HomeMy WebLinkAboutCouncil Resolution 1216RESOLUTION NO. I (. lv
A RESOLUTION AUTHORIZING THE EXECUTION OF A NONEXCLUSIVE
CABLE TELEVISION FRANCHISE AGREEMENT WITH
CHARTER COMMUNICATIONS, INC.
WHEREAS, Charter Communications, Inc., is duly authorized to operate and maintain a
cable communications system in the City of Central Point; and,
WHEREAS, Charter Communications wishes to continue to provide Cable Service to the
Citizens of Central Point and has requested a renewal cable Franchise in order to do so;
and
WHEREAS, the City has determined that granting of a franchise on the terms set forth is
in the best interest of the public.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CENTRAL POINT, OREGON, that the Mayor is hereby authorized and directed to
execute, on behalf of the City of Central Point, the Franchise Agreement between Charter
Communications Incorporated and the City of Central Point, in the form attached as
Exhibit "A" by this reference incorporated for a term extending from July 1, 2009 to June
30, 2014.
Passed by the Council and signed by me in authentication of its passage this
L ~ ~' day of June, 2009.
C~~~~~
Mayor Hank Williams
A T:
ity Representative
Approved by me this ~~ ~ day of June, 2009.
Mayor Hank Williams
CITY OF CENTRAL POINT, OREGON
NONEXCLUSIVE,
CABLE TELEVISION FRANCHISE
with
Falcon Cable Systems Company II, L.P.,
I/k/a Charter Communications
TABLE OF CONTENTS
Page No.
1 DEFINITIONS ..................................................................................................................1
1.1 Definitions in Cable Act ..............................................................................1
1.2 Council .......................................................................................................1
1.3 Droa ...........................................................................................................1
1.4 Effective Date ............................................................................................ 1
1.5 FCC ...........................................................................................................1
1.6 Franchise ................................................................................................... 1
1.7 Grantee ......................................................................................................1
1.8 Grantor ....................................................'...................................................1
1.9 Gross Revenues ........................................................................................ 2
1.10 Person ....................................................................................................... 2
1.11 Public School ............................................................................................. 2
1 .12 Public Wavs ........................................... ....................................................2
1 .13 Service Area .......................................... .................................................... 2
1 .14 State ...................................................... .................................................... 2
1 .15 Subscriber .............................................. ....................................................2
2 GRANT OF RIGHTS ........................................................................................................2
2.1 Permission Granted ................................................................................... 2
2.2 Nonexclusive ..............................................................................................3
2.3 Service/Line-Extension .............................................................................. 3
2.4 Emergencies ..............................................................................................3
2.5 Emergency Alert Svstem ........................................................................... 4
2.6 Compliance with Applicable Law ............................................................... 4
2.7 Construction Codes and Permits ............................................................... 4
2.8 Backup Power ............................................................................................4
3 PUBLIC WAYS ................................................................................................................ 4
3.1 No Burden on Public Wavs ........................................................................ 4
3.2 Minimum Interference ................................................................................ 4
3.3 Restoration of Propertv .............................................................................. 5
3.4 Relocation of Facilities ............................................................................... 5
3.5 Relocation for a Third Partv ....................................................................... 5
3.6 Reimbursement of Costs ........................................................................... 5
3.7 Emeraencv Notification .............................................................................. 5
3.8 Underground Facilities ............................:.................................................. 5
3.9 New Developments .................................................................................... 6
3.10 Annexation ................................................................................................. 6
3.11 Vacation ..................................................................................................... 6
3.12 Discontinuance and Removal of the Cable System ................................... 6
3.13 Underground Street Crossing .................................................................... 7
3.14 Tree Trimming ........................................................................................... 7
3.15 Maas .........................................................:................................................ 7
4 CUSTOMER SERVICE ................................................................................................... 7
4.1 Customer Service Standards ..................................................................... 7
4.2 Free Service .............................................................................................. 7
4.3 Access to Service ...................................................................................... 8
4.4 Programming/Lockout ................................................................................ 8
4.5 Blockino ..................................................................................................... 8
4.6 Phone ........................................................................................................ S
4.7 Continuity of Service .................................................................................. 8
4.8 Loa of Complaints ...................................................................................... 8
4.9 Privacy and Monitoring .............................................................................. 8
4.10 Subscriber Information and Inspection of Records .................................... 9
4.11 FCC Technical Standards .......................................................................... 9
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5 PEG ACCESS ................................................................................................................. 9
5.1 PEG Channels ........................................................................................... 9
6 INDEMNITY AND INSURANCE ....................................................................................10
6.1 Indemnification .........................................................................................10
6.2 Insurance .................................................................................................11
6.3 Additional Insured/Claims Made Basis ....................................................11
7 FEES AND PAYMENTS ................................................................................................11
7.1 Franchise Fee ..........................................................................................11
7.2 Other Pavments .......................................................................................11
7.3 Interest .....................................................................................................11
8 TERM .............................................................................................................................12
8.1 Term .........................................................................................................12
8.2 Cable Svstem Franchise Reouired ...........................................................12
8.3 Procedures for Renewal ........................................................................... 12
8.4 Equal Protection .......................................................................................12
9 TRANSFERS, OWNERSHIP AND CONTROL .............................................................13
9.1 Transfer/Consent Reauired ..................................................................... 13
10 NONCOMPLIANCE .......................................................................................................13
10.1 Noncomoliance ........................................................................................13
10.2 Uncured Noncomoliance .........................:...............................................13
10.3 Public Hearina .........................................................................................14
10.4 Enforcement ............................................................................................ 14
11 REMEDIES ....................................................................................................................14
11.1 Remedies .................................................................................................14
11.2 Revocation ...............................................................................................14
11.3 Remedies Not Exclusive ..........................................................................15
11.4 Good Faith Intention ................................................................................15
12 GENERAUMISCELLANEOUS PROVISIONS ..............................................................15
12.1 Entire Franchise ...............................................................................:.......15
12.2 Notices .....................................................................................................15
12.3 Governing Law .........................................................................................16
12.4 Waiver of Comaliance ..............................................................................16
12.5 Severabilitv ..............................................................................................16
12.6 Effective Date .......................................................................................... 16
12.7 Caations ...................................................................................................16
12.8 Conflicts ...................................................................................................16
12.9 Subsequent Action/Modification ..............................................................16
12.10 Non-Waiver. Preemation .........................................................................17
12.11 Force Maieure ..........................................................................................17
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12.12 Action of the Parties .................................................................................17
12.13 Public Notice ............................................................................................ 17
EXECUTION
PAGE ................................................................................................................18
EXHIBIT A LIST OF PUBLIC BUILDINGS ..........................................................................19
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THIS FRANCHISE is made and entered into by and between the City of Central Point, Oregon, a municipal
corporation duly organized under the laws of the State of Oregon (hereinafter called "Grantor) and Falcon Cable
Systems Company II, L.P.,1/k/a Charter Communications (hereinafter called "Grantee).
WITNESSETH
WHEREAS, Grantee wishes to continue to provide Cable Service in the Service Area and has requested a
renewal cable franchise in order to do same; and
WHEREAS, Grantor is authorized to grant one or more non-exclusive franchises for the provision of Cable
Service within the Service Area by means of a Cable System; and
WHEREAS, Grantor has reviewed Grantee's request and has considered the terms and conditions of
Grantor's current cable franchise dated June 22, ] 995; and
WHEREAS, Grantor has determined that granting of a franchise on the terms set forth herein is in the public
interest and in the interest of its residents and Grantor finds that the Grantee has substantially complied with the
material terms of the current franchise under applicable laws, and that the financial, legal and technical ability of
the Grantee is sufficient to provide services, facilities and equipment necessary to meet the future cable related
needs and interests of the community; and
WHEREAS, the Grantor and Grantee have complied with all Federal and State-mandated procedural and
substantive requirements pertinent to this franchise renewal; and
WHEREAS, Grantor has afforded the public adequate notice and an opportunity for comment on this renewal
franchise
NOW, THEREFORE, in consideration of,the mutual covenants and promises herein contained, the parties
hereto agree as follows:
1. DEFINITIONS.
l .1 "Basic Tier", "Cable Services," "Cable System," "Cable Operator" and "Basic Cable Service"
shall be defined as set forth in the Cable Act.
1.2 "Council" shall mean the government body of the Grantor.
] .3 "Drop" shall mean the cable or wire that connects the distribution portion of the Cable System
to a Subscriber's premises.
1.4 "Effective Date" shall have the meaning set forth in Section ] 2.6.
1.5 "FCC" shall mean the Federal Cormunications Commission and any successor governmental
entity thereto.
1.6 "Franchise" shall mean the non-exclusive rights granted pursuant to this franchise to construct
and operate a Cable System along the Public Ways within all or a specified area in the Service Area.
1.7 "Grantee" shall have the meaning set forth in the introduction to this Franchise.
1.8 "Grantor" shall have the meaning set forth in the introduction to this Franchise.
1.9 "Gross Revenues" shall mean any and all revenue, determined in accordance with generally
accepted accounting principles, received by Grantee from the operation of the Cable System to provide Cable
Services within the Service Area, provided however that such phrase shall not include: (l) any taxes, fee or
assessment of genera] applicability collected by the Grantee from Subscribers for pass-through to a government
agency, including the FCC User Fee; (2) any unrecovered bad debt; (3) credits, refunds and deposits paid to
Subscribers; (4) any exclusions available under applicable State law; and (5) any PEG or I-Net amounts recovered
from Subscribers, if applicable.
1.10 "Person" shall mean an individual, partnership, association, organization, corporation, trust or
government entity or any lawful successor, transferee or assignee of said individual, partnership, association,
organization, corporation, trust or government entity.
1.11 "Public School" shall mean any school at any educational level operated within the Service
Area by any accredited public school system, but limited to, elementary, junior high school or high school.
1.12 "Public Ways" shall mean all publicrights-of--way, streets, roadways, highways bridges, land
paths, boulevards, avenues, lanes, sidewalks, circles, drives, easements, and alleys which have been dedicated to the
public and other similar public ways and extensions and additions thereto, including but not limited to public utility
easements, dedicated utility strips, or rights of way dedicated for compatible uses now or hereafter held by the
Grantor in the Service Area, which shall entitle the Grantee to the use thereof for the purpose ofinstalling, operating,
repairing and maintaining the Cable System. "Public Ways" shall also include public rights-of--way, streets,
roadways highways, bridges, land paths, boulevards, avenues, lanes, sidewalks, circles, drives, easements, and
alleys and other similar public ways and extensions and additions thereto, including but not limited to public utility
easements, dedicated utility strips, or rights of way dedicated for compatible uses now or hereafter held by the
Grantor in the Service Area, which shall entitle the Grantee to the use thereof for the purpose ofinstalling, operating,
repairing and maintaining the Cable System and which have not been dedicated to the public to the extent that
despite such non-dedication City has the ability to grant the rights set forth herein.
1.13 "Service Area" shall mean the geographic boundaries of the City of Central Point, Oregon; the
entire area within the corporate limits ofthe City of Central Point, Oregon and shall include any additions thereto by
annexation or other legal means, subject to the exception set forth in Section 2.3 herein.
1.14 "State" shall mean the State of Oregon
1.15 "Subscriber" shall mean any person lawfully receiving Cable Services from Grantee in the
Service Area.
2. GRANT OF RIGHTS
2.1 Permission Granted. Subject to all the terms and conditions contained in this Franchise, Grantor
hereby grants Grantee anon-exclusive Franchise which authorizes the Grantee to erect, construct, install, and
maintain in, upon, along, across, above and over and under the Public Ways a Cable System to provide Cable
Services in the Service Area and to operate and maintain a Cable System in such Service Area. 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.
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2.2 Nonexclusive Right to Provide Cable Service and Grantor's Police Powers. This Franchise and all
rights granted hereunder are nonexclusive. Grantor reserves the right to gant such other and future franchises as it
deems appropriate. This Franchise does not establish any priority for the use of the Public Ways by Grantee or by
any present or future franchisees or other permit holders. In the event of any dispute as to the priority of use of the
Public Ways, the first priority shall be to the public generally, the second priority to Grantor in the performance of its
various functions, and thereafter, as between franchisees and other permit holders, as determined by the Grantor in
the exercise of its generally applicable police powers reserved to and conferred on it by the State of Oregon. The
Grantee agrees to comply with the terms of any lawfully adopted generally applicable local ordinance, to the extent
that the provisions of the ordinance do not have the effect oflimiting the benefits or expanding the obligations ofthe
Grantee that are ganted by this Franchise. This Franchise is a contract and except as to those changes which are the
result of the Grantor's lawful exercise of its general police power, the Grantor may not take any unilateral action
which materially changes the explicit mutual promises in this contract. Any changes to this Franchise must be made
in writing signed by the Grantee and the Grantor. In the event of any conflict between this Franchise and any
Grantor ordinance or regulation, this Franchise will prevail.
2.3 Service/Line-Extension.
2.3.1 Whenever the Grantee receives a request for service by a potential Subscriber and there is a
minimum density of at least thirty (30) dwelling units per linear strand mile (excluding any home
subscribing to any satellite service) as measured from Grantee's closest trunk line that is actively
delivering Cable Service as of the date of such request for service and provided such residence is
within one hundred twenty five feet (125') of Grantee's feeder cable, Cable Service will be provided
to the Subscriber at Grantee's published rate card for standard installations. Notwithstanding the
foregoing, the Grantee shall have the right, but not the obligation, to extend the Cable System into
any portion of the Service Area where another operator is providing Cable Service or into any
annexed area that is not contiguous to the present Service Area of the Grantee. Grantee shall not be
obligated to provide service to any azea where the provision of such service would be financially or
technically infeasible.
2.3.2 No Subscriber shall be refused service azbitrarily. However, if an area does not meet the
density requirements of subsection 2.3.1 hereinabove, the Grantee shall only be required to extend
the Cable System to Subscribers in that area if the Subscribers are willing to share the capital costs of
extending the Cable System. The Grantee may require that payment of the capital contribution in aid
of construction borne by such potential Subscribers be paid in advance. Subscribers shall also be
responsible for any standard/non-standard installafion chazges to extend the Cable System from the
tap to the residence.
2.4 Emergencies. Grantor may as reasonably necessary remove the Cable System in the case of fire,
disaster, or other emergencies threatening life or property. In such event, neither Grantor nor any agent, contractor
or employee thereof shall be liable to Grantee or its customers or third parties for any damages caused them or the
Cable System, such as for, or in connection with, protecting, breaking through, moving, removal, altering, tearing
down, or relocating any part of the Cable System, unless such acts amount to Boss negligence on the part of the
Grantor.
2.5 Emergency Alert System. Grantee shall provide without chazge to Grantor an emergency alert system
("Emergency Alert System") in accordance with applicable Federal and State rules and regulations.
2.6 Compliance with Applicable Law. In constructing, maintaining, and operating the Cable System,
Grantor shall act in a good and workmanlike manner, in accordance with good engineering practices and all work
shall be performed by experienced maintenance and construction personnel. The Cable System shall be designed,
constructed and operated so as to meet those technical standards adopted by the FCC relating to Cable Systems
contained in Part 76 of the FCC's rules and regulations, from time to time, amended. The Grantee shall at all times
employ ordinary care and shall use commonly accepted methods and devices preventing failwes and accidents
which aze likely to cause damage. Grantor shall comply in all respects with all applicable codes, including the
National Electrical Safety Code (latest edition), the National Electric Code (latest edition), and all applicable
Federal, State, and generally applicable local laws. Grantee shall test the Cable System consistent with FCC
regulations.
2.7 Construction Codes and Permits. Grantee shall obtain all legally required permits before
commencing any work requiring a permit, including the opening or distwbance of any Public Way within the
Service Area. The Grantor shall cooperate with the Grantee in granting any permits required, providing such grant
and subsequent construction by the Grantee shall not unduly interfere with the use of such Public Way. The Grantee
shall adhere to all building and zoning codes currently or hereafter applicable to construction, operation or
maintenance of the Cable System in the Service Area, provided that such codes are of general applicability and such
codes aze uniformly and consistently applied by the Grantor as to other public utility companies and other entities
operating in the Service Area.
2.8 Backup Power. Grantee shall provide emergency power sowces or auxiliary power to inswe
continued operation of the Cable System in the event of a power failure.
3. PUBLIC WAYS
3.1 No Burden on Public Wavs. Grantee shall not erect, install, construct, repair, replace or maintain its
Cable System in such a fashion as to unduly burden the present or futwe use of the Public W ays. Grantee shall have
the right to utilize existing poles, conduits and other facilities whenever possible and shall not construct or install
any new, different, or additional poles, conduits, or other facilities on public property without obtaining all legally
required permits of the Grantor.
3.2 Minimum Interference. The Cable System shall be erected and maintained by Grantee so as to cause
minimum interference with the use of the Public Ways and with the rights or reasonable convenience of property
owners who adjoin any ofhe Public Ways. The Grantee shall at all times employ ordinary care and use commonly
accepted methods and devices for preventing failwes and accidents which are likely to cause damage, injuries, or
nuisances to the public. Suitable barricades, flags, lights, Hazes or other devices shall be used at such times and
places as aze reasonably required for the safety of all members of the public. Any poles or other fixtures placed in
any Public Way by the Grantee shall be placed in such a manner as not to interfere with the usual travel on such
Public Way.
3.2.1 Grantee shall move, at the request of the property owner or any person holding a lawful
permit issued by Grantor and upon receipt of reasonable advance written notice to be received by
Grantee no less than ten (l0) business days prior to removal, any pedestals that are placed so as to
obstruct or significantly impair access to property, whether public or private, so as to remove the
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obstruction. )n the event any pedestal becomes an obstruction by virtue of property owner's change
in use of his property, then in such case the Grantee shall remove the obstruction with the cost to be
paid by the requesting property owner.
3.3 Restoration of Property. Grantee shall restore at its sole cost and expense, any private property or
portion of the Public Ways that is in any way disturbed by the construction, operation, maintenance or removal of
the Cable System to a condition reasonably comparable to the condition which existed prior to the disturbance. Such
a restoration shall start promptly upon Grantee becoming awaze of the problem in question.
3.3.1 In the event Grantee fails to restore property Grantee shall promptly reimburse Grantor for
the wst to Grantor for repairing any municipal property harmed by Grantee should Grantor choose to
conduct such repairs at its expense and in the event Grantee fails to restore said property after
receiving notice of repair. Grantee shall reimburse Grantor only after prior written notice of the
manner and the itemized cost of repair is given to Grantee.
3.4 Relocation of Facilities. Grantee shall at its own cost and expense and upon reasonable advanced
written notice, to be not less that ten (]0) business days, protect, support, disconnect or remove from the Public
Ways any portion of the Cable System when lawfully required to do so by the Grantor pursuant to its generally
applicable police powers and due to street or other public excavation, construction, repair, grading, re-grading or
traffic conditions; the installation of sewers, drains, water pipes, or municipally-owned facilities of any kind; or the
vacation, construction or relocation of streets or any other type of structure or improvement of a public agency or
any other type of public project or improvement necessity. Grantee shall be responsible for any costs associated
with these obligations to the same extent all other users of the Grantor's Public Ways aze responsible for the costs
related to the relocation of their facilities.
3.5 Relocation for a Third Party. The Grantee shall, on the request of any person holding a lawful perrnit
issued by the Grantor, protect, support, raise, lower, temporarily disconnect, relocate in or remove from the Public
Way, as necessary, any property of the Grantee, provided that the expense of such is paid by any such Person
benefiting from the relocation and the Grantee is given reasonable advance written notice to prepare for such
changes. The Grantee may require such payment in advance. For purposes of this subsection, `7easonable advance
written notice" shall be no less than ten (] 0) business days in the event of a temporary relocation and no less than
one hundred twenty days (120) for a permanent relocation.
3.6 Reimbursement of Costs. If funds are available to any Person using the Public Ways forthe purpose
of defraying the cost of any ofthe foregoing relocation, the Grantor shall reimburse the Grantee in the same manner
in which other Person(s) affected by the requirement aze reimbursed. If the funds aze controlled by another
governmental entity, the Grantor shall make application for such funds on behalf of the Grantee.
3.7 Emergency Notification. Grantee shall provide City with twenty-four (24) hour emergency telephone
numbers at which a responsible representative of Grantee can be accessed in the event of an emergency.
3.8 Underground Facilities. Grantee's cable, wires and other equipment shall be placed underground
wherever existing telephone and electric services are both placed underground at the time of system construction. In
areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the
Grantee may install its facilities aerially with the understanding that at such time as the existing aerial facilities aze
required to be placed underground by the Grantor, the Grantee shall likewise place its facilities underground. If
Grantor in the future requires that, in a specific azea or azeas of the Service Area, utilities shall place their cables,
wires, or other equipment underground, then Grantee also shall place its existing and its future cables, wires, or other
equipment underground within a reasonable period of time of notification by Grantor and without expense or
liability therefore to Grantor. However, in the event that any telephone or electric utilities aze reimbursed by the
Grantor or any agency thereof for the placement of cable underground or the movement of cable, Grantee shall be
reimbursed upon the same terms and conditions as any telephone, electric or other utilities.
3.9 New Develonments. In cases of new construction or property development Grantee shall install its
Cable System in all new subdivisions and developments on the date on which electric or telephone facilities are
installed in such subdivision or development unless Grantee is not notified of the subdivision or development. In
cases of new construction or property development where utilities are to be placed underground, the Grantor agrees
to require as a condition of issuing a permit for open trenching to any developer or property owner that such
developer or property owner give Grantee at least thirty (30) days prior written notice of such wnstmction or
development, and of the particular dates on which open trenching will be available for Grantee's installation of
conduit, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide
specifications as needed for trenching. Costs of trenching and easements required to bring service to the
development shall be borne by the developer or property owner; except that if Grantee fails to instal] its conduit,
pedestals and/or vaults, and laterals within five (5) working days ofthe date the trenches are available, as designated
in the notice given by the developer or property owner, then should the trenches be closed after the five-day period,
the cost of new trenching is to be borne by Grantee. After Cable System installation, Grantee shall be capable of
providing Cable Service to any dwelling unit in such subdivision or development solely by the constmction of a
Drop to the Subscriber premises when such dwelling unit is constructed.
3.10 Annexation. The Grantor shall provide prior notice to the Grantee of its annexation of any
contiguous territory which is being provided Cable Service by the Grantee or its affiliates. Such annexed area will
be subject to the provisions of the franchise which previously covered that area throughout the term of this
Franchise, although the Grantor will replace the previous franchise authority. Grantee shall pay the Grantor
franchise fees on revenue received from the operation of the Cable System to provide Cable Services in the Service
Area and in any area annexed by the Grantor if the Grantor has provided written notice to the Grantee prior to the
date of such annexation.
3.11 Vacation. If a Public Way where Grantee has facilifies is vacated, eliminated, discontinued or closed,
Grantee shall be notified of same and all rights of Grantee under this Franchise to use same shall terminate and
Grantee shall remove the Cable System from such Public Way within one hundred twenty (120) days from written
notice requesting vacation, unless Grantee obtains all necessary easements from the affected property owners to use
the former Public Way or a court orders the provision of such easements. Where reasonably possible and to the
extent consistent with the treatment of other utility facilities in the former street or Public Way, Grantor shall
reserve easements for Grantee to continue to use the former Public Way. Grantee shall beaz the cost of any removal
or relocation of the Cable System unless the vacation is primarily for the benefit of a private party, in which case the
private party shall bear such costs.
3.12 Discontinuance and Remova] of the Cable S sy tem. Upon the revocation or termination of this
Franchise, unless an extension is ganted, Grantee shall discontinue the provision of Cable Services and al] rights of
Grantee to use the Public Ways shall cease. Grantee, shall remove its Cable System, including all supporting
structures, poles, transmission and distribution system and other appurtenances, fixtures or property from the Public
Ways, in, over, under, along, or through which they are installed within six (6) months of the revocation or
termination of this Franchise. Grantee shall also restore any property, public or private, to a condition reasonably
comparable to the condition that existed prior to the installation, erection or construction of its Cable System. If
such removal and restoration is not completed within six (ti) months after the revocation, termination, or expiration
of this Franchise, all of Grantee's property remaining in the affected Public Ways shall, at the option of Grantor, be
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deemed abandoned and shall, at the option of Grantor, become its property or Grantor may obtain a court order
compelling Grantee to remove same. In the event Grantee fails or refuses to remove its Cable System or to
satisfactorily restore all areas to a reasonably comparable condition to that which existed prior to the original
construction of the Cable System, Grantor, at its option, may perform such work and collect the actual and itemized
costs thereof from Grantee.
3.13 Underazound Street Crossing. Whenever Grantee must place the Cable System or other facilities
beneath the traveled or paved portion of the Public Ways, unless otherwise approved in advance by Grantor, Grantee
shall do so by boring (directional or otherwise) and not by excavation of a trench. Boring (directional or otherwise)
shall be done wherever possible so that the excavations necessary for it are not in the paved portion of any Public
Way.
3.14 Tree Trimmins. Grantee may trim trees upon and overhanging the Public Ways so as to prevent the
branches of such trees from coming into contact with the Cable System so as to protect its wires and facilities.
Grantee shall minimize the trimming of trees to trimming only those trees which are essential to maintain the
integrity of the Cable System.
3.15 Mans. Grantee shall keep accurate, complete and current maps and records of the Cable System and
its facilities and shall provide copies to Grantor as set forth below.
3.15.1 Grantee shall provide upon receipt of a written request from Grantor a map detailing the
location of its facilities in the Public Ways, but not the architecture nor design of said facilities.
4 CUSTOMER SERVICE
4.1 Customer Service Standazds. Grantee shall comply with service standazds adopted by the FCC, which
may from time to time be amended.
4.2 Free Service. The Grantee shall provide and maintain one free outlet of Basic Service to each state
accredited Public School and library listed on Exhibit A. Any such Public School may install, at its expense,
additional outlets for classroom purposes as it desires, provided that such installation shall not interfere with the
operation of Grantee's Cable System, and that the quality and manner of installation of such additional outlets shall
have been approved by the Grantee and shall comply with all local, State and Federal laws and regulations. Grantee
shall also provide for an administrative chazge as set forth on Exhibit A, for one outlet of Basic Service to each
Public Building located in the Service Area served by the Cable System and listed on Exhibit A. Such
Administrative Fee is subject to change upon thirty (30) days notice to the Grantor. All other services above Basic
Service received by the Public Buildings shall be billed at current rate card rates and such rates are subject to change
with thirty (30) days prior notice. Any such Public Building may request additional outlets at no expense except for
the cost of installation as it desires, provided that such installation shall not interfere with the operation of Grantee's
Cable System, and that the quality and manner of installation of such additional outlets shall have been approved by
the Grantee and shall comply with all local, State and Federal laws and regulations. The Cable Service provided
pursuant to this Section 4.2 shall not be used for commercial purposes and such outlets shall not be located in areas
open to the public. The Grantor shall take reasonable precautions to prevent any use of the Grantee's Cable System
that results in the inappropriate use thereof or any loss or damage to the Cable System. The Grantor shall hold the
Grantee harmless from any and all liability or claims arising out of the provision and use of Cable Service required
by this Section 4.2. The Grantee shall not be required to provide an outlet to any such building where a standard
dmp of more than one hundred twenty five feet (125') is required, unless the Grantor or building owner/occupant
agrees to pay the incremental cost of any necessary extension or installation.
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4.3 Access to Service. Grantee shall not deny service, deny access, or otherwise discriminate on the
availability or rates, terms or conditions of Cable Services provided to Subscribers on the basis of race, color, creed,
religion, ancestry, national origin, gender, disability, age, sexual orientation, familial status, marital status, location
within the Service Area, or status with regazd to public assistance. Grantee shall comply at all times with al]
applicable Federal, State and generally applicable local laws and regulations relating to nondiscrimination. Grantee
shall not deny or discriminate against any group of actual or potential Subscribers in the Service Area on access to
or the rates, terms and conditions of Cable Services because of the income level or other demographics of the local
area in which such group may be located, provided all users of the Public Way providing Cable Services in the
Service Area are subject to the same terms and conditions.
4.4 Proerammine/I.ockout. Grantee shall at reasonable cost provide all Subscribers with the option of
obtaining a device by which the Subscriber can prohibit the viewing of a particulaz Cable Service during periods
selected by the Subscriber.
4.5 Blockine. Upon request by a Subscriber and within a reasonable period of time, for a fee, Grantee
shall block such Subscriber from receiving both the audio and video portions of a channel on which progamming is
provided on a per program or pay per view basis.
4.6 Phone. Grantee shall agree to maintain a local payment reception facility at City Hall in coordination
with the Grantor. In the event that the City Hall local payment reception facility is not available, then Grantee shall
agee to maintain a local payment reception facility which may include a third party payment center within or in near
proximity to the city Limits of the Grantor. Grantor shall also provide a toll free telephone number for use by
Subscribers twenty-four (24) hours per day, seven (7) days per week.
4.7 Continuity of Service. Throughout the term ofthe Franchise, Grantee shall operate the Cable System
and provide Cable Services twenty-four (24) hours per day, seven (7) days per week. Grantee shall voluntarily
interrupt Cable Service in the Service Area only with prior notice to Subscribers, for good cause, and for the shortest
time possible except in the following situations where no prior notice shall be required: (a) in emergency situations,
(b) as required by the FCC and (c) for routine testing, maintenance and repair (which is usually conducted between
1:00 a.m. and 5:00 am). In the event of a Cable System upgrade, Grantee shall both minimize any interruptions in
Cable Service caused by the upgrade, and shall meet with the Grantor in advance to advise Grantor of the nature,
geographic extent and duration of any interruptions and obtain, and where possible respond to, Grantor's comments
on same.
4.8 Loe of Comnlaints. Grantee shall maintain a record of all Subscriber complaints regarding
interruptions or degradation of Cable Service for one (1) yeaz. Upon written request from Grantor, Grantee shall
provide Grantor with a copy of its Subscriber complaints file or summary.
4.9 . Privacv and Monitorine. Neither Grantee and its agents nor Grantor and its agents shall tap or
monitor, or arrange for the tapping or monitoring, or permit any other person to tap or monitor, any cable, line,
signal, input device, or Subscriber facility for any purpose, without the written authorization of the affected
Subscriber. Such authorization shall be revocable at any time by the Subscriber without penalty by delivering a
written notice of revocation to Granteeand/or Grantor; provided, however, that Grantee may conduct system-wide or
individually addressed "sweeps" solely for the purpose of verifying Cable System integrity, checking for illegal taps
or billing.
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4.10 Subscriber Information and Insoection of Records. Grantee shall permit any duly authorized
representative of the Grantor, upon receipt of advance written notice to examine during normal business hows and
on anon-disruptive basis, any and al] records that are legally permissible for release and which are reasonably
necessary to ensure Grantee's wmpliance with the Franchise. Such notice shall specifically reference the section or
subsection of the Franchise that is under review so that the Grantee may organize the necessary books and records
for easy access by the Grantor. The Grantee shall not be required to maintain any books and records for Franchise
compliance purposes longer than three (3) years, except for service complaints, which shall be kept for one (1) yeaz.
The Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act.
The Grantor agrees to treat as confidential any books, records or maps that constitute proprietary or confidential
information to the extent Grantee makes the Grantor aware of such confidentiality. If the Grantor believes it must
release any such confidential books or records in the course of enforcing this Franchise, or for any other reason, it
shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. Until otherwise
ordered by a court or agency of competent jurisdiction, the Grantor agrees that, to the extent permitted by state and
federal law, it shall deny access to any of Grantee's books and records marked confidential, as set forth above, to any
Person. Company shall not release any information as to the programming actually watched by a Subscriber.
Grantee shall not release Subscriber information of a personally identifiable nature. Grantee shall not sell or
otherwise provide to other persons lists of the names and addresses of Subscribers, except pwsuant to a court order
and in accordance with Section 631 ofthe Cable Act. Grantee may disclose Subscriber information as necessary to
render or conduct a legitimate business activity related to a Cable Service or other service provided by Grantee to the
Subscriber or to detect unauthorized reception of cable communications or Cable Services.
4.11 FCC Technical Standards. Grantee shall meet or exceed the FCC's technical standards that maybe
adopted from time to time and shall upon written request from the Grantor provide Grantor with a copy of the latest
FCC Proof of Performance test for the Cable System.
5 PEG ACCESS
5.1. PEG Channels. Within twelve (12) months from a written request from the Grantor, Grantee shall
provide one (1) channel on the Cable System for use by the Grantor for non-commercial, video programming for
education and government ("EG") access programming. The EG Channel shall be placed on the basic tier of
service. hi the event that customer digital penetration in the Service Area is at or exceeds 65%, then Grantee
reserves the right to relocate the EG channel to any tier of service upon Grantor approval which shall not be
unreasonably withheld.
S.l.l . The Grantor agrees that its request for its EG Channel shall include a report, which shall
include a programming schedule as verification that the Grantor will meet the following
programming utilization levels and criteria: the EG Channel must air first run or first re-run
original programming from programs that have not previously been shown on that EG Channel, or
live telecasts or the first or second repeat of elected officials' meetings seventy percent, (70%) of
the time during the hows between 11:00 am and 11:00 pm for any twelve (12) consecutive weeks.
In the event that the programming levels as set forth hereinabove are not maintained, the EG
Channel will retwn to the Grantee. In the event the Grantor chooses not to fully use the EG
Channel or violates the above usage provisions, the Grantee also reserves the right to use the EG
Channel during the hours that the Grantor or other governmental or educational entity is not using
the EG Channel. Unless the EG channel reverts back to the Grantee for the Grantee's use as
indicated hereinabove, Grantee shall not air programming on the dedicated EG Channel when the
EG Channel is being utilized by the Grantor. If Grantee believes that the EG Channel has
underutilized time, Grantee shall notify City in writing. If the City does not respond within thirty
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(30) days from the City's receipt of such notice, Grantee reserves the right to reclaim the unused EG
channel and/or the unused portion of the EG channel. The Grantor shall agree to indemnify, save
and hold harmless the Grantee from and against any and all liability resulting from the Grantor's use
of the aforementioned EG Channel. The Grantee shall dedicate the EG Channel to the Grantor for
the term of this Franchise or for so long as the EG Channel is in use by the Grantor. Grantor shall
be responsible for operating the EG Channel and for approving all EG tape submissions from the
general public. Grantor shall have sole and exclusive control and responsibility for operating and
managing the EG channels while being used by the Grantor. The EG Channel will not be used for
commercial purposes, such as leasing capacity, advertising, or any use whatsoever that may generate
revenue for the Grantor or compete with current or future services provided by Grantee. The
Grantor or its designee may determine non-discriminatory rules and regulations regarding the
production, administration and cable casting of EG access programming.
5.1..2. At any time during the term of the Franchise, Grantor may request capita] support from the
Grantee for EG. Upon the Grantor's determination that such support is reasonable to meet the
demonstrated cable-related needs of the community, the Grantor shall notify the Grantee in writing
of these needs, the amount of capital support required and a justification demonstrating the need for
said capital support related to the equipment and/or facilities to be purchased. Upon Grantee's
receipt and approval of the written capital support request from the Grantor, Grantee shall provide
the capita] funds requested in a timely manner as set forth herein below after receiving the written
request from the Grantor. Grantee shall pay to the Grantor up to a maximum seventeen thousand
dollaz ($17,000.00) contribution. The aforementioned payment shall be paid to the Grantor over the
remaining term of the Franchise from the time that Grantee receives the aforementioned written
request and the yearly payment to the Grantor shall be determined from the collection of pass-
through fees that Grantee shall charge each Subscriber in an amount of up to twenty five cents
($.25) per Subscriber per month. Grantee shall begin to pass the aforementioned EG fee onto its
Subscribers in the Service Area within sixty (60) days after the Grantee receives the aforementioned
written request from the Grantor and Grantee approves said request, with said approval to not be
unreasonably withheld. Grantee shall have the right to name and separately list the EG support pass
through amount on its monthly subscriber invoices.
6 INDEIvINITY AND INSURANCE
6.1 Indemnification. The Grantee shall, by acceptance of this Franchise, at its sole cost and expense
defend, indemnify and hold harmless the Grantor and its respective officers, boards, commissions, agents,
and employees, for all claims for injury to any Person or property caused by the negligence of Grantee in the
construction, installation, operation, maintenance or condition of the Cable System and in the event of
liability shall indemnify and hold Grantor, its officers, boards, commissions, agents, and employees harmless
from any and all liabilities, claims, demands, or judgments growing out of any injury to any Person or
property as a result of the of the negligence of Grantee arising out of the construction, repair, extension,
maintenance, operation or removal of its wires, poles or other equipment of any kind or character used in
connection with the operation of the Cable System, provided that the Grantor shall give the Grantee written
notice of its obligation to indemnify the Grantor within ten (] 0) days ofreceipt of a claim or action pursuant
to this section. In the event any such claim arises, the Grantor shall tender the defense thereof to the Grantee
and the Grantee shall have the right to defend, settle or compromise any claims arising hereunder and the
Grantor shall cooperate fully herein. If the Grantor determined in good faith that its interests could not be
represented by the Grantee, the Grantee shall be excused from any obligation to represent the Grantor.
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Notwithstanding the foregoing, the Grantee shall not be obligated to indemnify the Grantor for any damages,
liability or claims resulting from the willful misconduct or negligence of the Grantor or for the Grantor's use
of the Cable System, including any PEG channels.
6.2 Insurance. At al l times during the term of this Franchise, Grantee shall maintain insurance policies
described in this Section, so as to protect the public. Grantee shall file with Grantor certificates of insurance
evidencing coverage as follows:
6.2.1 Worker's Compensation/Commercial General Liability. $1,000,000 per occurrence,
Combined Single Liability (C.S.L.) $2,000,000 General Aggregate.
6.2.2 Comprehensive Automobile Liability on all owned, non-owned hired autos Umbrella
Liabili .Automobile liability insurance in an amount not less than One Million Dollars
($1,000,000) per occurrence C.S.L.
6.2.3 Umbrella Policies. $1,000,000 per occurrence C.S.L.
6.3 Additional Insured/Claims Made Basis. Grantor shall be named as an additional insured on the
above Commercial General Liability, Auto Liability and Umbrella Liability insurance coverage.
FEES AND PAYMENTS
7.1 Franchise Fee. Grantee shall pay Grantor an annual franchise fee in an amount equal to 5%, or the
maximum as authorized bylaw, of Grantee's Gross Revenues ("Franchise Fee"). Such payments shall be made in
addition to taxes of genera] applicability and shall be made quarterly, and aze due within sixty (60) days after the end
of each calendar quarter. The payment of the franchise fees pursuant to this Franchise shall commence sixty (60)
days after the Effective Date of this Franchise.
7.1.1 In the event of a dispute, the Grantor, if it so requests in writing, shall be provided with a
statement of said payment reflecting Gross Revenues and the applicable charges.
7.1.2 Upon thirty (30) days written notice to Grantee, Grantor shall have the right to audit Grantee
to verify the accuracy of franchise fees paid to the Grantor. Said audit shall be conducted no more
than once annually and shall not be Beater than the previous three (3) years. The audit shall not last
longer than six (6) months. Any undisputed amounts due the Grantor as a result of the audit shall be
paid within sixty (60) days following written notice to the Grantee by the Grantor which shall
include a copy of the audit findings. The period of limitation for recovery of any franchise fee
payable hereunder shall be three (3) years from the date on which payment by the Grantee was due.
7.2 Other Payments. The preceding fees and payments aze in addition to all sums which may be due
Grantor for property taxes (real and personal), income taxes, or other fees, taxes or charges which are currently
assessed by Grantor and which aze not included as franchise fees under Federal law.
7.3 Interest. Any franchise fee payment not made within sixty (60) days ofthe end of a quarter shall bear
interest at the rate of nine percent (9%) per annum, commencing the sixty-first (61 g') day from the end of the quarter,
until paid. Grantee shall make any adjustments to the previous yeaz's franchise fee in the first quarter of the
following fiscal year.
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8 TERM
8.1 Term. The term of this Franchise shall five (5) years commencing on the Effective Date of this
Franchise as set forth in Section 12.6 herein.
8.2 Cable Svstem Franchise Reouired. No Cable System shall be allowed to occupy or use the streets or
Public Ways of the Service Area or be allowed to operate without a Cable System Franchise.
8.3 Procedures for Renewal. The Grantor and the Grantee agree that any proceedings undertaken by the
Grantor that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of
Section 626 of the Cable Act, or any such successor statute.
8.4 Eoual Protection.
A. If, after the Effective Date of this Franchise, Grantor grants one or more franchises or similar
authorizations for use of the Public Way, for the construction, operation and maintenance of any
communications facility that offers services substantially equivalent to the services offered by
Grantee under this Franchise, it shall, to the extent allowed by Federal and State law, make the grant
on terms that are not substantially more favorable or less burdensome than the terms of this
Franchise, so that Grantee suffers no material disadvantage as a result ofdifferences in the terms of
franchises or authorizations.
B. If Grantee determines that Grantor has granted a franchise or authorization on terms that aze not
substantially equivalent to the terms of this Franchise, Grantee may petition Grantor for a
modification of this Franchise. For purposes of this section, the term "material disadvantage" shall
include but not be limited to, a franchise authorization by the Grantor that permits a competitor to
pay franchise fees or other regulatory fees at a lower rate than Grantee pays, provide fewer PEGBG
channels than is requited of Grantee, comply with less stringent customer service standards than
those set forth in this Franchise, serve only those areas of the Service Area where the density is
greater than Grantee's obligations as set forth in this Franchise or provide free Cable Service to
materially fewer public buildings than is required of Grantee under this Franchise. The request for
modification shall identify with specificity the basis for Grantee's belief that it is entitled to a
modification of this Franchise and the specific provisions which it seeks to have amended. At
Grantor's request, Grantee shall meet with Grantor at Grantor's office to discuss whether Grantee
has suffered a material competitive disadvantage and whether amendments to this Franchise are
required by the standards set forth in this section. Grantor shall not unreasonably withhold its
approval of amendments to this Franchise to effectuate this subsection.
C. If the Grantor fails to make amendments consistent with this requirement within ninety (90) days of
Grantee's request, Grantee may notify Grantor of Grantee's intent to elect to adopt the other Person's
franchise or authorization described in the first sentence of this section, provided that Grantee may
make this election only if Grantee agrees to provide substantially the same services within the same
portions of the Service Area as the other Person and Grantee assumes the substantially the same
obligations as the Person whose franchise or authorization Grantee wishes to adopt. Grantor shall
then have thirty (30) days after receipt of Grantee's notice of intent described in the first sentence of
this subsection 8.4C either to modify the franchise or authorization on the same terms as the other
entity. If Grantor fails to act within the thirty (30) days after the ninety (90) day grace period, the
Franchise shall be deemed modified in accordance with Grantee's initial request at the end of the
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thirty (30) days.
D. Nothing in this Franchise shall impair the right of the Grantee to terminate this Franchise and, at
Grantee's option, negotiate a renewal or replacement franchise, license, consent, certificate or other
authorization with any appropriate government entity.
E. Furthermore, Grantee shall have the right to terminate this Franchise and all its rights and obligations
hereunderwith at a minimum sixty (60) days prior written notice to the Grantor, if Grantee does not
in good faith believe it has maintained a commercially feasible level of Subscriber penetration on
Grantee's Cable System. Grantee may consider Subscriber penetration levels outside the Service
Area and other relevant considerations in making this determination. Grantee shall provide its
Subscribers with no less than sixty (60) days prior written notice of its intent to cease operations.
9 TRANSFERS, OWNERSHIP AND CONTROL
9.1 Transfer/Consent Required. This Franchise and the Cable System shall not be sold,
transfen•ed, assigned, or otherwise encumbered, without the prior consent of Grantor, with said consent not to be
unreasonably withheld or delayed. Such consent shall not be required for a transfer in order to secure indebtedness
such as a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of
Grantee in the Cable System to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the
Grantor shall notify the Grantee in writing of any additional information it reasonably requires to determine the
legal, financial and technical qualifications of the transferee. Grantee shall provide the requested reasonable
additional information, in accordance with applicable law, within thirty (30) days of receipt of Grantor's request. If
the Grantor has not taken action on the Grantee's request for transfer within one hundred twenty (120) days after
receiving such request, consent by the Grantor shall be deemed given.
9.1.1 The preceding prohibition shall not apply to the replacement or sale of components of the
Cable System in the course of ordinary maintenance or day-to-day operation.
10 NONCOMPLIANCE
] 0. ] Nonwmpliance. The occurrence at any time during the term of the Franchise, of any one or more of
the following events, shall constitute an alleged Noncompliance by Grantee under this Franchise.
10.1.1 The failure of Grantee to pay the Franchise Fee on or before the due dates specified herein.
10.1.2 Grantee's material breach or violation of any of the terms, covenants, representations or
warranties contained herein or Grantee's failure to perform any obligation contained herein.
10.1.3 Grantee's failure to pay or cause to be paid any governmentally imposed taxes of any kind
whatsoever, including but not limited to real estate taxes, income taxes, and personal property taxes
on or before the due date for same; provided, however, Grantee shall not be in Noncompliance
hereunder with respect to the non-payment of taxes which aze being disputed in good faith in
accordance with applicable law.
10.2 Uncured Noncompliance. If the Grantor believes that Grantee has not complied with the terms of
the Franchise, the Grantor shall first informally discuss the matter with Grantee. If these discussions do not lead to
resolution of the problem, the Grantor shall notify the Grantee in writing of the exact nature of the alleged
13
Noncompliance (the "Noncompliance Notice"). The Grantee shall have thirty (30) days from receipt of the
Noncompliance Notice to: (i) respond to the Grantor, contesting the assertion of noncompliance, or (ii) to cwe such
default, or (iii) if, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate
reasonable steps to remedy such default and notify the Grantor of the steps being taken and the projected date that
they will be completed.
10.3 Public Hearine. If the Grantee fails to respond to the Noncompliance Notice received from the
Grantor, or if the default is not remedied within the cure period set forth above, the Grantor shall schedule a public
hearing if it intends to continue its investigation into the default. The Grantor shall provide the Grantee at least
twenty (20) days prior written notice of such hearing which specifies the time, place and purpose of such hearing,
notice of which shall be published in accordance with the Grantor's standard procedures for public notice of public
hearings conducted by its City Council. The Grantee shall have the right to present evidence and to question
witnesses. The Grantor shall determine if the Grantee has committed a noncompliance and shall make written
findings of fact relative to its determination. If a noncompliance is found, the Grantee may petition for
reconsideration before any competent tribunal having jurisdiction over such matters.
10.4 Enforcement. Subject to applicable Federal and State law, in the event the Grantor after the hearing
set forth in 10.3 determines that Grantee is in noncompliance with any provision of the Franchise Grantor may
exercise the remedies provided for in Part 11.
I1 REMEDIES
11.1 Remedies. Upon the occurrence of any noncompliance as described in Part ] 0, Grantee shall be
entitled to exercise any of the following remedies:
l 1.1.1 Grantor shall have the right, in the case of a material default of a material provision; seek to
revoke the Franchise in accordance with the provisions set forth in 11.2 herein below.
11.1.2 The commencement of an action against Grantee at law for monetary damages or equitable
relief; or.
11.1.3 The commencement of an action in equity seeking injunctive relief or the specific
performance of any of the provisions which reasonably lends itself to such remedy as an alternative
to damages and which as a matter of equity, are specifically enforceable.
11.2 Revocation. Prior to revocation or termination of the Franchise, the Grantor shall give written
notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern 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 natwe of the noncompliance. The Grantee shall have sixty (60) days from such notice to
either object in writing and to state its reasons for such objection and provide any explanation or to cwe the alleged
noncompliance. If the Grantor has not received a satisfactory response from Grantee, it may then seek to revoke the
Franchise at a public hearing. The Grantee shall be given at least thirty (30) days prior written notice of such public
hearing, specifying the time and place of such hearing and stating its intent to revoke the Franchise.
At the hearing, the Board shall give the Grantee an opportunity to state its position on the matter, present evidence
and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public
hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business
days. The decision of the Board shall be made in writing and shall be delivered to the Grantee. The Grantee may
appeal such determination to an appropriate court, which shall have the power to review the decision ofthe Board de
14
novo. The Grantee may continue to operate the Cable System until all legal appeals procedures have been
exhausted.
Notwithstanding the above provisions, the Grantee does not waive any of its rights under Federal law or regulation.
Upon revocation of the Franchise, Grantee may remove the Cable System from the Public Ways ofthe Service Area,
or abandon the Cable System in place.
11.3 Remedies Not Exclusive. The rights and remedies of Grantee sei forth in this Franchise shall be in
addition to and not in limitation of, any other rights and remedies provided bylaw or in equity. Grantor and Grantee
understand and intend that such remedies shall be cumulative to the maximum extent permitted by law and the
exercise by Grantor of any one or more of such remedies shall not preclude the exercise by Grantor, at the same or
different times, of any other such remedies for the same type of noncompliance occurring at a different time and
date.
11.4 Good Faith Intention. Furthermore, the parties hereby agree that it is not the Grantor's intention to
subject the Grantee to specific performance, damages or revocation of the Franchise for noncompliance of the
Franchise where the noncompliance was a good faith error that resulted in no or minimal negative impact on the
Subscribers within the Service Area, or where strict performance would result in practical difficulties and hardship
to the Grantee which outweighs the benefit to be derived by the Grantor and/or Subscribers.
12 GENERAL/MISCELLANEOUS PROVISIONS
12.1 Entire Franchise. This Franchise including the Exhibits attached hereto, contains the entire Franchise
between the parties and all prior franchises, negotiations and agreements are merged herein and hereby superseded.
All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations,
covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and
superseded hereby and thereby
12.2 Notices. Unless otherwise provided by Federal, State or local law to be sent via Certified Mail, all
notices pursuant to this Franchise shall be deemed sufficient if sent in accordance with the terms of this Section. All
notices, reports or demands required to be given under this Franchise shall be in writing and shall be deemed to be
given upon delivery if delivered in person to the address set forth below, or on the fifth day following mailing and
deposited in the United States mail in a sealed envelope with regulaz, registered or certified postage prepaid thereon,
or on the next business day if sent by express mail or overnight air courier addressed to the party to which notice is
being given, as follows:
If to Grantor: CITY ADMINISTRATOR
City of Central Point, Oregon
140 5. Third Street
Central Point, Oregon 97502
With a Copy To: CITY RECORDER
140 S. Third Street
Central Point, Oregon 97502
15
If to Grantee: Attn: Vice President Govemment Affairs
Charter Communications
12405 Powerscourt Drive
St. Louis, MO 63131-3674
With a Copy To: Attn: Director, Government Relations
Charter Communications
222 NE Plaza Drive #231
Vancouver, WA 98684
With a Copy To: Attn: Director of Operations
926 South Grape Street
Medford, OR 97501
Either party to this Franchise may change its address for the receipt of Notices at any time by giving notice
thereof to the other as provided in this Section no less than thirty (30) days in advance.
12.3 Governine Law. This Franchise shall be construed pursuant to the laws of the State of Oregon and the
United States of America.
] 2.4 W aiver of Compliance. No failure by either party to insist upon the strict performance of any wvenant,
agreement, term or condition of this Franchise, or to exercise any right, term or remedy consequent upon a breach
thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of
any breach shall affect or alter this Franchise, but each and every covenant, ageement, term or condition of this
Franchise shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
12.5 Severability. If any section, paragraph, or provision of this Franchise shall be held to be invalid or
unenforceable for any reason, the invalidity or unenforceability of such section, paragraph, or provision shall not
affect any of the remaining provisions of this Franchise.
12.6 Effective Date. This Franchise shall be effective as the date that Grantee accepts the Franchise recorded
on the signatwe page of this Franchise. This Initial Term of this Franchise shall expire on the of
.Any prior Franchise shall terminate as ofmidnight of the day immediately preceding
the Effective Date of this Franchise. This Franchise shall automatically renew for successive one (1) yeaz terms
unless either party shall provide the other with notice at least three months prior to the end of each term of their
intention to not renew the Franchise and seek renewal of a new franchise agreement.
] 2.7 Captions. All captions are for convenience of use and have no substantive effect, except for those
captions in the Definitions section of this Franchise.
12.8 Conflicts. In the event of a wnflict between this Franchise and the provisions of any prior franchise
or any franchise, permit, consent agreement or other ageement with Grantee, the provisions of this Franchise shall
control.
12.9 Subsequent Action/Modification. If the parties determine that a material provision ofthis Franchise
is affected by any subsequent action of the State or Federal government, the parties shall have the right to modify
any of the provisions herein to such reasonable extent as may be necessary to cazry out the full intent and purpose of
this Franchise. This Franchise is a contract and neither party may take any unilateral action that materially changes
16
the explicit mutual promises and covenants contained herein. Any changes, modifications or amendments to this
Franchise must be made in writing, signed by the Grantor and the Grantee.
12.10 Non-Waiver. Preemption. Nothing in this Franchise shall be deemed an agreement by Grantor or
Grantee as to any claimed preemptive effect, nor shall it be deemed a waiver of either party's right to challenge any
claimed preemptive effect, of any subsequent Federal law, regulation, or court ruling alleged to conflict with, alter,
limit, or replace terms, requirements or conditions of this Franchise in effect as of the Effective Date.
12.11 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, where such
noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the
Grantee to anticipate and control. This provision includes work delays caused by waiting for utility providers to
service or monitor their utility poles to which Grantee's Cable System is attached, as well as unavailability of
materials and/or qualified labor to perform the work necessary.
12.12 Action of the Parties. In any action by the Grantor or the Grantee that is mandated or permitted under
the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance
where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
12.13 Public Notice. Grantor shall provide public notice of any public meeting relating to this Franchise or
any such grant of additional franchises, licenses, consents, certificates, authorizations or exemptions by the Grantor
to any other Person(s) to provide Cable Services, video services or other television services utilizing any system or
technology requiring use of the Public Way in accordance with its standard procedures for public notice of public
hearings conducted by its City Council or its Planning Commission, as maybe applicable in the particular case.
Grantor shall provide written notice within ten (10) days of Grantor(s) receipt from any other Person(s) of an
application or request for a franchise, license, consent, certificate, authorization, or exemptions to provide Cable
Services, video services, or other television services utilizing any system or technology requiring use of the Public
Ways. Any public hearings to consider such application or request shall have the same notice requirement as
outlined in the first paragraph of this Section 12.13 hereinabove.
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IN WITNESS WHEREOF, the parties have hereto set their hands as of the dates(s) set forth below.
Considered and approved this ~~day of ,ortie.., ~,pDQ
CITY OF CENTRAL POINT, OREGON
By: ' i~~~/
Mayor
By: presi
City Recorder
City Attorney
Accepted this day of subject to applicable Federal, State and local law.
Falcon Cable Systems Company II, L.P.,
1!k/a Charter Communications
By: Charter Communications, VII, LLC its General Partner
By: Charter Communications, Inc.,
its Manager
President of Operations
Charter Communications West Operating Group
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EXHIBIT A
List of Municipal Buildings
List of Public Schools and library locations that shall receive one (1) free Basic Service outlet in the
Service Area pursuant to Section 4.2 herein
Scenic Jr. High
1955 Scenic Avenue
Central Point, OR 97502
2. Central Point School District
300 Ash Street
Central Point, OR 97502
3. Richardson Elementary School
200 W Pine Street
Central Point, OR 97502
4. Central Point Elementary School
450 S 4`" Street
Central Point, OR 97502
5. Central Point Library
226 E Pine Street
Central Point, OR 97502
6. Jewett Elementary School
1001 Manzanita Street
Central Point, OR 97502
7. Crater High School
655 N 3`~ Street
Central Point, OR 97502
List of Public Buildings that shall receive one outlet of Basic Service at the Administrative Cost of 54.99
»er buildine. This Administrative Fee is subject to reasonable chance anon thirty (30) days prior notice
to Grantor and such notice shall contain an explanation for the chanee. All other services above Basic
Service received by the Public Buildings shall be billed at current rate card rates and such rates are
subject to chanee with thirty (30 days prior notice. Anv Public Building may request additional outlets at
no additional cost exceut for the cost of installation.
] . Central Point City Hall
155 S 2"~ Street
Central Point, OR 97502
Central Point Fire Dept.
600 S. Front Street
Central Point, OR 97502
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