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Town of Xxxxxxxx
FRANCHISE
AGREEMENT
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XXXXX XX XXX XXXX
Xxxx xx Xxxxxxxx, Xxxxxx of Erie
This FRANCHISE AGREEMENT made this 25th day of April, 1995 between the
Incorporated Town of Xxxxxxxx (hereinafter called "Clarence") and Cable TV Fund
11-B, LTD., a Colorado limited partnership doing business as Xxxxx Intercable
Inc., (hereinafter called "Franchisee").
WHEREAS Franchisee wishes to construct, maintain and operate a cable
television system in Xxxxxxxx; and
WHEREAS the construction, maintenance and operation of said cable
television system involves the use and occupation by Franchisee of the streets,
thoroughfares and other public rights-of-way belonging to Xxxxxxxx; and
WHEREAS the technical ability, financial condition and character of
Franchisee and its principals have been considered and approved by the Town
Board of Xxxxxxxx in full public proceedings affording due process; and
WHEREAS, by resolution of the Town Board dated April 12,1995, Xxxxxxxx
has granted a renewal of the non-exclusive cable television franchise to
Franchisee and authorized the Town Supervisor or other designated
representative of the Town Board to execute the instant FRANCHISE AGREEMENT
with Franchisee upon the terms hereinafter set forth; and
WHEREAS, the instant FRANCHISE AGREEMENT complies with the franchise
standards required by the New York State Commission of Cable Television and the
Federal Communications Commission;
NOW, THEREFORE, in consideration of the mutual conditions and
covenants contained herein:
IT IS MUTUALLY AGREED AS FOLLOWS:
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1. Xxxxx
Xxxxxxxx hereby grants to Franchisee, its successors and assigns the
non-exclusive right and privilege to erect and place in Xxxxxxxx and to
construct, maintain and operate in, over or under the present and future
streets, sidewalks, alleys, public land and places and highways in or of
Xxxxxxxx, towers, poles, lines, cables, necessary wiring and other apparatus
for the purpose of transmitting, receiving, amplifying and distributing
telephone, telegraph, television, data, radio signals and other video and aural
programming and communications services within said Xxxxxxxx and to the
inhabitants thereof. Any and all towers intended to be erected shall be subject
to the prior approval of the Town Board of Xxxxxxxx. No antennas nor poles
shall exceed the height of existing utility poles without the prior approval of
the Town Board. All installations shall comply with Xxxxxxxx ordinances and
federal, state and local laws and regulations.
2. Term
The term of this Agreement shall be for a period of ten (10) years
from June 11,1995.
3. Franchise Area
The franchise rights and obligations set forth in this Agreement shall
be applicable to the present territorial limits of the Town of Xxxxxxxx and to
any area added thereto during the term of this Agreement.
4. Construction
(a) Franchisee shall construct and maintain its cable system in a
safe and reliable manner.
(b) The population density shall be established at a minimum of 25
dwelling units per aerial mile of cable for years 1 thru 5 of this franchise.
During years 6 - 10 of this franchise the population density shall be
established at 20 dwelling units per aerial mile of cable. Areas adjoining
existing cable plant meeting the above density requirements shall be cabled
without a contribution in aid of construction by subscribers. Areas not
immediately adjoining the cable plant and whose population density is less than
the number of dwelling units per lineal mile of aerial cable established above,
shall be considered to be located in a line extension area. Subscribers
residing in such an area and who are willing to contribute to the
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cost of construction shall be entitled to services in accordance with the
following formula C/LE -CA/P = SC.
C = The actual cost of new construction in the line extension area;
LE = The number of dwelling units requesting service in the line extension
area;
CA = The average cost of construction per mile in the primary service area;
P = The minimum number of dwelling units per mile which would require the
franchisee to provide service in the primary service area. This is determined
by taking the minimum number, or the average (which is determined by dividing
the number of dwelling units in the primary service area by the number of
lineal miles of cable in the same area) whichever of the two numbers is lower;
SC = Subscriber contribution in aid of construction in the line extension area.
(c) Franchisee shall construct its cable system using materials of
good and durable quality, and all work involved in construction, installation,
maintenance, and repair of the cable system shall be performed in a safe,
thorough, and reliable manner.
(d) New subdivisions where cable facilities have been installed in
joint trench with power and/or telephone that are located within cabled areas
shall have service activated when the number of occupied homes equals 25% of
the planned lots in the subdivision. The calculation of the percentage occupied
will be determined based on the area where cable facilities have been placed in
joint trench rather than including future phases of the subdivision in the lots
calculation.
(e) The Xxxxxxxx Cable Committee may schedule two construction
meetings per year, 1.) in September to provide input to the Franchisee on
future home construction and any cable construction requests received by the
commission and 2.) in March for the Franchisee to update the Commission on
construction plans.
(f) Operator may, in its discretion, solicit door to door for the
purpose of selling Operator's services. Operator shall provide Franchisee with
thirty (30) days advance written notice of its intent to solicit door to door.
Operator may survey and solicit door to door in areas not serviced by
Franchisee for the purpose of determining the feasibility of providing service
to said area by giving Xxxxxxxx advanced notice verbally.
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5. Subscriber Rates
(a) The Franchisee may make such charges for services provided to
subscribers as are permitted by Federal, State, or Local law. Under this
subsection, neither party surrenders any other rights or obligations due them
under any other Federal, State, or Local statute rule or regulation.
(b) Any subscriber over 65 years of age who is the principal
resident of the service dwelling will be entitled to a discount of 10% on basic
cable television services, including initial installation. This discount will
be extended to the Limited Basic customer and the Basic Plus customer.
Franchisee shall establish a procedure for subscribers to apply for this
discount.
(c) The Town Hall, Town Library, all public schools, Senior
Center, and Youth Center within Xxxxxxxx which are in areas meeting the density
requirements of section 4(b) will receive one free outlet and free Basic Plus
Service.
(d) Franchisee agrees to seek the Xxxxxxxx Cable Commission's
input during regularly scheduled meetings on any programming changes.
Franchisee will consult with the Town's representative prior to customer
notification of planned changes so long as the changes are within the
Franchisee's control. Both parties agree that the input and notification
process in no way abridges Franchisee' rights to make programming decisions.
Franchisee shall have the right to conduct door to door sales for the purpose
of selling Franchisee's products. All telemarketers shall act in professional
and courteous manner. To the extent, that Xxxxxxxx should receive citizen
complaints regarding door to door telemarketers, Franchisee agrees to work
closely with Clarence to correct the complaints and to prevent future
complaints from occurring.
(e) Franchisee agrees to make available to the Xxxxxxxx High
School production equipment, not to exceed twenty five thousand ($25,000) in
value, to allow the school to originate programming from the high school.
Xxxxxxxx agrees that if at least twenty (20) hours of programming in the first
year, twenty eight (28) hours of programming the second year and forty (40)
hours of programming in the third year and each year thereafter, is not made
available to Franchisee for cablecast per school year, the franchisee, at its
option, may remove the equipment for use at a another location. Equipment will
be made available no latter than the start of the 1995 school year. Franchisee
agrees to provide one (1) preventive maintenance service per year for the above
provided production equipment. Franchisee is not responsible for any damages
caused by the users actions, direct or indirect, negligence, or lack of action.
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6. Complaints
(a) Franchisee shall maintain an office with a listed telephone
number within the Village of Lancaster for the purpose of receiving and
responding to cable television subscriber complaints.
(b) All subscriber complaints or trouble calls shall receive
investigative action on the same day such complaint or call is received at the
local office, if possible, but in no case later than the following business
day. Subscriber complaints and trouble calls shall be processed in compliance
with the standards set forth in Section 596.8 of the rules and regulations of
the New York State Commission on Cable Television.
(c) Franchisee shall provide notice to each subscriber, at
intervals of not more than one year, of the procedure for reporting and
resolving subscriber complaints. (Such notice may be written or by such other
means as the State Commission on Cable Television may from time to time
approve.)
7. Prohibition of Abandonment
Franchisee shall provide continuous cable television service during the term of
this agreement and shall at no time during the term of this agreement abandon
or cease to operate its cable system.
8. Indemnification and Insurance
(a) Franchisee shall indemnify and save Xxxxxxxx harmless from all
losses sustained by Xxxxxxxx on account of any suit, judgment, execution,
claim, damage, or demand whatsoever occasioned by or arising out of the
construction, erection, maintenance, repair, or operation of Franchisee's cable
television system or the exercise by Xxxxxxxx of the franchise rights granted
herein. For this purpose, Franchisee shall obtain and carry property damage and
personal liability insurance written by an insurance company or companies
qualified to do business in the State of New York. The amounts of such
insurance shall be not less than $250,000 for liability due to damage to
property, no less than $500,000 for liability due to injury or death of any
person, and not less than $1,000,000 for liability due to any one accident.
Xxxxxxxx shall notify Franchisee within thirty (30) days after the presentation
of any claim or demand, either by suit or otherwise, made against Xxxxxxxx on
account of any negligence or other conduct on the part of Xxxxxxxxxx.
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(x) Xxxxxxxxxx specifically agrees that it will pay all expenses
incurred by Xxxxxxxx to defend itself in regard to any matter mentioned in
paragraph (a), above. These expenses shall include out-of pocket expenses, such
as reasonable attorney's fees, and shall include the reasonable value of any
service rendered by Clarence's attorneys or their assistants or any other
employees of Xxxxxxxx.
(c) A certificate evidencing the insurance coverage required by
paragraph (a), above, shall be delivered by Franchisee to the Town Clerk'
within 60 days of the date of this franchise.
9. Repair of Property
Any property of the Town of Xxxxxxxx damaged or destroyed by reason of
any activity undertaken pursuant to this Agreement shall be repaired or
replaced within 48 hours by Franchisee and restored to serviceable condition
acceptable to the Superintendent of Highways and the Town Engineer. All
openings or obstructions in public ways will be protected by fencing or other
protective devices at the sole expense of Franchisee. At its own expense
Franchisee will disconnect or relocate any of its equipment in public
rights-of-way as may be required by the Town by reason of street construction
and public safety. If requested by a private party holding an appropriate
permit issued by the Town, Franchisee will temporarily raise or lower its lines
to enable the moving of any building or structure if expenses related thereto
are paid by the requesting party. Franchisee will restore any damage to private
property resulting from the installation and operation of its cable television
system within thirty(30) days of notice from such property owner.
10. Equal Employment
Franchisee shall not refuse to hire or employ, nor bar or discharge
from employment, nor discriminate against any person in compensation or in
terms, conditions, or privileges of employment because of age, race, creed,
color, national origin, or sex.
11. Additional Regulations
Xxxxxxxx reserves the right to adopt such additional regulations as it
shall find necessary in the exercise of its police power, provided such
regulations are reasonable and not materially in conflict with the rights and
privileges granted in this Agreement.
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12. Municipal Inspection
Xxxxxxxx reserves the right to inspect all pertinent books, records,
maps, plans, financial statements, and other like materials of Franchisee upon
reasonable notice during normal business hours.
13. Responsible Municipal Officer
The Town Board of Xxxxxxxx shall be responsible for the continuing
administration of this Agreement.
14. Material Provisions and Severability
Should any provision of this Agreement be held invalid by any court or
regulatory agency of competent jurisdiction, the remaining provisions of this
Agreement shall remain in full force and effect.
15. Approval and Amendment of Provisions
(a) The terms and provisions of this Agreement are subject to the
approval of the New York State Commission on Cable Television.
(b) Should the Federal Communications Commission or the New York
State Commission on Cable Television make such modifications of the provisions
of its rules and regulations that would require the amendment of this
Agreement, such amendment is hereby agreed upon and such necessary provisions
or changes are incorporated herein by reference. Necessary amendments will be
made within one year or upon the expiration of this Agreement, whichever occurs
first.
16. Franchise Fees and Reporting
Franchisee agrees to pay to Xxxxxxxx for the rights and privileges
enjoyed hereunder, a sum equal to three percent (3%) of Franchisee's gross
annual receipts attributable to providing the services contemplated in this
Franchise Agreement. Such sum shall be paid in semiannual installments within
90 days of the end of each fiscal half year of Franchisee. In addition to the
above described franchise fee, Franchisee shall be responsible for all
applicable local, state, and federal property, sales, income, and franchise and
other taxes or assessments. Franchisee shall provide a financial statement to
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Xxxxxxxx annually, within 90 days of the close of its fiscal year. Such
financial reports will be prepared in accordance with generally accepted
accounting principals and shall be audited by a public accountant or certified
by a senior financial officer of Franchisee.
17. Future Technology Initiative
(a) The Franchisee and Xxxxxxxx recognize that during the period
of this Agreement that technology changes in the Cable industry may make new
products and services available that may benefit the Town of Xxxxxxxx and its
residents. Both parties agree to evaluate these products and services as they
become available. Nothing in this section will require either party to offer a
specific service or to purchase it if made available.
(b) Franchisee agrees to evaluate the feasibility of a school
network and a Town business network within the first three years of this
Agreement. The evaluation will include a section specifying the rates for these
products should the town or school elect to proceed.
The parties have duly executed this agreement as of the date first written
above.
TOWN OF XXXXXXXX
By: /s/ XXXX X. CASE
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Title: Supervisor
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CABLE TV FUND 11-B, LTD
By: Xxxxx Intercable Inc.
its General Partner
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Group Vice President/Operations
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