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HomeMy WebLinkAboutOrdinance 3413 ,s FILED FOR RE60RD - 89 JUL 6 Pfd 2 46 WASHINOiU !v OO AR A . KOLLMEYER SCANNED ORDINANCE NO , 3413 MICROFILMED AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH WARNER CABLE COMMUNICATIONS , INC . FOR THE USE AND OCCUPANCY OF PUBLIC STREETS , ALLEYS AND PLACES TO CONSTRUCT , OPERATE AND MAINTAIN A BROAD BAND TELECOMMUNICATIONS NETWORK FOR THE PURPOSE OF CABLE TV TRANSMISSION . BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE , ARKANSAS : Section 1 , The Board of Directors hereby approves the franchise agreement with Warner Cable Communications , Inc . attached hereto , marked Exhibit " A" , and made a part hereof authorizing the use and occupancy of the public streets , alleys and other public place to construct , operate and maintain a broad band telecommunications network for the purpose of cable TV G transmission . -41 SECTION 2 . The Mayor and City Clerk are hereby authorized and directed to execute the aforesaid franchise agreement . �� SECTION 3 . All ordinances in conflict with the provisions of the Franchise approved hereby are hereby repealed on the . effective date of said franchise . PASSED AND APPROVED this 7th day of .March 1989 . APPROVED By : Ay El Mayor i A� ' ./1I k LIBER1324PAGE765 0 FRANCHISE AGREEMENT BETWEEN THE CITY OF FAYETTEVILLE , ARKANSAS AND WARNER CABLE COMMUNICATIONS , INC . EXHIBIT A IIBEB1324PAGE766 TABLE OF CONTENTS SECTION I 5 SHORT TITLE SECTION II . . . . . . . . . . . . . . . . . . . . . . . . . . 5 DEFINITIONS SECTION III . . . . . . . . . . . . . . . . . . . . . . . . 10 GRANT OF FRANCHISE SECTION IV . . . . . . . . . . . . . . . . . . . . . . . . . . 11 FRANCHISE AREA SECTION V . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SIGNIFICANCE OF FRANCHISE SECTION VI . . . . . . . . . . . . . . . . . . . . . . 12 LIABILITY AND INDEMNIFICATION SECTION VII 13 LETTER OF CREDIT SECTION VIII 17 CONDITION OF STREET OCCUPANCY SECTION IX . . . . . . . . . . . . . . . . . . . . . . . . . . 20 OPERATION OF THE FRANCHISE SECTION X . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SERVICE STANDARDS SECTION XI . . . . . . . . . . . . . . . . . . . . . . . . 27 RIGHTS RESERVED TO THE CITY SECTION XII . . . . . . . . . . . . . . . . . . . . . . . . . 28 FRANCHISE TRANSFER } SECTION XIII . . . . . . . . . . . . . . . . . . . . . . . . . 30 FRANCHISE RENEWAL SECTION XIV . . . . . . . . . . . . . . . . . . . . . . . . 32 FRANCHISE FEE PAYMENT SECTION XV . . . . . . . . . . . . . . . . . . . . . . . . . . 33 UPGRADE OF THE CABLE SYSTEM SECTION XVI . . . . . . . . . . . . . . . . . . . . . . . . . 35 EMERGENCY OVERRIDE SYSTEM - 2 _ twF1324nGE767 SECTION XVII 35 SUPPORT FOR PUBLIC ACCESS SECTION XVIII . . . . . . . . . . . . . . . . . . . . . . . . 36 PUBLIC SERVICE SECTION XIX . . . . . . . . . . . . . . . . . . . . . . . . . 37 TERMINATION OF FRANCHISE SECTION XX . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SERVICE RATES SECTION XXI . . . . . . . . . . . . . . . . . . . . . . . . . 40 SEPARABILITY SECTION XXII . . . . . . . . . . . . . . . . . . . . . . . . . 41 FORCE MAJEURE SECTION XXIII . . 42 REIMBURSEMENT OF EXPENSES SECTION XXIV . . . . . . . . . . . . . . . . . . . . . . . . . 42 EFFECTIVE DATE - 3 LIBER 1324PAGE768 WHEREAS , pursuant to the Cable Communications Policy Act of 1984 ( " the Cable Act " ) , the United States Congress established certain franchise procedures and standards , among other purposes , to encourage the growth and development of cable systems , to assure that cable systems are responsive to the needs and inter - ests of the local community , to assure that cable communications provide and are encouraged to provide the widest possible diver - sity of information services and services to the public and to assure that all access to cable service is not denied to any person ; and WHEREAS , the Grantee has voluntarily offered to provide certain facilities , equipment and services ; and WHEREAS , the Grantee , in arm ' s - length negotiations , has knowingly and voluntarily agreed to the terms of this Franchise , agrees that such terms comply with all applicable laws and regula- tions and are fully enforceable by the City ; WHEREAS , the City intends to exercise the full scope of its governmental powers , including both its police power and contract - ing authority , to promote the public interest , and to protect the 3 health , safety , and welfare ; and WHEREAS , the City seeks to assure that cable communications provide and are encouraged to provide the widest possible diver - sity of information sources and services to the public ; and . WHEREAS , the provisions of this franchise are consistent with the Cable Act ; - 4 - LIBE81324PAGE769 NOW , THEREFORE , THE CITY OF FAYETTEVILLE , ARKANSAS AND WARNER CABLE COMMUNICATIONS , INC . HEREBY AGREE AS FOLLOWS : SECTION I SHORT TITLE This Agreement shall be known and may be cited as the "Warner Cable Communications Inc . Franchise Agreement . " SECTION II DEFINITIONS For the purposes of this Agreement , the following terms , phrases , words and their derivations shall have the meaning 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 . A . " BROADBAND TELECOMMUNICATIONS NETWORK" shall mean all of the component physical , operational and programming elements of any network of cable , optical , electrical or electronic equipment , including cable television , used for the purpose of transmission of electrical impulses of television , radio and other intel - ligence , either analog or digital , for sale or use by the in- habitants of the City . B . " CITY" is the City of Fayetteville , Arkansas . C . " GRANTEE " is Warner Cable Communications Inc . - 5 EIBEB1324PAGE7 O D . " BOARD" is the Board of Directors ( or other body in which the legislative power vests ) of the City of Fayetteville , Arkansas . E . " CHANNEL" shall mean a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel ( as television channel is defined by the Federal Communications Commission by regula - tion ) . F . " DEGRADED SIGNAL" shall mean a signal on any channel regardless of the point of origin of such signal , which fails to meet the signal quality guidelines established in Part 76 , Subpart K of the Federal Communications Commission ' s rules and regula- tions . G . " FCC " shall mean the Federal Communications Commission and any legally appointed or elected successor . H . " FRANCHISE PAYMENT" shall include all charges imposed for a franchise . I . " GROSS REVENUES " means all revenue , as determined in accordance with generally accepted accounting principles , which is derived , directly or indirectly , by the Grantee and by each Affiliated Person from or in connection with the operation of the Broadband Telecommunications Network , including , without limita- tion , the distribution of any service over the Broadband Tele - communications Network . Gross Revenue shall also include the Gross Revenue of any other person which is derived directly or - 6 - A LIBER 132 A PAGE 771 • f rel a r • 1 • indirectly from or in connection with the operation of the Broadband Telecommunications Network , including , without limita- tion , the distribution of any service over the Broadband Telecom- munications Network to the extent that said revenue is derived , as determined by the City , through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the franchise granted herein . Gross Revenue shall also include subscription fees and advertising receipts received by the Grantee or affiliated person in connec - tion with the sale within the City of any cable programming guide /magazine . Gross Revenue shall not include : ( i ) the revenue of any person , including , without limitation , supplier of program- ming to the Grantee , to the extent that said revenue is also included in Gross Revenue of the Grantee ; ( ii ) the revenue of the Grantee or any other person which is received directly from the sale of any merchandise through any service distributed over the Broadband Telecommunications Network , except any revenue received in lieu of compensation for use of any Channel ; ( iii ) taxes imposed by laws on Subscribers or other persons which the Grantee is obligated to collect ; ( iv ) amounts collected by the Grantee from Subscribers on behalf of leased or access channel program- mers , other than Affiliated Persons , to the extent that said amounts are passed on by the Grantee to said programmers ; ( v ) the revenue of any Affiliated Person which represents standard and reasonable amounts paid by the Grantee to said Affiliated Person for ordinary and necessary business expenses of the Grantee , - 7 - LIBER1324PAU 172 Oki.0 including , without limitation , professional service fees and insurance or bond premiums ; ( vi ) any investment income earned by the Grantee ; or ( vii ) that portion of the fee paid by the Grantee to an Affiliated Person for any service which exceeds the revenue of the Grantee from Subscribers for such service . J , " AFFILIATED PERSON" means each person who falls into one or more of the following categories : ( i ) each person having , directly or indirectly , a controlling interest in the Grantee ; ( ii ) each person in which the Grantee has , directly or indirectly , a controlling interest ; ( iii ) each officer , director , general partner , joint venturer or joint venture partner , of the Grantee ; and ( iv ) each person , directly or indirectly , controlling , controlled by , or otherwise related to the Grantee by common ownership , common management , or common control ; provided that " Affiliated Person" shall in no event mean the City , any limited partner of the Grantee , or any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a controlling interest in , being owned by , or being under common ownership , common manage - ment , or common control with , the Grantee . K , " INTERRUPTION OF SERVICE" shall mean no picture or sound at the television set of a customer due to a technical problem with the cable television system , L , " MAY" is permissive , M , " REASONABLE NOTICE " shall be written notice addressed to the Grantee at the address Grantee has designated to the City and - $ UB[fli3?4°AGE ( Ic] notice to the City shall be to the Board of Directors , City of Fayetteville , which notice shall be certified and postmarked no less than fifteen ( 15 ) days prior to that day in which the party giving such notice shall commence any action which required the giving of such notice . In computing said fifteen ( 15 ) days , Saturdays , Sundays and holidays recognized by the City shall be excluded . N . " SHALL" and "MUST" each are mandatory and not merely directory . O . " STATE" shall mean the State of Arkansas . P . " STREET" shall mean such of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority and located within the City limits : streets , roadways , highways , avenues , lanes , alleys , sidewalks , easements , rights -of -way and similar public ways and extensions and additions thereto , together with such other public property and areas that the City shall permit to be included within the definition of street from time to time . Q . " SUBSCRIBER" shall mean any person receiving either basic service or additional service from the grantee for the established monthly service fees . R . " PERSON " shall mean an individual , partnership , associa- tion , organization , labor organization , corporation , cooperative , legal representative , trustee or receiver . S . " SERVICE DROP " shall mean the cable required to trans - port the cable television signals from the exit point of the - 9 - �(e�ai3?4o��E?"74 Grantee ' s distribution system ( tap ) to the back of the sub- scriber ' s television set . SECTION III GRANT OF FRANCHISE This franchise shall be for a term of five ( 5 ) years from the effective date specified in Section XXV . If Grantee substantially complies with the material terms of Sections V . VI , VII , VIII , IX , X , XII , XIV , XV , XVI , XVII , XVIII , XX , AND XXIV of this franchise during said five year term , the franchise shall automatically be extended for an additional term of five ( 5 ) years . If , during the initial five year term of this franchise , the City contends that Grantee is not substantially complying with any material terms of Sections , V , VI , VII , VIII , IX , X , XII , XIp XV , XiI , 'XVII , 'r.VIII , .YND .X. IV of this franchise , the City shall give the Grantee c-.ritten notice as soon as reasonably practical upon receipt of the information upon which such contention is based , in any case , no later than six ( o ) months prior to the end of the initial five year term . Said written notice shall specify the asserted franchise violation , and Grantee shah have the opportunity to cure such material non- compliance before the expiration of the initial term . Upon cure of such non-compliance , Grantee shall so notify the City in writing , and Grantee ' s franchise shall be extended for the additional five ( 5 ) year term . In the event of a dispute between the City and Grantee with respect to the sufficiency of the cure , the Grantee and City shall use best efforts to promptly resolve the difference ; and in the event said - 10 - LIBER MMPAU775 dispute cannot be promptly resolved and the franchise is not automatically extended , the franchise shall remain in effect pending full due process proceedings of any appeal by Grantee to a court of competent jurisdiction . SECTION IV FRANCHISE AREA The franchise relates to the geographical area within the incorporated limits of the City and to any area henceforth annexed thereto during the term of this franchise . SECTION V SIGNIFICANCE OF FRANCHISE A . Franchise Amendable - The franchise granted herein may be amended from time to time to allow the Grantee to innovate and implement new services and developments ; provided , however , that no such amendments affecting the conditions of the franchise shall be implemented without the mutual consent of the City and the Grantee . B . Franchise Required - No person shall construct , install , maintain or operate on or under any street , any equipment or facilities for the distribution of television signals or radio signals or other intelligence , either analog or digital , over a Broadband Telecommunications Network to any subscriber unless a franchise authorizing the use of the streets has first been obtained . Such a franchise shall contain material terms and conditions no less restrictive than those set forth in this Franchise . - 11 - r� IIBER 1324PAGE776