EXHIBIT 10.12
CABLE COMMUNICATIONS SYSTEM
FRANCHISE AGREEMENT
BETWEEN
THE CITY OF MT. CARMEL, ILLINOIS
AND
ENSTAR IV-PBD SYSTEMS VENTURE
01/04/2001
TABLE OF CONTENTS
Section One: SHORT TITLE ....................................... 1
Section Two: DEFINITIONS ....................................... 1
Section Three: GRANT ............................................. 7
Section Four: FRANCHISE TERRITORY ............................... 8
Section Five: DURATION AND ACCEPTANCE OF FRANCHISE .............. 8
Section Six: GRANT OF NON-EXCLUSIVE FRANCHISE .................. 11
Section Seven: CONTINUITY OF SERVICE MANDATORY ................... 12
Section Eight: NOTICES ........................................... 13
Section Nine: BOOKS AND RECORDS ................................. 13
Section Ten: FRANCHISE AND PROFESSIONAL FEE PAYMENTS ........... 15
Section Eleven: TRANSFER OF THE FRANCHISE ......................... 17
Section Twelve: RENEWAL OF THE FRANCHISE AGREEMENT ................ 18
Section Thirteen: PERFORMANCE EVALUATION HEARINGS ................... 19
Section Fourteen: SOLICITATION OF SUBSCRIBERS ....................... 19
Section Fifteen: CONSUMER SERVICE AND PROTECTION ................... 20
Section Sixteen: SYSTEM DESIGN ..................................... 28
Section Seventeen: SYSTEM IMPROVEMENT, RECORDS, STANDARDS
AND INSURANCE ................................... 31
Section Eighteen: LINE EXTENSION .................................... 36
Section Nineteen: SYSTEM MAINTENANCE ................................ 36
Section Twenty: PROGRAMMING SERVICES .............................. 38
Section Twenty-one: COMMUNITY SERVICES AND EQUIPMENT .................. 39
Section Twenty-two: TIME IS OF THE ESSENCE TO THIS AGREEMENT .......... 42
Section Twenty-three: NOTIFICATION TO COMPLY ............................ 42
Section Twenty-four: PENALTIES, LIQUIDATED DAMAGES, SECURITY
FUND AND PERFORMANCE BOND ......................... 43
Section Twenty-five: FAILURE OF CITY TO ENFORCE THIS AGREEMENT;
NO WAIVER OF THE TERMS THEREOF and
FORCE MAJEURE .................................. 46
Section Twenty-six SEVERABILITY ................................... 46
Section Twenty-seven: ENABLING ORDINANCE ............................. 47
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CABLE FRANCHISE AGREEMENT BETWEEN
THE CITY OF MT. CARMEL, ILLINOIS AND
ENSTAR IV PBD SYSTEMS VENTURE
This Franchise Agreement is entered into on this 26th day of July, 2001,
by and between the City of Mt. Carmel, a municipal corporation, (hereinafter
referred to as "City" or "Grantor"), the Franchising Authority, and Enstar IV
PBD Systems Venture, qualified and registered to do business in the State of
Illinois, (hereinafter referred to as "Grantee", "Franchisee" or "ENSTAR") with
an office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000.
In consideration of the faithful performance and strict observance by the
Grantee of all the terms, provisions, conditions, obligations and reservations
hereinafter set forth or provided for herein, and in consideration of the
Grantor's awarding of a nonexclusive cable communications system Franchise to
Grantee, it is hereby agreed between the parties hereto as follows:
SECTION ONE: SHORT TITLE
This Franchise Agreement shall be known and may be cited as the "Franchise
Agreement."
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SECTION TWO: DEFINITIONS
For the purposes of this Franchise 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, words in the
singular number include the plural number, and the use of any gender shall be
applicable to all genders whenever the sense requires. The words "shall" and
"will" are mandatory and the word "may" is permissive. Words not defined shall
be given their common and ordinary meaning. Any modifications and/or exceptions
to such definitions shall apply (if at all) to this Franchise Agreement.
"ACT" (ALSO "CABLE ACT") shall mean the Communications Act of 1934, the
Telecommunications Act of 1996, the Cable Communications Policy Act of 1984,
and the Cable Consumer Protection and Competition Act of 1992 (47 USC 521 et.
seq.) as now and hereinafter amended.
"ACTIVATED CHANNELS" means those channels engineered at the headend of a
cable system for the provision of services generally available to residential
subscribers of the cable system, regardless of whether such services actually
are provided, including any channel designated for public, educational or
governmental use.
"AGENT/AGENCY" shall mean the person, employee, department, committee, or
other agency designated to act in specified matters related to cable television,
or to act to regulate operations of the cable system under this Franchise
Agreement; or in the absence of such designation, the Mayor and City Council.
"BASIC CABLE SERVICE" shall consist of all signals carried in fulfillment
of the provisions of Sections 614 and 615 of the Communications Act of 1934, as
amended, any Public, Educational and Governmental Access programming required by
the Franchise of the Cable System to be provided to Subscribers, and any signal
of any television broadcast station that is provided by the Cable Operator to
any Subscriber, except a signal which is secondarily transmitted by a satellite
carrier beyond the local service area of such station. Basic Service may also
include any additional video programming signals or services provided by the
Cable Operator to the basic service tier.
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"BOND" OR "SURETY BOND" a bond issued by one party, the surety,
guaranteeing that he will perform certain acts promised by another or pay a
stipulated sum, up to the bond limit, in lieu of performance, should the
principal fail to perform.
"BROADCAST SERVICES" shall mean a broad category of programming which is
received from broadcast television, low power television and radio stations.
"CABLE COMMUNICATIONS SYSTEM", "CABLE SYSTEM", OR "SYSTEM", shall mean a
facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that
is designed to provide Cable Television Service which includes video
programming and which is provided to multiple Subscribers within a
community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television
broadcast stations; (B) a facility that serves Subscribers without
using any Public Way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of title II of the
Cable Act, except that such facility shall be considered a Cable
System (other than for purposes of Section 621(c)) to the extent
such facility is used in transmission of video programming directly
to Subscribers unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that
complies with Section 653 of title VI of the Cable Act; or (E) any
facilities of any electric utility used solely for operating its
electric utility system. A cable system shall also mean a facility
as described above which is located within the corporate limits of
the City regardless of the location of the headend feeding such
system.
"CABLE OPERATOR" shall mean any Person or Persons, including corporations,
partnerships, and joint ventures, who provide cable programming services through
means of a Cable System and who own a significant interest in the Cable System,
or any Person or Persons, who manage, control, coordinate, or direct the
operations of a Cable System.
"CABLE PLANT MILE" shall mean the actual miles of cable plant built and/or
necessary to provide cable service to an area or areas of the City.
"CABLE TELEVISION SERVICE" shall mean (A) the one-way transmission to
subscribers of (i) video programming, or (ii) other programming service, and (B)
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subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
"CHANNEL" shall mean a band of frequencies six (6) MHz wide in the
electro-magnetic spectrum, or of a width to be specified which constitutes the
acceptable NTSC standard for definition of a channel which is capable of
carrying video, audio, and date signals.
"CITY" shall mean the City of Mt. Carmel, State of Illinois, and all the
territory within its present and future boundaries and including any other area
over which the City exercises jurisdiction. The City Council is the governing
authority of the City and may delegate as its Agent any Department, Commission,
City Staff Person or other person or entity so identified.
"CITY COUNCIL" shall mean the corporate authorities of the City of Mt.
Carmel.
"COMMERCIAL BUSINESS UNIT" shall mean a commercial building or
establishment as set forth in this Franchise Agreement and that is now a
dwelling unit as defined hereunder.
"CORPORATE AUTHORITIES" shall mean the City Council.
"DEVELOPED PARCEL" shall mean any area of the City where there are at
least 15 occupied dwelling and/or commercial business units per mile to be
served by aerial cable plant or by cable underground plant, with said cable
plant to be measured by cable plant mile.
"DWELLING UNIT" shall mean any single family, or multi-family residential
building and/or unit place of occupancy. Dwelling unit shall include a
commercial residential facility.
"FRANCHISE" shall mean the nonexclusive right granted through a Franchise
Agreement between the City and a Grantee, by which the City authorizes such
Grantee to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a System in the City.
"FRANCHISE AGREEMENT" or "FRANCHISE AGREEMENT ORDINANCE" shall mean a
contractual Agreement entered into between the City and any Grantee hereunder
which is enforceable by City and said Grantee and which sets forth the
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rights and obligations between the City and said Grantee in connection with the
Franchise.
"FRANCHISE AREA" means the area within the corporate boundaries or
jurisdiction of the City of Mt. Carmel which is subject to the terms and
conditions granted under the City's cable television franchise, or any other
area agreed upon between the City and Grantee.
"FRANCHISE FEE" means any assessment imposed hereunder by the City on
a Grantee or cable subscriber solely because of its status thereas. The term
"Franchise Fee" does not include:
(1) Any tax, fee, or assessment of general applicability
(including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services but not
including a tax, fee, or assessment which is unduly
discriminatory against Grantee);
(2) Capital costs which are required by the Franchise to be
incurred by Grantee for public, educational or governmental
access facilities;
(3) Requirements of charges incidental to the awarding or
enforcing of the Franchise, including payments for bonds,
security funds, letters of credit, insurance,
indemnifications, penalties or liquidated damages; or
(4) Any fee imposed under Xxxxx 00, Xxxxxx Xxxxxx Code; or,
(5) Bad debt.
"GRANTEE" OR "APPLICANT" shall mean any person or corporation granted
a Franchise hereunder, its agents, employees or subsidiaries.
"GRANTOR" shall mean the City.
"GROSS REVENUES" shall mean all cash, credits, property of any kind or
nature or other consideration, not including bad debt, derived directly or
indirectly to provide Cable Television Service by a Grantee, its subsidiaries or
any other person in which the Grantee has a financial interest or which has a
financial interest in the Grantee arising from any source and attributable to
operation of the System, including but not limited to:
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(1) revenue from all charges for services provided to subscribers
of entertainment and nonentertainment services, including home
shopping service;
(2) revenue from all charges for the insertion of and airing of
commercial advertisements upon the System;
(3) revenue from all charges for the installation, connection and
reinstatement of equipment necessary for utilization of the
system and provision of subscriber and other services;
(4) revenue from broadcast (cablecast) advertisements;
(5) revenues from the sale of subscriber equipment and facilities,
excluding revenues from the sale of the physical plant
(physical plant includes but is not limited to the headend,
trunk, amplifiers and power supplies); satellite dishes; and
company owned vehicles;
(6) revenues derived from high speed data transmission.
Provided, however, that such phrase shall not include any fees or taxes which
are imposed directly or indirectly on any Subscriber thereof by any governmental
unit or agency and which are collected by the Grantee on behalf of such
governmental unit or agency.
"HOUSEHOLD" means each separately billed or billable customer,
including individual residences of multiple dwelling units.
"INSTITUTIONAL NETWORK" means communication channels generally
available only to subscribers who are not residential subscribers.
"INTERACTIVE CABLE SYSTEM" A two-way cable system that has the
capability to provide a subscriber with the ability to enter commands or
responses on an in home terminal and generate responses or stimuli at a remote
location.
"PRINCIPAL HEADEND" means:
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(1) The headend, means the primary location of any equipment of
cable system used to process the signals of television
broadcast stations and satellite delivered programming for
redistribution to subscriber; or
(2) In the case of a cable system with more than one headend, the
headend designated by the participating operator as the
principal headend, except that such designation shall not
undermine or evade the requirements of Section 613 of the
Cable Act.
"LEASED ACCESS" shall mean the use of the System by any business
enterprise or other entity (whether profit, nonprofit or governmental) to render
programming to the citizens of the City, and shall include without limitation
all use pursuant to Section 612 of the Act.
"LETTER OF CREDIT" a promise by a bank, or other issuer that it will
honor on behalf of one of its customer's demands, upon compliance with specified
conditions.
"NORMAL BUSINESS HOURS" shall mean those hours during which most
similar businesses in the community are open to serve customers. In all cases,
normal business hours must include some evening hours at least one night per
week and/or some weekend hours.
"NORMAL OPERATING CONDITIONS" shall mean those service conditions
which are within the control of the cable operator. (a) Those conditions which
are not within the control of the operator include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network outages,
and severe or unusual weather conditions. (b) Those conditions which are
ordinarily within the control of the cable operator include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the cable system.
"ORDINANCE" shall mean the City of Mt. Carmel Cable Television
Enabling Ordinance, as may be amended from time to time.
"PERSON" shall mean any individual, firm, corporation, partnership,
association, joint venture, or organization, of any kind and the lawful trustee,
successor, assignee, transferee, or personal representative thereof.
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"ROUTE MILE" means that unit of measurement used to describe a mile
for the purpose of counting units to determine density. The mile shall start at
the center of the city and shall follow the route or proposed route to the
corporate boundaries of the City.
"SERVICE INTERRUPTION" shall mean the loss of picture or sound, or
both, on one or more cable channels.
"SCHOOL" is any public or private elementary school or secondary
school, which conducts classes or provides instructional services and which has
been granted a certificate of recognition by the State of Illinois.
"STREET" shall mean the surface of and the space above and below any
public street, road, highway, freeway, easement, lane, path, alley, court,
sidewalk, parkway, driveway, or other public way now or hereafter existing as
such within the City.
"SUBSCRIBER" shall mean any person who legally receives any one or
more of the services provided by the System.
"USABLE ACTIVATED CHANNELS" means activated channels of a cable
system, except those channels whose use for the distribution of broadcast
signals would conflict with technical and safety regulations as determined by
the City.
SECTION THREE: GRANT
Grantor hereby awards to Grantee a nonexclusive cable communications system
Franchise subject to all the terms and conditions as herein provided and as
included in the schedules attached hereto. Such Franchise shall become effective
upon the passage and approval of this Franchise Agreement by Ordinance and
acceptance by Grantee in compliance with Section Five, paragraph B, herein. The
Grantor shall not regulate or prohibit services as described within this
paragraph except to the extent provided under law and as affirmed by the City
Council. Nothing in this Franchise shall be construed to prohibit the Grantee
from offering any service over its Cable System that is not prohibited by
federal or state law.
The Grantee shall have no recourse whatsoever against the City for any loss,
cost, expense, or damage arising out of any provision or requirements of this
Agreement or its regulation or from the City's authority to grant additional
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Franchises. This shall not include negligent acts of the City, its agents, or
employees.
SECTION FOUR: FRANCHISE TERRITORY
A. The Franchise granted herein shall be for all territory located within the
corporate limits of the City of Mt. Carmel, in the State of Illinois, also
that area described on Schedule I, and to any area henceforth added
thereto during the period of the Franchise Agreement.
SECTION FIVE: DURATION AND ACCEPTANCE OF FRANCHISE
A. The term of this Franchise shall be eight (8) years.
B. (1) The Franchise as well as all rights, privileges, obligations and
authority granted therein shall take effect and be in force from and
after final passage and approval of the Ordinance granting said
Franchise Agreement as provided by law, and shall remain in effect
for a term of eight (8) years from said final passage date, provided
that within thirty (30) days immediately following the date of final
passage and approval of said Franchise Agreement Ordinance, the
Grantee files with the Grantor its unconditional acceptance of this
Franchise Agreement.
(2) Subject to the procedures and limitations contained in Section
Twenty-Three of the Franchise Agreement, the Franchise Agreement may
be terminated for material beach of any term or condition thereof or
for violations of any material provision of this Agreement.
C. This Franchise Agreement has been fully negotiated between Grantee and the
City of Mt. Carmel, Illinois. The terms negotiated in this Franchise
Agreement shall prevail over the like provision in the Enabling Ordinance
to the extent that the terms are in conflict with each other. Where there
is no conflict in terms, the provisions of the Enabling Ordinance shall
prevail. However, in accordance with applicable federal law, with the
exception of the cash payment for PEG access facilities and services
pursuant to Section 21-F of this Agreement, the parties agree that the
five percent (5%) annual franchise fee payment required herein shall
constitute the full and total amount of all costs due the City in any one
calendar year. Any additional
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monetary payments provided for in the Enabling Ordinance shall be
considered payments in lieu of franchise fees.
D. (1) The City shall, at all times, comply with all laws and regulations
of the Federal and State government or any administrative agencies
thereof; provided however that should such laws or regulations be
eliminated, or modified, the City shall have the right, to the
extent so authorized, to assume all powers previously held under
such laws and regulations of said authorities to the extent so
provided under law.
(2) Grantee shall also similarly comply with all laws and regulations of
the Federal and State government or any administrative agencies
thereof; including antitrust laws; provided however, if any such
federal or state law or regulation shall require the Grantee to
perform any service, or shall permit the Grantee to perform or shall
prohibit the Grantee from performing any service, in conflict with
the terms of this Franchise Agreement, or of any Ordinance, or
regulation of the City, then, to the extent that it is aware of such
a conflict, the Grantee shall notify the City, in writing, within a
reasonable period of time of the point of conflict believed to exist
between such law or regulation and the Ordinances or regulations of
the City or this Franchise Agreement.
(3) Grantee shell, at no time, engage in anti-competitive activity. Said
activity shall be that as defined under then existing statute, law,
or administrative ruling.
(4) In any court proceeding initiated after the date of passage of the
Franchise Agreement Ordinance involving any claim against the City,
or other governmental agency, or any official, member, employee, or
agent of such authority or entity, arising from the regulation of
cable service, or from a decision of approval, or disapproval, with
respect to a grant, renewal, transfer, or amendment of a Franchise,
any relief, to the extent such relief is required by any other
provision of Federal, State or local law, shall be limited to
injunctive relief and declaratory relief and suits for damages shall
be prohibited. Nothing in this paragraph shall be construed as
limiting relief authorized with respect to any claim against the
City to the extent such claim involves discrimination on the basis
of race, color, sex, age, religion, national origin or handicap.
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(5) a) In accepting this Franchise, Grantee acknowledges that its
rights hereunder are subject to the police power of the City to
adopt and enforce Ordinances of general applicability necessary for
the safety and welfare of the public, and it agrees to comply with
all applicable general laws and Ordinances enacted by the City
pursuant to such power.
(5) (b) Any conflict between the provisions of this Franchise and
any other present or future lawful exercise of the City's police
powers shall be resolved in favor of the latter, except that any
such exercise that is not of general application in the jurisdiction
or provisions inconsistent with this Franchise shall prevail only if
the City finds such exercise necessary to protect the public health,
safety, property or general welfare, or such exercise is mandated by
law.
E. In no event shall Grantee carry any programming which is legally obscene.
F. The Equal Opportunity requirements shall be those referred to in Section
634 of the Federal Cable Act and as applicable under State law.
G. Grantee shall secure any and all permits required by the City, the State
and/or the County.
H. Grantee shall be responsible for any damages resulting from any toxic
wastes, or hazardous substances, resulting from Grantee's installation,
or any other activity by the Grantee. Grantee shall be responsible for
the removal of the same. Said responsibility shall survive the
termination of the Franchise.
I. The right of the City to regulate Grantee's rates for all activities,
services and operations, as allowed by law, is reserved. Should the City
exercise its authority to regulate the Franchisee's rates, the City shall
notify the Grantee within thirty (30) days that it has applied for
certification from the FCC. The City shall set appropriate standards for
rate regulation as provided for in the Ordinance, Section 13-3 and/or as
may be provided for under federal statute or FCC rules and regulations.
J. Upon such conditions as the City may deem necessary, and notwithstanding
the provision of this Franchise Agreement, the City may issue a license,
easement, or other permit to anyone to allow that person to traverse any
portion of the City in order to provide cable television service
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outside of the City. Such license, easement, or permit, absent a grant or
a Franchise in accordance with the Ordinance, shall not authorize nor
permit said person to provide cable television service of any nature to
any home or place of business within the City, nor to render any service,
or connect any subscriber, or potential subscriber, within the City to the
cable television system.
K. Any right, power or duty of the City, the City Council, the Agency, or any
official of the City under this Franchise Agreement may be transferred, or
delegated, by Ordinance, resolution or other appropriate action determined
by the City Council, to an appropriate officer, employee or department of
the City or any other legal authority, including any intergovernmental
agency created for the purpose of regulating the operation and development
of the cable television system.
SECTION SIX: GRANT OF NON-EXCLUSIVE FRANCHISE
A. The City of Mt. Carmel hereby grants to Grantee the non-exclusive right
and privilege to construct, erect, operate, and maintain in, upon, along,
across, over and under Public Streets, Public Ways and public places now
laid out or dedicated, and all extensions thereof and thereto, in the
City, poles, wires, cables, underground conduits, manholes and other
television conductors, and fixtures or appurtenances necessary for the
maintenance and operation of a Cable System.
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B. Nothing in this Franchise Agreement shall affect the right of the
Franchising Authority to grant to any other Person a Franchise or right to
occupy and use the Public Streets, Public Ways or public places or any
part thereof for the erection, installation, construction, reconstruction,
operation, maintenance, dismantling, testing, or repair or use of a Cable
System within the City of Mt. Carmel.
C. Where any damage is caused to any City property during construction,
installation, or maintenance by Grantee, the City shall notify the Grantee
of such damage and shall provide an estimate of the costs of repair.
Grantee shall notify the City within ten (10) days, or immediately where
such damage affects the health or safety of City residents, whether it
will undertake the repair, or will advise the City to arrange for the
repair. The costs of such repairs including all service and materials
required by the City will be billed to the Grantee. The charges shall be
paid within forty-five days of the date of billing or the City, at its
option, may withdraw the cost of such repairs from the Security Fund
established by Section 24 of this Agreement.
SECTION SEVEN: CONTINUITY OF SERVICE MANDATORY
A. (1) It shall be the right of all subscribers to continue receiving service
insofar as their financial and other obligations to Grantee are honored.
In the event that Grantee elects to overbuild, rebuild, modify or sell the
system, or the City gives notice of intent to terminate or fails to renew
this Franchise, Grantee shall act so as to ensure that all subscribers
receive continuous, uninterrupted service. If Grantee fails to provide
such service, the City retains the right to provide the service.
(2) In the event of a change of Franchisee, or in the event a new operator
acquires the system, the Grantee shall cooperate with the City, and the
new Franchisee, or operator, in maintaining continuity of service to all
subscribers during a reasonably timed transition period agreed to between
the parties. During such period, Grantee shall be entitled to the revenues
for any period during which it operates the system.
B. In the event Grantee ceases transmission of the system's cable services,
for twenty-four (24) hours without prior approval of the City, the City
may, at its option, seek judicial relief to operate the system, or to
designate an
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operator until such time as a permanent operator is selected. If the City
is required to fulfill this obligation for Grantee, the City shall be
entitled to revenue derived from the systems operation, and Grantee shall
reimburse the City for all reasonable costs or damages in excess of
revenues from the system received by the City during its period of
operation that are the result of Grantee's failure to perform.
Notwithstanding the forgoing, cessation of transmission of the system's
cable services due to circumstances beyond the control of the Grantee
shall not entitle City to seek judicial relief to operate the system or
designate another operator to do so.
SECTION EIGHT: NOTICES
All notices herein provided for shall be deemed given when deposited in the U.
S. Mail, as registered or certified mail (prepaid), addressed to the parties as
follows:
To the City: City of Mt. Carmel
000 Xxxxxx Xxxxxx
Xx. Xxxxxx, XX 00000
ATTN: City Administrator
To the Company: Enstar IV PBD Systems Venture
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XXX 00000
and
Enstar
00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
Either party shall have the right, in writing, to change the address to which
notice to such party may be sent.
SECTION NINE: BOOKS AND RECORDS
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A. (1) Records shall be maintained and provided as described in Ordinance
Section 12 except as provided herein.
(2) The Grantee shall provide a copy of the semi-annual proof of
performance test and a copy of Form 320 required annually for the
reporting of CLI results.
(3) (a) During the period of time in which the cable system is being
rebuilt, the Grantee shall endeavor to correct the current technical
signal problems and may be required to submit technical test information
to a cable engineer employed by the City upon reasonable notice.
(3) ((b) Semi-annually during the first two (2) years of the Franchise
Agreement, the Grantee shall provide, within thirty (30) days of receipt
of a written request by the City, a summary report of service calls and
system repair calls initiated either by the subscriber or at the Grantee's
own recognition of a problem. Such a summary report shall be prepared and
submitted to the City in accordance with all applicable subscriber privacy
regulations and laws.
(4) (a) The original records identified herein, upon which the summary
reports are written shall be retained for not less than three (3) years.
(4) (b) The Grantee's system performance tests which shall be kept for
five (5) years accordance with 47 C.F.R. Section 76.1704 and the
results of these tests shall be available to the City upon its reasonable
request.
B. Upon termination of this Agreement at the expiration of the term provided
in Section 5, or otherwise, Grantee shall continue to be required to make
the financial certification and annual reports required in the Ordinance,
Section 12 until such time as all payments due the City under this
Agreement have been paid and accounted for to the reasonable satisfaction
of the City.
C. The City may request a duplicate of any, or all reports required to be
filed with Federal and State regulatory agencies, and the Grantee shall
provide, at the Grantee's expense, said copies within ninety (90) days of
the City's written request. Notwithstanding, the City may require a copy
of a particular report, or document, or filing upon reasonable notice to
the
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Grantee and the Grantee shall provide a copy of same within thirty (30)
days of said notice at Grantee's expense.
D. (1) The telephone logs required under Ordinance Section 12-2C shall be
kept by exception; meaning that only those instances in which the Grantee
has deviated from the requirements of the Enabling Ordinance Section 14,
shall be noted and reported. The Grantee, and his telephone answering
service, shall track the exceptions using the same method. Upon written
request of the City, the Grantee shall keep more detailed telephone logs
reflecting all calls received by the system, or the answering service, and
the disposition of said calls in accordance with Enabling Ordinance 14 for
a period not to exceed two (2) weeks, provided however that the City may,
upon a declaration that a telephone service problem continues to exist
after the two week testing period, require such additional time that in
the City's wisdom is determined as reasonable investigative period.
(2) Until such time as the Grantee does deploy a telephone system, whether
in whole or in part, capable of tracking busy signal, calls abandoned,
hold time, number of rings before pick-up, and number of calls into the
system, as described in paragraph (D)(1) above, the Grantee shall track
telephone calls.]
E. (1) Grantee shall provide financial information which will allow the City
to identify system revenues for the computation of the franchise fees. All
financial information with respect to subscriber revenues will be
franchise specific.
(2) The Grantee shall within sixty (60) days of receipt of a written
request file with the City FCC Series Form 1200, or other like form which
may be adopted by the FCC from time to time. The filing of this form shall
be required whether or not the City has certified for rate regulation. The
data from FCC Form Series 1200 may be used by the City to determine if a
rate is unreasonable and thus prompt the City to initiate certification
from the FCC.
Section Ten: FRANCHISE AND PROFESSIONAL FEE PAYMENTS
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A. As part of the consideration supporting the award of this Franchise
Agreement and the City's permission to use the public Streets and Public
Ways and lands of the City, Grantee shall pay to the City on a quarterly
basis in the manner as specified in Section 11.1 of the Ordinance which
may include delivery by overnight courier or a form of registered mail, an
amount equal to five percent (5%) per year of Grantee's Gross Revenues
received, as permitted by law, less refunds for gross revenues received
for the preceding quarter. Gross Revenue shall be defined as stated in
Section 2.0 hereinabove. To the extent permitted by law, and in accordance
therewith, increases in Franchise Fees may be levied by the City after
sixty (60) days advance written notice is given to Grantee.
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B. Within one hundred twenty (120) days of the end of each fiscal year of the
Grantee, the Grantee will submit a statement, sworn to as true and
correct, by the Chief Financial Officer or Comptroller of the Grantee,
setting forth the Gross Revenues received in the Franchise Area. The
Subscriber-related Gross Revenues will be derived from the Grantee's
Subscriber billing reports. The non-Subscriber Gross Revenues will be
expressed as a ratio of the number of Subscribers in the Franchise Area
and the total number of Subscribers in the operational region in which the
Franchise Area is located. Such statement will also include the total
amount of refunds to Subscribers in the Franchise Area.
C. Payment of franchise fees by Grantee shall be made on a calendar year,
quarterly basis, with payment and the Franchise Fee Reporting Form to be
submitted to the City no later than 60 days after the close of the
respective quarter. The franchise fee shall be sent to the attention of
the City Administrator. The Company shall provide on or before April 30 of
each year a report of the franchise fees paid hereunder during the
preceding fiscal year, which shall be certified as true and correct by an
officer of the company. The parties agree that the procedures set forth in
this paragraph shall satisfy the requirement of Section 11 of the Enabling
Ordinance.
D. In the event Grantee continues operation of any part or all of the Cable
System beyond the cancellation or expiration of this Franchise Agreement,
Grantee shall pay to the City the compensation as set forth hereinabove at
the rate in effect at the time of such cancellation or expiration, and in
the manner set forth in this Franchise Agreement, together with all taxes
it would have been required to pay had its operation been duly authorized.
E. The Grantee shall provide to the Franchising Authority with the executed
acceptance of the Franchise, a non-refundable fee for the transfer or
renewal of Grantee's cable Franchise which shall be applied to solely
defray costs incurred by the Franchising Authority for professional
services incurred through the Franchise renewal process or the process of
transfer, delegation, or assignment of the Franchise. The Grantee shall
pay to the City the actual costs incurred by the City for review,
analysis, and preparation of documents related to the process of transfer,
delegation, or assignment of the Franchise to an amount which shall not
exceed Four Thousand Dollars ($4,000.00). The City shall notify the
Grantee of the anticipated expense for said transfer investigation and
determination not
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more than ninety (90) days after receipt of the Grantee's official written
notice of request to transfer the Franchise Agreement and shall provide
the Grantee with a capped figure for the expenses and costs of the
transfer not later than one hundred and ten days after the official
written notice of request to transfer has been received from the Grantee.
Payments made to the City for reimbursement of the costs of transfer,
delegation, or assignment, shall not be considered as part of the
Franchise Fees paid to the City.
SECTION ELEVEN: TRANSFER OF THE FRANCHISE
A. (1) The transfer of this Agreement shall be conducted as stipulated in the
Enabling Ordinance Section Eight (8). The transfer applicant or the City
may request that other issues be reviewed but neither the City nor the
applicant shall be obligated to review issues other than those so
described herein.
(2) (a) The transfer applicant shall provide sufficient financial
information as may be required by the City that assures to the City that
there will be no substantial negative impact on the Franchise Agreement
provisions and shall also provide proof of insurance.
(2) (b) All of the rights and privileges and all of the obligations,
duties and liabilities created by this Franchise shall pass to and be
binding upon the successors of the City and the successors and assigns of
Grantee and the same shall not be assigned or transferred without the
written approval of the City Council, which approval shall not be
unreasonably withheld. However, neither this Section, nor the requirements
of Section 8-2 of the Enabling Ordinance, shall prevent the assignment or
hypothecation of the franchise by Grantee as security for debt without
such approval, regardless of the percentage. Moreover, transfers or
assignments of this franchise between any parent and subsidiary
corporation or between entities of which at least fifty percent (50%) of
the beneficial ownership is held by the same person, persons, or entities
shall be permitted without the prior approval of the City Council.
(3) Any transfer approved by the City shall be made by a xxxx of sale, or
similar document, evidencing closing of the transaction, an executed copy
of which shall be filed with the City Clerk within sixty (60) days after
any such transfer.
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(4) Grantee shall provide the City with a completed FCC Form 394 thirty
(30) days after notification to the City of the intent to transfer the
Franchise Agreement.
B. A transfer by any sale of assets and/or stock, transfer, assignment,
mortgage, pledge, lease, sublease, or other encumbrance of whatever kind
or nature, made in violation of the Ordinance and/or Franchise Agreement
shall be void and may result in revocation of the Franchise Agreement.
C. All reasonable costs and expenses incurred by the City to investigate and
determine the appropriateness of the transfer shall be paid by the
Grantee, or the transfer applicant, prior to the City's acceptance of the
transfer.
SECTION TWELVE: RENEWAL OF THE FRANCHISE AGREEMENT
A. (1) Renewal of this Agreement shall not be construed to be unilateral and
unconditional. The City and the Grantee shall perform in compliance with
governing laws and regulations.
(2) Grantee shall provide such reasonable information to the City, as
requested by the City, as to allow the City to fully investigate, examine
and review those areas of concern.
B. All requests by the Grantee for transfer of the Franchise Agreement or
renewal of the Franchise Agreement shall be in writing.
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SECTION THIRTEEN: PERFORMANCE EVALUATION HEARINGS
A. The City and Grantee shall adhere to the provisions of Section 6 of the
Ordinance.
B. Information provided during the Performance Evaluation shall be that which
is described in the Ordinance and/or Franchise Agreement and as may be
reasonable for the review of the Grantee's performance. The City shall
provide the Grantee an agenda for the Performance Evaluation and a log of
information and/or topics the City intends to review thirty (30) days
prior to the date of the Performance Evaluation.
SECTION FOURTEEN: SOLICITATION OF SUBSCRIBERS
A. Nothing shall prohibit Grantee from soliciting subscriptions prior to the
commencement of operation provided that each such potential subscriber is
advised in writing:
(1) Of a reasonable estimate of time when the cable system will commence
operation;
(2) That such subscriber may cancel his or her subscription at any time
prior to the commencement of service and thereby accrue no charge or
penalty, and that deposits shall be refunded within fifteen (15) days.
B. Grantee shall provide to the City upon written request all solicitation
materials used by Grantee in the solicitation or education of potential
and current subscribers.
C. Telemarketing.
(1) pre-recorded messages shall identify the cable company; and
(2) the pre-recorded message shall release the called party's phone line
within five (5) seconds of a hang-up.
D. The Grantee shall have a rate structure for the provision of cable service
that is uniform throughout the franchise territory pursuant to Section
76.984 of the FCC's rules, 47 C.F.R.Section 76.984, except that the
Grantee may
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offer special rates to newly activated portions of the system for a reasonably
limited duration.
E. The Grantee may offer reasonable discounts to senior citizens and other
economically disadvantaged groups.
SECTION FIFTEEN: CONSUMER SERVICE AND PROTECTION
A. As consideration for the granting of this Franchise, the City and Grantee
shall agree to adequate standard of performance for customer service
identified in Section 14 of the Ordinance and in the Franchise Agreement
during the Franchise Term. Failure of Grantee to meet such standards for
performance may subject Grantee to liquidated damages as set forth in
Section 24 herein.
B. (1) Grantee shall provide all installation, reconnection, transfers and
any other standard physical work required within seven (7) business days,
under normal operating conditions, after a subscriber's placement of a
service request.
(2) Weather permitting, Grantee shall commence a non-standard installation
within fifteen (15) days of the receipt of all approvals, necessary system
equipment, make ready and system plans. The Grantee shall be reasonable in
his efforts to secure the same.
(3) Grantee shall make all reasonable efforts to complete a service level
change immediately upon request of the subscriber but in no case in excess
of seven (7) business days after such request. A request for a downgrade
in service by a subscriber shall result in the immediate cessation of
billing for that service regardless of when the physical change in service
is completed by the Grantee.
(4) Disconnection of service shall be in accordance with Ordinance Section
14-12.
C. (1) (a) There shall be no charge to the subscriber for the disconnection
of a programming service. The Grantee may charge the subscriber a
reasonable fee for a downgrade in service. A reasonable fee shall not
exceed the amount permitted pursuant to FCC rules and guidelines, if the
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subscriber has an addressable converter. Subscribers that do not have an
addressable converter can be charged with reasonable and actual costs of
providing the downgrade in service.
(1) (b) The Grantee may charge a slightly higher rate for tier service
changes for those subscribers changing tiers more than twice a year. The
exception would be for special promotions in which the subscriber is given
an inducement to subscribe to a service and that subscriber cancels the
service within thirty (30) days. That subscriber shall be charged no more
than the nominal amount, or the amount indicated on the promotional
literature, whichever is less.
(1) (c) If the Grantee can demonstrate an unusually high churn rate for
his system, he may petition the City for an increase in the tier service
charge.
(2) (a) The Grantee shall not require a subscriber to enter into a service
contract for longer than twelve (12) months in connection with any
promotion or marketing vehicle. Any subscriber who disconnects or
downgrades, for poor reception during any promotion period shall not be
penalized for electing said option to downgrade or disconnect.
(2) (b) A subscriber who has a change of mind during the promotional
period may disconnect from all subscriber service without penalty. A
subscriber who downgrades during this period may be required to pay for
any waived, or reduced, installation fee, with the rate for the
installation fee being no higher than the rate charged to a subscriber for
similar, or like, service in the thirty (30) day period prior to the
promotional period. A subscriber who downgrades his service during the
promotional period may be charged the difference between the promotional
price of the service and the posted rate for that service as applicable
during the thirty (30) day period prior to the promotional period.
(3) A subscriber may change his service without charge within thirty (30)
days of a retiering, or change in rates, initiated by the Grantee.
D. For the purpose of billing, outlets that are placed in individual rooms in
a commercial institution where the resident/ patient is billed as an
individual by the cable operator, excluding bulk billing agreements
between the cable operator and the facility management, shall be
considered permanently installed and the operator shall be prohibited from
charging an installation
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fee for the outlet after the first placement of the outlet in the
building. The operator may charge a resident/ patient a reasonable
activation fee for service in a room where an outlet had previously been
installed.
E. (1) Grantee shall provide all credits and adjustments on the first billing
after the cut-off date preceded by the subscriber's request for adjustment
and the Grantee's approval of same; provided however, that adjustments
processed within four (4) days of the end of a billing period shall appear
on a subscriber's xxxx no later than the second billing after the cut-off
date preceded by the subscriber's request. Refunds due the subscriber
shall be issued by check not later than thirty (30) days after the
approval of same.
(2) Grantee shall initiate prompt corrective action within twenty-four
(24) hours of receipt of the subscriber's telephone call and within ten
(10) business days of receipt of a subscriber's written complaint to
resolve subscriber billing and customer service complaints. Calls received
on a non-business day, or after normal operating hours, shall be responded
the next business day in the manner described herein. Technical service
calls shall be responded to as described in Section 15, paragraph R.
(3) All customer service representatives shall be instructed, pursuant to
Grantee's service manual and training program, to advise any subscriber
who is entitled to a credit, refund or other adjustments, when such
adjustment will appear on the subscriber's xxxx.
(4) Delinquent notices shall be sent to subscriber in an envelope that is
not different in shape or color than the Grantee's normal billing
envelope. The notice itself may be of any color as the Grantee determines
is applicable. The Grantee shall not use a postcard for the delivery of
delinquent notice.
F. Grantee shall maintain on its own, or in concert with a third party, a
local facility within the City of Mt. Carmel with capacity to accept
payments, receive converter deposits, remote units and other related
equipment. The Grantee shall notify the Franchising Authority in writing
how it intends to comply with this provision. Within ninety (90) days of
the acceptance of a Franchise Agreement, said local facility shall be open
to the general public at least a minimum of forty-four (44) hours per
week. Of that time, there shall be a minimum of four (4) hours on Saturday
between 9:00 AM and 5:00 p.m., and at least one (1) day per week in which
the office is open
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between 9:00 AM and 11:00 AM, and one (1) day per week in which the office
is open between 5:00 PM and 7:00 PM.
G. Grantee shall provide staffing appropriate to meet the requirements of
this Section.
H. Customer service operators, marketing personnel, management, sales persons
and service technicians, including contracted help, shall identify
themselves by name. When performing work at a customer's home, a company
identification badge shall be displayed on the outer clothing of the
technician or contractor.
I. The cable operator shall be required every third year at the City's
request, to conduct a subscriber survey of its current subscribers to
determine the degree to which the operator is meeting the needs of the
community. The survey shall be conducted as an activity of any Performance
Evaluation Session that may be scheduled by the City in accordance with
Ordinance Section 6-1. Results of the subscriber survey will be provided
to the City prior to the conclusion of the Performance Evaluation Session.
J. The Grantee shall not charge a subscriber for any service or equipment
that the subscriber has not affirmatively requested by name. For purposes
of this Franchise, a subscriber's failure to refuse the Grantee's proposal
to provide such service or equipment shall not be deemed to be an
affirmative request for such service equipment.
K. Grantee shall notify all potential subscribers through any of its
marketing literature and video promotions, and through personal sales
presentations that the Grantee has for sale equipment which shall
facilitate the reception of cable service by hearing impaired individuals.
Provision of services and equipment for disabled individuals shall be as
provided in the Ordinance, Section 13-2.
L. Credit for loss of service shall be as provided for in the Ordinance
Section 14-9.
M. (1) The Grantee shall provide thirty (30) days advance written notice to
subscribers of any change in channel assignment, or a change in the video
programming service provided on any channel in accordance with the
requirements of the Cable Act, as amended from time to time.
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(2) The Grantee shall make available free of charge a channel line-up
description describing the channel number and the programming service
carried on that channel. The channel line-up may be provided in the form
of a card or decal, or other acceptable medium. The Grantee shall provide,
upon a subscriber's request, printed channel line up cards of sufficiently
large print for the visually disabled.
N. The Grantee shall provide, on a reasonable basis, a technical service and
installation schedule that allows for subscribers to have service calls on
Saturday.
O. (1) Grantee shall issue an informational packet within three (3) months of
signing the Franchise Agreement. The packet shall be reflective of the
requirements for customer service, billing, installation, credits for lost
service, and receipt of a monthly statement.
(2) The packet shall be given to all new subscribers, and all current
subscribers. New subscribers shall be issued the packet in conjunction
with the installation of service. Current subscribers shall have the
packet available at the local customer service office and xxxx payment
centers and upon request of a subscriber, the Grantee shall cause to have
the packet delivered to the subscriber. The Grantee shall make
available sufficient copies of the packet to be distributed at the City
Hall.
P. (1) The Grantee shall not identify as a separate line item on the
subscriber's xxxx any fee, tax, assessment, or cost not provided for in
Section 622(c) of the Cable Act (1992) or as may be permitted pursuant to
federal law or FCC rules.
(2) Itemized fees and costs shall be shown as a breakout of the xxxx and
not as an addition to the subscriber's xxxx in accordance with the FCC
rules and regulations as amended from time to time.
Q. The Grantee shall provide an "open box" outlet for all of the Grantee's
service, excluding pay-per-view, capable of passing through all of the
Grantee's programming for the purpose of monitoring the Grantee's
transmission. Said open box shall be located within a municipal office
designated by the City. There shall be no installation or programming
service charge to the City for this outlet. The Grantee shall provide an
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initial VHS VCR (videotape recorder) for the recording of the system
programming when the municipal office is closed for the purpose of
continuous monitoring.
R. (1) Grantee shall make its best efforts to take corrective actions in
response to all subscriber technical service calls, other than major
system outages reported Monday through Saturday, within 24 hours of the
time the problem is reported providing that the call is received by the
Grantee not later than 12:00 p.m. (noon) of that day. Calls received after
12:00 p.m. (noon) Monday through Saturday may be responded to the next
service day.
(2) The Grantee shall offer the subscriber the choice of morning or
afternoon appointment.
(3) A major system outage shall be responded to in accordance with the
Ordinance Section 14-8D.
(4) The requirements of Section 15 R are reflective of normal operating
conditions. In the event of other than normal operating conditions, the
Grantee shall notify the City of any problems in meeting its technical and
installation schedules and shall make every reasonable effort to respond
to subscribers in an expeditious manner.
S. As a condition of this Franchise, Grantee shall implement a procedure to
resolve Subscriber complaints in accordance with its internal policies and
the provisions of this agreement.
T. Grantee shall follow the procedure for handling Subscriber complaints as
delineated in this agreement. Within three (3) months from the date of
execution of this Franchise Agreement, Grantee shall notify all current
Subscribers of the complaint process, the rights to credits for outages,
the service call response requirement, policies concerning disconnection
and reconnection and the requirement to remove Grantee's equipment from
Subscriber premises upon disconnection. Subsequently, Grantee shall
provide this information on an annual basis. Upon execution of this
Franchise Agreement, Grantee shall begin, within three (3) months,
notifying all new Subscribers of the above specified information at the
time original service is obtained.
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U. Grantee shall provide at the time of Installation, at least annually, when
there is a change to information provided Subscribers, and upon request by
a Subscriber, that information which is required hereunder, along with the
Grantee's policies regarding disconnection and reconnection of service.
V. (1) Grantee shall establish and conform to the following policy regarding
refunds to Subscribers:
(A) If Grantee collects a deposit or advance charge on any service or
equipment requested by a Subscriber, Grantee shall provide the
service or equipment within thirty (30) days of the collection of
the deposit or charge or it shall refund the deposit or charge
within forty-five (45) days thereafter. Nothing in this Agreement
shall be construed to:
(1) relieve the Grantee of any responsibility to Subscribers under any
contractual agreements into which it enters with them; or
(2) limit Grantee's liability for damages because of its failure to
provide the service for which the deposit or charge was made.
W. (1) Grantee shall, under normal operating conditions, answer telephones
staffed by customer service representatives, or through a service or
automated response system, within thirty (30) seconds, including wait
time, from when the connection is made. If the call needs to be
transferred, transfer time shall not exceed ninety (90) seconds. These
standards stated herein shall be met no less than ninety percent (90%) of
the time as measured on a quarterly basis under normal operating
conditions. Grantee shall follow the definition for normal operating
conditions as established by the FCC under Code of Federal Regulations
Title 47, Section 76.309(c)(4)(ii).
(2) Grantee shall, under normal operating conditions, assure that the
customer obtains a busy signal no more than three percent (3%) of the time
as measured on a quarterly basis.
(3) Incoming telephone calls from Subscribers to the Grantee shall not
exceed an abandonment rate of five percent (5%) as measured on a quarterly
basis.
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(4) Grantee shall establish a maintenance service capable of identifying,
locating and correcting system malfunctions in an expeditious manner. Said
service shall be available on a twenty-four (24) hour basis, seven (7)
days per week to restore service of the Cable System to Subscribers in the
event of significant deficiencies or failure of the Cable System.
(5) Grantee shall provide to Subscribers a listed local or toll-free
telephone number for service and repair calls. The telephone number may be
the same as that required in the notice provision hereof.
(6) Excluding conditions beyond the control of the Grantee, Grantee shall
begin working on service calls, requests and interruptions to cable
service promptly, and in no event shall the response time for calls
received between 7:00 a.m. and 12:00 midnight exceed four (4) hours,
except that the Grantee or its employees shall not be required to perform
work past 12:00 midnight. In the event that the Grantee suspends work at
12:00 midnight, it shall complete the work necessary to correct the
service call, request, interruption or other service problems the
following day. The Grantee shall begin action to correct service calls,
requests, interruptions and other service problems not later than 7:00
a.m. if the call is received after 12:00 midnight.
(7) For each repair, service, Installation and Installation-related
activity call, the Grantee shall establish either a specific time for an
appointment with the customer or at maximum a four-hour time block from
the effective date of this Agreement. Grantee shall establish a goal of
achieving a three-hour time block for scheduling repairs, service,
Installation and Installation-related activities within one year from the
effective date of this Agreement, and a goal of achieving a two-hour time
block within two (2) years from the effective date of this Agreement and
thereafter for the duration of this Agreement. Said time blocks shall be
scheduled during the Grantee's hours of operations. The Grantee may, at
its discretion, schedule service calls and other Installation, or
Installation-related activities outside of its usual hours of operations
for the express convenience of the customer.
(8) Grantee, or its agents or designees, shall not cancel an appointment
with a customer after the close of business on the business day prior to
the appointment.
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(9) Upon completion of the service call, Installation or Installation
related activity, the customer shall receive a notification of the service
call. Grantee may either notify the Customer in person or leave a
notification attached to the front door of the Subscriber's premises or
send said report by United States mail within fourteen (14) days of the
service date if the customer is not present at the time of the service
call.
(10) A representative of the Grantee shall contact a customer in the event
that a service repair technician or other representative of the Grantee is
running late for an appointment and will be unable to keep the scheduled
appointment time. Grantee or its representative shall reschedule the
appointment, as necessary, at a time which is convenient to the customer.
(11) The standards promulgated hereunder (Section 15 S thru W) shall be
met no less than ninety-five percent (95%) of the time measured on a
quarterly basis.
(12) Grantee shall maintain customer service records in accordance with
the records retention policy of Grantee. Grantee shall notify the
Franchising Authority prior to any change in said policy which affects the
length said records are retained.
SECTION SIXTEEN: SYSTEM DESIGN
A. (1) Grantee agrees to upgrade the existing Mt. Carmel TV System in
accordance with Section 17.
(2) The system, as constructed, shall comply with the buy-through
provision of the FCC's rules by pursuant to section 76. 921, 47 C.F.R.
Section 76.921, to technically allow for subscribers to purchase premium
programming without having to buy to a higher service tier than basic
cable, except that such provision shall not be applicable pursuant to such
section until October 5, 2002.
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B. (1) Upon completion of the rebuild, the Grantee shall provide the City
with an all channel audio emergency override to be used by the City for
the announcement of emergency information; and
(2) Upon completion of the rebuild, the Grantee shall provide a character
generator for the City to provide emergency and other announcements on the
Government channel, other such channel that may be utilized by the City in
accordance with the terms of this Agreement.
C. The system shall be designed to meet the technical standards adopted by
the FCC in its Report and Order, 1992 (47 C.F.R. Part 76, Subpart K), or
as amended under the Cable Act.
D. (1) All construction, installation (including subscriber drops), activation,
re-activation, and operation of any portion of the Grantee's signal origination
or signal processing or signal distribution system and equipment (including but
not limited to the towers, antennas, headend, studio, trunk and distribution,
and fixed and portable equipment located on or off of the subscriber occupied
property) shall comply with all requirements of the most current edition of each
of the following publications: National Electrical Code, published by the
National Fire Protection Association and the National Electrical Safety Code,
published by the Institute of Electrical and Electronic Engineers, Inc.; and as
amended from time to time. In the case of any alleged violation of applicable
technical standards or safety codes, where the alleged violation does not pose a
substantial safety hazard, Grantee shall be given sufficient time to complete
any required corrections or repairs, and the City shall not assess any penalty
against the Grantee so long as the Grantee shows that it is working promptly,
diligently and in good faith to correct any alleged technical violations. A
substantial safety hazard shall be defined as one posing an imminent likelihood
of causing significant bodily injury if not repaired immediately. The parties
hereby agree that it is not the Franchising Authority's intention to subject the
Grantee to penalties, fines, forfeitures or revocation of the Franchise for
so-called "technical" breach(es) or violations) of the Franchise or local cable
ordinance, which shall include but are not limited to the following:
1. in instances or for matters where a violation or a breach by the
Grantee of the Franchise or local cable ordinance was good faith
error that resulted in no or minimal negative impact on the
customers within the Service Area; or
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[TEXT TO COME FROM CLIENT]
34
programming; applicable data sharing between various municipal, library,
school, and government institution.
(2) The Grantee shall be responsible for providing the engineering
necessary and equipment required at the headend and within the cable
system for said interconnection except that any equipment required by an
individual user to receive or transmit upon the interconnect, except that
which is described herein, shall be the responsibility of the user.
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Section Seventeen: SYSTEM IMPROVEMENT, RECORDS, STANDARDS AND INSURANCE
A. (1) The Grantee shall upgrade its Cable System within the Franchise Area.
The upgraded Cable System will include a fiber-optic trunk and node
topology. The Grantee shall have a twenty-four (24) month time period to
substantially complete make-ready and physical reconstruction of its Cable
System from the effective date of this Agreement. If this Cable System is
acquired by Xxxx Multimedia, LLC, then this time period shall run from the
date of the acquisition of the Cable System.
Within one hundred eighty (180) days of the date of this Agreement, or 180
days from the acquisition of the Cable System by Xxxx MultiMedia, LLC,
whichever is later, the Grantee shall submit a written report of the
status of the upgrade. Such report shall be in reasonable detail to permit
the Grantor to assess the progress of the Grantee toward completion of the
upgrade. Thereafter, the Grantee shall submit supplemental written reports
to the Grantor not less often than quarterly.
(2) Upon completion of the upgrade of the Cable System, said system shall
have a minimum Channel capability on the Cable System of eighty-three (83)
video programming services. The Cable System shall have the ability to
support digitally compressed signals.
(3) Grantee shall provide, subject to economic feasibility in the
Grantee's sole discretion, the Franchising Authority with a plan for
implementation of no fewer than twenty-five (25) additional Channels
within three (3) months of the completion date of the reconstruction of
the Cable System. Thereafter, the Grantee shall meet with the Franchising
Authority on an informal basis to discuss planned Channel additions.
(4) Grantee shall provide to all of its Subscribers all components of the
television signal (video and audio) including, but not limited to,
subcarriers and information in the Vertical Blanking Interval to the
extent that such components are required to be carried by applicable
federal law.
(5) Notwithstanding the foregoing, the Grantee shall, at all times during
the term of this Agreement, provide to all Subscribers the component
carried in Line 21 of the Video Blanking Interval. It is the intention of
the
36
foregoing sentence that the Grantee will provide the necessary component
of the signal required for reception of closed-captioning data for the
hearing unpaired.
(6) Grantee shall incorporate into this Franchise Agreement a best
estimate of a schedule for reconstruction of the Cable System, including
Grantee's timetable including phasing-in for commencement or enhancement
of cable services to Subscribers. Said schedule shall be found in Schedule
III of this Agreement.
(7) Grantee shall build its Cable System so that it is capable of
providing service to all residences and businesses located along public
rights-of-way located within the Franchise Area. Service will be provided
at then prevailing Installation charges except where the Subscriber Drop
is not a standard Installation, in addition to the prevailing Installation
charge. Grantee may charge the Subscriber the difference between Grantee's
cost of installing a standard installation and the cost of installing the
non-standard Installation. For the purpose of this Agreement, a standard
Installation shall mean a cable connection that is located up to one
hundred fifty (150) feet from the existing distribution system, or such
Installations where adverse terrain (such as excessive rocky conditions)
or other factors render the extension of the system economically or
technically more expensive or difficult then typically encountered by
Grantee in its normal operations.
B. The Grantee shall be responsible for, and shall indemnify, defend and hold
harmless, the City and its officers, agents and employees from any and all
damages arising out of or resulting from any of the Grantee's activities
in the restoration of public and private property, and Grantee shall
procure and maintain, throughout the term of this Franchise, liability,
worker's compensation, and those types of insurance referred to in Section
20 of the Franchise Ordinance, from an insurer licensed to do business in
the State of Illinois carrying a rating of B+ by Best's Insurance Rating
Services, and approved by the City. Said insurance shall insure Grantee
and the City with regard to all damages mentioned herein, in the minimum
amounts of:
$2,000,000 for bodily injury or death to any one (1) person;
$2,000,000 for bodily injury or death resulting from any one (1)
occurrence;
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$5,000,000 for umbrella liability coverage.
At the time of acceptance, Grantee shall furnish to Franchising Authority
a certificate naming the City, its officers, agents, and employees as
additional insureds. Such certificate shall require that the Franchising
Authority be notified at least thirty (30) days in advance prior to any
expiration, and thirty (30) days in advance prior to any cancellation. All
premiums on policies required by this Franchise Agreement shall be at the
expense of the Grantee.
C. The Grantee shall notify a subcontractor of required restoration of public
or private property. If the restoration is not completed in a reasonable
period of time and/or to the satisfaction of the City or the resident,
then the Grantee shall restore said property. It shall be the
responsibility of the Grantee to resolve claims between the resident
and/or the City and the subcontractor employed by the Grantee to provide
restoration service. All claims shall be resolved in a reasonable and
expeditious manner. A resident that is not satisfied with the resolution
or progress of his claim may seek assistance from the City.
D. Upon termination of a subscriber's service, the Grantee shall, upon the
subscriber's request, restore the exterior of the dwelling unit in as good
a condition as is reasonably possible and at the Grantee's expense.
Interior restoration shall be the responsibility of the subscriber.
E. Permit and license requirements shall be as those applicable under the
Ordinances of the City, the State, or the County. A "Record of
Construction Permit" shall be submitted by the Grantee prior to
construction or re-construction.
F. The Grantee shall provide, upon request, a monthly construction schedule
to the City during periods of construction, up grade, rebuild or
re-construction. Said construction schedule to be reviewed by the City. No
construction, or re-construction shall commence without the approval of
the Public Works Department.
G. Temporary service drops:
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(1) (a) Laid after the ground has thawed shall be buried between March and
October unless the Grantee receives permission from the City to delay
burial.
(1) (b) Weather and ground conditions permitting, temporary drops shall be
buried as expeditiously as possible but in no event later than twenty-one
(21) days after placement without the expressed written permission of the
City.
(2) Weather and ground conditions permitting, temporary drops laid after
the ground has frozen, "snow drops," shall be buried not later than May 15
of the following season.
H. (1) Contractors employed by the Grantee for construction and installation
of cable plant shall be licensed under all local ordinances and state laws
and shall carry sufficient liability insurance in the amount of not less
than One Million Dollars ($1,000,000). All subcontractors shall submit
proof of insurance to the Grantee and Grantee shall maintain a copy of
said insurance policies.
(2) All contractors employed by Grantee for installation, maintenance,
construction or repair of the system must be properly licensed under the
laws of the State of Illinois, and all relevant local Ordinances. In
addition to the vehicle identification required in the Ordinance Section
14-6B, all contractor employees or agents shall display an identification
badge on their person, displayed wherever practicable, which identifies
the person as working for or on behalf of the Grantee.
I. All conditions and requirements of construction apply to the
reconstruction, in part or in whole, of the cable system.
J. Pedestals shall be placed as near as practicable to an existing utility
pedestal and pole unless an exemption is granted by the City and said
exemption not to be unreasonably denied. Pedestals placed prior to this
Franchise Agreement are grandfathered until such time as the pedestal is
replaced, or moved by the Grantee to accommodate the system design.
K. Grantee shall have use of the utility easements to construct and maintain
the cable system.
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L. The Grantee shall have been deemed to have provided service as required
under the Ordinance if service is available on a non-discriminatory basis
for immediate usage to an owner, or legal representative, or tenant of a
dwelling unit or commercial business unit in accordance with the terms and
conditions of this Franchise Agreement.
M. A construction bond of Two Hundred Fifty Thousand Dollars ($250,000.00)
shall be required for the initial rebuilding of the cable system, said
rebuild to be completed within twenty-four (24) months of the signing of
the Franchise Agreement. The City may grant an extension of the
construction period upon a reasonable showing of cause by the Grantee and
the City shall not be unreasonable in the grant of an extension. During
other periods of construction, or re-construction, the Grantee shall, at
the request of the City, provide a construction bond in accordance with
the Ordinance Section 18-13. The City may grant a waiver of the
construction bond, if the City determines that the Grantee's insurance
coverage is sufficient to protect the interests of the City. If said
waiver is granted, the Grantee shall name the City as additionally insured
on all insurance policies identified by the City.
N. All of Grantee's as built maps shall, at a minimum, identify the location
of Grantee's equipment on utility poles and on the ground; the number of
the utility pole passed or attached to. Each map shall utilize a
north-south and east-west baseline. A copy of the as built maps shall be
provided to the City upon completion of the build, or re-build, of the
system. A copy of any section of the map which is modified for reasons of
construction or other changing activity at a later date shall be filed
with the City not more than sixty (60) days after said modification.
O. The Grantee shall allow the City to install its radio communications
antennas on the Grantee's towers providing that said installation shall
not interfere with the Grantee's own equipment. The City shall be
responsible for the maintenance of said equipment. There shall be no
charge to the City for the use of said tower space.
SECTION EIGHTEEN: LINE EXTENSION
A. The density requirement for line extension throughout the corporate
boundaries of the City shall be fifteen (15) households per cable route
mile.
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B. (1) The Grantee shall be reasonable in determining the placement route of
the cable so as not to unduly disenfranchise any potential subscriber, or
to unreasonably cause a subscriber to pay for cable plant construction as
provided for under the Ordinance and Franchise Agreement.
(2) In the event that a subscriber, or group of subscribers, is denied
cable service due to insufficient density, as determined by the Grantee,
those subscribers may seek recourse through the City to have service
extended. The Grantee and the City shall determine if there is an
alternative route for the placement of cable that would provide the
density of fifteen (15) households without substantial financial hardship
for the Grantee.
SECTION NINETEEN: SYSTEM MAINTENANCE
A. (1) The Grantee shall maintain a technical staff of not less than one (1)
regional chief technician and a sufficient number of service technicians
to respond to technical and service calls in accordance with the terms of
the Ordinance and Franchise Agreement. Sufficient technical service
personnel shall be trained in fiber technology including the proper
testing and repair of the fiber cable utilized in the Grantee's system.
(2) Grantee shall maintain a staff of not less than one (1) on-call
service technician from 5:00 p.m. to 10:00 p.m. Monday through Friday; and
from 12:00 p.m.(noon) until 10:00 p.m. Saturday and Sunday to respond to
system technical problems. Inclusive of the on-call requirement described
herein, a service technician shall be on call twenty-four (24) hours a day
to correct a major system outage. When calls from subscribers are received
after 10:00 p.m. and before 8:00 a.m., the answering service shall notify
the on-call technician when three (3) subscriber calls within thirty (30)
minutes are received reporting no picture and/or no sound. It shall be the
responsibility of the on-call technician to determine if there is a major
system outage and to either respond to the outage with the appropriate
corrective action. The Grantee shall arrange for subscribers to be
notified, by telephone, on the next business day that a service call will
be scheduled in accordance with the Franchise Agreement Section 15 W (7).
B. The Grantee shall sweep and balance the trunk and feeder system not less
than annually.
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C. System monitor test points shall be established at the last amplifier in
the longest feeder line and longest trunk line extremities which service
the subscribers of the City of Mt. Carmel in accordance with FCC
standards.
D. Every reasonable effort shall be made to conduct routine maintenance in
residential and other easements during daylight hours between 7:00 a.m.
and 7:00 p.m., Monday through Friday. When in a residential utility
easement, the Grantee's service personnel shall present proper
identification to the resident. Routine maintenance in residential
easements shall not be performed on Saturday, Sunday or recognized Federal
and/or State holidays; or during national sports events. The Grantee shall
not be required to notify the resident of maintenance work being conducted
in the municipal or county easements.
E. (1) Emergency maintenance may be conducted at any tune but may not unduly
interfere with the rights of residents.
(2) The Grantee shall make every reasonable effort to notify the City
Police Department of Grantee's intent to perform emergency maintenance
after 4:00 p.m. C.S.T. or 8:00 p.m. C.D.T., in the easements located in
the residential parcels.
F. Grantee shall maintain the system quality at the highest professional
level for the cable television industry for communities comparable in size
to Grantee. To that end, Grantee shall perform, at a minimum, the
following tests and procedures as a normal course of action as required by
the FCC:
- Verification of video and audio carrier levels;
- Adjustment of video AM and aural FM modulation levels;
- Verification of all carrier frequencies;
- Verification of all channel processing equipment;
- Testing of intermodulation components;
- Alignment of channel encoders (scramblers);
- Maintenance and inspection of tower and satellite receiving
equipment; and
- Proper repair techniques of existing equipment.
G. An outage shall be defined in Ordinance Section 14-8 D.
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H. Grantee may employ an answering service, or automated response call
system, to receive subscriber phone calls after business hours. An
answering service shall be held to the same customer service phone
standards as the Grantee.
I. Grantee shall provide a toll-free or local number for all service calls.
J. Grantee's System Preventative Maintenance Policy is adopted and noted.
SECTION TWENTY: PROGRAMMING SERVICES
A. The Grantee shall, at a minimum, provide broad levels of programming
including children's programs, local news, national news, sports, movies,
education, religious, commercial broadcast, and broadcast public affairs.
B. No one may transmit over the cable system any matter which is legally
obscene, or otherwise unprotected by the Constitution of the United
States.
C. Grantee shall provide, at no charge, Subscriber cable connections to all
Schools and government buildings as identified in Schedule II. Services to
be provided at no charge to the aforementioned Schools and government
buildings shall include basic service as defined in Section 1.0 of this
Agreement, and all satellite programming tiers provided by the Grantee. In
addition, Grantee shall provide "Cable In The Classroom" or similar
educational services or programming services to all Schools covered by the
provisions of this Section. Premium cable services, including but not
limited to Channels such as Home Box Office, Showtime, Cinemax, The Movie
Channel, and Encore and any multiplexed Channels derived from such
programming networks shall be at the cost of the school or governmental
entity. Grantee shall provide outlets to school classrooms and government
offices pursuant to Section 17-5 of the Ordinance.
D. Grantee shall reasonably assist the school staff in utilizing and
identification of "Cable In The Classroom" programming or similar
educational services, programs and/or support material, to the extent the
Grantee has industry knowledge of the same.
SECTION TWENTY-ONE: COMMUNITY SERVICES AND EQUIPMENT
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A. Provision of Channels, Programming and Equipment.
(1) Grantee shall set aside one (1) channel for the provision of public,
education and government access ("PEG") services. After the rebuild is complete,
whenever the existing PEG access channel shall be used more than 70% of the
hours each week for four (4) consecutive weeks and programmed with
non-duplicating non-xxxx board video programming, Grantee shall make a second
channel available for PEG access. When such second channel shall be used more
that 80% of the hours each week for four (8) consecutive weeks and programmed
with non-duplicating non-xxxx board video programming, Grantee shall make
available a third PEG channel which, together with the first and second
channels, shall be used for PEG access. In calculating the usage percentage to
trigger the provision of an additional PEG access channel, a repeated program
may only be counted once in any twenty-four (24) hour period and a maximum of
(4) times after the first run.
B. Channels
(1) Upon reaching the usage benchmarks contained in Section 21(A) hereof,
a Public Access Channel shall be:
(a) Made available to the general public on a 24-hour basis without charge
for use of the channel.
(b) Made available on a first-come first-served non-discriminatory basis.
(2) Upon reaching the usage benchmarks contained in Section 21(A) hereof
an Education Access Channel shall be:
(a) Reserved for the exclusive use of the local schools within the City of
Mt. Carmel for such programming as may be determined by a committee of
local school representatives.
(b) Made available to the schools on a 24-hour basis with no charge for
the use of the channel.
(3) (1) Upon reaching the usage benchmarks contained in Section 21(A)
hereof, a Public Access Channel shall be made available on a 24-hour basis
for the exclusive use of the City of Mt. Carmel.
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C. Usage Rules for Access Channel and Determination of Need To Initiate Use
of the Channel
1. It shall be at the sole discretion of the school committee and the City
as to when it is appropriate for them to initiate use of the Education Access
and/or Government Access Channel(s) after the usage benchmarks of Section 21(A)
hereof are met.
2. It shall be the responsibility of the City and participating schools
and their representatives to develop rules for the cablecasting of
programming, or the importation of programming, for the respective uses of
the PEG access channel(s).
D. Identification of Access Programming
(1) Grantee shall identify the Public Access Channel(s) on all channel and
cable service identification information supplied to subscribers.
(2) The Grantee shall require that all Public Access programming cablecast
on the PEG channels) be identified as such. Neither the Grantee nor the
Franchising Authority shall have control over the content of the
programming of the educational and public access channels.
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E. Training of Users
The Grantee shall not be responsible for any training of users of the access
facilities and equipment including limited video production training.
F. Alternative Provision of Access Facilities and Services
Pursuant to Section 17-7 of the Enabling Ordinance, in lieu of providing certain
access facilities and services in this Franchise Agreement and in lieu of the
PEG requirements in Section 17 of the Enabling Ordinance, the Grantee may
provide the City with the following monetary distribution:
(1) Within thirty (30) days of the signing of the Franchise Agreement,
Twenty Thousand Dollars ($20,000) to be used by the City to provide
access facilities and equipment; and (2), if requested by the City, an
additional Twenty Thousand Dollar ($20,000) payment at the end of Year
Three (3). However, if requested, the additional Twenty Thousand Dollar
($20,000) payment shall only be required if there is a demonstrated
community need for the additional access funds. Such need shall be
based upon a survey of system subscribers which shall be conducted by
the Grantee.
(2) The survey may indicate an estimated cost per subscriber due to the
increase in access support. Upon the City's request, the survey shall
also indicate the cost to City resident's to provide the same services
through various revenue raising mechanisms available to the residents
so that there is an equitable comparison. The questions on the survey,
and any accompanying explanation for the reason for the survey, shall
be structured to give the subscribers a fair and accurate presentation
of the current usage and expected future usage of public, education and
government access. The survey shall be approved by the City prior to
its release to subscribers.
G. Equipment
(1) Grantee shall provide a character generator and a VCR for use by
the City in City Hall for the distribution of alpha-numeric messages.
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(2) Maintenance and repair of the television production equipment, and all
other PEG Access related equipment, shall not be the responsibility of the
Grantee.
H. Subscriber Outlets
The Grantee shall provide subscriber outlets in accordance with the Enabling
Ordinance Section 17-5.
I. INSTITUTIONAL NETWORK
The I-Net shall be constructed pursuant to the requirements in Section 16 of
this Franchise.
SECTION TWENTY-TWO: TIME IS OF THE ESSENCE TO THIS AGREEMENT
Whenever this Agreement shall set forth any time for an act to be performed by,
or on behalf of the Grantee, such time shall be deemed of the essence and any
failure within the control of Grantee to perform within the time allotted shall
be sufficient grounds for the City to invoke an appropriate remedy and/or
penalty and/or liquidated damages under Section 24 herein or possible revocation
of the Franchise.
SECTION TWENTY-THREE: NOTIFICATION TO COMPLY
A. If the Franchising Authority believes that a substantial violation of breach
of a material provision of this Franchise Agreement or the Enabling Ordinance
has occurred and that there is sufficient cause to penalize the Grantee, the
following procedures shall be followed: The Franchising Authority shall notify
the Grantee in writing of any alleged violation or failure to meet any of the
terms or provisions of this Franchise or the Ordinance. The Grantee shall be
given a period of thirty (30) days from the date it receives notice from the
Franchising Authority of the alleged violation of this Franchise or the
Ordinance to cure the alleged violation. If the alleged violation cannot
reasonably be cured within thirty (30) days, Grantee shall submit a plan showing
the actions it proposes to take and the estimated time for completion, and the
City shall not impose penalties upon submission of a reasonable, good faith plan
to cure any alleged violations. If the alleged violation is not cured or a
reasonable plan for cure is not submitted within the thirty (30) day period, the
Franchising Authority may take the appropriate steps necessary to penalize the
Grantee. Provided, however, that
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nothing in this section shall be construed to limit or restrict the Grantee's
right to appeal the City's actions in state or federal court.
SECTION TWENTY-FOUR: PENALTIES, LIQUIDATED DAMAGES, SECURITY FUND AND
PERFORMANCE BOND
A. In the case of a failure to perform within the provisions of this Section,
the Franchising Authority shall consider such failures to perform as a
material breach of the Franchise. The Franchising Authority shall provide
Grantee with notice and opportunity of no less than thirty (30) days to
cure such violations, however, if Grantee fails to cure such violations
after reasonable notice and opportunity have been provided, the
Franchising Authority may consider Grantee to be in default of the
Franchise and may, at its option, initiate any proceeding authorized by
the Franchise Ordinance or this Agreement.
B. By acceptance of a Franchise granted hereunder, the Grantee understands
and agrees that failure to comply with the material performance
requirements as stipulated under the Ordinance or this Franchise after
written notice of non-compliance and failure to cure or institute cure
within thirty (30) days, will result in damage to the City, and that it
may be impracticable to determine the actual amount of such damage in the
event of delay or nonperformance; therefore, the Grantee agrees that it
shall pay to the City the following amounts which shall be chargeable to
the Grantee:
1. Failure to substantially complete Cable System reconstruction in
accordance with the provision of this Agreement and the Franchise
Ordinance unless the Franchising Authority approves the delay, or unless
such delay was a result of force majeure, the amount shall be One Hundred
Dollars ($100.00) per week.
2. For failure to obtain a material permit where construction,
reconstruction or relocation of Cable System or its components within the
Public Ways of the City is undertaken, the amount shall be Fifty Dollars
($50.00) per day.
3. For failure of the Grantee to comply with construction, operations or
maintenance standards, the amount shall be One Hundred Dollars ($100.00)
per week.
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4. For material failure to provide customer services as stated in Section
15 of this Agreement, the amount shall be One Hundred Dollars ($100.00)
per week.
5. For failure to test, analyze, and report on the performance of the
Cable System following a reasonable request by the Franchising Authority
as contemplated in this Agreement, the amount shall be One Hundred Dollars
($100.00) per week.
6. For failure to submit timely reports as required under this Agreement
and the Franchise Ordinance, the amount shall be Fifty Dollars ($50.00)
per day until such reports are received by the Franchising Authority.
C. In accordance with the provisions of the Franchise Ordinance, the Grantee
shall, as a security fund for the faithful performance by the Grantee of
all terms and conditions of the Franchise, secure and provide a Security
Fund to the City in the form of a cash escrow in the amount of One
Thousand Dollars ($1,000.00). Such cash escrow shall be used by the City
to draw down liquidated damages for violation of the terms and conditions
of the Franchise. In the event that the City should draw down from the
cash escrow provided, the Grantee shall restore the value of said cash
escrow or corporate guaranty to the total amount provided in this
Agreement within thirty (30) calendar days. In the event that no
withdrawals are required by the City during the first four (4) years of
this Franchise Agreement, the amount of the security fund shall be reduced
to Five Hundred Dollars ($500.00). In the event that a withdrawal is
required by the City within the first four (4) years of this Agreement,
the amount of said security fund may be increased to an amount not to
exceed Three Thousand Dollars ($3,000.00) in the reasonable exercise of
the City's sole discretion upon sixty (60) calendar days notice to
Grantee. Grantee shall not use the security fund for other purposes and
shall not assign, pledge, or encumber said cash escrow or corporate
guaranty for any purpose. The remaining portions of this Section shall
continue to apply.
D. The security fund provided pursuant to this Franchise Agreement shall
become the property of the City as liquidated damages, in the event that
this Franchise Agreement is terminated by reason of default of the Grantee
or revoked for cause. Grantee, however, shall be entitled to return of
such security fund or portion thereof as remains on deposit at the
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expiration of the term of the Franchise, or upon termination of the
Franchise at an earlier date, provided that there is then no outstanding
default on the part of Grantee.
E. The rights reserved to City with respect to the security fund are in
addition to other rights of City, whether reserved by this Agreement or
authorized by law, and no action, proceeding, or exercise of a right with
respect to such Security Fund shall affect any other right that City may
have.
SECTION TWENTY-FIVE: FAILURE OF CITY TO ENFORCE THIS AGREEMENT; NO WAIVER OF
THE TERMS THEREOF, AND FORCE MAJEURE
Except as provided for in Section 626 (d) of the Act, Grantee, or other parties,
shall not be excused from complying with any of the terms and conditions of this
Agreement by any failure of the City upon any one or more occasions, to insist
upon or to seek compliance with any such terms or conditions.
Whenever a period of time is provided for in this Franchise Agreement for either
the City or the Grantee to do or perform any act or obligation, neither party
shall be liable for any delays due to: war; riot; insurrection; rebellion;
strike; lockout; unavoidable casualty or damage to personnel, materials, or
equipment; fire; flood; storm; earthquake; tornado; orders of a court of
competent jurisdiction; any act of God; or any cause beyond the direct control
of said party. And in any event, said time period shall be extended for the
amount of time said party is so delayed. An act or omission shall not be deemed
to be beyond a Grantee's control if committed, omitted or caused by a
corporation or other business entity which holds a controlling interest in the
Grantee, whether held directly or indirectly. Further, the failure of a Grantee
to obtain financing, or to pay any money due from it to any person, including
the City, for whatever reason, shall not be an act or omission which is beyond
the Grantee's control.
SECTION TWENTY-SIX: EQUAL PROTECTION
In the event the Franchising Authority enters into a Franchise, permit, license,
authorization, or other agreement of any kind with any other Person or entity
other than the Grantee to enter into the Franchising Authority's Public Ways for
the purpose of constructing or operating a Cable System or providing Cable
Service to any part of the Service Area, the material provisions thereof shall
be
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reasonably comparable to those contained herein, in order that one operator not
be granted an unfair competitive advantage over another, and to provide all
parties equal protection under the law.
SECTION TWENTY-SEVEN: SEVERABILITY
If any section, subsection, sentence, clause, phrase or portion of this
Franchise Agreement is for any reason held invalid or unconstitutional by any
court of competent jurisdiction, such portion shall be deemed a separate,
distinct, and independent provision and such holding shall not affect the
validity of the remaining portions thereof. Any provision, section or subsection
of the Franchise Agreement which may be declared unconstitutional, or invalid,
by a competent court shall not affect the validity of any other provision,
section, or subsection of the Franchise Agreement, and the same shall remain in
full force and effect notwithstanding the validity of such other provision,
section, or subsection of the Franchise Agreement.
SECTION TWENTY-EIGHT: ENABLING ORDINANCE
This Franchise Agreement is subject to all matters, terms and conditions as set
out in the City of Mt. Carmel, Illinois, Cable Communication Enabling Ordinance
#599 dated November 8, 1993, which are incorporated herein by this reference. In
the event of a conflict between this Franchise Agreement and said Enabling
Ordinance, this Agreement shall prevail.
DATED: 7/26/01
CITY OF MT. CARMEL
BY /s/ XXXXXX X. XXXXXXXX
-------------------------------
XXXXXX X. XXXXXXXX, MAYOR
ATTEST:/s/ XXXXX XXXXX
-------------------------------
XXXXX XXXXX, CITY CLERK
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/s/ M. XXXXXXX XXXXXXXXX
----------------------------------
FOR Enstar IV PBD Systems Venture
M. Xxxxxxx Xxxxxxxxx
Vice President Government
ATTEST: /s/ [SIG]
-------------------------------
52
SCHEDULE I
ADDITIONAL AREA INCLUDED IN THE FRANCHISE TERRITORY
See Section Eighteen: Line Extension
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SCHEDULE II
LISTING OF SCHOOLS AND GOVERNMENT
BUILDINGS TO BE PROVIDED CABLE SERVICE
FACILITY ADDRESS
Mt. Carmel City Hall 000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Offices (Courthouse) 000 Xxxxxx Xxxxxx
Xx. Xxxxxx Police Department 000 Xxxx 0xx Xxxxxx
Wabash General Hospital 0000 Xxxxxxx Xxxxx
Xx. Carmel Public Library 000 Xxxxxxxx Xxxxxx
Xx. Carmel High School 000 Xxxx Xxxxxx
Xx. Carmel Fire Department 000 Xxxxxx Xxxxxx
Xxxxx Middle School 0000 X. Xxxxxx Xxxxxx
South Elementary School 000 Xxxx 0xx Xxxxxx
Xxxxxxx xx Xxxxxxxx 000 Xxxxxx Xxxxxx
Xxxxxx Valley College 0000 Xxxxxxx Xxxxx
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SCHEDULE III
PERFORMANCE SCHEDULE
Will be provided to City, within 220 days, upon acquisition of the Mt. Carmel
system or within 120 days of calendar year 2002 (whichever occurs first).
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APPENDIX A
CONSTRUCTION BOND
The construction bond will be provided prior to construction starting on the
Mt. Carmel system.
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ADDENDUM I
LIST OF ATTACHMENTS
Schedule I Additional Area included in the Franchise Territory
Schedule II Listing of Schools and Government Buildings
Schedule III Performance Schedule
Appendix A Construction Bond
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