HomeMy WebLinkAbout1993-115 Non-exclusive franchise rights • ORDINANCE No. g3_/L5
AN ORDINANCE granting a non - exclusive franchise to TCI Cablevision of
Yakima, Inc. to operate and maintain a cable communications system
throughout the City of Yakima, setting forth provisions, terms and conditions
of the grant of franchise, providing for city regulation and use of the cable
communications system, prescribing penalties for violation of franchise
provisions, and terminating, except as otherwise provided by this Ordinance,
Ordinance No. 2209, as amended by Resolution No. D -5436 and Ordinance 93-
100
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby
granted to TCI Cablevision of Yakima, Inc., to operate and maintain a cable
communications system in the City of Yakima upon the following express
terms and conditions
SECTION 1. DEFINITIONS. For the purposes of this Ordinance the
following terms, phrases, words, and their derivations shall have the
meaning given herein. When not inconsistent with the context, words used
in the present tense include the future, words in the plural number include
the singular number, words in the singular number include the plural
number, and the use of any gender shall be applicable to all genders
whenever the sense requires The words "shall" and "will" are mandatory
and the word "may" is permissive. Where a term in the Ordinance is not
defined in this Section and there is a definition for the term in the Cable
Communications Policy Act of 1984 (hereinafter Cable Act), the Cable Act
41)
page 1
4.
definition shall apply Other terms in the Ordinance which are not defined in
•
this Section shall be given their common and ordinary meaning.
1.1 "Access Channel" or "Public, Educational or Government (PEG)
Access Channel" means any channel or portion of a channel utilized for
programming, whether by the cable operator or in cooperation with, by or
through the City, where any member of the general public or any non-
commercial organization may be a programmer, either without charge or in a
non - profit manner, on a non - discriminatory basis
1.2. "Access Services" or "Community Access Services" means
programming provided on any public, educational or government (PEG)
access channel, and the provision of any facilities, equipment, channels or
other services for the P urpose of facilitating such programming.
1.3 "Addressability" means the capability of the cable
communications system to provide programming to specific subscribers on a
per - program, per- event, and per - program- package basis.
1.4 "Basic Service" or "Basic Cable Service" means any tier of
service regularly provided to all subscribers. It includes, but is not specifically
limited to, the retransmission of local broadcast television signals and the
cablecasting of public, educational, or governmental access channels.
Nothing in this definition shall be deemed to limit the rights of TCI or the
City with respect to the regulation of rates and charges as permitted by
applicable law
410
page 2
1.5 "Cable Act " means the Cable Communications Policy Act of
• 1984 (Public Law No 98 -549, 47 USC 521 (Supp )) as it may be amended or
superseded.
1.6 "Cable Communications System" or "Cable System," or
"System," shall have the meaning specified for "Cable Communications
System" in the Cable Act. Unless otherwise specified it shall in this
document refer to the cable communications system constructed and operated
in the City under this Ordinance
1.7 "Cable Service" shall have the same meaning specified for
"cable service" in the Cable Act as amended.
• 1.8 "Channel" means a radio frequency band or its technical
equivalent on the cable system, which is capable of carrying either one
standard television signal, or a number of audio, digital or other non -video
signals, or some combination of such signals. "Standard Television Channel"
or "Standard Video Channel" means a six Megahertz (MHz) frequency band
or its technical equivalent, prior to any signal compression.
1.9 "City" shall mean City of Yakima of the State of Washington
and all the incorporated territory within its present and future boundaries
1.10 "Community Access Channel" means any channel designated
or dedicated for use by the general public or non - commercial organizations
which is made available without charge on a first -come, first - served, non-
.
page 3
r'
discriminatory basis. Such channels are identical to "public access channels"
as defined in the Cable Act.
1.11 "Downstream Channel" shall mean a channel capable of
carrying a transmission from the headend to remote points on the system.
1.12 "Expanded Basic Service" shall mean optional services not
included in the Basic Service and excluding premium or pay - per -view
services
1.13 "Franchise" shall mean the right granted by this Ordinance and
conditioned as set forth herein by which the City authorizes TCI to erect,
construct, reconstruct, operate, dismantle, test, use and maintain a Cable
Communications System in the City The Franchise granted herein shall be a
411
non - exclusive franchise
1.14 "Franchise Fee" shall mean the fee assessed by the City to TCI,
in consideration of TCI's right to operate the cable system within the City's
streets and rights of way, determined in amount as a percentage of TCI's gross
revenues and limited to the maximum percentage allowed for such
assessment by federal law The term Franchise Fee does not include any tax,
fee, or assessment of general applicability, nor any payments by TCI called for
in this Franchise as reimbursement of the City's costs, or support of
community access services.
1.15 "Government Channel" or "Government Access Channel"
means any channel specifically designated or dedicated for government use.
page 4
1 ;
• 1.16 "Gross Revenues" means any and all compensation in
whatever form, from any source, directly earned by TCI or any affiliate of TCI
or any other person who would constitute a cable operator of the cable system
under the Cable Act, derived from the provision of the cable service, as
defined by the Cable Act, insofar as such provision in any manner requires
use of the public streets and rights of way in the Franchise Area. Amounts
identified by the City as franchise, copyright, or other license fees, shall not be
excluded from gross revenues. Gross revenues shall include but not be
limited to basic and pay service revenues, revenues from installation and
equipment rental and sale, the applicable percentage of local and regional
advertising revenues, any leased access revenues, and revenues from any
tiered or packaged services
•
Gross revenues shall not include any taxes on services furnished by TCI,
which taxes are imposed directly on a subscriber or user by a city, state or other
governmental unit, and collected by TCI for such entity Gross revenues shall
not include amounts which cannot be collected by TCI and are identified as
bad debt; provided that if amounts previously representing bad debt are
collected, then those amounts shall be included in gross revenues for the
period in which they are collected.
Amounts included in gross revenues shall not be counted more than once,
therefore, amounts included once in TCI's gross revenues shall not be added
to gross revenues again if they are received by an affiliate of TCI in payment
for programming or other goods or services supplied to TCI.
111
page 5
1 4 .
1.17 "Interactive Services" are those services provided to subscribers
whereby the subscriber has the ability to both receive information consisting III
of either television or other signals and transmits signals generated by the
subscriber or equipment under his /her control for the purpose of selecting
what information shall be transmitted to the subscriber
1.18 "Leased Access" shall mean the use on a fee- for - service basis of
the Cable Television System by business enterprises (whether profit,
nonprofit or governmental) to render services to the citizens of the City and
shall include without limitation all use pursuant to Section 612 of the Cable
Act
1.19 "Pay Service" or "Premium Service" means programming
(such as non - advertiser- supported movie channels or pay - per -view
programs) offered individually to subscribers on a per - channel, per- program
or per -event basis.
1.20 "Person" means any individual, corporation, partnership,
association, joint venture or organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof
1.21 "School" means any public, private, or non - profit educational
institution, including primary and secondary schools, colleges and
universities
1.22 "Subscriber" means any person who legally receives any one or
more of the services provided by the Cable Communications System.
III
page 6
• 1.23 "Street" shall mean the surface of and the space above and
below the right of way of any public street, road, highway, freeway, easement,
lane, path, alley, court, sidewalk, parkway, or driveway now or hereafter
existing as such within all incorporated areas of the City
1.24 "TCI" shall mean TCI Cablevision of Yakima, Inc., a
Washington corporation, and its agents, successors and assignees.
1.25 "Upstream Channel" shall mean a channel capable of carrying
transmissions to the headend from remote points on the system or to
interconnect points on the system.
410 SECTION 2. FRANCHISE.
2.1 Grant of Franchise. The City hereby grants to TCI Cablevision
of Yakima, Inc , a non - exclusive Franchise which authorizes TCI, subject to
the terms of this Ordinance, to construct and operate a cable system and offer
cable service and other services in, along, among, upon, across, above, over,
under, or in any matter connected with the streets located in the City and for
that purpose to erect, install, construct, repair, replace, reconstruct, maintain,
or retain in, on, over, under, upon, across or along any street or extensions
thereof and additions thereto, such poles, wires, cables, conductors, ducts,
conduits, vaults, utility access covers, pedestals, amplifiers, appliances,
attachments, and other related property or equipment as may be necessary or
appurtenant to the cable system. Said Franchise shall constitute both a right
•
page 7
and an obligation to provide the services of a Cable Communications System
as required by the provisions of this Ordinance III
2.2 Franchise Term. The term of the Franchise shall be fifteen (15)
years, unless extended in accordance with the provisions in Sections 2.6 or
2.11 or terminated sooner in accordance with this Ordinance.
2.3 Franchise Area. The Franchise Area shall be that area within
the present or future corporate limits of the City Service shall be provided to
all persons whose homes or business are within the line extension policy set
forth in Section 10 of this Ordinance and to such further homes or businesses
as agreed to by TCI.
2.4 Franchise Non - exclusive. The Franchise granted herein shall
be non - exclusive. The City specifically reserves the right to grant, at any time,
such additional franchises for a Cable Communications System as it deems
appropriate provided, however, such additional grants shall not operate to
materially modify, revoke, or terminate any rights previously granted to TCI.
The grant of any additional franchise shall not of itself be deemed to
constitute a modification, revocation, or termination of rights previously
granted to TCI.
2.5 Franchise Renewal or New Franchise. The City may establish
appropriate requirements for new franchises or franchise renewals consistent
with federal, state and local law
411
page 8
• 2.6 Periodic Public Review of Franchise. The City shall at three -
year intervals during the term of the Franchise conduct a public review of the
Franchise. The purpose of the review shall be to ensure, with the benefit of
full opportunity for public comment, that the Franchise continues to
effectively serve the public in the light of new developments in cable law and
regulation, cable technology, cable company performance, local regulatory
environment, community needs and interests, and other such factors. Both
the City and TCI agree to make a full and good faith effort to participate in the
review in a manner that accomplishes this end.
After completion of each such review, if the City is satisfied that the public
interest will be served by extending the term of the Franchise, it may, with the
consent of TCI, extend the term set forth in Section 2.2 by one (1) additional
• year In no event, however, shall the total term of this Franchise, including
any extensions, exceed twenty (20) years.
The periodic public reviews described in this Section may be but need not be
made coincident with public reviews involved in the consideration of TCI
requests for Franchise renewal, Franchise extension, or approval of transfer of
system ownership
2.7 Transfer of Ownership. This Franchise shall not be sold, leased,
mortgaged, assigned or otherwise transferred, nor shall any of the rights or
privileges herein granted or authorized be leased, assigned, mortgaged, sold
or transferred, either in whole or in part, nor shall title hereto, either legal or
equitable, or any right, interest or property herein, pass to or vest in any
• person, except TCI, either by act of TCI or by operation of law, without the
page 9
prior consent of the City, expressed in writing. The granting of such prior
III
consent in one instance shall not render unnecessary any subsequent prior
consent in another instance. Any transfer of ownership shall make the
Franchise subject to revocation unless and until the City shall have given
written prior consent thereto.
TCI, upon any transfer as heretofore described, shall within sixty (60) days
thereafter file with the City a copy of the deed, agreement, mortgage, lease, or
other written instrument evidencing such sale, lease, mortgage, assignment
or transfer, certified and sworn to as correct by TCI.
Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless TCI shall within
sixty (60) days after the same shall have been made, file such certified copy as
III
is required.
The requirements of this Section shall not be deemed to prohibit the use of
TCI's property as collateral for security in financing the construction or
acquisition of all or part of the cable communications system franchised
hereunder However, such financing shall be subject to the provisions of this
Ordinance
2.8 Change in Control. TCI shall promptly notify the City through
the City Council of any proposed change in, transfer of, or acquisition by any
other party of control of TCI. If beneficial ownership of thirty (30) percent or
more of the stock of TCI, or of any parent company of TCI immediate or
otherwise, or of any entity now owning or later acquiring such a beneficial
III
page 10
.,,
interest is acquired by a single entity or by several entities under common
• control, and if such entity or agent of common control is other than an
organization a) whose primary business is cable system operation, and b) is
more than 50 percent owned by TCI or a parent of TCI, then a change in
control will be deemed to have taken place unless the City, upon request of
TCI, finds otherwise. Such change in control shall make this Franchise
subject to revocation unless and until the City shall have given written
consent thereto For the purpose of determining whether it will consent to
such change, transfer, or acquisition of control, the City may inquire into the
qualifications of the prospective controlling party to perform the obligations
of TCI under this Ordinance. TCI shall assist the City in any such inquiry
The City may condition its consent upon such terms and conditions as it
deems appropriate. Consent to the transfer shall not be unreasonably
III withheld
2.9 Revocation. In addition to any rights set out elsewhere in this
document, the City reserves the right to declare a forfeiture or otherwise
revoke the Franchise, and all rights and privileges pertaining thereto, in the
event that
(a) TCI is in violation of any material provision of the Ordinance
and fails to correct the violation after written notice of the violation and
proposed forfeiture and a reasonable opportunity thereafter to correct the
violation as noted in Section 7.6, Procedure for Remedying Franchise
Violations, or
III
page 11
(b) TCI's completion of the upgrade construction as required by
Section 4.3 is delayed for more than 18 months from the completion date
identified in the construction schedule approved by the City; or
(c) TCI or TCI of Washington, Inc., a corporation of Washington,
becomes insolvent, unable or unwilling to pay its debts as they become due,
or is adjudged a bankrupt;
(d) TCI is found to have engaged in any actual or attempted fraud or
deceit upon the City, persons or subscribers, or
(e) TCI fails to obtain and maintain any permit required by any
federal or state regulatory body, relating to the construction, maintenance and
operation of the system, or
(f) At any time during the term of the Franchise, as it may be
extended from time to time pursuant to this Ordinance, TCI fails to provide
and maintain a Letter of Credit as required under Section 11.3 of this
Ordinance
Upon the occurrence of one of the events set out above, following sixty (60)
days written notice to TCI of the occurrence and the proposed forfeiture and
an opportunity for TCI to be heard, the City may by Ordinance or other
appropriate document, declare a forfeiture In a hearing of TCI, TCI shall be
afforded due process rights as if the hearing were a contested case hearing
subject to Washington law, including the right to cross - examine witnesses
and to require that all testimony be on the record. Findings from the hearing
•
page 12
shall be written, and shall stipulate the reasons for the City's decision. If a
forfeiture is lawfully g declared, all rights of TCI under the Franchise shall
immediately be divested without a further act upon the part of the City
2.10 Receivership. The City shall have the right to declare a
forfeiture or otherwise revoke the Franchise one hundred and eighty (180)
days after the appointment of a receiver, or trustee, to take over and conduct
the business of TCI, whether in receivership, reorganization, bankruptcy, or
other action or proceeding, unless such receivership or trusteeship shall have
vacated prior to the expiration of said one hundred and eighty (180) days, or
unless
(a) within one hundred and eighty (180) days after his election or '
appointment, such receiver or trustee shall have been approved by the City
and shall fully have complied with all the provisions of this Ordinance and
remedied all defaults thereunder; and,
(b) such receiver or trustee, within said one hundred and eighty
(180) days, shall have executed an agreement, duly approved by the City, as
well as the court having jurisdiction in the premises, whereby such receiver
or trustee assumes and agrees to be bound by each and every provision of this
Ordinance
2.11 Expiration. Upon expiration of the Franchise, the City shall
have the right, at its own election subject to Section 626 of the Cable Act, to:
•
page 13
(a) extend the Franchise for up to a total of twenty (20) years, though
nothing in this provision shall be construed to require such extension,
(b) renew the Franchise, in accordance with applicable valid law;
(c) invite additional franchise applications or proposals,
(d) terminate the Franchise without further action, and
(e) take such other action as the City deems appropriate
2.12 Right to Purchase the System.
(a) In the event the City has declared a forfeiture for cause or
otherwise revoked for cause the Franchise as provided herein, or in the event
of expiration of the initial term of the Franchise without the Franchise being
renewed or extended and the City Council has so ordered by ordinance, TCI
shall continue its operations for a period of 270 days after either the effective
date of such ordinance or expiration of the initial term of the Franchise
unless the ordinance in either case orders termination by TCI of its operations
at an earlier time During this period, TCI shall not transfer any portion of its
cable system to any other person, including parts of the system rented, leased,
or lease- purchased without prior written consent of the City Within 30 days
of the order by the City to continue operations, TCI shall tender to the City an
inventory of its system used in the operations under this Ordinance. After
receiving the inventory, the City may notify TCI that it desires to acquire by
purchase at fair market value all or a portion of the system used by TCI in its
page 14
• operation, exclusive of parts of the system essential to TCI's operation of parts
of the system, or of other systems, not acquired. Such notice shall be by
ordinance or other appropriate writing of the City and shall state a date upon
which TCI shall cease its operations and receive payment as described below
Under this Section, if a Franchise renewal is denied, the City shall have an
option to acquire TCI's system at fair market value, determined on the basis
of the cable system valued as a going concern but with no value allocated to
the Franchise itself If a franchise is revoked for cause, the City shall have an
option to acquire TCI's system at an equitable price.
The fair market value or the equitable price of the system for purposes of this
Subsection shall be determined by mutual agreement between the City and
• TCI. If such mutual agreement is not reached, then the City may demand that
such valuation be determined by an appraisal committee, as provided in
Subsection (b) below The appraisers selected for this committee shall be
knowledgeable in valuation of cable systems.
During any period of continued operation under this Section, except for the
use of TCI's property as collateral for security in financing the construction or
acquisition of all or part of the cable communications system, TCI shall not
sell, assign, transfer, or lease to any other persons, firm or corporation, any
portion of the system used by it in its operations without the prior written
consent of the City
(b) Appraisal as provided in Subsection (a) of this Section shall be
• final and binding upon both parties, subject to: (1) the City's right within 60
page 15
days of determination of valuation to decide by appropriate ordinance or
all or any part of the system subject •
other writing not to acquire all y p ect to the y �
valuation proceeding; and (2) the City's right to decide to acquire through the
sale of bonds, but subject to and conditioned upon any necessary voter
approval of the bond funding for acquisition of all or a part of the system and,
if applicable, the successful sale of the bonds. The City may choose to employ
appraisal by appropriate ordinance or other writing of its governing body In
the ordinance or other writing the governing body shall appoint one
appraiser, and TCI, by written notice, shall appoint one appraiser within
fifteen (15) days after passage of such ordinance or other writing. The two so
appointed shall select a third appraiser within fifteen (15) days after the
appointment of the second appraiser The appraisers shall make a written
report to the City and TCI of their determination of the value of the system,
or relevant part thereof, within ninety (90) days after the appointment of the •
third appraiser The determination of a majority of the appraisers shall
constitute the appraisal determination hereunder The City and TCI shall pay
the cost of their chosen appraiser and the cost of the third appraiser shall be
divided equally between the City and TCI.
(c) In the event the City purchases, acquires, takes over, or holds all
or parts of the system pursuant to Subsection (a) above, the City shall have
the right without limitation to assign, sell, lease, or otherwise transfer its
interest in all or parts of the system to any other persons, including any other
grantee of a cable communications franchise, on whatever terms the City
deems appropriate.
page 16
• In the event a franchise renewal is denied or terminated for any reason, and
the City does not exercise the option to purchase the system, the City must
allow TCI to abandon the facilities, or effect transfer to another purchaser
consistent with the franchise transfer provisions of this Ordinance.
2.13 Right to Require Removal of Property. At the expiration of the
term for which the Franchise is granted providing no renewal is granted, or
upon its forfeiture or revocation of the Franchise, as provided for by this
Ordinance, the City shall have the right to require TCI to remove, at TCI's
own expense, all or any part of the cable communications system from all
streets and public ways within the Franchise area, where the abandoned
facilities interfere with reasonable uses of the rights of way If TCI fails to do
so, the City may perform the work and collect the cost thereof from TCI. The
• actual cost thereof, including direct and indirect administrative costs, shall be
a lien upon all plant and property of TCI effective upon filing of the lien with
the Yakima County Auditor
Any order by the City Council to remove cable or conduit shall be mailed to
TCI not later than thirty (30) calendar days following the date of expiration of
the Franchise. TCI shall file written notice with the Clerk of the City Council
not later than thirty (30) calendar days following the date of expiration or
termination of the Franchise of its intention to remove cable intended to be
removed and a schedule for removal by location. The schedule and timing of
removal shall be subject to approval and regulation by the City Removal
shall be completed not later than twelve (12) months following the date of
expiration of the Franchise.
•
page 17
TCI shall not remove any underground cable or conduit which requires
trenching or other opening of the streets along the extension of cable to be
removed, except as hereinafter provided. TCI may voluntarily remove any
underground cable from the streets which has been installed in such a
manner that it can be removed without trenching or other opening of the
streets along the extension of cable to be removed. Subject to applicable law,
TCI shall remove, at its sole cost and expense, any underground cable or
conduit by trenching or opening of the streets along the extension thereof or
otherwise which is ordered to be removed by the City Council based upon a
determination, in the sole discretion of said Council, that removal is required
in order to eliminate or prevent a hazardous condition. Underground cable
and conduit in the streets which is not removed shall be deemed abandoned
and title thereto shall be vested in the City
2.14 Continuity of Service Mandatory. It shall be the right of all
•
subscribers to receive all available services insofar as their financial and other
obligations to TCI are honored. In the event that TCI elects to overbuild,
rebuild, modify, or sell the system, or the City revokes or fails to renew the
Franchise, TCI shall make its best effort to ensure that all subscribers receive
continuous uninterrupted service, regardless of the circumstance. In the
event of expiration, purchase, lease- purchase, condemnation, acquisition,
taking over or holding of plant and equipment, sale, lease, or other transfer to
any other person, including any other grantee of a cable communications
franchise, TCI shall cooperate fully to operate the system in accordance with
the terms and conditions of this Ordinance for a temporary period sufficient
in length to maintain continuity of service to all subscribers.
page 18
2.15 Other Codes or Ordinances. Nothing in this Ordinance shall be
• deemed to waive the requirements of the other lawful codes and ordinances
of the City regarding permits, fees to be paid or manner of construction.
2.16 Survival of Terms. Sections 2.12, 2.13, 2.14, 11, and 12 of this
Ordinance shall continue in effect as to TCI notwithstanding any expiration,
forfeiture, or revocation of the Franchise
SECTION 3. OPERATION IN STREETS AND RIGHTS -OF -WAY.
3.1 Use of Streets. TCI may, subject to the terms of this Ordinance,
erect, install, construct, repair, replace, reconstruct and retain in, on, over, '
• under, upon, across and along the streets within the City such lines, cables,
conductors, ducts, conduits, vaults, utility access covers, amplifiers,
appliances, pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation of a Cable Communications
System within the City
3.2 Construction or Alteration. TCI shall in all cases comply with
all lawful City ordinances and regulations regarding the acquisition of
permits and such other items as may be reasonably required in order to
construct, alter or maintain the cable system. TCI shall, upon request, provide
information to the City regarding its progress in completing or altering the
cable system.
1111
page 19
3.3 Non - Interference. TCI shall exert its best efforts to construct
and maintain a Cable Communications System so as not to interfere with
other use of streets. TCI shall, where possible in the case of above ground
lines, make use of existing poles and other facilities available to TCI. TCI
shall individually notify all residents affected by proposed construction prior
to commencement of that work where and when this is reasonably possible.
3.4 Consistency with Designated Use. Notwithstanding the above
grant to use streets, no street shall be used by TCI if the City, in its sole
opinion, determines that such use is inconsistent with the terms, conditions
or provisions by which such street was created or dedicated, or presently used
under State and local laws.
3.5 Undergrounding. TCI shall place underground all of its •
transmission lines which are located or are to be located above or within the
streets of the City in the following cases.
(a) all existing utilities are placed underground,
(b) statute, ordinance, policy or other regulation of the City requires
utilities to be placed underground,
(c) overhead utility lines are placed underground (TCI shall bear the
cost of such movement of its facilities unless specific exemption is given by
the City in any individual case),
(d) TCI is unable to get pole clearance;
page 20
}
• (e) underground easements are obtained from developers of new
residential areas, or
(f) utilities are overhead but residents prefer underground (service
provided at residents' expense)
3.6 Restoration. In case of disturbance of any street, public way,
paved area or public improvement, TCI shall, at its own cost and expense and
in accordance with the requirements of local law, restore such street, public
way, paved area or public improvement to substantially the same condition
as existed before the work involving such disturbance took place.
1111 All requirements of this Section pertaining to public property shall also apply
to the restoration of private easements and other private property
TCI shall perform all restoration work promptly
If TCI fails, neglects or refuses to make restorations as required under this
Section, then the City may do such work or cause it to be done, and the cost
thereof to the City shall be paid by TCI.
If TCI causes any damage to private property in the process of restoring
facilities, TCI shall pay the owner of the property for such damage.
•
page 21
In any dispute over the adequacy of a restoration relative to this Section, the
Ci ty of Yakima Department of Public Works shall in its sole discretion make 1111
the final determination.
3.7 Access through Private Property. TCI, with 24 hour notice to
the property owner, shall have the authority to trim trees upon and
overhanging streets, alleys, sidewalks, and public ways so as to prevent the
branches of such trees from coming into contact with the wires and cables of
TCI.
3.8 Relocation. If during the term of the Franchise the City or any
government entity elects or requires a third party to alter, repair, realign,
abandon, improve, vacate, reroute or change the grade of any street, public
way or other public property; or to construct, maintain or repair any public
411)
improvement; or to replace, repair, install, maintain, or otherwise alter any
cable, wire conduit, pipe, line, pole, wireholding structure, structure, or other
facility, including a facility used for the provision of utility or other services
or transportation of drainage, sewage or other liquids, TCI shall, upon request,
except as otherwise hereinafter provided, at no expense to the City remove or
relocate as necessary its poles, wires, cables, underground conduits, vaults,
pedestals, utility access covers and any other facilities which it has installed.
If during the term of the Franchise another entity which holds a franchise or
any utility requests TCI to remove or relocate such facilities to accommodate
the construction, maintenance or repair of the requesting party's facilities, or
their more efficient use, or to "make ready" the requesting party's facilities for
use by others, or because TCI is using a facility which the requesting party has
page 22
•
a right or duty to remove, TCI shall do so. The companies involved may
of removal or relocation
decide among themselves who is to bear the cost o e relocation,
provided that the City shall not be liable for such costs.
Any person requesting TCI to remove or relocate its facilities shall give TCI
no less than forty-five (45) days advance written notice to TCI advising TCI
the date or dates removal or relocation is to be undertaken, provided that, no
advance written notice shall be required in emergencies or in cases where
public health and safety or property is endangered.
If TCI fails, neglects or refuses to remove or relocate its facilities as directed by
the City, or in emergencies or where public health and safety or property is
endangered, the City may do such work or cause it to be done, and the cost
• thereof to the City shall be paid by TCI. If TCI fails, neglects or refuses to -
remove or relocate its facilities as directed by another franchisee or utility,
that franchisee or utility may do such work or cause it to be done, and if TCI
would have been liable for the cost of performing such work, the cost thereof
to the party performing the work or having the work performed shall be paid
by TCI.
If TCI causes any damage to private property or public property in the process
of removing or relocating its facilities, TCI shall pay the owner of the property
for such damage.
3.9 Movement of Buildings. TCI shall, upon request by any person
holding a building moving permit, franchise or other approval issued by the
• City, temporarily remove, raise or lower its wire to permit the movement of
page 23
buildings The expense of such removal, raising or lowering shall be paid by
the person requesting same, and TCI shall be authorized to require such •
payment in advance The City shall require all building movers to provide
not less than three (3) business days notice to TCI to arrange for such
temporary wire changes.
SECTION 4. SYSTEM DESIGN AND CAPACITY.
4.1 Availability of Signals and Equipment. TCI shall, commencing
with the effective date of the Ordinance, at a minimum
(a) make available to subscribers all signals that are required to be
made available by the FCC or as federal law provides,
(b) distribute, in color, all television signals which are received in
color unless a substantial reason for noncompliance can be demonstrated,
(c) make available a minimum of 75 activated channels, including
all basic cable services, subject to the System upgrade and construction
schedule set forth in Section 4.3,
(d) make available parental control or "lock -out" devices (audio and
visual) upon request by subscriber and at a reasonable charge. These devices
should provide the greatest degree of parental discretion and control to
prevent unauthorized viewing of any premium channel or channels and,
where technically and practically feasible, non - premium channels as well,
page 24
• (e) make available upon request uest an RF switch (an A/B switch)
q
permitting conversion from cable to antenna reception,
(f) upon request, shall provide without charge one outlet of all
cable service, with the sole exceptions of premium, pay -per -view, or other
services requiring a charge beyond the Basic Service or Expanded Basic
Service, to the Yakima City Hall, any public fire station passed by the Cable
System, other designated City buildings as designated by the City, and one
outlet each to all public school and college building(s) that are passed by the
Cable System. Notwithstanding anything to the contrary set forth in this
Section, TCI shall not be required to provide an outlet to such buildings,
unless it is technically feasible and if it will not adversely affect the operation
• or market development of the Cable System to do so. The City and TCI agree
that the provision of the outlets contemplated hereunder will not so
adversely affect the system, unless some unforeseen and unanticipated event
occurs, e.g., such a substantial increase occurs in the cost of providing the
outlet as to create that adverse effect, or if it becomes illegal to provide the
outlets No monthly service charge shall be made for distribution of the
services described in this Section to these locations.
4.2 Equal and Uniform Service. TCI shall provide access to equal
and uniform cable television service throughout the Franchise Area.
4.3 System Upgrade and Construction Schedule.
•
page 25
4.3.1 System Upgrade Required. TCI shall rebuild or modify
its cable system to upgrade the system to a minimum practical capacity of 75
III
downstream standard video channels activated for delivery of signals to
subscribers throughout the Franchise Area within 48 months of the effective
date of this Ordinance. The system, as upgraded, shall have the capacity to
provide pay - per -view and other services requiring Addressability
In all its construction and service provision activities, TCI shall meet or
exceed the construction, technical performance, extension and service
requirements set forth in this Ordinance During the initial forty -eight (48)
months of the Franchise, TCI shall not be obligated to provide a refund or
credit to customers where the outage was necessitated by the cut -over from
the present system to the rebuilt or modified system.
4.3.2 Construction Schedule. A detailed construction
schedule, which shall be subject to City approval, shall be submitted to the
City no later than 45 days prior to the commencement of construction of the
system upgrade. TCI shall commence construction during the calendar year
1995, and shall complete construction and all activation procedures within 48
months of the effective date of this Ordinance. Following such construction
and activation and throughout the term of the Franchise, at least 75 standard
video channels must be able to be delivered on the system without additional
construction activity or the addition of any further electronic equipment to
the system, and the system shall have the capacity to provide pay - per -view
and other services requiring Addressability In addition, at least 45 channels
on the system must be carrying video programming in accordance with
Section 5 For purposes of this Ordinance, "commencement of construction,"
III
page 26
as finally determined by the City if necessary, shall mean the beginning of
• installation of any part of the system upgrade, including, but not limited to,
strand mapping, system design, and the construction of any facility, building
or structure, or the stringing of any strand wire or the laying of any conduit,
or the installation of any active or passive electronic equipment to facilitate
the required system upgrade.
4.3.3 Remedies. The City may assert any of the following
remedies in the event TCI defaults on the approved construction schedule:
(a) Draw upon TCI's Letter of Credit (as provided for under
Section 11 3) to recover damages for a default in which TCI delays completion
of construction of the upgrade for more than one year, provided, however,
• that no payment shall be made under such Letter of Credit in the event of a
delay caused by acts of nature, force majeure or circumstances beyond the
reasonable ability of TCI to control. In any other event, TCI shall pay to the
City damages in the amount of two thousand dollars ($2,000) per day for each
day which is more than 365 days after the deadline for completion of
construction. TCI and the City acknowledge and agree that the harm the City
is likely to incur upon such a TCI breach is such that it is incapable of
ascertainment or very difficult to ascertain and that the foregoing liquidated
damages are a reasonable forecast of just compensation for such harm to
which the City shall be entitled regardless of the amount of its actual
damages. The City shall be entitled to draw upon the Letter of Credit to
college the foregoing damages (in addition to its ability to draw upon the
Letter of Credit for any other default) No payment of damages hereunder
page 27
will, in any manner or degree, release TCI from its obligations and liabilities
to complete the entire Franchise.
(b) Termination of the Franchise for delays in upgrade
construction completion exceeding eighteen (18) months.
4.3.4 Hearing Process.
(a) If the City concludes that TCI is liable for damages subject
to forfeiture of its corporate guarantee pursuant to Sections 4.3.3 and 11.3, the
City may issue to TCI by certified mail a notice of intention to draw upon the
Letter of Credit (as described in Section 11.3) The notice shall set forth the
basis for the assessment, and shall inform TCI that damages will be assessed
from the date of the notice unless the assessment notice is appealed for
hearing before the City Council.
(b) Should TCI desire a hearing before the City Council, TCI
shall send a written notice of appeal by certified mail to the City Clerk within
fifteen (15) days from the date on which the City sent the notice of intention
to assess damages. The hearing on TCI's appeal shall be within thirty (30)
days from the date on which TCI sent its notice of appeal to the Clerk.
(c) Unless the City Council rules (1) that the violation has
been corrected, or (2) that an extension of time or other relief should be
granted, said damages shall be assessed beginning with the date on which the
City sent the notice of the intention to assess damages and continuing
page 28
thereafter until such time as the City determines that the violation has
•
ceased, such determination not to be unreasonably with held.
4.3.5 Right of Inspection of Construction. The City shall have
the right to inspect all construction or installation work performed within the
Franchise area, and to make such tests as it shall find necessary to ensure
compliance with the terms of this Ordinance and other pertinent provisions
of law
4.3.6 Emergency Alert Capability. TCI shall meet or exceed
FCC guidelines in providing the system capability for the City to transmit an
emergency alert signal from locations designated by the City to all subscribers.
TCI shall also provide an emergency audio and video override capability to
• permit the City to interrupt programming and cablecast from locations
designated by the City an audio and video message on all channels
simultaneously in the event of disaster or public emergency Emergency alert
capability, as required in this Section, shall be operational immediately upon
completion of the System Upgrade and throughout the term of the Franchise.
4.3.7 Standby Power. TCI shall provide standby power
generating capacity at the cable communications system control center and at
all hubs. TCI shall maintain standby power system supplies, rated at least at
two (2) hours duration, throughout the trunk and distribution networks. In
addition, TCI shall have in place throughout the Franchise term a plan, and
all resources necessary for implementation of the plan, for dealing with
outages of more than two hours. This outage plan and evidence of requisite
implementation resources shall be presented to the City as part of the
page 29
construction schedule for approval prior to the effective date of this
Ordinance 411
4.3.8 Provision of Bi- Directional Capability. TCI shall
construct the upgraded system with bi- directional capability throughout both
the residential and any public agency networks, as provided in Section 4.3.10
4.3.9 Interactive Services. TCI shall construct its system to
include the possibility of providing interactive residential services. TCI shall
provide such services when technical and economic feasibility are
demonstrated In any case, within twenty -four (24) months of the date upon
which at least 50% of the cable systems operated by TCI Cablevision of
Washington, Inc. provide an interactive capability, then TCI shall provide
this capability throughout the Franchise Area.
4.4 Technical Standards. The Federal Communications
Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical
Standards), as now or hereafter constituted or amended, shall apply The City
may establish reasonable technical standards for the performance of the cable
system if the FCC permits it to do so, or if the FCC standards are repealed in
whole or in part. Regardless of the physical location of the system headend,
the system within the City shall deliver technical quality equivalent to
having the master headend located within the City's boundaries.
4.5 Performance Testing. TCI shall perform all system tests at the
intervals required by the FCC, and all other tests reasonably necessary to
page 30
determine compliance with technical standards required by this Ordinance.
• These tests shall include, at a minimum.
(a) Initial proof of performance for any construction,
(b) Semi- annual compliance tests,
(c) Tests in response to subscriber complaints, and
(d) Tests reasonably requested by the City to demonstrate Franchise
compliance
Written records of all system test results performed by or for TCI shall be
110 maintained for three (3) years, and shall be available for City inspection upon
request.
The City shall be given the opportunity to review and approve test sites in
advance. At least two of the test locations shall be the far end of the
distribution trunk cables The tests may be witnessed by representatives of the
City, and TCI shall inform the City of the time and place of each test no less
than three weeks prior to the test. Written test reports shall be submitted to
the City The City may conduct independent tests of the system for which TCI
shall give its fullest cooperation. If more than one of the locations tested fail
to meet the performance standards, TCI shall be required to indicate what
corrective measures have been taken, and the entire test shall be repeated at
the locations which failed, and at least eight additional randomly chosen
111 locations. If a second test results in failure of one or more sites, then the City
page 31
1
may seek remedies in accordance with Sections 7.5 and 7.6 unless the
circumstances of the failure are caused by conditions which are beyond TCI's III
control, as determined, acknowledged and verified by the City
SECTION 5. PROGRAMMING AND SERVICES.
5.1 Categories of Programming Service. TCI shall provide broad
categories of video programming substantially equal to or an improvement
upon what is provided at the time the Franchise commences until the
system upgrade required by this Ordinance is completed. Upon completion of
the system upgrade required in this Ordinance, TCI shall provide video
programming services in at least the following broad general categories.
4 10
(a) Local broadcast and any other signals that are required to be
made available by the FCC,
(b) Local broadcast, following FCC regulations,
(c) Distant broadcast;
(d) News & information,
(e) Sports,
(0 General entertainment;
(g) Arts, culture, performing arts,
(h) Children /family;
(i) Foreign language /ethnic programming;
(j) Public, educational and government access programming;
(k) Movies, and
(1) Religious programming
0
page 32
• 5.2 Changes in Video Programming Services. Following system
upgrade, no category of services as identified above may be deleted by TCI
without City approval, which approval shall not be unreasonably withheld.
TCI shall provide written notice to the City and to subscribers of any proposed
deletions, additions or rearrangements of individual programming services,
both before and after the system upgrade, at least thirty (30) days in advance,
provided the giving of such notice is reasonably possible under the
circumstances If thirty (30) days notice is not reasonably possible, TCI and any
involved affiliate having made a good faith effort to comply, then TCI shall
give notice as soon as is reasonably possible. The City reserves the right both
before and after system upgrade to regulate to the fullest extent permitted by
law to ensure maintenance of the mix, level, and quality of service.
5.3 Basis for Programming Decisions. TCI shall make available to
the City upon request all local documents and records pertaining to the basis
for programming decisions, including, but not limited to, all customer
surveys and survey results, individual requests, inquiries and complaints
regarding specific programs and types of programming. An explanation of
local programming policies guiding TCI's programming decisions shall be
provided upon request as a part of each year's annual report.
5.4 Cable Advisory Committee. The City may establish a citizen's
Cable Advisory Committee. The Cable Advisory Committee shall consist of
ten members, subject to confirmation by majority vote of the Council, for
staggered three year terms. The Cable Advisory Committee may make
recommendations for such appointments. Cable Advisory Committee
page 33
members shall be broadly representative of the City's population with diverse
backgrounds and a reasonable knowledge of cable communications. The Cable
Advisory Committee shall appoint from its members a chairman. No Cable
Advisory Committee member shall be affiliated with a local cable franchisee
in any way
Reasonable expenses of the Cable Advisory Committee, including any
necessary support staff, shall be provided by the City
The Cable Advisory Committee's powers and functions shall include such
powers as the City Council may establish by ordinance, including the
following
(a) Consider unresolved complaints and disagreements between
franchisees and subscribers or users of the cable communications system and
make recommendations to the Council thereon.
(b) Advise the Council on the regulation of rates in accordance with
the provisions of Section 7 4.
(c) Receive and evaluate reports from TCI and the Cable
Communications Division and advise the Council regarding general policy
relating to the cable services provided subscribers and the operation of access
and leased access (if any), with a view to maximizing the diversity and
usefulness of programs and services to subscribers.
0
page 34
(d) Assist the Council in its consideration of applications for new,
II transfer, and renewal franchises.
(e) Perform such other advisory duties as the Council may from
time to time assign to the Cable Advisory Committee.
5.5 Obscenity. Subject to applicable federal law, TCI shall not
transmit over the cable system programming which is obscene or otherwise
unprotected by the Constitution of the United States, provided, however, TCI
shall in no way be responsible for programming over which it has no
editorial control, including public, educational and governmental access
programming
III
SECTION 6. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.
6.1 Access Channels.
(a) Until the completion of the system upgrade pursuant to Section
4.3 herein, TCI shall make available three (3) standard video channels on the
system for public, educational and /or governmental (PEG) access purposes.
(b) No later than completion of the system upgrade, one (1)
additional channel shall be devoted to local government access
programming, under the control of the City -- making a total of four (4) PEG
channels. The City and TCI agree that two (2) of the four (4) PEG access
III
page 35
channels shall be designated for educational access programming under
control of an access provider designated by the City •
(c) Additional channels beyond the initial four, up to a maximum
number equivalent to ten percent (10 %) of the total available system channel
capacity, shall be made available for access programming each time it occurs
that the channels being used for access are cablecasting first run programming
during at least thirty-two (32) hours per week (38% of the time) between 10:00
a.m and 10.00 p.m., during any consecutive ten weeks running, on the
average, and when the City requests such a channel. The replay of programs
for not more than two (2) per week shall be considered first run
programming
If the conditions described above are met, TCI shall, within six (6) months •
following a request by the City, provide a new specifically designated channel
for access TCI shall continue to provide the additional channel for as long as
the triggering criteria stated herein continue without a significant break of ten
(10) weeks or more. If any channel in addition to two channels is designated
for community use, but, after one year, such channel is not programmed at
least 25% of the hours between 10:00 a.m. and 10.00 p.m. with first run
programming, the community access provider designated by the City shall,
within six (6) months of receiving a written request from TCI, group all access
programming on that channel into one contiguous block of time of the
provider's choosing. The remaining programming time on such channel
shall then revert back to TCI for its unrestricted use within the terms and
conditions of this Ordinance.
page 36
s,
III (d) TCI shall make every reasonable effort to coordinate the
cablecasting of public, educational and /or governmental access programming
upon the Cable Television System at the same time and upon the same
channel designations as such programming is currently cablecast within the
community In no event shall any PEG channel reallocations be made prior
to six (6) month's written notice to the City by TCI.
(e) All access channels shall be provided as a part of basic service.
6.2 Access Facilities.
6.2.1 Lease Subsidy for Public/ Government Access Facilities.
To help meet City of Yakima access needs over the life of the Franchise, TCI
• shall share at fifty pe rcent (50 %) the lease costs incurred by the City for
facilities to house public and government access. The total monthly lease
base amount shall not exceed twenty -five hundred dollars ($2500) on the
effective date of this Ordinance This lease base will be reviewed annually by
the City and TCI and adjusted as necessary, based on the Consumer Price
Index for Yakima County, Washington, or the next narrowest geographic area
including Yakima County, Washington. TCI may pass through to subscribers
on a pro-rata basis TCI's payments made pursuant to this lease subsidy
provision. The facilities shall be made available for the exclusive use of the
City's designated public and government access provider
6.2.2 Return Feed from Facilities. TCI shall provide all
necessary technical equipment and support to provide a high quality return
• feed of cable signal from the PEG access facilities to the system headend as
page 37
well as from designated access points throughout the system. A minimum of
will activated upon completion of the s •
twenty (20) access points wi be po stem p system
construction. Additional access points shall be activated at an annual
number mutually agreed upon by the City and TCI.
6.3 Capital Grant for Access Equipment and Facilities. To help
meet the City's PEG access needs over the term of the Franchise, TCI shall
provide a capital grant to the City to be used for access equipment and
facilities renovation. The grant shall be in cash, in the amount of five
hundred ninety -one thousand, six hundred dollars ($591,600) The grant shall
be deposited to the City's Cable Television Communications Fund. The grant
will be divided into five equal portions of one hundred eighteen thousand,
three hundred twenty dollars ($118,320) each. The first portion of the grant
shall be deposited in the access provider's bank account on the later of 90 days •
after approval of this Ordinance by the City Council or March 1, 1994, and
each additional portion of the grant shall be so deposited at three year
intervals after adoption of this Franchise TCI may pass through to
subscribers on a pro -rata basis TCI's payments made pursuant to this capital
grant provision. In the event that the City does not grant any of the one -year
Franchise extensions permitted under Section 2.6, nor grant any extension
under Section 2.11(a), it will refund TCI the sum of twenty -nine thousand
five hundred dollars ($29,580) for each potential one year extension period
that is not granted.
SECTION 7. REGULATORY PROVISIONS.
page 38
• 7.1. Intent. The City shall have the right to administer and regulate
activities under the Franchise up to the full extent permitted by applicable
law
7.2 Delegation of Authority to Regulate. The City reserves the
right to delegate its regulatory authority wholly or in part to the federal
government and /or to agents of the City, including but not limited to an
agency which may be formed to regulate several City franchises.
7.3 Areas of Administrative Authority. In addition to reserving its
right to exercise all regulatory authority concerning the Franchise, the City
shall have the right to exercise administrative authority in areas including
but not limited to the following
•
(a) Administering and enforcing the provisions of this Ordinance ,
including the adoption of administrative rules and regulations to carry out
this responsibility
(b) Coordination of the operation of public, government and
educational channels
(c) Coordinating TCI's technical, programming and operational
assistance and support to public agency users, such as City departments,
schools and health care institutions.
(d) Establishing procedures and standards for making use of TCI's
II I support of public institutional operations and services, provision of dedicated
page 39
channels, assistance to public facilities, support for community access, and the
s •
interconnection of the cable system with othe r area systems.
(e) Planning expansion and growth of public cable services.
(f) Formulating and recommending long -range cable
communications policy for the Franchise Area.
(g) Disbursing and utilizing Franchise revenues paid to the City
(h) Administering the regulation of rates, to the extent permitted by
law
TCI shall cooperate fully in facilitating the City's discharge of its •
administrative authority
7.4 Regulation of Rates and Charges.
7.4.1 Right to Regulate. The City expressly reserves the right
to regulate TCI's rates and charges in accordance with applicable law as such
law may provide during the term of the Franchise.
7.4.2 Notice of Change in Rates and Charges. Throughout the
term of the Franchise, TCI shall give the City and all subscribers within the
City of Yakima at least thirty (30) days notice of any intended modifications or
additions to subscriber rates or charges. Nothing in this Subsection shall be
construed to prohibit the reduction or waiving of rates or charges in
page 40
conjunction with promotional campaigns for the purpose of attracting
• subscribers or users.
7.4.3 Rate Discrimination Prohibited. Within any category of
subscribers, TCI shall not discriminate among subscribers with regard to rates
and charges made for any service based on considerations of race, color, creed,
sex, marital or economic status, national origin, sexual preference, or
neighborhood of residence, except as otherwise provided herein, and for
purposes of setting rates and charges, no categorization of subscribers shall be
made by TCI on the basis of those considerations Nevertheless, TCI shall be
permitted to establish discounted rates and charges for providing cable service
to low- income handicapped or low- income elderly subscribers.
7.5 Remedies for Franchise Violations. In addition to the remedies
specified in Section • i 4.3.3 of this Ordinance, the Cit subject to the provisions
y, ) p
of Sections 7 6 and 7 7, has the right to assert the following remedies in the
event TCI violates any provision of this Ordinance:
(a) Drawing upon or foreclosing all or any part of any security
provided under this Franchise, including without limitation the Letter of
Credit provided for under Section 11.3, provided, however, such drawing or
foreclosure shall be only in such a manner and in such amount as the City
reasonably determines is necessary to remedy the default. Should the City
take this action, TCI shall be responsible for all direct and actual costs related
to such action, including, but not limited to, legal and administrative costs;
• 4
page 41
(b) Commence an action at law for monetary damages or seek other
equitable relief, •
(c) In the case of a substantial default of a material provision of this
Ordinance, declare the Franchise to be revoked,
(d) Require TCI to correct or otherwise remedy the violation prior to
considering the approval of any proposed rate increase if rate regulation is
authorized by law and is in effect;
(e) Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an alternative to damages.
In determining which remedy or remedies for TCI's violation are appropriate,
the City shall take into consideration the nature and extent of the violation,
III
the remedy needed to prevent such violations in the future, whether TCI has
a history of previous violations of the same or similar kind, and such other
considerations as are appropriate under the circumstances.
7.6 Procedure for Remedying Franchise Violations.
7.6.1 Notice of Violation. In the event that the City believes
that TCI has not complied with the terms of this Ordinance, the City shall
notify TCI of the exact nature of the alleged noncompliance.
7.6.2 TCI's Right to Cure or Respond. TCI shall have thirty
(30) days from the receipt of notice described above to (a) respond to the City
IIII
page 42
contesting the assertion of noncompliance, or (b) to cure such default or, in
0 the event that by the nature of the default such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to remedy such
default and notify the City of the steps being taken and the projected date they
will be completed.
7.6.3 Public Hearing. In the event that TCI fails to respond to
the notice described herein or cure the default pursuant to the procedures set
forth above, the City shall schedule a public hearing to investigate the default.
The City shall give TCI twenty (20) calendar days notice of the time and place
of the hearing and provide TCI with an opportunity to be heard.
7.7 Enforcement. In the event the City, after such hearing,
111 determines that TCI is in default of any provision of this Ordinance, the City
may impose any of the remedies set out in Section 7.5 herein.
7.8 Failure to Enforce. TCI shall not be relieved of any of its
obligations to comply promptly with any provision of this Ordinance by
reason of any failure of the City to enforce prompt compliance, and the City's
failure to enforce shall not constitute a waiver of rights or acquiescence in
TCI's conduct.
7.9 Acts of Nature. TCI shall not be held in default or
noncompliance with the provisions of the franchise, nor suffer any
enforcement or penalty relating thereto, where such noncompliance or
alleged defaults are caused by acts of nature, power outages, or other events
III
page 43
reasonably beyond its ability to control. However, TCI shall take all
1111
reasonable steps necessary to provide service despite such occurrences
7.10 Alternative Remedies. No provision of this Ordinance shall be
deemed to bar the right of the City to seek or obtain judicial relief from a
violation of any provision of the Ordinance or any rule, regulation,
requirement or directive promulgated thereunder Neither the existence of
other remedies identified in this Ordinance nor the exercise thereof shall be
deemed to bar or otherwise limit the right of the City to recover monetary
damages for such violation by TCI, or to seek and obtain judicial enforcement
of TCI's obligations by means of specific performance, injunctive relief or
mandate, or any other judicial remedy at law or in equity
7.11 Compliance with the Laws. TCI shall comply with all federal •
and state laws and regulations, including regulations of any administrative
agency thereof, as well as all general ordinances, resolutions, rules and
regulations of the City heretofore or hereafter adopted or established during
the entire term of the Franchise Nothing in this Ordinance shall limit the
City's right of eminent domain under state law Nothing in this Ordinance
shall be deemed to waive the requirements of any lawful code or resolution
of the City regarding permits, fees to be paid or manner of construction.
SECTION 8. REPORTING REQUIREMENTS.
8.1 Monthly Reports. Within 25 calendar days after the end of the
previous month, TCI shall submit to the City a completed form reporting
page 44
revenues and subscriber levels by categories for the previous month. In
• addition, TCI shall submit a monthly summary showing the number of
Y Y g
service calls received by type, the percentage of service calls compared to the
subscriber base by type of complaint, the number of outages, the number of
planned outages, and the approximate total duration of these outages. These
reports shall be in a form reasonably required by the City The City may from
time to time make such reasonable amendments to the forms as are required
to ensure that all gross revenues and service issues are reported clearly and
accurately
8.2 Annual Report. No later than sixty (60) days following the end
of TCI's fiscal year each year, TCI shall present a written report to the City
which shall include:
•
(a) Full financial statements for the previous year, including
income statement, balance sheet, cash flow statement, and appropriate
explanatory footnotes, for TCI of Yakima, Inc., and a full income statement
with appropriate explanatory footnotes for the Yakima area system with
specific break -outs of information for the system within the corporate limits
of the City of Yakima. All financial statements shall be certified by an officer
of TCI to be an accurate reflection of TCI's books and records. In the event any
audited financial report has not been published by the date due under this
Section, then the audited financial report shall be deemed presented on time
if presented within 30 days after publication.
(b) A summary of the previous year's activities for the Franchise
• Area, including, but not limited to, the total number of subscribers for each
page 45 1
category of service, the number of homes passed, miles of overhead and
underground cable plant, other system facilities and equipment constructed, •
any services added or dropped, and any technological changes occurring in
the system.
(c) A summary of complaints received, with a summary of how the
complaints have been dealt with.
(d) Plans for the future.
8.3 Monitoring and Compliance Reports. Upon request, but no
more than once a year, TCI shall provide a written report of any and all FCC
technical performance tests for the residential network required in FCC Rules
and Regulations as now or hereinafter constituted In addition, TCI shall
provide reports of the semi - annual test and compliance procedures
established by this Ordinance, no later than 30 days after the completion of
each series of tests.
8.4 Additional Reports. TCI shall prepare and furnish to the City
or any other entity exercising lawful regulatory authority in connection with
the Franchise, at the times and in the form prescribed by the City or such
other regulatory entity, such additional reports with respect to TCI's
operation, affairs, transactions, or property, as may be reasonably necessary
and appropriate to the performance of any of the rights, functions or duties of
the City or such other regulatory entity in connection with the Franchise.
page 46
8.5 Communications with Regulatory Agencies. Upon request by
• the City, a summary or, if the City requests, actual copies of all petitions,
applications, communications, and reports submitted by TCI or any affiliate to
the FCC or any other federal or state regulatory commission or agency having
jurisdiction with respect to any matter affecting construction or operation of
the cable system franchised hereunder or services provided through such
system, shall be filed within ten (10) days with the City Upon request, copies
of responses or any other communications from the regulatory agencies to
TCI or any affiliate pertaining to the cable system 1
shall be likewise filed. In addition, TCI and its affiliates shall within
ten (10) days of any communication to or from any judicial or regulatory
agency regarding any alleged or actual violation of a law, regulation or other
requirement relating to the system, provide the City a copy of the
• communication, whether specifically requested by the City to do so or not.
8.6 Preservation of Confidential Information The City shall
protect information designated as confidential by TCI to the maximum extent
permissible under RCW chapter 42.17
Section 9. CUSTOMER SERVICE POLICIES.
9.1 Response to Customers and Cooperation with City. TCI shall
promptly respond to all requests for service, repair, installation and
information from subscribers. TCI acknowledges the City's interest in the
prompt resolution of all cable complaints and shall work in close cooperation
with the City to resolve complaints.
•
page 47
9.2 Definition of "Complaint." For the purposes of Section 9, with
410
the exception of Subsection 9 3, "complaint" shall mean any communication
to the City by a subscriber or person who has requested and has a right to be a
subscriber on the cable system, expressing dissatisfaction with any service or
other performance or lack thereof by TCI under the obligations of this
Ordinance; provided that the communication shall be regarded as a
complaint only if the person expressing the dissatisfaction has already
expressed it to TCI, and TCI has failed to remedy the cause of the
dissatisfaction within a reasonable period of time and in a manner consistent
with the requirements of this Ordinance.
9.3 Customer Service Agreement and Manual. TCI shall provide
to subscribers a comprehensive service agreement and a customer manual for •
use in establishing subscriber service. This agreement shall, at a minimum,
contain the following
(a) TCI's procedure for investigation and resolution of subscriber
service complaints.
(b) Services to be provided and rates for such services.
(c) Billing procedures.
(d) Service termination procedure.
(e) Change in service notifications.
page 48
(f) Liability P
specifications.
(g) Converter /subscriber terminal equipment policy
(h) Breach of Agreement specification.
(i) Information on how complaints are handled.
(j) The name, address, and phone number of the person identified
by the City as responsible for handling cable questions and
complaints for the City This information shall be prominently
displayed in the manual, and TCI shall submit the information
• to the City for review and approval as to its content and
placement in the manual prior to publication. TCI shall be in
violation of this Ordinance if prior approval by the City is not
obtained.
A copy of the customer service manual shall be provided to each subscriber at
the time of initial and any re- connection hookup, and thereafter no more
than thirty (30) days following any update of the manual reflecting material
policy changes, and at any time the manual is requested by the subscriber
9.4 City Right to Set Specific Customer Service Standards. The City
reserves the right to enforce customer service and consumer protection
standards at any time that such standards are established by state or federal
110 law or regulation as applicable to cable system operations. In addition, the
page 49
City reserves the right to establish additional specific customer service and
r lion standards, by separate Ordinance, as allowed by federal •
consumer p otec y p Y
law or FCC regulation.
(a) Prior to formal consideration of a City Ordinance regarding the
possible establishing of customer service standards by the City, the City and
TCI shall meet to attempt in good faith to agree mutually upon a resolution
of any outstanding complaint issue. At the meeting, the parties shall consider
the validity of the complaints received, the merits of the issue generally, and
the reasonableness of TCI's business practices as they affect the issue. Only if
no mutual agreement between the parties is accomplished through this
meeting shall the option for the City to establish customer service standards
be brought before the City Council for formal action.
III
(b) TCI shall cause to have printed clearly and prominently on each
cable bill a message to each subscriber informing the subscriber of the
telephone number and address of the office designated by the City, for
handling unresolved complaints about cable service In addition, this
information shall be printed clearly and prominently and shall be distributed
with the customer service agreement and manual provided for in Section 9.3
SECTION 10. LINE EXTENSION POLICY.
10.1 Standard Installation. TCI shall make service available, within
60 days and at standard installation rates and standard service rates, for every
potential subscriber
0
page 50
(a) whose dwelling is one of a minimum of 25 dwelling units per
linear cable mile, or 8 dwelling units per 1/4 mile, from the nearest existing
cable plant; or
(b) whose dwelling is situated such that cable constructed from the
nearest existing cable plant would pass an average of 25 homes per linear
k J
mile, or
(c) whose dwelling is situated in a one - square -mile section, as such
sections are described in City plat maps, containing or contiguous to existing
plant, within 6 months after that section reaches a density of 250 dwelling
units available for cable connection, and
•
(d) where connection to the potential subscriber's dwelling from
cable plant constructed as required under this Franchise requires no more
than a 200 -foot drop cable
10.2 Isolated Areas. Potential subscribers requesting service but
requiring service extended beyond the standard installation and service
provisions under Section 101 shall be provided the first two hundred (200)
feet of cable at the prevailing installation rate. Cable and service required
beyond the initial 200 feet will be provided under the following
circumstances
•
page 51
(a) where the potential subscriber, or any group including the
potential subscriber, PY
a s in advance the direct and incremental III cost of extending the line and making the installation or
(b) where the potential subscriber and TCI reach an independent
agreement for the provision of service, so long as the agreement
does not involve any violation of the requirements and
standards of this Ordinance
SECTION 11. COMPENSATION AND FINANCIAL PROVISIONS.
11.1 Franchise Fees. During the term of the Franchise, TCI shall pay
to the City an amount equal to five (5) percent of annual gross revenues as a
II
Franchise Fee. If any law, regulation or valid rule alters the 5% franchise fee
ceiling enacted by the Cable Act, then TCI shall, at the request of the City,
' enter negotiations to review provisions of Section 11 1
(a) Franchise Fees shall be transmitted monthly by electronic funds
transfer to such City of Yakima bank account, as may be designated by the
director of finance and budget, to be received not later than the 25th of each
month for the preceding calendar month. Not later than the date of each
payment, TCI shall file with the City a written statement signed by the system
manager of TCI which identifies in detail the sources and amounts of gross
revenues earned by TCI during the month for which payment is made,
following the provisions of Section 8.1 No acceptance of any payment shall
be construed as an accord that the amount paid is, in fact, the correct amount,
III
page 52
nor shall such acceptance of payment be construed as a release of any claim
• which the City may have for further or additional sums payable under the
provisions of this Section.
(b) Neither current nor previously paid Franchise Fees shall be
subtracted from the gross revenue amount upon which Franchise Fees are
calculated and due for any period. Nor shall copyright fees or other license
fees paid by TCI be subtracted from gross revenues for purposes of calculating
Franchise Fees.
(c) Any Franchise Fees owing pursuant to this Ordinance which
remain unpaid more than 10 days after the dates specified herein shall be
delinquent and shall thereafter accrue interest at twelve (12) percent per
• annum or two (2) percent above prime lending rate as quoted by major Seattle
banks, whichever is greater
11.2 Auditing and Financial Records. TCI shall manage all of its
operations in accordance with a policy of keeping books and records open and
accessible to the City The City shall have the right as necessary or desirable
for effectively administering and enforcing this Ordinance, to inspect at any
time during normal business hours upon reasonable notice, all books,
records, maps, plans, financial statements, service complaint logs,
performance test results, records required to be kept by TCI and any parent
company pursuant to the rules and regulations of the FCC and other
regulatory agencies, and other like materials of TCI and any parent company
which directly relate to the operation of the Franchise. Access to the
• aforementioned records shall not be denied by TCI to representatives of the
page 53
City on the basis that said records contain "proprietary" information.
However, to the extent allowed by Washington law, the City shall protect the •
trade secrets and other confidential information of TCI and any parent
company All books and records relating to TCI's activities under the
Franchise shall be, or upon request be made, available in the City of Yakima.
TCI agrees to meet with a representative of the City upon request to review its
methodology of record - keeping, financial reporting, computing franchise fee
obligations, and other procedures the understanding of which the City deems
necessary for understanding the meaning of reports and records.
The City or its authorized agent may at any time and at the City's own
expense conduct an independent audit of the revenues of TCI in order to
verify the accuracy of Franchise Fees paid to the City TCI and each parent
•
company of TCI shall cooperate fully in the conduct of such audit. In the
event it is determined through such audit that TCI has underpaid Franchise
Fees by five percent (5 %) or more than was due the City, then TCI shall
reimburse the City for the entire cost of the audit and any back Franchise Fees
with interest accrued at twelve (12) percent per annum or two (2) percent
above prime lending rate as quoted by major Seattle banks, whichever is
greater, within 30 days of the completion and acceptance of the audit by the
City
The City agrees to request access to only those books and records, in exercising
its rights under this Section, which it deems reasonably necessary for the
enforcement and administration of the Franchise and this Ordinance.
page 54
11.3 Letter of Credit. Prior to the effective date of this Ordinance,
TCI shall furnish an irrevocable Letter of Credit, issued by a bank acceptable to
the City, in the amount of one hundred thousand dollars ($100,000), under
which the City shall be the sole beneficiary (the "Letter of Credit ") The Letter
of Credit shall be assignable and transferable by the City, shall permit partial
drawings, shall be payable at sight in Yakima, Washington, and shall not
contain any condition to payment other than presentation by the City of (a) a
draw for the desired amount, and (b) a written statement by the City to the
bank that TCI has failed to comply with a term or condition of this Ordinance
and that the City will apply the proceeds of the drawing under the Letter of
Credit towards, or in reimbursement to the City towards, TCI's obligations
under this Ordinance or damages caused by said failure. If a particular form
of draft is required, a copy of the required form must be delivered with and, be
• a part of the Letter of Credit. The Letter of Credit shall be effective to continue
obligation for the term of the Franchise, including any extensions, and
thereafter until TCI or any successor or assign of TCI has liquidated all of its
obligations with the City that may have arisen from the acceptance of the
Franchise by TCI or from its exercise of any privilege herein granted, provided
that upon completion of all construction provided for in Section 4.3 of this
Ordinance, and upon written approval of such completed work by the City,
the City shall be entitled to draw a maximum of $25,000 on such Letter of
Credit. The form and content of the Letter of Credit and any associated
documents shall be approved in advance by the City Attorney
Neither the provisions of this Section nor any Letter of Credit accepted by the
City pursuant thereto, nor any damages or other amounts recovered by the
• City thereunder shall be construed to excuse faithful performance by TCI or to
page 55
t
limit liability of TCI under this Ordinance either to the full amount of the
Letter of Credit or otherwise, except as otherwise provided herein. •
11.4 Indemnification by TCI. TCI shall, at its sole expense, fully
indemnify, defend and hold harmless the City, and in their capacity as such,
the officers, employees, and agents of the City, and members of the Cable
Advisory Committee, from and against any and all claims, suits, actions,
liability and judgments for damage or otherwise to the extent not arising
from negligence on the part of the City or its employees, for actual or alleged
injury to persons or property, including loss of use of property due to an
occurrence, whether or not such property is physically damaged or destroyed,
in any way arising out of or through or alleged to arise out of or through the
acts or omissions of TCI or its officers, agents, employees, or contractors, and
whether or not such acts or omissions were authorized or contemplated by
III
this Franchise or applicable law; arising out of or alleged to arise out of any
claim for damages for TCI's invasion of the right of privacy, defamation of
any person, firm or corporation, or the violation of infringement of any
copyright, trademark, trade name, service mark or patent, or of any other
right of any person, firm or corporation, arising out of or alleged to arise out
of TCI's failure to comply with the provisions of any statute, regulation or
Resolution of the United States, State of Washington or any local agency
applicable to TCI in its business. Nothing herein shall be deemed to prevent
the parties indemnified and held harmless herein from participating in the
defense of any litigation by their own counsel at such parties' expense. Such
participation shall not under any circumstances relieve TCI from its duty of
defense against liability or of paying any judgment entered against such party
Ill
page 56
•% t
11.5 TCI Insurance. TCI shall maintain, throughout the term of the
Franchise, liability insurance insuring TCI, its officers, employees and agents,
with regard to all claims and damages specified in Section 11.5 herein, in the
minimum amounts of
(a) $3,000,000 for personal injury or death to any one person,
(b) $3 000,000 for personal injury or death resulting from any one
accident, $3,000,000 for property damage resulting from any one accident; and
(c) $1,000,000 for all other types of liability
Such certificate of insurance shall specifically name as additional insured the
• City of Yakima, its Council members, its officers, and employees, and shall
further provide that the policy shall not be modified or canceled during the
term of the Franchise without giving 30 days written notice to the City
TCI shall file with the City copies of all certificates of insurance showing up-
to-date coverages, additional insured coverages, and evidence of payment of
premiums as set forth above. Coverages shall not be changed or canceled
without approval of the City, and failure to maintain required insurance may
be considered cause for the City to revoke the Franchise. The City may at its
option review all insurance coverages. If it is determined by the City Risk
Manager that circumstances require and that it is reasonable and necessary to
increase insurance coverage and liability limits to adequately cover the risks
of the City, TCI, and TCI officers, agents and employees, the City may require
e t/ additional insurance to be acquired by TCI. The City will provide TCI written
page 57
•
notice should the City exercise their right to require additional insurance All
prior written notice to the City III
insurance shall provide 30 days p ty in the event of
modification or cancellation. TCI shall provide written notice to the City
within thirty (30) days after any approved reduction in the general annual
aggregate limit.
SECTION 12. MISCELLANEOUS PROVISIONS.
12.1 Posting and Publication. TCI shall assume the cost of posting
and publication of this Ordinance as such posting and publication is required
by law and such is payable upon TCI's filing of acceptance of the Franchise
12.2 Guarantee of Performance. TCI shall agree that it enters into
III
the Franchise voluntarily in order to secure and in consideration of the grant
from the City of a fifteen -year Franchise. Performance pursuant to the terms
and conditions of this Ordinance agreement is guaranteed by TCI.
12.3 Governing Law and Venue. The Franchise shall be governed
by and construed in accordance with the laws of the State of Washington and
TCI consents to jurisdiction and venue in the state and federal courts of the
State of Washington. In any action or suit to enforce any right or remedy
under the Franchise or this Ordinance, the prevailing party shall be entitled
to recover its costs, including without limitation reasonable attorneys' fees.
12.4 Separability If any portion of this Ordinance shall be declared
by a court of competent jurisdiction to be void or unenforceable, then the City
III
page 58
and TCI shall negotiate in good faith to modify the Franchise and /or this
Ordinance as may be necessary to meet the requirements of the law
12.5 Consent. Wherever the consent or approval of either TCI or
the City is specifically required in this Ordinance, such consent or approval
shall not be unreasonably withheld.
12.6 Ordinances Terminated. The cable television franchise as
originally granted by Ordinance No 2209, as amended by Resolution No D-
5436 and Ordinance 93 -100, shall be deemed terminated upon the effective
date of this Ordinance, provided that any unpaid Franchise Fees and other
outstanding liabilities and obligations of TCI to the City under such pre-
existing franchise shall survive such termination.
•
12.7 No Third Party Beneficiaries. There shall be no third party
beneficiaries of this Ordinance.
12.8 Franchise Ordinance Acceptance. TCI, within sixty (60) days
after the date of adoption of the Ordinance by the City Council, shall execute
and return to the City three (3) original Franchise Agreements, in which TCI
shall declare that it has carefully read the terms and conditions of this
Ordinance and accepts all of the terms and conditions of this Ordinance and
the Franchise and agrees to abide by the same. In accepting the Franchise, TCI
shall indicate that it has relied upon its own investigation of all relevant facts,
that it has had the assistance of counsel, that it was not induced to accept a
Franchise, that this Ordinance represents the entire agreement between TCI
• and the City, and that TCI accepts all reasonable risks related to the
page 59
, t
interpretation of this Ordinance and the Franchise. The executed Franchise
•
Agreements shall be returned to the City accompanied by the Letter of Credit
and evidence of insurance, all as provided in Sections 11.3 and 11 6 of this
Ordinance In the event TCI fails to submit a Franchise Agreement as
provided for herein, or fails to provide the required accompanying
,
documents, the Franchise shall be null and void.
12.9 Effective Date. This Ordinance shall be effective thirty (30) days
after its adoption. Provided, however, that if TCI does not accept this
Franchise pursuant to Section 12.8 and comply with all conditions for such
acceptance set forth herein within thirty (30) days after passage of this
Ordinance, this Ordinance shall be null and void.
PASSED BY THE CITY COUNCIL, signed and approved this 2lst day of III
December , 1993
c?et-t le.--,,
Mayor
ATTEST
KaAs___,, A le_49---6-e-
City Clerk
CITY CCIATRACT NO. C )3 .- 11i
The terms and conditions of this Ordinance are accepted this 30 day of
1993 by the permittee, TCItf Yakima, Inc., a Washington
Corporation. ' L( (
Its: DAVID M. REYNOLDS -EXEC
By VP /C00
STATE OF 4Ueocii Tc ) )
:ss.
County of ,Gwi ) 1' C'•,. W.?, s(
4110
page 60
h '
On the 30 day of ,1993, before me appeared
, known to me to be the (— =-W /2O
of TCP of Yakima, Inc., a Washington Corporation, who executed the
foregoing acceptance as his /her free and voluntary act for the uses and
purposes contained in this Ordiancne.
Are TARY PUBLIC i " and for the State
of ),..) , residing at
'-
My commission expires.
Publication Date: December 24, 1993
Effective Date: January 23, 1994
•
•
page 61