E4SV & ECM
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
2
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"
3
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.
4
"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)
5
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
6
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:
7
(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:
8
(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.
9
"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
10
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 breach 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
11
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 shall, 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.
12
(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
13
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.
14
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
15
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 system's 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 foregoing, 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 PBS Systems Venture
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 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
16
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 in 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
17
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
18
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.
19
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
20
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
21
(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.
22
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
23
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
24
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
25
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
26
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.
27
(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
28
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.
29
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.
30
(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.
31
(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.
32
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 violation(s) 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
33
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.
34
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
35
foregoing sentence that the Grantee will provide the necessary component
of the signal required for reception of closed-captioning data for the
hearing impaired.
(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
nonstandard 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;
36
$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:
37
(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.
38
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.
39
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.
40
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 time 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.
41
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
42
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
than 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.
43
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 channel(s) 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.
44
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.
45
(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
46
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.
47
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 (S500.00). 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
48
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
49
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
50
/s/ M. Xxxxxxx Xxxxxxxxx
----------------------------------
FOR Enstar IV PBD Systems Venture
M. Xxxxxxx Xxxxxxxxx
Vice President Government
ATTEST: [ILLEGIBLE SIGNATURE]
--------------------------
51
SCHEDULE I
ADDITIONAL AREA INCLUDED IN THE FRANCHISE TERRITORY
See Section Eighteen: Line Extension
52
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
53
SCHEDULE III
PERFORMANCE SCHEDULE
Will be provided to City, within 120 days, upon acquisition of the Mt. Carmel
system or within 120 days of calendar year 2002 (whichever occurs first).
54
APPENDIX A
Construction Bond
The construction bond will be provided prior to construction starting on the
Mt. Carmel system.
55
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
56