HomeMy WebLinkAboutCouncil Resolution 723RESOLUTION NO. rf~3
A RESOLUTION AUTHORIZING THE EXECUTION OF A
FRANCHISE AGREEMENT BETWEEN CENTRAL POINT AND
TCI CABLEVISION OF OREGON, INC.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CENTRAL
FOINT, OREGON, that the Mayor is hereby authorized and directed
to execute, on behalf of the City of Central Point, the Franchise
Agreement between TCI Cablevision of Oregon, Inc., and the City
of Central Point, in the form attached hereto as Exhibit "A" and
by this reference incorporated herein..
Passed by the Council
its passage this ~_ day
ATTEST:
and signed by me in authentication of
of , 1995.
Mayor Rusty McGr
H'"^-~!~
City Repr ~ to ive
Approved by me this day of , 1995..
~~ .~-
Mayor Rusty McGrat
RESOLUTION NO. ~~ (042895)
TELE-COMMUNICATIONS, INC.
CENTRAL POINT FRANCIiISE AGREEMENT
REVISED MAY 4,1995
TABLE OF CONTENTS
Paae
SECTION 1 Definition of Terms 1
1.1 Terms 1
SECTION 2 Grant of Franchise 3
2.1 Grant 3
2.2 Term . . 3
SECTION 3 Standards of Service 3
3.1 Conditions of Street Occupancy 3
3.2 Restoration. of Public Ways 4
3.3 Relocation at Request of the Franchising
Authority . . . 4
3.4 Relocation at Request of Third Party 4
3.5 Trimming of Trees and Shrubbery 5
3.6 Safety Requirements 5
3.7 Undergrounding of Cable . 5
3.8 Required Extensions of Service 5
3.9 Subscriber Charges for Extensions of Service 5
3.10 Service to Public Buildings . 6
3.11
Emergency Use . _
6
SECTION 4 Regulation by the Franchising Authority 6
4.1 Franchise Fee 6
4.2 Amount of PEG Access Fee 7
4.3 Rates & Charges. 8
4.4 Conditions of Sale 8
4.5
Assignments of Franchise . _
9
SECTION 5 Compliance and Monitoring 9
5.1 Testing for Compliance 9
5.2 Books and Records. . 10
SECTION 6 Insurance and Indemnification . 10
6.1 Insurance Requirements . 10
6.2 Indemnification . 10 --
6.3 Bonds and Other Surety , l0
SECTION 7 Enforcement and Termination of Franchise . 11
7.1 Notice of Violation
• it
7.2 Grantee's Right to Cure or Respond 11
7.3 Public Hearing . . 11
7.4 Enforcement 12
7.5 Impossibility of Performance 13
SECTION 8 Channel Capacity and Programming 13
8.1 Channel Capacity 13.
8.2 Audio Capacity 13
FItAHCHISE\FRANCHISE.AG7 -1-
SECTION 9 Miscellaneous Provisions , 13
9.1 Actions of Parties . 13
9.2 Equal Protection 13
9.3 Use of Grantee's Equip by the. Franchise Authority 14
9.4 Customer Service Standards 14
9.5 Notice 17
9.6 Descriptive Headings . . 18
9.7 Severability 18
9.8 Effective Date , , 18
FRANCHISE\FRANCNI SE.AGT -1 1-
FRANCHISE AGREEMENT
This Franchise Agreement (this "Franchise") is between the
City of Central Point, hereinafter referred to as "Franchising
Authority" and TCI Cablevision of Oregon, Inc.., hereinafter
referred to as "Grantee."
The Franchising Authority, having determined that the
financial, legal, and technical ability of the Grantee is
reasonably sufficient to provide services, facilities, and
equipment necessary to meet the future cable-related needs of the
community, desires to enter into this Franchise Agreement with the
Grantee for the construction and operation of a cable system on the
terms set forth herein.
SECTION 1
Definition of Terms
1.1 Terms. For the purpose of this Franchise, the following
terms, phrases, words, and abbreviations shall have the meanings
ascribed to them below. when not inconsistent with the context,
words used in the present tense include the future tense, words in
the plural number include the singular number, and words in the
singular number include the plural number:
A. "Basic Service" or the tier referred to as "basic
subscriber service" means the tier of service regularly
provided to all subscribers that includes the
retransmission of local broadcast television signals.
B. "Cable Act" collectively means the Cable Communications
Policy Act of 1984 and the. Cable Television Consumer
Protection and Competition Act of 1992, as amended.
C. "Cable Communication System" means a facility, consisting
of a set of closed transmission 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 does not include satellite
delivered services not using public rights-of-way..
D. "FCC" means Federal Communications Commission, or
successor governmental entity thereto.
FRANCNiSE\FRANCNi SE.AGT -1-
E. "Franchise" shall mean the initial authorization, or
renewal thereof, issued by the Franchising Authority,
whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, or
otherwise, which authorizes construction and operation of
the System.
F. "Franchisin4 Authority" means the City of Central Point
or the lawful successor, transferee, ar assignee thereof.
G. "Grantee" means TCI Cablevision of Oregon, Inc., or the
lawful successor, transferee, or assignee thereof.
H. "Gross Receipts" means gross revenues less any amount
accrued as gross revenues, but which cannot actually be
collected.
I. "Gross Revenues" means the gross revenues of the Grantee
or any affiliate of the Grantee in whatever form accrued
from all sources in connection with operation of the
cable communications system throughout the entire
franchised area, and includes any amount even if
separately identified or accounted. for by the Grantee as
franchise or other license fees. Gross revenues includes
revenue from the following sources: all tiers of
programming services, including basic services, premium
services, and per channel and per event service;
installation fees; equipment rental; audio services;
advertising income prorated by the number of Grantee's
customers in the City compared to the number of customers
in the entire advertising area; and Grantee's share of
all home shopping revenues including revenues generated
by Grantee's affiliates.
J, "Person" means an individual, partnership, association,
joint stock company, trust, corporation, or governmental
entity.
K. "Public Way" shall mean the surface of, and the space
above and below, any public street, highway, freeway,
bridge, land path, alley, court, boulevard, sidewalk,-
parkway, way, lane., public way, drive, circle, or other
public right-of-way, including, but not limited to,
public utility easements, dedicated utility strips, or
rights-of-way dedicated for compatible uses and any
temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Franchising
Authority in the Service Area which shall entitle the
Franchising Authority and the Grantee to the use thereof
for the purpose of installing, operating, repairing, and
maintaining the System. Public Way shall also mean any
easement now or hereafter held by the Franchising
FRANCHISE\FRANCHISE_AGT -2 -
Authority within the Service Area for the purpose of
public travel, or for utility or public service use
dedicated for compatible uses, and shall include other
easements or rights-of-way as shall within their proper
use and meaning entitle the Franchising Authority and the
Grantee to the use thereof for the purposes of installing
and operating the Grantee's System over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property
as may be ordinarily necessary and pertinent to the
System.
L. "Service Area" means the present municipal boundaries of
the Franchising Authority, and shall include any
additions. thereto by annexation or other legal means.
M. "Subscriber" means a person or user of the System who
lawfully receives communications and other services.
therefrom with the Grantee's express permission.
SECTION 2
Grant of Franchise
2.1 Grant. The Franchising Authority hereby grants to the Grantee
a nonexclusive Franchise which authorizes the Grantee to construct
and operate a System in, along, among, upon, across, above, over,
under, or in any manner connected with Public Ways within the
Service Area and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain, or retain in, on, over,
under, upon, across, or along any Public Way and all extensions
thereof and additions thereto, such poles, wires, cables,
conductors, ducts, conduits, vaults., manholes, pedestals,
amplifiers, appliances, attachments, and other related property or
equipment as may be necessary or appurtenant to the System.
2.2 Term. The Franchise granted hereunder shall be for an initial
term of 10 years commencing on the effective date of the Franchise
as set forth below, unless otherwise lawfully terminated in--
accordance with the terms of this Franchise.
SECTION 3
Standards of Service
3.1 Conditions of Street Occupancy All transmission and
distribution structures, poles, other lines, and equipment
installed or erected by the Grantee pursuant to the terms hereof
shall be located so as to cause a minimum of interference with the
FRANCHISE\FRANCNISE.AGT -3 -
proper use of Public ways and with the rights and reasonable
convenience of property owners who own property that adjoins any of
such Public Ways.
3.1((b). All poles and conduit within the System's Service Area
shall be made available for attachment or use by the Grantee at
just and. reasonable rates comparable to those rates established
under the federal pole attachment statute and applicable FCC
regulations.
Access for Franchised System. In case of new construction or
property development where utilities are to be placed underground,
the developer or property owner shall give the Grantee reasonable
notice of not less than 30 days prior to such construction or
development, of the particular date on which open trenching will be
available for the Grantee's. installation of conduit, pedestals
and/or vaults, and laterals to be provided at the Grantee's
expense. The Grantee shall also provide specifications as needed
for trenching. Cost of trenching and easements required to bring
service to the development shall be borne by the developer or
property owner.
3.2 Restoration of Public Wavs. If during the course of the
Grantee's construction, operation, or maintenance of the System
there occurs a disturbance of any Public Way by the Grantee, it
shall, at its expense, replace and restore such Public Way to a
condition reasonably comparable to the condition of the Public Way
existing immediately prior to such disturbance..
3.3 Relocation at Reouest of the Franchising Authority. Upon its
receipt of reasonable advance notice, not. to be less than five
business days, the Grantee shall, at its own expense, protect,
support, temporarily disconnect, relocate in the Public Way, or
remove from the Public Way, any property of the. Grantee when
lawfully required by the Franchising Authority by reason of traffic
conditions, public safety, street abandonment, freeway and street
construction, change or establishment of street grade, installation
of sewers, drains, gas or water pipes, or any other type of
structures or improvements by the Franchising Authority; but, the
Grantee shall in all cases have the right of abandonment of its
property. If public funds are available to any person using such...
street, easement, or right of way for the purpose of defraying the
cost of any of the foregoing, the Franchising Authority shall make
application for such funds on behalf of the Grantee..
3.4 Relocation at Rectuest of Third Party. The Grantee shall, on
the request of any person holding a building moving permit issued
by the Franchising Authority, temporarily raise or lower its wires
to permit the moving of such building, provided: (a) the expense of
such temporary raising or lowering of wires is paid by said person,'
including, if required by the Grantee, making such payment in
FRANCHISE\FRANCHISE.AGT -4 -
advance;. and (b) the Grantee is given not less than 10 business
days advance written notice to arrange for such temporary wire
changes.
3.5 Trimming of Trees and Shrubbery. The Grantee shall have the
authority to trim trees or other natural growth overhanging any of
its System in the Service Area so as to prevent branches from
coming in contact with the Grantee's wires, cables, or other
equipment. The Grantee shall reasonably compensate the Franchising
Authority for any damages caused by such trimming, or shall, in its
sole discretion and at its own cost and expense, reasonably replace
all trees. or shrubs damaged as a result of any construction of the
System undertaken by the Grantee. Such replacement shall satisfy
any and all obligations the Grantee may have to the Franchising
Authority pursuant to the terms of this Section.
3.6 Safety Requirements.. Construction, installation, and
maintenance of the System shall be performed in an orderly and
workmanlike manner. All such work shall be performed in
substantial accordance with applicable FCC or other federal, state,
and local regulations and the National Electric Safety Code. The
System shall not unreasonably endanger or interfere with the safety
of persons or property in the Service. Area.
3.7 Underarounding of Cable. Grantee shall locate future cable
system facilities underground under any of the following
conditions: when existing cable facilities are underground; when
current electrical utility facilities are underground; or when
required to do so by City regulations of general applicability now
in effect or become effective during this franchise.
3.8 Recruired Extensions of Service. The System, as constructed as
of the date of the passage and final adoption of this Franchise,
substantially complies with the material provisions hereof.
Whenever the Grantee shall receive a request for service from at
least 15 residences within 1320 cable-bearing strand feet (one-
quarter cable mile) of its trunk or distribution cable, it shall
extend its System to such Subscribers at no cost to said
Subscribers for System extension, other than the usual connection
fees for all Subscribers; provided that such extension is
technically feasible, and if it will not adversely affect the
operation, financial condition, or market development of the
System, or as provided for under Section 3.9 of this Franchise..
3.9 Subscriber Charges for Extensions of Service. No Subscriber
shall be refused service arbitrarily. However, for unusual
circumstances, such as a Subscriber's request to locate his cable
drop underground, existence of more than 150 feet of distance from
distribution cable to connection of service to Subscribers, or a
density of less than 15 residences per 1320 cable-bearing strand
feet of trunk or distribution cable, service may be made available
on the basis of a capital contribution in aid of construction,
FRANCHISE\FRANCHISE.AGT -5 -
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 Subscribers in the area
in which service may be expanded, the Grantee will contribute an
amount equal to the construction and other costs per mile,
multiplied by a fraction whose numerator equals the actual number
of residences per 1320 cable-bearing strand feet of its trunks or
distribution cable, and whose denominator equals 15 residences.
Subscribers who request 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 Subscribers be paid in
advance.
3.10 Service to Public Buildings. The Grantee. shall, upon request,
provide without charge, one outlet of Basic Service to those
Franchising Authority offices, fire station(s), police station(s),
and public school building(s) that are passed by its System.
The outlets of Basic Service shall not be used to distribute. or
sell services in or throughout such buildings, nor shall such
outlets be located in areas open to the public. Users of such
outlets shall hold the Grantee harmless from any and all liability
or claims arising out of their use of such outlets, including but
not limited to, those arising from copyright liability. The
Grantee shall not be required to provide an outlet to such
buildings where the drop line from the feeder cable to said
buildings or premises exceeds or unless the appropriate
governmental entity agrees to pay the incremental cost of such drop
line in excess of 150 cable feet. If additional outlets of Basic
Service are provided to such buildings, the building owner shall
pay the usual installation fees associated therewith, including,
but not limited to, labor and materials.
3.11 Emergency Use. In the case of any emergency or disaster, the
Grantee shall, upon request of the Franchising Authority, make
available its facilities for the Franchising Authority to provide
emergency information and instructions during the emergency or
disaster period. Except to the extent expressly prohibited by law,
the Franchising Authority shall hold the Grantee, its employees,
officers, and assigns, harmless from any claims arising out of the
emergency use of its facilities by the Franchising Authority,...
including, but not limited to, reasonable attorneys' fees and
costs.
SECTION 4
Regulation by the Franchising Authority
4.1 Franchise Fee.
A. The Grantee shall pay to the Franchising Authority a
franchise fee equal to Five (5) percent of Gross Receipts
FRANCHISE\FRANCHISE.AGT - 6 -
(as defined in Section 1.1 of this Franchise) received by
the Grantee from the operation of the System on an
quarterly basis; provided, however, that the Grantee may
credit against any such payments: (i) any tax, fee, or
assessment of any kind imposed by the Franchising
Authority or other governmental entity on a cable
operator, or Subscriber, or bath, solely because of their
status as such; (ii) any tax, fee or assessment of
general applicability which is unduly discriminatory
against cable operators or Subscribers (including any
such tax, fee, or assessment imposed, both on utilities
and cable operators and their services), and (iii) any
other special tax, assessment, or fee such as a business,
occupation, and entertainment tax. The franchise fee
payment shall be due and payable 30 days after the close
of the each quarter. Each payment shall be accompanied
by a brief report from a representative of the Grantee
showing the basis for the computation.
B. Limitation on Franchise Fee Actions. The period of
limitation for recovery of any franchise fee payable
hereunder shall be five years from the date on which
payment by the Grantee is due. Unless within five years
from and after such payment due date the Franchising
Authority initiates a lawsuit for recovery of such
franchise fees in a court of competent jurisdiction, such
recovery shall be barred and the Franchising Authority
shall be estoppel from asserting any claims whatsoever
against the Grantee relating to any such alleged
deficiencies.
C. Interest on Late Payments. Payments not received within
forty-five (45) days from this period ending date and
underpayments as the result of an audit shall be assessed
interest compounded at the rate of one percent (1~) per
month from the original due date.
D. Special Fee Conditions.. Any amount in excess of five
percent (5%) of gross annual receipts may be authorized
by future modifications in federal legislation or
regulation and may be set by action of the City Council-
by ordinance or resolution during the term. of this
franchise agreement.
4.2 Amount of PEG Access Fee. Upon written request of the City
giving Grantee 60 days notice, Grantee shall pay an annual PEG
access fee up to $7,500 at Central Point's selection, as set forth
by the Cable Act, to the City throughout the duration. of this
franchise.
FRANCHISE\FRANCHISE.AGT -7 -
A. Grantee. acknowledges that nothing in this franchise shall
in any way modify or affect the obligation of Grantee to
fully pay PEG access fees. Grantee agrees that
additional commitments set forth in this agreement are
not PEG access fees, nor are they to be offset or
credited against any PEG access fee payments due to the
City.
B. Nothing in any provision of thin franchise limits the
right of Grantee to itemize and pass through its billing
to subscribers the support of public access fees
required.
C. Grantee shall commence payment of an annual PEG access
fee on a calendar year basis under the. following
conditions:
(1) Notice shall be given on or before November 1 of
any given year for payment to be due the following
January 1.
(2) The City Council, at its sole discretion, may
choose to receive a lesser amount than listed in _
section 4.2 or to stop receiving an annual PEG
access fee payment until a future date as
determined by the City Council.
(3) The annual PEG access fee payment shall be paid to
the. City by Grantee not later than January 31 for
each calendar year, with the payment for year one
to be paid to the City not later than January 31,
1996. The PEG access fee payment for the tenth
year of this franchise shall be prorated to account
for the expiration date of the franchise.
(4) Each. payment shall be accompanied by a report
showing the basis for the computation in such form,
and containing such other relevant facts as may be
required by the City.
4.3 Rates and Charges. The Franchising Authority may regulate-
rates for the provision of Basic Cable and equipment as expressly
permitted by applicable law.
4.4 Conditions of Sale. If a renewal or extension of the
Grantee's Franchise is denied or the Franchise is lawfully
terminated, and the Franchising Authority either lawfully acquires
ownership of the System or by its actions lawfully effects a
transfer of ownership of the System to another party, any such
acquisition or transfer shall be at the price determined pursuant
to the provisions set forth in Section 627 of the Cable Act.
FRANCHISE\FRANCHISE.AGT -$ -
The Grantee and the Franchising Authority agree that in the
case of a final determination of a lawful. revocation of the
Franchise, at the Grantee's request, which. shall be made in its
sole discretion, the Grantee shall be given a reasonable
opportunity to effectuate a transfer of its System to a qualified
third party. The Franchising Authority further agrees that during
such a period of time, it shall authorize the Grantee to continue
to operate pursuant to the terms of its prior Franchise; however,
in no event shall such authorization exceed a period of time
greater than six months from the effective date of such revocation.
If, at the end of that time, the Grantee is unsuccessful in
procuring a qualified transferee or assignee of its System which is
reasonably acceptable to the Franchising Authority, the Grantee and
the Franchising Authority may avail themselves of any rights they
may have pursuant to federal or state law; it being further agreed
that the Grantee's continued operation of its system during the six
month period shall not be deemed to be a waiver, nor an
extinguishment of, any rights of either the Franchising Authority
or the Grantee.
4.5 Assionments of Franchise. This franchise shall be binding
upon and inure to the benefit of the successors, legal
representatives and assigns of the Grantee and no transfer hereof
shall be made unless the City consents thereto, provided that such
consent shall not be required in connection with the execution of
mortgages or trust indentures.
SECTION 5
Compliance and Monitoring
5.1 Testing for Compliance. The Franchising Authority may perform
technical tests of the System during reasonable times and in a
manner which does not unreasonably interfere with the normal
business operations of the Grantee or the System in order to
determine whether or not the Grantee is in compliance with the.
terms hereof and applicable state or federal laws. Except in
emergency circumstances, such tests may be undertaken only after
giving the Grantee reasonable notice thereof, not to be less than
two business days, and providing a representative of the Grantee an
opportunity to be present during such. tests. In the event that-
such testing demonstrates that the Grantee has. substantially failed
to comply with a material requirement hereof, the reasonable costs
of such tests shall be borne by the Grantee. In the event that
such testing demonstrates that the Grantee has substantially
complied with such material provisions hereof, the cost of such
testing shall be borne by the Franchising Authority. Except in
emergency circumstances, the Franchising Authority agrees that such
testing shall be undertaken no more than once a year, and that the
results thereof shall be made available to the Grantee.
FRANCHISE\FRANCNISE.AGT -9 -
5.2 Books and Records. The Grantee agrees that the Franchising
Authority upon reasonable notice to the Grantee may review such of
its books and records at the Grantee's business office, during
normal business hours and on a nondisruptive basis, as is
reasonably necessary to ensure compliance with the terms hereof.
Such records shall include, but shall not be limited to, any public
records required to be kept by the Grantee pursuant to the rules
and regulations of the FCC. Notwithstanding anything to the
contrary set forth herein, the Grantee shall not be required to
disclose information which it reasonably deems to be proprietary or
confidential. in nature. The Franchising Authority agrees to treat
any information disclosed by the Grantee as confidential and only
to disclose it to employees, representatives, and agents thereof
that have a need to know, or in order to enforce the provisions
hereof. The Grantee shall not be required to provide Subscriber
information in violation of Section 631 of the Cable Act.
SECTION 6
Insurance and Indemnification
6.1 Insurance Reouirements. The Grantee shall maintain in full
force and effect, at its own cost and expense, during the term of
the Franchise, Comprehensive General Liability Insurance in the
amount of $1,000,000 combined single limit for bodily injury, and
property damage. The Grantee shall provide a Certificate of
Insurance designating the Franchising Authority as an additional
insured. Such insurance. shall be noncancellable except upon 30 days
prior written notice to the Franchising Authority.
6.2 Indemnification. The Grantee agrees to indemnify, save and
hold. harmless, and defend the Franchising Authority, its officers,
boards and employees, from and against any liability for damages
and for any liability or claims resulting from property damage or
bodily injury (including accidental death), which arise out of the
Grantee's construction, operation, or maintenance of its System,
including, but not limited. to, reasonable attorneys' fees actually
incurred and. costs, provided that the Franchising Authority shall
give the Grantee written notice of its obligation to indemnify the
Franchising Authority within 30 days of receipt of a claim or
action pursuant. to this Section. If the Franchising Authority
determines that it is necessary for it to employ separate counsel,
the costs for such separate counsel shall be the responsibility of
the Franchising Authority.
6.3 Bonds and other Surety. Upon the effective date of the
Franchise, TCI shall furnish a Corporate Guarantee in Lieu of a
Bond executed by Tele-Communications, Inc., in the amount of Ten
Thousand dollars ($10,000.00), guaranteeing that TCI shall well and
truly observe, fulfill, and perform each term and condition of the
Franchise. This guarantee shall be conditioned that in the event
fRANCRISE\ERANCNISE.AGT -1 ~ -
TCI shall fail to comply with any one or more of the provisions of
this Franchise, then there shall be recoverable jointly and
severally from the principal and surety of such bond, any damages
suffered by the City as a result thereof, including the. full amount
of any compensation,. indemnification, or cost of removal or
abandonment of property as prescribed; said condition to be a
continuing obligation for the duration of the Franchise and
thereafter until TCI has liquidated all of its obligations with the
City that may have arisen from the acceptance of the Franchise by
TCI or from its exercise of any privilege herein granted; provided
that upon completion of all construction provided for in Section
8.1 of this agreement, the amount of the original guarantee shall
be reduced or eliminated subject to approval by the City and
Grantee..
Neither the provisions of this Section nor any guarantee accepted
by the City pursuant thereto, nor any damages recovered by the City
thereunder shall be construed to excuse faithful performance by TCI
or to limit liability of TCI under the Franchise or for damages,
either to the full amount of the bond or otherwise, except as
otherwise provided herein.
SECTION 7
Enforcement and Termination of Franchise
7.1 Notice of Violation. In the event that the Franchising
Authority believes that the Grantee has not complied with the terms
of the Franchise, it shall notify the Grantee in writing of the
exact nature of the alleged noncompliance.
7.2 Grantee's Right to Cure or Respond. The Grantee shall have 30
days from receipt of the notice described in Section 7.1: (a) to
respond to the Franchising Authority, contesting the assertion of
noncompliance, or (b) to cure such default, or (c) in the event
that, by the nature of default, such default cannot be cured within
the 30-day period, initiate reasonable steps to remedy such default
and notify the Franchising Authority of the steps being taken and
the projected date that they will be completed.
7.3 Public Hearing. In the event that the Grantee fails to
respond to the notice described in Section 7.1 pursuant to the
procedures set forth in Section 7.2, or in the event that the
alleged default is not remedied within 30 days or the date
projected pursuant to 7.2(c) above, the Franchising Authority shall
schedule a public hearing to investigate the default. Such public
hearing shall be held at the next regularly scheduled meeting of
the Franchising Authority which is scheduled at a time which is no
less than five business days therefrom. The Franchising Authority
shall notify the Grantee in writing of the. time and place of such
meeting and provide the Grantee with an opportunity to be heard.
FRANCHISE\FRANCHISE.AGi -1.1-
7.4 Enforcement. Subject to applicable federal and state law, in
the event the Franchising Authority, after such meeting, determines
that the Grantee is in default of any provision of the Franchise,
the Franchising Authority may:
A. Seek specific performance of any provision, which
reasonably lends itself to such remedy, as an alternative
to damages;
B. Commence an action at law for monetary damages or seek
other equitable relief; or
C. In the case of a substantial. default of a material.
provision of the Franchise, declare the Franchise
Agreement to be revoked in accordance with the following:
The Franchising Authority shall give written notice to
the Grantee of its intent to revoke the Franchise on the
basis of a pattern of noncompliance by the Grantee,
including one or more instances of substantial
noncompliance with a material provision of the Franchise.
The notice shall set forth the exact nature of the
noncompliance. The Grantee shall have 30 days from such
notice to object in writing and. to state its reasons for
such objection. In the event the Franchising Authority
has not received a response satisfactory from the
Grantee, it may then seek termination of the Franchise at
a public meeting. The Franchising Authority shall cause
to be served upon the Grantee, at least 10 days prior to
such public meeting, a written notice specifying the time
and place of such meeting and stating its intent to
request such termination.
At the designated meeting, the Franchising Authority
shall give the Grantee an opportunity to state its
position on the matter, after which it shall determine
whether or not the Franchise shall be .revoked. The
Grantee may appeal such determination to an appropriate
court, which shall have the power to review the decision
of the Franchising Authority "de novo" and to modify or-
reverse such decision as justice may require. Such
appeal to the appropriate court must be taken within 60
days of the issuance of the determination of the
Franchising Authority.
The Franchising Authority may, at its sole discretion,
take any lawful action which it deems appropriate to
enforce the Franchising Authority's rights under the
Franchise in lieu of revocation of the Franchise.
FRANCHISE\FRANCHISE.AGT -12 -
7.5 Impossibility of Performance. The Grantee shall not be held
in default or noncompliance with the provisions of the Franchise,
nor suffer any enforcement or penalty relating thereto, where such
noncompliance or alleged defaults are caused by strikes, acts of
God, power outages, or other events reasonably beyond its ability
to control.
SECTION 8
Channel Capacity and ProoramminQ
8.1 Channel Capacity. Grantee shall install a cable system
capable of providing a channel capacity of at least sixty (60)
channels without the aid of signal compression by October 31, 1998
to all of Grantee's customers in the franchise area.. A total of
forty-five (45) activated channels shall be made available by the
Grantee by October 31, 1998 to all customers in the franchise area
who have transferred appropriate payment for the additional
channels to the Grantee.
8.2 Audio Capacity. All channels received by the Grantee in
stereo audio mode shall be supplied to the franchise area by the
Grantee in stereo audio mode.
SECTION 9
Miscellaneous Provisions
9.1 Actions. of Parties. In any action by the Franchising
Authority or the Grantee that is mandated or permitted under the
terms hereof, such party shall act in a reasonable, expeditious,
and timely manner. Furthermore, in any instance where approval. or
consent is required under the. terms hereof, such approval or
consent shall not be unreasonably withheld.
9.2 Ecrual Protection. The Franchising Authority shall not
authorize or permit a System to operate within the Franchise area
on terms or conditions more favorable or less burdensome to such
operator than those applied to the Grantee pursuant to this
Franchise. If the Franchising Authority authorizes or permits
another System to operate within the Franchise area, it shall do so
on condition that such System indemnify and hold harmless the-
Grantee for and against all costs and expenses incurred in
strengthening poles, replacing poles, rearranging attachments,
placing underground facilities, and all other costs including those -
of the Grantee, the Franchising Authority, and utilities, incident
to inspections, make ready, and construction of an additional
System in the Franchise area; and the Grantee shall be designated
a third party beneficiary of such conditions as are incorporated
into the authorization(s) granted to another System..
FRANCHISE\FRANCNISE.AGT -13 -
9.3 Use of The Grantee's Eouipment by the Franchising Authority.
Subject to any applicable state or federal regulations or tariffs,
the Franchising Authority shall have the right to make additional
use, for any public purpose, of any poles or conduits controlled or
maintained exclusively by or for the Grantee in any Public Way;
provided that: (a) such use by the Franchising Authority does not
interfere with a current or future use by the Grantee; (b) the
Franchising Authority holds the Grantee harmless against and from
all claims, demands, costs, or liabilities of every kind and nature
whatsoever arising out of such use of said poles or conduits,
including, but not limited to, reasonable attorneys' fees and
costs; and (c) at the Grantee's sole discretion, the Franchising
Authority may be required either to pay a reasonable rental fee or
otherwise reasonably compensate the Grantee for the use of such
poles, conduits, or equipment; provided, however, that the Grantee
agrees that such compensation or charge shall not exceed those paid
by it to public utilities pursuant to the. applicable pole
attachment agreement, or other authorization, relating to the
Service Area.
9.4 Customer Service Standards.
(A) System office hours and telephone availability.
(1) The Grantee will maintain a local, toll-free or
collect call telephone access line which will be
available to Subscribers 24 hours a day, seven days
a week.
(i) Trained representatives of"the Grantee will be
available to respond to Subscriber telephone
inquiries during Normal Business Hours, as
defined herein.
(ii) After Normal Business Hours, an access line
will be available to be answered by a service
or an automated response system, including a
phone answering system. Inquiries received
after Normal Business Hours must be responded
to by a trained representative of the Grantee
on the next business day.
(2) Under Normal Operating Conditions, as defined
herein, telephone answer time by a customer
representative, including wait time, will not
exceed 30 seconds when the connection is made. If
the call needs to be transferred, transfer time
will not exceed 30 seconds. These standards will
be met no less than 90 percent of the time under
Normal Operating Conditions, as measured by the
Grantee on a quarterly basis.
FRANCHISE\FRANCH [SE.AGT -14 -
(3) The Grantee shall not be
equipment or perform surveys
with the telephone answerin
above unless an historical.
indicates a clear failure
standards.
required to acquire
to measure compliance
3 standards set forth
record of complaints
to comply with such
(4} Under Normal Operating Conditions, the Subscriber
will receive a busy signal less than 3 percent of
the time.
(5) Customer service center and bill payment locations
will be open at least during Normal Business Hours
and will be conveniently located.
(B) Installations, outages and service calls. Under Normal
Operating Conditions, each of the following four
standards will be met no less than 95 percent of the
time, as measured by the Grantee on a quarterly basis:
(1) Standard installations will be performed within
seven business days after an order has been placed.
"Standard" installations are those that are located
up to 125 feet from the existing distribution
system.
(2) Excluding conditions beyond its control, the
Grantee will begin working on Service
Interruptions, as defined herein, promptly and in
no event later than 24 hours after the interruption
becomes known. The Grantee will begin actions to
correct other service problems the next business
day after notification of the service problem.
(3) The Grantee will provide "appointment window"
alternatives for installations, service calls, and
other installation activities, which will be either
a specific time or, at maximum., a four-hour time
block during Normal Business Hours.
(4) The Grantee shall. not cancel an appointment with a-
Subscriber after the close of business on the
business day prior to the scheduled appointment.
(5) If a representative of the Grantee is running late
for an appointment with a Subscriber and will not
be able to keep the appointment as scheduled, the
Subscriber will be contacted. The appointment will
be rescheduled, as necessary, at a time which is
convenient for the Subscriber.
FRANCHd SE\FRANCHT SE.AGT - 15-
(C) Communications between Grantee and Subscribers.
(1) Notifications to Subscribers:
() The Grantee shall provide written information
on each of the following areas at the time. of
installation of service, at least annually to
all Subscribers, and at any time upon request:
(a) products and services offered;
(b) prices and options for services and
conditions of subscription to programming
and other services;
(c) installation and service. maintenance
policies;
(d) instructions on how to use the service;
(e) channel positions of programming carried
on the System; and
(f) billing and complaint procedures,
including the address and telephone
number of the local Franchising
Authority's cable office.
(ii) Subscribers will be notified of any changes in
rates, programming services or channel
positions as soon as possible through
announcements on the. System and in writing.
Notice will be given to Subscribers a minimum
of 30 days in advance of such changes if the
change is within the control of the Grantee.
In addition, the Grantee shall notify
Subscribers 30 days in advance of any
significant changes in the other information
required by the preceding paragraph.
(2) Billing:
(i) Bills will be clear, concise and
understandable. Bills will be fully itemized,
with itemizations including, but not limited
to, basic and premium service charges and
equipment charges. Bills will also clearly
delineate all activity during the billing
period, including optional charges, rebates
and credits.
fRANCHISE\fRANCHISE.AGT -1 6 -
(ii) In case of a billing dispute, the Grantee will
respond to a written complaint from a
Subscriber within 30 days from receipt of the
complaint.
(3) Refund checks will be issued promptly, but no later
than either (i) the Subscriber's next billing cycle
following resolution of the request or 30 days,
whichever is earlier, or (ii) the return of the
equipment supplied by the Grantee if service is
terminated.
(4) Credits for service will be issued no later than.
the Subscriber's next billing cycle following the
determination that a credit is warranted.
(D) Definitions: For purposes of this Section, the following
definitions shall apply:
(1) Normal Business Hours - The term "Normal Business
Hours" means those hours during which most similar
businesses in the community are open. to serve
Subscribers. In all cases, "Normal Business Hours"
shall include some evening hours at least one night
per week and/or some weekend hours. The Grantee
will notify its Subscribers and the Franchising
Authority of its Normal Business Hours.
(2) Normal Operating Conditions - The term "Normal
operating Conditions" means those service
conditions which are within the control of the
Grantee. Those conditions which are not within the
control of the Grantee include, but are not limited
to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or
unusual weather conditions. Those conditions which
are ordinarily within the control of the Grantee
include, but are not limited to, special
promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and
maintenance or upgrade of the System.
(3) Service Interruption - The term "service
interruption" means the loss of picture or sound on
one or more channels.
9.5 Notice. Unless expressly otherwise agreed between the
parties, every notice or response required by this Franchise to be
served upon the Franchising Authority or the Grantee shall be in
writing, and shall be deemed to have been duly given to the.
FRANCHISE\FRANCRISE.AGT -17 -
required party five business days after having been posted in a
properly sealed and. correctly addressed envelope when hand
delivered or sent by certified or registered mail, postage prepaid.
The notices or responses to the Franchising Authority shall be
addressed as follows:
City of Central Point
155 South Second Street
Central Point, OR 97502
The notices or responses to the Grantee shall be addressed as
follows:
TCI Cablevision of Oregon, Inc.
P.O. Box 399
Medford, OR 97501
with a copy to:
TCI West
P.O. Box 91220
Bellevue, WA 98009-9220
Attention: Legal Department
The. Franchising Authority and the Grantee may designate such other
address or addresses from time. to time by giving notice to the
other.
9.6 Descriptive Headings. The captions to Sections contained
herein are intended solely to facilitate the reading thereof. Such
captions shall not affect the meaning or interpretation of the. text
herein.
9.7 Severability. If any Section, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or
unconstitutional, by any court of competent jurisdiction or by any
state or federal regulatory authority having jurisdiction thereof, --
such determination shall have no effect on the validity of any
other Section, sentence, paragraph, term or provision hereof, all...
of which will remain in full force and effect for the term of the
Franchise, or any renewal or renewals thereof.
9.8 Effective Date. The effective date of this Franchise is June
25, 1995, pursuant to the provisions of applicable law. This
franchise shall expire on June 24, 2005, unless extended by the
mutual agreement of the parties.
FRANCHISE\FRANCNISE,AGT -18 -
IN WITNESS WIiEREOF, the parties hereto have entered into this
Franchise Agreement on , 19
City of Centr~a(l~P~o~int
By: ~,~fV ~C~~
Title:
Accepted this day of , 19_, subject to
applicable federal, state and local law.
TCI Cablevision of Oregon, Inc.
BY=
Title:
FRANCHISE\FRANCHISE.AGT -19 -