CVTV/Cable Franchise-Colony 95ORIGINAL
FRANCHISE TO PROVIDE MULTICHANNEL SERVICES
THIS AGREEMENT AND FRANCHISE (the "Franchise Agreement" or the
"Franchise") is made and entered into this 17th day of October, 1995, by and between Colony
Communications Inc., d/b/a Continental Cablevision ("Franchised MCS Provider") and the City
of La Quinta ("Franchising Authority").
1. This Franchise has been granted and approved by Resolution No. 95-82,
adopted by the La Quinta City Council pursuant to the provisions of Ordinance No. 255
(Chapter 5.10) of the Code of the City of La Quinta (the "Ordinance"). The terms and conditions
of the Ordinance which result from the police powers vested in Grantor or other lawful authority
of Grantor may be unilaterally amended from time to time by the City and nothing herein shall,
in any way, limit or prohibit the City from amending, modifying, or increasing such provisions
of the Ordinance, or any provision thereof, if otherwise allowable under applicable law. This
Franchise Agreement may not be amended by either Franchised MCS Provider or the Franchising
Authority without prior written acceptance of such amendment by the other party.
2. All provisions of said Ordinance shall apply with full force and effect to
anything contained herein provided, however, in the case where this Franchise Agreement, as
may be amended by the parties, contains a conflicting provision, exemption, relief, clarification
or comparable policy substitution from one or more provisions or sections of the Ordinance, and
where such conflicting provision, exemption, relief, clarification or comparable policy substitution
is contained in this Franchise Agreement, any necessary procedural requirements or findings for
relief, exemption or waiver set forth in the Ordinance are to be deemed to have been satisfied
and the conflicting provision, exemption, relief, clarification or comparable policy substitution
contained in this Franchise Agreement controls, but only in those specific circumstances.
3. Section and Subsection numbers and captions used herein shall, unless
otherwise stated, cite, refer to, and incorporate the like provisions of said Ordinance. Wordings,
specifications, and requirements herein making such citations shall, together with the balance of
this document and other references, citations, and incorporations herein, be and constitute the
terms of a franchise as authorized in said Ordinance.
4. Scope of Franchise. Franchised MCS Provider is hereby authorized and
obligated, as provided herein, to construct, reconstruct, operate and maintain a System within the
City of La Quinta to provide Cable Service as defined in the Cable Communications Policy Act
of 1984, as amended ("Cable Act") to all subscribers in the service area located in residential
dwelling units and commercial structures.
This Franchise Agreement creates, defines, and limits the legal rights and
obligations between the Franchising Authority and Franchised MCS Provider and does not, in any
way, obligate Franchising Authority to take any action, or set of actions, or refrain from taking
any action, or set of actions, to or in relation to any third party. Notwithstanding the foregoing,
neither party hereunder is estopped from raising or waives any rights or claims relating to this
Franchise Agreement, the Ordinance, or the actions of the other party thereunder.
S. The word "Ordinance" as used herein, shall refer to Ordinance No. 255 as
codified as Chapter 5.10 of the La Quinta Municipal Code. All other terms shall be as defined
herein or defined as in Chapter 5.16.020 of the Ordinance.
6. Form. This Franchise Agreement is in the form of a nonexclusive contract
and agreement and includes Franchise authorizations and Ordinance relief.
7. Franchise Fee Payments. Upon approval of this Franchise Agreement by
the City Council, Franchised MCS Provider shall pay to Franchising Authority, a Franchise Fee
as defined and required in the Ordinance within 45 days after the close of each calendar quarter,
with an accompanying report form mutually agreed to by the Franchising Authority and
Franchised MCS Provider. The Franchise Fee shall equal five percent (5%) of Gross Revenue
of Franchised MCS Provider and shall be consideration of the franchise rights to construct and
operate a MCS System, including any rent and compensation for use of the public way.
Notwithstanding anything to the contrary above or in the Ordinance, Franchised MCS provider
or its affiliates shall not be obligated to pay a franchise fee or other fee, assessment or tax based
on gross revenues derived from any telephony service unless 1) the City can affirmatively
demonstrate its legal authority under then applicable law to collect said Franchise Fee upon
telephony revenues pursuant to the terms and conditions of this Agreement, and 2) the City levies
the franchise fee or other fee, assessment or tax based on gross revenues derived from any
telephony service in a competitively neutral and non-discriminatory manner.
8. Security. Upon the effective date of the Franchise Agreement, Franchised
MCS Provider shall provide to Franchising Authority a performance bond in the amount of Nine
Hundred Thousand Dollars ($900,000) to assure performance of all of Franchised MCS Provider's
obligations under this Franchise Agreement. Franchised MCS Provider shall also post an
irrevocable Letter of Credit in the amount of One Hundred Thousand Dollars ($100,000) not
more than ninety (90) days after approval of the Franchise to guarantee all of the obligations of
this Franchise Agreement. The Performance Bond and Letter of Credit required by this section,
shall each be reduced to Twenty -Five Thousand Dollars ($25,000) upon conclusion of complete
system reconstruction to 750 MHz.
9. Insurance. Franchised MCS Provider, at its sole cost and expense, for the
full term of this Franchise Agreement (and any extension thereof), shall obtain and maintain at
minimum all of the following insurance coverage:
A. Types of Insurance and Minimum Limits. The coverages required herein
may be satisfied by any combination of specific liability and excess liability policies.
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(1) Workers Compensation and Employers Liability Insurance in
conformation with the laws of the State of California (not required if Franchised
MCS Provider has no employees).
(2) Franchised MCS Provider's vehicles, including owned, non -owned
(e.g., owned by Franchised MCS Provider's employees and used in the course and
scope of employment), leased or hired vehicles, shall each be covered with
Automobile Liability Insurance in the minimum amount of One Million Dollars
($1,000,000) combined single limit per accident for bodily injury and property
damage.
(3) Franchised MCS Provider shall obtain and maintain Comprehensive
or Commercial General Liability Insurance coverage in the aggregate annual
amount of One Million Dollars ($1,000,000) combined single limit, including
bodily injury, personal injury, and broad form property damage. Such insurance
coverage shall include, without limitation:
(a) a cross -liability clause.
(4) Franchised MCS Provider shall obtain and maintain Broadcaster's
Errors and Omissions Liability Insurance in the aggregate annual amount of One
Million Dollars ($1,000,000).
B. All required Insurance Policies specified in A(3) above shall contain the
following endorsement as a part of each policy:
"The City of La Quinta is hereby added as an additional insured as respects the
operations of the named insured pursuant to cable television franchise as granted by the
City of La Quinta" and said insurance shall specifically cover the negligent acts of
Franchised MCS Provider, its employees, agents and subcontractors in the performance
of work hereunder."
C. Within thirty (30) days from approval of the Franchise, the Franchised
MCS Provider shall furnish proof to the Franchising Authority that a satisfactory
insurance policy for General Comprehensive, Bodily Injury Liability, Property Damage,
and Broadcaster's Errors and Omissions Liability Insurance is in place. The insurance
policies for vehicles shall be in effect prior to usage of any vehicle by Franchised MCS
Provider. Franchising Authority may, by resolution, from time to time, reasonably
increase the required amount of said insurance to the same amount which other
contractors operating in the jurisdiction of Franchising Authority are required to provide
so long as said increased coverage is reasonably available at reasonable prices.
D. All insurance policies shall provide that in the event of cancellation or non -
renewal by the insurance carrier for any reason other than nonpayment of the premium,
not less than thirty (30) days' notice will be given to Franchising Authority by registered
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mail of one (1) copy of a written notice of such intent to cancel or not to renew the
coverage. An authorized agent of such insurance carrier shall provide to the Franchising
Authority, on such schedule as is requested of Franchised MCS Provider by the
Franchising Authority, a certification that all insurance premiums have been paid and all
coverages are in force.
If for any reason, Franchised MCS Provider fails to obtain or keep any of such
insurance in force, Franchising Authority may (but shall not be required to) obtain such
insurance, in which event Franchised MCS Provider shall promptly reimburse Franchising
Authority its premium cost therefor plus one and one-half percent (1-1/2%) monthly
interest thereon until paid.
10. Defense and Satisfaction of Claims.
A. Franchised MCS Provider shall at the sole cost and expense of Franchised
MCS Provider, upon demand by Franchising Authority, defend Franchising Authority, its
officers, boards, commissions or employees, in any and all suits, actions, or other legal
proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise
arising either out of Franchised MCS Provider's acts, errors, or omissions.
B. Franchised MCS Provider shall cause to be paid and satisfied any
judgment, decree, or order rendered, made, or issued against Franchised MCS Provider,
Franchising Authority, its officers, boards, commissions, or employees, and hold
Franchising Authority harmless therefrom, arising either out of Franchised MCS
Provider's acts, errors, or omissions in connection with the construction, operation,
maintenance, or other activities in relation to Franchised MCS Provider's cable television
system including, but not limited to, damages arising out of copyright infringement,
defamation, personal and property liability, and antitrust liability, whether or not said
damages are compensatory or punitive, provided, however, Franchised MCS Provider
shall not be required pursuant to this paragraph to hold Franchising Authority harmless
for actions relating to programming decisions outside of Franchised MCS Provider's
control, or relating to the operation of the emergency override provided for in § 15(c)(a)
below.
Such indemnity shall exist and continue without reference to the amount of any
bond, policy of insurance, deposit, undertaking, or other assurance; provided, however,
Franchised MCS Provider shall not make or enter into any compromise or settlement of
any claim, demand, causes of action, suit, or other proceedings which settlement involves
anything other than the payment of money by Franchised MCS Provider without
contribution by Franchising Authority, without first obtaining the written consent of the
Franchising Authority, which consent shall not be unreasonably withheld.
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11. Liquidated Damages and Other Remedies.
A. Damages for Delays in Reconstruction. Subject to the procedure of
Paragraph 11.C.(2) below, Franchising Authority, at its option, may apply one or more
of the following damages in an additive manner if Franchised MCS Provider fails to
perform reconstruction and/or offer services within the time or times set forth in this
Franchise Agreement:
(1) Franchised MCS Provider shall upgrade/rebuild its cable television
system in accordance with the construction schedules set forth in Paragraph 16 of
this Franchise Agreement. Franchised MCS Provider shall submit quarterly sweep
results at a test location at the end of each trunk run to confirm signal capability
at the highest frequency. If Franchised MCS Provider is unsuccessful in
demonstrating carriage at each test location, Franchised MCS Provider shall have
a maximum thirty (30) days from testing to correct any deficiencies and repeat the
test.
Franchised MCS Provider may impose liquidated damages of Two
Thousand Dollars ($2,000) per day for each day following the date upon which
each milestone of the system is required to be completed as required by Paragraph
16(B) of this Franchise Agreement; provided, however, no penalties may be
imposed if Franchised MCS Provider successfully demonstrates carriage at all test
locations prior to the thirtieth (30th) day following the scheduled completion date
for that milestone. If Franchised MCS Provider fails to demonstrate carriage at
each milestone within thirty (30) days of the scheduled completion date, said
liquidated damages imposed by Franchising Authority shall relate back to the
scheduled completion date.
(2) For each month of delay exceeding three (3) months from the date
that completion of each milestone is required pursuant to Paragraph 16(B)(1) of
this Franchise Agreement, Franchising Authority may reduce the term of the
Franchise up to four (4) months.
(3) For a delay exceeding twenty-four (24) months from the date that
each milestone is required as contained in Paragraph 16(B)(1) of this Franchise
Agreement, Franchising Authority may terminate the Franchise.
B. Damages for Violation of Technical Standards and Customer Service
Standards. In addition to and without limiting the damages for delays as specified in
Paragraph l l (A) of this Franchise Agreement, Franchising Authority reserves the right
to impose any of the other liquidated damages described below for the violations and in
the amounts described below:
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(1) Technical Standards Violations.
(a) The Franchising Authority may impose liquidated damages
not to exceed Three Hundred Fifty Dollars ($350) per day, for violation of
the FCC's technical standards. In any event, a violation shall be deemed
to commence upon Franchising Authority's notice to Franchised MCS
Provider. For purposes of Section I I(B)(1)(a), liquidated damages may be
assessed on a standard -by -standard, not on a test -site, basis. For example,
failure to meet the FCC's carrier -to -noise test at multiple test sites
constitutes one violation. Failure to meet the carrier -to -noise test and the
bandwidth test during the same proof -of -performance test constitutes two
violation of the FCC's technical standards.
(b) Franchised MCS Provider shall be entitled to the appeal
rights provided in Paragraph II(C)(2) below.
(2) Customer Service Violations.
(a) Franchised MCS Provider shall comply with and be
governed by the then applicable cable system customer service standards.
If Franchised MCS Provider violates any of such customer service
standards and said violations inflict a substantial detriment to the
subscriber, Franchising Authority may impose liquidated damages in the
amount of Three Hundred Fifty Dollars ($350) per violation; provided,
however, no liquidated damages shall be imposed until Franchised MCS
Provider has been given actual notice of said violation and failed to cure
said violation within the cure period provided in this Franchise Agreement
and Ordinance or, if no cure period is provided, within six (6) working
days of said notice for all violations. In the event that Franchised MCS
Provider does not correct said violation within the applicable cure period,
said liquidated damages may be imposed from the date of original
violation.
C. Payment of Damages.
(1) Cure.
In the event that Franchising Authority has reason to believe that
Franchised MCS Provider has failed to comply with any material provision of this
Franchise Agreement or the Ordinance and therefore desires to impose damages
on Franchised MCS Provider as stipulated above and in Chapter 5.10.150 of the
Ordinance, except in the case of Section II(B)(1) of this Franchise Agreement
where the internal procedures thereof shall govern, Franchising Authority shall
notify Franchised MCS Provider in writing of the provision or provisions which
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the Franchising Authority believes may be in default as well as the applicable cure
period. Franchised MCS Provider shall upon receipt of said notice:
(a) Cure the alleged violation within the cure period; or
(b) Respond to the Franchising Authority in writing during the
cure period contesting the Franchising Authority's assertion of violation
and providing such information or documentation as may be necessary to
support Franchised MCS Provider's position and/or request an extension
of the cure period.
(2) Appeal and Payment.
In the event Franchised MCS Provider fails to respond to said notice of
violation, or to cure the violation within the applicable cure period, or provide an
explanation for failure to cure acceptable to Franchising Authority, Franchising
Authority or its designee shall schedule a hearing no sooner than ten (10) days
after written notice to Franchised MCS Provider of the expiration of the cure
period and the scheduling of said hearing. Franchised MCS Provider shall be
provided an opportunity to be heard at such hearing, including the right to present
evidence, cross-examine witnesses, and be represented by counsel. Within thirty
(30) days after said hearing, the Franchising Authority shall determine whether or
not Franchised MCS Provider is in violation and submit written findings of facts
supporting such determination. The hearing described above may be conducted,
at Franchising Authority's election, either before the City Council or before an
administrative officer or commission selected by the City Council. In the event
that said hearing is not held before the City Council, Franchised MCS Provider
shall possess the right to appeal said determination to the City Council within ten
(10) days of issuance of the statement of decision and findings of fact. All
liquidated damages are due and owing thirty (30) days after a final decision by
either the City Council or the hearing officer in the event of no appeal to the City
Council. The aforesaid assessment may be levied directly against the letter of
credit and collected by Franchising Authority twenty (20) days from date of said
damages are due and owing. Such assessment shall not constitute a waiver by the
Franchising Authority of any other right or remedy it may have under the
Franchise Agreement or under applicable law including, without limitation, its
right to recover from Franchised MCS Provider such additional damages, losses,
costs and expenses, but not attorneys' fees, as may have been suffered or incurred
by Franchising Authority by reason of or arising out of such breach of the
Franchise Agreement. Nothing in this Paragraph is intended to waive, modify or
otherwise affect Franchised MCS Provider's rights under the Ordinance, this
Franchise Agreement, any applicable law, including without limitation the right
to judicial review of the legal rights and obligations of the parties with respect to
each other, the Franchised MCS Provider's right to challenge the decision of the
City under applicable legal standards, and any issue of performance or breach by
either party to this Franchise Agreement.
D. Validity of Liquidated Damages. Any imposition of monetary damages
may be collected and retained by Franchising Authority as liquidated damages without
any reduction, offset, or recoupment whatever. Franchising Authority and Franchised
MCS Provider agree that it would be impractical or extremely difficult to fix actual
damages in the case of Franchised MCS Provider's default, and that the amount of
damages specified above is a reasonable and complete estimate of Franchising Authority's
damages. Franchised MCS Provider recognizes that Franchised MCS Provider's prompt
development and offering of cable television service for which penalties can be imposed
is of critical importance to anchising Authority.
Franchising Authority: Franchised MCS Provider:
12. Franchised MCS Provider Support for Community Programming.
Franchised MCS Provider shall provide the following support for the purpose of development and
implementing public benefit uses of the Cable System. The provision of the support items listed
herein shall be considered as contractual commitments of the Franchised MCS Provider within
the terms of this Franchise Agreement, and if not provided, shall subject the Franchised MCS
Provider to applicable remedies and penalties for violations of the Franchise Agreement.
Franchised MCS Provider shall provide the following support:
A. Channel Dedications.
(1) Following completion of system reconstruction, and further upon
the written request of the Franchising Authority, the Franchised MCS Provider
shall dedicate, on an exclusive basis, up to three (3) fully activated downstream
video channels for use of Educational or Governmental Access ("EG")
programming to be controlled by the Franchising Authority.
(2) To avoid underutilization of EG channels the Franchised MCS
Provider may notify in writing, subject to the relevant provisions of the Cable Act,
Franchising Authority of channels which are not being used for access purposes.
Unless the Franchised MCS Provider receives written notice within forty-five (45)
days that the Franchising Authority contests the contents of said notice, the
Franchised MCS Provider may use the channel capacity. Any use granted to
Franchised MCS Provider under this procedure is temporary. Franchising
Authority must relinquish the use of channel capacity within forty-five (45) days
of a written request by the Franchised MCS Provider.
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(3) The Franchised MCS Provider may not, except as provided under
the Cable Act, exercise any editorial control over the use of channels set aside for
EG use.
(4) The Franchised MCS Provider shall provide all EG channels to all
subscribers as part of the lowest tier or level of Basic Cable Television Service.
(5) In addition to the channel capacity provided for in Section
12(A)(1) above, Franchised MCS Provider shall reserve two (2) additional
channels for EG uses. When each of the three (3) initial channels provided for
under subsection 12(A)(1) above are programmed with non -alphanumeric, non -
duplicated programming eighty percent (80%) of the time between 7:00 p.m. and
11:00 p.m. on weekdays for fifteen (15) consecutive weeks (the "Activation
Trigger"), Franchising Authority may request in writing that one of the channels
reserved under this subsection be activated on ninety (90) days notice. When the
first four (4) EG channels meet the Activation Trigger, Franchising Authority may
request that the second channel reserved under this subsection be activated on
ninety (90) days notice.
(6) Upon completion of the rebuild, and upon a one hundred and
twenty (120) day advance written notification to Franchised MCS Provider,
Franchising Authority shall possess the activated capacity to transmit video
programs from City Hall to Franchised MCS Provider's headend for simultaneous
cablecasting on the downstream EG channels. Franchised MCS Provider's
obligation herein shall be limited to the provision of a dedicated upstream video
channel from City Hall, including all necessary distribution equipment and
headend equipment, but shall not include any obligation to provide video input
equipment at City Hall.
B. An Educational and Government Access Related Facilities and Equipment
Grant in the amount of One Hundred Twenty -Five Thousand ($125,000) to be utilized to
purchase and install EG-related capital improvements and equipment or to administer the
Franchise (the "EG Grant"). This EG Grant shall be paid by Franchised MCS Provider
within thirty (30) days of Franchising Authority's written request and shall not be
itemized as a separate "pass through" charge to customers or otherwise added to the
otherwise applicable maximum permitted rate.
C. An Educational and Government Access Related Facilities and Equipment
Grant to be paid on the fifth (5th) anniversary of this Franchise Agreement, in the amount
of Fifty Thousand Dollars ($50,000) indexed to inflation increases cumulative since the
Effective Date to be utilized to purchase and install EG-related capital improvements and
equipment or to administer the Franchise.
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D. In the event any dedication to EG Programming required by this Franchise
Agreement is deemed by a legislative body, administrative body, or court of competent
jurisdiction to constitute a payment which must be offset against the franchise fee,
Franchising Authority hereby reserves the right, but is not required to do so, to terminate
said program and/or requirement so as to provide the maximum allowable franchise fee.
Franchised MCS Provider shall not offset any charge, of any kind, against a franchise fee
or other payment due Franchising Authority without prior written notification to
Franchising Authority. Upon notification thereof, Franchising Authority may direct
Franchised MCS Provider not to incur the proposed offset expenditure. To the extent that
Franchised MCS Provider makes said expenditure in contradiction of Franchising
Authority's direction, any right of offset shall be waived by Franchised MCS Provider.
Nothing in this Franchise Agreement is intended, and shall be so construed, to confer any
third party beneficiary rights on any party(s), and no rights are created by this Franchise
Agreement other than rights in the Franchising Authority and Franchised MCS Provider.
13. Institutional Drop Policy. Franchised MCS Provider shall provide one
standard installation drop and flee access to all levels of Basic Cable Television Services and
Cable Programming Services, as defined in the 1992 Cable Act, for the life of the Franchise, to
the Fire Station, Police Station, Public Works Department and City Hall, all located within the
Civic Center complex and to each public school within the City. The implementation of the drop
policy shall not be deemed non -capital payments requiring or allowing offset against the franchise
fee.
14. Services and Broad Categories of Video Programming. Upon
completion of the rebuild, Franchised MCS Provider shall provide, as a minimum, Cable Service
as provided in the 1992 Cable Act. Said channels shall include the following broad categories
of programming: general entertainment; sports; local broadcast stations; cultural programming;
news; classic, foreign, and special interest films; contemporary movies; documentaries and
information programming; coverage of government legislatures; children's programming; and
foreign language programming.
If any listed broad category of video programming shall become unavailable, or
cannot be provided under existing FCC regulations, Franchised MCS Provider shall provide
substitute video programming of the same category if possible. Franchised MCS Provider shall
not be limited in its program or equipment offerings, other than by restrictions established by
FCC Rules or applicable federal, state or local laws.
15. System Design and Capacity Requirements.
A. Channel Capacity. Upon reconstruction as set forth herein, the residential
Network shall provide the forward transmission capacity of a minimum of Seventy-eight
(78) analog video channels with a total bandwidth capable of not less than Seven Hundred
and Fifty (750) megahertz (MHz). Upon completion of system reconstruction,
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Franchised MCS Provider shall immediately activate a minimum of Fifty Eight (58)
downstream video channels.
B. Interactive Capacity and Services. Subscriber interface technology, if
requested by the Subscriber, shall be fully addressable and interactive capable.
C. Minimum Design Criteria. Upon completion of the rebuild, in addition
to the requirements of Subsections 15.A and B above, minimum system construction
requirements shall be as follows:
(1) Two-way design;
(2) Two-way capable plant;
(3) Temperature control for headend satellite receiver site electronics
where necessary;
(4) Franchised MCS Provider shall provide individual residential
account subscribers, upon request, with a parental control locking device or digital
code that permits inhibiting the viewing of parental designated channels;
(5) All new underground trunk and distribution cables and house drops
shall be in conduit;
(6) Except where Franchised MCS Provider's existing facilities are
provided using aerial plant, Franchised MCS Provider shall install its cable and
passive devices below ground in those areas where existing utilities are provided
underground. Franchised MCS Provider shall utilize and place low profile
pedestals as consistent with the engineering design which will be prior approved
by the Franchising Authority in writing.
(7) Franchised MCS Provider shall comply with any and all technical
standards adopted, or permitted for local adoption, by the Federal Communications
Commission, as said technical standards may be amended from time to time.
(8) Standby Powering.
(a) Upon completion of the rebuild, all standby powering
equipment utilized by the Franchised MCS Provider shall be installed,
activated, and maintained by the Franchised MCS Provider at its sole
expense, and shall be capable of powering the cable television system for
a period of no less than two (2) continuous hours during a commercial
power interruption.
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(b) Upon completion of the rebuild, Franchised MCS Provider
shall provide standby powering equipment to power its headend equipment
and fiber optic equipment transmitters and receivers, whether such fiber
optic equipment is located at the headend or in the trunk or distribution
system of the Franchised MCS Provider's plant.
(c) Upon completion of the rebuild, when one or more
commercial power outages exceed a cumulative total of twenty-four (24)
or more hours during any twelve (12) month period in areas other than
those where power is not available to residences, Franchising Authority
and Franchised MCS Provider agree to meet and develop a plan to reduce
outage time below 24 hours. This may include the installation of
additional standby power supplies which shall be implemented by
Franchised MCS Provider.
(d) The Franchised MCS Provider shall provide standby
powering equipment on all portions of its cable system providing Cable
Service to or from, but not including, the following locations:
(1) City Hall
(2) Public Works Corporate yard
(3) All Fire Department stations
In the event that such locations do not exist on, or are constructed
after the effective date of this Franchise Agreement, then such standby
powering shall be activated within three (3) months after receipt of written
notice from Franchising Authority to provide such additional standby
powering equipment.
(9) Emergency Override.
(a) Consistent with federal law, Franchised MCS Provider shall
provide, install, activate, and maintain an emergency audio override
system, which is not shared with any other jurisdiction, and which permits
the Franchising Authority to deliver audio override programming on every
channel of the Franchised MCS Provider's system. Franchising Authority
shall be able to activate, provide audio programming, and terminate such
emergency audio override on the Franchising Authority -designated
channels via dial -up or dedicated telephone control. Franchised MCS
Provider shall also provide an independent exclusive telephone line to the
City for use in emergency situations.
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(b) If the Franchised MCS Provider provides its subscribers
with cable converters that have as a manufacturer's option the ability to
remotely activate a subscriber's television receiver upon receipt of a data
command from the headend, then the Franchised MCS Provider shall
configure the emergency override system described in this section to send
such a signal upon an activation by the Franchising Authority of the
emergency override system. If such data command is capable of
controlling the audio volume control of the converter, then Franchised
MCS Provider shall configure the emergency override system described in
this section to send such a data command to maximize the audio volume
upon activation by the Franchising Authority of the emergency override
system.
16. Rebuild Construction Schedule.
A. Description of Cable Television Service Area(s). The service area shall,
subject to Paragraph 4, constitute the existing entirety of the City of La Quinta with a
density of at least forty-eight (48) homes per cable mile in areas requiring single
trenching, 36 homes per cable mile in areas requiring joint trenching, or 28 homes per
mile in areas requiring aerial construction; provided, however, as to any area annexed to
the City subsequent to the Effective Date of this Franchise Agreement, Franchised MCS
Provider shall not be required to overbuild any lawful cable operation. Notwithstanding
the foregoing sentence, Franchised MCS Provider is authorized but not obligated to
construct a Cable System and to provide Cable Service to non-residential areas of the
City. Franchising Authority will adopt procedures to provide reasonable notice and
access, if permissible under applicable law, to Franchised MCS Provider of open trenches
available to jurisdictional utilities. In areas which are annexed by the Franchising
Authority after the date of this Franchise Agreement, Franchised MCS Provider shall not
be required to extend and construct its Cable System to those portions of such annexed
areas served by another cable system. Notwithstanding anything set forth above,
Franchised MCS Provider is obligated to serve the developments set forth in Attachment
A hereto upon their completion.
B. System Rebuild Construction Schedule.
(1) The date a complete set of design maps will be submitted to
Franchising Authority for review will be no more than six (6) months from the
Effective Date of this Franchise Agreement.
(2) The date one hundred percent (100%) reconstruction of plant
mileage in the area known as the "Cove" consistent with the obligations set forth
in Section 15 of this Franchise Agreement (see Map attached as Attachment B)
will be completed shall be no more than nine (9) months from the Effective Date
of the Franchise Agreement. For those areas of the City outside of the Cove that
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are not already rebuilt to 550 MHz, Franchised MCS Provider shall rebuild these
areas to a minimum of 750 MHz capacity within twelve (12) months of the
Effective Date of the Franchise Agreement. For the portion of the City that has
already been rebuilt to 550 MHz as of the date this Franchise Agreement
becomes effective, Franchised MCS Provider shall upgrade these areas to 750
MHz capacity within twenty-four (24) months after this Franchise Agreement
becomes effective.
(3) If Franchised MCS Provider is unable to comply with the schedule
prescribed by Subsections B.1. and B.2. above, Franchised MCS Provider shall,
when it first knows that it will be unable to so comply, file a written certification
which explains reasons for its inability to comply, and which proposes a new
schedule for completion consistent with the delays which are explained, and
Franchising Authority shall approve new reasonable scheduling if delays were
beyond the control of Franchised MCS Provider. In the case of an inability to
obtain equipment and materials from suppliers, Franchised MCS Provider shall
include in its written certification an explanation which demonstrates that
Franchised MCS Provider used due diligence to timely obtain such equipment and
materials.
C. Mandatory Provision of Service. It is the established policy of the
Franchising Authority that all citizens who reside in existing areas of the City plus all
annexed areas shall possess the right to be offered on a non-discriminatory basis Cable
Television Service as provided herein, subject to the ability of Franchised MCS Provider
to secure the right to service citizens who reside in areas of private property.
D. Duty to Report. Commencing at the beginning of the third (3rd) month
following filing of the certificate of acceptance of a franchise, and continuing until the
date the rebuild is completed, the Franchised MCS Provider shall, by the tenth day of
each month, file with the Franchising Authority a written statement identifying the
number of miles rebuilt and left to be rebuilt.
E. Future Developments. With respect to all territories within Service Areas
which are in the process of being subdivided at the time a franchise is issued, Franchised
MCS Provider shall, if practical, install its Cable System at the time the public
improvements for the subdivision are being installed, and shall, in any event, make Basic
Cable Television Service available to all homes within such subdivisions not later than
six (6) months after the system is completed pursuant to Subsection 16.A and 16.B above.
With respect to all subdivisions which commence construction after
issuance of the franchise, the Franchised MCS Provider shall, if practical, install its Cable
System at the time the public improvements for the subdivisions are being installed,
provided Franchised MCS Provider receives adequate written notice from the developer
and/or utilities.
14
17. Provision of Service. Unless the subscriber requests otherwise, the
maximum time for an offering to provide a standard installation of initial service after receipt of
a subscriber order shall be five (5) business days if cable already passes the house, and thirty (30)
days if new cable plant must be constructed. Service additions or deletions shall be made within
twenty-four (24) hours of a subscriber request, unless additional terminal equipment is required
in which case Franchised MCS Provider shall make such service change within five (5) business
days.
18. Technical Standards, Maintenance and Testing.
A. Franchised MCS Provider's technical and maintenance standards shall be
governed by such technical and maintenance standards as may be established by the FCC
for cable systems and Franchised MCS Provider shall follow and complete all appropriate
tests required by FCC Rules, Part 76.601, Subpart K. Franchised MCS Provider agrees
to a minimum of two (2) test points within the Service Area. So long as Franchised MCS
Provider conducts the tests required by FCC rules, Part 76.601, Subpart K, the provisions
of Ordinance Chapter 5.16.100(d) shall not apply and shall not be enforced.
19. Franchise Term.
A. Upon issuance of the Certificate of Closing by the City Attorney as
described in paragraph (B) of this Section 19, this Franchise Agreement will become
effective (the "Effective Date"). At the Effective Date, this Franchise Agreement will be
a binding agreement, with all rights and privileges vested in the Franchised MCS Provider
as described herein. This Franchise Agreement will terminate on the fifteenth (15th)
anniversary date of the Effective Date and no obligations or rights hereunder shall be of
effect after such date of termination.
B. A Certificate of Closing shall be issued by the City Attorney attesting that
the following documents have been provided to the City, or acts completed by Franchised
MCS Provider, in a form acceptable to the City Attorney upon receipt of the following:
(1) Franchised MCS Provider's written acceptance in a form reasonably
satisfactory to the City Attorney; and
(2) All bonds, insurance certificates and security deposits required by
the Ordinance and this Franchise Agreement;
(3) Certificates of Authenticity, Authority, and otherwise as reasonably
specified by the City Attorney.
20. Performance Review and Examination.
A. On or about the tenth anniversary date of the Effective Date of the
Franchise Agreement, the Franchising Authority and the Franchised MCS Provider may,
15
at the request of either party, hold a system performance evaluation, periodic review and
examination session (the "Performance Review and Examination"). The purpose of the
Performance Review and Examination shall be to study technological, economic and
regulatory change in cable communications; to assess cable system performance; to assess
compliance with this Franchise Agreement and the Ordinance; to facilitate renewal
procedures; to promote the maximum degree of flexibility in the cable system; and to
maintain an advanced, modern, economically viable cable system.
B. Topics for discussion and review at the Performance Review and
Examination may include, but are not limited to, new developments in technology;
condition and operation of equipment and facilities; services provided to subscribers;
video programming; subscriber complaints; user complaints; possible amendments to the
Franchise Agreement; and developments in the law and regulation. Either the Franchising
Authority or the Franchised MCS Provider may select additional topics for discussion at
any Performance Review and Examination.
C. The Franchising Authority and the Franchised MCS Provider shall discuss
new developments and technology and the desirability and feasibility of incorporating
such new technological developments into the cable system. Technical factors, market
conditions and economical viability shall be considered.
D. At the conclusion of such Performance Review and Examination, the
Franchising Authority shall issue a report summarizing the discussions and setting forth
its factual findings and specifying, in detail, any Franchise Agreement and/or system
modifications and/or amendments and/or implementation plan which are determined
appropriate by Franchising Authority. The Franchised MCS Provider shall submit to the
Franchising Authority a plan and schedule for (i) the curing of any violations of this
Franchise Agreement or the Ordinance and (ii) the implementation of any improvements.
After mutual agreement to such plan and schedule by the Franchising Authority
and the Franchised MCS Provider, this Franchise Agreement shall be amended to
incorporate the plan and schedule for improvements. Franchised MCS Provider shall agree
to the implementation of the improvements requested by the Franchising Authority so
long as the following conditions are met:
(1) Said change(s) has been identified as a significant need in the
Performance Review and Examination;
(2) The need(s) cannot be met at least as well by an alternative
business or commercial entity at a reasonable price;
(3) The present system cannot meet the specified need either as
presently operating or with some alternative modification consistent with the
16
Franchise Agreement which imposes a significantly lesser economic burden on the
Franchised MCS Provider;
(4) The change will meet the community need as defined in the
Performance Review and Examination and there is market demand for the new
services that would be implemented with the change;
(5) Said change is technically feasible, will not impose an unreasonable
financial hardship on Franchised MCS Provider or otherwise prevent the
Franchised MCS Provider from earning a reasonable return on its investment in
the La Quinta cable system at reasonable and competitive prices in the time
remaining in the term of the Franchise Agreement.
21. Inspection of Records. The City shall have the right, upon 72 hours prior
written notice, to inspect and copy, during normal business hours, all books, receipts, maps,
plans, financial statements, contracts, service complaint logs, performance test results, records of
requests for service, computer records, codes, programs, disks and other storage media, and other
like materials which may be relevant to the Franchised MCS Provider's compliance with the
requirements and obligations imposed upon it by this Franchise Agreement or the Ordinance.
The right of the City under this section to inspect extends to the materials identified above that
are in the possession or under the control of the Franchised MCS Provider, and of any other
person responsible for managing and administering the Cable System. Upon a request for
confidentiality by the Franchised MCS Provider, information obtained by the City pursuant to this
section shall be made available only to persons needing access to the materials in order to
perform their responsibilities on behalf of or for the City and, as to all other persons, shall, to
the extent permitted by law, be treated as confidential. Nothing in this section shall be read to
require a Franchised MCS Provider to violate the Cable Act, 47 U.S.C. § 551.
22. Construction Responsibility. Franchised MCS Provider agrees to be
responsible for the acts and omissions of its contractors and subcontractors and only authorized
employees of Franchised MCS Provider shall apply for and be issued all necessary permits and
building authorizations. The Franchised MCS Provider shall designate to Franchising Authority
specific, named employee to be contacted regarding all cable construction issues.
23. Compliance with Construction Standards. Franchised MCS Provider
shall not construct any portion of its Cable Television System in streets and public ways without
obtaining all necessary building permits and shall only construct said system in accordance with
City standards for methods of construction in public way.
24. Construction. This Franchise Agreement shall be construed according to
the internal laws of the State of California.
25. Local Office. Franchised MCS Provider shall maintain an office within
fifteen (15) miles of the city limits of La Quinta, California.
17
26. Notices Between Franchising Authority and Franchised MCS Provider.
Any notice required to be given by this Franchise Agreement by Franchised MCS Provider to
Franchising Authority or by Franchising Authority to Franchised MCS Provider shall be
presumed given three (3) days after deposit in the United States mail, properly addressed by
certified mail and return receipt requested as follows, or by telecopy or courier:
To Franchising Authority:
To Franchised MCS Provider:
City of La Quinta
Attn: City Clerk
78-495 Calle Tampico
La Quinta, California 92253
Continental Cablevision
41-725 Cook Street
P.O. Box 368
Palm Desert, CA 92261-0368
with a copy to:
Continental Cablevision
Vice President, Corporate & Legal Affairs
550 No. Continental Blvd., Suite 250
El Segundo, California 90245
27. Possessory Interest. By accepting this Franchise Agreement, Franchised
MCS Provider acknowledges that notice is and was hereby given to Franchised MCS Provider
pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any
public property pursuant to the authorization herein set forth may create a possessory interest
which may be subject to the payment of property taxes levied on such interest.
28. Rates. The City may regulate Franchised MCS Provider's rates, charges,
and prices to the maximum extent permitted by law now or at a future time.
29. Reservation of Rights. The parties declare their mutual understanding and
intent that this Franchise Agreement, and the terms and conditions hereof, are currently consistent
with applicable federal and state laws. This Franchise Agreement and the Ordinance are subject
to all applicable federal and state laws, and nothing set forth herein relieves any parts of any
obligations or responsibilities under federal or state laws. Franchising Authority and Franchised
MCS Provider each reserve any and all rights they may have under all applicable federal and
state laws pertaining to their rights under this Franchise Agreement.
30. Revocation. The City may revoke the Franchise only after declaration of
default and only for defaults by Franchised MCS Provider arising from Franchised MCS
18
Provider's willfully or persistently violating any material provisions of this Franchise Agreement,
the Ordinance or orders or rulings of the City.
31. Procedures Governing Revocation.
A. The City shall give written notice to the Franchised MCS Provider of its
intent to revoke the Franchise and the lawful grounds therefor. Franchised MCS Provider
shall have ninety (90) days from such notice to object, in writing, and to state its reasons
for such objection. In the event the City has not received a response satisfactory to it,
it may then proceed to place its request for termination of the Franchise at a Council
meeting. The City shall cause to be served upon the Franchised MCS Provider, at least
ten (10) days prior to the time and place of such meeting, a written notice of this intent
to request such termination, and the time and place of the meeting, notice of which shall
be published by the City at least once, ten (10) days before such meeting in a newspaper
of general circulation within the City.
B. If the City orders the termination of this Franchise, the Franchised MCS
Provider shall have the right to appeal the determination of the City within thirty (30)
days to any agency or court of competent jurisdiction.
C. The Council may, at its sole discretion, take any other lawful action which
it deems appropriate to enforce the City's rights under the Franchise Agreement in lieu
of revocation of the Franchise.
32. This Franchise Agreement shall become effective upon execution of this
Franchise Agreement by all parties.
19
APPROVED AS TO FORM:
APPROVED AS TO FORM:
d Affairs
20
CITY OF LA QUINTA
By: Pj
Its: Mayo
Date: ,� iG�j l s�
"Franchising Authority"
COLONY COMMUNICATIONS,
INC., d/b/a CONTINENTAL
CABLEVISION
By: °�-
tep en A. Martin
Seni r Vice Preside t, Operations
Date: vemk�er 9, 1995
"Franchised MCS Provider"
ATTACHMENT A
Name Projected or Actual Units
Laguna De La Paz
396
Parc La Quinta
150
Acacia Homes
199
Triad Pacific Development
255
Cactus Flower
142
Lake La Quinta
281
Rancho Ocotillo
91
Cactus Flower II
68
Rancho Ocotillo II
31
Chateau Estates -Painted Cove
83
Chateau Estates-Bajada
18
Strother Enterprises - The Orchard
44
The Quarry
70
La Quinta Cove Golf Club
916
Duna La Quinta
861
PGA West-Landmark/KSL
5000
Rancho La Quinta (Previously Pyramids)
1500
Oak Tree West
2245
The Seasons
151
Palm Royale Condos
354
Starlight Dunes
154
Quinterra
116
Topaz - GWR Development
196
Deane Homes
228
Inco Homes
300
Santa Rosa Developers/Tract 26188
39
Foster Turf/KSL Group
1060
The Grove/KSL Group
1208
PGA West Pete Dye Resort Course
880
JASCORP
116
Chong Lee
37
Valley Land Development
98
Santa Rosa Developers
85
Richard Deman
39
Harold Hirsch
144
Vista Development/Tract 26008
14
Vista Development/Tract 26009
50
Amcor Realty/Tract 26148
55
La Quinta Estates Partnership
98
A & H Properties/Tract 26853
52
1002351-4
Name
Seastar Development/Tract 27224
Vista Santa Rosa/Specific Plan 90-020
Hansch/Tract 26718
Kanlian/Tract 26855
Vistara/Tract 24774
Santa Rosa Development/Tract 27899
Kleine/Woodbridge/Tract 28034
The Traditions of LQ
Travertine
Green
Projected or Actual Units
98
850
125
73
119
111
25
398
2300
277
* Where projects are located on private streets, assume agreement with property owner prior
to construction.
1002351-4
HARTFORD FIRE INSURANCE COMPANY
Hartford, Connecticut
POWER OF ATTORNEY
Know all men by these Presents, That the HARTFORD FIRE INSURANCE COMPANY, a corporation duly organized
under the laws of the State of Connecticut, and having its principal office in the City of Hartford, County of Hartford, State of Connecticut,
does hereby make, constitute and appoint
CRAIG f. NELSON, V"RIE CLARK, PAULA DE LEON
and PATRIC74 A. HOLLENEECKofENGLEIVOOD, COLORADO
its true and lawful Attomey(s)-in-Fact, with full power and authority to each of said Attomey(s)-in-Fad, in their separate capacity if more
than one is named above, to sign, execute and acknowledge any and all bonds and undertakings and other writings obligatory in the
nature thereof on behalf of the Company in its business of guaranteeing the fidelity of persons holding places of public or private trust;
guaranteeing the performance of contracts other than insurance policies; guaranteeing the performance of insurance contracts where
surety bonds are accepted by states and municipalities, and executing or guaranteeing bonds and undertakings required or permitted in
all actions or proceedings or by law allowed, and to bind the HARTFORD FIRE INSURANCE COMPANY thereby as fully and to the
same extent as if such bonds and undertakings and other writings obligatory in the nature thereof were signed by an Executive Officer of
the HARTFORD FIRE INSURANCE COMPANY and sealed and attested by one other of such Officers, and hereby ratifies and confirms
all that its said Attomey(s)-in-Fact may do in pursuance hereof.
This power of attorney is granted by and under authority of the following provisions:
(1) By -Laws adopted by the Stockholders of the HARTFORD FIRE INSURANCE COMPANY at a meeting duly called and held on
the 9th day of March, 1971.
ARTICLE IV
SECTION 8. The President or any Vioe-President, acting with any Secretary or Assistant Secretary, shall have power and authority to appoint, for
purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, one or more Resident Vice
Presidents, Resident Assistant Secretaries and Attomeys-in-Fact and at any time to remove any such Resident Vice -President, Resident Assistant
Secretary, or Attomey-in-Fact, and revoke the power and authority given to him.
SECTION 11. Attomeys-in-Fad shall have power and authority, subject to the terms and limitations of the power of attorney issued to them, to
execute and deliver on behalf of the Company and to attach the seal of the Company thereto any and all bonds and undertakings, and other writings
obligatory in the nature thereof, and any such instrument executed by any such Attomey-in-Fact shall be as binding upon the Company as if signed by an
Executive Officer and sealed and attested by one other of such Officers.
This power of attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the
Directors of the HARTFORD FIRE INSURANCE COMPANY at a meeting duly called and held on the 12th day of February, 1993.
Resolved, that the signatures of such Officers and the seal of the Comparry may be affixed to any such power of asorrrey or to any certificate relaft thereto by
facsimile, and any such power of attorney or oertfrate bearing such facsi Tde signatures or facsimile seal shall be valid and binding upon the Company and any such power so
executed and certified by fammile signatures and facsimile seal shah be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is
attached.
In Witness Whereof, the HARTFORD FIRE INSURANCE COMPANY has caused these presents to be signed by its Vice -
President, and its corporate seal to be hereto affixed, duly attested by its Secretary, this 1 at day of May, 1995.
Atiest: HARTFORD FIRE INSURANCE COMPANY
Richard R. FlafmtlnOn
Somowy rr
STATE OF CONNECTICUT
a& Paul L. Marabella
COUNTY OF HARTFORD I Vice -President
On this tat day of May, A.D. 1995, before me personally came Paul L. Marabella, to me known, who being by me duly sworn, did depose
and say: that he resides in the County of Hartford, State of Connecticut; that he is the Vice -President of the HARTFORD FIRE
INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he knows the seal of the said
corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of
said corporation and that he signed his name thereto by like order.
STATE OF CONNECTICUT '
ss. •�• fgH. Wozniak
COUNTY OF HARTFORD q�p Nobly Rro6c
MY Cornrrriasicn 6rpkes Jtxre 30, 1me
CERTIFICATE
I, the undersigned, Secretary of the HARTFORD FIRE INSURANCE COMPANY, a Connecticut Corporation, DO HEREBY
CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been revoked; and furthermore, that
the Resolutions of the Board of Directors, set forth in the Power of Attorney, are now in force.
Signed and sealed at the City of Hartford.
Dated the 8TH day of NOV 1995
1
,a
rr • �� L r.
Robert L. Post
Secretary
Form S-3507-9 (EIF) Printed in U.S.A.
PERFORMANCE BOND
Bond #SUN-401627-1-CCI-6991-PE-646
KNOW ALL MEN BY THESE PRESENTS, That we, COLONY CABLEVISION OF CALIFORNIA.
as Principal, hereinafter called Principal, and Hartford Fire Insurance Company, a Connecticut
corporation, as Surety, hereinafter called Surety, are held and firmly bound unto the CITY OF LA
QUINTA, CALIFORNIA as obligee, hereinafter called Obligee, in the amount of NINE HUNDRED
THOUSAND DOLLARS AND 00/100 Dollars, ($900,000.00 ) for the payment of which sum,
well and truly to be made, the said Principal and Surety bind themselves, and their heirs, executors,
administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, Principal has entered into a written agreement with the Obligee CITY OF LA
QUINTA, CALIFORNIA dated OCTOBER 17, 1995 , to construct/upgrade a cable TV
system in, the CITY OF LA QUINTA, CALIFORNIA which agreement is hereby referred to and
made a part hereof as fully and to the same extent if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That if Principal
shall fully indemnify and reimburse the Obligee for any loss that they may suffer through the failure of
the Principal to faithfully observe and perform all obligations and duties imposed upon the Principal by
said agreement, for which a bond must be posted, then this obligation to be void; otherwise to remain in
full force and effect.
PROVIDED, HOWEVER, It shall be a condition precedent to any right of recovery hereunder, that in
event of any default on the part of the Principal, a written statement of the particular facts of such
default shall be, within thirty (30) days, delivered to Surety at its Home Office in Hartford, Connecticut
by registered mail.
PROVIDED, HOWEVER, That no action, suit or proceeding shall be had or maintained against the
Surety on this instrument unless the same be brought or instituted and process served upon the Surety
within one year after completion of the work mentioned in said agreement, whether such work be
completed by the Principal, Surety or Obligee: but if there is any maintenance period provided in the
agreement for which said surety is liable, an action for maintenance may be brought within three
months from the expiration of the maintenance period, but not afterwards.
PROVIDED, HOWEVER, That no right of action shall accrue under this bond to or for the use of a
person other than the Obligee, and its successors and assigns.
IN WITNESS WHEREOF, The said Principal and Surety have signed and sealed this instrument this
8TH day of NOVEMBER ,1995.
COLONY CABLEVISION OF CALIFORNIA
BY:
Richarcr A. Hoffstein
SVP/Corporate Controller
HARTFORD FIRE INSURANCE COMPANY
BY: f, -4 � ^ ,
Attorney -in -Fact,,