HomeMy WebLinkAboutOrdinances_2357_CCv0001.pdf ORDINANCE NO. 2357
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF REDLANDS
APPROVING A FRANCHISE AGREEMENT WITH TCI CABLEVISION
AND REPEALING ORDINANCE NO. 1480
THE CITY COUNCIL OF THE CITY OF REDLANDS DOES ORDAIN AS
FOLLOWS:
Sectionj, A Franchise Agreement for the provision of cable television services
within the City of Redlands is hereby approved in the form attached hereto as Exhibit "A" and
the Mayor is hereby authorized to execute the>Franchise Agreement in behalf of the City.
Section 2. Ordinance No. 1480 is hereby repealed.
Section 3. The Mayor shall sign this ordinance and the City Clerk shall certify to
the adoption of this ordinance and shall cause it, or a summary of it, to be published once in
the Redlands Daily Facts, a newspaper of general circulation within the City and thereafter this
ordinance shall take effect as provided by law.
Mayor of the City of Redlands
ATTEST:
C/
City 'Xerk
—�-Z
1, Lome. Poyzer, City Clerk of the City of Redlands, California, do hereby certify that the
foregoing ordinance was duly adopted by the City Council at a regular meeting thereof held on
the 5th day of August, 1997, by the following vote:
AYES: Councilmembers Gilbreath, Cunningham, Gil, Banda;
Mayor Larson
NOES: None
ABSENT: None
Q.—
City'3*k, City oo Udnds., California
Clark-.Ord.1480
EXHIBIT A
ORDINANCE NO. 2357
CABLE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF REDLANDS, CALIFORNIA
AND
TCI CABLEVISION OF CALIFORNIA, INC.
EFFECTIVE
August 5, 1997
Clerk:Contracts-TCI Agreement
FRANCHISE AGREEMENT
This Franchise Agreement ("Franchise") is between the City of Redlands, hereinafter
referred to as "City" and TCI Cablevision of California, Inc., hereinafter referred to as
"Grantee."
Provided that Grantee complies with the provisions of this Franchise, City has determined
that the financial, legal, and technical abilities of Grantee are reasonably sufficient to
provide services, facilities, and equipment necessary to meet the future cable-related
needs of the community, and desires to enter into this Franchise with Grantee for the
construction and operation of a Cable System on the terms set forth herein.
SECTION_1
Definitions
For the purpose of this Franchise, the following terms, phrases, words, and abbreviations
shall have the meanings ascribed to them below. 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:
"Cable Act" means the Communications Act of 1934, as amended by the Cable Act of
1984, the Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, and as may be further amended from time to time.
"Cable Services" shall mean (A) the one-way transmission to Customers of (i) video
programming, or (ii) other programming service, and (B) Customer interaction, if any, which
is required for the selection or use of such video programming or other programming
service.
"Cable System" shall mean a facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide
Cable Service which includes video programming and which is provided to multiple
Customers within a community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (B) a
facility that serves Customers without using any Public Way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of title 11 of the Cable Act,
except that such facility shall be considered a Cable System (other than for purposes of
Section 621 (c)) to the extent such facility is used in transmission of video programming
directly to Customers unless the extent of such use is solely to provide interactive on-
demand services; (D) an open video system that complies with Section 653 of title VI of
the Cable Act; or (E) any facilities of any electric utility used solely for operating its electric
utility system,
"Channel" means a portion of the frequency band capable of carrying a video signal or
combination of video signals on a twenty-four (24) hour per day basis.
"Customer" means a Person who lawfully receives Cable Service with Grantee's express
permission.
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"FCC" means Federal Communications Commission, or successor governmental entity
thereto.
"Franchise" shall mean the initial authorization, or renewal thereof, issued by City, whether
such authorization is designated as= a franchise, permit, license, resolution, contract,
certificate, or otherwise, to construct and operate the Cable Systern.
"City" means the City of Redlands, or the lawful successor, transferee, or assignee
thereof.
"Grantee" means TO Cablevision of California, Inc., or the lawful successor, transferee, or
assignee thereof.
"Gross Revenues" mean any revenue received by Grantee from the operation of the Cable
System to provide Cable Services in the Service Area, provided, however, that such phrase
shall not include: M any tax, fee, or assessment of any kind imposed by City or other
governmental entity on a cable operator, Customer, or both, solely because of their status
as such; 00 any tax, fee or assessment of general applicability which is unduly
discriminatory against cable operators or Customers (including any such tax, fee, or
assessment imposed, both on utilities and cable operators and their services), (Iii) any other
special tax, assessment, or fee such as a business, occupation, or entertainment tax, and
(iv) unrecovered monies owed from Customers (bad debt) .
"Person" means an individual, partnership, association, joint stock company, trust,
corporation, or governmental entity.
"Public Way" shall mean the surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way,
lane, public way, drive, circle, or other public right-of-way, including, but not limited to,
public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible
uses and any temporary or permanent fixtures or improvements located thereon now or
hereafter held by City in the Service Area which shall entitle City and Grantee to the use
thereof for the purpose of installing, operating, repairing, and maintaining the Cable
System. Public Way shall also mean any easement now or hereafter held by City within
the Service Area for the purpose of public travel, or for utility or public service use
dedicated for compatible uses, and shall include other easements or rights-of-way as shall
within their proper use and meaning entitle City and Grantee to the use thereof for the
purposes of installing and operating Grantee's Cable System over poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to the Cable System.
"Service Area" means the present municipal boundaries of City, and shall include any
additions thereto by annexation or other legal means.
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SECTION 2
Nature and Term of Grant
2.1 Grant. City hereby grants to Grantee a nonexclusive Franchise which authorizes
Grantee to construct and operate a Cable System in, along, among, upon, across, above,
over, under, or in any manner connected with Public Ways within the Service Area and for
that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in,
on, over, under, upon, across, or along any Public Way and all extensions thereof and
additions thereto; such poles, wires, cables, conductors, ducts, conduits, vaults,
,manholes, pedestals, amplifiers, appliances, attachments, and other related property or
equipment as may be necessary or appurtenant to the Cable System. Nothing in this
Franchise shall be construed to prohibit Grantee from offering any service over its Cable
System that is not prohibited by federal or state law.
2.2 Term. The Franchise granted hereunder _shall be for a term of fifteen (15) years
commencing on the effective date of the Franchise as set forth in Section 12.8, unless
otherwise lawfully terminated in accordance with the terms of this Franchise.
2.3 Compliance with Ordinances. Grantee shall comply with any and all lawful actions
of City which affect Grantee's operations under this Franchise, whether prior to or
subsequent to the effective date of this Franchise, so lung as such actions do not
materially affect the rights or obligations of Grantee hereunder. Except for ordinances and
regulatory actions promulgated' for the protection of the public health, safety and welfare,
in the event of a direct conflict between any ordinance or regulatory action of City and the
terms of this Franchise, the Franchise shall prevail.,
SECTION 3
General Street Use Construction and Technical Standards
3.1 �Qnrlitions of Street Occupancy. All transmission and distribution structures,; poles,
other livres, and equipment installed or erected by Grantee pursuant to the terms hereof
shall be located so as to cause a minimum of interference with the proper use of Public
Ways and with the rights and reasonable convenience of property owners who own
property that adjoins any of such Public Ways;
3.2 Restoration_ of Public Ways. If during the course of Grantee's construction,
operation, or maintenance of the Cable System there occurs a disturbance of any Public
Way by Grantee, Grantee shall, at its expense, replace and restore such Public Way to a
condition reasonably comparable to the condition of the Public Way existing immediately
prior to such disturbance.
3.3 Relocation or Removal at Request of City.. Upon its receipt of reasonable advance
notice, not to be less than five (5) business days, Grantee shall, at its own expense,
protect, support, temporarily disconnect, relocate in the Public Way, or remove from the
Public Way, any property of Grantee when lawfully required by City by reason of traffic
conditions, public safety, street abandonment, freeway and street construction, change or
establishment of street grader; installation of sewers, drains, gas or water pipes, or any
other type of structures or improvements by City. if public funds are available to any
Person lysing such street, easement, or right of way for the purpose of defraying the cost
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of any of the foregoing, City shall make application for such funds on behalf of Grantee.
Grantee shall reimburse City for all administrative costs associated therewith.
3.4 Relocation at Reguest of Third Party, Grantee shall, on the request of any Person
holding a building moving permit issued by City, temporarily raise or lower its wires to
permit the moving of such building, provided: (a) the expense of such temporary raising or
lowering of wires is paid by said Person, including, if required by Grantee, making such
payment in advance; and (b) Grantee is given not less than ten (10) business days advance
written notice to arrange for such temporary wire changes.
3.5 Trimming of Trees and Shrubbery. Grantee shall not trim trees or other natural
growth in the Service Area without obtaining the appropriate permits required by the City.
Grantee shall use proper arboricultural practices and compensate City for any damages
caused by such trimming, or shall, at its own cost and expense, replace any trees or
shrubs damaged as a result of any construction of the Cable System undertaken by
Grantee. Such replacement shall satisfy any and all obligations Grantee may have to City
pursuant to the terms of this Section and City laws. Grantee shall trim any tree or other
natural growth which poses an imminent danger to the public in accordance with City's
established procedures for such activity.
3:6 Safety ,Requirements. Construction, installation, and maintenance of the Cable
System shall be performed in an orderly and workmanlike manner. All such work shall be
performed in substantial accordance with applicable FCC or other federal, state, and local
regulations and the National Electric Safety Code. The Cable System shall not
unreasonably endanger nor interfere with the safety of Persons or property in the Service
Area.
3.7 Aerial and Underground Construction. In those areas of the Service Area where all
of the transmission or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, Grantee shall construct,
operate, and maintain all of its transmission and distribution facilities underground.
Grantee may construct aerial plant in underground utility areas only when Grantee and City
agree that the existing facilities are not capable of receiving Grantee's cable and other
equipment without technical degradation of the Cable System's signal quality. In those
areas of the Service Area where the transmission or distribution facilities of the respective
public utilities providing telephone communications and electric services are both aerial and
underground, Grantee shall have the sole discretion to construct, operate, and maintain all
of its transmission and distribution facilities, or any part thereof, aerially or underground.
Existing poles, conduits and other related structures shall be used whenever reasonably
possible. Grantee shall not construct nor install additional poles, conduits or other
structures in the Public Way without obtaining the appropriate permits required by City.
Nothing contained in this Section shall require Grantee to construct, operate, and maintain
underground any ground-mounted appurtenances such as taps, line extenders, system
passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or
other related equipment. Notwithstanding anything to the contrary contained in this
Section, in the event that all of the transmission or distribution facilities of the respective
public utilities providing telephone communications and electric services are placed
underground after the effective date of this Franchise, Grantee shall only be required to
construct, operate, and maintain all of its transmission and distribution facilities
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underground if it is given reasonable notice and access to the public utilities' facilities at
the time that such are placed underground.
3.8 New Developments. City shall use its best efforts to provide Grantee with written
notice of the issuance of building or other development permits for planned
commercial/residential developments within the Service Area requiring undergrounding of
cable facilities. City agrees to require as a condition of issuing the permit that developer
give Grantee access to open trenches for deployment of cable facilities and written notice
of the date of availability of trenches. City agrees to require that such notice must be
received by Grantee at least ten (10) business days prior to availability. Developer shall be
responsible for the digging and backfilling of all trenches. Grantee shall be responsible for
engineering, deployment labor, and cable facilities. Installation from utility easements to
individual homes or other structures shall be at the cost of the home/building owner or
developer unless otherwise provided.
3.9 Required Extensions of Service. Grantee shall extend its Cable System along the
Public Ways at no cost to Customers other than the usual installation fees charged to
Customers, whenever there are at least fifty (50) residences per mile of cable-bearing
strand for trunk or distribution cable for a proportionate number of residences over a lesser
distance).
3.10 Customer,Changes for lExtensiong pf Service. No Customer shall be refused service
arbitrarily. However, for unusual circumstances, such as a Customer's request to locate a
cable drop underground in an area normally serviced by aerial plant, existence of more than
125 feet of distance from distribution cable to connection of service to a Customer, or a
density of less than fifty (50) residences per mile of cable-bearing strand for trunk or
distribution cable, service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor, and easements.
For the purpose of determining the amount of capital contribution in aid of construction to
be borne by Grantee and Customers in the event that trunk and/or distribution plant must
be extended to a point from which a standard installation is possible, Grantee shall
contribute an amount equal to the construction and other costs per foot, multiplied by 105
for each residence. Customers who request service hereunder shall bear the remainder of
the construction and other costs on a pro rata basis. [Example: Two homes in a rural area
request service. The first is 300 feet from the distribution cable (not including up to 125
feet of drop cable) and the second is 200 feet further (not including up to 125 feet of drop
cable), for a total of 500 feet. The construction cost is equal to $3 per foot. So the total
cost of the first extension is $900, and the cost of the second is $600. Grantee shall
contribute the cost of construction per foot x 105 per home, or $3 x 105 = $315 per
home. Therefore, the customer shall pay $900 - $315 = $585 and $600 - $315 = $285
respectively.) Grantee may require that the payment of the capital contribution in aid of
construction borne by such potential Customers be paid in advance.
3.11 Service to Public Buildings. Grantee shall, upon request, provide without charge
one outlet of Basic Service to those City offices, fire stations, police stations, other
emergency service centers, and public school buildings that are passed by its Cable
System, and additional outlets as necessary to provide Basic Service specifically to the
offices of the Mayor, City Manager, City Attorney and the Public Works Director. Grantee
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shall not be required to provide an outlet to such buildings where the drop line from the
feeder cable to said buildings or premises exceeds 125 feet unless the appropriate
governmental entity agrees to pay the incremental cost of labor and materials for the
installation beyond 125 feet. If the appropriate government entity provides open trench or
conduit to the facility, Grantee shall provide all materials without charge.
City shall not use the Cable Service provided by Grantee to these public buildings for any
commercial purpose, nor shall the City distribute the Cable Service to any additional
buildings or outlets without Grantee's permission and appropriate payment. If additional
outlets besides those specifically named above are desired within public buildings, the
building owner shall pay the usual installation costs associated therewith, including, but
not limited to, labor and materials. City shall take reasonable precautions to prevent any
use of Grantee's Cable System in any manner that results in any significant loss or damage
to the Cable System. Users of such outlets shall hold Grantee harmless from any and all
liability or claims arising out of their use of such outlets, including but not limited to, those
arising from copyright liability.
3.12 Technical Standards and Performance,-,-Tgsting. Grantee shall comply with all
applicable FCC rules and regulations regarding technical standards and performance testing
for cable systems. Grantee shall, at its own expense, repair, renew, change and/or
improve its Cable System from time to time as is necessary to meet or exceed these
standards.
3.13 Standby Power. The Cable System's headend, satellite earth stations and any hubs
or nodes shall be equipped with an emergency power system to maintain continuous
power in the event of a local power outage for a minimum of three (3) hours.
3.14 Emeraencv Alert System. Grantee shall comply with all applicable FCC regulations
regarding emergency alert systems, including equipment standards and procedures for
alerting capabilities. Except to the extent expressly prohibited by law, City shall hold
Grantee, its employees, officers and assigns harmless from any claims arising out of the
emergency use of its facilities by City, including, but not limited to, reasonable attorneys'
fees and costs.
3.15 'Construction Notification to City. At ninety (90) day intervals during any major
construction of the Cable System , Grantee shall provide City with a general description of
the activities to be undertaken during the following ninety (90) days including the
geographical area of the Service Area which will be affected by such activities. Such a
report must be filed prior to undertaking any major construction activities. Major
construction is defined as work which affects twenty-five percent (25%) or more of the
Cable System and takes six (6) months or more to complete.
3.16 Construction Inspection. All design and construction plans and work may be
inspected by City. If the construction does not meet all applicable standards and laws,
City may order corrective measures at Grantee's expense. City shall give Grantee at least
twenty-four (24) hours advance notice that inspection is requested.
3.17 Ston Work Notice. Whenever construction is being performed in a manner contrary
to City's applicable rules and ordinances, City may order the work stopped by written
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notice served on any Person engaged in or causing the construction. Any work stopped
shall not resume until authorized in writing by City.
3.18 gonstruplion Notifigation to Residents. In the event of any major construction of
the Cable System, Grantee shall provide a general summary of the construction activities,
including the type of cable equipment to be installed, to be published in a newspaper of
general circulation in the= Service Area, at least sixty (60) days prior to construction and
again approximately thirty (30) days prior to construction. These notices shall also provide
Grantee's telephone number which may be called for information.
Grantee shall provide timely notification, but in no case less than seven (7) days in
advance of construction, to all residents who may be affected by any major construction
activity in their area, by direct mail, door hangers, or other effective means, and provide a
copy of such notice to City. Each such notice shall also generally describe the time of
work and the nature of the potential impact on such residents.
3.19 Construction Hours. All construction shall be conducted during the hours and days
as provided in City's applicable rules and ordinances, unless otherwise authorized in writing
by appropriate representative of City.
3.20 Location of Utilities. It shall be Grantee's responsibility to verify the location of all
existing utilities in the Public Way to ensure that such utilities are not damaged during
construction, and to repair any property located utilities damaged during construction. Any
location marks made in the Public Way by Grantee shall be non-permanent.
3.21 Mitigation of Visual Impact. Grantee shall take necessary and reasonable steps to
reduce the visual impact of all above-ground cable equipment, including maintaining the
cable equipment in good condition, complying with any City rules and ordinances regarding
graffiti, and placing overhead drops as close as possible to other utility drops. If City
requires such from all users of the Public Way, Grantee shall install reasonable landscaping
or barriers to conceal equipment placed in the Public Way from public view. Ongoing
maintenance of any landscaping installed for mitigation of visual impacts shall be the
responsibility of the property owner.
3.22 Removal of Deactivated Cable Equipment. Within one hundred eighty (180) days
following deactivation, Grantee shall remove all deactivated cable equipment from the
Public Way, whether overhead or underground, except in instances where City has given
prior written approval allowing Grantee to abandon in place specified underground
equipment.
SECTION 4
Channel Cal2acity
4.1 Initial Channel Capacity. Frorn the effective date of this Franchise, Grantee shall
offer a minimum of forty-two (42) Channels to Customers.
4.2 Additional Channel Cgppcity. Grantee shall increase the number of Channels
programmed and offered to all Customers in the Service Area to at least seventy-five (75)
as soon as possible, but no later than December 31, 2000. The technical manner in which
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additional Channels are made available is within the sole discretion of Grantee, as long as
the technical standards required in Section 3.12 are consistently maintained.
4.3 Return Channel Capacity. Activation of a return or upstream path on the Cable
System shall not be required until such time as mutually agreed to by both City and
Grantee.
4.4 Quarterly Reports. Grantee shall provide City with a quarterly report on its plans to
increase the Channel capacity of the Cable System. Such report will be filed with the City
within 30 days after the end of each quarter beginning with the quarter ending September
30, 1997, until the quarter ended December 31 , 2000, or until the additional Channel
capacity described in Section 4.2 is available to all Customers, whichever is sooner.
SECTION 5
Access Channels and Support
5.1 Initial Education grid.Government Access Channels. City shall give written notice to
Grantee at such time as it desires to activate one Channel on the Cable System for non
commercial educational programming and/or one Channel for non-commercial
governmental programming. Within fifteen (15) days of receiving such notice, Grantee
shall inform City of the estimated time needed to make the desired Channel(s) available,
including an explanation of any expected delays. In no instance will the time between
receipt of the initial notice and the activation of the desired Channel(s) be greater than one
hundred eighty (180) days. City or its designee shall administer the educational and/or
governmental programming offered on these Channels.
5.2 Additional Education and Government Access Channels. At such time that the
Cable System is capable of delivering at least sixty (60) Channels to all Customers in the
Service Area, City may request that one additional Channel for non-commercial educational
programming and one additional Channel for non-commercial governmental programming
be provided (for a cumulative maximum of two (2) channels for governmental programming
and two (2) channels for educational programming) by giving one hundred eighty (180)
days advance written notice of such to Grantee. City or its designee shall administer the
programming offered on these Channels.
5.3 Use of Education and Government Access Cbannelis) by Grantee. Grantee reserves
the right to program the education and government Channel(s) during the hours not used
by City or its designee,
5.4 Indemnification for Education and Government Access Channels. City agrees to
indemnify, save and hold harmless Grantee from and against any liability resulting from the
use of the education and government access channel(s) by City or its designee.
5.5 Caoital Su ort for Education and Government Pro arammina. At any time during the
first ten (10) years of the Franchise term, City may request capital support from Grantee
for educational and governmental programming. Such support may be in the form of
cameras and other video production equipment needed to tape City Council meetings,
Cable System extensions or interconnections necessary to facilitate live origination feeds
from government or educational buildings, or field equipment for taping community events
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to show on the education and government access channel(s). Upon determination that
such support is desirable, City shall notify Grantee in writing of these needs and the
amount of capital support required. Grantee shall provide the capital funds or in-kind
capital contributions requested in a timely manner, up to a maximum cumulative value of
$100,000.
SECTION 6
Qustorne.rSery.ice andConsumer ProtecCion,
6.1 Definitions. For purposes of this Section, the following definitions shall apply:
A. "Normal Business Hours" means those hours during which most similar businesses
in the community are open to serve Customers. In all cases, "Normal Business Hours"
shall include some evening hours at least one night per week and/or some weekend hours.
Grantee shall notify its Customers and City of its Normal Business Hours.
B. "Normal Operating Conditions" means those service conditions which are within the
control of Grantee. Those conditions which are not within the control of Grantee include,
but are not limited to, natural disasters, civil disturbances, power outages, telephone
network outages, permit delays, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of Grantee include, but are not limited to,
special promotions, pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the Cable System.
C. "Service Interruption" means> the loss of picture and/or sound on one or more
channels.
6.2 Office Hours-and Telephone Availability,
AGrantee shall maintain a local, toll-free or collect call telephone access line <which
shall be available to Customers twenty-four (24) hours a day, seven (7) days a week.
Trained customer service representatives of Grantee shall be available to respond to
Customer telephone inquiries during Normal Business Hours, as defined herein. After
Normal Business Hours, an access line shall be available to be answered by a service or an
automated response system, including a phone answering system. Inquiries received after
Normal Business Hours shall be responded to by a trained customer service representative
of Grantee on the next business day.
B. Under Normal Operating Conditions, as defined herein, the following standards shall
be met no less than ninety percent (90%) of the time, as measured by Grantee on a
quarterly basis:
(i) Telephone answer time by a customer service representative, including wait
time, shall not exceed thirty (30) seconds from when the connection is made.
{i0 If the call needs to be transferred, transfer time shall not exceed thirty (30)
seconds.
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C. Under Normal Operating Conditions, as defined herein, Customers shall receive a
busy signal less than three percent (3%) of the time, as measured by Grantee on a
quarterly basis.
D. Grantee shall not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards set forth above unless a historical
record of complaints indicates a clear failure to comply with such standards.
E. Customer service center and bill payment locations shall be open at least during
Normal Business Hours and shall be conveniently located within a ten (10) mile radius of
City Hall and within the Service Area.
6.3 Installations, Outages and Service Calls,
A. Under Normal Operating Conditions, each of the following four standards shall be
met no less than ninety-five percent (95%) of the time, as measured by Grantee on a
quarterly basis:
W Standard installations shall be completed within a maximum of seven (7)
business days after an order has been placed. "Standard" installations are those that are
located up to 125 feet from the existing Cable System.
(ii) Non-standard installations (those over 125 feet from the existing Cable
System) shall be completed within a maximum of sixty (60) days after the Customer has
met all the terms and conditions for payment required by Grantee.
(iii) Grantee shall begin working on Service Interruptions, as defined herein,
promptly and in no event later than twenty-four (24) hours after the interruption becomes
known. Grantee shatl begin actions to correct other service problems the next business
day after notification of the service problem.
Ov) Grantee shall provide "appointment window" alternatives for installations,
service calls, and other installation activities, which shall be either a specific time or, at
maximum, a four-hour time block during Normal Business Hours, This requirement does
not preclude Grantee from offering additional alternative appointment windows to the
Customer which are longer than four hours, as long as at least one four-hour maximum
appointment window is offered to the Customer within the prescribed time limit.
B. Grantee shall not cancel an appointment with a Customer after the close of
business on the business day prior to the scheduled appointment.
CIf a representative of Grantee is running late for an appointment with a Customer
and will not be able to keep the appointment as scheduled, the Customer shall be
contacted. The appointment shall be rescheduled, as necessary, at a time which is
convenient for the Customer.
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6.4 Communication Between Grantee and Customers.
A. Grantee shall provide written information on each of the following areae at the time
of installation of service, at least annually to all Customers, and at any time upon request:
(i) Name, address and telephone number of Grantee;
lii) Products and services offered;
(iii) Prices and options for services and conditions of subscription to
programming and other services, including ;any reduced rates for senior citizens or other
classes of Customers;'
Ov) installation and service maintenance policies;
(v) Instructions on how to use the service, including the availabilityof parental
control devices and any special operating procedures,-
NO
rocedures;NO Customer privacy rights;
NO Channel positions of programming carried on the Gable System;
(viii) Billing and credit practices, including late fees, grounds for termination of
service, resolution of billing disputes, and reconnection after involuntary termination, and
Ox) Complaint procedures, including the address and telephone number of City
for the filing of complaints unresolved by Grantee.
B. Customers shall be notified of any changes in rates, programming services or
channel positions as soon as possible using any reasonable written means. Notice shall be
given to Customers a minimum of thirty (30) days in advance of such changes if the
change is within the control of Grantee. In addition„ Grantee shall notify Customers thirty
(30) days in advance of any significant changes in the other information required by
Section 6.4 (A).
6;.5 Billing.
A Customer bills shall be clear; concise and understandable. Bills shall be fully
itemized, with iternizations including, but not limited to, basic and premium service charges
and equipment charges. Bills shall also clearly delineate all activity during the billing
period, including optional charges, rebates and credits:
B In case of a billing dispute, Grantee shall acknowledge a complaint from a Customer
within fifteen (15) days from receipt of the complaint, and respond within thirty M) days.
C. Refund checks shall be issued promptly, but no later than either (i) the Customer's
next billing cycle following resolution of the request or thirty (30) days, whichever is
earlier, or (ii) the return of the equipment supplied by Grantee if service is terminated.
'DL9B 1-
D� Credits for service shall be issued no later than the Customer's next billing cycle
following the determination that a credit is warranted.
E. Grantee's late fee policies and practices shall be in compliance with California
Government Code Article 4.6.
6.6 Credits for Outages. Except for planned Service Interruptions for which Grantee
provides previous notice to City, in the event that Cable Service is interrupted to any
Customer for a minimum of six (6) consecutive hours, and the Customer notifies Grantee
either verbally or in writing of said Service interruption within twenty-four (24) hours of
Customer's discovery thereof, Grantee shall provide a credit of 1/30th of the Customer's
monthly fee for the services affected for each day of the Service Interruption. [Example:
If a Customer experiences an outage which affects HBO for 12 hours, and HBO costs $10
per month, they shall be entitled to a credit of 1/30th of $10, or $.33. If an outage
affects all of their services for at least six (6) hours per day on two (2) different days, and
the Customer's total regular monthly fee is $40, then the credit would be 2/30th of $40,
or $2.66.1
6.7 Free Reconnect If Improperly Disconnected. Where Grantee has improperly
disconnected Cable Service, it shall provide free reconnection to the affected Customer.
6.8 QustoM_erCrim pIaints. Grantee shall maintain a record of all Customer complaints
referred by City and how such complaints were resolved, and submit a summary thereof to
City upon written request. Such request shall be made no more often than quarterly.
6.9 'Customer Satisfaction Surveys. Grantee shall provide the results of any Customer
satisfaction surveys conducted in the Service Area to City upon written request.
6.10 Employee,and Contractor Identification. All field representatives of Grantee shall
wear photo identification when dealing with the public outside of Grantee's offices.
6.11 Entry on Private Property. Grantee shall provide written or oral notice to affected
property owners prior to entering their property.
SECTIO
Compensation and Auditing
7.1 Franchise Fee. As compensation for the benefits and privileges under this Franchise
and in consideration of permission to use the Public Ways, Grantee shall pay to City,
throughout the duration of this Franchise, a franchise fee equal to five percent (5%) of
Gross Revenues. The franchise fee shall be due and payable forty-five (45) days after the
close of the preceding quarter. Each payment shall be accompanied by a report from a
financial representative of Grantee showing the basis for the computation.
7.2 Interest on Late Payments. Payments not received within forty-five (45) days from
the quarter ending date shall be assessed interest compounded at the rate of one percent
(1'%) per month from the due date.
REDL9B -12-
7.3 Financial,Audits and Reviews. City may arrange for and conduct audits or reviews
of the financial records of Grantee for the purpose of verifying franchise fee payments or
other financial obligations of Grantee. All such audits or reviews shall be completed within
five (5) years from the date on which payment by Grantee was due.
City shall notify Grantee in writing at least seven (7) days prior to the date of an audit or
review and, to the best of City's ability, identify the records it wants to review. The
reasonable costs to City of the audit or review shall be borne by Grantee if the audit
reveals that Grantee has underpaid franchise fees or other financial obligations by four
percent (4%) or more during the period in question, otherwise the cost shall be borne by
City.
Grantee shall pay to City, or City shall pay to Grantee, any undisputed amounts that are
due to City or due to be refunded to Grantee as determined by any audit or review. Such
payment or refund shall be made regardless of whether the obligations arose before or
after the effective date of this Franchise. If Grantee is determined to have made an
underpayment in an amount that exceeds five percent (5%) of the total amount due at the
time such payment was due, Grantee shall pay simple interest to± City on the amount of
the underpayment at a rate of two percent (2%) per annum above the prime rate of
interest printed in the Wall Street Journal on the date of the audit, from the date on which
payment was due until the date on which full payment of the interest charge is received by
City.
SECTION 8
Insurance, Other Financial Surety and indemnification
8.1 Insurance. At its own cost and expense, Grantee shall maintain in full force and
effect during the term of the Franchise public liability and property damage insurance that
protects City from any and all claims against it for damages or personal injury (including
death) arising from any and all activities and operations under this Franchise or in
connection therewith. The insurance shall provide coverage at all times for not less than
$1,000,000 combined single limit for bodily injury and property damage. The insurance
shall be equal to or better than commercial general liability insurance. City shall be
designated as additional insured and such insurance shall be primary with respect to City
and non-contributing to any insurance or self-insurance maintained by City. Such
insurance shall not be canceled or materially altered except upon thirty (30) days prior
written notice to City. Grantee shall provide City with a Certificate of Insurance certifying
coverage as required above, or, as an alternative, Grantee may provide City with a
statement regarding its self-insurance. Grantee's self-insurance shall provide the same
amount and level of protection for Grantee and City as otherwise required under this
Section. The adequacy of the self-insurance shall be subject to the review and approval of
City,
8.2 Security for Performance. Grantee shall provide upon the execution of this
Franchise Agreement a performance bond in the amount of $25,000 to secure the faithful
performance by Grantee of its obligations under this Franchise Agreement. This guarantee,
however, shall not limit the liability of Grantee for any failure to perform its obligations
under this Franchise.
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8.3 Indemnification. Grantee shall indemnify, save and hold harmless, and defend City,
its elected officials, officers, boards and employees, from and against any liability for
damages and for any liability or claims resulting from property damage or bodily injury
(including accidental death), which arise out of Grantee's construction, operation, or
maintenance of its Cable System, including, but not limited to, reasonable attorneys' fees
and costs, provided that City shall give Grantee written notice of its obligation to indemnify
City within ten (10) days of receipt of a claim or action pursuant to this Section. If City
determines that it is necessary for it to employ separate counsel, the costs for such
separate counsel shall be the responsibility of City.
SECTION 9
Records=and Reports
9.1 Oven Records. City shall have the right to review all books and records of Grantee
at Grantee's business office, during normal business hours and upon reasonable notice, as
is reasonably necessary to ensure compliance with the terms hereof. Such records shall
include, but shall not be limited to, any public records required to be kept by Grantee
pursuant to the rules and regulations of the FCC, Notwithstanding anything to the contrary
set forth herein, Grantee shall not be required to disclose information which it alleges to be
proprietary or confidential in nature. Grantee shall provide City with written notice of the
reason for not disclosing any particular information. City agrees to treat any information
disclosed by Grantee as confidential and only to disclose it to employees, representatives,
and agents thereof that have a need to know, or in order to enforce the provisions hereof.
Grantee shall not be required to provide Customer information in violation of Section 631
of the Cable Act.
9.2 General RepoEts. Grantee shall prepare and furnish to City upon written request
such reports with respect to its operations, affairs, transactions or property as is
reasonably necessary or appropriate to the performance of City's rights, functions or duties
under this Franchise. City shall consult with Grantee as to the form, detail, and due date$
of the reports requested, and accept copies of reports generated by Grantee in the normal
course of business whenever possible.
SECTION 10
Regulation,by.,City
10.1 Rates and Charges. City may regulate rates and charges for Cable Services to the
full extent authorized by applicable law. Grantee shall inform City in writing of any change
in Cable Service rates and charges at least thirty (30) days in advance. Promotional
discounts or the ending thereof shall not be considered a change to Cable Service rates
and charges. Notwithstanding laws and regulations governing rates, Grantee shall offer a
five percent (5%) discount on Basic Service to a maximum of one hundred (100) very-low
income, disabled residents of City. Residents applying for this very-low income discount
shall be qualified by City at its expense.
10.2 Notification of Programming,Changes. Grantee shall inform City in writing of any
programming or channel lineup changes at least thirty (30) days in advance.
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10.3 Renewal of Franchise. City and Grantee agree that any proceedings undertaken by
City that relate to the renewal of Grantee's Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act, as amended, unless the procedures
and substantive protections set forth therein shall be deemed to be preempted and
superseded by the provisions of any subsequent provision of federal or state law.
In addition to the procedures set forth in said Section 626(a), City agrees to notify Grantee
of all of its assessments regarding the identity of future cable-related community needs
and interests, as well as the past performance of Grantee under the then current Franchise
term. City further agrees that such preliminary assessments shall be provided to Grantee
promptly so that Grantee has adequate time to submit a proposal under Section 626(b) of
the Cable Act and complete renewal of the Franchise prior to expiration of its term.
Notwithstanding anything to the contrary set forth in this Section, Grantee and City agree
that at any time during the term of the then current Franchise, while affording the public
appropriate notice and opportunity to comment, City and Grantee may agree to undertake
and finalize informal negotiations regarding renewal of the then current Franchise and City
may grant a renewal thereof. Grantee and City consider the terms set forth in this Section
to be consistent with the express provisions of Section 626 of the Cable Act.
10.4 Conditions of Sale. If a renewal or extension of Grantee's Franchise is denied or
the Franchise is lawfully terminated, and City either lawfully acquires ownership of the
Cable System or by its actions lawfully effects a transfer of ownership of the Cable
System to another party, any such acquisition or transfer shall be at the price determined
pursuant to the provisions set forth in Section 627 of the Cable Act.
Grantee and City agree that in the case of a final determination of a lawful revocation of
the Franchise, at Grantee's request, which shall be made in its sole discretion, Grantee
shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a
qualified third party. City further agrees that during such a period of time, it shall authorize
Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no
event shall such authorization exceed a period of time greater than six months from the
effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in
procuring a qualified transferee or assignee of its Cable System which is reasonably
acceptable to City, Grantee and City may avail themselves of any rights they may have
pursuant to federal or state law; it being further agreed that Grantee's continued operation
of its Cable System during the six month period shall not be deemed to be a waiver, nor an
extinguishment of, any rights of either City or Grantee.
10.5 Transfer of Franchise, Grantee's right, title, or interest in the Franchise shall not be
sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling,
controlled by, or under common control with Grantee, without the prior consent of City,
such consent not to be unreasonably withheld. No such consent shall be required,
however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of
any rights, title, or interest of Grantee in the Franchise or Cable System in order to secure
indebtedness. Within 30 days of receiving the request for transfer, City shall, in
accordance with FCC rules and regulations, notify Grantee in writing of the information it
requires to determine the legal, financial and technical qualifications of the transferee, If
City has not taken action on Grantee's request for transfer within one hundred twenty
0 20) days after receiving such request, consent by City shall be deemed given.
REDL9B _15-
10.6 Performance Reviews. Performance reviews providing opportunities to address the
provisions of this Franchise shall occur at intervals determined by City during the term of
this Franchise. These reviews shall not involve a reexamination of the Franchise itself, but
may include consideration of the following:
A. Grantee's compliance with the terms and conditions of this Franchise,
B. The nature and extent of Customer complaints and Grantee's effectiveness in
responding to the complaints.
C. The operation, adequacy and quality of services offered by Grantee.
D. Changes in cable communication technologies and services and an evaluation of the
degree to which the Cable System and related services compare to "state-of-the-art,"
taking into account economic and technical feasibility factors.
E. Changes in state and federal laws and regulations which impact the operation of
the Cable System.
SECTION 11
Enforcement and Termination of Franchise
11.1 N ticg of Violation. In the event that City believes that Grantee has not complied
with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the
alleged noncompliance,
11.2 Grantee's Right to Cure or Respond. Grantee shall have thirty (30) days from
receipt of the notice described in Section 11 .1:
A. To respond to City, contesting the assertion of noncompliance, or
B. To cure such default, or
C. In the event that, by the nature of default, such default cannot be cured within the
thirty (30) day period, initiate reasonable steps to remedy such default and notify City of
the steps being taken and the projected date that they shall be completed.
11.3 Public Hearing. In the event that Grantee fails to respond to the notice described in
Section 11 .1 pursuant to the procedures set forth in Section 11 .2, or in the event that the
alleged default is not remedied within thirty (30) days or the date projected pursuant to
Section 11 .2 (C) above, City shall schedule a public hearing to investigate the default. City
shall cause to be served upon Grantee, at least ten (10) days prior to such public meeting,
a written notice specifying the time, place and purpose of such meeting. At the
designated meeting, City shall give Grantee an opportunity to state its position on the
matter.
11.4 Enforcement, Subject to applicable federal and state law, in the event City, after
the public hearing described in Section 11 .3, determines that Grantee is in default of any
provision of the Franchise, City may:
REDL9B -16-
A. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages;
B. Assess fines under this Franchise;
C. Commence an action at law for monetary damages or seek other equitable relief; or
D. In the case of a substantial default of a material provision of the Franchise, declare
the Franchise Agreement to be revoked in accordance with the following.-
City shall give written notice to Grantee of its intent to revoke the Franchise on the basis
of a pattern of noncompliance by Grantee, including one or more instances of substantial
noncompliance with a material provision of the Franchise. The notice shall set forth the
exact nature of the noncompliance. Grantee shall have ninety (90) days from such notice
to object in writing and to state its reasons for such objection. In the event City has not
received a satisfactory response from Grantee, it may then seek termination of the
Franchise at a public meeting. City shall cause to be served upon Grantee, at least ten
(10) days prior to such public meeting, a written notice specifying the time and place of
such meeting and stating its intent to request such termination.
At the designated meeting, City shall give Grantee an opportunity to state its position on
the matter, after which it shall determine whether or not the Franchise shall be revoked.
Grantee may appeal such determination to an appropriate court, which shall have the
power to review the decision of City "de novo" and to modify or reverse such decision as
justice may require. Such appeal to the appropriate court must be taken within sixty (60)
days of the issuance of the determination of City.
City may, at its sole discretion, take any lawful action which it deems appropriate to
enforce City's rights under the Franchise in lieu of revocation of the Franchise.
11.5 Damages. City shall be empowered to impose fines for each instance of non-
compliance with this Franchise by Grantee, subject to the notice, opportunity to cure, and
public hearing provisions of this Section. The following maximum fines may be imposed
for the following acts of noncompliance:
A. Failure to comply with the customer service standards set forth in Section 6 of this
Franchise, up to $500 per day for each day the violation continues.
B. Failure to provide additional Channel capacity as set forth in Section 4.2 of this
Franchise, up to $500 per day until the Channels are available.
C. Failure to comply with any other requirement, up to $250 per day for each day the
violation continues.
In determining the amount of appropriate damages, City shall consider the specific nature
and extent of the violation, whether Grantee has a history of similar violations, and the
damage suffered by the public and cost of remedying the violation.
REDL9B -17-
11.6 RemediesSumulative. All remedies prescribed in this Franchise shall be cumulative
and the use of one or more remedies by City shall not bar the use of any other remedy for
the purpose of enforcing this Franchise.
11.7 Farce Majeure. Grantee shall not be held in default under, or in noncompliance
with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to
noncompliance or default (including termination, cancellation or revocation of the
Franchise), where such noncompliance or alleged defaults occurred or were caused by
strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm,
hurricane, tornado or other catastrophic act of nature, labor disputes, governmental,
administrative or judicial order or regulation or other event that is reasonably beyond
Grantee's ability to anticipate and control. This provision also covers work delays caused
by waiting for utility providers to service or monitor their own utility poles on which
Grantee's cable and/or equipment is attached, as well as unavailability of materials and/or
qualified labor to perform the work necessary.
11.8 Technical Violations. The parties hereby agree that it is not City's intention to
subject Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called
"technical" breaches or violations of the Franchise, which shall include but are not limited
to the following-
A. In instances or for matters where a violation or breach by Grantee of the Franchise
was a good faith error that resulted in no or minimal negative impact on Customers and/or
other members of the public within the Service Area; or
B. Where there existed circumstances reasonably beyond the control of Grantee and
which precipitated a violation by Grantee of the Franchise, or which were deemed to have
prevented Grantee from complying with a term or condition of the Franchise.
11.9 'Failure of the Cita to Enforce Franchise Does Not Constitute Waiver. Grantee shall
not be excused from complying with any of the provisions of the Franchise, including
applicable local, state and federal laws, due to any failure of City to insist upon or seek
compliance with the Franchise or other law.
SECTION 12
Miscellaneous Provisions
12.1 Actions of_Parties. In any action by City or Grantee that is mandated or permitted
under the terms hereof, such party shall act in a reasonable, expeditious, and timely
manner. Furthermore, in any instance where approval or consent is required under the
terms hereof, such approval or consent shall not be unreasonably withheld.
12.2 Entire_ Franchise, Modification. This Franchise constitutes the entire agreement
between the parties relating to the subject matter of this Franchise, and this Franchise may
be modified only by written addendum signed by both parties.
12.3 'Governing ,Law and Attorneys' Fees, Any disputes regarding this Franchise shall be
resolved according to the laws of the State of California and the United States. The
prevailing party in any action brought to enforce the terms of this Franchise, or in any
REDL9B -is-
action arising out of this Franchise, may recover the costs and attorneysfees incurred in
the action from the other party.
12.4 Egual Protection. In the event City enters into a Franchise, permit, license,
authorization, or other agreement of any kind with any other Person or entity other than
Grantee to enter into City's Public Ways for the purpose of constructing or operating a
Cable System or providing Cable Service to any part of the Service Area, the material
provisions thereof shall be reasonably comparable to those contained herein, in order that
one operator not be granted an unfair competitive advantage over another, and to provide
all parties equal protection under the law.
12.5 Notice. Unless expressly otherwise agreed between the parties, every notice or
response required by this Franchise to be served upon City or Grantee shall be in writing,
and shall be deemed to have been duty given to the required party five (5) business days
after having been posted in a property sealed and correctly addressed envelope when hand
delivered or sent by certified or registered mail, postage prepaid.
The notices or responses to City shall be addressed as follows:
City Clerk
City of Redlands
35 Cajon Street, Suite 4
Post Office Box 3005
Redlands, CA 92373
The notices or responses to Grantee shall be addressed as follows:
General Manager
TCI Cablevision of California, Inc.
1722 Orange Tree Lane
Redlands, CA 92374
with a copy to: Tele-Communications, Inc.
Attention: Legal Department/Franchising
5619 DTC Parkway
Englewood, CO 80111
City and Grantee may designate such other address or addresses from time to time by
giving notice to the other.
12.6 Descriptive Headinus. The captions to Sections contained herein are intended
solely to facilitate the reading thereof. Such captions shall not affect the meaning or
interpretation of the text herein.
12.7 $everabilil . If any Section, sentence, paragraph, term, or provision hereof is
determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction
or by any state or federal regulatory authority having jurisdiction thereof, such
determination shall have no effect on the validity of any other Section, sentence,
REDL9B -19-
paragraph, term or provision hereof, all of which shall remain in full force and effect for the
term of the Franchise, or any renewal or renewals thereof.
12.8 Effective Date. The effective date of this Franchise is &Au 1997,
Aust
pursuant to the provisions of applicable law.
Passed and adopted this 5th day of August 1997, subject to applicable
federal, state and local law.
of
City Reland City of
Title: , Maygr, !jWen Lar art
AT'T'CST:
Citylerk , r ie Po, r
ze
I tV Off Re edlaVds, California
Accepted this 26ti-day of _Sept,e pr 1997„ subject to applicable federal, state
and local law.
TO a revisit n ofCalifor ia, Inc.
114 ',
By:
Title: President
REDL98 -20-