HomeMy WebLinkAboutOrdinances (O-94-967)-11/01/1994
ORDINANCE 0-94-967
A ORDINANCE REPLACING THE EXISTING CABLE TELEVISION FRANCHISE
AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND TCI TKR OF THE
METROPLEX, INC. TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION
SYSTEM IN THE CITY BASED ON THE GUIDELINES WITHIN THIS AGREEMENT AND
CHAPTER 10, CABLE TELEVISION REGULATIONS, OF THE CITY OF COLLEYVILLE
CODE OF ORDINANCES.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS
THAT:
The franchise agreement (this "agreement") is entered into between the City of Colleyville,
Texas, a home-rule municipal corporation hereinafter referred to as the "City", and TCI
TKR of the Metroplex, Inc., a Texas corporation hereinafter referred to as "Grantee".
WHEREAS, the City, has determined that the financial, legal, and technical ability of the
Grantee is reasonably sufficient to provide services, facilities, and equipment
necessary to meet the future cable-related needs of the community; and
WHEREAS, the City and the Grantee desire to enter into a written franchise agreement;
NOW, THEREFORE, upon the mutual covenants, conditions and promises contained
herein, the parties hereby agree as follows:
A. Definitions. As used in this agreement, a word shall have the same meaning as
set forth in the "Definitions" section of the "Cable Television Regulations" chapter
of the Code of Ordinances of the City of Colleyville ("cable ordinance") unless it is
apparent from the context that it has a different meaning or unless a word is
otherwise specifically defined.
B. Grant. The City hereby grants to Grantee a nonexclusive franchise which
authorizes the Grantee, subject to the terms and conditions set forth in this
agreement and to applicable provisions of Chapter 10 of the City of Colleyville
Code of Ordinances ("Cable Television Regulations"), to construct and operate a
cable system above, across, along, among, in, on, over, under, upon or in any
manner connected with public ways within the service area and for that purpose to
erect, install, construct, repair, replace, reconstruct, maintain, or retain above,
across, along, among, in, on, over, under or upon any public way and all extensions
thereof and additions thereto, such poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and
other related property or equipment as may be necessary or appurtenant to the
cable system.
C. Term. The franchise granted hereunder shall be for an initial term of ten (10) years
commencing on the effective date of this agreement. Upon completion of the
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upgrade of the system as described in Section D below, the term of this agreement
will be extended to fifteen years commencing on the effective date of this
agreement.
D. UpQrade. The Grantee shall complete an upgrade of the entire system not later
than thirty six (36) months from the date of execution of this agreement. The
upgrade will provide for a bandpass to at least 750 MHz with the capacity to carry
at least 110 - 6 MHz equivalent channels with at least 78 viewable channels
downstream to each subscriber location. The system shall be designed, operated
and maintained to provide current state-of-the-art telecommunications services
which shall utilize a fiber optic wire trunk and distribution design ("fiber-to-the-
neighborhood") and will include pay-per-view and the technical performance,
capacity, equipment, components, and service equal or comparable to areas of
equivalent population and subscribers; and may include lightwave communication,
addressability, personal communication service (PCS) high definition television
(HDTV), and integrated services digital networks (ISDN). The system shall allow
all unscrambled channels, to the extent transmitted on frequencies which a
subscriber's television set is technically capable of receiving, to be viewable on
such a set without the aid of a converter, and shall minimize interference with
consumer electronic equipment. The system shall comply with regulations of the
FCC regarding the compatibility between cable service and consumer receiving,
recording and related equipment. In no event shall Grantee pass on any cost
connected with upgrading this system if such upgraded capacity will not be used for
the delivery of cable television service to all subscribers.
E. Liauidated Damaaes for Construction Uparade.
Grantee understands and agrees that failure to comply with any time or
performance requirement in the construction upgrade will result in damage to the
City. It is and will be impractical to determine the actual amount of such damage
whether it is in the event of delay or nonperformance. Therefore, the parties agree
to the liquidated damages specified below. The following liquidated damage
amounts are not a penalty, but shall be deemed, taken and treated as a reasonable
measure of the actual damages to the City which would be occasioned by a delay
or nonperformance of a franchise obligation by Grantee. The following amounts
may be chargeable for a delay and/or nonperformance of a franchise obligation by
Grantee for failure to complete system construction upgrade in accordance with this
agreement unless the City Council, by resolution, specifically approves the delay.
The Grantee shall pay according to the following schedule the sums set forth below
per day for each day, or part thereof, the delinquency continues:
1. For failure to complete the system upgrade for any time up to thirty (30) days
from the estimated date of completion -- $0.00.
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2. For failure to complete the system upgrade for any time between thirty-one
(31) days and sixty (60) days from the estimated date of completion -- $50.00 per
day.
3. For failure to complete the system upgrade for any time between sixty-one
(61) days and ninety (90) days from the estimated date of completion -- $100.00 per
day.
4. For failure to complete the system upgrade for any time between ninety-one
(91) days and one hundred twenty (120) days from the estimated date of completion
-- $150.00 per day.
5. For failure to complete the system upgrade for any time between one
hundred twenty-one (121) days and one hundred fifty (150) days from the estimated
date of completion -- $200.00 per day.
6. For failure to complete the system upgrade for any time between one
hundred fifty-one (151) days and one hundred eighty (180) days from the estimated
date of completion -- $250.00 per day.
7. For failure to complete the system upgrade in more than one hundred eighty-
one (181) days from the estimated date of completion -- $750.00 per day.
The City Council may waive liquidated damages, by resolution, upon presentation
of proof from the Grantee that materials or manpower are not readily available at
competitive prices.
F. Maps. Every three months after the start of construction or reconstruction, Grantee
shall furnish the city manager a report on the progress of construction or
reconstruction until complete. The report shall include a map that clearly defines
the areas where cable service is and is not available. The Grantee shall provide
accurate maps detailing where cable is laid in serviceable areas to the City
engineering department once per year. Maps shall be provided at the cost of the
Grantee.
G. Provision of Broad Cateaories of Proarammina. Grantee shall offer cable
programming on 43 viewable channels and, after the upgrade, at least 78 viewable
channels responsive to the needs and interests of subscribers in the City as
indicated below. Grantee reserves the right during the agreement term to add new
services and replace existing services or otherwise modify its channel lineup, but
it shall maintain the mix and quality of service, and the broad categories of video
programming shown below:
1. Television broadcast signals
2. Educational television broadcast signals
3. Sports programming
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4. News and public affairs programming
5. Motion pictures
6. Programming for general entertainment
7. Optional premium cable services
8. Regionalllocal radar if commercially available
9. Continuous weather programming including local weather.
H. PEG Access Channels. The Grantee will provide a designated channel for the
programming of the municipality, three separate channels designated for
educational access, and one local access channel. The cost of providing these
channels shall be borne solely by the Grantee and shall not be passed on to
subscri bers.
I. Reauired Extensions of Service. The Grantee shall extend service within six (6)
months of a request to all areas with at least seven residences within 1,320 cable-
bearing strand feet (one-quarter cable mile) of its trunk or distribution cable at no
cost to said subscribers for system extension other than the usual connection fees
for all subscribers.
J. Subscriber Charaes for Extension of Service. No subscriber shall be refused
service arbitrarily. However, for unusual circumstances, such as a subscriber's
request to locate his cable drop underground, when other utilities are not located
as such, existence of more than one hundred fifty (150) feet of distance from
distribution cable to connection of service to subscribers, or a density of less than
seven (7) residences per 1,320 cable-bearing strand feet of trunk or distribution
cable, cable service or other service may be made available on the basis of a
capital contribution in aid of construction, including cost of material, labor, and
easements. For the purpose of determining the amount of capital contribution in aid
of construction to be borne by Grantee and subscribers in the area in which cable
service may be expanded, Grantee will contribute an amount equal to the
construction and other costs per mile, multiplied by a fraction whose numerator
equals the actual number of potential subscribers of 1,320 cable-bearing strand feet
of its trunks or distribution cable (based on official subdivision maps on file at the
City), and whose denominator equals seven (7) subscribers. Potential subscribers
will bear the remainder of the construction and other costs on a pro rata basis.
Grantee may require that the payment of the capital contribution in aid of
construction to be borne by such potential subscribers be paid in advance, said
payment to be held in escrow until construction begins, no longer than six (6)
months after the request.
K. Use of Grantee's EauiDment Bv City. Subject to any applicable state or federal
regulation or tariffs, the City shall have the right to make additional use, for any
public purpose, of any poles or conduits owned exclusively by or for the Grantee
in any public way; provided that such use by the City does not interfere with a
current or future use by the Grantee.
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L. Service to Public Buildinas. The Grantee shall provide without charge two (2)
outlets of basic and expanded basic service to existing and any newly constructed
City office(s), fire station(s), police station(s) and public school building(s) that are
passed by its system. Grantee shall install additional outlets in public school
buildings upon the request of school officials at cost plus 10%. The outlets of basic
and expanded basic service shall not be used to distribute or sell services in or
throughout such buildings; nor shall such outlets be located in common or public
areas open to the public. The Grantee shall not be required to provide an outlet to
such buildings where the drop line from the feeder cable to said buildings or
premises exceeds one hundred fifty (150) feet, unless technically feasible and so
long as it will not adversely affect the operation, financial condition, or market
development of the cable system to do so, or unless the appropriate governmental
entity agrees to pay the incremental cost of such drop line in excess of one hundred
fifty (150) cable feet.
M. Emeraencv Override. In the case of any emergency or disaster, the Grantee shall,
upon the request of the City, make available its facilities for the City to provide
emergency information and instructions during the emergency or disaster period.
Except to the extent expressly prohibited by law, the City shall hold the Grantee, its
agents, employees, officers, and assigns hereunder, harmless from any claims
arising out of the emergency use of its facilities by the City, including, but not limited
to, reasonable attorneys' fees and reasonable costs.
N. Production Facilities. The Grantee will provide production equipment and editing
facilities for public use. Additionally, the Grantee shall donate to the City a cash
grant in the amount of twenty-five thousand dollars ($25,000) for the purchase of
equipment necessary to televise City Councilor other meetings, character
generators for the government access channel and a cameraNCR package for the
school district. No cost associated with this grant shall be passed through to this
community's customers. The Grantee will provide technical assistance in
determining the proper equipment needed and installation and training support for
this equipment as requested. Upon completion of the upgrade specified in section
D, the Grantee will ensure, at its own cost, that its equipment and cabling allows for
live broadcast of public meetings to be received by its subscribers.
O. Service to the School District. The Grantee shall provide a Cable in the
Classroom membership to the Grapevine-Colleyville Independent School District
through the TCI Education Project. In addition, the Grantee shall work with the
school district to develop a showcasellaboratory school for the high school in
Colleyville.
P. Franchise Fee. Grantee shall pay to the City a franchise fee equal to five percent
(5%) of gross revenues (as defined in the cable ordinance) received by Grantee
from the operation of the system on a quarterly basis; provided, however, that
Grantee may credit against any such payments: (i) any tax, fee, or assessment of
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any kind imposed by City or other governmental entity on a cable operator, or
subscriber, or both, solely because of their status as such; (ii) any other special tax,
assessment, or fee such as a business, occupation, and entertainment tax. For the
purpose of this section the 12-month period applicable under the franchise for the
computation of the franchise fee shall be a calendar year, unless otherwise agreed
to in writing by the City and Grantee. The franchise fee payment shall be due and
payable forty-five (45) days after the close of each quarter. Each payment shall be
accompanied by a brief report from a representative of Grantee showing the basis
for the computation. If and when the FCC authorizes the payment by the Grantee
of a larger and increased percentage payment above said five percent (5%), then
the City and the Grantee will enter into negotiations to determine applicable
franchise fee rate.
Q. Formal Performance Review. The City and a Grantee may hold scheduled
performance evaluation sessions every year from the anniversary date of a
Grantee's award of a franchise or as may be required by federal and state law.
Special evaluation sessions may be held at any time during the term of a franchise
at the request of the City or a Grantee, and upon thirty (30) days written notice.
Topics which may be discussed at any scheduled or special evaluation session may
include, but not be limited to, service rate structures, franchise fee, liquidated
damages, free or discounted services, application of new technologies, system
performance, services provided, programming offered, customer complaints,
privacy, amendments to this ordinance, judicial and FCC rulings, line extension
policies, and City or Grantee rules. Nothing herein shall require the Grantee to
reopen this contract to negotiations for changes.
R. Notice of Violation. In the event that the City believes that the Grantee has not
complied with the terms of the agreement, it shall notify the Grantee in writing of the
exact nature of the alleged noncompliance and proceed according to the cable
ordinance.
S. Impossibilitv of Performance. The Grantee shall not be held in default or
noncompliance with the provisions of the agreement, nor suffer any enforcement
or penalty relating thereto, where such noncompliance or alleged defaults are
caused by strikes, acts of God, power outages, or other events reasonably beyond
its ability to control.
T. Termination Date. The termination of this agreement and the Grantee's rights
therein shall become effective upon the earliest to occur of: (i) the termination of the
franchise and this agreement by action of the City, as provided by the cable
ordinance; (ii) the abandonment of the system, in whole or material parts, by the
Grantee without the express, prior written approval of the City; or (iii) expiration of
the term of the franchise and this agreement, if not legally renewed or extended.
U. Actions of Parties. In any action by the City or the Grantee that is mandated or
permitted under the terms hereof, such party shall act in a reasonable, expeditious,
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and timely manner. Furthermore, in any instance where approval or consent is
required under the terms hereof, such approval or consent shall not be
unreasonably withheld.
v. Place of ~erformance and Venue. This agreement shall be governed in all
respects by the law of the State of Texas. All rights, duties and obligations under
this agreement are enforceable, and venue therefore shall reside in a court of
competent jurisdiction in Tarrant County, Texas, or in the Federal Judicial District
in which Tarrant County, Texas is located.
w. Notice. Unless expressly otherwise agreed between the parties, every notice or
response to be served upon the City or the Grantee shall be in writing, and shall be
deemed to have been duly given to the required party five (5) business days after
having been posted in a properly sealed and correctly addressed envelope by
certified or registered mail, postage prepaid, return receipt requested, at a post
office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the City shall be addressed as follows:
City Manager
City of Colleyville
P.O. Box 185
Colleyville, Texas 76034
with an additional copy to:
Mr. Ross Foster
City Attorney
Foster and Brewer
675 Nowlin Center Tower
9001 Airport Freeway
Fort Worth, Texas 76180
The notices or responses to the Grantee shall be addressed as follows:
TCI TKR of the Metroplex, Inc.
934 E. Centerville Road
Garland, Texas 75041
with a copy to:
TCI TKR of the Metroplex, Inc.
Attention: Legal Department
4700 S. Syracuse Street, Suite 1100
Denver, Colorado 80237
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The City and the Grantee may designate such other address or addresses from
time to time by giving notice to the other.
X. Descriptive Headinas. The captions to sections contained herein are intended
solely to facilitate the reading thereof. Such captions shall not affect the meaning
or interpretation of the text herein.
Y. Repeal of Conflictina Ordinances. All ordinances, orders or resolutions
heretofore passed and adopted by the city council of the City of Colleyville, Texas
are hereby repealed to the extent that said ordinances, orders or resolutions, or
parts thereof, are in conflict herewith.
Z. Severabilitv. If any section, sentence, paragraph, term, or provision hereof is
determined to be illegal, invalid, or unconstitutional, by any court of competent
jurisdiction or by any state or federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other section,
sentence, paragraph, term or provision hereof, all of which will remain in full force
and effect for the term of the agreement, or any renewal or renewals thereof.
AA. Effective Date. The effective date of this agreement is pursuant to the provisions
of applicable law. This agreement shall expire ten (10) years from date of passage,
unless extended per the provisions in this agreement or unless extended by the
mutual agreement of the parties.
BB. Preemption. If the FCC, or any other federal or state body or agency shall now or
hereafter exercise any paramount jurisdiction over the subject matter of the
agreement, then to the extent such jurisdiction shall preempt and supersede or
preclude the exercise of the like jurisdiction by the City, the jurisdiction of the City
shall cease and no longer exist.
CC. Amendment of the Aareement. After public notice, a public hearing, and upon
mutual agreement, the City shall amend this agreement whenever necessary to
enable the Grantee to take advantage of developments in the field of
telecommunications which, in the City's opinion, will afford the Grantee an
opportunity to serve its subscribers more efficiently, effectively and economically.
DD. Rules and Reaulations. Subject to federal and state law, the City may issue such
reasonable rules, regulations or directives of general applicability concerning
construction, operation, and maintenance of the system as are consistent with the
provision of this agreement, the cable ordinance or otherwise in accordance with
the City's police powers.
AND IT IS SO ORDERED.
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II
The first reading and public hearing being held on the 4- ~
1994
The second reading and public hearing being held on the / [If day of IJ tit? IN./" ,
1994
day of tJeiobl-f ,
The third reading and public hearing being held on the / sf day of ..Iff} V ttn 6tr ,
1994 Tabled at the third reading
Passed and adopted this
~fJ
day of b It-lfllD if
19 C/1 .
ATTEST:
J~/!~'
City Secretary
CITY OF COLLEYVILLE
/;/~ /~j-I
lAe'/A t.~ '
Chet!~ige1
Mayor
~OVED AS TO FORM A. ND LEGALITY:
T~'
Ross T. Foster
City Attorney
IN WITNESS WHEREOF, the parties hereto have entered into this agreement on
17~t~M t;rIi b
, 19 J!L.
City of Colleyville
TC I TKR of the Metroplex, Inc.
/.~ ~, ~ l/
By: {':-k41f-' ( ~I
Title: lJl1')~./
Accepted this 1') tjI day of---17t"UM&ae
applicable federal, state, and local laws.
By:
_~3~ /
~e.~
..... \IICt "'-bnl!ll1O
nw4l1Pv!~c ~f-e.
Title:
, 19 crt{ ,subject to
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