access facilities shall be
provided as follows:
o $25,000 within sixty (60) days after the
effective date of this Agreement.
o $20,000 within one (1) year after the effective
date of this Agreement.
o $10,000 within two (2) years after the
effective date of this Agreement.
(c) Grantee shall provide an annual grant of One Thousand
Dollars ($1,000) for the term of the franchise for maintenance
and repair of PEG cablecasting equipment and facilities. This
grant shall not be chargeable to franchise fees.
(d) Grantee shall make available, for PEG access, the use
of a mobile studio van, for at least five (5) hours per week.
The use of the van shal~ include Grantee technical personnel
necessary to properly supervise the operation of the van and
equipment.
.
.
5.6 Interconnection. Upon Grantor request, Grantee shall
negotiate in good faith to interconnect the cable television
system with neighboring cable systems in the future. Within six
(6) months of a Grantor request, Grantee shall report to Grantor
the results of the negotiations.
5.7 Emergency Alert C~ability. Grantee shall provide an
emergency audio override capability to permit Grantor to interrupt
and cablecast an audio message on all channels simultaneously in
the event of disaster or public emergency.
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5.8 Standby Power. Grantee shall provide standby power ~
generating capacity at the cable communications system headend
capable of providing forty-eight (48) hours of emergency power
supply. Grantee shall maintain standby power system supplies at
critical system locations capable of providing two (2) hours of
emergency power supply.
5.9 Parental Control Lock.
Grantee shall provide subscribers,
upon request, with a parental control locking device or digital
code ~lat permits inhibiting the video portions of the premium
channels.
5.10 Status Monitoring. Grantee shall provide an automatic
status monitoring system when two-way communications capacity is
activated.
~
5.11 Technical Standards. The Federal Communications
Commission (FCC) Rules and Regulations, Part 76, Subpart K
(Technical Standards) and any amendments thereto, shall apply.
However, because of the recent development of interactive and
other innovative services, modifications of FCC standards, as
presented in the specifications below, are considered as necessary
to meet system service objectives.
Applicable Technical Standards
(1) Forward Signals -- Class I Channels. The upgraded
system shall be capable~of carrying ~rty __ (40 ) Class I
Television Channels and the full FM broadcast band.
The combined
forward trunk and distribution system shall deliver signals to
~
each subscriber's TV receiver that will meet or exceed the
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.
following specifications at the mean system temperature + 700 F.
This shall include the effects of drop cables, interior splits
and any terminal equipment such as descramblers and set-top
converters.
A. Second order beat ratio 51 dB
B. Third order beat ratio 51 dB
C. Hum 5 %
D. Composite beat ratio 51 dB
E. Cross modulation ratio 51 dB
F. Signal to noise ratio 43 dB
(2) Reverse Signals (When two-way capacity is activated.)
The reverse channels shall have the capability of providing return
signals from any subscriber tap to the extreme end of any area
without visually noticeable signal degradation or interference.
.
A. The system capability shall include transmission
of video, and both low and high speed data, whether analog or digital.
B. No more than +54 dBmV output level shall be
required out of any customer interface device to meet the system
specifications.
C. Where applicable, the end of the system specifi-
cations shall include the effects of any signal reprocessing
equipment necessary to achieve forward transmission.
D. For video signals, the signal delivered to the
subscriber's TV receiver, after being transmitted to the headend,
processed and retransmitted down a forward channel, shall meet
;
the Technical Standards of the FCC regulations, Part 76, Subpart K.
.
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, ,
6. SERVICES AND PROG~1ING
6.1 Initial Services and Progran@ing. Grantee shall
initially provide the services and programming in the tier
format as shown in Exhibit D.
Grantee shall not reduce the
number of program serv~ces without sixty (60) days prior written
notification to Grantor, if possible.
6.2 Leased Channel Service. Grantee shall offer leased
channel service at nondiscriminatory rates and on reasonable
terms and conditions in accordance with applicable law.
.I
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7. SUPPORT FOE LOCAL CABLE USAGE
7.1 Public Cable Usa~anagement. Grantor may delegate
to an independent non-profit entity, such as a Conrnission, Board
or nonprofit corporation the authority to manage any resources.
and other considerations provided by the Grantee and/or others,
designed to promote and develop public-benefit usage of the
cable system.
7.2 The Corrunission, Board or nonprofit corporation may be
established jointly with neighboring jurisdictions, at Grantor's
sole option.
7.3 Grantee Support for Public Cabl~stem Usage. Grantee
shall provide the following or equivalent support for public
cable usage, as a minimum:
(a) Provision of the capital funds for PEG access equipment
and facilities designated in Section 5.5 of this Agreement.
(b) Reasonable and nondiscriminatory use of Grantee's
local origination facilities, to the extent available, by non-
corrunercial tax-exempt organizations at no char~e.
(c) Conducting three (3) free video training workshops
annually for the first five (5) years of this Agreement, to
train corrununity and access users in cablecasting techniques and
equipment.
(d) Conducting a promotional campaign to familiarize
residents of the City with the cable system's access facilities.
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.
(e) Dedication of up to ten percent (10%) of the upgraded
cable system's Residential Network downstream capacity and twenty-
five percent (25%) of the cable system's Residential Network
upstream capacity for PEG use throughout the life of the franchise.
Should system capability be expanded in the future, additional
channels shall be dedicated for public use to total the percentages
indica ted above.
A new PEG access channel shall be made available, upon request,
no later than six (6) months after the currently used PEG channels
are utilized to the extent of carrying at least 50% non-duplicated
video programming during the weekday period between 8 A.M. and
11 P.M., for a consecutive thirteen (13) week period.
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8. RATES AND CHARGES
8.1 Initial Rates. The initial rates and charges for all
services shall be In accordance with Exhibit E.
8.2 Regulation of Basic Service Rates. Grantor shall retain
the authority to regulate basic service rates for the period
permitted by applicable law.
i
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.
9. TRAINING AND EMPLOYMENT REQUIREMENTS
9.1 Equal Employment Opportunity and Affirmative
Action Programs. Throughout the term of the franchise, Grantee
shall conduct its business as an Equal Employment Opportunity/-
Affirmative Action Employer.
In addition, throughout the term
of the franchise, the Grantee shall maintain a policy that all
employment decisions, practices and procedures are based on
merit and ability without discrimination in violation of state
of federal law on the basis of an individual's race, color,
religion, age, sex, national origin, or physical or mental
handicap. The Grantee's policy shall apply to all employment
actions including advertising, recruiting, hiring, promotion, .
transfer, remuneration, selection for training, company benefits,
disciplinary action, lay~off and termination. The Grantee shall
carry out this policy through continued dedication to a
determined and sustained effort to provide equal employment
opportunities to all by taking affirmative action to employ
and advance in employment qualified women, minorities, persons
who are physically or mentally handicapped and veterul1s. The
Grantee shall provide to the City a written Affirmative Action
Program to carry out this policy no later than sixty (60) days
after the effective d~te of this franchise.
"
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.
{
10. REGULATION
10.1 Franchise Regulation. The franchise granted under
this Agreement shall be subject to regulation by Grantor In
accordance with the provisions of Ordinance No.
30-85
and
applicable law. Grantor may, at its sole option, enter into
joint regulatory agreements with other Grantors in adjacent
jurisdictions served by the same cable system.
10.2 Remedies for Franchise Violations.
(a) In addition to the remedies for delays
In construction as specified in Ordinance No.
30-85 and
Section 4.3 of this Agreement, Grantor reserves the right
.
to impose the following remedy in lieu of liquidated
damages in the event Grantee violates any other material
provision of the franchIse, provided that Grantee has not
commenced corrective action within thirty (30) days written
notice by certified mail to the general manager of the Grantee:
Assess damages, not to exceed One Hundred
Dollars ($100) per day or per violation, for Grantee's individual
willful and/or repeated violation of any material provision of
the franchise or failure to take corrective action with respect
to a violation of any material provision of the franchise.
(b~ In the event the stated violation
"
is not reasonably curable within sixty (60) days, the
.
franchise will not be terminated or revoked or damages
assessed pursuant to Section 4.3 of this Agreement if the
Grantee provides, within the said sixty (60) days, a plan,
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satisfactory to the Grantor, to remedy the violation and
continues to demonstrate good faith in seeking to correct
said violation.
(c) In determining what level of remedy
for Grantee's violation is appropriate, Grantor shall take into
consideration the nature of the violation, the person or persons
bearing the impact of the violation, the nature of the remedy
required in order to prevent further such violations and such
.
other matters as the Grantor may deem appropriate; provided, however,
that adequate remedies must be imposed if the quality of service
is in any way materially lessened, or if any material provision
of this Agreement is not complied with.
(d)
within ten (101 days after receipt of
a written notice of a violation from Grantor, Grantee m?y request
a hearing before a Grantor-designated hearing officer in a full
9ublic proceeding affording due process. Such hearing shall be
held within thirty (30) days of the receipt of the request
therefore. No remedies shall be imposed prior to the conclusion
of the hearing and a reasonable opportunity for the Grantee to
cure the viola tion.
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11. SEPARABILITY
11.1 If any material section of Ordinance No.
30-85
and this Agreement, as determined by the Grantor or Grantee, is
held to be invalid or preempted by Federal or State regulations
or laws, the Grantor and Grantee shall negotiate appropriate
modifications to this Agreement to provide reasonable relief
from such invalidity or preemption.
If the parties are unable
to reach agreement on such modificationsi and if in Grantor's and
Grantee's opinion Grantor and Grantee may be bound legally with
respect to arbitration of the specific dispute, then the dispute
will be submitted to an arbitrator, in accordance with California
law, who will determine what modifications are appropriate and
the arbitrator's decision shall be binding on the parties.
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.
12. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
12.1 In the event Grantee's performance of any of
the terms, conditions, obligations or requirements of this fran-
chise or Ordinance No. 30-85 is prevented or impaired due
to any cause beyond its reasonable control or not reasonably
foreseeable, such inability to perform shall be deemed to be
excused and no penalties or sanctions shall be imposed as a
result thereof, provided Grantee has notified Grantor in writing
within thirty (30) days of its discov~ry of the occurrence of
such an event. Such causes beyond Grantee's reasonable control
or not reasonably foreseeable shall include, but shall not be
limited to, acts of God, war or act of war, civil emergencies
and labor unrest or strikes.
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13. IlOLD HARMLESS
13.1 The Grantee on behalf of itself, its successors
and assigns, shall defend, indemnify and hold harmless the Grantor,
its officers, boards, commissions, agents and employees, and each
of them, against and from any and all claims, demands, actions,
suits, liabilities and judgments of every kind and nature and
regardless of the merits of the same, arising out of or related
to the exercise or enjoyment of the franchise granted
pursuant to this Agreement and to Ordinance No. 3D-S5, including
costs of investigations, attorneys' fees and court costs in the
defense of any actions, to the extent that such claims or demands
are alleged to be the result of any error, omission, intentional
act or negligent act of Grantee or any persons employed by Grantee,
even if that Grantee employee is in error or by misinformation
alleged to be a Grantor employee.
~
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IN WITNESS WHEREOF, Grantor Llnd Gr.:1nt~e h<:lve exccutc~d
.
this Agreement the date and year first above wl-ittcl1.
APPROVED AS TO FORM:
CITY OF
DUBLIN
~{,A"k-f~k~<
City Attorney
A Municipal Corporation
~~c/rI~~
M<:lyor
1k I / 2,;;.{,
U7~~'.2J '
D.Jte:
ATTEST:
--) {
~- I
, .' I
t;LLY ( c-/ ?:;{~
City Clerk
.
(SEAL)
Corporate Seal
Date
Corporate Seal
,j
l3y
Pt"csident
Date
.
(OVER)
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EXHII3IT A
CONSTRUCTION AND SERVICE SCHEDULE
.
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""::.
EXHIBIT A
.
CONSTRUCTION AND SERVICE SCHEDULE
No sooner than one (1) year after the effective date of this
Agreement, Grantor, in conjunction with the other Grantors of
jurisdictions served by the cable system, may direct Grantee to
begin a system upgrade to provide channel capacity of a minimum
of forty (40) programmable video channels.
This direction shall be based on a review of the programming
carried on cable systems in the San Francisco Bay Area, and
findings that a significant number of program services, which
are considered desirable for local viewing, are not provided on
Grantee's system due to channel capacity limitations.
If Grantor does not find that an upgrade to forty (40) channel
capacity is necessary based on the initial review, Grantor may
conduct subsequent reviews at intervals no more often than each
six (6) months. The findings of any such subsequent review may
b~ utilized to direct Grantee to commence a system upgrade.
Grantee agrees to abide by such findings and direction.
Grantee agrees to complete the system upgrade within seven~y1llP
(72) months after receiving direction from Grantor to commence.
When upgraded service is available, all residents, except as
indicated in Exhibit G, shall be offered upgraded service at
standard installation charges and monthly rates.
No earlier than three (3) years after the completion of system
upgrade to forty (40) channels, the Grantor may issue findings
that the forty (40) channel capacity of the system is inadequate
in light of the available services generally offered to comparable
communities, and direct the Grantee to expand the system capacity
to no more than fifty-four (54) channels within a three (3) year
period. The burden of proof shall be upon the Grantee, to demon-
strate that such expansion would not be feasible, and, in the
absence of such proof, the Grantor may find that a material breach
of the franchise will occur if the Grantee refuses to expand
system capacity accordingly.
For the purpose of reviewing the average number of program
services carried on cable systems in the San Francisco Bay Area,
the following list of cable systems shall be used:
l
MSO/System
Gill/San Jose
Jones/Castro Valley
Hearst/Santa Clara
Hearst/Los Gatos
Hearst/Newark
Hearst/Milpitas
TCI/Berkeley
TCI/Richmond
TCI/San Carlos
.
.
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TCI/San Mateo
TCI/Millbrae
TCI/Daly city
TCI/Sunnyvale
TCI/pacifica
united/Cupertino
united/Alameda
United/Foster City
united/Hayward
united/San Leandro
Viacom/Pittsburg
Viacom/Napa
Viacom/Marin
viacom/San Francisco
Viacom/Healdsburg
Viacom/Pinole
Western/South San Francisco
Western/San Mateo
Western/Concord
EXHIBIT B
PLAN FOR PROVISION OF
INTERACTIVE RESIDENTIAL SERVICES
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EXHIBIT B
PROVISION OF INTERACTIVE RESIDENTIAL SERVICES
Viacor:1 shall provide interactive service to residential subscribers in the
City within one' (1) year of the sane interactive service being regularly and
connercially available on a non-experir:1cntal basis to subscribers in forty
percent (40%) of conparahle systems in the San Francisco Bay Area. and upon
receipt of a \lritten request fror.1 the City to initiate such service. Prior to
naking such a request. the City shall conduct a public hearing to revie\l
testinony about interactive service. including the need for such service
\'Iithin the City and the potential cost to subscribers of such services.
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EXHIBIT C
PLAN FOR PROVISION OF
INSTITUTIONAL SERVICES
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EXHIBIT C
PROVISION OF INTERACTIVE INSTITUTIONAL SERVICES
Viacon shall provide interactive service to public agencies and businesses in
the City \'Iithin one (1) year of the same interactive service being regularly
and commercially available on a non-experimental basis to subscribers in fot'ty
percent (40%) of conparable systens in the San Francisco Bay Area, and upon
receipt of a written request from the City to initiate such service. Prior to
na~ing such a request, the City shall conduct a public hearing to revie\l
testimony about interactive service, including the need for such service
\lithin the City and the potential cost to subscribers of such services.
'."
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EXHIBIT D
PROGRAHMItJG. SERVICES
AND TIER STRUCTURE
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EXHIBIT 0
INITIAL SERVICES AND PROGRAHtHUG
The follO'f/ing channel line-up is for informational purposes only. Viacon
reserves the riQht to add, delete, or substitute channels not required for
carriage by the FCC or by this agreenent (PEG channels).
BASIC SERVICE
Presently Offered
Broadcast Call
Channel Letters Affiliate
"
L
3
4
5
36
7
.
20
9
10
40
44
13
32
38
11
54
60
14
20
33
30
26
48
.
42
KTVU
KCRA
KRON
KPIX
KICU
KGO
KTZO
KQED
KXTV
KTXL
KBHK
KOVR
KQEC
KVOF
KNTV
KTEH
KCSr1
KDTV
PEG
PEG
PEG
KTFS
KSTS
KFCB
City
IND
NBC
NBC
CBS
WD
ABC
IND
PBS
CBS
IND
IND
ABC
PBS
IND
ABC
PBS
PBS
ItJD
Christian Channel
School Channel
Local Access
IUD
IND
IND
Oakland
Sac rar.lento
San Francisco
San Franci sca
San Jose
San Franc; sco
San Franc; SCO
San Franc; sco
Sacranento
Sacranento
San Franci sca
Sacrar.lento
San Franc; sco
Sc:n Franci sco
San Jose
San Jose
San Ilateo
San Franc; sco
Local
Local
Local
San Franc; sco
San Jose
Concord
SATELLITE SERVICES
Presently Offered:
CNN
tHV
ESPIJ
C-SPAN
Lifetir.le
HTBS
Anticipate Adding:
USA Net\'lOrk
Nickelodeon
PAY SERVICES
Presently Offered:
Playhoy
Disney
HBO
ShO\.,tine
Anticipate Adding:
The Classic Movie Channel
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EXHIBIT E
INITIAL RATES AND CHARGES
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EXHIBIT E
INITIAL RATES AND CHARGES
.
Thp. foll o\'li ng rates and charges are bei ng provi ded for i nforr.1ati ona 1
plll'poses only. * Grantee r.1ay revi se rates in accordance \/i th Federal 1 au.
Basic Service
Basic Additional Outlet
Satellite Tiel"
Sho\ltine
HOfile Box Office
Disney
Pl ayboy
Classic Movie Channel
Remote Control
First Outlet Installation
Secondary Outlet Installation
Reconnection
Relocations
VCR Hook-u ps
$ 9.95/r.lOnth
$ J.50/nonth
$ 4.95/nonth
$10.95/nonth
$11 .95/r.lOnth
$10.95/r.lOnth
$ 8.95/nonth
$ 5.95/r.1onth
$ 3.00/rilonth
$45. 00
$ 15.00
$20.00
$20.00
$20.00
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*These rates are exclusive of franchise fees.
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I<C\ u,/(; rei ; 1~~:l1-~:l5 ; 5:()(W~I: SHEKMAN & }-fOWARO.....
..,":'~".IW' ~ u:'.J:> r"....'hLlUOL.1I'l l-f7Y'q<l Lrt'l.. ::>ll!1-t;l.),:).bb=>l IO'~M
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TC II SM13 : # :l
, PI=lGE:05
EJlhlblt 1
Change af Control CORSent Agl'Bement
Thia Consetrt A;reement, dated Decemb.~ 11, 1995. is entered Into between TOI Communicatluna.lnc. ("Telc')
alld the CilY ot OLlblin ("Grantor';.
RECITALS
A. Ttde.Vue Systems. Inc. dlblaNiacorn Cable ("FmOChiSe$'11s the duly authorized holdAr of a franchise (the
"Franehiae'j authorizing OfJ'fjratiOll of a cable television sy510lTl (Ihe "System") I0Nicing the rasiderlS at
the Grantor.
8, Franchlllte and lele have requested thai the Grantor confOsm to lhG change of col1trol 01 Franchisee 110m
Viacom Inc. to TCIC allaa more tully delCrtbed 1ha fCC I"Or'rn 394, filed with the Granto~ in this tegard.
c. Grantor Is willing to consent la fhl!!l c::ha.nge of c{'lIltrol of Franchisee, upon the condition (hat Tele execute
mia AgrMmem.
D. iCIC is willing to exeoute thl. Agreement in conMainn with obtaining Grintor's CCllfilnt, with the
understanding thlt thl. Agreement will become eKeetlve upon oon8IJmmatiUn of the ohange of CQntrol of
FranctllM6 from Vlacom, Inc. to rele.
IN eONSIOERA TlON OF THE FOREGOING, Ind 01 the abligatinns contiin~ below, Grantor afld Tete agr-. 15
follows:
Section 1
Th8 consents or the Grantor to the Change 0' control 01 Franchis9tl do not canst.ute and shall no! be construed to
COn!slilutfil a waIver of .ny obllgatlonl 01 Franchil!lIIle Dr any 01 its succ:ftsaors in in1ltrHt under the Franchise or the
Cable relevision Fnanohi88 OrdinarY:ff (Chapter 3.20, Oubin Municipal Coda.)
Section 2
The Gramer ard TCIC on behalf of the Franchis" agrB9 that, as of thO date of this Resolution: a) thtt Franchise
was property granted to the Frallchlsee, is vafid, remains in lull fOrae and effect, and expires on December 31,
2000, !Wbject to opli'Jns, if any, to extend the term: b) the Franchise AUpeliedeli all other agreemeru batween too
Franchisee and tho Grantor and represents the emlfQ understandIng of the part1itll. Tere wiU cause 10 be i~ued a
replenishable letter of credit to 1hft Grantor in the amount 01 $50,000 to guarantee the per10rmance of.he
Franchlaee in :satisfactiOn of the Cable Television Franchise Ordinance, Dublin Municipal Codl Section 3.20.100
(F).
Section 3
rele l!IcknowledglD and agreeI1P1at. notwithltandlng Ihe chang8 of control, Franchis" femllns leg~ly
responsible for any d.lautt under1he I=ranchise not ourrontly known to Glantor, including. bu1 notlimit.d 10, an~
franchise fees which may b. due to the Qrantor.
Secllon 4
Any interest In the System and thQ Franchi.. or Ihe control related thereto. 11'1~1 be transferred 10 any entity wholly
owned by TCIC or under common control witn TCIC upon notice to the Grantor.
Section 5
The Gnmtor hereby consenls to and apptov(ll~ Ih& assignment. mortgage, pl&dg8, Or other emOl,lrnbrance, if en)'/ of
the FranchiM, Syst9m or aBaetE rela1IMg thorota, or QI the imlttl!lls In tho permitted hefderthereof, u collateral lor
a IQiln.
RCV BY:TCI :12-21-95 ; 5:07PM;
-~~.~l ::eo lc:.s:; "k'lI'1'W!:LIN C,~S)) ~ lJ-"'C ~11,H3JJ-6~1
SHERMAN & HOWAR~
rn:m.
.. .,'
,. .'
Tel/SMB :# 3
~JQl6
8_~.
TCIC agree$ thit ~ wll cause the Franchisee to complete the OUblkl portion 01 Ihe yokJntary r;yatem upgrade
currently under con$1fUclian In the City 01 Livermore, and shall off.r tx.olnded programming Oil the Oublln system
no later than Oecemb.r 31, 1987. It the Dublin portian of the voluntary 8)'lIem \Jpgr~de is not eompleted by
Jar"4Jlry 1, 1998, TCIC will Clute th. F',.anchis.. to pay to Grantor Iiqulct.ted damages al descn'bed lh aoclion -4-3
of the Franchr..-Agrelrnent. 5ubject,to the Foree MaJlure conditions described In Section 12,1 of the franChise
Agreement.
Section 7
Section 7.3(e) of the Franchise PQreement is deleted and the rallowing language is substituted;
Upon completion of the Dublin portion of the voluntary Iyttem upgrade cunentty under eo""ru~ion in the City of
Livermore due to be completed no Iat.rthan Oec9mber a1, 1991, the French.ee will pro\licle the Grantor a total 0'
thiBe (3) peG acoess channels, one of whlcn will bel shared wilh leased aect" USIf'I in accordance with federal
law, 10 be used el(r::luslvely by the Gritntor and ",lied and the ctties of livennor., PI!8!8ntOIl, and San RirrtOn,
The Gfanlor, in conjunction with thi! cltles of PIeBsanlon, Livermore, and San Ramon shall d.,ignatt) ana of the
three F'I!O on.nne't 10 be shared channel with leued access programming in .ccordance with fedelallaw.
Grantor a"rl" 10 allow Franchisee to place IIIIed access pl"Ogramming on l?let shared channel, using any 11me
sbls net Uled by 1h. ch181.
Section I
.
AI I part 01 the trans1tr, Te,e, on behalf of the Franchisee, agrees .and ac*nowledges that a) this approving
agreement la not a new fl'i\nchise agreernf;lflt, the granting af I frlnchi$e, or the ren.wal Of tha axisting franchiSi,
but rather il exclusively an apr..men! to the chDnG" of CJQt'1tro/ of the Franchisee. and neither Iffeds nor .
pr&judieA~ i.., any way the G(antot'!!I rlght& (n.r8under; and b) that ClOlYlpl"noe with the Francl'Vse. illS of Ihf;t ~te of
Ihe closing of thl Trat1sactions. is ",Ither oommert:ially impracticabfe 8S the terrn is used in S<lctlol1 &25 (I) of 1he
Cabl. Communications ~OliCy Act oj 1984 andlor the OBbl' Television Consumer Protection and CompeUtion Ad
of 1 ~2 (coJlgctlv~"v the NCable Aot~ll'lor economicallv infeasible upon the dosing at the changw 0' contl'tll based
on (1) any and III debt service incurred, Of to be inculT8d, to directly Or indirectly finance th. change of CXlntrol, or
(2) any retUrn on equ.y mad., ar to be made, based upon lh8 aquity portion of the ilnanclng relating to lhe change
of r;ontrol.
Section I
TOIO agreelllhal the Grantor's approval at the chal'lgl of contral j& rot to be CQf1itrued by Tele as a rebuttal ot
the P...~tio" that goodwill should be disallowed trom the rate ba.. forlhe purpose of any proceeding to
calc1Jlate ordatermlne any regulated filte subject to Grantor's juriSdiction,
section , 0
Th~ AQrellfTlClnt shall become effective on the dale that control 01 the FranchisM is tran&fetted frQm Viacom lne.
to TeIC.
AGREEC BY:
CIty 01 Cublln ii'n') 11 / ^ I
Slgr1atu,..:~1 ~
Name~uy S. Houston
Title: Mayor
Tel ComlTlmications, I
Signature:
NBme: St~en M. Brett
Tltl.: Vice President
DlIIhil:
ATTES
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