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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 1 ~ 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. 2 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 3 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. 4 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 5 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, 6 -------,.--~.. 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 7 - ... 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. 8 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 9