HomeMy WebLinkAboutOrdinance 3413 ,s FILED FOR RE60RD
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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 .
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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of the Franchise approved hereby are hereby repealed on the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
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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
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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
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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 ;
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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 .
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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
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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 ,
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LIBER1324PAU 172
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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
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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
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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
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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 .
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IIBER 1324PAGE776
