HomeMy WebLinkAboutOrdinance-2001-1216
CITY OF WHEAT RIDGE, COLORADO
INTRODUCED BY COUNCIL MEMBER <;i 1 pr
Council Bill No 06-2001
Ordinance No /'/2/ (;
Series of 2001
TITLE AN ORDINANCE APPROVING THE RENEWAL OF A CABLE
TELEVISION FRANCHISE, AND IN CONNECTION
THEREWITH, REPEALING AND REENACTING SECTION 23-1
OF THE CODE OF LAWS
WHEREAS, the City Council has previously approved a cable television
franchise, and
WHEREAS, said franchise has expired and pursuant to its terms is continued in
force until renewed, and
WHEREAS, the Council wishes to approve a renewal of the franchise
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE,
COLORADO
Section 1. Cable Television Franchise Renewed The cable franchise
agreement between TCI Cablevision of Colorado, Inc., attached hereto as Exhibit 1, and
fully incorporated herein by this reference, which agreement renews the cable television
franchise within the City according to the terms and conditions contained therein, is
hereby approved and the Mayor and City Clerk are authorized and directed to execute
the same
Section 2. Section 23-1 of the Wheat Ridge Code of Laws is hereby repealed
and reenacted to read
Sec. 23-1. Cable Television Franchise
The cable television franchise within the City approved by
Ordinance /~/b, Series of 2001, effective as of
March 19, 2001, and expiring March 19, 2013, sets forth the
contractual provisionsgovering the cable television service
provided by the Franchise The customer service and
protection standards pertaining to such service, as set forth,
inter alia, in Ordinance 973, Series 1994, are recognized as
continuing in full force and effect to the same extent as set
out in full in this Code
GED\53027\371664 01
Section 3. Effective Date Pursuant to Section 5 11 of the Charter, this
ordinance shall be effective upon adoption
Section 4. Safety Clause. The City Council hereby finds, determines, and
declares that this Ordinance is promulgated under the general police power of the City
of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public
and that this Ordinance is necessary for the preservation of health and safety and for
the protection of public convenience and welfare The City Council further determines
that the Ordinance bears a rational relation to the proper legislative object sought to be
attained
Section 5. Severability: ConflictinQ Ordinances Repealed If any section,
subsection or clause of this ordinance shall be deemed to be unconstitutional or
otherwise invalid, the validity of the remaining sections, subsections and clauses shall
not be affected thereby All other ordinances or parts of ordinances in conflict with the
provisions of this ordinance are hereby repealed
INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to
o on this 26th day of February , 2001, ordered published in
full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing
and consideration on final passage set for March 19 , 2001, at 700
o'clock pm, in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge,
Colorado
READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by
a vote of 8 to 0 , this 19th day of March ,2001
SIGNED by the Mayor on this 20th day of
March
,2001
ATTEST ~
Qt~
Wanda Sang, City C~
--"I
GED\53027\371664.01
2
First Publication March 2, 2001
Second Publication March 23, 2001
Wheat Ridge Transcript
Effective Date March 19, 2001
GED\53027\371664 01
Wheat Ridge Code of Laws
Ordinance 1216, Series 2001
Exhibit 1
Cable Franchise Agreement
Between TCI Cablevision of Colorado, Inc.
And
City of Wheat Ridge
APPROVED ON SECOND READING
March 19,2001
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND EXHIBITS ..............
Page
............ ........... 1
GRANT
EFFECTIVE DATE AND TERM OF FRANCHISE
FRANCHISE NONEXCLUSIVE ..........
REGULATORY PARITY
No PRIORITY
POLICE POWERS ...........
GRANTEE RESERVATION OF RIGHTS
FAMILIARITY WITH FRANCHISE
EFFECT OF ACCEPTANCE .....
6
6
7
...8
8
.8
9
.9
.9
10
SECTION 2. GRANT OF FRANCHiSE........
2 1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
SECTION 3 FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS .............11
3.1
3.2
3.3
34
35
3 6
3.7
38
39
3 10
3 11
3 12
3 13
3 14
...... 11
.....11
11
12
......12
12
12
..12
123
13
13
.......13
14
14
FRANCHISE FEE .............
PAYMENTS ... ......... ..
ACCEPTANCE OF PAYMENT AND RECOMPUTATION
QUARTERLY FRANCHISE FEE REPORTS
ANNUAL FRANCHISE FEE REPORTS
AUDITS .....
LATE PAYMENTS.
UNDERPA YMENTS
ALTERNATIVE COMPENSATION ............ .
MAXIMUM LEGAL COMPENSATION ...... . .
ADDITIONAL COMMITMENTS NOT FRANCHISE FEE PAYMENTS .......
TAX liABILITY.. .........................
FINANCIAL RECORDS. .....................
PAYMENT ON TERMINATION .... . . ...................
SECTION 4. ADMINISTRATION AND REGULATION ................................ 14
4 1 AUTHORITY.. . . ........ . . 13
42 RATES AND CHARGES .................................. . 14
43 RATE DISCRIMINATION .......... ..14
44 FILING OF RATES AND CHARGES 15
45 CROSS SUBSIDIZATION . .......16
46 RESERVED AUTHORITY ......16
47 TIME liMITS STRICTLY CONSTRUED .. .. ....................... . 16
48 REGULATIONS PROMULGATED BY CITY COUNCIL .......................... .... 16
49 FRANCHISE MODIFICATION PROCEDURE ....... ................................. . 16
4.10 PERFORMANCE EVALUATIONS. 17
4 11 FORCE MAJEURE .... 17
INDEMNIFICATION
INSURANCE
18
18
19
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS ...
5 1
5 2
5 3
54
lETTER OF CREDIT
CONSTRUCTION BOND ......
21
......22
SECTION 6 CUSTOMER SERVICE STANDARDS................ ................. .....22
6 1 CUSTOMER SERVICE STANDARDS ............. ........... .............. .22
SECTION 7 REPORTS AND RECORDS....
7 1
7 2
7 3
74
7 5
7 6
77
78
OPEN RECORDS........
CONFIDENTIALITY
RECORDS REQUIRED
ANNUAL REPORTS
COPIES OF FEDERAL AND STATE REPORTS
COMPLAINT FILE AND REPORTS
FAILURE TO REPORT
FALSE STATEMENTS
SECTION 8. PROGRAMMING ....
8 1
8 2
83
84
8 5
86
87
BROAD PROGRAMMING CATEGORIES
DELETION OR REDUCTION OF BROAD PROGRAMMING CATEGORIES.
ASCERTAINMENT OF PROGRAMMING AND CUSTOMER SATiSFACTION.....
CENSORSHIP PROHIBITED
PARENTAL CONTROL DEVICE
CONTINUITY OF SERVICE MANDATORY..
CABLE BILL INSERTS
SECTION 9. ACCESS... .......... ............ .
9.1
9 2
93
94
95
9 6
97
9.8
99
9 10
9 11
CAPITAL CONTRIBUTION
INITIAL ACCESS CHANNELS
ADDITIONAL ACCESS CHANNELS
UNDERUTILlZED ACCESS CHANNELS
CHANGE IN TECHNOLOGY... .
MANAGEMENT AND CONTROL OF ACCESS CHANNELS....
ACCESS CHANNELS ON BASIC SERViCE....
ACCESS CHANNEL ASSIGNMENTS.
RELOCATION OF ACCESS CHANNELS
ACCESS INTERCONNECTION
RETURN LINES
10 1
SECTION 10. INSTITUTIONAL NETWORK ............
PRIVATE NETWORK.
SECTION 11. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
11 1
11 2
11.3
11.4
11 5
116
CONDITIONS OF RIGHTS-OF-WAY OCCUPANCY.
GIS MAPPING
HAZARDOUS SUBSTANCES ......
lOCATES .
NOTICE TO PRIVATE PROPERTY OWNERS
UNDERGROUND CONSTRUCTION AND USE OF POLES
-11-
. ....... 22
22
....23
23
.24
24
25
25
25
.......... 26
...... 26
.....26
27
27
.27
28
28
............28
28
29
...29
... 29
30
301
.31
. 31
.... 31
.. ..31
32
. ..32
.... .32
.......... 323
33
.34
34
34
35
35
11.7
11.8
11 9
11 10
11 11
11 12
11 13
11.14
11 15
11 16
11 17
11 18
11 19
1120
11 21
11 22
..36
.36
37
37
...............37
37
..38
..39
40
40
41
....41
41
42
42
42
UNDERGROUNDING OF MULTIPLE DWELLING UNIT DROPS..
BURIAL STANDARDS
ELECTRICAL BONDING
PREWIRING
REPAIR AND RESTORATION OF PROPERTY
USE OF CONDUITS BY THE CITY
COMMON USERS ....
ACQUISITION OF FACILITIES.
MOVEMENT OF CABLE SYSTEM FACILITIES FOR CITY PURPOSES ......
MOVEMENT OF CABLE SYSTEM FACILITIES FOR OTHER FRANCHISE HOLDERS
TREE TRIMMING
STOP WORK .....
WORK OF CONTRACTORS AND SUBCONTRACTORS
DISCONTINUING USE/REMOVAL OF FACILITIES.
COMPLIANCE WITH CODE OF LAWS
REIMBURSEMENT OF GRANTEE COSTS....
SECTION 12 CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND
TESTING 423
12 1
12 2
123
124
12 5
12.6
127
SUBSCRIBER NETWORK.. .
STATE OF THE ART
STANDBY POWER .....
EMERGENCY ALERT CAPABILITY
TECHNICAL PERFORMANCE....
CABLE SYSTEM PERFORMANCE TESTING
ADDITIONAL TESTS ............
.. 43
43
43
..44
44
44
46
SECTION 13. SERVICE EXTENSION, INTERCONNECTION AND SERVICE TO
PUBLIC BUILDINGS ....... ......... ............. .............. ............. . .......... 46
13 1
132
13 3
134
UNIVERSAL SERVICE
SERVICE AVAILABILITY... ............ ........ .
INTERCONNECTION WITH OTHER CABLE SYSTEMS
CONNECTION OF PUBLIC FACILITIES...
.46
.467
..... 49
.50
............ 50
50
........ 51
53
53
54
545
55
55
55
56
SECTION 14 FRANCHISE VIOLATIONS. ................ .
14 1
142
143
144
145
146
14.7
148
14.9
14 10
PROCEDURES FOR REMEDYING FRANCHISE VIOLATIONS
REVOCATION ........ ..
PROCEDURES IN THE EVENT OF TERMINATION OR REVOCATION
PURCHASE OF CABLE SYSTEM . ...........
RECEIVERSHIP AND FORECLOSURE .... .................... .
NO MONETARY RECOURSE AGAINST THE CITY
ALTERNATIVE REMEDIES
ASSESSMENT OF MONETARY DAMAGES
EFFECT OF ABANDONMENT
WHAT CONSTITUTES ABANDONMENT.
-111-
RENEWAL.... ., ... ..... ... ... ... ..,
TRANSFER AND CHANGE OF CONTROLS. ..
......... .... ...56
.. 56
56
SECTION 15 FRANCHISE RENEWAL AND TRANSFER .......
15 1
15.2
SECTION 16. MISCELLANEOUS PROVISIONS.. .,
16.1
162
163
164
165
166
16 7
168
169
16.10
16.11
16 12
COMPLIANCE WITH STATE AND FEDERAL LAWS ..
NOTICE ...... .......
NONDISCRIMINATION IN EMPLOYMENT.
COSTS TO BE BORNE BY GRANTEE . .
BINDING EFFECT.. ....
JURISDICTION.. .......................
NO JOINT VENTURE ...
WAIVER .. . .... ...
RELEASE AND WAIVER OF CLAIMS UNDER PRIOR FRANCHISE ..
ENTIRE AGREEMENT... ...........
SEVERABILITY
DESCRIPTIVE HEADINGS.
57
.57
.. 57
.58
..58
.59
.59
59
59
.. 59
. ..60
. 60
. ..60
Exhibit A. Members of the Greater Metro Telecommunications Consortium
Exhibit B. Customer Service Standards
Exhibit C. List of Equipment
-IV-
CABLE FRANCHISE AGREEMENT
This Franchise is entered into by and between the City of Wheat Ridge,
Colorado hereinafter referred to as "City" and TCI Cablevision of Colorado, Inc , a
Colorado corporation, hereinafter referred to as the "Grantee."
SECTION 1. DEFINITIONS
For the purpose of this Franchise, the following terms, phrases, words and
their derivations shall have the meanings 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, and words in the singular number include the
plural number. The word "shall" is mandatory, and "may" is permissive. Words
not defined shall be given their common and ordinary meaning
1 . 1 "Access" means the availability for noncommercial use by various
agencies, institutions, organizations, groups and individuals in the community,
including the City and its designees, of the Cable System to acquire, create,
receive, and distribute video Cable Services and other services and signals as
permitted under applicable law including, but not limited to'
(A) "Public Access" means Access where community-based,
noncommercial organizations, groups or Individual members of the general public,
on a nondiscriminatory basis, are the primary users.
(B) "Educational Access" means Access where schools are the
primary users having editorial control over programming and services. For purposes
of this definition, "school" means any state-accredited educational institution,
public or private, including, for example, primary and secondary schools, colleges
and universities.
(C) "Government Access" means Access where governmental
institutions or their designees are the primary users having editorial control over
programming and services.
1.2 "Affiliate," when used in connection with Grantee, means any Person
who owns or controls, is owned or controlled by, or is under common ownership or
control with, Grantee, or its successor corporations.
1.3 "Basic Service" means the lowest priced Tier of Cable Service that
includes local broadcast stations.
1 4 "Cable Act" means the Cable Communications Policy Act of 1984 as
amended by the Cable Television Consumer Protection and Competition Act of
1992 and the Telecommunications Act of 1996, and including regulations
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promulgated pursuant to such Act and as it may be amended, and any future
federal cable television laws, acts or regulations.
1.5 "Cable Internet Service" means any Cable Service offered by Grantee
whereby Persons receive access to the Internet through the Cable System.
1.6 "Cable Operator" means any Person or groups of Persons, including
Grantee, who provide(s) Cable Service over the Cable System and directly or
through one or more Affiliates owns a significant Interest in such Cable System or
who otherwise control(s) or is (are) responsible for, through any arrangement, the
management and operation of the Cable System.
1.7 "Cable Service" means the one-way transmission to Subscribers of
video programming or other programming service, and Subscriber interaction, if
any, which is required for the selection or use of such video programming or other
programming service. To the extent consistent with applicable law, Cable Service
shall include Cable Internet Service and other interactive services such as, but not
limited to, game Channels, information services and enhanced services made
available to Subscribers by the Grantee
1.8 "Cable System" means Grantee's facility, consisting of a set of closed
transmissions paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within a community,
but such term does not Include (A) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (B) a facility that
serves Subscribers without using any Rights-of-Way; (C) a facility of a common
carrier which IS subject, in whole or in part, to the provisions of Title II of the
federal Communications Act (47 U.S.C. 201 et seq.), except that such facility
shall be considered a Cable System (other than for purposes of Section 621 (c) (47
U S C. 541 (c)) to the extent such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand services, (D) an open video system that complies
with federal statutes; or (E) any facilities of any electric utility used solely for
operating its electric utility systems.
1.9 "Channel" means a portion of the electromagnetic frequency spectrum
which is used in the Cable System and which is capable of delivering a television
channel (as television channel is defined by the FCC by regulation)
1 10 "City" means the City of Wheat Ridge, a Colorado municipal
corporation
1.11 "City Attorney" means the chief legal officer of the City of Wheat
Ridge, Colorado.
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1 12 "City Council or Council" means the present governing body of the
City or any successor to the legislative powers of the present City Council
1.13 "City Manager" means the chief administrative officer of the City of
Wheat Ridge, Colorado, or his or her designee.
1.14 "Commercial Subscribers" means any Subscribers other than
Residential Subscribers.
1.15 "Downstream" means carrying a transmission from the Headend to
remote points on the Cable System or to Interconnection points on the Cable
System.
1.16 "Dwelling Unit" means any building, or portion thereof, that has
independent living facilities, including provisions for cooking, sanitation and
sleeping, and that is designed for residential occupancy. Buildings with more than
one set of facilities for cooking shall be considered Multiple Dwelling Units unless
the additional facilities are clearly accessory.
1.17 "Expanded Basic Service" means the Tier of optional
programming services, which is the level of Cable Service received by
Subscribers above Basic Service, and does not include Premium Services.
video
most
1 .18 "FCC" means the Federal Communications Commission of the United
States Government or its lawful successor.
1 .19 "Fiber Optic" means a transmission medium of optical fiber cable,
along with all associated electronics and equipment, capable of carrying Cable
Service or Institutional Network service by means of electric lightwave Impulses.
1.20 "Franchise" means this document, which grants nonexclusive rights
pursuant to the Wheat Ridge City Charter to construct and operate the Cable
System in the Rights-of-Way.
1.21
of the City,
Franchise.
"Franchise Area" means the area within the jurisdictional boundaries
including any areas annexed by the City during the term of this
1.22 "GAAP" means generally accepted accounting principles.
1.23 "Greater Metro Telecommunications Consortium" or "GMTC" means a
Colorado agency, formed by intergovernmental agreement between franchising
authorities in the greater Denver metropolitan area to communicate with regard to
franchising matters collectively and cooperatively. The official list of members of
the GMTC is contained in Exhibit A, which Exhibit the City may update from time
-3-
to time at its sole discretion as additional franchlsmg authorities join, or separate
from, the GMTC.
1.24 "Gross Revenues" means any and all revenue received by the Grantee,
or by any other entity that IS a Cable Operator of the Cable System including
Grantee's Affiliates, from the operation of the Cable System to provide Cable
Services. Gross Revenues include, by way of illustration and not limitation,
monthly fees charged Subscribers for BasIc Service; any expanded Tiers of Cable
Service; optional Premium Services, installation, disconnection, reconnection and
change-in-service fees; Leased Access Channel fees; all Cable Service lease
payments from the Cable System; late fees and administrative fees; fees, payments
or other consideration received by the Grantee from programmers for carriage of
programming on the Cable System and accounted for as revenue under GAAP;
revenues from rentals of converters, remote controls or other Cable System
equipment used to receive Cable Service, revenues from the sale of Cable System
equipment used to provide Cable Service that is not available from retail outlets;
advertising revenues; the fair market value of consideration received by the Grantee
for use of the Cable System to provide Cable Service and accounted for as revenue
under GAAP; revenues from program guides, revenue from data transmissions to
the extent these transmissions are considered Cable Services under federal law,
additional outlet fees; revenue from Cable Internet Service to the extent thiS service
is considered a Cable Service under federal law; franchise fees; revenue from
interactive services to the extent they are considered Cable Services under federal
law; revenue from the sale or carriage of other Cable Services on the Cable
System; and revenue from home shopping, bank-at-home Channels and other
revenue-sharing arrangements. Gross Revenues shall include revenue received by
any entity other than the Grantee where necessary to prevent evasion or avoidance
of the obligation under this Franchise to pay the franchise fees. Gross Revenues
shall not include (i) to the extent consistent With GAAP, Bad Debt; provided,
however, that all or part of any such Bad Debt that is written off but subsequently
collected shall be included in Gross Revenues in the period collected, (ii) the Capital
Contnbutions specified in subsections 9.1 and 9 2; or (iii) any taxes on services
furnished by the Grantee which are imposed directly on any Subscriber or user by
the State, City or other governmental unit and which are collected by the Grantee
on behalf of said governmental unit. The franchise fee is not such a tax.
The parties intend for the definition of Gross Revenues to be as inclusive as
possible consistent with existing applicable law. If there is a change in federal law
subsequent to the Effective Date of this Franchise, such change shall not impact
this Gross Revenues definition unless the change specifically preempts the affected
portion of the definition above.
1.25 "Headend" means any facility for signal reception and dissemination
on a Cable System, including cables, antennas, wires, satellite dishes, monitors,
sWltchers, modulators, processors for broadcast signals, equipment for the
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Interconnection of the Cable System with adjacent cable systems and
Interconnection of any networks which are part of the Cable System, and all other
related equipment and facilities.
1 26 "Hub" means an Intermediary exchange point In the signal distribution
portion of the Cable System, located between the Headend and the Nodes.
1.27 "Institutional Network" or "I-Net" means that part of the Cable System
facilities or capacity designed principally for connecting public facilities and
organizations within the Franchise Area as may be described in greater detail in this
Franchise. The I-Net is a private communications network governed by this
Franchise and the Cable Act, and may not be used to provide Telecommunications
Services unless by separate agreement between the City and Grantee. Qualified
users of the I-Net shall not be permitted to resell I-Net capability. Nothing in this
definition prevents the Institutional Network from being used to send
communications to or receive communications from Subscribers or the general
public, by remote terminals or otherwise including, by way of example and not
limitation, through connections between the Institutional Network and the
Subscriber Network.
1.28 "Interconnect" or "Interconnection" means the linking of the Cable
System or I-Net with another cable system, communications system or I-Net,
including technical, engineering, physical, financial and other necessary
components to accomplish, complete and adequately maintain such linking, in a
manner that permits the transmission and receiving of electronic or optical signals
between the Cable System and another cable system, communications system or 1-
Net; or the necessary components to accomplish, complete and adequately
maintain pathways that permit the transmission and receiving of electronic or
optical signals between locations connected to portions of the Cable System
outside the Franchise Area and those portions of the Cable System inside the
Franchise Area
1 29 "Leased Access Channel" means any Channel or portion of a Channel
commercially available for video programming by Persons other than Grantee, for a
fee or charge.
1.30 "Node" means an exchange point in the signal distribution system
portion of the Cable System where optical signals are converted to RF signals.
1.31 "Person" means any individual, sole proprietorship, partnership,
association, or corporation, or any other form of entity or organization.
1.32 "Premium Service" means programming choices (such as movie
Channels, pay-per-view programs, or video on demand) offered to Subscribers on a
per-Channel, per-program or per-event basis
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1.33 "Residential Subscriber" means any Person who receives Cable
Service delivered to Dwelling Units or Multiple Dwelling Units, excluding such
Multiple Dwelling Units billed on a bulk-billing basis.
1 .34 "Rights-of-Way" means each of the following which have been
dedicated to the public or are hereafter dedicated to the public and maintained
under public authority or by others and located within the City. streets, roadways,
highways, avenues, lanes, alleys, bridges, sidewalks, easements, rights-of-way and
similar public property and areas
1 35 "State" means the State of Colorado
1.36 "Subscriber" means any Person who or which elects to subscribe to,
for any purpose, Cable Service provided by Grantee by means of or in
connection with the Cable System and whose premises are physically wired and
lawfully Activated to receive Cable Service from the Cable System.
1.37 "Subscriber Network" means that portion of the Cable System used
primarily by Grantee in the transmission of Cable Services to Residential
Subscribers.
1.38 "Telecommunications" means the transmission, between or among
pOints speCified by the user, of information of the user's choosing, without change
in the form or content of the information as sent and received (as provided in 47
U.S.C Section 153(43)).
1.39 "Telecommunications Service" means the offering of
Telecommunications for a fee directly to the public, or to such classes of users as
to be effectively available directly to the public, regardless of the facilities used (as
provided in 47 U.S.C. Section 153(46)).
1.40 "Tier" means a group of Channels for which a single periodic
subscription fee is charged.
1 41 "Two-Way" means that the Cable System is capable of providing both
Upstream and Downstream transmissions.
1.42 "Upstream" means carrying a transmiSSion to the Headend from
remote points on the Cable System or from Interconnection points on the Cable
System
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to
make reasonable and lawful use of the Rights-of-Way within the City to construct,
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operate, maintain, reconstruct, rebuild and upgrade the Cable System for the
purpose of providing Cable Service subject to the terms and conditions set forth in
this Franchise and in any prior utility or use agreements entered into with regard to
any individual property. This Franchise shall constitute both a right and an
obligation to provide the Cable Services and fulfill the obligations set forth herein.
(B) Nothing in this Franchise shall be deemed to waive the lawful
requirements of any generally applicable City ordinance.
(C) Each and every term, provision or condition herein is subject to the
provisions of State law, federal law, the Charter of the City of Wheat Ridge, and
the ordinances and regulations enacted pursuant thereto The Charter and City
Code of the City of Wheat Ridge, as the same may be amended from time to time,
are hereby expressly incorporated into this Franchise as if fully set out herein by
this reference. Notwithstanding the foregoing, the City may not unilaterally alter
the material rights and obligations of Grantee under this Franchise.
(D) This Franchise shall not be interpreted to prevent the City from
imposing additional lawful conditions, including additional compensation conditions
for use of the Rights-of-Way, should Grantee provide service other than Cable
Service.
(E) Grantee promises and guarantees, as a condition of exercIsing the
privileges granted by this Franchise, that any Affiliate of the Grantee directly
involved in the offering of Cable Service in the Franchise Area, or directly involved
in the management or operation of the Cable System in the Franchise Area, will
also comply with the terms and conditions of this Franchise
(F) No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Franchise shall not include or
be a substitute for.
(1) Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that may be required
by the ordinances and laws of the City;
(2) Any permit, agreement, or authorization required by the City for
Rights-of-Way users in connection with operations on or in Rights-of-Way or
public property including, by way of example and not limitation, street cut
permits; or
(3) Any permits or agreements for occupying any other property of
the City or private entities to which access is not specifically granted by this
Franchise including, without limitation, permits and agreements for placing
devices on poles, in conduits or in or on other structures.
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(G) This Franchise is intended to convey limited rights and interests only
as to those Rights-of-Way in which the City has an actual Interest. It is not a
warranty of title or interest in any Rights-of-Way; it does not provide the Grantee
with any interest in any particular location within the Rights-of-Way; and it does
not confer rights other than as expressly provided In the grant hereof.
(H) This Franchise does not authorize Grantee to provide
Telecommunications Service, or to construct, operate or maintain
Telecommunications facilities This Franchise is not a bar to imposition of any
lawful conditions on Grantee with respect to Telecommunications Service, whether
similar, different or the same as the conditions specified herein This Franchise
does not relieve Grantee of any obligation it may have to obtain from the City an
authorization to provide Telecommunications Services, or to construct, operate or
maintain Telecommunications facilities, or relieve Grantee of its obligation to
comply with any such authorizations that may be lawfully required.
(I) Grantee, through this Franchise, is granted extensive and valuable
rights to operate its Cable System for profit using the Rights-of-Way in compliance
with all applicable City construction codes and procedures. As trustee for the
public, the City is entitled to fair compensation to be paid for these valuable rights
throughout the term of the Franchise.
2.2 Effective Date and Term of Franchise
(A) This Franchise and the rights, privileges and authority granted
hereunder shall take effect on April 1, 2001 (the "Effective Date"), and shall
terminate on April 1, 2013, unless terminated sooner or extended as hereinafter
provided.
(8) The grant of this Franchise shall have no effect on the Grantee's duty
under the prior franchise agreement or any ordinance in effect prior to the Effective
Date of this Franchise to indemnify or insure the City against acts and omissions
occurring during the period that the prior franchise agreement was in effect.
2.3 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests,
easements or licenses granted by the City to any Person to use any property,
Rights-of-Way, right, interest or license for any purpose whatsoever, including the
right of the City to use same for any purpose it deems fit, including the same or
similar purposes allowed Grantee hereunder. The City may at any time grant
authorization to any Person to use the Rights-of-Way for any purpose not in conflict
with Grantee's authority under thiS Franchise and for such additional franchises for
cable systems as the City deems appropriate
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2.4 Regulatory Parity
(A) In the event that the City enters Into a franchise agreement with
another cable operator which authorizes the operation of a cable system within part
or all of the Franchise Area for the provision of video programming and/or Cable
Service, and such franchise agreement includes more favorable or less burdensome
provisions applicable to that company as compared to this Franchise, the City shall,
upon Grantee's written request, amend this Franchise to incorporate such more
favorable or less burdensome provisions and make such additional changes as is
necessary to have comparable cable franchises.
(B) In filing its request, Grantee shall identify the basis for Grantee's
belIef, along with adequate evidence to support its request, that certain provisions
of this Franchise place the Company at a competitive disadvantage and shall also
furnish the City with a detailed list of the provisions of this Franchise from which
the Grantee seeks relief in order to eliminate the competitive disadvantage.
(C) If the City denies Grantee's request in whole or in part, the City shall
advise Grantee in writing with detailed reasons for the denial.
2.5 No Priority
This Franchise Agreement does not establish any priority for the use of the
Rights-of-Way by Grantee or by any present or future recipients of franchise
agreements, franchisees or other permit holders. In the event of any dispute as to
the priority of use of the Public Ways, the first priority shall be to the public
generally, the second priority to City, the third priority to the State of Colorado and
its political subdivisions in the performance of their various functions, and
thereafter, as between recipients of franchise agreements, franchisees and other
permit holders, as determined by City in the exercise of its powers, including the
police power and other powers reserved to and conferred on it by the State of
Colorado.
2.6 Police Powers
(A) Grantee's rights hereunder are subject to the police powers of the City
to adopt and enforce ordinances necessary to the safety, health, and welfare of the
public, and Grantee agrees to comply with all laws and ordinances of general
applicability enacted, or hereafter enacted, by the City or any other legally
constituted governmental unit having lawful jurisdiction over the subject matter
hereof
(B) The City shall have the right to adopt, from time to time, such
ordinances as may be deemed necessary in the exercise of its police power;
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provided that such ordinances shall be reasonable and not destructive of the rights
granted in this Franchise.
(C) The City reserves the right to exercise its police powers,
notwithstanding anything In this Franchise to the contrary, and any conflict
between the provisions of this Franchise and any other present or future lawful
exercise of the City's police powers shall be resolved in favor of the latter.
(D) Nothing in this Franchise or in any agreement or ordinance in
accordance herewith shall be construed as an abrogation by the City of any of its
police powers
2.7 Grantee Reservation of Rights
By acceptance of this Franchise and agreement to comply with the
proviSions herein, Grantee does not waive and specifically retains the right to
challenge any future local ordinance, law, rule, or regulation, or future amendment
thereto, including provisions of the City Code and City Charter, if Grantee believes
that the local requirement: (A) is not an exercise of the City's lawful police powers,
or (B) is not in compliance with State or federal laws, or (C) negatively impacts
Grantee's contractual rights granted by this Franchise, or (D) is unlawfully
discriminatory against Grantee.
2.8 Familiarity with Franchise
The Grantee acknowledges and warrants by acceptance of the rights,
privileges and agreements granted herein, that it has carefully read and fully
comprehends the terms and conditions of this Franchise and is willing to and does
accept all lawful and reasonable risks of the meaning of the provisions, terms and
conditions herein. The Grantee further acknowledges and states that it has fully
studied and considered the requirements of this Franchise, and finds that the same
are commercially practicable at this time
2.9 Effect of Acceptance
By accepting the Franchise, the Grantee (A) acknowledges and accepts the
City's legal right to issue and enforce the Franchise, (B) accepts and agrees to
comply with each and every proviSion of this Franchise subject to applicable law;
(C) agrees that the Franchise was granted pursuant to processes and procedures
consistent with applicable law, and that it will not raise any claim to the contrary,
and (D) covenants and agrees that, it will not at any time or in any manner or
proceeding set up against the City any claim or proceeding, based on applicable
laws as of the Effective Date of this Franchise, challenging this Franchise in its
entirety as being unreasonable, arbitrary, voidable or void.
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Section 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS
3.1 Franchise Fee
(A) As compensation for the benefits and privileges granted under this
Franchise and in consideration of permission to use the City's Rights-of-Way,
Grantee shall pay as a franchise fee to the City, throughout the duration of this
Franchise, an amount equal to five percent (5%) of Grantee's Gross Revenues.
Accrual of such franchise fee shall commence as of the Effective Date of this
Franchise.
(B) The City recognizes that, in the future, Grantee may allocate revenue
between Cable Services (which are subject to the Franchise Fee) and non-Cable
Services (which are not subject to the Franchise Fee but may be subject to other
fees and/or taxes), when these two types of service are bundled together in a
discounted package offered to Subscribers. Due to the ambiguities that currently
exist both in the business and regulatory environment on this issue, the City and
the Grantee hereby reserve all rights, claims, defenses and remedies regarding the
City's authority to impose and/or enforce requirements related to the revenue
allocation methodology to be used when Cable Services and non-Cable Services are
offered to Subscribers in a discounted package, for the purpose of calculating
Franchise Fee payments.
(C) In the event that the City believes that Grantee has unlawfully or
unfairly allocated revenue between Cable Services and non-Cable Services for the
purpose of calculating Franchise Fee payments, the City and the Grantee shall meet
upon advance notice from the City to discuss the allocation methodology. If the
City and the Grantee cannot agree on the matter within a reasonable period of
time, the City and Grantee shall submit the matter to a mutually-agreeable third
party for mediation. The cost of the mediation shall be shared equally between the
City and the Grantee. If the mediation is unsuccessful or if the City and the
Grantee are unable to mutually agree on a mediator, then either the City or the
Grantee can bring the matter to a court of competent jurisdiction, or pursue any
other remedies available to them in this Franchise or by law.
3.2
Payments
Grantee's franchise fee payments to the City shall be computed quarterly for
the preceding calendar quarter ending March 31, June 30, September 30, and
December 31 Each quarterly payment shall be due and payable no later than thirty
(30) days after said dates.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City
that the amount paid is, in fact, the correct amount, nor shall any acceptance of
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payments be construed as a release of any claim the City may have for further or
additional sums payable or for the performance of any other obligation of Grantee.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to the City, verified
by an authorized representative of Grantee, containing an accurate statement In
summarized form, as well as in detail, of Grantee's Gross Revenues and the
computation of the payment amount. Such reports shall detail all Gross Revenues
of the Cable System in the Franchise Area and shall be drafted in accordance with
GAAP
3.5 Annual Franchise Fee Reports
Grantee shall, within sixty (60) days after the end of each year, furnish to
the City a statement stating the total amount of Gross Revenues for the year and
all payments, deductions and computations for the period. Such statement shall be
audited by a certified public accountant, who may also be the chief financial officer
or controller of Grantee, prior to submission to the City.
3.6 Audits
On an annual basis, upon thirty (30) days prior written notice, the City shall
have the right to conduct an independent audit of Grantee's records reasonably
related to the administration or enforcement of this Franchise, in accordance with
GAAP. If the audit shows that franchise fee payments have been underpaid by five
percent (5%) or more, Grantee shall pay the total cost of the audit. The City's
right to audit and the Grantee's obligation to retain records related to a franchise
fee audit shall expire three (3) years after each franchise fee payment has been
made to the City.
3.7 Late Payments
In the event any payment due quarterly is not received within thirty
(30) days from the end of the calendar quarter, Grantee shall pay interest on the
amount due (at the prime rate as listed in the Wall Street Journal on the date the
payment was due), compounded daily, calculated from the date the payment was
originally due until the date the City receives the payment.
3.8 Underpayments
If a net franchise fee underpayment is discovered as the result of an audit,
Grantee shall pay interest at the rate of eight percent (8%) per annum,
compounded quarterly, calculated from the date each portion of the underpayment
was originally due until the date Grantee remits the underpayment to the City
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3.9 Alternative Compensation
In the event the obligation of Grantee to compensate the City through
franchise fee payments is lawfully suspended or eliminated, in whole or part, then
Grantee shall pay to the City compensation eqUivalent to the compensation paid to
the City by other similarly situated users of the Rights-of-Way for Grantee's use of
the Rights-of-Way, provided that in no event shall such payments exceed the
equivalent of five percent (5%) of Grantee's Gross Revenues (subject to the other
provisions contained in this Franchise)
3.10 Maximum Legal Compensation
The parties acknowledge that, at present, applicable federal law limits the
City to collection of a maximum permissible franchise fee of five percent (5 %) of
Gross Revenues. In the event that at any time during the duration of this
Franchise, the City is authorized to collect an amount in excess of five percent
(5 %) of Gross Revenues, then this Franchise may be amended unilaterally by the
City to provide that such excess amount shall be added to the franchise fee
payments to be paid by Grantee to the City hereunder, up to a maximum of the
new federal limit or seven percent (7%), whichever is less, after holding a public
hearing on the matter. The increase will be effective ninety (90) days following
Grantee's receipt of written notice from the City of such amendment.
3.11 Additional Commitments Not Franchise Fee Payments
No term or condition in this Franchise, including the funding required by
Section 9, shall in any way modify or affect Grantee's obligation to pay franchise
fees. Although the total sum of franchise fee payments and additional
commitments set forth elsewhere in this Franchise may total more than five
percent (5 %) of Grantee's Gross Revenues in any twelve (12) month period,
Grantee agrees that the additional commitments herein are not franchise fees as
defined under any federal law, nor are they to be offset or credited against any
franchise fee payments due to the City, nor do they represent an increase in
franchise fees to be passed through to Subscribers pursuant to any federal law.
3.12 Tax Liability
The franchise fees shall be in addition to any and all taxes or other levies or
assessments which are now or hereafter required to be paid by businesses in
general by any law of the City, the State or the United States including, without
limitation, sales, use and other taxes, business license fees or other payments.
Payment of the franchise fees under this Franchise shall not exempt Grantee from
the payment of any other license fee, permit fee, tax or charge on the business,
occupation, property or income of Grantee that may be lawfully imposed by the
City. Any other license fees, taxes or charges shall be of general applicability in
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--
nature and shall not be levied against Grantee solely because of its status as a
Cable Operator, or against Subscribers, solely because of their status as such.
3.13 Financial Records
Grantee agrees to meet with a representative of the City upon request to
review Grantee's methodology of record-keeping, financial reporting, the computing
of franchise fee obligations and other procedures, the understanding of which the
City deems necessary for reviewing reports and records.
3.14 Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with the
City within ninety (90) calendar days of the date of the termination, a financial
statement, certified by an independent certified public accountant, showing the
Gross Revenues received by the Grantee since the end of the previous fiscal year.
The City reserves the right to satisfy any remaining financial obligations of the
Grantee to the City by utilizing the funds available in the letter of credit or other
security provided by the Grantee.
SECTION 4. ADMINISTRATION AND REGULATION
4.1
Authority
(A) The City shall be vested with the power and right to reasonably
regulate the exercise of the privileges permitted by this Franchise in the public
Interest, or to delegate that power and right, or any part thereof. to the extent
permitted under State and local law, to any agent including, but not limited to, the
GMTC, in its sole discretion.
(8) Nothing in this Franchise shall limit nor expand the City's right of
eminent domain under State law.
4.2
Rates and Charges
All of Grantee's rates and charges related to or regarding Cable Services shall
be subject to regulation by the City to the full extent authorized by applicable
federal, state and local laws.
4.3 Rate Discrimination
All of Grantee's rates and charges shall be published (in the form of a
publicly-available rate card) and be non-discriminatory as to all Persons and
organizations of similar classes, under similar circumstances and conditions.
Grantee shall apply its rates in accordance with governing law, with identical rates
and charges for all Subscribers receiving identical Cable Services, without regard to
race, color, ethnic or national origin, religion, age, sex, sexual orientation, marital,
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military or economic status, or physical or mental disability or geographic location
within the City Grantee shall offer the same Cable Services to all Residential
Subscribers at Identical rates and to Multiple Dwelling Unit Subscribers as
authorized by FCC rules. Grantee shall permit Subscribers to make any lawful in-
residence connections the Subscriber chooses without additional charge nor
penalizing the Subscriber therefor.
However, if any in-home connection requires service from Grantee due to
signal quality, signal leakage or other factors, caused by improper installation of
such in-home wiring or faulty materials of such in-home wiring, the Subscriber may
be charged reasonable service charges by Grantee. Nothing herein shall be
construed to prohibit.
(A) The temporary reduction or waiving of rates or charges in conjunction
with valid promotional campaigns; or
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or
(C) The offering of rate discounts for Cable Service; or
(D) The Grantee from establishing different and nondiscriminatory rates
and charges and classes of service for Commercial Subscribers, as allowable by
federal law and regulations.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file
with the City a complete schedule of applicable rates and charges for Cable
Services provided under this Franchise. Nothing in this paragraph shall be
construed to require Grantee to file rates and charges under temporary reductions
or waivers of rates and charges in conjunction with promotional campaigns. As
used in this paragraph, no rate or charge shall be considered temporary if
Subscribers have the ability over a period greater than four (4) consecutive months
(or such other period as may be approved by the City) to purchase Cable Services
at such rate or charge.
(B) Upon request of the City, Grantee shall provide a complete schedule of
current rates and charges for any and all Leased Access Channels, or portions of
such Channels, provided by Grantee. The schedule shall include a description of
the price, terms, and conditions established by Grantee for Leased Access
Channels
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4.5 Cross Subsidization
Grantee shall comply with all applicable laws regarding rates for Cable
Services and all applicable laws covering issues of cross SUbsidization.
4.6 Reserved Authority
The City reserves all regulatory authority arising from the Cable Act and any
other relevant provisions of federal, State, or local law. The City reserves such
rights and powers which, under applicable federal or State law or regulations, the
City must reserve and maintain. The Grantee shall comply with any action or
requirements of the City in the exercise of such rights and powers which either
have been or shall, subsequent to the grant of this Franchise, be enacted or
established.
4.7 Time limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by
Grantee, such time shall be deemed to be of the essence, and any failure of
Grantee to perform within the allotted time may be considered a material breach of
this Franchise, and sufficient grounds for the City to invoke any relevant remedy.
4.8 Regulations Promulgated by City Council
(A) In addition to the powers held by the City under the Colorado
Constitution and the City Charter, the City Council is hereby authorized to
promulgate by ordinance, in the exercise of its lawful powers, such additional
regulations as it shall find necessary to effectuate fully the construction and
operation of the Cable System pursuant to this Franchise; provided that such
additional regulations shall be consistent with the terms and conditions of this
Franchise and shall not expand the obligations of the Grantee, nor limit the
Grantee's benefits, as provided in this Franchise.
(B) The Grantee may propose additional regulations by application to the
City Council, but the City Council shall not adopt any such proposal unless it
expressly determines that such proposal is consistent with the terms and
conditions of this Franchise
4.9 Franchise Modification Procedure
Either party may at any time seek an amendment of this Franchise by so
notifying the other party in writing Within thirty (30) days of receipt of notice, the
City Manager and Grantee shall meet to discuss the proposed amendment(s). If
the parties reach a mutual agreement upon the suggested amendment(s), such
amendment(s) shall be submitted to the City Council for approval. If so approved
by the City Council and the Grantee, then such amendment(s) shall be deemed part
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of this Franchise
amendment.
If mutual agreement IS not reached, there shall be no
4.10 Performance Evaluations
(A) The City may hold performance evaluation sessions within thirty
(30) days of the biennial anniversary dates of the Effective Date of this Franchise.
All such evaluation sessions shall be conducted by the City.
(8) Special evaluation sessions may be held at any time by the City during
the term of this Franchise.
(C) All regular evaluation sessions shall be open to the public and
announced at least two (2) weeks in advance in a newspaper of general circulation
in the City. Grantee shall also include with or on the Subscriber billing statements
for the billing period immediately preceding the commencement of the session,
written notification of the date, time, and place of the regular performance
evaluation session, and any special evaluation session as required by the City,
provided Grantee receives appropriate advance notice.
(D) Topics which may be discussed at any evaluation session may include,
but are not limited to, Cable Service rate structures; franchise fee payments;
liquidated damages; free or discounted Cable Services; application of new
technologies; Cable System performance; Cable Services provided; programming
offered; Subscriber complaints; privacy; modifications to this Franchise; judicial and
FCC rulings; line extension policies; and the City or Grantee's rules; provided that
nothing in this subsection shall be construed as requiring the renegotiation of this
Franchise.
(E) During evaluations under this subsection, Grantee shall fully cooperate
with the City and shall provide such information and documents as the City may
reasonably require to perform the evaluation.
4.11 Force Majeure
(A) In the event Grantee is prevented or delayed in the performance of any
of its obligations under this Franchise by reason beyond the control of Grantee,
Grantee shall have a reasonable time, under the circumstances, to perform the
affected obligation under this Franchise or to procure a substitute for such
obligation which is satisfactory to the City. Those conditions which are not within
the control of Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or unusual
weather conditions which have a direct and substantial impact on the Grantee's
ability to provide Cable Services in the City and which was not caused and could
not have been avoided by the Grantee which used its best efforts in its operations
to avoid such results
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(B) If Grantee believes that a reason beyond its control has prevented or
delayed its compliance with the terms of this Franchise, Grantee shall, prior to the
deadline for compliance, provide documentation as reasonably required by the City
to substantiate the Grantee's claim. If Grantee has not yet cured the deficiency,
Grantee shall also provide the City with its proposed plan for remediation, including
the timing for such cure.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the
City, its officers, officials, boards, commissions, agents and employees, harmless
from any action or claim for injury, damage, loss, liability, cost or expense,
including court and appeal costs and attorneys' fees or expenses, arising from any
casualty or accident to Person or property, including, without limitation, copyright
infringement, defamation, and all other damages in any way arising out of, or by
reason of, any construction, excavation, operation, maintenance, reconstruction, or
any other act done under this Franchise, by or for Grantee, its agents, or its
employees, or by reason of any neglect or act or omission of Grantee. Grantee
shall consult and cooperate with the City while conducting its defense of the City.
(B) Indemnification for Relocation. Grantee shall indemnify the City for
any damages, claims, additional costs or expenses assessed against, or payable by,
the City arising out of, or resulting from, directly or indirectly, Grantee's failure to
remove, adjust or relocate any of its facilities in the Rights-of-Way in a timely
manner in accordance with any relocation required by the City.
(C) Additional Circumstances. Grantee shall also indemnify, defend and
hold the City harmless for any claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and attorneys' fees or expenses in any
way arising out of:
(1) The lawful actions of the City in granting this Franchise to the
extent such actions are consistent with this Franchise and applicable law,
(2) Damages arising out of any failure by Grantee to secure
consents from the owners, authorized distributors, or licensees/licensors of
programs to be delivered by the Cable System, whether or not any act or
omission complained of is authorized, allowed or prohibited by this Franchise.
(3) Any claims, costs, and expenses, of any kind, whether direct or
indirect, incurred by the City arising out of a release of hazardous substances
caused by the Cable System.
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(D) Procedures and Defense If a claim or action arises, the City or any
other indemnified party shall promptly tender the defense of the claim to Grantee,
which defense shall be at Grantee's expense. The City may participate in the
defense of a claim and, in any event, Grantee may not agree to any settlement of
claims affecting the City without the City's approval.
(E) Non-waiver. The fact that Grantee carries out any activities under this
Franchise through independent contractors shall not constitute an avoidance of or
defense to Grantee's duty of defense and indemnification under this subsection.
(F) Expenses. If separate representation to fully protect the interests of
both parties is necessary, such as a conflict of interest between the City and the
counsel selected by Grantee to represent the City, Grantee shall pay all expenses
incurred by the City in defending itself with regard to any action, suit or proceeding
indemnified by Grantee. The City's expenses shall include all out-of-pocket
expenses, such as consultants' fees and outside attorneys' fees, and shall also
include the reasonable value of any services rendered by the City Attorney or
his/her assistants or any employees of the City or its agents
(G) Nothing herein shall be deemed to prevent the City from cooperating
with the Grantee and participating in the defense of any litigation naming the City
by its own counsel at its sole cost and expense. No recovery by the City of any
sum by reason of the letter of credit or bond as required in subsections 5.3 and 5.4
of this Franchise shall be any limitation upon the liability of the Grantee to the City
under the terms of this subsection
5.2 Insurance
(A) Grantee shall maintain In full force and effect at its own cost and
expense each of the following policies of insurance on a continuous uninterrupted
basis, in at least the amounts required, for the duration of this Franchise and, in the
case of the Commercial General Liability, for at least one (1) year after expiration of
this Franchise:
(1) Commercial General Liability insurance with limits of no less
than one million dollars ($1,000,000.00) per occurrence and one million
dollars ($1,000,000 00) general aggregate Coverage shall be at least as
broad as that provided by ISO CG 00 01 1/96 or its equivalent and include
severability of interests. Such insurance shall name the City, its officers,
officials and employees as additional insureds per ISO CG 2026 or its
equivalent There shall be a waiver of subrogation and rights of recovery
against the City, its officers, officials and employees. Coverage shall apply
as to claims between insureds on the policy, if applicable
(2)
combined
Commercial
single limits
Automobile Liability insurance with minimum
of one million dollars ($1,000,00000) each
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occurrence and one million dollars($1 ,000,000.00) aggregate with respect to
each of Grantee's owned, hired and non-owned vehicles assigned to or used
in the operation of the Cable System in the City. The policy shall contain a
severability of interests provision.
(3) Employer's Liability. One million dollars ($1,000,000.00).
(B) Each policy shall provide that the insurance shall not be canceled,
modified, amended, coverage reduced or materially changed so as to be out of
compliance with these requirements without thirty (30) days' written notice first
provided to the City, via certified mail, and ten (10) days' notice for nonpayment of
premium. If the insurance is canceled or materially altered so as to be out of
compliance with the requirements of this subsection within the term of this
Franchise, Grantee shall provide a replacement policy.
(C) Any deductible of the policies shall not In any way limit Grantee's
liability to the City.
(0) Endorsements. All policies shall contain, or shall be endorsed so that.
(1) The City, its officers, officials, boards, commissions and
employees are to be covered as, and have the rights of, additional insureds
with respect to liability arising out of activities performed by, or on behalf of,
Grantee under this Franchise or applicable law, or in the construction,
operation or repair, or ownership of the Cable System;
(2) Grantee's insurance coverage shall be primary Insurance with
respect to the City, its officers, officials, boards, commissions and
employees. Any insurance or self-insurance maintained by the City, its
officers, officials, boards, commissions, employees and agents shall be in
excess of the Grantee's insurance and shall not contribute to it; and
(3) Grantee's insurance shall apply separately to each insured
against whom a claim is made or lawsuit is brought, except with respect to
the limits of the insurer's liability.
(E) The insurance obtained by Grantee shall be placed with insurers with a
Best's rating of no less than "A VIII."
(F) The Grantee shall maintain on file with the City certificates of
insurance which evidence the coverage required by paragraph 5.2(A) and the
requirements of paragraph 5 .2(B). The certificates are to be signed by a Person
authorized by that insurer to bind coverage on its behalf The certificates are to be
on standard forms or such forms as are consistent with standard industry
practices, and are to be received and approved by the City prior to the
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commencement of activities associated with this Franchise. The Grantee hereby
warrants that its insurance policies satisfy the requirements of this Franchise.
(G) Self-Insurance Grantee may provide self-insurance in the same
amount and level of protection for Grantee and City, its officers, agents and
employees as otherwise required under this subsection. The adequacy of self-
Insurance shall be subject to the prior review and approval of the City.
5.3 Letter of Credit
(A) No later than the Effective Date of this Franchise, Grantee shall
establish and provide to the City, on behalf of the City and all other members of
the GMTC set forth on Exhibit A, as security for the faithful performance by
Grantee of all of the provisions of this Franchise, a letter of credit from a financial
Institution satisfactory to the City in the amount of one hundred thousand dollars
($100,000).
(B) The letter of credit shall be maintained at one hundred thousand
dollars ($100,000) throughout the term of this Franchise, provided that once every
three (3) years, the City shall have the right to increase this amount to reflect
increases in the Denver Metropolitan Area Consumer Price Index during the prior
three (3) year period.
(C) The letter of credit may be drawn upon by the City for purposes
including, but not limited to, the following:
(1) Failure of Grantee to pay the City sums due under the terms of
this Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise
violations not corrected by Grantee;
(3) Monetary remedies or damages assessed against Grantee due to
default or breach of Franchise requirements; and
(4)
established
time
Failure to comply with the Customer Service Standards
by Section 6 hereof, as the same may be amended from time to
(D) The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within seven (7) days following receipt of such
notice, Grantee shall restore the letter of credit to the amount required under this
Franchise.
(E) Grantee shall have the right to appeal to the City Council for
reimbursement in the event Grantee believes that the letter of credit was drawn
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upon Improperly. Grantee shall also have the right of Judicial appeal if Grantee
believes the letter of credit has not been properly drawn upon in accordance with
this Franchise. Any funds the City erroneously or wrongfully withdraws from the
letter of credit shall be returned to Grantee with interest, from the date of
withdrawal at a rate of eight percent (8%) per annum.
(F) If more than fifty percent (50%) of the GMTC members listed on
Exhibit A withdraw from the GMTC or are not eligible to draw on the letter of credit
held in the name of all GMTC members, Grantee shall have the right to renegotiate
the terms of the letter of credit or reduce it by an amount equal to the pro-rata
number of Subscribers whose grantors have withdrawn from the GMTC or are not
eligible to draw on the shared letter of credit, provided however that the amount of
the letter of credit shall in no event be reduced below twenty five thousand dollars
($25,000.00)
(G) If the City withdraws from the GMTC, or if the City elects to require a
letter of credit exclusively devoted to the City's use under this Franchise, Grantee
shall obtain a letter of credit solely for the benefit of the City, in the amount of
twenty five thousand dollars ($25,00000), within sixty (60) days of receiving
written notice from the City In this event, the City will also be removed from the
GMTC letter of credit.
5.4
Construction Bond
Grantee shall comply with City's generally applicable requirements for
construction bonds Any bonds provided thereunder shall be in a form and with a
surety acceptable to the City's Risk Administrator and in a form acceptable to the
City Attorney.
SECTION 6. CUSTOMER SERVICE STANDARDS
6.1 Customer Service Standards
Grantee shall at all times comply with the more stringent of the provisions of
the customer service and consumer protection provisions of the Wheat Ridge Code
of Laws, including without limitation, Ordinance 973, Series 1994, (attached as
Exhibit B), as amended, or the customer service standards of the FCC, as amended.
SECTION 7. REPORTS AND RECORDS
7.1
Open Records
Grantee shall manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the City The City shall
have access to, and the right to inspect, any books and records of Grantee and its
Affiliates which are reasonably related to the administration or enforcement of the
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terms of this Franchise. Grantee shall not deny the City access to any of Grantee's
records on the basis that Grantee's records are under the control of any Affiliate or
a third party. The City may, in writing, request copies of any such records or
books and Grantee shall provide such copies within thirty (30) days of the
transmittal of such request. One (1) copy of all reports and records required under
this or any other subsection shall be furnished to the City, at the sole expense of
Grantee. If the requested books and records are too voluminous, or for security
reasons cannot be copied or removed, then Grantee may request, in writing within
ten (10) days, that the City inspect them at Grantee's local offices If any books or
records of Grantee are not kept in a local office and not made available in copies to
the City upon written request as set forth above, and if the City determines that an
examination of such records is necessary or appropriate for the performance of any
of the City's duties, administration or enforcement of this Franchise, then all
reasonable travel and related expenses incurred in making such examination shall
be paid by Grantee
7.2 Confidentiality
The City agrees to treat as confidential any books or records that constitute
proprietary or confidential information under federal or State law, only to the extent
Grantee makes the City aware of such confidentiality. Grantee shall be responsible
for clearly and conspicuously stamping the word "Confidential" on each page that
contains confidential or proprietary information, and shall provide a brief written
explanation as to why such information is confidential under State or federal law.
If the City believes it must release any such confidential books and records in the
course of enforcing this Franchise, or for any other reason, it shall advise Grantee
in advance so that Grantee may take appropriate steps to protect its interests.
Grantee acknowledges that the City is subject to the Colorado Open Records Act,
9924-72-101, et seq, C.R.S. If the City receives a demand from any Person for
disclosure of any information designated by Grantee as confidential, the City shall,
so far as consistent with applicable law, advise Grantee and provide Grantee with a
copy of any written request by the party demanding access to such information
within a reasonable time Until otherwise ordered by a court or agency of
competent jurisdiction, the City agrees that, to the extent permitted by State and
federal law, it shall deny access to any of Grantee's books and records marked
confidential as set forth above to any Person. If any Person files suit against the
City for protecting Grantee's books and records from disclosure, Grantee shall
defend and indemnify the City as required by subsection 5.1. The City shall not be
obligated to undertake or defend litigation to protect said records from disclosure.
7.3 Records Required
(A) Grantee shall at all times maintain, and shall furnish to the City upon
request
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(1) A complete set of maps showing the routing of the Cable
System in the Rights-of-Way, but excluding detail on proprietary electronics
contained therein and Subscriber drops. As-built maps including proprietary
electronics shall be available at Grantee's offices for inspection by the City's
authorized representative(s) or agent(s)and made available to such during the
course of technical inspections as reasonably conducted by the City. These
maps shall be certified as accurate by an appropriate representative of the
Grantee;
(2) A copy of all FCC filings on behalf of Grantee or its Affiliates
which relate to the operation of the Cable System in the City;
(3) Current Subscriber Records and information;
(4) A log of Cable Services added or dropped, Channel changes,
number of Subscribers added or terminated, all construction activity, and
total homes passed for the previous twelve (12) months, and
(5) A list of Cable Services, rates and Channel line-ups.
(B) Subject to subsection 7.2, all information furnished to the City is
public information, and shall be treated as such, except for information involving
the privacy rights of individual Subscribers.
7.4 Annual Reports
Within sixty (60) days after the end of the calendar year, Grantee shall
submit to the City a written report, in a form acceptable to the City, which shall
include, but not necessarily be limited to, the following information for the City:
(A) A Gross Revenue statement, as required by Subsection 3.5 of this
Franchise;
(B) A summary of the previous year's activities in the development of the
Cable System, including, but not limited to, Cable Services begun or discontinued
during the reporting year, and the number of Subscribers for each class of Cable
Service (i e., Basic Service, Expanded Basic Service, and Premium Service); and
(C) The number of homes passed, beginning and ending Cable System
miles, , and any technological changes occurring in the Cable System; and
(0) A statement of planned construction, if any, for the next year.
7.5 Copies of Federal and State Reports
Grantee shall submit to the City copies of all pleadings, applications,
notifications, communications and documents of any kind, submitted by Grantee or
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Its parent corporatlon(s). to any federal, State or local courts, regulatory agencies
and other government bodies if such documents directly relate to the operations of
the Cable System within the City. Grantee shall submit such documents to the
City no later than thirty (30) days after filing, mailing, publication, or completion.
Grantee shall not claim confidential, privileged or proprietary rights to such
documents unless under federal, State, or local law such documents have been
determined to be confidential by a court of competent jurisdiction, or a federal or
State agency. With respect to all documents provided to any federal, State, or
local regulatory agency as a routine matter in the due course of operating the Cable
System within the City, Grantee shall make such documents available to the City
upon request.
7.6 Complaint File and Reports
Grantee shall keep an accurate and comprehensive file of any and all
complaints regarding the Cable System, in a manner consistent with the privacy
rights of Subscribers, and Grantee's actions in response to those complaints.
These files shall remain open to the City during normal business hours. Grantee
shall provide the City an executive summary monthly in accordance with Wheat
Ridge Code of Laws, Ordinance 973, Series 1994 (Exhibit B), as amended, which
shall include the following information
(A) A summary of service requests, identifying the number and nature of
the requests and their disposition;
(B) A log of all service interruptions;
(C) A summary of customer complaints referred by the City to Grantee;
(0) Average response time for service calls;
(E) Phone activity report;
(F) Video programming changes (additions/deletions); and
(G) Such other information as reasonably requested by the City in its
enforcement of this Franchise, provided that Grantee is given thirty (30) days prior
written notice of such request before the beginning of the applicable month.
7.7
Failure to Report
The failure or neglect of Grantee to file any of the reports or filings required
under this Franchise or such other reports as the City may reasonably request (not
including clerical errors or errors made in good faith). may, at the City's option, be
deemed a material breach of this Franchise.
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7.8 False Statements
Any false or misleading statement or representation in any report required by
this Franchise (not including clerical errors or errors made in good faith) may be
deemed a material breach of this Franchise and may subject Grantee to all
remedies, legal or equitable, which are available to the City under this Franchise or
otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide or enable the provIsion of at least the following initial
broad categories of programming to the extent such categories are reasonably
available
(A)
(B)
(C)
(0)
(E)
(F)
(G)
(H)
(I)
(J)
City;
(K)
(L)
(M)
Educational;
Colorado news, weather & Information;
Sports;
General entertainment (including movies),
Ch ildren/family-oriented;
Arts, culture and performing arts;
Foreign language;
Science/documentary;
National news, weather and information;
Programming addressed to diverse ethnic and minority interests in the
Government affairs;
Access programming to the extent required by this Franchise; and
Programming of interest to the City's elderly population.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad
category of programming within its control without the prior written consent of the
City
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(8) In the event of a modification proceeding under federal law, the mix
and quality of Cable Services provided by Grantee on the Effective Date of this
Franchise shall be deemed the mix and quality of Cable Services required under this
Franchise throughout its term.
8.3 Ascertainment of Programming and Customer Satisfaction
Upon request of the City, Grantee shall, at the sole expense of Grantee,
undertake a biennial survey of community views of cable operations in the City,
including but not limited to programming, response to community needs,
satisfaction and dissatisfaction with Cable Services offered by Grantee, and
customer service. Grantee shall consult and cooperate with the City in developing
and implementing an ascertainment methodology. The final form and content of
the survey shall be as mutually agreed upon by the Grantee and the City. Grantee
shall provide the results of such survey to the City within two (2) months after
completing the survey. Upon request, Grantee shall also provide a copy of results
from any other survey of Subscribers in the City conducted independently by the
Grantee within the previous year. Any survey results conducted within the City
which are intended for external publication shall also be provided to the City.
Nothing herein shall be construed to limit the right of the City to conduct its own
surveys at its own expense.
8.4 Censorship Prohibited
(A) Grantee shall not exercise any editorial control over any Public,
Educational, or Government Access channel, except Grantee may refuse to transmit
any program which is obscene or otherwise unprotected by the Constitution of the
United States.
(8) The City shall not prohibit or limit any program or class or type of
program or otherwise censor the Cable Services offered by the Grantee or other
parties over the Cable System, other than programs on the Government Access
Channel or Channels, and shall not promulgate any regulation or condition which
would interfere with the right of free speech by means of the Cable System.
8.5 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental
control or lockout device, traps or filters to enable a Subscriber to control access to
both the audio and video portions of any or all Channels. Grantee shall inform its
Subscribers of the availability of the lockout device at the time of their initial
subscription and periodically thereafter. Any device offered shall be at a rate, if
any, in compliance with applicable law.
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8.6 Continuity of Service Mandatory
(A) It shall be the nght of all Subscribers to continue to receive Cable
Service from Grantee insofar as their financial and other obligations to Grantee are
honored. The Grantee shall act so as to ensure that all Subscribers receive
continuous, uninterrupted Cable Service regardless of the circumstances. For the
purposes of this paragraph, "uninterrupted" does not include short-term outages of
the Cable System for construction, maintenance or testing.
(B) In the event of a change of Grantee, or in the event a new Cable
Operator acquires the Cable System in accordance with this Franchise, Grantee
shall cooperate with the City, new franchisee or Cable Operator in maintaining
continuity of Cable Service to all Subscribers During any transition period, Grantee
shall be entitled to the revenues for any period during which it operates the Cable
System, and shall be entitled to reasonable costs for its services when it no longer
operates the Cable System.
(C) In the event Grantee fails to operate the Cable System for four (4)
consecutive days without prior approval of the City Manager, or without just cause,
the City may, at its option, operate the Cable System itself or designate another
Cable Operator until such time as Grantee restores service under conditions
acceptable to the City or a permanent Cable Operator is selected. If the City is
required to fulfill this obligation for Grantee, Grantee shall reimburse the City for all
reasonable costs or damages that are the result of Grantee's failure to perform.
8.7 Cable Bill Inserts
Upon reasonable advance notice, but no more often than once per calendar
year, the Grantee will provide the City with an insert space in Subscribers' cable
television bills. Grantee shall provide the City with the pnnting specifications for
the inserts. The City shall be responsible for the content and printing costs of the
insert, and for the cost of shipping the printed inserts to the Grantee's billing agent.
The City shall only pay incremental mailing costs if the City's insert results in an
increase to the standard mailing costs normally incurred by the Grantee In sending
its Subscriber billing statements. The Grantee shall also use reasonable efforts to
accommodate the City's requests for the placement of messages on billing
statements, at no cost to the City.
SECTION 9. ACCESS
9.1 Capital Contribution
Grantee shall collect and provide to the City up to $ .50 per month per
Residential Subscriber for Access or I-Net capital (the" Capital Contribution").
Grantee shall not be responsible for collecting or paying the Capital Contribution
with respect to gratis accounts. The City shall give Grantee at least ninety (90)
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days advance written notice of Grantee's obligation to begin payment of the
Capitol Contribution, including the monthly amount to be collected. Each payment
shall be due and payable no later than thirty (30) days following the end of the
quarter from when the Capital Contribution takes effect. The City shall have
discretion to allocate the Capital Contribution in accordance with applicable law.
The City may adjust the amount of the Capital Contribution on an annual basis, up
to the maximum amount specified in this subsection 9.2, provided that Grantee is
given ninety (90) days advance written notice.
9.2 Initial Access Channels
As of the Effective Date of this Franchise, Grantee shall provide, at its
expense, two (2) Downstream Access Channels. These Access Channels shall be
initially allocated as follows one (1) Community Access Channel, and one (1)
Government Access Channel.
9.3 Additional Access Channels
(A) The City may require Grantee to Activate, at Grantee's expense, up to
four (4) additional Downstream Access Channels, for a maximum of six (6)
Downstream Access Channels, under the procedures specified below
(B) If the City believes that additional Access Channel capacity is needed,
the matter will be considered by the City Manager. In his/her deliberations, the
City Manager will consider supply and demand, and, in particular, the ability and
resources of the City or its designee to produce additional Access programming,
the interest of the community in the additional Access programming as measured
through a survey methodology that is mutually acceptable between the City and
the Grantee, consideration of the programming that would be displaced, how much
programming is produced on the existing Access Channels in the Denver metro
area, how much programming on the existing Access Channels is repeated, how
much programming on the existing Access Channels is character-generated,
whether it is feasible to cluster Access programming into blocks of time such that
the Channel space can be compatibly shared, and if Access programming can be
combined onto fewer Access Channels.
(C) Should the City Manager find that the evidence exists to support the
Activation of an additional Access Channel, then the City Manager shall provide
his/her decision in writing and Grantee shall provide the Activated Channel within
ninety (90) days of receiving the request. Grantee may appeal the decision of the
City Manager to the City Council.
9.4 Underutilized Access Channels
Grantee and the City agree that it is their mutual goal to fully and efficiently
use the Channel capacity of the Cable System, which may include allowing the
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Grantee to use underutilized time on Access Channels. If Grantee believes that any
Access Channel has underutilized time, Grantee may file a request with the City
Manager to use that time. In response to the request, the City Manager will
consider a combination of factors, including but not limited to, the community's
needs and interests, and the source, quantity, type and schedule of the
programming carried on the Access Channel. The City Manager will also consider,
taking into account the mission of the Access programming, whether it is feasible
to cluster Access programming into blocks of time such that the Channel space can
be compatibly shared between the City or its designee and the Grantee and/or if
Access programming can be combined onto fewer Access Channels. The City
Manager shall render his/her decision regarding the matter within ninety (90) days
of receiving the request. Should the City Manager find that the Access Channel or
portion of the Access Channel may be used by the Grantee, then Grantee may
begin using such time one hundred twenty (1 20) days after receipt of the decision.
The Grantee's request shall not be unreasonably denied.
At such time as the City believes that it has the resources and ability to
utilize the Access Channel time currently used by the Grantee pursuant to this
subsection, the City Manager may consider whether to return such Channel or
portion of the Channel for Access purposes The City Manager will consider a
combination of factors, including but not limited to, the community's needs and
interests, and the source, quantity, type and schedule of the programming
proposed to be carried on the Access Channel as well the City's ability and
resources to acquire or produce the proposed Access programming. The City
Manager will also consider, taking into account the mission of the Access
programming, whether it is feasible to cluster Access programming into blocks of
time such that the Channel space can be compatibly shared between the City or its
designee and the Grantee and/or if Access programming can be combined onto
fewer Access Channels. Should the City Manager find that the evidence exists to
support the return of the Access Channel or portion of the Access Channel to the
City or its designee, then Grantee shall surrender the requested time on the Access
Channel within one hundred twenty (120) days of receiving the decision.
9.5 Change in Technology
In the event Grantee makes any change in the Cable System and related
equipment and facilities or in Grantee's signal delivery technology, which directly or
indirectly affects the signal quality or transmission of Access services or
programming, Grantee shall at its own expense take necessary technical steps or
provide necessary technical assistance, including the acquisition of all necessary
equipment and full training of Access personnel, to ensure that the capabilities of
Access services are not diminished or adversely affected by such change For
example, this provision shall apply if the Cable System is converted from an analog
to a digital format, such that the Access Channels must also be converted to digital
in order to be received by Subscribers.
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9.6 Management and Control of Access Channels
(A) The City shall have sole and exclusive responsibility for allocating the
Access resources under this Section. The City or its designee may formulate rules
for the operation of the Access Channels, consistent with this Franchise.
(B) All assigned Access Channels can be used to transmit signals in any
format which is technically compatible with the Cable System, including, by way of
example and not limitation, video, audio only, other non-video and/or text
messages. Such uses must be in furtherance of Access purposes.
9.7 Access Channels On Basic Service
All Access Channels provided to Subscribers under this Franchise shall be
included by Grantee, without limitation, as a part of Basic Service
9.8 Access Channel Assignments
Grantee will use reasonable efforts to minimiZe the movement of Access
Channel assignments. Grantee shall also use reasonable efforts to institute
common Channel assignments among the GMTC members for compatible Access
programming, for example, assigning all Educational Access Channels programmed
by higher education organizations to the same Channel number.
9.9 Relocation of Access Channels
Grantee shall provide the City with a minimum of ninety (90) days notice,
and use its best efforts to provide one hundred twenty (120) days notice, prior to
the time any Access Channel designation is changed, unless the change is required
by federal law, in which case Grantee shall give the City the maximum notice
possible In addition, Grantee shall pay to the City an amount equal to the City's
costs in remarketing the location of the Access Channels and managing the
relocation administratively and technologically, up to a maximum of fifty cents
($ .50) per Subscriber Grantee shall only be allowed to recover such amounts paid
to City as "external costs" (as that term is used in 47 C F.R. Section 76.922) if
the movement of Channels is required by federal, State or local law Grantee, at
Grantee's expense, will place the City's notices of the Channel change on or with
its regular monthly billings, upon the City's request. Any new Channel
designations for the Access Channels provided pursuant to this Franchise shall be
in full compliance with FCC signal quality and proof-of-performance standards
9.10 Access Interconnection
Grantee acknowledges that is the City's goal to further the community's
needs and interests by providing for the Interconnection of Access Channels
between the City and surrounding communities. Therefore, Grantee shall continue
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the Access Channel Interconnection which is in place as of the Effective Date
which facilitates the sharing of Access programming between and among
participating GMTC members In addition, the City shall have the right to use any
Access Channel for Access programming provided to it through an Interconnect.
9.11 Return lines
(A) Grantee shall, at its expense, continuously maintain throughout the life
of this Franchise return lines to the Headend from City Hall located at 7500 West
29th Avenue and the Recreation Center located at 4005 Kipling Street in order to
enable the distribution of Access programming to Residential Subscribers on the
Access Channels, unless these locations are no longer used to originate Access
programming in the future. Grantee shall construct return lines from two (2)
additional sites in the City for the distribution of Access programming, upon written
request from the City, at no cost to the City Such sites must be located no
further than one hundred fifty (150) feet from the Cable System. City shall pay
construction costs if the sites are located further than one hundred fifty (150) feet
from Cable System.
(B) Grantee shall construct and maintain new Fiber Optic return lines (in
excess of the four (4) return lines referenced in paragraph A above) to the Headend
from production facilities of new or relocated facilities delivering Access
programming to Residential Subscribers as requested in writing by the City. All
direct construction costs, including labor and materials, for these return lines shall
be paid by the City or its designee, plus fifteen percent (15 %) for indirect costs.
SECTION 10. INSTITUTIONAL NETWORK
10.1 Private Network
The City and AT&T Broadband Network Solutions ("ABNS") will work
together to install an I-Net This network will utilize the AT&T Broadband fiber
infrastructure in the City as much as possible. The I-Net will not be used in any
way that will intentionally or unreasonably interfere with the signal quality and the
normal operation of the Grantee's Subscriber Network. The City has chosen the
following sites to be on the network.
City Hall
Police Department
Fire Station # 1
Fire Station # 2
Berbert House
Wheat Ridge High School
Public Works Building
Anderson Building
Recreation Center
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Community Center
Wheat Ridge Middle School
Everitt Middle School
West Jeffco Orug Task Force
ABNS will work with the City to create an implementation plan that suits both
parties. This plan will be included in an I-Net agreement reached by ABNS and the
City. The cost of the I-net will be negotiated between ABNS and the City. ABNS
will design the network with the most cost-effective manner.
SECTION 11. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
11.1 Conditions ot Rights-ot-Way Occupancy
(A) Subject to the City's supervision and control, Grantee may erect,
install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon,
across, and along the Rights-of-Way within the City such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments
and other property and equipment as are necessary and appurtenant to the
operation of a Cable System within the Franchise Area; subject to the provisions
hereof and to all powers (including police powers) inherent in and conferred upon or
reserved to the City.
(B) No Right-of-Way shall be disturbed and no excavation in any of the
said Rights-of-Way will be made, or any poles installed, except with the express
written permission of the City. In the event that emergency repairs are necessary,
Grantee shall immediately notify the City of the need for such repairs. Grantee
may initiate such emergency repairs, and shall apply for appropriate permits within
forty-eight (48) hours after discovery of the emergency.
(C) The Cable System and other property and facilities of the Grantee shall
be so located, constructed, installed and maintained so as not to endanger or
unnecessarily interfere with the usual and customary trade, traffic and travel upon
the Rights-of-Way and public places of the City.
(0) Grantee must follow generally applicable City-established requirements
for placement of Cable System facilities in Rights-of-Way, including the specific
location of facilities in the Rights-of-Way, and must in any event install Cable
System facilities in a manner that minimizes interference with the use of the Rights-
of-Way by others, including others that may be installing communications facilities.
The City may require that facilities in the Rights-of-Way be installed at a particular
time, at a specific place or in a particular manner as a condition of access to a
particular Right-of-Way; may deny access if Grantee is not willing to comply with
City's requirements; and may remove, or require removal of, any facility that is not
installed in compliance with the requirements established by the City, or which is
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installed without prior City approval of the time, place or manner of installation, and
charge Grantee for all the costs associated with removal; and may require Grantee
to cooperate with others to minimize adverse impacts on the Rights-of-Way
through joint trenching and other arrangements.
(E) The Grantee shall, at the request of any person holding a building
moving permit, and upon reasonable advance notice, temporarily raise or lower Its
wires to permit the moving of said building. The expense of such temporary
removal, raising or lowering of wires shall be paid by the Person requesting the
same, and the Grantee shall have the authority to require such payment in advance.
(F) The City may inspect all construction or installation work performed in
the Rights-of-Way pursuant to this Franchise.
11.2 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and
regulations of the City regarding geographic information mapping systems for users
of the Rights-of-Way.
11.3 Hazardous Substances
(A) Grantee shall comply with any and all applicable laws, statutes,
regulations and orders concerning hazardous substances relating to the Cable
System in the Rights-of-Way.
(B) Upon reasonable notice to Grantee, the City may inspect the Cable
System in the Rights-of-Way to determine if any release of hazardous substances
has occurred, or may occur, from or related to the Cable System In removing or
modifying the Cable System as provided in this Franchise, Grantee shall also
remove all residue of hazardous substances related thereto.
11.4 Locates
Prior to doing any work in the Rights-of-Way, Grantee shall give appropriate
notices to the City and to the notification association established in C.R.S.
Section 9-1.5-105, as such may be amended from time to time. Within forty-eight
(48) hours after any City bureau or franchisee, licensee or permittee notifies
Grantee of a proposed Rights-of-Way excavation, Grantee shall, at Grantee's
expense:
(A) Mark on the surface all of its located underground facilities within the
area of the proposed excavation;
(B) Notify the excavator of any unlocated underground facilities In the
area of the proposed excavation; or
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(C) Notify the excavator that Grantee does not have any underground
facilities in the vicinity of the proposed excavation.
11.5 Notice to Private Property Owners
Grantee shall give notice to private property owners of work on or adjacent
to private property in accordance with the Customer Service Standards referenced
in Section 6.
11.6 Underground Construction and Use of Poles
(A) When required by general ordinances, resolutions, regulations or rules
of the City or applicable State or federal law, the Cable System shall be placed
underground at Grantee's expense. Placing facilities underground does not
preclude the use of ground-mounted appurtenances.
(B) Where electric, telephone, and other above-ground utilities are
installed underground at the time of Cable System construction, or when all such
wiring is subsequently placed underground, all Cable System lines shall also be
placed underground with other wireline service at no expense to the City or
Subscribers unless funding is generally available for such relocation to users of the
Rights-of-Way. Related Cable System equipment, such as pedestals, must be
placed in accordance with the City's applicable code requirements and rules. In
areas where either electric or telephone utility wiring is aerial, the Grantee may
install aerial cable, except when a property owner or resident requests underground
installation and agrees to bear the additional cost in excess of aerial installation.
(C) The Grantee shall utilize existing poles and conduit wherever possible.
(0) In the event Grantee cannot obtain the necessary poles and related
facilities pursuant to a pole attachment agreement, and only in such event, then it
shall be lawful for Grantee to make all needed excavations in the Rights-of-Way for
the purpose of placing, erecting, laying, maintaining, repairing, and removing poles,
supports for wires and conductors, and any other facility needed for the
maintenance or extension of the Cable System. All poles of Grantee shall be
located as designated by the proper City authorities.
(E) This Franchise does not grant, give or convey to the Grantee the right
or privilege to install its facilities in any manner on specific utility poles or
equipment of the City or any other Person. Copies of agreements for the use of
poles, conduits or other utility facilities must be provided upon request by the City.
(F) The Grantee and the City recognize that situations may occur in the
future where the City may desire to place its own cable or conduit for Fiber Optic
cable in trenches or bores opened by the Grantee. The Grantee agrees to
cooperate with the City in any construction by the Grantee that involves trenching
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or boring, provided that the City has first notified the Grantee in some manner that
it IS interested in sharing the trenches or bores in the area where the Grantee's
construction is occurring. The Grantee shall allow the City to lay its cable, conduit
and Fiber Optic cable in the Grantee's trenches and bores, provided the City shares
in the cost of the trenching and boring on the same terms and conditions as the
Grantee at that time shares the total cost of trenches and bores. The City shall be
responsible for maintaining ItS respective cable, conduit and Fiber Optic cable
buried in the Grantee's trenches and bores under this paragraph
11.7 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the
number of individual aerial drop cables by installing multiple drop cables
underground between the pole and Multiple Dwelling Unit where determined to be
technologically feasible in agreement with the owners and/or owner's association
of the Multiple Dwelling Units.
11.8 Burial Standards
(A) Depths. Unless otherwise required by law, Grantee shall comply with
the following burial depth standards. In no event shall Grantee be required to bury
its cable deeper than electric or gas facilities in the same portion of the Rights-of-
Way.
Underground cable drops from the curb shall be buried at a minimum
depth of twelve (12) inches, unless a sprinkler system or other construction
concerns preclude it, in which case, underground cable drops shall be buried
at a depth of at least six (6) inches.
Feeder lines shall be buried at a minimum depth of eighteen
(18) inches.
Trunk lines shall be buried at a minimum depth of thirty-six
(36) inches
Fiber OptiC cable shall be buried at a minimum depth of thirty-six
(36) inches.
(8) Timeliness. Cable drops installed by Grantee to residences shall be
bUried according to these standards within one (1) calendar week of initial
installation, or at a time mutually-agreed upon between the Grantee and the
Subscriber. When freezing surface conditions prevent Grantee from achieving such
timetable, Grantee shall apprise the Subscriber of the circumstances and the
revised schedule for burial, and shall provide the Subscriber with Grantee's
telephone number and instructions as to how and when to call Grantee to request
burial of the line if the revised schedule is not met.
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11.9 Electrical Bonding
Grantee shall ensure that all cable drops are properly bonded to the electrical
power ground at the home, consistent with applicable code requirements. All non-
conforming or non-performing cable drops shall be replaced by Grantee as
necessary.
11 10 Prewiring
Any ordinance or resolution of the City which requires prewlrlng of
subdivisions or other developments for electrical and telephone service shall be
construed to include wiring for cable systems.
11 .11 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If
damage occurs, the Grantee shall promptly notify the property owner within
twenty-four (24) hours in writing.
(B) Whenever Grantee disturbs or damages any Rights-of-Way, other
public property or any private property, Grantee shall promptly restore the Rights-
of-Way or property to at least its prior condition, normal wear and tear excepted, at
its own expense.
(C) Rights-of-Way and Other Public Property Grantee shall warrant any
restoration work performed by or for Grantee in the Rights-of-Way or on other
public property for one (1) year. If restoration is not satisfactorily performed by the
Grantee within a reasonable time, the City may, after prior notice to the Grantee, or
without notice where the disturbance or damage may create a risk to public health
or safety, cause the repairs to be made and recover the cost of those repairs from
the Grantee Within thirty (30) days of receipt of an itemized list of those costs,
including the costs of labor, materials and equipment, the Grantee shall pay the
City.
(0) Private Property. Upon completion of the work which caused any
disturbance or damage, Grantee shall promptly commence restoration of private
property, and will use best efforts to complete the restoration within seventy-two
(72) hours, considering the nature of the work that must be performed. Grantee
shall also perform such restoration in accordance with Wheat Ridge Code of Laws,
including Ordinance 973, Series 1994 (Exhibit B), as amended.
11.12 Use of Conduits by the City.
The City may install or affix and maintain wires and equipment owned by the
City for City purposes in or upon any and all of Grantee's ducts, conduits or
equipment in the Rights-of-Way and other public places, without charge to the City,
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to the extent space therein or thereon is reasonably available, and pursuant to all
applicable ordinances and codes. For the purposes of this subsection, "City
purposes" Includes, but is not limited to, the use of the structures and installations
for non-commercial City fire, police, traffic, water, telephone, and/or signal
systems, but not for services in competition with Grantee. Grantee shall not
deduct the value of such use of its facilities from its franchise fee payments or
from other fees payable to the City.
11.13 Common Users
(A) For the purposes of this subsection.
(1) "Attachment" means any wire, optical fiber or other cable, and
any related device, apparatus or auxiliary equipment, for the purpose of
voice, video or data transmission.
(2) "Conduit" or "Conduit Facility" means any structure, or
section thereof, containing one or more Ducts, conduits, manholes, hand hole
or other such facilities in the Cable System.
(3) "Duct" means a single enclosed raceway for cables, Fiber
Optics or other wires
(4) "Licensee" means any Person licensed or otherwise permitted
by the City to use the Rights-of-Way.
(5) "Surplus Ducts or Conduits" are Conduit Facilities other than
those occupied by Grantee or any prior Licensee, or unoccupied Ducts held
by Grantee as emergency use spares, or other unoccupied Ducts that
Grantee reasonably expects to use within two (2) years from the date of a
request for use.
(B) Grantee acknowledges that the Rights-of-Way have a finite capacity
for containing conduits. Therefore, Grantee agrees that whenever the City
determines it is impracticable to permit construction of an underground Conduit
system by any other Person which may at the time have authority to construct or
maintain Conduits or Ducts in the Rights-of-Way, but excluding Persons providing
Cable Services in competition with Grantee, the City may require Grantee to afford
to such person the right to use Grantee's Surplus Ducts or Conduits in common
with Grantee, pursuant to the terms and conditions of an agreement for use of
Surplus Ducts or Conduits entered into by Grantee and the Licensee. Nothing
herein shall require Grantee to enter into an agreement with such Person if, in
Grantee's reasonable determination, such an agreement could compromise the
integrity of the Cable System
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(C) A Licensee occupYing part of a Duct shall be deemed to occupy the
entire Duct.
(D) Grantee shall give a Licensee a minimum of one hundred twenty
(120) days notice of Its need to occupy a licensed Conduit and shall propose that
the Licensee take the first feasible action as follows.
(1) Pay revised Conduit rent designed to recover the cost of
retrofitting the Conduit with multiplexing, Fiber Optics or other space-saving
technology sufficient to meet Grantee's space needs;
(2) Pay revised Conduit rent based on the cost of new Conduit
constructed to meet Grantee's space needs;
(3) Vacate the needed Ducts or Conduit; or
(4) Construct and maintain sufficient new Conduit to meet
Grantee's space needs.
(E) When two or more Licensees occupy a section of Conduit Facility, the
last Licensee to occupy the Conduit Facility shall be the first to vacate or construct
new Conduit. When Conduit rent is revised because of retrofitting, space-saving
technology or construction of new Conduit, all Licensees shall bear the increased
cost.
(F) All Attachments shall meet local, State, and federal clearance and
other safety requirements, be adequately grounded and anchored, and meet the
provisions of contracts executed between Grantee and the Licensee. Grantee may,
at its option, correct any attachment deficiencies and charge the Licensee for its
costs. Each Licensee shall pay Grantee for any fines, fees, damages or other costs
the Licensee's Attachments cause Grantee to incur
(G) In order to enforce the provisions of this subsection with respect to
Grantee, the City must demonstrate that it has required that all similarly situated
users of the Rights-of-Way to comply with the provisions of this subsection
11 .14 Acquisition of Facilities
Upon Grantee's acquisition of facilities in any City Rights-of-Way, or upon
the addition to the City of any area in which Grantee owns or operates any facility,
Grantee shall, at the City's request, submit to the City a statement describing all
facilities involved, whether authorized by franchise, permit, license or other prior
right, and specifying the location of all such facilities to the extent Grantee has
possession of such information. Such facilities shall immediately be subject to the
terms of this Franchise.
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11 .15 Movement of Cable System Facilities for City Purposes
(A) The City shall have the right to require Grantee to relocate, remove,
replace, modify or disconnect Grantee's facilities and equipment located in the
Rights-of-Way or on any other property of the City in the event of an emergency or
when reasonable public convenience requires such change (for example, without
limitation, by reason of traffic conditions, public safety, Rights-of-Way vacation,
Rights-of-Way construction, change or establishment of Rights-of-Way grade,
installation of sewers, drains, gas or water pipes, or any other types of structures
or improvements by the City for public purposes). Such work shall be performed at
the Grantee's expense. Except during an emergency, the City shall provide
reasonable notice to Grantee, not to be less than five (5) business days, and allow
Grantee the opportunity to perform such action. In the event of any capital
improvement project exceeding $ 500,000 in expenditures by the City which
requires the removal, replacement, modification or disconnection of Grantee's
facilities or equipment, the City shall provide at least sixty (60) days' written notice
to Grantee
(8) Following notice by the City, Grantee shall relocate, remove, replace,
modify or disconnect any of its facilities or equipment within any Rights-of-Way, or
on any other property of the City If the City requires Grantee to relocate its
facilities located within the Rights-of-Way, the City shall make a reasonable effort
to provide Grantee with an alternate location within the Rights-of-Way. If funds are
generally made available to users of the Rights-of-Way for such relocation, Grantee
shall be entitled to its pro rata share of such funds. If the Grantee fails to complete
this work within the time prescribed and to the City's satisfaction, the City may
cause such work to be done and bill the cost of the work to the Grantee, including
all costs and expenses incurred by the City due to Grantee's delay. In such event,
the City shall not be liable for any damage to any portion of the Cable System,
except in the event the damage is caused by the willful misconduct or gross
negligence of the City, its employees or agents. Within thirty (30) days of receipt
of an itemized list of those costs, the Grantee shall pay the City.
(C) If, at any time, in the case of fire, disaster or emergency in the City, it
shall become necessary in the reasonable judgment of the City Manager, to cut or
move any of the wires, cables, amplifiers, or other appurtenances of the Cable
System to respond to such emergency, such cutting or removing may be done and
any repairs rendered necessary thereby shall be made by the Grantee at its sole
expense; provided, that such repairs are not necessitated by a negligent act of the
City in which case costs of repairs shall be borne by the City.
11.16
Movement of Cable System Facilities for Other Franchise Holders
If any removal, replacement, modification or disconnection of the Cable
System is required to accommodate the construction, operation or repair of the
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facilities or equipment of another City franchise holder, Grantee shall, after at least
thirty (30) days' advance written notice, take action to effect the necessary
changes requested by the responsible entity. Grantee may require that the costs
associated with the removal or relocation be paid by the benefited party.
11.17 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices,
any tree in the Rights-of-Way which interferes with the Cable System. Grantee
shall comply with any general ordinance or regulations of the City regarding tree
trimming. Except in emergencies, Grantee may not prune trees at a point below
thirty (30) feet above sidewalk grade until one (1) week written notice has been
given to the owner or occupant of the premises abutting the Rights-of-Way in or
over which the tree is growing. The owner or occupant of the abutting premises
may prune such tree at his or her own expense during this one (1) week period. If
the owner or occupant fails to do so, Grantee may prune such tree at its own
expense. For purposes of this subsection, emergencies exist when it is necessary
to prune to protect the public or the Cable System from imminent danger only.
11.18 Stop Work
(A) On notice from the City that any work is being performed contrary to
the provisions of this Franchise, or in an unsafe or dangerous manner as
determined by the City, or in violation of the terms of any applicable permit, laws,
regulations, ordinances, or standards, the work may immediately be stopped by the
City.
(B) The stop work order shall:
(1) Be in writing;
site;
(2) Be given to the Person doing the work, or posted on the work
(3)
herein;
Be sent to Grantee by overnight delivery at the address given
(4)
Indicate the nature of the alleged violation or unsafe condition;
and
(5) Establish conditions under which work may be resumed.
11.19 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in
accordance with the City's ordinances, regulations and requirements. Work by
contractors and subcontractors is subject to the same restrictions, limitations and
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conditions as if the work were performed by Grantee. Grantee shall be responsible
for all work performed by its contractors and subcontractors and others performing
work on Its behalf as If the work were performed by it, and shall ensure that all
such work is performed in compliance with this Franchise and other applicable law,
and shall be jointly and severally liable for all damages and correcting all damage
caused by them. It is Grantee's responsibility to ensure that contractors,
subcontractors or other Persons performing work on Grantee's behalf are familiar
with the requirements of this Franchise and other applicable laws governing the
work performed by them.
11.20 Discontinuing Use/Removal of Facilities
(A) Whenever Grantee intends to discontinue using any facility within the
Rights-of-Way, Grantee shall submit for the City's approval a complete description
of the facility and the date on which Grantee intends to discontinue using the
facility. Grantee may remove the facility or request that the City permit it to
remain in place. Notwithstanding Grantee's request that any such facility remain in
place, the City may require Grantee to remove the facility from the Rights-of-Way
or modify the facility to protect the public health, welfare, safety, and convenience,
or otherwise serve the public interest. The City may require Grantee to perform a
combination of modification and removal of the facility. Grantee shall complete
such removal or modification in accordance with a schedule set by the City. Until
such time as Grantee removes or modifies the facility as directed by the City, or
until the rights to and responsibility for the facility are accepted by another Person
having authority to construct and maintain such facility, Grantee shall be
responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Rights-of-Way, in the same manner and degree as if the facility
were in active use, and Grantee shall retain all liability for such facility. If Grantee
abandons its facilities, the City may choose to use such facilities for any purpose
whatsoever including, but not limited to, Access purposes.
(8) If the Grantee fails to remove any property as herein required, the City
may perform the work at the Grantee's expense.
11.21 Compliance with Code of Laws
Grantee shall at all times comply with the Wheat Ridge Code of Laws,
including without limitation, Chapter 21 thereof.
11.22 Reimbursement of Grantee Costs
Grantee specifically reserves any rights it may have under law for
reimbursement of costs related to undergrounding or relocation of the Cable
System and nothing herein shall be construed as a waiver of any such rights.
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SECTION 12. CABLE SYSTEM CONFIGURATION, TECHNICAL STANDARDS AND
TESTING
12.1 Subscriber Network
(A) Equipment must be installed so that all closed captioning programming
received at the Headend is provided over the Cable System. Equipment must be
installed so that all local signals received in stereo or with secondary audio tracks
(broadcast and Access) are retransmitted in those same formats. In the case of
AM/FM radio transmission, the above specifications, where applicable, shall apply
(B) Grantee will take prompt corrective action if it finds that any facilities
or equipment on the Cable System are not operating as expected, or if it finds that
facilities and equipment do not comply with the requirements of this Franchise or
applicable law.
12.2 State of the Art
Grantee shall, every three (3) years following the Effective Date of this
Franchise, provide detailed information to the City about Cable Services offered in
"similarly situated" cable systems as the Cable System in the City. For purposes of
this subsection, "similarly situated" cable systems shall mean the sixteen (16)
largest cable systems, based upon the number of Subscribers covered by a single
franchise document, owned and operated by Grantee or its Affiliates in the United
States. If such Cable Services are not also being offered on the Cable System in
the City, Grantee shall provide information on why such Cable Services are not
being offered in the City and the cost to supply such Cable Services. If the
identified Cable Services are being offered to Subscribers by Grantee or its
Affiliates in eight (8) or more of the similarly-situated cable systems, the City may
require that Grantee make available such Cable Services on the Cable System in the
City Should the City determine that Grantee shall commence provision of such
Cable Services, the City and Grantee shall negotiate a schedule for deployment that
takes into consideration the impact on Subscriber rates, the ability of Grantee to
recover the cost of such increased capacity or Cable Services over the remaining
life of the Franchise from the incremental revenue derived from such additional
Cable Services and the financial condition of Grantee. In addition, the City shall
not be restricted from holding any hearing at any time to review whether or not the
Cable System and the Cable Services offered by the Grantee are meeting
demonstrated community needs. The parties recognize that, as of the Effective
Date, the City is not permitted to require the provision of specific video
programming pursuant to this subsection
12.3 Standby Power
Grantee shall provide standby power generating capacity at the Cable
System Headend capable of providing at least twelve (12) hours of emergency
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operation. Grantee shall maintain standby power system supplies, rated for at least
two (2) hours duration, throughout the trunk and distribution networks, and rated
for at least four (4) hours duration at all Nodes and at all Hubs. In addition,
throughout the term of this Franchise, Grantee shall have a plan in place, along
with all resources necessary for implementing such plan, for dealing with outages
of more than two (2) hours. This outage plan and evidence of requisite
implementation resources shall be presented to the City no later than thirty
(30) days following receipt of a request.
12.4 Emergency Alert Capability
(A) Grantee shall provide the City an operating Emergency Alert System
("EAS") throughout the term of this Franchise in compliance with FCC standards.
The City may use the EAS, under procedures established between the City and the
Grantee which are consistent with Grantee's State and federal EAS requirements,
to transmit an emergency alert signal, including the ability to override the audio and
video on all Channels throughout the City from the City's Emergency Operations
Center or other location as may be designated by the City. Grantee shall test the
EAS as required by the FCC Upon request, the City shall be permitted to
participate in and/or witness the EAS testing up to twice a year on a schedule
formed in consultation with Grantee. If the test indicates that the EAS is not
performing properly, Grantee shall make any necessary adjustment to the EAS, and
the EAS shall be retested.
(8) The City shall permit only appropriately trained and authorized Persons
to operate the EAS equipment provided pursuant to this subsection. Grantee shall
provide training to City personnel in the operation of the EAS as requested by the
City
12.5 Technical Performance
The technical performance of the Cable System shall meet or exceed all
applicable federal (including, but not limited to, the FCC), State and local technical
standards, as they may be amended from time to time, regardless of the
transmission technology utilized. The City shall have the full authority permitted by
applicable law to enforce compliance with these technical standards.
12.6 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on
the Cable System'
(1) All tests required by the FCC;
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(2) All other tests reasonably necessary to determine compliance
with technical standards adopted by the FCC at any time during the term of
this Franchise; and
(3) All other tests as otherwise specified In this Franchise.
(B) At a minimum, Grantee's tests shall include:
(1) Cumulative leakage index testing of any new construction;
(2) Semi-annual compliance and proof of performance tests In
conformance with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints;
(4) Periodic monitoring tests, at intervals not to exceed six
(6) months, of Subscriber (field) test points, the Headend, and the condition
of standby power supplies, and
(5) Cumulative leakage index tests, at least annually, designed to
ensure that one hundred percent (100%) of the Cable System has been
ground or air tested for signal leakage in accordance with FCC standards.
(C) Grantee shall maintain written
System tests, performed by or for Grantee.
provided to the City upon request.
records of all results of its Cable
Copies of such test results will be
(D) If the FCC no longer requires proof of performance tests for the Cable
System during the term of this Franchise, Grantee agrees that it shall continue to
conduct proof of performance tests on the Cable System in accordance with the
standards that were in place on the Effective Date, or any generally applicable
standards later adopted, at least once a year, and provide written results of such
tests to the City upon request.
(E) The FCC semi-annual testing IS conducted in January/February and
July/August of each year. If the City contacts Grantee prior to the next test period
(i.e., before December 15 and June 15 respectively of each year), Grantee shall
provide City with no less than seven (7) days prior written notice of the actual
date(s) for FCC compliance testing. If City notifies Grantee by the December 15th
and June 15th dates that it wishes to have a representative present during the next
test(s), Grantee shall cooperate in scheduling its testing so that the representative
can be present Notwithstanding the above, all technical performance tests may be
witnessed by representatives of the City.
(F) Grantee shall be required to promptly take such corrective measures
as are necessary to correct any performance deficiencies fully and to prevent their
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recurrence as far as possible. Grantee's failure to correct deficiencies identified
through this testing process shall be a material violation of this Franchise. Sites
shall be re-tested following correction.
12.7 Additional Tests
Where there exists other eVidence which in the judgment of the City casts
doubt upon the reliability or technical quality of Cable Service, the City shall have
the right and authority to require Grantee to test, analyze and report on the
performance of the Cable System. Grantee shall fully cooperate with the City in
performing such testing and shall prepare the results and a report, if requested,
within thirty (30) days after testing. Such report shall include the following
information.
(A) the nature of the complaint or problem which precipitated the special
tests;
(8) the Cable System component tested;
(C) the equipment used and procedures employed in testing;
(D) the method, if any, in which such complaint or problem was resolved;
and
(E) Any other information pertinent to said tests and analysis which may
be required.
SECTION 13. SERVICE EXTENSION, INTERCONNECTION AND SERVICE TO
PUBLIC BUILDINGS
13.1 Universal Service
Grantee shall not arbitrarily refuse to provide Cable Services to any Person
within its Franchise area. All Dwelling Units, Multiple Dwelling Units and
commercial establishments in the Franchise Area shall have the same availability of
Cable Services from Cable System under non-discriminatory rates and reasonable
terms and conditions The City acknowledges that Grantee cannot control the
dissemination of particular Cable Services beyond the point of demarcation at a
Multiple Dwelling Unit.
Notwithstanding the foregoing, Grantee may introduce new or expanded
Cable Services on a geographically phased basis, where such services require an
Upgrade of the Cable System. Grantee may also charge for line extensions and
non-standard installations pursuant to subsection 13.2.
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13.2 Service Availability
(A) In General. Except as otherwise provided herein, Grantee shall provide
Cable Service within seven (7) days of a request by any Person within the City.
For purposes of this subsection, a request shall be deemed made on the date of
signing a service agreement, receipt of funds by Grantee, receipt of a written
request by Grantee or receipt by Grantee of a verified verbal request. Grantee shall
provide such service'
(1) With no line extension charge except as specifically authorized
in this Franchise
(2) At a non-discriminatory installation charge for a standard
installation, consisting of a one hundred fifty (150) foot drop connecting to
an inside wall for Residential subscribers, with additional charges for non-
standard installations computed according to a non-discriminatory
methodology for such installations, adopted by Grantee and provided in
writing to the City,
(3) At non-discriminatory monthly rates for Residential Subscribers.
(8) Required Extensions of the Cable System Not including individual
drops, Grantee must extend the Cable System without charge to individual
Subscribers and make Cable Service available anywhere in the Franchise Area with
the minimum density of at least twenty-five (25) Dwelling Units per 5280 cable-
bearing strand feet of trunk or distribution cable as measured from the existing
Cable System
(C) Service to Multiple Dwelling Units. The Grantee shall offer the
individual units of a Multiple Dwelling Unit all Cable Services offered to other
Dwelling Units in the City and shall individually wire units upon request of the
property owner or renter who has been given written authorization by the owner;
provided, however, that any such offering is conditioned upon the Grantee having
legal access to said unit The City acknowledges that the Grantee cannot control
the dissemination of particular Cable Services beyond the point of demarcation at a
Multiple Dwelling Unit
(D) Customer Charges for Extensions of Service. No customer shall be
refused service arbitrarily However, for unusual circumstances, such as a
customer's request to locate the cable drop underground, in an area where drops
would usually be aerial, or if the customer is in an area that does not meet the
density requirements of paragraph 8 above, Cable 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 the Grantee and
customers in the area to which Cable Service may be extended, the Grantee will
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contribute an amount equal to the construction and other costs per mile, multiplied
by a fraction whose numerator equals the actual number of Dwelling Units per
5280 cable-bearing strand feet of its trunk or distribution cable to be extended and
whose denominator equals twenty-five (25). Customers who request Cable Service
hereunder will bear the remainder of the construction and other costs on a pro rata
basis. The Grantee may require that the payment of the capital contribution in aid
of construction borne by such potential customers be paid in advance
(E) Annexations.
(1) In the event that the City annexes any territory into the
Franchise Area, the City shall provide Grantee with a list of the specific
addresses affected by the annexation.
(2) In the event that the City annexes territory that is contiguous to
the current Franchise Area and not being provided Cable Service by the
Grantee or an Affiliate of Grantee, Grantee agrees that it will extend its
Cable System into the newly annexed territory under the terms of
paragraph B above. Upon such annexation and request by the City, Grantee
shall meet with the City, within thirty (30) days of the request, to coordinate
and agree upon a reasonable time table for extension of the Cable System
into the annexed territory.
(3) In the event the City annexes territory that is currently being
provided Cable Service by Grantee or an Affiliate of Grantee, but not the
same Cable Service as provided within the current Franchise Area, Grantee
shall estimate the cost to make such adjustments to the Cable System as is
necessary to provide the same Cable Service to the annexed area. If
requested by the Grantee, Grantee and the City shall discuss the cost of
such adjustment and potential impact on Subscriber rates within one hundred
twenty (120) days of Grantee's receipt of notification of the annexation.
Unless waived by the City, Grantee shall make the required adjustments to
the Cable System and billing system to provide the same Cable Service to
the annexed area within two (2) years of receipt of the annexation
notification
(4) In the event that the City annexes territory that is not
contiguous to the current Franchise Area, Grantee shall have no obligation to
extend to such area; provided, however that if Grantee and/or an Affiliate
has permission from the appropriate government authority to use the
intervening Rights-of-Way for this purpose, either by franchise or separate
agreement, Grantee shall extend or adjust the Cable System in accordance
with paragraphs (2) or (3) above.
(5) If Grantee finds it convenient for any of the annexed territory to
be served by an Affiliate versus the Grantee, it is understood by the parties
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that the rights, benefits and obligations of this Franchise shall apply to such
Affiliate for the annexed area, without the need for transfer approval of the
City.
13.3 Interconnection With Other Cable Systems
(A) The Cable System shall be Interconnected with other contiguous,
GMTC area cable systems that are owned and operated by Grantee or an Affiliate,
provided that such systems are served by the same Headend that serves the
Franchise Area.
(B) Grantee shall, in accordance with this subsection, Interconnect the
Access Channels of the Cable System with any other contiguous cable system not
owned or operated by Grantee or an Affiliate of Grantee upon the directive of the
City. Interconnection of Channels may be done by direct cable connection,
microwave link, satellite or other appropriate methods. The City shall not direct
interconnection except under circumstances where it can be accomplished without
undue burden or excessive costs to the Subscribers as reasonably determined by
the City. Grantee shall not be required to Interconnect with the other cable system
unless the operator of that system is willing to do so and pays for its own cost of
constructing and maintaining the Interconnect up to the demarcation point.
(C) Grantee shall only be required to Interconnect Access Channels with an
overbuilder in the City in the event that the overbuilder proves to the City that it
would be economically burdensome to its Subscribers to construct and maintain
return lines directly from the origination point(s) of the Access Channel(s) versus
Interconnecting with Grantee. In the event Grantee receives a directive from the
City to Interconnect with an overbuilder, Grantee shall immediately initiate
negotiations with the other affected cable system or systems and shall report to the
City the results of such negotiations no later than sixty (60) days after such
initiation. The overbuilder shall be responsible for Grantee's costs in constructing
and maintaining the Interconnect. If the parties cannot reach agreement on the
terms of the Interconnect, including compensation and timing, the dispute shall be
submitted to the City for determination and resolution. Additionally, Grantee shall
only be required to Interconnect with an overbuilder if the overbuilder is providing
similar support for Access as required of Grantee pursuant to this Franchise.
(0) Grantee shall explore with any public interconnection authority,
regional interconnection authority or City, County, State or federal regulatory
agency which may hereafter be established for the purpose of regulating, financing
or otherwise providing for the Interconnection of cable systems beyond the
boundaries of the City, the possibility of further Interconnects.
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13.4 Connection of Public Facilities
Grantee shall, at no cost to the City, continue to provide one outlet of Basic
Service and Expanded Basic Service to all City owned and occupied buildings, all
schools and all public libraries where such service IS provided as of the Effective
Date of this Franchise. For purposes of this subsection, "school" means all state-
accredited K-12 public and private schools. In addition, upon request, Grantee shall
provide, at no cost to the City or other entity, one outlet of Basic Service and
Expanded Basic Service to additional owned or leased and occupied City buildings,
schools and libraries if the drop Ime from the feeder cable to such building does not
exceed one hundred fifty feet (150') or if the City or other entity agrees to pay the
incremental cost of such drop line in excess of one hundred fifty feet (150').
including the cost of such excess labor and materials. Such obligation to provide
free Cable Service shall not extend to areas of City buildings where the Grantee
would normally enter into a commercial contract to provide such Cable Service
(e.g., golf courses, airport restaurants and concourses, and recreation center work
out facilities). Outlets of Basic and expanded Basic Service provided in accordance
with this subsection may be used to distribute Cable Services throughout such
buildings, provided such distribution can be accomplished without causing Cable
System disruption and general technical standards are maintained. Such outlets
may only be used for lawful purposes.
SECTION 14. FRANCHISE VIOLATIONS
14.1 Procedures for Remedying Franchise Violations
(A) If the City Manager believes that Grantee has failed to perform any
obligation under this Franchise or has failed to perform in a timely manner, the City
Manager shall notify Grantee in writing, stating with reasonable specificity the
nature of the alleged default. Grantee shall have thirty (30) days from the receipt
of such notice to.
(1) respond to the City Manager, contesting the City Manager's
assertion that a default has occurred; or
(2) cure the default; or
(3) notify the City Manager that Grantee cannot cure the default
within the thirty (30) days, because of the nature of the default. In the
event the default cannot be cured within thirty (30) days, Grantee shall
promptly take all reasonable steps to cure the default and notify the City
Manager in writing and in detail as to the exact steps that will be taken and
the projected completion date. In such case, the City Manager may set a
meeting in accordance with paragraph (B) below to determine whether
additional time beyond the thirty (30) days specified above is indeed needed,
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and whether Grantee's proposed completion schedule and steps are
reasonable.
(B) If Grantee does not cure the alleged default within the cure period
stated above, or by the projected completion date under paragraph (A)(3), or denies
the default and the City intends to continue its investigation into the default, or the
City Manager orders a meeting in accordance with paragraph (A)(3), the City
Manager shall set a meeting to investigate said issues or the existence of the
alleged default. The City Manager shall notify Grantee of the meeting in writing
and such meeting shall take place no less than thirty (30) days after Grantee's
receipt of notice of the meeting. At the meeting, Grantee shall be provided an
opportunity to be heard and to present evidence in its defense.
(C) If, after the meeting, the City Manager determines that a default
exists, the City Manager shall order Grantee to correct or remedy the default or
breach within fifteen (15) days or within such other reasonable time frame as the
City Manager shall determine. In the event Grantee does not cure within such time
to the City Manager's reasonable satisfaction, the City Manager may:
(1 )
damages;
Withdraw an amount from the letter of credit as monetary
(2) Recommend the revocation of this Franchise pursuant to the
procedures in subsection 14.2, or
(3) Recommend any other legal or equitable remedy available under
this Franchise or any applicable law.
(D) The determination as to whether a violation of this Franchise has
occurred shall be within the discretion of the City Manager, provided that Grantee
may appeal any such final determination to the District Court for Jefferson County,
Colorado if the matter is solely contractual and does not raise issues of federal law.
If the matter raises issues of federal law, Grantee may appeal to federal court.
14.2 Revocation
(A) In addition to revocation in accordance with other provisions of this
Franchise, the City may revoke this Franchise and rescind all rights and privileges
associated with this Franchise in the following circumstances, each of which
represents a material breach of this Franchise:
(1) If Grantee fails to perform any material obligation under this
Franchise or under any other agreement, ordinance or document regarding
the City and Grantee;
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(2) If Grantee willfully fails for more than forty-eight (48) hours to
provide continUOUS and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provIsion of this
Franchise or to practice any fraud or deceit upon the City or Subscribers; or
(4) If Grantee becomes insolvent, or if there is an assignment for
the benefit of Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the
application for or negotiation of this Franchise
(8) Prior to forfeiture or termination of the Franchise, the City shall give
written notice to the Grantee of its intent to revoke the Franchise. The notice shall
set forth the exact nature of the noncompliance. Grantee shall have thirty
(30) days from such notice to object in writing and to state its reasons for such
objection and provide any explanation In the event the City has not received a
satisfactory response from Grantee, it may then seek a termination of the Franchise
by the City Council in accordance with this subsection.
(C) Any proceeding under the paragraph above shall be conducted by the
City Council and open to the public. Grantee shall be afforded at least forty-five
(45) days prior written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity
for full participation, including the right to be represented by legal counsel, to
introduce evidence, and to subpoena and question witnesses. A complete
verbatim record and transcript shall be made of such proceeding and the cost
shall be shared equally between the parties. The City Council shall hear any
Persons interested in the revocation, and shall allow Grantee, in particular, an
opportunity to state its position on the matter
(2) Within ninety (90) days after the hearing, the City Council shall
determine whether to revoke the Franchise and declare that the Franchise is
revoked and the letter of credit forfeited; or if the breach at issue is capable
of being cured by Grantee, direct Grantee to take appropriate remedial action
within the time and in the manner and on the terms and conditions that the
City Council determines are reasonable under the circumstances. If the City
determines that the Franchise is to be revoked, the City shall set forth the
reasons for such a decision and shall transmit a copy of the decision to the
Grantee. Grantee shall be bound by the City's decision to revoke the
Franchise unless it appeals the decision to a court of competent jurisdiction
within fifteen (15) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem
appropriate.
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(4) The City Council may at Its sole discretion take any lawful
action which it deems appropriate to enforce the City's rights under the
Franchise in lieu of revocation of the Franchise.
14.3 Procedures in the Event of Termination or Revocation
(A) If this Franchise expires without renewal or is otherwise lawfully
terminated or revoked, the City may, subject to applicable law:
(1) Allow Grantee to maintain and operate the Cable System on a
month-to-month basis or short-term extension of this Franchise for not less
than six (6) months, unless a sale of the Cable System can be closed sooner
or Grantee demonstrates to the City's satisfaction that it needs additional
time to complete the sale; or
(2) Purchase Grantee's Cable System In accordance with the
procedures set forth in subsection 14.4 below.
(S) In the event that a sale has not been completed in accordance with
paragraphs (A)(1) and/or (A)(2) above, the City may order the removal of the
above-ground Cable System facilities and such underground facilities from the City
at Grantee's sole expense within a reasonable period of time as determined by the
City. In removing its plant, structures and equipment, Grantee shall refill, at is own
expense, any excavation that is made by it and shall leave all Rights-of-Way, public
places and private property in as good condition as that prevailing prior to
Grantee's removal of its equipment without affecting the electrical or telephone
wires or attachments. The indemnification and insurance provisions and the letter
of credit shall remain in full force and effect during the period of removal, and
Grantee shall not be entitled to, and agrees not to request, compensation of any
sort therefor.
(C) If Grantee fails to complete any removal required by paragraph (S) to
the City's satisfaction, after written notice to Grantee, the City may cause the
work to be done and Grantee shall reimburse the City for the costs incurred within
thirty (30) days after receipt of an itemized list of the costs, or the City may
recover the costs through the letter of credit provided by Grantee.
(0) The City may seek legal and equitable relief to enforce the provisions
of this Franchise.
14.4 Purchase of Cable System
If at any time this Franchise is revoked, terminated, or not renewed upon
expiration in accordance with the provisions of federal law, and the City acquires
ownership of the Cable System or effects a transfer of ownership of the Cable
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System to another Person, the price for the Cable System shall be determined as
follows.
(A) In the case of the expiration of the Franchise without renewal, 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. In order to obtain the
fair market value, this valuation shall be reduced by the amount of any lien,
encumbrance, or other obligation of Grantee which the City would assume.
(8)
System.
In the case of revocation for cause, the equitable price of the Cable
14.5 Receivership and Foreclosure
(A) At the option of the City, subject to applicable law, this Franchise may
be revoked one hundred twenty (120) days after the appointment of a receiver or
trustee to take over and conduct the business of Grantee whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred
twenty (120) days of appointment; or
(2) The receivers or trustees have, within one hundred twenty
(120) days after their election or appointment, fully complied with all the
terms and provisions of this Franchise, and have remedied all defaults under
the Franchise Additionally, the receivers or trustees shall have executed an
agreement duly approved by the court having jurisdiction, by which the
receivers or trustees assume and agree to be bound by each and every term,
provision and limitation of this Franchise.
(8) If there is a foreclosure or other involuntary sale of the whole or any
part of the Cable System in the Right-of-Way, the City may serve notice of
revocation on Grantee and to the purchaser at the sale, and the rights and
privileges of Grantee under this Franchise shall be revoked thirty (30) days after
service of such notice, unless:
(1) The City has approved the transfer of the Franchise, in
accordance with the procedures set forth in this Franchise and as provided
by law; and
(2) The purchaser has covenanted and agreed with the City to
assume and be bound by all of the terms and conditions of this Franchise.
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14.6 No Monetary Recourse Against the City
Grantee shall not have any monetary recourse against the City or its officers,
officials, boards, commissions, agents or employees for any loss, costs, expenses
or damages arising out of any provision or requirement of this Franchise or the
enforcement thereof, in accordance with the provisions of applicable federal, State
and local law. The rights of the City under this Franchise are in addition to, and
shall not be read to limit, any immunities the City may enjoy under federal, State or
local law.
14.7 Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of the City to
seek or obtain judicial relief from a violation of any provision of the Franchise or
any rule, regulation, requirement or directive promulgated thereunder. Neither the
existence of other remedies identified in this Franchise nor the exercise thereof
shall be deemed to bar or otherwise limit the right of the City to recover monetary
damages for such violations by Grantee, or to seek and obtain judicial enforcement
of Grantee's obligations by means of specific performance, injunctive relief or
mandate, or any other remedy at law or in equity.
14.8 Assessment of Monetary Damages
(A) The City may assess against Grantee monetary damages up to two
hundred fifty dollars ($250.00) per day for any material breaches or defaults, and
withdraw the assessment from the letter of credit or collect the assessment as
specified in this Franchise. To assess any amount from the letter of credit, City
shall follow the procedures for withdrawals from the letter of credit set forth in the
letter of credit and in the Franchise. Such damages shall accrue beginning thirty
(30) days following Grantee's receipt of the notice required by paragraph 14.1 (A),
or such later date if approved by the City in its sole discretion, but may not be
assessed until after the procedures in subsection 14.1 have been completed.
(8) The assessment does not constitute a waiver by City of any other
right or remedy it may have under the Franchise or applicable law, including its
right to recover from Grantee any additional damages, losses, costs and expenses
that are incurred by City by reason of the breach of this Franchise.
14.9 Effect of Abandonment
If the Grantee abandons the Cable System during the Franchise term, or fails
to operate the Cable System in accordance with its duty to provide continuous
service, the City, at its option, may operate the Cable System; designate another
entity to operate the Cable System temporarily until the Grantee restores service
under conditions acceptable to the City, or until the Franchise is revoked and a new
franchisee is selected by the City; or obtain an injunction requiring the Grantee to
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continue operations. If the City is required to operate or designate another entity
to operate the Cable System, the Grantee shall reimburse the City or its designee
for all reasonable costs, expenses and damages incurred.
14.10 What Constitutes Abandonment
The City shall be entitled to exercise its options in subsection 14.9 if:
(A) The Grantee fails to provide Cable Service in accordance with this
Franchise over a substantial portion of the Franchise Area for four (4) consecutive
days, unless the City authorizes a longer interruption of service; or
(8) The Grantee, for any period, willfully and without cause refuses to
provide Cable Service in accordance with this Franchise.
SECTION 15. FRANCHISE RENEWAL AND TRANSFER
15.1 Renewal
This Franchise shall be renewed pursuant to the procedures set forth In
applicable federal, state, or local laws.
15.2 Transfer and Change of Control
(A) The Franchise shall not be assigned or transferred, either in whole or
In part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either
legal or equitable, or any right, interest or property therein, pass to or vest in any
Person without the prior written consent of the City. The Grantee may, however,
transfer or assign the Franchise to an Affiliate of the Grantee, and such Affiliate
may transfer or assign the Franchise back to the Grantee or to another Affiliate
without such consent. Further, Grantee may pledge the assets of the Cable
System for the purpose of financing without the consent of the City; provided that
such pledge of assets shall not impair or mitigate Grantee's responsibilities and
capabilities to meet all of its obligations under the provisions of this Franchise.
(8) Any proposed assignee must show financial responsibility as
determined by the City pursuant to applicable law and must agree to comply with
all provisions of the Franchise. The City shall be deemed to have consented to a
proposed transfer or assignment in the event its refusal to consent is not
communicated in writing to the Grantee within sixty (60) days following the receipt
of written notice of the proposed transfer or assignment.
(C) The Grantee shall promptly notify the City of any actual or proposed
change in, or transfer of, or acquisition by any party of control of the Grantee. The
word "control" is used herein and is not limited to major stockholders but includes
actual working control in whatever manner exercised. Every change, transfer or
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acquIsition of control of the Grantee (except the Affiliate transfer described in
paragraph (A) above) shall make the Franchise subject to cancellation unless and
until the City shall have consented thereto, which consent will not be unreasonably
withheld For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, the City may inquire into the qualifications of the
prospective controlling party, and the Grantee shall assist in any such inquiry. In
addition to those criteria mentioned above for determining whether or not to
approve any such change, transfer or acquisition, the Council may also look into
the legal and technical qualifications of the proposed assignee or controlling party
pursuant to applicable law.
(0) The consent or approval of the Council to any transfer shall not
constitute a waiver or release of the rights of the City in and to the Rights-of-Way,
and any transfer shall by its terms, be expressly subordinate to the terms and
conditions of the Franchise
SECTION 16. MISCELLANEOUS PROVISIONS
16.1 Compliance with State and Federal Laws
Notwithstanding any other provision in this Franchise to the contrary, the
Grantee shall at all times comply with all laws and regulations of the State and
federal governments or any administrative agencies thereof. Provided, however, if
any such State or federal law or regulation shall prohibit the Grantee from
performing any obligation required by this Franchise or of any law or regulation of
the City, then as soon as possible following knowledge thereof, the Grantee shall
notify the City of the point of conflict believed to exist between such regulation or
law and the laws or regulations of the City or this Franchise.
16.2 Notice
All notices from the Grantee to the City pursuant to this Franchise shall be to
the City Manager or to such other officers designated by the Council. The Grantee
shall maintain with the City, throughout the term of the Franchise, an address for
service of all notices by mail.
The notices or responses to the City shall be addressed as follows:
City of Wheat Ridge
Attn: City Manager
7500 West 29th Avenue
Wheat Ridge, CO 8021 5
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With a copy to:
City of Wheat Ridge
Attn. City Attorney
7500 West 29th Avenue
Wheat Ridge, CO 80215
The notices or responses to Grantee shall be addressed as follows:
TCI Cablevision of Colorado, Inc.
I/k/a AT&T Broadband
Attn: Government Affairs Department
8000 East Iliff Avenue
Denver, CO 80231
With a copy to.
TCI Cablevision of Colorado, Inc.
I/k/a AT&T Broadband
Attn: Legal Department / Local Government Affairs
188 Inverness Dr. West
Englewood, CO 80112
The Franchising Authority and Grantee may designate such other address or
addresses from time to time by giving notice to the other in the manner provided
for in this subsection.
16.3 Nondiscrimination in Employment
(A) The Grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC.
(B) The Grantee shall comply at all times With all other applicable Federal,
State, City ordinances and laws, and all executive and administrative orders relating
to nondiscrimination in employment
16.4 Costs to be Borne by Grantee
(A) Costs to be borne by the Grantee shall include all costs of publication
of this Franchise as required by law, and any and all notices prior to any public
meeting provided for pursuant to this Franchise.
(B) Grantee shall also pay for all costs and expenses involved with the
modification or transfer of this Franchise requested by Grantee, whether such costs
and expenses result from accrued City in-house staff time, or out of pocket
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expenses or administrative costs, as well as expenses of retaining independent
consultants, attorneys or advisors, up to a maximum amount as mutually-agreed
upon by the parties at the time of application for such modification or transfer.
16.5 Binding Effect
ThIs Franchise shall be binding upon the parties hereto, their permitted
successors and assigns.
16.6 Jurisdiction
Jurisdiction and venue for any judicial dispute between the City and Grantee
arising under or out of this Franchise shall be proper and exclusive in federal or
state court of proper jurisdiction in Colorado.
16.7 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor shall either
party act toward third Persons or the public in any manner which would indicate
any such relationship with the other.
16.8 Waiver
The failure of the City at any time to require performance by the Grantee of
any provision hereof shall in no way affect the right of the City hereafter to enforce
the same. Nor shall the waiver by the City of any breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such provision, or as a
waiver of the provision itself or any other provision.
16.9 Release and Waiver of Claims Under Prior Franchise
The parties agree that this Franchise replaces in its entirety that Permit
Agreement entered into on July 13, 1982 between the City and American
Cablevision of Wheat Ridge, a division of American Television and Communications
Corporation (predecessor in interest to Grantee), which Permit is extinguished and
cancelled hereby. The parties agree that as a condition of the effectiveness of this
Franchise, and in full settlement of Grantee's obligations under the July 13, 1982
Permit, Grantee shall pay to the City the amount of $60,000 Grantee shall also
donate to the City production equipment for its City Council chambers that can be
used to film a live-feed production or taped production of the City Council meetings
and any other function to take place in City Council chambers The equipment will
include the equipment listed in Exhibit C. Grantee shall also install this equipment
The City shall own and maintain the equipment once the equipment is installed.
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No part of this donation may be recovered by Grantee from any form of
Subscriber fee, charge or surcharge Upon such payment, Grantee shall be fully
released and discharged from any and all claims arising from the July 13, 1982
Permit and the Permit shall be deemed terminated. Such donation to the City shall
not be construed as an admission on behalf of Grantee of any noncompliance under
the July 13, 1982 Permit.
16.10
Entire Agreement
This Franchise and all Exhibits represent the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior oral negotiations between the parties.
16.11 Severability
If any Section, subsection, paragraph, term or provIsion of this Franchise is
determined to be illegal, invalid or unconstitutional by any court or agency of
competent jurisdiction, such determination shall have no effect on the validity of
any other Section, subsection, paragraph, term or provision of this Franchise, all of
which will remain in full force and effect for the term of the Franchise.
16.12 Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise are
for reference purposes only, and shall not affect the meaning or interpretation of
the text herein.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of Wheat
Ridge, Colorado this ~ day of' (!, 2001.
ATTEST:
CITY OF WHEAT RIDGE, COLORADO:
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APPROVED AS TO FORM.
RECOMMENDED AND APPROVED:
~.~ ~b)y
City Attorney
4!24vL_r
City Manager
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Accepted and approved this l-3'1.-. day of MOJ th." 2001 .
Tyr"CJ.:BLEVISION OF COLORADO, INC.
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/ ' 51
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Jos~ph R. Stackhouse
Serlior Vice President
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EXHIBIT A
MEMBERS OF THE GREATER METRO TELECOMMUNICATIONS CONSORTIUM
Adams County
Arapahoe County
City of Arvada
City of Aurora
City of Brighton
City of Broomfield
City of Castle Rock
Cherry Hills Village
Commerce City
City and County of Denver
Douglas County
City of Edgewater
City of Englewood
City of Glendale
City of Golden
Greenwood Village
City of Idaho Springs
Jefferson County
City of Lafayette
City of Lakewood
City of Littleton
City of Lone Tree
City of Northglenn
City of Parker
City of Sheridan
City of Thornton
City of Westminster
City of Wheat Ridge
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EXHIBIT B
CUSTOMER SERVICE STANDARDS
Wheat Ridge Code of laws. Ordinance 973. Series 1994 (attached)
--
INTRODUCED BY COUNCIL MEMBER EDWARDS
Council Bill No. ~ ORDINANCE NO. 973
Series of 1994
TITLE:
AN ORDINANCE REPEALING SECTION 21A-8 (B), AND SECTION
21A-22, AND REPEALING AND REENACTING SECTION 21A-14 OF
THE CODE OF LAWS OF THE CITY OF WHEAT RIDGE, COLORADO TO
ESTABLISH CUSTOMER SERVICE REQUIREMENTS FOR THE OPERATION
OF CABLE SYSTEMS WITHIN THE CITY PURSUANT TO SECTION 522
OF TITLE 47 OF THE UNITED STATES CODE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE,
COL9RADO, THAT:
Section 1. section 552 of Title 47 of the united States Code
authorizes local franchising authorities to "establish and enforce
customer service requirements" upon cable operators within their
jurisdictions.
Section 2. Section 21A-3 (B) and Section 21A-22 of the Code of
laws of the city of Wheat Ridge, Colorado are hereby repealed.
section 3. Section 21A-14 is repealed and reenacted to incorporate
in its entirety the standards shown as exhibit 1 with the new
section title, "Customer Service Standards".
section 4. Safety Clause. The City Council hereby finds,
determines, and declares that this ordinance is promulgated under
the general police power of the City of Wheat Ridge, that it is
promulgated for the health, safety, and welfare of the public, and
that this ordinance is necessary for the preservation of health and
safety dnd for the protection of public convenience and welfare.
The City Council further determines that the ordinance bears a
rational relation to the proper legislative object sought to be
attained.
Section 5. Severability. If any clause, sentence, paragraph, or
part of this ordinance or the application thereof to any person or
circumstances shall for any reason be adjudged by a court of
competent jurisdiction invalid, such judgment shall not affect,
impair or invalidate the remainder of this ordinance or its
application to other persons or circumstances.
section 6. This ordinance shall take effect one day after final
publication.
INTRODUCED, READ, AND ADOPTED on first re3ding by a vote of ~ to
,1 on this 25 ch day of June ,] 994, ordered published in full
in a newspaper of general circulation in the City of Wheat Ri~ge
"nd Public Hearing and consideration on final passage set for Jill:;
~~, 1994, at 7:00 o'clock p.m., in the Council Chambers, 7500
West 29th Avenue, Wheat Ridge, Colorado.
/
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READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by
a vote of ~ to ~, this 25th day of Ju1 Y , 1994.
SIGNED by the Mayor on this 26th day of July 1994.
~~
Dan Wilde, Mayor
1st Publication: July 5, 1994
2nd Publication: Augus t 2, 1994
Wheat Ridge sentinel
Effective Date: August 3, 1994
APPROVED AS TO FORM BY CITY ATTORNEY
~~~
Kathr n S roeaer, CITY ATTORNEY
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EXHIBIT 1
GREATER METRO CABLE CONSORTIUM
CUSfOMER SERVICE SfANDARDS
I. POLICY
The Cable Operator should be permitted the option and autonomy to first resolve citizen
complaints without delay and interference from the Franchising Authority.
Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the
Franchising Authority should intervene. In addition, where a pattern of, or unremedied,
noncompliance with the Standards is identified, the Franchising Authority should prescribe a cure
and establish a 30 day deadline for implementation of the cure. If the noncompliance is not cured
within 30 days, monetary sanctions should be imposed to encourage compliance.
These Standards are intended to be of general application, however, the Cable Operator shall be
relieved of any obligations hereunder it is unable to perform due to a region-wide natural
emergency or in the event of force majeure affecting a signiticant portion of the franchise area.
The Cable Operator is free to exceed these Standards to the benetit of its Customers and such
shall be considered performance for the purposes of these Standards.
11. DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words, phrases,
and terms shall have the meanings given below.
"Adontion" shall mean the process necessary to formally enact the Standards within the
Franchising Authority's jurisdiction, or to approve the Model Franchise Agreement adopted by
the TCI Renewal Group of the GMCC (the" MFA") incorporating the Standards, under applicable
ordinances and laws.
"Cable Onerator" shall mean any person granted a franchise to operate, or operating, a cable
television, data transfer, or telecommunications system within any area of jurisdiction of the
Franchising Authority, and, in the MFA, the Grantee, or such person's employees, agents,
contractors, or subcontractors.
"Q!y" shall me:m the City of Wheat Ridge, Colorado
"Customer" shall mean any person who receives service of any sort from the Cable Operator.
"Customer Service Renresentative" (or "~") shall mean any person employed by the Cable
Operator to assist, or provide service to, customers, whether by answering public telephone lines,
writing service or in.;t:IiL'tl(lll on.lers, answering customers' tjucstl(lns. receiving and pr0cessing
payments. or pertimnlng other customer service-rdated tasks
"FranchiSing AUlhmily" shall mean the City (County or Town) and/or the Greater Metro Cable
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Consortium, and/or, in the MFA, the Grantor.
"Greater Metro Cahle Consortium" or "GMCC" shall mean a Colorado agency formed by
intergovernmental agreement between its Members, local governmental subdivisions of the State
of Colorado The GMCC may be delegated the authority to enforce cable television franchises
and cable system operations for its Member communities, and may administer any or all functions
u nd er th ese Stand ards.
"Town" shall mean the Town of
, Colorado
III. CUSTOMER SERVICE
A. Courtesy
All employees of the Cable Operator shall be courteous, knowledgeable and helpful and shall provide
effective and satisfactory service in all contacts with customers.
B. Accessibility
1.
Within sixty (60) days of the effective date of the..~e Standards, the Cable Operator shall provide,
at sites acceptahle to the Franchising Authority, customer service centerslbusiness offices
("service centers") such that no customer shall be located further than ten (10) miles away from
a service center. Except as otherwise approved by the Franchising Authority, all service centers
shall be open Monday through Friday from 8:00 a.m to 6:00 p.m., and from 9:00 am to 1:00
p.m Saturdays, and shall bo:: fully staffed with customer service representatives offering the
following services to customers who come to the service center: bill payment, equipment
exchange, processing of change of service requests, and response to customer inquiries and
requests. The Franchising Authority may approve alternatives for service centers offering lesser
services at any site to which the public has general access. The Cable Operator shall post a sign
at each service center advising customers of its hours of operation and of the addresses and
telephone numbers at which to contact the Franchising Authority and the Cable Operator if the
service center is not open at the timt'..~ posted. The Cable Operator shall provide free exchanges
of faulty converters at the customer's address.
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The Cable Operator shall maintain local telephone access lines that shall be available 24 hours
a day, seven days a week for service/repair requests and billing inquiries.
3.
The Cable Operator shall have dispatchers and technicians on call 24 hours a day, 7 days a week,
including legal holidays.
4.
Tho:: Cahlo:: Operator shall retain sufticio::nt customo::r service ro::presentatives and telephone line
capacity to ensun: that telephono:: calls to service/repair and billing inquiry lines are answereJ by
a customer servico:: representativo:: within 30 seconds or less, and that any transfers are made
within 30 seconds. The..~e standards shall be met no less than 90 percent of the time measured
monthly.
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111e total numher of calls receiving husy signals shall not exceed 3% of the total telephone calls.
Thb stambrJ sh;Iilbe met 90 percent or more 01 tho:: timo:: measured monthly.
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C. Responsiveness
I. Guaranteed Seven-Day Residential Installation
a. The Cable Operator shall complete all standard residential installations requested by
customers within 7 business days after the order is placed, unless a later date for
installation is requested. "Standard" residential installations are those located up to 125
feet from the existing distribution system. If the customer requests a nonstandard
residential installation, or the Cable Operator determines that a nonstandard residential
installation is required, the Cable Operator shall provide the customer in advance with
a total installation cost estimate and an estimated date of completion.
b. All underground cable drops from the curb to the home shall be buried at a depth of no
less than twelve inches (12"), and within no more than one calendar week from the initial
installation, or at a time mutually agreed upon between the Cable Operator and the
customer.
2. Residential Installation and Service Annointments
a. Customers requesting installation of cable service or service to an existing installation
may choose any of the following blocks of time for the installation appointment. 8'00
a.m to 12:00 a.m.. 12'00 Noon to 4'00 pm; 400 P m to 8'00 pm., or a four-hour
block of time mutu311y agreed upon by the customer 3nd the Cable Operator The Cable
Operator may not cancel an appointment With a customer after 5:00 p m. on the day
before the scheduled appointment, except for appointments scheduled within twelve (12)
hours after the initial call
b. The Cable Operator shall contact by telephone, mail, or in person, every customer within
2 weeks after installation to assure the customer's satisfaction with the work completed
All responses shall be recorded, and retained by the Cable Operator, and made easily
available to the Franchising Authority upon request.
C. The Cable Operator shall be deemed to have responded to a request for service under the
provisions of this section when a technician arrives within the agreed upon time, and, if
the customer is absent when the t~hnician arrives, the technician leaves WrItten
notification of arrival and return time, and a copy of that notification is kept by the Cable
Operator. In such circumstances, the Cable Operator shall contact the customer within
forty-eight (48) hours.
3. Re..;idential Service Interruntions
a. In the event of system outages (loss of reception on all channels) resulting from Cable
Operator equipment failure affecting 5 or more customers, the Cable Operator sh311
correct such failure within 2 hours after the 3nJ customer call is received.
b. All other service interruptions resulting from Cable Operator equipment failure shall be
corrected by the Cable Operator by the end of the next calendar day.
c The Cablt: Operator shall keep an accurate and comprehensive tile of any and all
complaints re~arding the cahle system ur its operation of the cahle system, in a manner
consistent with the privacy rights of customers. and the Cahle Operator's actions ini
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response to those complaints. These tiles shall remain open to the Franchising Authority
and the public during normal business hours. Grantee shall provide Grantor an executive
summary monthly, which shall include information concerning customer complaints. A
summary of service requests, identifying the number and nature of the requests and their
disposition, shall also be completeJ by the Cable Operator for each month and submitted
to the Franchising Authority by the tenth (10th) day of the succeeding month. A log of
all service interruptions shall be maintained and provided to the Franchising Authority
quarter! y.
d. All service outages and interruptions for any cause beyond the control of the Cable
Operator shall be corrected within 36 hours, after the conditions beyond its control have
been corrected.
4. TV Recention
a. The Cable Operator shall provide clear television reception that meets or exceeds
technical standards established by the United States Federal Communications Commission
(the "FCC). The Cable Operator shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time possible. Scheduled
interruptions shall be preceded by notice and shall occur during periods of minimum use
of the system, preferably between midnight and six a.m. (6:00 a.m.)
b. If a customer experiences poor Video or audio reception attributable to the Cable
Operator's equipment, the Cable Operator shall repair the problem no later than the day
following the customer call. If an appointment is necessary, customer may choose the
samc blocks of time uescribeJ in Section 1I1.2.a. At the customer's request, the Cable
Operator shall repair the problem al a later time convenient to the customer.
5. Problem Resolution
The Cable Operator's customer service representatives shall have the authority to provide credit
for interrupted service or any of the other credits listed in Schedule A, to waive fees, to schedule
service appointments and to change bill ing cycles, where appropriate. Any difficulties that cannot
be resolved by the customer service representative shall be referred to the appropriate supervisor
who shall contact the customer within 4 hours and resolve the problem within 48 hours or within
such other time frame as is acceptable to the customer and the Cable Operator.
6. Billin!! Credits and Refunds
a. Cable Operator shall convert to the Anniversary Billed System or similar system of
billing as set forth in the attached Exhibit C no later than December 31, 1996. The
Cable Operator shall submit reports to the Franchising Authority regarding its progress
towards converting to said system at least quarterly. Should these re[lort..~ indicate that
lhe conversion can practicahly take place prior to the above-mentioned dale, Cable
Operator shall so convert. On the date when the Cable Operator converts to the
Anniversary Billing System, the following conditions shall apply: The Cable Operator
shall allow at least thirty (30) days from the beginning date of the applicable service
periOl.llilr payment of a customer's service bill for that period. If a customer's service
bill is not pJiu within that pcriou of tinu: the Cable Operator may apply an auminlstrative
fee tll the customer's account If the customer's service bill is not paiu within furty-five
~.~5) dJys of the beginning date 01 th~ applil..:!ble $ervict: period, the Cahlt: Operator may
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perform a .soft" disconnect of the customer's service. If a customer's service bill is not
paid within fifty-two (52) days of the beginning date of the applicable service period, the
Cable Operator may disconnect the customer's service, provided it has provided two (2)
weeks notice to the customer that such disconnection may result.
b. The Cable Operator shall issue a credit or refund to a customer within 30 days after
determining the customer's entitlement to a credit or refund.
7. Treatment of Prol1erty
a. The Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other
landscaping that are damaged by the Cable Operator, any employee or agent during
installation or construction shall be restored to their prior condition or replaced. Trees
and shrubs shall not be removed without the prior permission of the owner or legal tenant
of the property on which they are located. This provision shall be in addition to, and
shall not supersede, any requirement in any franchise agreement.
b. The Cable Operator shall, at its own cost and expense, and in a manner approved by the
property owner and the Franchising Authority, restore any property to as good condition
as before the work causing such disturbance was initiated. The Cable Operator shall
repair. replace or compensate a property owner for any damage resulting from the Cable
Operat0r's instalbtion, construction. service or repair activities
c. Except in the case of an emergency involving public safety or service interruption to a
large number of subscribers, the Cable Operator shall give reasonable notice to property
owners or legal tenants prior to entering upon private premises, and the notice shall
specify the work to be performed; provided that in the case of construction operations
such notice shall be delivered or provided at least twenty-four (24) hours prior to entry.
Nothing herein shall be construed as authorizing access or entry to private property, or
any other property, where such right to access or entry is not otherwise provided by law.
If damage is caused by any Cable Operator activity, the Cable Operator shall reimburse
the property owner 100% of the cost of the damage or replace the damaged property.
For the installation of pedestals or other major construction or installation projects,
property owners shall also be notitied by mail at least one week in advance. In the case
of an emergency, the Cable Operator shall attempt to contact the property owner or legal
tenant in person, and shall leave a door hanger notice in the event personal contact is not
made.
d. The Cable Operator personnel shall clean all areas surrounding any work site and ensure
that all c.1ble materials have been disposed of properly.
D. Scnices fur Custumers with Disabilities
I. For any cllstomer with a disability, the Cable Operator shall at no charge deliver and pick up
converters at customers' homes. In the case of a malfunctioning converter, the technician shall
provide another converter, hook it up and ensure that it is working properly, and shall return the
defective Cllllverter to the Cable Opcratllr
2 The Callt.:. Ol'cl'at"l" shall pruvide TOO service with trained operators who can provide every type
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of assistance rendered by the Cable Operator's customer service representatives for any hearing-
impaired customer at no charge.
3. The Cable Operator shall provide free use of a remote control unit to mobility-impaired (if
disabled, in accordance with subsection 4, below) customers.
4. Any customer with a disability may request the special services described above by providing the
Cable Operator with a letter from the customer's physician stating the need, or by making the
request to the Cable Operator's installer or service technician, where the need for the special
services can be visually confinned.
E. Customer Information
1. Upon installation, and at any time the customer may request, the Cable Operator shall provide
the following infonnation, in clear, concise written form:
a. Products and services offered by the Cable Operator, including its channel lineup;
b. The Cable Operator's complete range of service options and the prices for these services;
c. These Standards, with the attached Schedule A, and any other applicable customer service
standards;
d Instruction on the use of cable tv service and on standard VCR hookups;
e. The C3hle Oper3tor's billing, collection :lnd disconnection policies;
f. Customer privacy requirements;
g. All applicable complaint procedures, including complaint forms and the telephone
numbers and mailing addresses of the Cable Operator, the FCC, and the Franchising
AuthOrity to whom the complaints should be addressoo;
h. Use and availability of AfB switches;
I. Use and availability of parental controlllock out device;
J. Special services for customers with disabilities;
k. Days, times of operation, and locations of the service centers.
2. Copies of all notices provided to the customer shall be filed (by fax acceptable) concurrently with
the Franchising Authority and the Consortium.
3. The Cable Operator shall provide customers with written notification of any change in rates,
programming, or channel positions, at least 30 days before the effective date of change.
4. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors
who are in personal contact with cable customers shall wear on their outer clothing identification
cards bearing their name and photograph as approved by the Franchising Authority. The Cable
Operator shall account for all identification cards at all times. Every vehicle of the Cable
Operator shall be clearly visually identified to the public as working for the Cable Operator. All
CSRs sh;1I1 identify themselves orally to callers immediately followin<1 the "reetin" durinO' each
bOob 0
telephone contact with the public. Every vehicle of a subcontractor or contractor shall be labeled
with the name of the contractor and further identified as contracting or subcontracting for the
Cable Operator.
5. Each CSR, kchnici:m or employee of the C:lble Operator in each contact with a customer shall
state the: estllnatcd cost of the servk:e, repair, or installation ora II y prior to delIvery of the service
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or before any work is performed, and shall provide the customer with an oral statement of the
total charges before terminating the telephone call or before leaving the location at which the
work was performed.
F. Customer Privacy
1. The Cable Operator shall not monitor cable television signals to determine the individual viewing
patterns or practices of any customer without prior written consent from that customer, except
as otherwise permitted by the applicable Franchise.
2. The Cable Operator shall not sell or otherwise make available customer lists or other personally
identifiable customer information without prior written customer consent, except as otherwise
permitted by the Franchise. The Cable Operator is permitted to disclose such information if such
disclosure is necessary to render, or conduct, a legitimate business activity related to a cable
service or other service provided by the Cable Operator to its customers.
G. Safety
The Cable Operator shall install and locate its facilities, cable system, and equipment in compliance with
all federal, state. local. and company safety standards, and in such manner as shall not unduly interfere
with or endanger rer<;<,ns or property Whenever the Cahle Operator receives notice th:J.t an unsafe
condition exists with respect to its equipment, the Cable Operator shall investigate such condition
immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.
H. Satisfaction Guaranteed
The Cable Operator shall guarantee customer satisfaction for every customer who requests new
installation of cable service or adds any additional programming service to the customer's cable
subscription. Any such customer who requests disconnection of such service within 30 days from its date
of activation shall receive a credit to his/her account in the amount of one month's subscription charge
for the service that has been disconnected.
IV. COMPLAINT PROCEDURE
A. Complaint'i to the Cable Operator.
1. The Cable Operator shall establish written procedures for receiving, acting upon, and
resolving customer complaints, and crediting customer accounts in accordance with
Sch~t1le A: .Credits to Customers., which Schedule is incorporated herein by this
reference, and as otherwise provided herein. without intervention by the Franchising
Authllrity and shall publicize such procedures through printed documents at the Cable
Operator's sole expense.
2. Said written procedures shall prescribe a simple manner in which any customer may
submit a complaint by telephone or in writing to the Cable Operator that it has violated
any rru\ Ision of th~e CustOIll.:f S<.:rvi<.:e StanJards. any terms or conditions of the
custlllll.:r's contract with Ille Cahle Operator, or reasonable business practices.
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3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in
rio more than fifteen (15) calendar days after receiving the complaint, the Cable Operator
shall notify the customer of the results of its investigation and its proposed action or
credit.
4 The Cable Operator shall also notify the customer of the customer's right to file a
complaint with the Franchising Authority in the event the customer is dissatisfied with
the Cable Operator's decision, and shall thoroughly explain the necessary procedures for
filing such complaint with the Franchising Authority.
5. The Cable Operator shall immediately report all customer complaints that it does not find
valid to the Franchising Authority.
6. The Cable Operator's complaint procedures shall be filed with and approved by the
Franchising Authority prior to implementation.
B. Security Fund
1. Within thirty (30) days of the effective date of these Standards or the effective date of any
franchise granted by the Franchising Authority, whichever occurs first, the Cable
Opentor shall deposit with an escrow agent approved by the Franchising Authority
$100,000 (one hundred thousand dollars), or, in the sole discretion of the Franchising
Authority, such lesser amount as the Franchising Authority deems reasonable to protect
subscribers within its jurisdiction. Such amount may, with the approval of the
Franchising Authority, be posted jointly for more than one member of the GMCC, and
may be administered, and drawn upon, jointly by the GMCC or drawn upon individually
by each member. The escrowed funds shall constitute the "Security Fund" for ensuring
compliance with these Standards for the benefit of the Franchising Authority. The
escrowed funds shall be maintained by the Cable Operator at one hundred thousand
dollars ($100,000), or such lesser amount accepted by the Franchising Authority, even
if amounts are withdrawn pursuant to any provision of these Standards.
2. At any time during the term of this agreement, the Franchising Authority may require
the Cable Operator to increase the amount of the Security Fund, if it finds that new risk
factors exist which necessitate such an increase.
3. The Security Fund shall serve as security for the payment of any penalties, fees, charges
or credits as provided for herein and for the performance by the Cable Operator of all
its obligations under these Customer Service Standards.
4. The rights reserveO to the Franchising Authority with respect to the Security Fund are
in addition to all other rights of the Franchising Authority, whether reserved by any
applicable franchise agreement or authorized by law, and no action, proceeding or
exercise of a right with respect to same shall in any way affect, or diminish, any other
right the Franchising Authority may otherwise have.
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C. Complaints to the Franchising Authority.
1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or
who has not received a decision within the ten (10) day period as required shall be
entitled to have the complaint reviewed by the Franchising Authority.
2. The customer may initiate the review either by calling the Franchising Authority or by
filing a written complaint together with the Cable Operator's written decision, if any,
with the Franchising Authority.
3. The customer shall make such filing and notification within twenty (20) days of receipt
of the Cable Operator's decision or, if no decision has been provided, within thirty (30)
days after filing the original complaint with the Cable Operator.
4. If the Franchising Authority decides that further evidence is warranted, the Franchising
Authority shall require the Cable Operator and the customer to submit, within ten (10)
days of notice thereof, a written statement of the facts and arguments in support of their
respective positions.
. 5. The Cahle Operator and the customer shall produce any additional evidence, including
any reports from lhe Cable Operator, which the Franchising AuthOrity may deem
necessary to an understanding and determination of the complaint.
6. The Franchising Authority shall issue a determination within tifteen (15) days after
examining the materials submitted, setting forth its basis for the determination.
7. The Franchising Authority may extend these time limits for reasonable cause and may
intercede and attempt to negotiate an informal resolution.
8. If the Franchising Authority determines that the customer's complaint is valid and that
the Cahle Operator did not provide the complaining customer with the proper ~.llution
and/or credit, the Franchising Authority may reverse any decisiun of the Cable Operator
in the matter and/or require the Cable Operator to grant a specific solution as determined
by the Franchising Authority in its sole discretion, and/or any credit provided for in these
Standards; or the Franchising Authority may provide the customer with the amount of
the credit (as set forth in the attached Schedule A) by means of a withdrawal from the
Security Fund.
D. Verification of Cumpliance.
The Cahle Operatur shall establish its compliance with any or all of the standards required
through annual reports that demonstrate said compliance, or as requested hy the Franchising
Authority.
E. Overall Quality uf Service
The Franchising Authority may evaluate the overall quality of customer service provided by the
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Cable Operator to customers:
a. In conjunction with any performance review provided for in the franchise
agreement; and
b. At any other time, at its sole discretion, based on the number of customer
complaints received by the Cable Operator and the Franchising Authority, and
the Cable Operator's response to those complaints.
F. Non-Compliance with Customer Service Standards.
Non-compliance with any provision of these Standards is a violation of these Standards.
G. Procedure for Remedying Violations,
- 1. If the Franchising Authority has reason to believe that the Cable Operator has failed to
comply with any of these Standards, or has failed to perform in a timely manner, the
Franchising Authority may demand in writing that the Cable Operator remedy the alleged
noncompliance. If the alleged noncompliance is denied or not remedied to the
satisfaction of the Franchising Authority, the Franchising Authority may opt to follow
the following procedure.
2. An Informal meeting may be held to review the alleged noncompliance. If this meeting
does not result in a resolution satisfactory to the Franchising Authority, the Cable
Operator may request or the Franchising Authority may require an administrative hearing
to determine if the noncompliance occurred. The Cable Operator shall be provided with
ten (10) days written notice of the time and the place of the hearing, the allegations of
noncompliance and the possible consequences of the noncompliance if substantiated.
3. After the administrative hearing, the Franchising Authority shall determine whether the
noncompliance has been substantiated. If the noncompliance is substantiated, the
Franchising Authority may order the Cable Operator to correct or remedy the
noncompliance within thirty (30) days (except where the noncompliance constitutes a
material safelY hazard) and in the manner and on the terms and conditions that the
Franchising Authority establishes, or, in its sole discretion, the Franchising Authority
may find a material violation of these Standards.
4. If the Franchising Authority determines in its sole discretion that the noncompliance has
been substantiated, the Franchising Authority may:
a. Impose assessments of one thousand dollars ($1,000 00) per day, to be
withdrawn from the Security Fund in addition to any franchise fee until the non-
compliance is remedied; and/or
b. Order, after further hearing, such rebates and credits to affected customers as in
its sole discretion it deems reasonable and appropriate for degraded or
unsatisfactory services that constituted noncompliance with these Standards,
amI/or
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c In its sole discretion, declare a violation of the franchise agreement, and in such
case, the noncompliance shall be a violation of the franchise agreement for the
purposes of the franchise agreement, triggering all available obligations and
remedies under the franchise agreement; and/or
d Withhold licenses and permits for work by the Cable Operator or its
subcontractors in accordance with applicable law; and/or
e. Pursue any other legal or equitable remedy available under any applicable
franchise agreement or law.
f. Any assessment or remedy shall not constitute a waiver by the Franchising
Authority of any other right or remedy it may have under any applicable
franchise agreement or law including any right to recover from the Cable
Operator any additional damages, losses, costs, and expenses, including actual
attorney's fees that are incurred by the Franchising Authority by reason of, or
arise out of noncompliance with these Standards.
v. MISCELLANEOUS
A. Severahility.
Should any section, subsection, paragraph, term, or provision of these Standards be determined
to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with
regard thereto, such determination shall have no eftect on the validity of any other section,
subsection, paragraph, term, or provision of these Standards, each of the latter of which shall
remain in full force and effect.
B. Non-Waiver.
Failure to enforce any prOVISion of these Standards shall not operate as a waiver of the
obligations or re~p(\nsihilities of the Cable Operator under said provision, or any other provision
of these Standards.
Revised 4/20/94
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F-71? --F'! P-004
J1..t.l 15 '94 14:5'3
SCHEDULE A - CREDITS TO CUSTOMERS
STANDARDS OF CUSTOMER SBMCE
A. COURTESY
1.
All ~ployees of Cable OperatOr shall be friendly,
knowledgeable and helpful In thelr serviC8ll.
B, ACCESSIBlUTY
1.
Cable Operator shall provide cuatOmer service centlllll at sites
lICcep1ablo to the Fnlflohlalng Authority, wi no aubsoriber
further than 10 mil.. from one. Hours: M-F 7:00 I,m. to 7:00
p.m,: Sat. 9:00 a.m. to 1:00 p.m.
2,
Cable Operlrtor shall hive local telephone access nn.. available
24 hours I day, 7 days a waak.
3.
Cable Operator will hsve displrtchers & teehnlclllM on call 24
hrs/day. 7 days/week.
4.
Calls are being answered in 30 seoondll or '~i transfers made
within 30 seconds. 90% monthly.
5.
Cells receiving busy .ignllls shall not exceed 3'16 of the total
telephone calla.
C. RESPONSIVENESS
1.
. Gu.-mteed 7-Day RMIdemW II1lItIdIdon
a. Cable Operator shall complete installations requested
by customers wtthin 7 busll19Ss days after the order
has been placed.
b. All underground cable drops wm be burled no less than
121n. and no more than one calendar week from the
Inltlallnstallatlon, or mutual agreement.
2.
RMlden1l11 lr\s1..atIon App.lb.lI...rQ
a. Cable Operator customers wanting Inst81latlon of cable
may choose any 4-hr time-block for imJtalllltion.
b.
Every Cable Opilrlrtor customer shall be contacted w/ln
2 wks llfter installation to assure customer satisfaction.
c.
Cable Operator will have recponded to a servioo
request when taCtlnlclan arrlves w/ln the agreed upon
time, notice left if customer is not home. Reschedule
within 48 hours.
MINIMUM COMPENSATION
$!5.00 credit to their account.
.6,00 credit to their account,
$5.00 credit to their account,
$5.00 credit to thalr account.
$5.00 credit to their account,
$6.00 credit to their account.
Free Installation, or 1 month's basic
service, if the fee has been waived for
promotional rllllSOnS.
$6,00 credit to their lICCount.
$5.00 credit to their account,
$5.00 credit to their account.
STANDARDS OF CUSTOMER SERVICE
3,
ReeldentIaI 8erYloe lhtem.lpllon.
a, SystIIm outages resulting from Cable Operator
equipment failure lIffecting 6 or more customers shall
be corrected within 2 hours after the 3rd cul5tomer cell
Is received.
4.
15.
6.
7,
b.
All other interruptions resulting from Cable Operator
equipment fellure shall be corrected end of the next
day,
c,
Cable Operator shall kOep II file, for all service
Interruptions and requests for service that result In 8
service 01111.
d.
All service outages or Interruptions beyond the control
of Cable Operator shall be corrected within 38 hra.
TV ReceptIon DIfficulties
a. Cable Operator will provide clear t.v. reception and
shall make repairs promptly, and interrupt service only
for good cause and for the shortest time possible.
b.
If 8 customer experiences poor video or audio reception
due to Cable Operator's equipment. Cable Operator Will
repair the problem no later than the next day. or at
customer's convenience.
Problem Resolution
a. Cable Operator customer service reps. will be able to
provide credit, waive f888, 8chedule appointments &.
change bllllng cycles. Any difficulties th8t cannot be
reeolved by the customlll' secvlce rep. will be referred
to 8 supervisor who wiD contact the customer wlln
4hrs and offer II solution to the problem w/in 48hrs.
BIding, CredIts lII1d Refunds
8. Convertlon to Anniversary Billed System.
b.
Cable Operator shell Issue a credit or refund wlln 30
days after determining the customer Is entitled to one,
RespeGtfu! Trutment of Customer's Property
II. Cable Operator shall replace trees or shrubs damaged
from Installation.
b.
Cable Openrtor will restore Bny damaged property to
the sarna oondition it W88 before damaged.
c.
Cable Operator will give notice to property owners
before entering premises, specifying the work to be
done.
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MINIMUM COMPENSATION
One day's service for each 24-hour
delay.
One day'. service for each 24-hour
delay.
O~ day's service for 88ch 24-hour
delay ,
One day's service for each 24-hour
deley,
One day's free service for sach 24-
hour delay.
One day's free service for each 24-
hour delay.
$6.00 credit to their account.
$6.00 credit to their account.
.6,00 credit to their account,
$10.00 credit plus any additional
repllirll.
$10.00 credit plus any additional
repairs.
$10.00 credit plus any additional
repairs.
r-
STANDARDS OF CUSTOMER SERVICE
d.
Cable Openrtor personnel shall clean up the area
surrounding a work site and properly dispose cable
meterlaJe,
D. $ERVICES FOR CUSTOMERS WITH DISABlUTlES
1.
Cable 0..... .t.n Ihall provllM the foIIowlng I8l'YiC8I for
CUItOrllel'8 wtth cI8abIIItI.- CIt no CIdcDtlooel charg.:
a. Cable Operstor will de/lvlIf and pick up conVCltlll'I at
the home of customers with disabilities. In the case of
a malfunctioning converter. the technician sholl replace
It wI a new one,
2.
Cable Operwtor wII provide the foIowIng I8l'YiC8I for the
hM1ng-lmpelred lit no eckffdonaI charge:
a. Cable OPIlfIl1:or wlIl provide TOO service wI trained
operstora who can provide any assistance available.
3.
Cable Operator shall p4"ovide free use of a remote control unit
to mobility-impaired customers.
4,
A customer wi II disability may request the above services by
providing Cable Operator wi a letter from a physician stating
their condition. or by meking the request to installer in person.
E. CUSTOMER INfORMA nON
1.
Upon Instsllatfon, or at a OUSlomers request. Cable Opllflltor
wlIl provide the following Information:
a. Products and servloes offered.
b. Completll range of service options & prices.
c. Customer service standards;
d. InstrUction on use of cable TV service & on stendard
VCR hookups;
e. BIlling, collection and disconnect policies;
f. Customer prtvecy reQUlremeMl;
g. Complaint procedure. com-Inlng the City or the
designated agenoy to whom the complalntll should be
addressed:
h. Use and lMIilebillty of AJB switch;
I. Use and availability of parental control/lock out device;
j. Special I18rvlC1lS for cu.tom~ with "bual, heering or
mobllitY disabilities.
Ie. Days, times of operation, and locations of the customer
.ervlce centerS.
2.
Copi~ of ell notices to Franchising Authority & GMCC.
3
F-712 .pq P--0O2
.JU-l 15 '94 14:58
-'
MINIMUM COMPENSAT10N
$10.00 credit plus any addltionel
repairs.
$6.00 credit to their account.
$6.00 credit to their eccount.
$5.00 credit to their BOOOUnt.
$6,00 credit to their account.
Provide customer wI the requested
Info. and .6,00 credit to 8000unt.
$5.00 credit to their account.
EXHIBIT C
LIST OF EQUIPMENT
Video System Proposal
Item # Manufacturer Model Number Description Qty
1 Panasonic AWE300 3 CCD Camera 2
2 Panasonic AWPH300 Pan Tilt Head 2
3 Panasonic AWPS300 Pan Tilt Head Power Supply 2
4 Panasonic AWLZ14MD55 Remote 14x Focus and Zoom Lens 2
5 Panasonic AWCA50T15 Lens Control Cable 2
6 Panasonic AWRP505 Pan Tilt and lens remote control 1
panel plus CCU for up to 5 cameras
7 Panasonic AWPS301 Power Supply 1
8 Panasonic AWHB505 Camera Hub 1
9 Panasonic AWPS505 Power Supply for Hub 1
10 Panasonic WV7015 Wall Mount 3
11 Panasonic WVCP460 Color Camera, 120VAC 1
12 Panasonic WVLZ62/8 Lens (No Auto Zoom) 1
13 Custom Wall Plate Camera Connector Wall Plate 3
14 Panasonic WVBM503 Triple Black and White Monitors for 1
monitoring camera 1, 2, 3
15 JVC TMA9U Color Monitor for Program out and CG 2
16 FEC RKTMA9U Rack Mount for new monitor 1
17 Kramer VS602 6x2 composite video, stereo audio 1
switch w/external synch and looping
outputs
18 Videotek VDA-16 Video DA 2
19 Videotek DAT-1 Rack Mount 2
20 Videotek ADA-16 Audio DA 2
21 Videonics TM3000 Titlemaker 1
22 Hotronics AP41 Frame Synchronizer for CG 1
23 VAC BBG-2 Black Burst Generator wi 9 outputs 1
24 Winsted 86020 Rack 2
25 Winsted 85060 Rack Base 2
26 Winsted 81622 Laminated writing surface (2 bay) 1
27 Winsted 82224 shelf support brackets (pr) 1
28 Winsted 85124 side panels, pair 1
29 Winsled 84045 Top 1
30 Winsted 86071 shelf 2
31 Winsted 98710 power strip 1
32 Tech PVC4 Tech Electronics 4 input automated 1
Electronics playback switch
33 Panasonic AG1980 SVHS VTR for program play and
council record
Dale: 3/2/01
34 Winsted shelf Rack Shelf for VTR
35 Tech CCPANA-IR Cable for AG1980
Electronics
36 VDS Video Data Systems bulletin board client suppiied
messaging system (City owns)
37 ?? Computer Monitor! Video Monitor for client supplied
composing text (City owns)
38 Winsted shelf Rack Shelf for VDS 2
39 Videolek VDA-16 Video DA to split CG signal to 2
switcher input 1, default input, video
monitor AND Program out to monitor
and modulator
40 Videolek DAT-1 Rack Mount 2
41 Videotek ADA-16 Audio DA 2
42 JVC TMA9U Color Monitor for Program out, VDS an 3
43 FEC RKTMA9U Rack Mount for new monitor 2
44 Wohler AMP1ASVC Audio Monitor 1
45 CEAVCO Installation Installation Labor 1
46 CEAVCO Engineer Engineering Labor 1
47 CEAVCO Documentation AutoCad Time and Materials 1
48 CEAVCO Install!MS ESI Cable, Connectors and Misc. supplies 1
Terms: Net 30 with approved credit
Shipping: UPS Ground
Timeframe 4-6 weeks after receipt of order
Thank you for considering CEAVCO Audio Visual Company
Tracey Howell
Account Manager
THIS PROPOSAL HAS BEEN DESIGNED BY CEAVCO AUDIO VISUAL COMPANY AND IS NOT
TO BE DUPLICATED FOR DISTRIBUTION OR BIDDING PURPOSES.
IF THIS MATERIAL IS DUPLICATED FOR BIDDING A CONSULTING FEE WILL BE BILLED AGAINST
YOUR ACCOUNT