HomeMy WebLinkAboutOrd 16001
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ORDINANCE NO, 1600
ORDINANCE OF THE CITY OF BURLINGAME
APPROVING CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN
THE CITY OF BURLINGAME AND TCI AMERICAN CABLE HOLDINGS H. L.P., TO
RENEW THE NONEXCLUSIVE CABLE SYSTEM FRANCHISE
The CITY COiJNCIL of the CITY OF BURLINGAME does hereby ordain as follows:
Section 1. Chapter 6.48 of the City of Burlingame Municipal Code ("CATV Code")
authorizes the City, as Grantor, to grant one or more non-exclusive franchises ("Franchise") to
construct, operate, install and maintain a cable communications system ("System") within the
City. In accordance with the CATV Code and Ordinance No. 1210 adopted on June 15, 1981
("Franchise Ordinance), and Resolution 44-81 adopted on June 15, 1981 ("Franchise Rules"), the
City approved a Franchise for Capital Cities Peninsula Cable, Inc. Subsequently, the Franchise
was duly acquired by Post -Newsweek Pacific Cable, Inc. The Franchise was extended for a
period of one year by Resolution 28-96 to expire on June 24, 1997. Pursuant to Ordinance No.
1566, the City approved the transfer of the rights, title, and interest of Post -Newsweek Pacific
Cable, Inc. to Post -Newsweek Cable, Inc., and in turn to TCI American Cable Holdings U, L.P.
(`TCI"). On June 2, 1997, the City Council adopted Resolution 41-97 extending the franchise to
January 31, 1998, to allow TCI to evaluate the system and initiate negotiations for renewal of the
Franchise with the City. On January 20, 1998, the City Council adopted Resolution 4-98
extending the franchise to August 31, 1998, to allow those negotiations to be completed. On
August 3, 1998, the City Council adopted Resolution 79-98 extending the franchise to October
31, 1998, to allow the public hearings on the renewal of the Franchise to be conducted and this
ordinance and the amendments to Chapter 6.48 to become effective.
Section 2. The City and TCI have met in extended negotiations, and TCI has had an
extended opport
unity to evaluate its system and its customers needs and wishes. Notice of the
public hearing on the proposed renewal has been given as required bylaw. The City Council has
received and considered all testimony and documentation submitted by any interested person
C:\ WP51\FQ.ES\CA1'V\Gnnre"aw. cN.wpd
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regarding the proposed renewal. Pursuant to that process, the City Council is willing to enter into
the franchise agreement attached hereto as Exhibit A and the agreement is approved.
Section 3. This ordinance supersedes Ordinance Nos. 1210 and 1566, and Resolution 45-
81.
Section 4. The City Manager is directed and authorized to execute the franchise
agreement attached hereto as Exhibit A, subject to the understanding that Exhibit C to Exhibit A
shall be completed by the City Manager as to the list of public school and City facilities to be
connected and served.
Section 5. This ordinance shall be published in accord''a e wi aw. f
I, Judith A Malfatti, City Clerk of the City of Burlingame, do hereby certify that the
foregoing Ordinance was introduced at a meeting of the City Council of the City of Burlingame
on August 3 1998, and the Ordinance was duly adopted at a regular
meeting of the City Council on September 23 , 1998, by the following vote:
AYES: COUNCILMEMBERS: GALLIGAN, JANNEY. KNIGHT, O'MAHONY, SPINELI
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
Deputy City Clerk
-2- C:\1W51\FQ,ES\CATV\Uanrenew.cN.wpd
CABLE SYSTEM FRANCHISE AGREEMENT
BETWEEN THE CITY OF BURLINGAME
AND TCI AMERICAN CABLE HOLDINGS II, L.P.
EFFECTIVE:
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1998
7/22/98
TABLE OF CONTENTS
SECTION
1
RENEWAL OF FRANCHISE ..........................2
SECTION
2
GENERAL REQUIREMENTS................ 9999490950
5
SECTION
3
SERVICE AREA AND LINE EXTENSION POLICY........
16
SECTION
4
SYSTEM UPGRADE ................................
17
SECTION 5 SERVICES AND PROGRAMMING ......................23
SECTION 6 SUPPORT FOR LOCAL ORIGINATION AND PUBLIC,
EDUCATIONAL AND GOVERNMENTAL (PEG) ACCESS..... 24
SECTION 7 REGULATION....................................25
EXHIBITS
A OWNERSHIP
B SURETY GUARANTEE (SAMPLE)
C GRANTEE COMMITMENT TO LOCAL ORIGINATION AND TO PUBLIC,
EDUCATIONAL AND GOVERNMENTAL (PEG) ACCESS FACILITIES AND
EQUIPMENT
AGREEMENT
This Agreement, made and entered into this day of
1998, at , California, by and between
the City of Burlingame, a municipal corporation of the State
of California, and TCI American Cable Holdings II, L.P., a
California limited partnership.
WITNESSETH
WHEREAS, the City of Burlingame, pursuant to Federal
and California law and ordinance No. is authorized to
grant and renew one or more non-exclusive revocable
Franchises to own, operate, construct, maintain and
reconstruct a Cable System within the City; and
WHEREAS, the City, after due evaluation of TCI American
Cable Holdings II, L.P., and after public hearings, has
determined that it is in the best interests of the City and
its residents to renew its Franchise with American Cable
Holdings II, L.P.
NOW, THEREFORE, the City of Burlingame (hereinafter
"the Grantor" or "Grantor") hereby grants to American Cable
Holdings II, L.P. (hereinafter "the Grantee" or "Grantee") a
renewal of its Cable System Franchise in accordance with the
provisions of Ordinance No. and this Agreement.
E
SECTION 1 RENEWAL OF FRANCHISE
1.1 Grant
(a) The Cable System Franchise currently held by
TCI American Cable Holdings II, L.P., a California limited
partnership whose current ownership is indicated in Exhibit
"A," is hereby renewed, subject to the terms and conditions
of this Agreement. The renewal extends the Franchise,
authority, right and privilege, to construct, reconstruct,
operate and maintain a Cable System within the Streets and
Public Ways in the City of Burlingame as it is now or may in
the future be constituted, and also provides the authority
to offer to Subscribers any Cable Serviceorother services
that legally may be offered, utilizing the facilities of
Grantee's Cable System.
(b) If Grantee contends that it may lawfully
provide Non -Cable
1.2 Right
or telecommunications
services over the
facilities of the
Cable System,
Grantee
shall give Grantor
written notice of
its intent to
provide
such services at
least thirty (30)
days prior to
services
becoming available
to Subscribers.
This is
not, however, a
waiver of
of Grantor to Issue and Renew Franchise
Grantee acknowledges and accepts the present right of
Grantor
to issue
and/or renew a
Franchise
and Grantee agrees
it shall
not now
or at any time
hereafter
challenge any
lawful exercise
of this right in
any local,
State or Federal
court.
This is
not, however, a
waiver of
any constitutional
or legal
right or
privilege on
the part of
the Grantee.
2
1.3 Effective Date of Renewal
The renewal shall be effective on the date that both
parties have executed this Agreement, provided that said
date is no later than thirty (30) days after the effective
date the City Council, by Resolution or Ordinance, approves
this Agreement. The renewal is further contingent upon the
filing by Grantee with the City Clerk, of the executed
Franchise Agreement and the required security fund and
insurance certificates, except that if the filing of the
security fund or any such insurance certificate does not
occur within sixty (60) days after the effective date of the
Resolution or Ordinance approving this renewal and any
extension of time hereunder, the Grantor may declare this
renewal null and void.
1.4 Duration
(a) The term of the renewal shall be ten (10)
years from the effective date hereof, after which time it
shall expire and be of no force and effect unless renewed.
Renewal shall be in accordance with applicable law.
(b) If the Grantee offers residential interactive
services to the City's residents within eighteen (18) months
after the effective date of this Agreement, the duration of
the franchise shall be extended by two (2) additional years.
1.5 Conflict with Cable Ordinance
(a) The provisions of the City of Burlingame
Cable Television Regulatory Ordinance, Ordinance No.
are hereby incorporated herein by reference as if
K3
set out in full, and form part of the terms and conditions
of this Agreement. In event of any conflict between the
terms and conditions of this Agreement and the provisions of
Ordinance No. this Agreement shall prevail.
(b) Should Ordinance No. be amended,
revised, superseded
or
otherwise
changed after the
effective
date hereof in such
way
as would
materially affect
the terms
and conditions of this Agreement, said amendment, revision
or change shall not apply to this Agreement without
Grantee's approval; provided, that Grantor, upon sixty (60)
days prior notice, may reasonably amend the Customer service
standards of Ordinance No. from time to time, in
accordance with Federal and State law, and such amended
standards shall apply to Grantee.
1.6 Definitions
The definitions contained in Ordinance No.
incorporated herein as if fully set forth.
0
are
SECTION 2 GENERAL REQIIIREMENTS
2.1 Governing Requirements
Grantee shall comply with all lawful requirements of
this Agreement, Ordinance No. and applicable State
and Federal law.
2.2 Franchise Fee
(a) The Grantee shall pay to the Grantor an
annual Franchise Fee of up to five percent (5%) of Gross
Annual Cable Service Revenues received by the Grantee from
all operations of the Cable System in the City of
Burlingame, provided, that if Federal or State law permits
the Grantee to provide Non -Cable Services to Subscribers
such as data or telephone communications through the
facilities of the Cable System, and the Grantor has the
legal authority to collect either a Franchise Fee or an in-
lieu -of -franchise -fee payment on such services, then the fee
for revenues derived by the Grantee from such services shall
be at the maximum rate permitted by law, not to exceed five
percent (5%) of Gross Non -Cable Service Revenue, beginning
on the date that such services are first provided. The fee
shall be payable quarterly, by no later than sixty (60) days
after the end of the quarter for which payment is due.
(b) Upon the effective date of this Agreement,
the Grantor shall establish the percentage Franchise Fee it
desires initially. If that percentage is less than five
percent (5%), the Grantor may, at any time during the
franchise term, increase the Franchise Fee up to five
5
percent (50), upon ninety (90) days written notice to the
Grantor.
(c) Revenues collected as Franchise Fees shall be
included in Gross Annual Cable Service Revenues.
(d) For the purposes of this Agreement, revenues
generated from the provision of interactive residential
services and digital video services shall be defined as
Cable Service revenues, if permitted by law.
2.3 Payment to Grantor
No acceptance of any payment shall be construed as an
accord that the amount is in fact the correct amount, nor
shall such acceptance of payment be construed as a release
of any claim the Grantor may have for further or additional
sums payable under the provision of this Agreement. All
amounts shall be subject to audit, as authorized by Section
6.48.240 of Ordinance No. Audits shall be limited
to no more than one (1) for any three (3) year Franchise
period.
2.4 Insurance
(a) Upon the effective date of renewal the
Grantee shall, at its sole expense, take out, and maintain
during the life of this Agreement and furnish to the
Grantor, a policy of insurance as required by the State of
California for Workers' Compensation, and a policy of
liability insurance that shall conform to the provisions of
Section 6.48.310 of Ordinance No.
C
The amounts of insurance shall not be less than the
following:
Single Limit coverage applying to
Bodily and Personal Injury and Property
Damage:
Two Million Dollars ($2,000,000)
The following endorsements shall be
attached to the liability policy:
(1) The policy shall cover on an "occurrence"
basis.
(2) The policy shall cover Personal Injury as
well as Bodily Injury.
(3) The policy shall cover blanket contractual
liability subject to the standard universal
exclusions of contractual liability included
in the carrier's standard endorsement as to
bodily injuries, personal injuries and
property damage.
(4) Broad Form property damage liability shall be
afforded.
(5) The Grantor shall be named additional insured
on the policy.
(6) An endorsement shall be provided which states
that the coverage is primary insurance and
that no other insurance effected by the
Grantor will be called upon to contribute to
a loss under this coverage.
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(7) Standard form of cross -liability shall be
afforded.
(8) An endorsement stating that the policy shall
not be canceled without thirty (30) days
notice of such cancellation given to the
Grantor.
(b) Grantor reserves the right to adjust the
limit coverage requirements no more often than every three
(3) years. Any such adjustment by the Grantor will be no
greater than the increase in the San Francisco Metropolitan
Area Consumer Price Index (all consumers) for such three (3)
year period.
(c) Grantee shall submit to Grantor documentation
of the required insurance including a certificate of
insurance signed by the insurance agent and companies named,
as well as all properly executed endorsements.
(d) Any deductible or self-insured retentions
must be declared to and approved by Grantor. At the option
of Grantor, insurer shall reduce or eliminate such
deductible or self-insured retention as respects Grantor,
its officers and employees or Grantee shall procure a bond
guaranteeing payment of losses and related investigation,
claims, administration and defense expenses.
(e) Grantee hereby indemnifies Grantor for any damage
resulting to it from failure of either Grantee or any
subcontractor to take out and maintain such insurance.
2.5 Indemnification
(a) Grantee shall indemnify, hold harmless,
release and defend Grantor, its officers, employees and
agents from and against any and all actions, claims,
demands, damages, disability, losses, expenses including
attorney's fees and other defense costs or liabilities of
any nature that may be asserted by any person or entity
including Grantee from any cause whatsoever arising from the
activities of Grantee, its subcontractors, employees and
agents hereunder. Grantee shall be solely responsible and
save Grantor harmless from all matters relative to payment
of Grantee's employees including compliance with Social
Security, withholding, etc.
(b) This indemnification obligation is not
limited in any way by a limitation on the amount or type of
damages or compensation payable by or for Grantee under
Workers' Compensation, disability or other employee benefit
acts, acceptance of insurance certificates required under
this Agreement, or the terms, applicability or limitations
of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any
rights against Grantee which it may have by reason of this
indemnification, because of the acceptance by Grantor, or
the deposit with Grantor by Grantee, of any of the insurance
policies described in this Section.
(d) This indemnification by Grantee shall apply
to all damages and claims for damages of any kind suffered
D
by reason of any of the aforesaid operations referred to in
this Section, regardless of whether or not such insurance
policies shall have been determined to be applicable to any
of such damages or claims for damages.
(e) Grantee shall not be required to indemnify
Grantor for negligence or misconduct on the part of Grantor
or its officials, boards, commissions, agents, or employees
(hereinafter "such acts"). Grantor shall hold Grantee
harmless from any damage resulting from any acts of the
Grantor or its officials, boards, commissions, agents or
employees without limitation activating any Emergency Alert
facilities, or in utilizing any Governmental or Educational
Access Channels, equipment, or facilities and for any such
acts committed by Grantor in connection with work performed
by Grantor and permitted by this Agreement, on or adjacent
to the Cable System.
2.6 Security Fund
(a) In accordance with Section 6.48.250 of
Ordinance No. within sixty (60) days of the
Resolution adopting this Agreement, Grantee shall establish
and provide to Grantor a security fund, as security for the
faithful performance by Grantee of all material provision of
this Agreement. The security fund shall consist of two (2)
parts. The first part shall be a bond, which may be a
corporate guarantee and which shall be in the amount of Two
Hundred Fifty Thousand Dollars ($250,000), and in a form
acceptable to the Grantor's City Attorney, and essentially
10
similar to the example provided in Exhibit "B." The second
part shall be in the amount of at least Fifty Thousand
Dollars ($50,000) and shall either be in the form of an
irrevocable letter of credit, or a cash deposit established
in a local bank in an interest-bearing account payable to
the order of the Grantor as trustee for Grantee, with all
interest distributed to the Grantee.
(b) The bond shall be maintained at the Two
Hundred Fifty Thousand Dollar ($250,000) level until the
System upgrade provided for in Section 4.1 herein is
completed, at which time the bond shall be released,
provided there are then no outstanding material violations
of this Agreement. Upon receipt of information verifying
completion of the upgrade, the Grantor shall release the
bond. The cash or letter of credit portion of the security
fund shall be maintained at the Fifty Thousand Dollar
($50,000) level throughout the term of this Agreement,
provided that at intervals no more often than each three (3)
years, Grantor shall have the right to require that this
amount be increased to reflect changes in the San Francisco
Metropolitan Area Consumer Price Index during the prior
three (3) year period.
(c) The security fund may be assessed by Grantor
for those purposes specified in Sections 6.48.250, 6.48.370,
and/or 6.48.390 of Ordinance No. in accordance with
the procedures of said Ordinance, provided
11
that Grantee has received written notice and thirty (30)
days after receipt of notice to cure any material violations
prior to any assessment. As long as the Grantor follows the
procedures specified herein and in Ordinance No. for
assessing and/or withdrawing funds from said security fund,
Grantee shall not initiate litigation or non -City
administrative action to prevent or impair Grantor from
accessing those funds. Grantee's recourse, in the event
Grantee believes any taking of security funds is improper,
shall be through legal action after the security has been
drawn upon. If the Grantor's action or taking is found to
be improper by any court or agency of competent
jurisdiction, Grantee shall be entitled to a refund of the
funds plus interest and/or any other award which such court
or agency shall make.
(d) Nothing herein shall be deemed a waiver of
the normal permit and bonding requirements made of all
contractors working within the City's Rights -of -Way.
2.7 Procedure for Remedying Franchise Violations
(a) The procedure for remedying Franchise
violations or breaches shall be consistent with the
procedures of Ordinance No. 0 Grantor, by action of
the Grantor's City Manager, or a delegate, shall first
notify Grantee of the violation in writing by personal
delivery or registered or certified mail, and demand
correction within a reasonable time, which shall not be less
than fifteen (15) days in the case of the failure of the
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Grantee to pay any sum or other amount due the Grantor under
this Agreement or Ordinance No. and thirty (30) days
in all other cases. If Grantee fails to correct the
violation within the time prescribed, or if Grantee fails to
commence corrective action within the time prescribed and
diligently remedy such violation thereafter, the Grantee
shall then be given written notice of not less than thirty
(30) days of a public hearing to be held before the Council.
Said notice shall specify the violations alleged to have
occurred.
(b) At the public hearing, the Council shall hear
and consider all relevant evidence, and thereafter render
findings and its decision.
(c) In the event the Council finds that Grantee
has corrected the violations or has diligently commenced
correction of such violation after notice thereof from
Grantor and is diligently proceeding to fully remedy such
violation, or that no material violation has occurred, the
proceedings shall terminate and no penalty or other sanction
shall be imposed. In determining whether a violation is
material, Grantor shall take into consideration the
reliability of the evidence of the violation, the nature of
the violation and the damage (if any), caused to the Grantor
thereby, whether the violation was chronic, and any
justifying or mitigating circumstances and such other
matters as the Grantor may deem appropriate.
{d) In the event the Council finds that a
material violation exists and that Grantee has not corrected
the same in a satisfactory manner or has not diligently
commenced correction of such violation, the Council may
impose liquidated damages, assessable from the security
fund, of up to One Thousand Dollars ($1,000) per day, for
unexcused violations of the System upgrade herein, and up to
Two Hundred Dollars ($200) per day per violation for all
other violations, provided that all violations of a similar
nature occurring at the same time shall be considered one
(1) violation.
If the Grantor elects to assess liquidated
damages, pursuant to the provisions of this Franchise
Agreement, then such election shall constitute Grantor's
exclusive remedy for a period of sixty (60) days.
Thereafter, if the Grantee remains in non-compliance with
the requirements of the Franchise Agreement, the Grantor may
pursue any available remedy.
2.8 Reservation of Rights
Grantor and Grantee reserve all rights that they may
possess under the law unless expressly waived herein. By
entering into this Agreement, neither Grantee nor Grantor
waives any rights which it now or may later enjoy under
applicable law, and specifically Grantor and Grantee reserve
their rights to take full advantage of any changes in law
during the term of the Franchise.
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2.9 State or Federal Preemption
In the event that the State or Federal Government
discontinues preemption in any area of Cable System
regulation over which it currently exercises jurisdiction in
such manner as to expand rather than limit municipal
regulatory authority, Grantor may, if it so elects, adopt
rules and regulations in these areas, to the extent
permitted in the then applicable law. If such preemption
has a material impact upon the term of this Agreement,
Grantor and Grantee agree to negotiate in good faith to
attempt to restore the mutual considerations provided in
this Agreement.
15
SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY
3.1 Franchise and Service Area
The Grantee's Franchise and Service Areas shall be the
entire City of Burlingame, including any and all territory
as may be annexed thereto, during the term of this
Agreement. The Grantor shall provide the Grantee with
thirty (30) days prior written notice of any action that
might lead to an annexation. The Grantee shall offer the
full range of residential cable services to all residents of
the City of Burlingame, at standard installation and monthly
charges; provided, that Grantee may offer discounts to
select subscriber groups, such as senior citizens and/or low
income residents.
3.2 Commercial Areas
Upon City request, for areas of the City that are
primarily commercial, the Grantee shall install appropriate
conduit at any time that open utility trenches are available
and the Grantee has received at least ninety (90) days
advance notice of the availability of the trenches.
Residences in primarily commercial areas shall be provided
with cable service upon request, on a time and materials
basis.
F[.
SECTION 4 SYSTEM UPGRADE
4.1 Upgrade
(a) Phase 1
The Grantee shall upgrade or rebuild, as appropriate,
the existing Cable System to provide a capacity of at least
Seventy-four (74) video Channels including the use of
digital compression within six (6) months of the effective
date of this Agreement. Grantee may activate portions of
the rebuilt plant and offer upgraded services in phases, as
Grantee may determine. Completion of Phase 1 of the upgrade
shall be defined as the ability to provide at least Seventy-
four (74) Channels of video programming to all residential
Subscribers within the City, as well as satisfactory
completion of any permit -specified requirements and the
public building connections provided in Section 4.2 below,
and enumerated in Exhibit 11C.11
(b) Phase 2
Grantee shall provide the activated capability to offer
all residents of the City interactive residential services
by no later than thirty-six (36) months after the effective
date of this Agreement.
4.2 Interactive Network Services to Public Agencies
(a) In addition to the Cable System upgrade
provided
in Section 4.1 above, Grantee shall connect
selected
public
buildings,
as defined in Exhibit "C," to the
closest node of
Grantee's
upgraded system. Grantee shall
17
provide interactive communications capability to the listed
public facilities under the terms specified in Exhibit "C."
(b) The connections provided in (a) above shall
be completed and operational by not later than six (6)
months after the completion of the Phase 2 upgrade.
(c) Grantor and Grantee agree that any use of the
interactive links by public agencies to generate revenue or
to serve
nonpublic
entities
shall
occur only
with the
prior
written
consent of
Grantee,
which
may contain
revenue
sharing provisions.
4.3 Most Favored Nation
(a) To assure that Grantee's Cable System
continues to reflect the general cable industry state-of-
the-art throughout the term of the Franchise, Grantor and
Grantee agree to utilize Cable Systems operated by Grantor
in the following Northern California cities as a basis for
comparison. The comparison communities (also referred to as
the "comparison group") shall be:
(1) Daly City
(2) Fremont
(3) Monterey
(4) Redwood City
(5)
Salinas
(6)
San Jose
(7)
San Mateo
(8)
San Rafael
(b) Grantor and Grantee agree that subsequent to
the completion of the upgrade required in Section 4.1 above,
but no earlier than five (5) years after the effective date
oL
this Agreement, when four (4) or more of the Cable
Systems in the comparison group (also referred to as the
'comparison sub -group") offer video programming services
which exceed the services provided on Grantee's System by
fifteen (15) or more programmed channels, Grantor may
require Grantee to provide additional programming services
to meet or exceed the average provided by the comparison
sub -group.
(c) Grantor and Grantee further agree that
subsequent to the completion of Phase 2 of the upgrade
required in section 4.1 above, but no earlier than three (3)
years after the effective date of this Agreement, when four
(4) or more of the Cable Systems in the comparison group
have activated upstream communications capacity and are
offering interactive residential services, Grantor may
require Grantee to offer comparable services.
(d) If Grantor initiates any request under the
provisions of
paragraphs (b) or
(c) above, Grantor
and
Grantee shall
negotiate in good
faith to determine
the most
expeditious and appropriate response to Grantor's
request.
(e) Grantor shall conduct at least two (2) public
hearings at lawfully noticed meetings to provide the public
the opportunity to comment on the issues related to
Grantor's request for additional or new services.
(f) Following an analysis of the input from the
public hearings, Grantor and Grantee shall negotiate in good
faith to develop a plan, including a timetable, for the
process of offering new services or an appropriate upgrade
of the System, taking into account the cost of providing
such services and upgrades.
(g) If the delivery of such additional or new
services would require a substantial incremental investment
by Grantee in the Cable System, Grantee may request, and
Grantor may consider, an appropriate extension of the
Franchise term.
(h) If Grantee objects to any requirement for
modification, alteration or expanded capabilities of the
System requested by Grantor, Grantee must do so in writing
within thirty (30) days of Grantor's notification. If
Grantee is unwilling to comply with Grantor's request,
Grantor may, after a public hearing, shorten the existing
franchise term so that the term expires not less than
thirty-six (36) months after the decision is made to shorten
the term.
4.4 Emergency Alert Capability
Upon completion of the System upgrade provided in
Section 4.1 of this Agreement, or sooner if required by the
Federal Communications Commission, Grantee shall provide
Emergency Alert System capability in full compliance with
applicable Federal Communications Commission requirements.
4.5 Standby Power
Upon completion of the System upgrade provided in
Section 4.1 of this Agreement, Grantee shall provide standby
power generating capacity at the Cable System control center
capable of providing at least twelve (12) hours of emergency
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supply. Grantee shall maintain standby power system
supplies throughout the major trunk cable networks capable
of providing emergency power for three (3) rated hours, or
within the standard limits of commercially available power
supply units.
4.6 Parental Control Lock
Grantee shall provide, for sale or lease, to
Subscribers, upon request, a parental control locking device
or digital code that permits inhibiting the video and audio
portions of premium Channels.
4.7 Status Monitoring
Grantee shall provide an automatic status monitoring
system or a functional equivalent when the Cable System has
been activated for interactive service provided that such
status monitoring is technically and economically feasible
to Grantee's satisfaction.
4.8 Technical Standards
The Federal Communications Commission (FCC) Rules and
Regulations, Part 76, Subpart K (Technical Standards), as
amended from time to time, shall apply, to the extent
permitted by applicable law.
4.9 Right of Inspection
Grantor shall have the right to inspect all
construction, reconstruction or installation work performed
subject to the provisions of the Franchise and other
pertinent provisions of law, and as part of Grantor's
21
obligation to protect the public health, safety and welfare
of its citizens.
22
SECTION 5 SERVICES AND PROGRAMMING
5.1 Services and Programming
Grantee shall provide Grantor with a list of program
services offered, which list shall be updated each time a
change is made. Grantee shall not reduce the number of
program services without thirty (30) days prior written
notification to the Grantor and System Subscribers, or as
soon as feasible if the reduction is not within Grantee's
control
5.2 Leased Channel Service
Grantee shall offer leased channel service on
reasonable terms and conditions and in accordance with
applicable law.
23
SECTION 6 SUPPORT FOR
LOCAL ORIGINATION
AND
PUBLIC,
EDUCATIONAL
AND GOVERNMENTAL
(PEG)
ACCESS
6.1 Grantee Support
Grantee shall provide the following support for Local
Origination and PEG Access within the Franchise Area:
(a) Provision and use of the grant funds and
Channels designated in Exhibit "C" of this Agreement.
(b) Maintenance and continued support of
Grantee's Local Origination programming efforts, to the
extent specified in Exhibit "C."
(c) Provision of free public building
installation and basic service to the public buildings
listed in Exhibit "C," Figure 1.
(d) Provision of interactive communications
capability in accordance with the requirements of Exhibit
"C," Figure 2.
6.2 Compliance with Federal Law
In accepting this Franchise, the Grantee agrees that
the commitments indicated in Section 6.1 above are
voluntarily entered into and will not be charged against any
Franchise Fees due the Grantor during the term of the
Franchise. The Grantee also agrees to meet all of the
commitments of Section 6.1 above, through the term of the
Franchise.
SECTION 7 REGULATION
7.1 Franchise Regulation
The Franchise renewed under this Agreement shall be
subject to regulation by Grantor in accordance with all of
the lawful provisions of Ordinance No.
7.2 Force Majeure
The force majeure provisions of Section 6.48.410 of
Ordinance No. shall apply.
7.3 Rate Regulation
If Grantor is permitted under Federal and/or State law,
to regulate the rates charged by Grantee, and if Grantor
elects to so regulate, Grantor shall establish reasonable
procedures consistent with due process and applicable laws
and regulations and follow those procedures while
regulating.
7.4 Service Standards
A verified and continuing pattern of noncompliance with
the service standards contained in Ordinance No. , this
Agreement or standards established by any regulatory body
having the authority to formulate service standards for
Cable Systems, shall constitute a material breach of this
Agreement, entitling Grantor to utilize the provisions set
forth in Sections 6.48.370 to 6.48.390 of Ordinance No.
7.5 Notices
Notices transmitted by either party to this Agreement
to the other party shall be addressed as follows:
25
Grantor: City Manager
City of Burlingame
501 Primrose Road
Burlingame, CA 4010-3997
Grantee: TCI of California
1691 Bayport Avenue
San Carlos, CA 94070
Attn: General Manager
With a copy to:
TCI - Division Office
1850 Mt. Diablo Blvd, Suite 200
Walnut Creek, CA 94596
Attn: Franchise Department
Either party may designate by written notice a
different address to which notices shall be sent.
7.6 Successors and Assigns
All provisions of this Agreement shall apply to any
lawful successors and assigns.
7.7 Severability
If any provision of this Agreement or the application
of such provision to any circumstance is declared
unconstitutional or otherwise invalid by the lawful judgment
of any court of competent jurisdiction, the remainder of
this Agreement or the application of the provision to other
circumstances, shall not be affected thereby.
7.8 Choice of Law
This Agreement shall be governed by and interpreted
under the laws of the State of California and applicable
Federal law.
7.9 No Aaiver
Grantee shall not be excused from complying with any of
the terms and conditions of this Agreement by any failure of
the Grantor upon any one (1) or more occasions to insist
upon or to seek compliance with any such terms or
conditions.
27
IN WITNESS WHEREOF, Grantor and Grantee have executed
this Agreement the date and year first above written.
APPROVED AS TO FORM:
(SEAL)
(CORPORATE SEAL)
CITY OF BURLINGAME
By:
Date:
ATTEST:
ty Clerk
TCI AMERICAN CABLE HOLDINGS
II, L.P.
By:
Name, Title
Date:
EXHIBIT A
OWNERSHIP
JUN -08-1999 11:27 =e OF BURLINGAME 650 342 e3se mo s
EXHIBIT B
SURETY GUARANTEE
(SAMPLE)
B-1
EXHIBIT B: SURETY GUARANTEE
WHEREAS, the City of Burlingame (hereinafter called
"Grantor") under this Franchise Agreement dated the
1998, has granted a Franchise to TCI
American Cable Holdings II, L.P., (hereinafter called
"Grantee") a subsidiary of
(hereinafter called "Guarantor") to own, operate, and
maintain a Cable System (hereinafter called "Franchise");
and
WHEREAS, Guarantor, has a substantial interest in said
Franchise, the conduct of the Grantee, and the Franchise
Agreement between Grantor and Grantee establishing Franchise
requirements, which Agreement is hereby specifically
referred to, incorporated herein and made a part hereof; and
WHEREAS, Section 2.6 of said Franchise Agreement
requires the Grantee, as Principal, to furnish security
issued to cover the faithful performance of certain of the
Grantee's obligation under said Franchise, and which
security shall be in favor of the Grantor;
NOW THEREFORE, subject to the provisions of Section
2.7, Guarantor hereby unconditionally guarantees the due and
punctual performance of any and all obligations of Grantee
contained in the Franchise Agreement, up to the financial
limits provided in Section 2.6. This Guarantee shall,
unless terminated, substituted or cancelled as hereinafter
provided, remain in full force and effect for the period
provided by said Franchise. Provided that, upon
substitution of another Guarantor reasonably satisfactory to
the Grantor, this Guarantee may be terminated, substituted
or cancelled upon thirty (30) days prior written notice from
Guarantor to the Grantor and Grantee.
Any such notice to be given hereunder shall be
addressed to Grantor, with a copy to Grantee. Such
terminations shall not affect liability incurred or accrued
under this Guarantee prior to the effective date of such
termination or cancellation.
No claim, suit or action under this Guarantee by reason
of any default of the Grantee shall be brought against
Guarantor unless asserted or commenced no later than six (6)
months after the effective date of such termination or
cancellation of the Guarantee.
B-3
IN WITNESS WHEREOF, the Grantee and Guarantor have
hereunto set these hands and seals this day of
1998.
GRANTEE
TCI AMERICAN CABLE HOLDINGS
II, L.P.
By:
GUARANTOR
By:
Title: Title:
EXHIBIT C
GRANTEE COMMITMENT TO LOCAL ORIGINATION AND TO
PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG)
ACCESS FACILITIES AND EQUIPMENT
C-1
EXHIBIT C: GRANTEE COMMITMENT TO LOCAL ORIGINATION AND TO
PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG)
ACCESS FACILITIES AND EQUIPMENT
1. LOCAL ORIGINATION
(a) Throughout the term of the Franchise, Grantee
shall
maintain a
cablecasting facility within
the
City
limits.
Grantee
shall continue to provide for
the
following
programs, as a minimum:
• Four (4) special community events annually;
• Six (6) monthly programs;
• Broadcasting of City Council meetings
produced by Grantor or a third party;
• Character generated messages and equipment
maintenance.
Grantee shall not significantly reduce its Local
Origination budget, level of staffing or equipment
capability throughout the life of this Agreement.
(b) Grantee shall give full consideration to any
Grantor request to cablecast Educational and/or Governmental
(EG) Access programming on Grantee's Local Origination
C-2
Channel, to the extent that capacity on the channel is
available.
2. DOWNSTREAM VIDEO LOCAL ORIGINATION AND
PEG ACCESS CHANNELS
(a) Upon the effective date of this Agreement, Grantee
shall continue to make one (1) downstream video Channel
available exclusively for Local Origination programming and
incidental Educational and Governmental (EG) Access
programming in accordance with 1(b) above. This Channel
shall be dedicated for the term of the Franchise renewal.
(b) Upon completion of Phase 2 of the System upgrade,
Grantee shall provide, within one hundred twenty (120) days
of Grantor's written request, one (1) Channel for PEG Access
use. Upon activation of said PEG Channel, Grantor shall
become responsible for cablecasting of City Council
meetings. In addition, if Grantor intends to utilize said
PEG Channel for SAMNET programming, Grantee may require
verification from Grantor regarding the authority to
cablecast SAMNET programming.
(c) Upon completion of Phase 2 of the System upgrade,
Grantor may submit a request for a second and final PEG
Channel only if the initial PEG Channel programming exceeds
fifteen (15) hours per week of non -duplicated video
programming produced by or for Grantor or SAMNET. Character
C-3
generated programming shall not be considered video
programming for this purpose. Upon verification of
satisfaction of the above requirement, Grantee shall provide
Grantor the second and final PEG Channel within one hundred
twenty (120) days of Grantor's written request.
3. BASIC SERVICE TO PUBLIC BUILDINGS
Upon completion of Phase 1 of the Cable System upgrade
provided in Section 4.1, Grantee shall provide at least one
(1) connection and the highest tier of basic service, at no
installation or monthly service charge, to all of the public
buildings listed in Figure 1 of this Exhibit, and to any new
public buildings that may be erected during the term of the
Franchise, provided that such buildings meet the line
extension requirements of Section 6.48.180(a)(5) of
Ordinance No. .
4. INTERACTIVE COMMUNICATIONS CAPABILITY TO PUBLIC
BUILDINGS
(a) Within one hundred twenty (120) days after the
effective date of this Agreement, Grantee shall provide
Grantor with a firm cost proposal based on Grantee's
incremental construction costs, to interconnect each public
building listed in Figure 2 so that any connected public
building will have the capability to transmit and receive
high speed data and/or video communications signals to any
C-4
other connected building on a closed-circuit basis. If
Grantor opts for the above dedicated interactive capability,
Grantee shall provide a minimum capability to transmit data
at 1.5 MBPS.
(b) Within ninety (90) days after receipt of Grantee's
proposal provided in accordance with paragraph (a) above,
Grantor shall indicate, in writing, its acceptance,
rejection or request for modification of the proposal. If
the proposal is accepted, including agreement on the
schedule for payment to Grantee of the connection costs,
Grantee shall proceed to interconnect the designated public
buildings. Completion of the interconnected network shall
occur no later than six (6) months after the date of
completion of the Phase 2 Cable System upgrade provided in
Section 4.1 of this Agreement.
(c) A point of demarcation shall be established within
each interconnected public building. Grantee shall be
responsible for acquiring, installing, operating and
maintaining all networking equipment and facilities on the
network side of the demarcation point. Each EG user shall
be responsible for acquiring, installing, operating and
maintaining all equipment on its side of the point of
demarcation necessary to interface with and utilize
Grantee's network.
c-5
(d) Grantee shall not impose a network utilization and
maintenance charge for interactive communications within
Grantor's jurisdictional area. For communications to and
from locations outside the City, Grantee may impose a
network utilization charge. To the extent not specifically
prohibited by the California Public Utilities Commission
(CPUC) or the Federal Communications Commission (FCC), such
charge shall not exceed fifty percent (500) of the lowest
rate tariffed by the CPUC or FCC for facility -based
California common carriers providing similar bandwidth to
functionally similar users for comparable communications
distances.
(e) Grantee may submit, and Grantor may consider,
additional and/or alternative proposals involving new
technologies and/or products that will provide interactive
communications capability to public buildings.
5. PEG ACCESS FUNDING SUPPORT
(a) Grantee shall provide a grant of up to forty-two
cents ($0.42) per month per subscriber to Grantor, as
requested by Grantor, to support Public, Educational and
Governmental Access and Institutional Network
communications. This grant shall continue throughout the
duration of the Franchise. The grant funds may be used for
equipment and facilities for both one-way video PEG Access
services and two-way interactive EG Access services, at
Grantor's sole discretion.
(b) The grant shall be payable quarterly in
conjunction with the franchise fee, unless otherwise agreed
to by Grantor and Grantee. Grantor shall inform Grantee, no
later than January 1 of each year, of Grantor's grant needs
and preferred schedule of payment.
(c) If permitted by Federal and State law, Grantor
shall not oppose the inclusion on Subscribers' bills of the
Access grant provided in 5(a) above, so long as said
inclusion is done in a manner consistent with the provisions
of Federal and State law.
6. PEG AND I -NET OPERATIONS
(a) Grantor may negotiate agreements with neighboring
jurisdictions served by the same Cable System, educational
institutions, or others to share PEG and I -net operating
expenses as appropriate. Grantor and Grantee may negotiate
an agreement for management of PEG facilities, if so desired
by the parties.
(b) Grantor shall not enter into any agreement which
will compete with any services or products provided on
Grantee's Cable System.
C-7
7. TITLE TO PEG EQUIPMENT
Grantor shall retain title to all PEG equipment
procured with funding made available in accordance with
paragraph 5 above.
8. RELOCATION OF PEG CHANNELS
If Grantee relocates any PEG Access Channel to a
different Channel number, Grantee shall reimburse Grantor
for any out-of-pocket Grantor costs necessarily incurred as
a result of the relocation. Grantee shall provide Grantor
and all subscribers with at least thirty (30) days written
notice of such relocation.
9. PROMOTION OF PEG ACCESS
(a) Grantee shall provide Grantor access to third
party providers to include PEG Access Channel listings in
their print and electronic program guides provided by
Grantee to its Customers. Grantor shall be responsible for
the timely updating of these listings. Any fees associated
with special placement or handling beyond the standard
manner of presenting program schedule listings shall be the
responsibility of Grantor.
(b) On an annual basis, Grantee shall allow Grantor to
submit a "bill stuffer," created at Grantor's expense, to be
inserted into all Customer statements within Grantee's Cable
C-8
System. In consideration of regulatory notification
requirements, Grantee has final approval on of the dates for
insertion.
C-9
LIST OF PIIBLIC BUILDINGS TO BE CONNECTED
FOR BASIC CABLE SERVICE
C-10
FIGURE 2
LIST OF PUBLIC BUILDINGS ELIGIBLE TO BE CONNECTED