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Mount Pleasant |
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Code of Ordinances |
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Appendix A. FRANCHISES |
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Article VIII. CABLE TELEVISION FRANCHISE [CABLEVISION VII, INC.] |
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ORDINANCE NO. 1041 This Franchise Agreement (this 'Franchise') is between the City of Mount Pleasant, Iowa, hereinafter referred to as "Franchising Authority" or "City" or "Grantor" and Cablevision VII, Inc., hereinafter referred to as "Grantee." The Franchising Authority, having determined that the financial, legal, and technical ability of the Grantee is reasonably sufficient to provide services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Franchise Agreement with the Grantee for the construction and operation of a Cable System on the terms set forth herein. Section 1. Terms. For the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense words in the plural number include the singular number, and words in the singular number include the plural number: A. "Basic Cable" is the lowest priced tier of service that includes the retransmission of local broadcast television signals. B. "Cable Act" collectively means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, as amended. C. "FCC" means Federal Communications Commission, or successor governmental entity thereto. D. "Franchise" shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Cable System. E. "Franchising Authority" or "Grantor" means the City Council of the City of Mount Pleasant or the lawful successor, transferee, or assignee thereof. F. "Grantee" means any person, firm, corporation, or other entity granted a franchise hereunder, or the lawful successor, transferee, or assignee thereof. G. "Gross Revenues" mean any and all revenue received by the Grantee from the operation of the Cable System to provide cable service in the Service Area, provided, however, that such phrase shall not include any fees or franchise 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. H. "Person" means an individual, partnership, association, joint stock company, trust, corporation or governmental entity. I. "Private Property" means all property, real, personal or mixed, owned by a private person, including property owned by a public utility not owned or operated by the City. J. "Property of the Grantee" means all property, real, personal or mixed, owned or used by the Grantee, however arising from or related to or connected with the franchise. K. "Public Property" means all property, real, personal or mixed, owned or used by the City, including property owned or used by a public utility owned or operated by the City. L. "Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way lane, public way, drive circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the service area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the system. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing and operating the Grantee's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System. M. "Service Area" means the present municipal boundaries of the Franchising Authority. N. "Subscriber" means a person or user of the system who lawfully receives communications and other services therefrom with the Grantee's express permission. O. "Cable System" shall be defined as the same definition used in the Cable Act, as amended. P. "Cable Operator" shall be defined as the same definition used in the Cable Act, as amended. Q. "Cable Service" shall be defined as the same definition used in the Cable Act, as amended. R. "City" means the City of Mount Pleasant and the geographical area within the corporate boundaries of the City. S. "Headend" shall mean the land, electronic processing equipment, antennas, tower, building, and other appurtenances normally associated with and located at the starting point of a cable system. T. "House drop" or "Subscriber Drop" means a cable that connects each building or home to the nearest feeder line of the cable network. U. "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve subscribers. In all cases, "Normal Business Hours" shall include some evening hours at least one night per week and/or some weekend hours. V. "Normal Operating Conditions" shall mean those service conditions which are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, strikes, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee 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. W. "Outlet" shall mean the point of connection of the cable or wire to a television. X. "Public Access Channel" means channel capacity designated for public use. Y. "Service Interruption" means the loss of video or audio on one or more channels. Z. "Service Tier" means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator. AA. "Shall" and "will" are mandatory; "may" is permissive. BB. "Technically Feasible" shall mean cable applications that can be completed using current technical, engineering or installation practices or cable applications that are financially practical such as where costs do not exceed two hundred (200) percent of a normal installation process. Section 2. Term of franchise. Cablevision VII, Inc., its successors and assignees are hereby granted a renewal of their nonexclusive right, franchise and authority for a period of ten (10) years to erect, maintain, and operate a Cable System in Mount Pleasant, Iowa, and to sell and supply individuals, firms and corporations within the corporate limits of the City of Mount Pleasant, cable service and other services in, along, among, upon, across, above, over, under, or in any manner connected with public ways within the service areas and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across, or along any public way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system, subject to the conditions and restrictions provided and subject to the Cable Franchise Regulatory Ordinance, passed and adopted on February 24, 1999 and all applicable law of the State of Iowa and United States of America. Section 3. Effective date of franchise. This Franchise and all rights thereunder shall become effective after final passage and publication and subject to Grantee's acceptance thereof. Within sixty (60) days after final passage and adoption of this franchise renewal, Cablevision IV, Ltd., shall file with the Clerk an acceptance in writing of this franchise renewal and pay all publication costs as required under the laws of the State of Iowa. Section 4. Compliance to cable franchise regulatory ordinance. The Grantee shall comply with all of the conditions and provisions of the Cable Franchise Regulatory Ordinance passed and adopted on February 24, 1999, unless an exemption or modification is so specified in this Franchise Agreement Ordinance. All exemptions specified shall apply to Cablevision VII, Inc. as Grantee and shall not apply to any new transferees, successors or assigns. The Grantee shall be exempted from compliance with the following sections of the Cable Franchise Regulatory Ordinance: 1. Section 2.5 APPLICATION FOR FRANCHISE 2. Section 4.5 ACCESS SUPPORT AND EQUIPMENT FEES 3. Section 8.10 SECURITY FUND 4. Section 8.11 FAITHFUL PERFORMANCE BOND Section 5. Franchise fee. A. Franchise fee payment. In consideration for the use of the streets and public ways of the city for the construction, operation, maintenance, and reconstruction of a system within the City, the Grantee shall pay to the Grantor an annual amount equal to five (5) percent of the Grantee's Gross Revenues as defined in Section 1 of this Franchise. This includes, but is not limited to, all subscriber' payments, installation fees, converter boxes, local advertising, leased access channels, and pay-per-view. This amount shall not include any taxes on cable service 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. B. Quarterly payments. Payment due to the Grantor under this provision shall be made quarterly at the City Clerk's office not later than thirty (30) days following March 31, June 30, September 30 and December 31 of each year. Any fee not paid when due shall bear interest at a rate of one and one-half percent (1 ½) percent per month from the date due. Each payment shall be accompanied with a detailed report, attached as Exhibit A, showing the basis for the computation, specific income categories, and such other relevant facts as may be required by the Grantor necessary to determine the accuracy of the franchise payment as specified in Section 5 C of this Franchise. The acceptance of any payment shall not be construed as an accord that the amount paid is, in fact, the correct amount; nor shall such acceptance of payment be construed as a release of any claim the Grantor may have for additional sums payable by the Grantee. All amounts paid shall be subject to audit and recomputation by the Grantor. C. Franchise fee audit. The Grantee will fully cooperate with a franchise fee audit performed by a professional firm that is chosen by the Grantor. The costs associated with the audit will be paid for by the Grantor, provided that the Grantee shall pay for the costs if the audit shows an underpayment of franchise fees in excess of five (5) percent or more. In addition, the Grantor and Grantee will design a mutually agreeable form to be used by the Grantee that reflects a breakout of the items used to calculate the franchise fees paid to the Grantor attached as Exhibit A. D. Franchise fee increases. The Grantor may request an increase in franchise fees at any time during the term of the franchise, equal to the maximum allowed by federal law. However, such request shall be made in writing and the Grantee will not be liable for said increase until proper notice, as defined by federal law, is given to its subscriber. Prior to making a final decision regarding an increase in franchise fees, the Grantor shall conduct a public hearing and shall grant an opportunity to the Grantee to discuss the proposed increase in franchise fee. Section 6. System design. A. As of the effective date of this franchise, the Grantee will make available a minimum of fifty-four (54) channels of programming. B. The expanded basic tier of service shall include additional types programming such as religious programming, educational programming, news and information, sporting events, children's programming, comedy programming, and public affairs programming. C. The system will be designed so as to be two-way capable, and will be constructed in a manner that will meet or exceed FCC specifications. D. The Grantee shall provide an emergency alert override system pursuant to FCC regulations. The system shall have remote wireless capability to activate the system. E. The Grantee shall provide modules, modulators and other such equipment necessary to activate an "upstream capability" to allow live broadcast upon completion of the system upgrade described in Section 7 of this Agreement on the education and government channel from the following locations Mount Pleasant City Hall, Mount Pleasant Community High School, and Henry County Courthouse. F. The Grantee will provide one channel to be used for educational and governmental access. The Grantee will activate this channel from the Mount Pleasant City Hall and purchase all of the necessary equipment and modulators to activate the return. A second educational/government channel shall be provided in accordance with Section 4.4 of the Regulatory Ordinance. Section 7. System upgrade. Grantee shall provide written notice to the Grantor verifying completion of the system upgrade. The upgraded Cable System shall be constructed in accordance with performance standards which meet or exceed FCC regulations and will utilize the fiber optics technology if necessary as determined by Grantee. The upgraded Cable System shall include or provide: A. Pay-per-view capabilities. B. Conversion. Subscribers shall not be charged by Grantee for conversion from the existing Cable System to the upgraded Cable System. In the event that special additional or customized equipment is requested by any subscriber or is required to provide service to any subscriber, Grantee may charge the subscriber for such equipment. Grantee will notify subscribers and the public in general of the cut over, using at least two of the following: bill stuffers; direct mail; news releases; radio announcements; CSR training; and community bulletin board announcements. C. Drop audit. During the term of the franchise, the Grantee shall inform Subscribers that Grantee shall promptly check the quality of their drop at no charge to the Subscriber if the Subscriber believes the signal quality and thereby ability to receive the service is substandard. Grantee shall provide a billing insert or billing message in subscriber's monthly billing a minimum of once every six months to inform customers of the service. Grantor shall assist Grantee in publicizing the drop replacement procedure on the access channel(s) provided in the Agreement. Upon notification by a Subscriber, Grantee shall test the Subscriber Drop and replace if the Drop does not meet the standards of the National Electric Code. Subscribers will not be charged for replacement of any drop unless substandard quality has been caused by the Subscriber's own negligence. The cable system shall be designed to allow each Subscriber drop to provide service to three (3) television outlets. D. Exhibit B. The provisions of Exhibit B referenced here and incorporated into this Agreement. E. Penalty. In the event the Grantee fails to complete the upgrade within two (2) years of the effective date of this Franchise Agreement according to the terms of this section, Grantee agrees to pay to the City one hundred fifty dollars ($150.00) per day for each day construction is not complete. Section 8. Capital equipment grant community programming. The Grantee will provide the City with a one-time capital grant of $10,000 for the purchase of capital equipment or facilities for use in conjunction with the PEG channel on October 1, 1999. The Grantee shall provide an additional one-time $5000 capital equipment grant June 30, 2001 or later provided; A. The City requests said additional grant no less than sixty (60) days prior to June 30,2001 or any subsequent later date; B. The City provides evidence of a minimum of PEG capital funding in the amount of $10,000 from the City's own funds which may include Franchise Fee revenue. Funding shall not include payments-in-kind to meet the matching requirement of this section. Section 9. Activated channels. Prior to the completion of the system upgrade, the Grantee shall provide a minimum of thirty-four (34) activated channels on the Cable System. Section 10. Service area. Grantee shall offer cable television service to all residents of the City which are located in the corporate limits of the City of Mount Pleasant within 1 year of the effective date of this Franchise. Normal installation costs for any customer shall apply to all residents where the cable drop is 150 feet or less from the Public Right-Of-Way easement closest to the potential customer's residence. The additional cost of delivering service exceeding 150 feet from the closest public right-of-way may be billed to the Subscriber. Business and industrial subscribers shall be subject to the Extensions of Service and Customer Charges for Extensions of Service Requirements set forth in Sections 11 and 12 of this Franchise Agreement. Grantee shall, at its expense and within one year of annexation, extend service to newly annexed areas to the City not then served by a Cable System where the average density is at least thirty (30) dwelling units per lineal mile of proposed trunk and feeder cable route. For purposes of this Section of the Agreement, mile measurements shall originate from drop point of the last subscriber closest to the potential new subscriber area. Section 11. Required extensions of service. Whenever the Grantee shall receive a request for service from at least 15 residences within 1320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its Cable System to such Customers at no cost to said Customers for Cable System extension, other than the usual connection fees for all Customers; provided that such extension is Technically Feasible, and if it will not adversely affect the operation, financial condition, or market development of the Cable System, or as provided for under Section 12 of this Franchise. Section 12. Customer charges for extensions of service. No Customer shall be refused service arbitrarily. However, for unusual circumstances, such as a Customer's request to locate the House Drop underground, existence of more than 150 feet of distance from distribution cable to connection of service to Customers, or a density of less than 15 residences and/or businesses per 1320 cable-bearing strand feet of trunk or distribution cable, service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor, and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Grantee and Customers in the area in which service may be expanded, the Grantee will contribute an amount equal to the construction necessary to extend the plant and install service, multiplied by a fraction whose numerator equals the actual number of residences and/or businesses per 1320 cable-bearing strand feet of its trunks or distribution cable, and whose denominator equals 15 residences and/or businesses. Customers who request service hereunder will bear the remainder of the construction and other costs on a pro rata basis. The Grantee may require that the payment of the capital contribution in aid of construction borne by such potential Customers be paid in advance. This Section shall not apply to potential residential Subscribers who desire service and are located in the city limits as defined as of the date of adoption of the agreement as set forth in Section 10 of the Agreement. [An example of the application of Section 12 of the Agreement would be a situation wherein a business requested service in an unserved area that has a density of 10 residences and/or businesses per 1320 feet and an estimated cost to deliver service of $5,000.00. The Grantee would therefore contribute $5,000 multiplied by 10/15 or $3,333.34 and the business would contribute $1,666.34 under this method. The intent of the section is to increase the Grantee contribution and reduce the business contribution as density increases.] Section 13. Authority to trim trees. The Grantee shall have the authority under the supervision and direction of the Grantor to trim trees or other natural growth overhanging any of its Cable System in the street or alley right-of-way so as to prevent branches from coming in contact with the Grantee's wires, cables, or other equipment. Section 14. Temporary drops. Temporary underground drops will be buried within forty-five (45) days of installation, weather permitting. In the event Grantee fails to bury drops within forty-five (45) days, the Grantor shall notify the Grantee of violation of this Section in accordance with the Enforcement and Termination of Franchise Section of this Agreement. In the event that the Grantee fails to bury any drops within the forty-five-day period, the Grantee shall provide basic and expanded basic cable service without charge to the affected subscriber from the last date that the drop was to have been buried to the actual date that it is buried. All subscriber drops and house drops that are located underground shall comply with National Electric Code (NEC) standards, a minimum of six (6) inches in depth. Section 15. Local office. A business and service office, conveniently located within the City, shall be open during normal business hours, and adequately staffed to accept subscriber payments and respond to service requests and complaints. In lieu of a local office, the Grantee may provide an agent of the Grantee to receive subscriber payments that shall be located in the Service Area on a site readily accessible to the general public. The current location at the Mount Pleasant Chamber of Commerce is deemed to be the preferred location. Section 16. Insurance coverage and notifications. The Grantee shall maintain insurance in such amounts and kinds of coverages as may be specified by the Grantor in the Franchise Agreement. Such coverages may be reasonably adjusted by the Grantor with ninety-day notification, provided that the Grantor demonstrates the need for increases in coverages. The Grantee shall maintain such insurance with insurance underwriters authorized to do business in the State of Iowa. All policies shall name the Grantor, its employees, servants, agents, and officers as additional insured parties. Each policy shall provide that it may not be canceled nor the amount of coverage altered until thirty (30) days after receipt by the City Clerk of a registered mail notice of such intent to cancel or alter coverage. The Grantee shall provide a certificate of insurance designating the Grantor as an additional insured. The Grantee shall maintain and provide to the City Clerk proof of Public Liability Insurance for not less than the following amounts: $2,000,000 - Any 1 Occurrence, Bodily Injury or Property Damage $2,000,000 - Products/Completed Operations Annual Aggregate Liability $2,000,000 - General Aggregate Section 17. Franchise nonexclusive. Consistent with the requirements of the Ordinance, this Franchise shall not be construed as any limitation upon the right of the Grantor to grant to other persons rights, privileges, or authorities similar to the rights, privileges, and authorities herein set forth, in the same or other streets, alleys, or other Public Ways or public places. The Grantor specifically reserves the right to grant at any time during the term of this Franchise or renewal thereof, if any, such additional Franchises for a Cable System as it deems appropriate. Section 18. Police powers. In accepting this Franchise, Grantee acknowledges that its rights hereunder are subject to the lawful police powers of the Grantor to adopt and enforce general ordinances necessary for the safety and welfare of the public and it agrees to comply with all applicable general laws and ordinances enacted by the Grantor pursuant to such powers. Section 19. City's right to purchase system. The City shall be entitled to a right of first refusal of any bona fide offer to purchase the Cable System made to Grantee if the Cable System is being sold separately and such sale is not linked in any way to the sale of any other cable system in a separate franchise area. Bona fide offer as used in this section means a written offer which has been accepted by Grantee subject to the City's rights under this Agreement. The City shall notify Grantee of its interest in purchasing the Cable System within thirty (30) days of the City's receipt from Grantee of a copy of the written bona fide offer. Payment shall be made upon closing in readily available funds within one hundred twenty (120) days of the City's receipt from Grantee of a copy of the written bona fide offer. The price to be paid by the City shall be: (A) The fair market value of the cable System or the actual price which has been negotiated at arms length between the parties, whichever is greater or; (B) The amount offered in the bona fide offer if only the Mount Pleasant Cable System is purchased. Section 20. Transfer of franchise. The Grantee's right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity, controlling, controlled by, or under common control with the Grantee, without the prior consent of the Franchising Authority. Such consent not to be unreasonably withheld. No approval shall be required from Grantor for the change of control of the parent company of the Grantee to AT&T Corporation. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise in order to secure indebtedness. Within 30 days of receiving the request for transfer, the Franchising Authority shall in accordance with FCC rules and regulations, notify the Grantee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. Section 21. Force majeure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee's ability to anticipate and control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee's cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. Section 22. 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 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 23. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Franchise Agreement Ordinance shall be held invalid or unenforceable or unconstitutional, the remaining provisions shall remain in full force and effect. Section 24. Enforcement. A. Notice of violation. In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, it shall notify the Grantee in writing of the exact nature of the alleged noncompliance. B. Grantee's right to cure or respond. The Grantee shall have 30 days from receipt of the notice described in Section 24 A: (1) to respond to the Franchising Authority, contesting the assertion of noncompliance, or (2) to cure such default, or (3) in the event that, by the nature of default, such default cannot be cured within the 30-day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed. C. Public hearing. In the event that the Grantee fails to respond to the notice described in Section 24 A pursuant to the procedures set forth in Section 24 B, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to 24 B(3) above, the Franchising Authority shall schedule a public hearing to investigate the default. The Franchising Authority shall notify the Grantee in writing of the time and place of such meeting no less than five business days in advance and provide the Grantee with an opportunity to be heard. D. Enforcement. In the event the Franchising Authority, after such public hearing, determines that the Grantee is in default of any provision of the franchise, the Franchising Authority, subject to applicable Federal law, may: 1. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; 2. Commence an action at law for monetary damages or seek other equitable relief; or 3. In the case of a substantial default of a material provision of the franchise, declare the Franchise Agreement to be revoked in accordance with the procedures outlined in this section. The Franchising Authority shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth the exact nature of the noncompliance. The Grantee shall have 30 days from such notice to object in writing and to state its reasons for such objection. In the event the Franchising Authority has not received a response satisfactory from the Grantee, it may then seek termination of the Franchise at a public meeting. The Franchising Authority shall cause to be served upon the Grantee, at least five (5) days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination. At the designated meeting, the Franchising Authority shall give the Grantee an opportunity to state its position on the matter, after which it shall determine whether or not the Franchise shall be revoked. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Franchising Authority "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 120 days of the issuance of the determination of the Franchising Authority. The Franchising Authority may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Franchising Authority's rights under the franchise in lieu of revocation of the franchise. Section 25. Termination of franchise. A. Grounds for revocation. The Grantor reserves the right to revoke this Franchise and rescind all rights and privileges associated with the Franchise in the following circumstances: • If the Grantee should default in the performance of any of its material obligations under this Ordinance or the Franchise and fails to cure the default within sixty (60) days after receipt of written notice of the default from the Grantor, or such longer time as specified by the Grantor. • If a petition is filed by or against the Grantee under the Bankruptcy Act or any other insolvency or creditors' rights law, state or federal, and the Grantee shall fail to have it dismissed. • If a receiver, trustee or liquidator of the Grantee is applied for or appointed for all or part of the Grantee's assets. • If the Grantee makes an assignment for the benefit of creditors. • If the Grantee violates any order or ruling of any State or Federal regulatory body having jurisdiction over the Grantee, unless the Grantee or any party similarly affected is lawfully contesting the legality or applicability of such order or ruling and has received a stay from a Court of appropriate jurisdiction. • If the Grantee evades any of the provisions of this Ordinance or the Franchise Agreement. • If the Grantee practices any intentional fraud or deceit upon the Grantor or cable subscribers. • If the Grantee materially misrepresents facts in the application for a Franchise. • If the Grantee ceases to provide services over the cable system for seven (7) consecutive days for any reason within the control of the Grantee. B. Restoration of property. In removing its plant, structures and equipment, the Grantee shall refill at its own expense any excavation that shall be made by it and shall leave all Public Ways and places in as good condition as that prevailing prior to the Grantee's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. The Grantor shall inspect and approve the condition of the Public Ways and public places and cables, wires, attachments and poles after removal. Liability insurance indemnity provided in Section 16 shall continue in full force and effect during the period of removal. C. Reimbursement of costs pursuant to subsections A and B of this section. In the event of a failure by the Grantee to complete any work as required above or any work required by law or ordinance within the time established and to the satisfaction of the Grantor, the City may cause such work to be done and the Grantee shall reimburse the Grantor the costs thereof within thirty (30) days after receipt of an itemized list of such costs or the Grantor may recover such costs as provided in Section 28. Section 26. Indemnification. The Grantee shall defend, indemnify, protect, and hold harmless the Grantor from and against any and all liability, losses, and damage to property or bodily injury or death to any person, including payments made under workmen's compensation laws, which may arise out of or be caused by the erection, construction, replacement, removal, maintenance, or operation of Grantee's Cable System and caused by any act or failure to act on the part of the Grantee, its agents, officers, servants, or employees. The Grantor shall give the Grantee written notice of its obligation to indemnify. Section 27. Security fund: letter of credit. In addition to any other right of enforcement provided in the City's ordinances, the Grantee shall establish the following security to ensure performance of the Grantee. A. Amount. Within thirty (30) days of the effective date, Grantee shall establish and provide to Grantor, an irrevocable and unconditional letter of credit (LOC) as security for the faithful performance by Grantee of all of its obligations under this Agreement. The LOC shall be ten thousand dollars ($10,000). B. Use. Grantor may draw on the LOC to ensure the Grantee's faithful performance of and compliance with this Agreement provided that Grantee has received prior written notice of determination of breach of this Agreement and thirty (30) days opportunity to cure, and further provided that if such draw is for the purpose of enforcing any liquidated damages obligations of this Agreement, all provisions of Section 24 of this Agreement have been met and no stay has been granted. Grantor's right to draw on the LOC hereunder may include, by way of example and not limitation, if Grantee fails to comply with any provisions of this Agreement which failure Grantor determines can be remedied by expenditure from the LOC. City shall notify Grantee of the amount and date of withdrawal. Grantee's recourse, in the event Grantor believes any draw upon the LOC is improper, shall be through legal action even after the LOC has been drawn upon. If Grantor's action or taking is found to be improper by any court of competent jurisdiction, Grantee shall be entitled to a refund of any improperly withdrawn funds plus interest and/or any other specific performance which such court or agency shall order. C. Restoration of fund. Within fifteen (15) calendar days after City gives Grantee written notice that the LOC has been drawn upon, Grantee must take all steps required to restore the LOC to the original amount. D. Return of fund. Grantee's obligation to maintain the LOC shall survive the termination of the Franchise, until all obligations to the City have been satisfied. However, if the Franchise terminates for any reason, and the Grantee ceased to provide service in the City, and the City has determined that Grantee has fulfilled its obligations and is not in default, the Grantee's obligations shall also terminate. Section 28. Bonding requirements. Within thirty (30) days prior to the commencement of the upgrade, the Grantee shall file with the Clerk of the City a Performance Bond in the amount of one hundred thousand dollars ($100,000) in favor of the City. The performance bond shall be maintained throughout the period of the upgrade of the Cable System. The performance bond shall provide that the bond may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such intent to cancel or not to renew. In the event that the Grantee fails to comply with any applicable law, ordinance or regulation governing the upgrade of the Cable System, or fails to observe, fulfill and perform each term and condition of the franchise pertaining to such upgrade, then after due notice to the Grantee with an opportunity to cure such deficiencies, there shall be recoverable from the principal and the surety of the bond, any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification or cost of removal of any property of the Grantee up to the full amount of the performance bond. The City shall, upon completion of the upgrade of the Cable System, waive and extinguish the requirement of the performance bond. Upon completion of the upgrade and the removal of the performance bond, The Grantee shall provide a Corporate Guarantee in Lieu of a Bond executed by Heritage Investments, in the amount of $100,000 to secure the faithful performance by the Grantee of its obligations under this Franchise Agreement. This guarantee, however, shall not limit the liability of the Grantee for any failure to perform its obligations under this Franchise Agreement. Section 29. Notices. Unless expressly otherwise agreed between the parties, every notice or response required by this Franchise to be service upon the Franchising Authority or the Grantee shall be in writing, and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered mail, postage prepaid. The notices or responses to the Franchising Authority shall be addressed as follows:
City Clerk
The notice or responses to the Grantee shall be addressed as follows:
Cablevision VII, Inc.
with a copy to:
TCI Great Lakes Inc.
TCI of Iowa
The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other. Section 30. Entire agreement. This Franchise constitutes the entire agreement between the parties and supersedes any and all previous agreements of whatever nature between the parties with respect to the subject matter. This Franchise Agreement shall not be changed, amended, or supplemented except by an agreement in writing signed by both parties. In the event of a conflict between this Franchise Agreement and the Ordinance or any other enabling ordinance, law or regulation in effect at the time of this Agreement or thereafter, the terms and conditions of this agreement shall be controlling, unless otherwise contrary to State or Federal law. Franchising Authority may, from time to time, amend the Ordinance pursuant to its lawful police powers; provided, however, such amendments shall not serve to impair the rights nor increase the obligations of the Grantee pursuant to this Franchise except if any said amendments are required by any Federal or State law. Section 31. Adoption. This franchise renewal was awarded by the City Council on February 17, 1999 and was published as required on March 3, 1999. Therefore, this franchise renewal shall expire on April 1, 2009. Passed, adopted and effective this 1st day of April, 1999, subject to applicable federal, state and local law. The Grantee shall file with the Grantor the following: a statement of unconditional acceptance of the franchise; a certificate of insurance as set forth in Section 16; and reimbursement to the Grantor for costs of publication of the Franchise Agreement. IN WITNESS WHEREOF, the parties hereto have entered into this Franchise Agreement on April 1, 1999.
/s/
Stanley E. Hill
/s/
Florence Olomon
EXHIBIT A
EXHIBIT B - SYSTEM UPGRADE 1. System. The parties understand and agree that Grantee shall construct a cable system which delivers cable television signal capacity of 78 channels utilizing a fiber to the node design if necessary as determined by the Grantee. Grantee will activate an upstream path, as necessary to accommodate the return sites specified in the Franchise Agreement upon sixty days notice from the City and upon the completion of the rebuild. Costs for such upstream activation will be treated in the same manner as other rebuild costs. The system shall be operated in accordance with performance standards which meet or exceed FCC regulations. 2. Construction oversight. Grantee will inspect one hundred (100) percent of all fiber and coaxial cable to insure that it meets the specifications of the Ordinance and this Franchise. 3. Compliance with applicable law. In constructing, operating and maintaining the system, Grantee shall at all times comply with the Ordinance and all applicable laws and regulations. 4. Equipment quality. Equipment used for the distribution system, headend and reception facilities shall be good an durable quality and be serviced and repaired on a regular basis. 5. Emergency alert. Grantee shall continue to provide an all-channel audio-only emergency alert system for use by the City. Emergency messages can be initiated from any touch-tone phone with an access code. The emergency alert service shall be upgraded throughout the Franchise term as set forth in FCC rules, regulations, or guidelines. 6. Technical standards. The cable communications system permitted to be operated hereunder shall be operated in conformance with the Ordinance, this Franchise, and FCC rules and regulations (Sections 76.601 and 76.605). At such time as the FCC does not regulate technical standards, Grantee will continue to comply with the FCC standards which were in effect on the effective date of this Franchise. 7. [Programming.] Upon completion of the system upgrade, Grantee shall provide a minimum of fifty-four (54) activated channels of programming which shall include religious programming, educational programming, news and information, sporting events, children's programming, comedy programming and public affairs programming. |
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