TCI Cablevision Agreement 1995
FRANCHISB AGREEMENT BETWEEN THE
CITY OF CUPERTINO AND TCI
CABLEVISION OP CALIPORNIA, INC.
FOR THE OPERATION AND MAINTENANCE
OF A CABLE TELEVISION SYSTEM
This Franchise Agreement ("Franchise"), effective
::2k(!.~~8€.i!- %, 1995, is entered into by the CITY OF CUPERTINO
("city"), a municipal corporation of the state of California and
TCI CABLEVISION OF CALIFORNIA, INC. ("Grantee"), a corporation
incorporated under the laws of the state of California and a
wholly-owned subsidiary of Tele-Communications, Inc., a Delaware
corporation.
R Eel TAL S
A. Pursuant to California Government Code section 53066 and the
Cable Television Consumer Protection and Competition Act of 1992,
42 U.S.C. sections 521 et ~. ("Cable Act"), the City is
authorized to grant or renew a franchise for the installation,
operation and maintenance of a Cable System within the city's
boundaries.
B. Grantee currently maintains and operates a Cable System in the
city pursuant to city Ordinance No. 930 and a Franchise Agreement
entered into on October 14, 1980; at which time Grantee was
incorporated as "united Cable Television of California, Inc."
C. The City and Grantee have negotiated the terms of a franchise
renewal agreement, as contained in this document, in accordance
with the requirements of applicable law. Grantee has agreed to
comply with the provisions of Chapter 6.28 of the City's Municipal
Code entitled "Cable Television Franchise Regulations" ("Cable
Ordinance").
D. Grantee has proposed a renewal of its nonexclusive franchise,
offering to upgrade its cable system and to provide improved
services to the City, public, educational and governmental
facilities and cable customers.
E. The City has reviewed the present and future cable-related
needs of the City and its residents as well as Grantee's record of
service, ability to carry out its obligations under this Franchise,
including its financial, legal and technical qualifications to hold
a City franchise. The City hereby finds that it would serve the
public interest to renew its franchise with Grantee subject to the
terms and conditions set forth in this Franchise and in the Cable
Ordinance. Grantee voluntarily agrees to accept a renewed franchise
under those terms and conditions.
1
P RAN C H X S B
AGRBEMBNT
1. DEFINITIONS. The definitions of the 1992 Cable Act, the FCC
Regulations and the city's Cable Ordinance shall govern this
Agreement. The following additional definitions shall apply:
a. "Cable Equipment" includes pedestals, on-premise
enclosures, amplifiers, power guards, nodes, cables, fiber-optics
and other equipment necessary to operate the Cable system. The
Cable Equipment may also include one optic Transition Node Cabinet
("Cabinet") in the Service Area. More particularly, a pede.tal is
an above-ground enclosure from which cable is routed underground to
the structure receiving Cable service; an amplifier contains line
extenders and distribution equipment and is installed partially
above and partially below ground; a power guard contains a battery
and a fan, provides stand-by power and can be either aerial or
partially above and partially below ground, one power guard exists
for every node; a node contains equipment which changes laser light
into electronic or radio frequencies and can be either aerial or
partially above and partially below ground; a cabinet contains
fiber optic lasers, amplifiers, power supplies, batteries, fans and
filters and, if required at all, only one will be necessary in the
Service Area.
b. "Cable operator" means TCI Cablevision of California,
Inc. ("Grantee"), or its lawful successor, transferee or assignee.
c. "Cable Ordinance" means Chapter 6.28 of the city's
Municipal Code entitled "Cable Television Franchise Regulations".
d. "Customer" means any person who subscribes to a service
provided by Grantee and lawfully receives that service through the
facilities of the Cable System.
e.
"Franchising Authority" means the City of Cupertino.
f. "Gross Revenues" means any compensation which is directly
received by Grantee, or any other person or affiliate of Grantee
that would constitute a Cable Operator under the Cable Act, derived
from all sources of operation of the Cable System in the Service
Area. Gross Revenues shall include but not be limited to basic,
expanded basic and pay service revenues, revenues from installation
and equipment rental and sale, the applicable percentage of local
and regional advertising revenues and any leased access revenues.
Gross Revenues shall not include any refundable deposits or any
sales, excise or other taxes collected for direct pass-through to
local, state or federal governments.
2
q. "Material Breach" includes each of the following
circumstances: (i) Grantee's failure to perform any of its materia1
obligations under this Franchise; (il) any repeated failure to
comply with the Customer service standards in this Franchise; (iil)
where Grantee practices any fraud or deceit against the City or any
customer; or (iv) Grantee's insolvency.
h. "School" means any accredited nonprofit educational
institution including primary and secondary schools, colleges and
universities within the Service Area.
1. "Service Area" means the entire geographic area within
the City, including any additions thereto by annexation or other
legal means.
j. "Streets and PuJ:Ilic ways" means the surface and the space
above and below any public street, sidewalk, alley or other public
way or right of way of any type whatsoever.
2. TERM. The term of this Franchise shall be for ten (10)
years commencing upon the execution of this Franchise by the city
and Grantee (the "Effective Date"), unless terminated earlier under
the provisions of this Franchise. However, upon the timely upgrade
of the Cable System commonly known as the "Heritage System", in the
time and manner provided by this Franchise, five (5) additional
years shall be added to the term of this Franchise creating a
fifteen (15) year term commencing with the Effective Date, unless
terminated earlier.
3.
GRANT OF FRANCHISE.
a. city Grants Nonexclusive Right to Provide Cable Service.
The city hereby grants Grantee a nonexclusive franchise which
authorizes Grantee to construct and operate a Cable System and
provide Cable Service in the Service Area. More particularly,
subject to the conditions contained in this Franchise and other
applicable laws, Grantee may install, construct, repair, upgrade
and maintain on, over, under and across any public right-of-way and
public utility easement within the service Area, any wires, cables,
fiber optics, conductors, ducts, conduits, vaults, amplifiers,
pedestals, nodes, attachments and other equipment necessary for the
operation of the Cable system.
b. Grantee Accepts Franchise and Agrees to Comply with
Franchise, Cable Ordinance and Related Laws. Grantee hereby accepts
this Franchise and agrees to comply with the terms and conditions
of this Franchise, the city's Cable Ordinance, and all applicable
local, state and federal laws, ordinances, codes and regulations,
including amendments. Grantee acknowledges that this Franchise is
subject to the general police powers of the City and that nothing
contained herein shall be deemed to waive the requirements of other
laws enacted under the city's police power regarding permits, fees,
3
manner of construction, safety precautions or the city's absolute
right to maintain control over the public right-of-ways, pub1ic
utility easements and public service easements.
C. permits, Licenses and Authorizations. Grantee shall
proceed with due diligence to obtain all necessary permits,
licenses and authorizations required to construct and operate its
Cable system pursuant to this Franchise.
d.
Franchise Fee.
(1) Quarterly payment. Grantee shall pay to the City
five percent (5%) of Grantee's Gross Revenues throughout the Term
of this Franchise. Franchise Fee payments shall be made to the
city Treasurer each fiscal quarter, being due not later than
February l, May 1, August 1 and November 1 of each year. with each
payment, Grantee shall submit a statement to the city showing the
total of Gross Revenues during the payment quarter. Upon thirty
(30) days prior written notice, the city shall have the right to
conduct an independent audit of Grantee's records for any period
within the applicable legal statute of limitations. If the city's
audit indicates an underpayment by five percent (5%) or more of the
payment due, Grantee shall assume the cost of the city's audit.
(2) Acceptance of payment. Acceptance of any payment
by the city shall not constitute a release or an accord and
satisfaction of any claim the city may have for additional sums
payable under this Franchise or for the performance of any other
obligation of Grantee.
(3) Late payment. Where any payment is not received by
the city on the specified due date, Grantee shall pay as additional
compensation: (i) a sum equal to five percent (5%) of the amount
due to defray costs incurred by the city due to the delinquency;
and (ii) an interest charge computed from the due date at the legal
interest rate compounded per quarter; (iii) if the payment is late
by more than forty-five (45) days, a late charge equal to five
percent (5%) of the amount due, or the city may regard the delay as
a Material Breach of this Franchise.
(4) Pass-through Costs. Any Grantee pass-through or
itemization of franchise fee costs on Customers' bills shall be in
accordance with federal or state law.
e. Conflict between Documents. If there is a conflict
between the provisions of this Franchise and other laws and
regulations of any governmental agency, the provision most
favorable to the customer shall prevail.
f. Renewal. Renewal of this Franchise shall be governed by
the procedures set forth in the Cable Act.
4
g. Procedure Upon Expiration or Termination. U P 0 n
expiration of the Term of this Franchise or upon its termination,
the City may require Grantee to remove the Cable system at
Grantee's cost. If Grantee fails to remove the Cable system within
ninety (90) days after receipt of written request, the city may
cause the removal and collect the cost of removal by making a claim
on the Guarantee provided by Grantee under Paragraph 12(C) of this
Franchise.
h. Franchise Transfer. Any transfer of this Franchise shall
be governed by the procedures set forth in the Cable Act.
4. NOISE STUDY REOUIRED FOR NODES AND CABINETS. Grantee shall
file with the city Manager a noise study prepared by a licensed
acoustical engineer documenting noise generated from Nodes and, if
required, the Cabinet one hundred and eighty (180) calendar days
prior to the commencement of any construction under this Franchise.
This noise study shall demonstrate how the Nodes, and, if required,
the Cabinet will comply with the City's General Plan Noise Element
and shall describe all internal components, including primary and
backup power supplies.
5. NOTIFICATION REOUIREMENTS FOR UPGRADE OF CABLE SYSTEM AND
INSTALLATION OF CERTAIN CABLE EOUIPMENT.
a. Notices to Local Newspaper. Grantee shall provide a
general summary of the upgrade of the cable system, including the
type of cable equipment to be installed, to be published in a
newspaper of general circulation in the city, first sixty (60) days
prior to construction and again (30) days prior to construction.
These notices shall also provide Grantee's telephone number which
may be called for information.
b. PuJ:Ilic Notice and Hearings.
the following notification schedule:
(1) Grantee shall provide the City with the proposed
locations, descriptions and dimensions of all Pedestals,
Amplifiers, Power Guards, Nodes and, if required, the Cabinet, at
least sixty (60) days prior to their proposed installation. As for
the Nodes and the Cabinet, this notice shall further include visual
aids which illustrate an eye-level view of the equipment and
adjacent structures, including any proposed landscaping or
barriers. The city, at its option, may provide notice to property
owners potentially affected by the proposed locations of Nodes or
the Cabinet. Whenever a public hearing is held concerning the
location of the Nodes or the Cabinet, Grantee shall participate in
the hearing.
Grantee shall comply with
(2) At least thirty (30) days prior to the proposed
installation of any Pedestal, Amplifier, Power Guard, Node or
Cabinet, Grantee shall mail written notifications to property
5
owners whose property is adjacent to the proposed locations of the
equipment. The notice shall include a photograph of the equipment
to be installed, its dimensions and proposed location. The notice
shall also provide Grantee's telephone number which may be called
if a property owner is concerned over the lnstallatlon of the
equipment or its proposed location. Grantee shall use its best
efforts to comply with reasonable requests of property owners.
However, for property owners' requests to be considered, they must
be made no later than ten (10) days prior to the proposed
installation date.
(3) At least fourteen (14) days prior to the
installation of any Pedestal, Amplifier, Node or Cabinet, Grantee
shall provide notice to affected property owners by door hangers,
informing them of the same information contained in the first
notice plus provide the actual date scheduled for installation.
6. ~. Grantee shall establish rates for its services and
apply those rates consistent with governing law. The city may
regulate rates for Cable Service to the extent permitted by law.
Grantee shall maintain a copy of its current rate schedule on file
with the city, and shall provide a minimum of thirty (30) days
written notice to the city and Customers before changing any rates
or charges for Cable Services. Notwithstanding laws and
regulations governing rates, Grantee shall offer a twenty-five
percent (25%) discount on either Basic and/or Expanded Basic Cable
Service to a maximum of seventy-five (75) very-low income, disabled
residents of the city. Residents applying for this very-low income
discount shall be qualified by CUpertino Community Services at the
city's expense. Grantee is not precluded from discounting rates
for promotional or other purposes.
7.
DESIGN AND CONSTRUCTION STANDARDS.
a. Universal coverage. Within the Service Area, each legally
established parcel, whether occupied by residential or commercial
use, shall be entitled to obtain Cable Service upon payment of
Grantee's installation charge, unless the property owner's refusal
to allow access prevents Grantee from providing Cable Service to
that parcel. Grantee may petition the city to relieve it of this
obligation where a distance of more than 150 feet from the
distribution cable to the connection exists, or- a density of less
than 15 residences per 1320 cable bearing strand feet of trunk or
distribution cable exists. In these two. instances, Cable Service
shall be provided upon Customer's request at the actual cost of
labor and materials, apportioned equally among requesting
customers, incurred by Grantee beyond what a normal installation
would cost.
b. simultaneous upgrade of Both Cable syst_s. The upgrade
of the Cable system commonly known as the "TCI-Cupertino system"
shall be in conjunction with the upgrade of the Cable System
6
commonly known as the "Heritage System" to ensure that the two
systems are technologically compatib1e and uti1ize the same channe1
lineup.
c. Inspeotion. All design and construction plans shall be
subject to the City's prior written approval and all construction
work shall be inspected by the City. Upon the City's request any
construction that has been covered without approval by the City
shall be uncovered for inspection at Grantee's expense. If the
construction does not meet the standards under this Franchise,
including all applicable laws, the city may order corrective
measures at Grantee's expense. Grantee shall give the City at
least twenty-four (24) hours advance notice that inspection is
requested.
d. Latest Technology. Upon completion of the upgrade, the
Cable System shall be designed, equipped and constructed in such a
manner that it may be further modified, in a cost-effective manner,
to remain as a state-of-the-art system. To satisfy this
obligation, Grantee may use coaxial, fiber optic, digital
compression, wireless technology, or a combination of these or any
other current technology. However, Grantee is not required to use
untested or experimental products or technology.
e. upgrade Schedule. No later than thirty (30) months
after the Effective Date of this Franchise, Grantee shall complete
upgrade of the Cable System and thereafter shall conform to the
performance standards set forth in this Franchise.
f. construction Notification. At thirty (30) day
intervals during upgrade of the Cable system, Grantee shall provide
the City with a construction plan indicating a progress schedule,
a general description of the activities to be undertaken during the
following thirty (30) days and the area of the City which will be
affected by such activities. The filing of these construction
plans shall constitute a condition which must be met prior to
undertaking any construction. Grantee shall provide notice, not
less than fourteen (14) days prior to construction, to all
residents who may be affected by the construction, by direct mail,
door hangers or other effective means. Each notice shall generally
describe the time and nature of the construction.
g. system capabilities. Grantee shall upgrade and
activate the Cable System with a bandwidth in the forward direction
of 54 to 750 MHz and in the reverse direction for the CUstomer
Network of 5 to 42 MHz. Bandwidth in the forward direction will be
initially allocated to pass frequencies of at least 54 to 550 MHz
for 77 channels of NTSC analog television channels and 550 to 750
MHz digitized video or data, or the equivalent in wireless. Upon
completion of the upgrade, the Cable System shall meet or exceed
FCC specifications, as amended, and shall provide a video carrier
to noise ratio of 43 dB and CTB of 51 dB. Additionally, Grantee
7
shall provide status monitoring in the Power Guards, Nodes and, if
required, the Cabinet. To the extent Grantee uses fiber optic
technology, the node size (# of residences) shall be no greater
than 2,500.
h. Construction Hours. All construction shall be conducted
during the hours and days as provided in the City's local
ordinances, rules and regulations, unless otherwise authorized in
writing by the city's Engineer. Notwithstanding these Construction
Hours, construction shall not interfere with the services of the
City or third parties.
i. Emergency Override system. Grantee shall comply with
all FCC Rules and Regulations regarding the national Emergency
Alert System (EAS) by July 1, 1997 or as required by the FCC. In
conjunction with upgrading the Cable system to comply with EAS,
Grantee shall include in the Cable System the capability of
simultaneous emergency override of audio and video signals of all
cable channels with remote coded access activation capability from
a primary and alternate site. The primary site shall be city Hall
and the alternate site shall be the Cupertino Service Center. The
City shall indemnify Grantee from liability for third-party
damages, including costs of legal defense, that arise from the
city's use of the emergency override system, excepting any damages
caused by Grantee's fault or neglect. Federally mandated testing
and activation of the EAS shall take precedence over the city's
activation of its emergency override system.
j. standby Power system. The Cable System's headend,
satellite earth stations and any hubs shall be equipped with an
emergency power system to maintain continuous power in the event of
a local power outage. Grantee shall provide the Cable System with
the capability of maintaining continuous standby emergency power
for a minimum of three (3) hours.
k. Undergrounding, Mitigation of visual Impacts and safety
Precautions.
(1) All Cable Equipment shall be installed underground
at Grantee's cost where utilities are currently underground and
where required by law. Previously installed aerial cable shall be
relocated in concert with other utilities at Grantee's cost when
such other utilities convert from aerial to underground
construction.
(2) All Cable Equipment shall be installed within
existing public utility easements in order to avoid any hazard to
the public.
(3) Necessary steps shall be taken, at Grantee's
expense, to reduce the visual impact of all above-ground Cable
Equipment, including the installation of reasonable landscaping and
8
barriers to conceal the Cable Equipment from the public view;
maintaining the Cable Equipment in good condition, including
complying with the city's Graffiti Ordinance; and placing overhead
drops as close as possible to other utility drops. ongoing
maintenance of the landscaping installed for mltigation of visual
impacts, shall be the responsibility of the property owner and/or
Grantee pursuant to Grantee's easement agreements.
(4) only chalk-based
streets and public ways.
(5) Existing poles, conduits and other related
structures shall be used whenever possible. Grantee shall not
construct or install additional poles, conduits or other structures
on public property without advance express written authorization by
the city.
paint
shall
be
used
to
mark
(6) Due caution shall be exercised for the protection of
persons and property. The safety provisions of applicable laws,
such as building, electrical, fire and construction codes shall be
complied with, and barricades, flags, lights, flares or other
devices shall be used to prevent damage, injuries and nuisances to
the public.
(7) All Cable Equipment, and construction equipment and
vehicles shall be located in a manner which minimizes interference
with the proper use of the public right-of ways and with the
reasonable convenience of owners of property abutting any affected
public right-of way. Any public right-of-way disturbed during the
course of Grantee's construction, operation or maintenance of the
Cable System, shall be restored at Grantee's expense within ten
(10) calendar days to a condition equal to the pre-existing
condition of the public right-of-way. However, in no event shall
property owners' vehicle access to their property be disturbed for
more than three (3) hours during construction, operation or
maintenance of the Cable System.
I. Removal of Deactivated Cable Equipment. within ninety
(90) calendar days after the completion of any phase of
construction, Grantee shall remove all deactivated Cable Equipment
from the streets and public ways, whether overhead or underground,
except for instances where the City has given prior written
approval allowing Grantee to abandon in place specified underground
Cable Equipment.
m. Location of utilities. It shall be Grantee's
responsibility to verify the location of all existing utilities, to
insure that such utilities are not damaged during construction and
to repair any utilities damaged during construction. Grantee shall
contact Underground Services Alert ("U.S.A.") at 800-642-2444
forty-eight (48) hours in advance of any construction.
9
CUSTOMER SERVrCE STANDARDS.
a. FCC & RCTA standards BstaÞ1~sh Minimum. Grantee sha11
meet or exceed all Customer Service Standards of both the FCC and
the National Cable Television Association ("NCTA"), including any
amendments. Where there is a conflict between the NCTA and FCC
standards, those most favorable to the Customer shall prevail. All
Customer Service and Technical Standards shall apply to PEG
channels.
8.
b. Local Office. Grantee shall maintain an office within
the city which shall remain open during normal business hours.
Customers will be able to pay their bills, report service problems,
exchange equipment and request connection, disconnection or a
change of Cable Service at this office.
c. Telephone Service/Response Time. Grantee shall provide
a toll-free telephone number so that Customer complaints can be
received by Grantee on a 24-hour, seven-days a week basis. Under
normal operating conditions, telephone answer time by a live
representative of Grantee, including wait and transfer time, shall
not exceed 30 seconds from 8:00 a.m. to 11:00 p.m. ninety percent
(90%) of the time as measured over a three month period.
d. service/Response Time. Grantee shall promptly respond
to service calls and shall maintain a force of repair and service
personnel capable of responding to service requests within the
following time frames (unless a Customer requests a later date):
(1) For a system outage, response shall occur within two
(2) hours, including weekends and holidays, from receipt of
requests for service which, based on the number of calls,
identifies a Cable System outage of all channels affecting ten (10)
or mòre Customers. .
(2) For an isolated outage, response shall occur within
twenty-four (24) hours, excluding weekends and holidays, from
receipt of a request for service identifying an outage of all
channels for any CUstomer.
(3) For inferior signal quality or any other service
problem, response shall occur the next business day following
notification of the service problem.
Grantee shall be deemed to have responded to a request for
service when a technician arrives at the service location and
begins work on the problem. Where a Customer is not home, response
time shall be extended twenty-four (24) hours to another appointed
time if written notice of the technician's arrival and return time
are provided. Customers shall not be charged for any service call
unless Grantee establishes that the request is repeated and not
related to the Cable System or where Customer negligence is
involved.
10
e. Monthly Reports. In addition to quarterly and/or
annual certification reports mandated by the NCTA, Grantee shall
submit a monthly report to the city containing, but not limited to,
the following information collected during the reporting period:
(1)
customer statistics in the Service Area;
(2) Total number of telephone calls received and
percentage of those answered within 30 seconds, as outlined by the
FCC and NCTA customer service standards;
(3) Total number of requests for service
installation and percentage of those requests completed;
and
(4) The number, dates and times of unplanned outages
affecting five (5) or more Customers and the time it took to
complete the repairs.
(5) A summary of all complaints received showing numbers
and nature of complaints;
(6) A report of City-referred complaints, showing
Customer name, date of referral, nature of complaint and tracking
disposition of the complaint.
Upon request by the City, these documents shall be made
available on computer disk. The. format and frequency of these
reports may be modified by written consent of both parties.
f.
Customer Notice.
(1) Service Interruptions. Grantee shall provide a
minimum of twenty-four (24) hours advance notice when Cable Service
will be interrupted to more than six (6) Customers by character
generated messages on both the Government Access Channel (channel
18) and, with concurrence from the operator, the Public Access
Channel (channel 26). This notice shall also be given
individually, by telephone or facsimile, to all PEG operators and
to the City by telephone or facsimile to the City Manager's office.
Whenever possible, scheduled interruptions shall occur during
periods of minimum use of the Cable System, preferably between
midnight and 6:00 a.m.
(2) civil Code Remedy. At least once every four months
during the Term of this Franchise, Grantee shall inform Customers
in writing of their right under California civil Code S1722(b) to
receive service connection or repair within a four hour period when
the presence of the Customer is required.
(3) Entry on Private property. Grantee shall provide
written and oral notice to affected property owners prior to
entering their property.
11
(4) Service Information. Upon the Effective Date of
this Franchise, at least annually thereafter and at least thirty
(30) days prior to making any change in the following information,
Grantee shall provide Customers with written information concerning
all equipment and services available, including lock-out devices;
procedures for making inquiries and complaints, including the
availability of remedies provided by this Franchise; Grantee's
toll-free telephone number, address and local office hours;
billing procedures, including the option to request a customized
billing cycle; deposit, refund and credit policies; Grantee's
procedures for Customer privacy protection;" and Grantee's policy of
nondiscrimination in the provision of Cable Services.
g. Disconnection of Cable service. G ran tee s h a II
disconnect a customer's Cable Service only for good cause and only
after providing the affected Customer with at least seven (7) days
written notice. In addition to written notice, Grantee shall make
a good faith attempt to notify the affected Customer by telephone
of its intent to disconnect. Where Grantee has improperly
disconnected Cable Service, it shall provide free reconnect ion to
the affected Customer. Deposits received shall be returned to
Customers within forty-five (45) days from the date of
disconnection.
h.
Blocking out Select Programming.
(1) Instructional Information. Grantee shall print
information instructing Customers how to restrict particular
programs on Customer invoices. Addi tionally, Grantee shall produce
an instructional video on restricting adult programming, which
shall be made available to the public and can be played on the
Public and Governmental Access Channels.
(2) Lock Out Devices. Grantee shall provide CUstomers
with free audio and video devices which can block out viewing of a
particular Cable Service during periods selected by the CUstomer.
These devices shall be available at Grantee's local office.
Additionally, the pay-per-view ordering capability of the converter
box shall allow blocking out of select programming.
1. Credits to Customers for outage/Impairment. A Q.Istaner's
account shall be credited one day's proration of the monthly charge
when Cable Service is out or impaired to the extent that all basic
and expanded basic channels and/or one premium channel cannot be
viewed for twelve (12) consecutive hours or more from the time
Grantee was notified of the outage or impairment.
Grantee shall provide refund of service charges on a prorata
basis for single service outages of twenty-four (24) hours or more
in duration. No credit or refund must be given where the outage or
impairment is caused by acts beyond Grantee's control or where
prior approval has been obtained by the city. The Customer must
12
allow the service technicians access to the problem if located on
the customer's property, or forfeit any credit or refund due.
j. Grantee Identification. All representatives of Grantee
shall wear photo identification when dealing with the public
outside of Grantee's offices.
k. Billing Procedures. upon request by a Customer, Grantee
shall provide a customized billing cycle and upon request by either
the city or a customer, Grantee shall waive the administrative fee
it charges for late payments for those Customers who have not been
subject to a late fee in the preceding twelve (12) month period.
In no event shall a late fee be assessed any earlier than the
twenty-second (22nd) day after the bill for cable service has been
mailed as prescribed in California Government Code sections 53088
et seq. Grantee shall also comply with the city's Cable Ordinance
and any state law which governs fees charged for late payments.
9.
PUBLIC. EDUCATIONAL AND GOVERNMENTAL ACCESS.
a. Free connections to City and Educational Bui1dings.
Grantee shall provide three (3) free drops to each of the following
Schools and one (1) free drop for each of the following City
buildings and three (3) free outlets per droþ. Upon request,
Grantee shall provide any additional drops and outlets at the
actual cost of labor and materials incurred by Grantee in
installing the additional drops or outlets. All drops and outlets
required pursuant to this paragraph shall be installed as the Cable
system upgrade passes each building, which in no event shall exceed
thirty (months) after the Effective Date of this Franchise as
prescribed in paragraph 7 (e) of this Franchise. Grantee shall also
provide each of the following buildings with free Basic Cable
Service. Additional buildings may be designated from time to time
by the city Manager and Grantee shall provide the necessary free
connections within thirty (30) days of written notification.
citv Buildinas:
CITY HALL
LIBRARY
QUINLAN COMMUNITY CENTER
CUPERTINO SPORTS CENTER
CUPERTINO SENIOR CENTER
CREEKSIDE PARK FACILITY
CUPERTINO SERVICE CENTER
Schools:
ABRAHAM LINCOLN SCHOOL
D.J. SEDGWICK SCHOOL
GARDEN GATE SCHOOL
JOHN F. KENNEDY JR. HIGH SCHOOL
L.P. COLLINS SCHOOL
PORTAL ELEMENTARY SCHOOL
STEVENS CREEK SCHOOL
WARREN E. HYDE JR. HIGH SCHOOL
WILLIAM FARIA SCHOOL
WILLIAM REGNART SCHOOL
DE ANZA COLLEGE
CUPERTINO UNION SCHOOL DISTRICT
OFFICE
13
b. TWo-Way Video capability for Educational Facilities.
Upon completion of the upgrade, the Cable System shall have the
capability of bi-directional video for use by the School sites
identified by the city in paragraph 9(a) of this Franchise. Video
may be transmitted from locations outlined in Paragraph 9(a) over
dedicated analog educational access channels to the Grantee's
head end for distribution over the Cable System. The schools shall
be responsible for obtaining, installing, operating and maintaining
production equipment as well as signal origination and cable
interface equipment, such as modems, modulators and switching
equipment, necessary for use of the Cable System.
c. PEG Channel capacity. Upon completion of the upqrade,
Grantee shall provide two (2) additional channels to augment the
existing four (4) channels, hereby designated as "PEG Channels",
which shall be exclusively dedicated to the following uses:
(1) One
governmental use;
(1)
PEG
Channel
shall
be
reserved
for
(2)
Two (2) PEG Channels shall be reserved for public
use; and
(3) Three
educational use.
(3)
PEG
Channels
shall
be
reserved
for
The City's access of any new PEG Channels shall be activated
only upon a showing that the other channel(s), reserved for the
same use, is utilized for at least eiqhty percent (80%) of the
available programming hours between the hours of 9: 00 a. m. and
10:00 p.m., seven (7) days per week for three (3) consecutive
months. Grantee shall be authorized to use any of the reserved PEG
channels during periods when they are not needed for PEG use.
However, Grantee shall cease use of any PEG Channel within ninety
(90) days from written notice indicating the City meets the access
requirement of any PEG Channel being used by Grantee.
d. PEG Grants. Grantee agrees to pay to the City the sum
of One Million six Hundred and Twenty-Three Thousand Dollars
($1,623,000.00) for support of the PEG channels, provided that the
city shall match Grantee's funding level. This sum shall be paid to
the city in two equal insta¡lments, the first.installment of Eight
Hundred and Eleven Thousand, Five Hundred Dollars ($811,500.00)
shall be made within sixty (60) days from the Date of Execution of
this Franchise, and the second installment of Eight Hundred and
Eleven Thousand, Five Hundred Dollars ($811,500.00) shall be made
no later than twelve (12) months from the Date of Execution of this
Franchise. On an annual basis, the city will make available its
published budget that demonstrates the funding
14
level of the city. Throughout the Term of this Franchise,
appropriate acknowledgment will be given to TCI and the city
outlining the joint contribution made to the community in funding
the PEG channels. It is the City's responsibility to distribute
the funds for PEG use during the Term of thls Franchlse.
10.
TESTING STANDARDS.
a. Proof of performance testing, indicating the signal
quality delivered by the Cable system, must be conducted monthly in
accord with FCC Regulations and testing methods. Test results
shall be provided to the City upon its request. During the Cable
System upgrade, Grantee shall incorporate automated test equipment
at all fiber nodes and upon completion of construction the Cable
System will contain status monitoring equipment.
b. On an annual basis the city may, at its cost and upon at
least two (2) business days prior notice, perform independent
technical tests of the Cable System. Where such testing shows that
Grantee has failed to comply with the agreed upon technical
standards, the cost of the tests shall be borne by Grantee.
Grantee shall be provided an opportunity to be present during any
city testing and the City shall report test results to Grantee.
ll. PERFORMANCE REVIEWS. Performance reviews providing
opportunities to address the provisions of this Franchise shall
occur at three-year intervals during the Term of this Franchise,
commencing with the Effective Date of this Franchise. These
reviews shall not involve a reexamination of this Franchise 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's complaints
Grantee's effectiveness in responding to the complaints.
c. The operation, adequacy 'and quality of services offered
by Grantee.
and
d. Changes in cable communication technologies and services
and an evaluation of the degree to which the Cable system and
related services conform to the state-of-the-art. This evaluation
shall specifically consider the economic and technical feasibility
of providing in1;eractive, addressable and security monitoring
services.
e. Changes in state and federal laws and regulations which
impact the operation of the Cable System.
15
Ninety (90) days prior to the scheduled review, the City may
require Grantee submit a report describing Grantee's comp1iance
with this Franchise and any additional information which is
reasonable and appropriate to the scope of the review. Grantee
shall submit the report wlthln sixty (60) days after the Clty's
written request.
12.
INSURANCE. INDEMNIFICATION AND BONDS OR OTHER SURETY.
a. Insurance. Prior to performance under this Franchise,
Grantee shall furnish certificates of Insurance evidencing the
insurance coverages set forth below. The Certificates shall
provide that the insurance is in force and will not be canceled or
modified without thirty (30) days written notice to the city. All
liability insurance policies shall name the city, its elective and
appointed boards and commissions,' officers and employees as
additional insureds. Each policy shall provide that if the City
has other insurance against loss covered by the policy, the City's
insurance shall be excess only. Grantee shall maintain at its cost
throughout the Term of this Franchise, the following insurance in
amounts not less than the amounts specified, issued by a company
admitted in California with a Best's Insurance Guide rating of A-
Class VII or better:
(1) General liability, including comprehensive form,
personal injury, broad form property damage, contractual and
premises/operation coverage in limits of One Million Dollars
($1,000,000) aggregate, bodily injury and property damage combined;
(2) Automobile liability in limits of One Million
Dollars ($1,000,000) bodily injury and property damage combined;
and
(3) Workers'
statutory amounts.
Compensation
in
at
least
the
minimum
b. Indemnification. Grantee shall hold harmless and
indemnify the City, its officers, boards, commissions, agents and
employees for all claims, lawsuits, proceedings, damages, costs or
liabilities which may arise out of or pertaining to the exercise of
Grantee's duties under this Franchise.
c. Guarantee In Lieu Of A Faithful Performance Bond. Witlûn
thirty (30) days from the Effective Date of this Franchise, Grantee
shall file with the City Clerk a guarantee in lieu of a bond
executed by its parent company, TCI West, Inc., in a form
reasonably acceptable to the City and in the amount of Five Hundred
Thousand Dollars ($500,000.00). This guarantee shall secure the
faithful performance by Grantee of all material provisions of this
Franchise. The guarantee shall provide that if Grantee fails to
comply with any of the material provisions of this Franchise, the
16
city may recover jointly and severally from the principal and the
guarantor any damages suffered by the city as a result of Grantee's
failure to comply. This condition shall constitute a continuing
obligation for the Term of this Franchise and thereafter until
Grantee has satisfied all of lts obllgatlons under this Franchlse.
13.
RECORDS.
a. Open Books and Records. The city shall have the right,
during normal business hours and upon at least twenty-four (24)
hours notice, to inspect and copy maps, plans, financial
statements, accounting records, performance test results and other
similar documents related to the enforcement and administration of
this Franchise. Upon written request by the City, Grantee shall
promptly submit any documents or other information regarding
Grantee, its or an affiliate's business operations "relating to
Grantee's cable operations which may be reasonably required to
evaluate Grantee's compliance with this Franchise. Access to these
records shall not be denied by Grantee on the basis of proprietary
information. To the extent allowed by law, any records identified
as proprietary shall be held in confidence by the City except as
necessary to enforce and administer this Franchise. Documents not
maintained at Grantee's local office shall be made available to the
City within ten (10) business days after written notice by the
City. All documents required to be made available to the City
shall be retained by Grantee for a period not less than three (3)
years from the date of the document's creation, this obligation
shall survive the expiration of the Term of this Franchise.
b. Governmental Documents. Grantee shall retain and submit
to the City Manager within five (5) days after written request,
copies of all petitions, applications, permits, notifications,
communications and documents of any kind, received from or
submitted to any governmental, state, federal or local agency or
official which materially pertains to or in any way affects the
subject matter of this Franchise.
c. Annual Reports. within ninety (90) days after the
close of Grantee's fiscal year, Grantee shall submit a written
annual report to the city Manager, in a form approved by the city,
including but not limited to the following information for the
service Area:
(1) A summary of activities concerning the Cable System
during the reporting year, including but not limited to, services
added or dropped, technical changes, the number of installations
and the number of Customers for each class of Cable Service.
17
(2) A financial statement, audited by an independent
Certified Public Accountant, or certified by an officer of Grantee,
which verifies the quarterly Gross Revenue fees described in
paragraph 3(d) (1) of this Franchise, and any other payment of costs
required under this Franchise.
(3) A description of all testing done on the Cable
System and the test results.
(4)
directors.
Data on Grantee, its parent entity, officers and
(5) A statement of projected construction, if any, for
the next two (2) years.
14.
REMEDIES.
a. Corrective Action of Noncompliance. If the city
Manager determines Grantee has failed to comply with any of the
terms or conditions of this Franchise, including applicable
mandates of local, state or federal law, the city Manager shall
notify Grantee in writing of the findings of noncompliance. Not
later than fifteen (15) days after the date of the City Manager's
notice, Grantee shall provide a written statement to the City
Manager either showing evidence of compliance or stating the
corrective action and time schedule for correcting the
noncompliance. upon receipt of Grantee's statement or expiration
of the prescribed time to provide a statement, the City Manager
shall submit a report regarding the matter to Council. If Council
finds that Grantee is in noncompliance of this Franchise, it may
take any of the following actions:
(1) Find that Grantee has taken all necessary steps to
cure the noncompliance;
(2) Require Grantee take specific steps
specified period of time to correct the noncompliance;
within
a
(3) Assess fines under this Franchise or other local,
state or federal law; and/or
(4)
to the City.
(5) Where Council finds that Grantee's noncompliance
constitutes a Material Breach it may either: (i) terminate this
Franchise; or (ii) direct specific remedial action be taken within
a specified period of time to cure the noncompliance.
Impose any other legal or equitable remedy available
All Council decisions shall be in writing, shall include
findings of facts and conclusions and shall be final.
18
b. Stop Work Notice. Whenever construction is being
performed in a manner contrary to this Franchise, .the City Engineer
or Building Official may order the work stopped by written notlce
served on any person engaged in or causing the construction. Any
work stopped shall not resume until authorized in writing by the
City Engineer or Building Official.
c. Damages. The City shall be empowered to impose fines for
each instance of noncompliance of this Franchise by Grantee, after
providing Grantee. with written notice stating the breach for which
the fines shall be imposed and warning Grantee that if the breach
is not cured within thirty (30) days from the date of the notice,
the city will commence imposing the fines. If payment of any
assessed fine is not paid within thirty (30) days from the date of
written notice by the city requesting payment, the city may collect
the amount due from Grantee's Guarantee. If Grantee requests a
hearing before the council prior to expiration of the sixty (60)
day time period set in this paragraph, no fine shall be imposed
without a final determination by the Council. The following fines
may be imposed for the following acts of noncompliance:
(1) Failure to comply with the Design and Construction
standards set forth in this Franchise, $500.00 per day for each day
the violation continues.
(2) Failure to comply with the Testing Standards set
forth in this Franchise, $200.00 per day for each day the
noncompliance continues.
(3) Failure to comply with the CUstomer Service
Standards set forth in this Franchise, $500.00 per day for each day
the violation continues.
(4) Failure of any. representative of Grantee to
prominently display at all times when dealing with Customers
outside of Grantee's offices, picture and name identification,
associating the representative with Grantee, $100.00 per incident.
(5) Failure to provide the very-low income, disabled
discount required by this Franchise, $100.00 per day for each day
the failure continues.
(6) Failure to maintain and/or provide documents
required by this Franchise, $500.00 per day for each day the
failure continues beginning with the deadline established in the
city Manager's corrective order.
(7) Failure to keep a scheduled appointment with a
customer, or potential Customer, as determined under California
civil Code §1722(b), Grantee shall offer either: (i) free
installation; or (ii) a credit to the Customer's account equal to
one month of Basic service.
19
(8) For any condition of noncompliance not specified
herein, the Council may impose a maximum fine of $250.00 per
incidence of noncompliance.
d. Remedies Cumulative. All remedles prescrlbed ln thls
Franchise shall be cumulative and the use of one or more remedies
by the City shall not bar the use of any other remedy for the
purpose of enforcing this Franchise.
15. NONPERFORMANCE EXCUSED. Grantee shall not be held in
noncompliance of this Franchise nor shall it suffer any enforcement
or fine under this Franchise, where the noncompliance is caused by
an act of nature or other event reasonably beyond Grantee's
control, provided that Grantee exercises due care in the prevention
of the noncompliance. Further, where the cause beyond Grantee's
control affects only part of Grantee's capacity to perform, to be
free from fault, Grantee shall perform its duties to the extent
possible. As a condition of the applicability of this paragraph,
Grantee shall notify the city in writing of any cause beyond its
control within fifteen (l5) business days after the date Grantee
learned or should have learned of its occurrence. Increases in the
cost of performance, changes in economic circumstances or
nonperformance by a Grantee employee, agent or contractor shall not
excuse Grantee's noncompliance of this Franchise. This paragraph
does not limit Grantee's rights under section 625 of the Cable Act
(47 U.S.C. section 545) as it now exists or as it may be amended.
l6. NOTICE. Any notice to be given under this Franchise shall be
in writing and may be delivered personally, by facsimile or by
certified or registered mail with postage prepaid and return
receipt requested, addressed as follows:
To the City:
city of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Facsimile: 408-777-3366; Attn City Manager
To Grantee:
TCI Cablevisionof California, Inc.
234 East Gish Road
San Jose, California 95112
Facsimile: 408-452-5720
TCI. West, Inc.
Attn: Legal Department
P.O. Box 91220 .
Bellevue, Washington 98009
17. MOST FAVORED COMMUNITY. Grantee covenants that it has offered
and will continue to provide to the City the benefits, concessions,
level of technology and payments that are in whole equal to those
offered and/or provided by Grantee to any other city or community
located within the State of California.
cc:
20
18. ENT:J:RE FRANcH:J:SE. MODIF:J:CATION. This Franchise ponstitutes
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.
19. GOVERNING LAW AND ATTORNEYS' FEES. Any disputes regarding this
Franchise shall be resolved according to the laws of the state of
California. Any legal proceedings shall be initiated in the courts
of the County of Santa Clara, State of California, irrespective of
any other possible jurisdictional conditions. The prevailing party
in any action brought to enforce the terms of this Franchise, or in
any action arising out of this Franchise, may recover the costs and
attorneys' fees incurred in the action from the other party.
20. FAILURE OF THE CITY TO ENFORCE FRANCHISE DOES NOT CONSTITUTE
WAIVER. Grantee shall not be excused from complying with any of
the provisions of this Franchise, including applicable local, state
and federal laws, due to any failure of the City to insist upon or
seek compliance with this Franchise or other law.
2l. SEVERABILITY. If any provision in this Franchise is held
invalid, that invalidity shall not affect other provisions of this
Franchise which can be given effect without the invalid provision.
Accordingly, the provisions of this Franchise are declared
severable.
22. COOPERATION OF PARTIES. In performing the obligations under
this Franchise, the parties shall act in a reasonable, expeditious
and timely manner. In any instance where approval or consent is
required under this Franchise, it shall not be unreasonably
withheld.
21
23. EOUAL PROTECTION. On July 17, 1995 the city council approved
a Telecommunications policy Recommendation, a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this
reference. The city hereby agrees to adhere to bullet four on the
first page of the Telecommunications Policy Recommendatlon.
CITY OF CUPERTINO
Date:
Attest: ~A_jnL ~:71
fu~~~
Approved as to Form & Content:
TCI CABLEVISION O~ CALIFORNIA,
INC.
Date:
¿,/!/1S
ANN E. HAWKINS r
Comm.11075068 ^
TARY PUBLIC CALIFORNIAo'"
CONTRA COSTA COUNTY
Comm Exp. OCt. 15, 1999 ...
*Corp e
notary acknowledgment required:
A~ ê ;¡L~J~
Approved as to Form & Content:
BY:{f. t&~ ~lßÞwj
. Le1.g Fulood
Attorney for TCI West, Inc.
22
E-fL'ha- II
CITY OF CUPERTINO
TELECOMMUNICATIONS POLICY RECOMMENDATION
Cable Television Advisory Committee
Introduction
Future telecommunications services will radically change the commercial and
government sectors. The City of Cupertino supports and encourages
telecommunications service providers to develop new services that will facilitate
"virtual travel" within the information superhighway.
Just as the City presently maintains and regulates city streets for which its
citizens may travel and interact with other citizens, businesses, and government, the
information highway and its associated on-ramps will potentially provide equally
viable information streets. Since public, educational, and government (PEG) access will
be similarly radically changed, the City of Cupertino believes that affordable "on-
ramps" or access must be ensured for these entities as well.
Cupertino Considerations
Following are recommendations for the City of Cupertino:
. The City of Cupertino shall use the Telecommunications Policy as a guideline to
ensure that City requirements for viable and affordable PEG access are met when
telecommunications service providers use public right-of-way and/ or radio
frequency bandwidth for commercial use.
. When public rights-of-way are made available for commercial use, the City of
Cupertino will retain control over the permit process, public health and safety
requirements, construction and aesthetic standards, and insurance and bonding
requirements.
. The City of Cupertino shall receive fair and adequate compensation for the short
and long term impacts from the use of public property to install any
telecommunications infrastructure by commercial entities.
. The City of Cupertino will require all telecommunications service providers be
subject to similar compensatory fees and PEG requirements. The Policy shall ensure
that telecommunications service providers make available equipment, bandwidth
access, and appropriate compensatory fees to ensure affordable and viable public
access to PEG programming.
Telecommunications Policy
Page 2
Applications
Telecommunications service providers shall include those entities that originate
and/ or distribute Interactive or non-interactive multi-media services such as movies,
home shopping, video games, INTERNET or similar computer services, etc. The
services may be delivered via wire (such as cable, twisted pair, etc.) or wireless (or over-
the-air, e.g., direct broadcast satellite, wireless cable, personal communications systems,
etc.).
With regard to regulation of "Video DiaItone" programming that is to be offered
by regional Bell operating companies (RBOCs), any type of service that is
distinguishable from common-carrier service such as voice telephony, and not
distinguishable from that which is offered by multimedia distributors (e.g., local cable
television operators) should not enjoy any relief from the compensatory fee assessment.
In particular, where this includes use of public rights-of-way for operation, availability,
or maintenance of Video Dialtone service, service providers should be assessed fees in
like manner and the same proportion as are assessed other telecommunications service
providers.
PEG Usage
Service providers shall allow for insertion of locally originated PEG
programming into their telecommuIÙcations signals for local distribution. A portion of
the available frequency spectrum shall be set aside for the various services as described
below.
For multi-media services, this bandwidth shall be the equivalent to a minimum
of 5% of the bandwidth allocation for analog NTSC transmissions. For advanced digital
services, 5% of the allocated bandwidth slots shall be made available for PEG use in the
digital transmission band per fiber node or server node (this node typically services a
limited group of homes numbering from 200 to 1000 and constitutes areas where the
total amount of cable bandwidth is available for use by a limited group of homes). For
interactive services, a proportional amount of uplink (home-to-service node) bandwidth
shall be made available.
In addition, to monitor the use of the PEG programming, PEG channel usage
statistical data shall be made available to the City of Cupertino similar to that made
available to program providers. These requirements shall be met by all
telecommunications service providers including Cable Operators, RBOCS, Wireless
Cable or Multichannel Microwave Distribution Services (MMDS), and Local Microwave
Distribution Services (LMDS).
Telecommunications Policy
Page 3
Fees
The City of Cupertino shall assess fees universally to all service providers
equivalent to 5% of their gross revenues from the Cupertino area. Equipment for
program production and distribution (video servers and storage media) shall also be
made available to the City. For interactive providers, computer programs that allow
interactive screens to be designed shall also be made available to the public access
programmers.
Satellite Services
For direct broadcast satellite services, the service provider shall pay an annual
fee per satellite subscriber resident in the City of Cupertino (the zip codes of the
consumers are available to the Service Provider and the number of consumers in the
Cupertino area will be provided to the City of Cupertino). The fee per subscriber will
be 5% of the annual subscription price that is charged. The provider shall also
periodically make locally originated programming available on their transmitted
signal.
Personal Communications Systems
For personal communications system and cellular service providers, a portion
of the bandwidth or capacity shall be made available to the City of Cupertino for
operational and emergency services. In addition, if interactive (or non-interactive)
multi-media services are made available over the air, then the City will require
proportional bandwidth for PEG broadcast use.
CALIFORNIA
-":,:,:",:""",:",,,
, ,,', "';' ", "", ,',
" " '"
ALL-PURPOSE -"" ',',: ,':::: ",:::
" " ",
A CKN 0 WLEDG EMENT
STATE OF CALIFORNIA
COUNTY OF (' ~+rLÃ
)
CDs.Q )
On
1)/ ~/qs... before me,
OAT
personall a eared, I, \ ; \ \ ì a ~ ~. t1 d ~
personally known t me (or proved to me on the basis of satisfac ory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/
they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrumentthe person(s) , or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
0
~ ~ ¿:: ~j~~~SE i
NOTARY PUBLIC SIGNATURE
ANN E. HAWKINS
Comm. .'075068 3:
TAAY "UILIC CALIFOANIA C>
CONTAACOSTACOUNTY ()
Comm exp Oct 15. 1999 ..
8:":,'.;
¥' '
OPTIONAL INFORMATION
TITLE OR TYPE OF DOCUMENT --TraN\." Q ¡ J:J)
~OO~~
NUMBER OF PAGES
DATE OF DOCUMENT
d5
SIGNER(S) OTHER THAN NAMED ABOVE