Loading...
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