HomeMy Public PortalAboutORD10995 BILL NO. 87-165 AMENDED
SPONSORED BY COUNCILMAN VEILE, DAVIS,
GORDON, HALSEY
ORDINANCE NO. A!�� l
AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A FRANCHISE AGREEMENT BETWEEN THE
CITY OF JEFFERSON AND TCI CABLEVISION OF MISSOURI, INCORPORATED,
AS IT RELATES TO CABLE TELEVISION.
BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI,
AS FOLLOWS:
Section 1. The Mayor and City Clerk are hereby authorized
to execute a franchise agreement with TCI Cablevision of
Missouri, Inc.
Section 2. The agreement shall be substantially the same in
form and content as that agreement attached hereto as Exhibit A.
Section 3 . Upon the effective date of the proposed
franchise, February 1, 1988, the previous franchise to T.C.I.
Cablevision, Inc. , shall be deemed to have expired.
Section 4. This Ordinance shall be in full force and effect
from and after the date of its passage and approval.
Passed -� _ ,� �,�, /� /5 rI'c� Approved /./,
Zee
r9sidin fficer r
. ATTEST:
-%1
City Clerk
AGREEMENT
A CONTRACT GOVERNIM InqE RELATIONSHIP BETWEEN THE CITY OF JEFFERSON AND
TCI CABLENISION OF MISSOURI, INC.; FOR A CABLE NICATIONS SYSTEM;
PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING
LIQUIDATED DAMAGES FOR THE VIOLATION OF ITS PROVISIONS.
SELVI N 1.
=72WE NT OF M?1MNT AMID PURPOSE.
WHEREAS, the City of Jefferson has conducted an extensive study of cable
camwni.caticns and pursued a renewal process in an open and orderly mariner and
concluded that it is in the public interest to award a cable ocnrunicaticns
Franchise to TCI Cablevisicn of Missouri, Inc. hereinafter COompany; and
WHEREAS, the Franchise Ordinance and the procedure used in formulating and
awarnlirng the Franchise have complied with all due process requizents; and
WHEREAS, the Franchise is for the stated purpose of enhancing ocm u ications
within City, exparxiing oommo ications opportunities ties outside City, and providing
prograllat of a truly local interest; and
WHEREAS, the Franchise awarded by the City is a valuable public resource
facilitating a variety of communications and meeting the- peculiar
ooatm -tications needs of the Franchise area; and
IN OCNSIDERATION MMEOF, the City of Jefferson and Commpany do hereby freely
and openly adopt this Agreement. The City agrees to administer and enforce the
Franchise consistent with its general obligatici to protect and promote the
public health, safety, and welfare. Nothing contained in this Agreement shall
require Company to violate any rule, regulaticn or decision of the FCC or of
any other federal or state agency or court having jurisdiction. City and
Company shall cooperate in seeking any necessary approvals or waivers.
S>]G`PIQN 2.
DEE MGM.
All words, terms, phrases and their derivations shall have the meanings set
forth in Ordinance No. 10833.
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® SF]GTION 3.
GENERAL PROV MIOIZS.
3.01 Agreement of City and Company.
The City of Jefferson has, by ordinance, granted an eleven (11) year franchise
to Company to construct, own, operate, and maintain a cable oanm u ications
system within the City.
3.02 Aaoeptanoe of Franchise.
A. Both parties agree to be bound by and to timely and fully perform and
fulfill all of the terms, agreements, provisions, conditions, pranises, offers,
representations and inducements contained in this Franchise Agreement.
B. Company agrees that it is and shall be subject to the regulatory authority
of City as set out in the Franchise and as the Franchise may, from time to
time, be supplemented or amended.
C. Company agrees to cooperate fully with City and apply for and pay for any
required licenses, permits and other authority, necessary for the construction,
operation and maintenance of System pursuant to Franchise.
D. Company represents, warrants and guarantees that neither it nor its
representatives or agents have committed any illegal acts or engaged in any
wrongful conduct contrary to or in violation of any federal, state or local law
or regulation in connection with obtaining the Franchise.
E. Company further warrants and represents as follows:
1) That it is a Corporation under the laws of the State of Missouri, and has
full right and authority to enter into and fully perform the Franchise and
this Franchise Agreement; that all necessary action required to authorize
the acceptance of the Franchise and execution and delivery of this Franchise
Agreement and all other documents to be executed or delivered by Company
pursuant to the Franchise and this Franchise Agreement, and to authorize the
performance by Company of all of its obligation tinder the Franchise and this
Franchise Agreement, and all such other documents to be executed or
delivered by Company have been valid4y and duly acted on and are in force
and effect; and that the Franchise and all other documents executed or
delivered by Company have been duly accepted and executed and the terms of
each thereof are fully binding upon and enforceable against Company.
2) That Company has the fiscal and technical capability to cam m,
complete, operate and maintain System pursuant to the terms of the
Franchise.
F. The Company and the City agree that all agreements, representations, and
warranties set forth herein shall be binding upon the City and the Company and
upon their respective successors and assigns.
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® G.
With this Franchise Agreement, Gbmparny has also delivered to City an
�-- opiz-d= from its legal om-sel, which opinion is otherwise in form and
substance acceptable to City, stating the ftavhise is duly accepted by Company
and a letter of credit has been duly executed and delivered to City.
3.03 Use of Company's Facilities.
City shall have the right to install, free of charge, upon the poles and within
the underground pipes and conduits of Oanpany any wines and fixtures desired by
City to the extent that installation and maintenanoe does not interfere with
the Company's operations. The City's use of any of the Company's facilities
shall be subject to the present and future use thereof by the Coqpany.
Further, the Cm parry shall require the City to indemnify it for the City's use
of the Cbmpany's facilities.
3.04 Written Notice.
All notices, reports or demands required to be given in writing under the
Franchise shall be deemed to be given when delivered personally to any
authorized representative of Company or City, whichever is appropriate, or when
seventy-two (72) hours have elapsed after it is deposited in the United States
mail in a sealed envelope, with registered or certified mail postage prepaid
thereon, address to the party to which notice is being given, as follows:
If to Ccnpany:
TCI Cablevisiorn of Missouri, Inc. and TCI Cablevisioan of Missouri, Inc.
1419 Missouri Blvd. Legal Department
Jefferson City, MO 65101 Terminal Amex
P.O. Box 5630
Denver, CO 80217
or
4643 S. Ulster St.
Suite 600
Denver, CO 80237
if to City:
ATTN: Legal Department
City of Jefferson
320 East McCarty
Jefferson City, MO 65101
Such addresses may be changed by either party upon notice to the other party
given as provided in this section.
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SDGTION 4.
DMGN PROVISIONS.
4.01 Provision of Service.
A. After service has been established by activating trunk cable for any area,
Company shall provide service to any requesting subscriber within that area no
more than twenty-one (21) days from the date of request.
4.02 Tedmicaal and PerformauJoe Standards.
The system shall be so designed, installed and operated so as to meet the
following minimum standards which are designed as a minimum and recognizing
that the system must be in conformance with FCC rules:
(1) Capable of continuous twenty-four (24) hour daily operation;
(2) Capable of operating over an outdoor temperature range of -20 degrees F
to +120 degrees F and over variation in supply voltages from 105 to 130
volts AC without catastrophic failure or irreversible performance changes;
(3) Capable of meeting all specifications as set forth herein over an
outdoor temperature range of 0 degrees F to 100 degrees F and over variation
in supply voltages from 105 to 130 volts AC;
(4) Operated in such a manner as to avoid causing interference with
reception of off the air signals by ncansubscribers to the system;
(5) Capable of producing a picture upon each subscriber's television
screen in black and white or color, depending upon whether color is
being telecast and provided the subscriber's television is capable of a
color picture, that is materially undistorted and materially free from
ghost images without material degradation of color fidelity. System
shall produce a sound that is materially undistorted on any working receiver
of a subscriber;
(6) Capable of ocntirAxxm operation without material degradation of
signal during inclement weather, except during and immediately following
extraordinary storms which adversely affect other utility services or which
damage major system components;
(7) Capable of providing Class IV Cable Communications Signal.
4.03 Test and Compliance Procedures.
Company's methods and schedules for testing the System on an ongoing basis
shall be in compliance with industry standards. Company shall supply City with
documentation of such industry standards. Tests for the subscriber network
shall be performed periodically, at intervals no greater than every twelve
(12) months, on a minimum of ten (10) subscriber television receivers, located
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throughout the service area. At least four (4) of these locations shall be
at the far end of the distribution trunk cable. The test may be witnessed by
representatives of the City and written test reports shall be submitted to the
City. If more than ten percent (10%) of the locations tested fail to meet
the performance standards, Cotspany shall indicate what corrective measures have
been taken and the entire test: shall be repeated for at least ten (10)
different locations. Company shall bear the expense of all testing.
4.04 Special Testing.
At any time after commencement of service to subscribers, City may require
additional tests, full or partial repeat tests, different test procedures, or
tests involving a specific subscriber's terminal. Requests for such additional
tests will be made on the basis of complaints received or other evidence
indicating an unresolved controversy or significant noncompliance, and such
tests will be limited to the particular matter in controversy. City shall
endeavor to arrange for such special tests so as to minimize hardship or
inccnvenienoe to the Company or to the subscriber. Company shall bear the
expense of all special testirr g unless it can be clearly stxywn that the cause
or basis for the complaint or controversy is the fault of the subscriber. In
the event that the cause or basis for the complaint or controversy is
determined to be the fault of the subscriber, Company may charge the subscriber
for the costs of all special tests performed pursuant to this section. If the
City requires special tests to be conducted and those tests show that the
system is in compliance with required rules and regulations, the City shall pay
for the tests. If the tests indicate that the system is not in compliance, the
® Grantee shall pay for such tests.
SECTION 5
SEMnCE PRdVISIONS.
5.01 Initial Services and Programming.
Company shall provide a list of the initial services and programming to be
Offered upon •ihe awarding of the franchise at least thirty (30) days in advance
of the effective date of _the franchise. Services or programming tiers shall
not be reduced or altered without prior written notice to City and to the
subscribers at least thirty (30) days before the change in services or
programming is implemented. No notice of programming change is required if the
reason for the programming change is that the programming service is no longer
available to the Company.
5.02 Desocriptian of Services.
A. many shall provide a system with at least a thirty-six (36) channel
capacity. In addition, Company shall provide a system with a minimum capacity
of fifteen (15) FM radio frequencies.
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B. Subject to federal law, Carpany shall, maintain substantially the same mix,
quality and level of Basic Service throughout the term of the Franchise. In
selecting programiing, the Company shall take into consideration duplication of
network programming and shall attempt to minimize such duplication.
C. Subject to federal law, Company may, upon thirty (30) days prior written
notice to the City rearrange, replace or reeve a particular programming
service required here u dbr if such action does not substantially affect the
mix, quality and level of Basic Service.
5.03 Access Charnel.
A. C mpany shall provide at least one channel for the use of the City at no
charge to the City which shall be used as a Public Access Channel for public,
educational or gavermmenta1 access needs or other needs whatsoever as
determined by the City. At any time the charnel or channels so provided is not
being utilized one hundred (100) percent of the time by City or City's
designee, the channel may be utilized by Company in any manner it deems
appropriate until such time as the channel is needed by the City or City's
designee. City shall not lease any portion of the channel to anyone. All
programming shall be at all times visible to all subscribers.
B. Within thirty (30) days of the adoption of rules for use of a Public Access
Channel and a budget for the same Company shall make a payment of One Hundred
Tbousand Dollars ($100,000.00) to City for capital expenditures in connection
with the use of a Public Access Channel. On the first anniversary of the grant
of this franchise or the selection of an operator for the Public Access
Channel, whichever is later, Company shall make a second payment of One Hundred
Thousand Dollars ($100,000.00) to City for capital expenditures in connection
with 'the use of a Public Access Charnel.. During the following years of this
franchise, but no later than the end of the eighth year, company shall pay to
city upon request accompanied by a budgetary explanation of the use to which
such funds shall be used such amounts as are requested not to exceed a total of
Severity-eight Tbousand Dollars ($78,000) during that period.
5.04 Additional Access channels.
Whenever the specially designated noncommercial access channel required in this
section is in use for government access video programmling during weekdays
(Mcnday-Friday) for nighty (80) percent of the time during the six (6) hour
period between 5:00 p.m. and 11:00 p.m. with programming of which at least
seventy-five percent (75%) is original or second run original material, for six
(6) weeks running, and there is demand for use of an additional channel for the
same purpose, Company shall then have six (6) months following notification
from the City, in which to provide a new specially designated access charnel
for the same purpose, provided that provision of such additional channel or
channels shall not require Company to install converters.
If an additional channel is designated for access but after one year it is not
programmed at least 25 percent of the time during any consecutive eight-hour
Period, it will revert back to the Company's use until such time as the need of
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additional o?uuumls is again shown by the original channel meeting the above
requital" tr.
5.05 Ayes Oltdpmmnt and &&port.
Upon request, Cmpany shall at its expense provide to City or maintain within
its own facilities equipment for public educational or access use
which is capable of placing on the air a good quality signal on the appropriate
chard designated for public educational or governmental access use whether
such signal is provided to company through a video cassette reoorder means or
through means of a return line. company shall at a minimum also provide City
with one return line from a site to be determined by the City after
consultation with MI, provided such line is technically feasible and the
request for the construction of said line will not occur before ninety (90)
days following the selection of an operator for the public educational or
governmental access channel. Any equipment necessary to provide the
appropriate interface between equipment of the City and the public education or
gcwMn11-- 1 access channel shall be provided by the Company.
5.06 OnKgercy Services.
The OmWy shall, in accordance with this proposal, provide City with an
Emergency Alert system capable of an audio override warning system on all
channels. The a mxjency alert system shall be at a location determined by City
and subject to the control of the City. The City shall indemnify the Grantee
from arty and all damages arising from or relating to the City's use of the
emergency ale.^^t system.
SEX.TION 6.
�llS1�IC,TI@i PROVISIONS.
6.01 Oaruetnwtian Timetable.
A. Within one (1) year of the effective date of this Agreement, the company
shall make system service available to 100 (1000 of the dwelling units in the
Conpsny's Initial Service Area upon request, which is defined as the area
within the corporate limits on the effective date of this Agreement, and in any
area annexed into the Canpany's initial service area which is within the City
limits Of Jefferson City, which has a minimum density of forty (40) dwelling
units per cable mile. If it is not technically or economically feasible to
serve a portion of the Initial Service Area, the company may petition the City
for relief from this requirement. Such. relief shall not be unreasonably
withheld.
B. Within two (2) years of the effective date of this Agreement, the Company
shall make system service available to any existing or developing area which
meets the criteria established in the Line Extension Policy as provided in
Section 6.03 of this Agreement.
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C. After the first two (2) years of this Agreement is in effect, the Company
shall serve any area which grows or develops to meet the Dine Extension Policy.
D. Nothing in this section shall require Company to provide system service to
an area already serviced by another Grantee.
6.02 Construction Delay.
Company shall notify City of any delay in the coast:uctiol or upgrading of
System. City may excuse delay only upon occurrence of unforeseen events or
acts of Clod.
6.03 Line EKtensicn Policy.
In areas of the City not included in the Initial Service Area of this or
another Franchise Agreement, the Company shall be required to extend its system
pursuant to the following requirements:
A. The Company must extend and make system service available to every dwelling
unit in any unserved area contiguous to the Company's existing service area
with a minimum density of forty (40) dwelling units per cable mile, as measured
from the existing system.
B. The Company must extend and make system service available to every dwelling
unit in any unserved, developing area contiguous to the Company's existing
service area with a minimum density of forty (40) dwelling units plarmed per
cable mile as measured from the existing system, and shall extend its system as
close as practicable to the time of installation of utility lines. Units
planned shall refer to units for which building permits have been issued.
C. The Company must extend and make system service available to any resident
outside the existing service area requesting connection at the standard
ocx necticn charge if -the connection to the resident wruld require no more than
a standard one hundred fifty (150) foot aerial drop line from the existing
system if technically possible as measured by the standards of old part 76 of
FCC Rules.
D. Fbr areas that do not meet the minimLin standard of forty (40) dwelling
units per linear mile of cable plant, the Company will extend energized trwnk
and feeder to those obligated subscribers who have agreed to pay contributions-
in-aid of construction in accordance with the following formula:
The Company's share per subscriber equals cost per mile to construct extension
divided by 40.
Cost per subscriber equals total cost to construct extension divided by total
number of obligated subscribers.
Each obligated subscriber's share equals cost per subscriber less the Company's
share.
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The measurement of the extension mileage is initiated from trunk or feeder
terminals installed at the beginning of the extension.
1. Veen the estimated cost of construction is determined, each obligated
subscriber shall be required to provide the Cbmpany with a deposit equal to the
estimated oontribution-in-aid of construction. The deposit shall be subject to
adjustment when the actual cost of construction is determined. The Ompany
shall proceed with construction, barring inclement weather, acts of God or
events beyond its control.
2. in oonjunction with each extension proposed pursuant to paragraph 1 above,
the Ccmpany shall document the actual cost of the extension and make such
documentation available for inspection.
3. An obligated subscriber who desires service on an existing extension that
was developed by joint oont ributions-in-aid of construction shall pay to the
Company a pro-rata share of the original cost of the extension recalculated in
accordance with paragraph 1 above. Upon the commencement of service to this
new subscriber, the Company shall refund to the previous subscribers who paid
contributions-in-aid for construction the difference between the recalculated
ocntributicn-in-aid and the amount previously paid. Such refunds may be made
annually to the subscribers entitled to receive them. Only one contribution
will be necessary from any one (1) residential dwelling unit. This policy will
be implemented until the minimum standard of forty (40) homes per mile is
reached.
4. Contributions-in-aid of construction are in addition to all other
Ip applicable rates and charges.
6.04 Constructicn Standards.
A. All ocrstxucticn practices shall be in accordance with all state and local
codes where applicable.
B. All installation of electric equipment shall be of a permanent nature,
durable and installed in accordance with the provisions of the National
Electrical Code as amended.
C. Antenna supporting structures (towers) shall be designed in accordance with
the Uniform Building Code as amended.
D. Antenna supporting structures (towers) shall be painted, lighted, erected
and maintained in accordance with all applicable rules and regulations of the
Federal Aviation Administration and all other applicable state or local codes
and regulations.
E. All of the zany's plant and equipment located within the City, including
but not limited to the antenna site, head-end and distribution system towers,
house connections, structures, poles, wire, cable, coaxial cable, fixtures and
appurtenances shall be installed, located, erected, ocnstructed, reconstructed,
replaced, removed, repaired, maintained and operated in accordance with good
engineering practices, performed by experienced maintenance and construction
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personnel so as not to der or interfere with improvements City may deem
necessary or to interfere in any manner with the rights of any properly owner,
or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on City
properties. Notwithstanding the foregoing, it is the intent of the City to
confer upon Company the right to avail itself of all existing utility easements
over and tinder public and private property to the extent possible.
F. Company shall at all times employ ordinary care and shall install and
maintain in use commonly accepted methods and devices preventing failures and
accidents which are likely to cause damage, injury or nuisance to the public.
G. Company shall maintain equipment capable of providing standby power for
transportation and trunk amplifiers for a minin un of one hour.
H. Rf leakage shall be checked at reception locations for emergency radio
services to prove no interference signal combinations are possible. Stray
radiation shall be measured adjacent to any proposed aeronautical navigation
radio sites to prove no interference to airborne navigational reception in the
normal flight patterns. FCC rules and regulations shall govern.
I. In all areas of the City where the cables, wires and other like facilities
of public utilities are placed underground, the Comparnl shall place its cables,
wires or other like facilities underground. In any area where the City Council
has determined that public utilities should be placed underground, the Company
shall place its cables, wires and other like facilities underground at the same
time the other public utilities in the area are underground or as soon
thereafter as is practicable. In all cases where the cables, wires and other
like facilities shall pass under a street, such cables, wires and other
facilities shall be installed in conduit.
J. In the case of any disturbance due to negligence or normal work on the part
of the Company of permanent sidewalk, driveway or other surfacing, the Company
shall, at its own cost and expense, replace and restore all paving, sidewalk,
yard, driveway, landscaping, or surface of any street or alley disturbed, in as
good corxiiticn as before said work was commenced. The owner of the property
disturbed and the Company shall resolve all disagreements over the adequacy of
restoration. If the owner and the Company cannot resolve the disagreement, the
dispute shall be referred to the City for resolution.
SIIMON 7.
OPERATION AND MAMTENANCE.
7.01 Business Office.
Company shall maintain an office within the corporate City limits which shall
be open during all usual business hours. within three (3) years of the grant
of this franchise, Company shall have its office so located as to provide a
minimum of sixteen (16) off street customer parking spaces, access to and from
a two lane street carrying less than five thousand (5,000) cars per day. The
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office shall not be located upon any street designated an arterial street by
® the City. The location of such office shall be approved by the City, but said
approval shall not be unreasonably withheld. Once Company has located its
office in such a manner as to meet the criteria as specified in this section,
City shall not require Company to relocate during the tern of this franchise.
Company may petition the City for relief from full compliance with all parts of
this section. Such relief shall not be unreasonably withheld.
7.02 Books and Records.
Subject to the other provision of this franchise, City shall have the right to
inspect and copy, upon reasonable notice, at any time during normal business
hairs, maps, construction plans, financial statements, service complaint logs,
performance test results, records of request for service, and other like
materials or policies of Company which are necessary to the enforcement of the
Franchise or the payment of the franchise fee. Access to the aforementioned
records shall not be denied by Company on the basis that said records contain
"proprietary" information. All such records and information shall be
confidential except as necmssary for enforcement of the franchise.
7.03 Subscriber Statement of Permission.
In order that subscriber service complaint or request information contained in
service complaint logs or in documents relating to the conduct of a financial
or management audit may be provided to City, Company shall provide to new
subscribers at the time cable service is requested, a form prepared by City
® waiving the subscribers rights under the privacy act as to City and permitting
release of information to City. City shall prepare the form and shall
indemnify Company for any use made of information obtained under the auspices
of the permission form. In addition to providing the form to new subscribers
the Company shall mail to all subscribers the permission form within three
months of the granting of this franchise. Once a permission form is signed,
the Company shall deliver the original to the City and the City shall be solely
responsible thereafter for maintainirxp any such forms.
7.04 Annual. Deports.
Within one hundred twenty (120) days after the close of Company's fiscal year,
Company shall submit a written annual report on the operation of the Franchise
in a farm approved by the City, which shall include, but not be limited to, the
following information:
A. A summary of the previous year's (or, in the case of the initial reporting
year, the initial year's) activities in development of the System, including,
but not limited to:
1. services begun or discontinued during the reported year.
2. list of all equipment added or removed from system.
3. number of employees by category (job title).
4. annual capital expenditures.
5. list of tests conducted.
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® H. A financial statement of Company certified by a Certified Public
Accountant, including a statement of income and revenues prepared in accordance
with general accounting practioas.
C. A list of Officers and others having ownership interests in the parent
company, if any, and each subsidiary, if any.
D. A oomplete description of all petitions applications, oomnanications and
reports submitted by Company to any federal or state regulatory commission or
agency having jurisdiction in respect to any matters affecting System
operations and any responses from the regulator commissions or agencies to
Company.
7.05 Audit.
Upon a determination by the Commission, following notice to the Cmipany and a
hearing, that grounds exist for an audit, City and its agents and
representatives shall have authority to arrange for and conduct reasonable
financial and management audits of and copy the books and records of Company as
are necessary to the enforcement of the franchise. Company shall first be
given two business days notice of the audit requested, the description of and
Purpose for the audit and description, to the best of City's ability, of the
books, records and documents it wants to review. Such audit shall be solely
for the purpose of verifying compliance with requirements of the franchise and
for calculations of the franchise fee. The reasonable cost of any such audit
shall be born by the Company. No more than one such audit shall be conducted
in any calendar year.
7.06 Coammmmications with Regulatory Agencies.
Copies of all petitions, applications, communications and reports submitted by
Company to the FM, Securities and Exchange Commission or any other Federal or
State regulatory commission or agency having jurisdiction in respect to any
matters affecting System operations authorized pursuant to this Franchise
shall, upon request of City, be submitted to City. Copies of responses from
the regulatory agencies to Company shall likewise be furnished to City upon
request. However, information otherwise confidential by law and so designated
by Company, which is submitted to City shall be retained in confidence by City
and its authorized agents and shall not be made available for public
inspection.
7.07 Monitoring and Cmanpliance Reports.
Company shall provide to City, upon request, reports of any tests and
compliance procedures no later than ten (10) days after the completion of each
series of tests or ten (10) days after the request, whichever is later.
7.08 Maps.
A. Within ninety (90) days of the effective date of this Agreement, a map or
set of maps drawn to scale of one (1) inch equals two hundred (200) feet,
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® showing all existing System equipment installed and in place in streets and
other public places, shall be provided to City.
B. Campany shall provide City a current map or set of maps drawn to scale of
one (1) inch equals two hundred (200) feet, showing all System equipment
installed and in place in streets and other public places within ninety (90)
days of cavletion of construction in that area.
C. Any maps provided to City shall remain at all times property of the Company,
and City shall disclose the contents thereof to no person or entity except as
may be necessary to Lander the provisions of this agreement.
7.09 Safety.
A. Company shall at all times employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted methods
and devices for preventing failures and accidents which are likely to cause
damage, injury or nuisance to the public or to employees of City.
B. All lines, equipment and eeaznec Uons in, over, under and upon the streets
and private property within City, uiber+ever situated or located, shall at all
times be kept and maintained in a safe and suitable condit.cn and in good order
and repair.
7.10 Maintgnanae and ccup afnts.
A. Company shall have a publicly listed toll-free telephone, and be operated
so as to receive subscriber complaints and requests for repairs or adjustments
on a 24-hour-a-day, 7-day-a-week basis. The use of a mechanical answering
machine shall be permitted only between the hours of 10:00 p.m. and 8:00 a.m.
Monday through Friday, inclusive, and on all holidays and weekends. A written
log available for public inspection shall be maintained listing all complaints
and their dispositions.
B. Oanpany shall render efficient service, make repairs pranprtly and interrupt
service only for good cause and for the shortest time possible. Such inter-
ruptions shall be preceded by prior notice and shall occur during periods of
minimum use of System. Floc purposes of this section, prior notice shall mean
the notification of all media sources in the community, including radio, and
newspaper, if the outage is a planned outage. If the outage is of an unplanned
nature Company shall promptly notify the City and the radio media if the
outage will effect more than four custcm rs. Company shall see that a notice
appears in a locally published newspaper at least cake either in the form of a
paid advertisement or as a news article prior to any planned interruption. A
written log available for public inspection shall be maintained for all service
interruptions. For purposes of this section, an interruption shall be defined
as any outage caused by actions of the Company lasting longer than ten (10)
minutes. No notice shall be required for repairs in response to service
outages.
C. Company's office staff will maintain regular office hours from Monday
through Friday excluding holidays. Complaints concerning billing, employee
® 13
oounrtasy, safety or Company policy shall be handled during those office hours.
An initial response will be given the next business day after receipt and shall
include a full explanation of the matter in dispute and a description of the
subscriber's options for resolving the matter.
D. Company shall maintain a sufficient repair force of technicians that shall
respond to subscriber complaints, loss of service or requests for information
within twenty-far (24) hours after receipt of the complaint or request except
on Sundays and holidays.
E. The penalty provision provided for violating this section shall noft apply
to any loss of service for which G'brtpanny has given prior notice, however the
perorated credit shall apply to all service interruptions of twenty-four (24)
haul or more for whatever reason other than the fault of the subscriber and
other than where service interruptions are caused by strikes, acts of God, and
other events beyond the Company's ability to control.
F. In the event a subscriber is without service, in-person maintenance calls
shall be made seven (7) days a week between the hours of 8:00 a.m. and 10:00
p.m. On SaturcW-. after 5:00 p.m. and on Sundays and holidays, maintenance
calls need not be made unless more than for (4) subscribers are affected by
the same cause.
7.11 Subscriber Practices.
There shall be no minimuan notice required for discamecticn of any installation
or outlet. If any subscriber fails to pay a properly due monthly subscriber
fee, or any other properly due fee or charge, Company may disconnect the
subscriber's service outlet, provided, however, that such disoonnecticn shall
not be effected until after the latter of
(i) thirty (30) days after the specified due date of said delinquent fee or
charge, or
(ii) ten (10) days after delivery to subscriber of written notice of the intent
to disconnect.
If a subscriber pays before expiration of the latter of (i) or (ii), Company
shall not disconnect. Upon a delinquent account being paid in full, the
Company will reinstall that customer on the same priority basis as other
subscribers requesting service.
7.12 Refunds to Subscribers.
A. Subject to federal law, after a subscriber has had cable service for a
period of one (1) year and has paid all monthly charges when due, the Company
shall refund the subscriber's initial service deposit plus accumulated
interest. The refund shall be made automatically by many without requiring
a request from the subscriber. Company may not refuse to refund the deposit
based on any complaint that the subscriber has made or on any prorated credit
that subscriber has received during the year. The Company may not refuse to
refund the deposit on the ground that the subscriber had deducted a disputed
amount frcm the payment of the monthly charges for a loss of service to which
14
® the subscriber was entitled. In the event Company fails to refund the deposit
plus interest within forty-five (45) days after the end of the one (1) year
period, the Canpany shall refund double the amount of the deposit plus
interest.
B. If Company fails to provide within twenty-one (21) days of the request any
service then available through and provided by Company requested by a
subscriberI Company shall refund within thirty (30) days all deposits or
advance charges paid for the service in question by said subscriber. This
pro Asian does not alter Company's responsibility to subscribers under any
separate contractual agreement or relieve Company of any other liability or
penalty.
C. If any subscriber terminates any monthly service prior to the end of a
prepaid period, a prorated portion of any prepaid subscriber service fee, using
the number of days as a basis, shall be credited to the subscriber's account by
Company and refunded to the subscriber upon settlement of all outstanding
obligations.
7.13 Periodic Review or Periodic Evaluation.
The field of cable canmw ications is a relatively new and rapidly changing
field which may see many regulatory, technical, financial, marketing and legal
changes during the term of this Franchise. Therefore, in order to provide for
a maxinnin degree of flexibility in the Franchise and to help achieve a
continued advanced and modern System, the following evaluation provisions are
agreed upon:
A. City reserves the right to adopt rules and regulations controlling the
procedures and subjects for periodic reviews and evaluation. In the absence of
any City action taken to exercise these rights, Company shall be subject to at
least the procedures and subjects described in this Section.
B. City may require, at its sole discretion, System performance evaluation
sessions at any time during the team of the Franchise or as required by federal
or state law. At a minimum, such evaluations sessions shall be conducted by
City within thirty (30) days of the second, fourth and seventh anniversary
dates of the effective date of the Franchise. Thane shall be no more than one
(1) review sessions during any calendar year.
C. All evaluation sessions shall be open to the public and notice of sessions
shall be given by company to all media sources in the co aunity, including
radio, television, and newspaper. Company shall see that a notice appears in a
locally published newspaper at least once either in the form of a paid
advertisement or as a news article prior to any evaluations session. Company
shall notify its subscribers of all evaluation sessions by announcement on a
least one (1) channel of System between the hours of 7:00 p.m. and 9:00 p.m.
for five consecutive days preceding each session.
D. Topics which may be discussed at any evaluation session may include, but
not be limited to, franchise fee, application of new technologies, system
performance, services provided, mix, quality and level of programming offered,
. local access channels, leased access channels, access facilities and support,
15
public, educational, or gowerimental origination, customer complaints, privacy,
judicial or FCC rulings, and any other topics City or Ca g3any deem relevant.
E. During a review and evaluation by City, Company shall fully cooperate with
City and shall provide without cost such information and documents as City may
request to reasonably perform the service.
F. If at any time during its review, or at any other time, City determines
that reasonable evidence exists of inadequate System performance, it may
require Conparry to perform tests and analyses directed toward such suspected
inadequacies at the Company's own expense. Company shall fully cooperate with
City in performing such testing and shall prepare results and a report, if
requested, within thirty (30) days after notice. The report to the City shall
include at least:
1) A description of the problem in System performance which precipitated the
special tests.
2) What System component was tested.
3) The equipment used and procedures employed in testing.
4) The method, if any, by which such System performance problem was
resolved.
5) Arty other information pertinent to said tests and analyses which may be
required by City or determined when the test is performed. If such tests
shows the system is in compliance with required rules and regulations, the
City shall pay for the tests. If the test indicates the system is not in
compliance, the Grantee shall pay for such tests.
G. Cbmparri shall axxbct an annual written opinion on su vey which identifies
subscribers satisfaction or dissatisfactions with the maintenance and complaint
Practices of Company. The questions contained in the survey shall be prepared
Jointly by representatives of the City and Company. The survey shall be
meted and tabulated by company subject to the supervision and approval of
City. The actual returned surveys shall be retained by either the Company or
City, as determined by City, and at the request of the City, the Company shall
prepare a written compilation report of the survey to the City Council on or
before July 1 of each year. In the event fifteen percent (15%) or more of
those surveyed report dissatisfaction with maintenance and complaint practices,
Company shall meet with City within fourteen (14) days of the date the survey
is compiled for the purposes of agreeing upon a course of action. Cc pany
shall then have forty-five (45) days from the date such course of action is
determined to implement whatever course of action is deemed appropriate, if
any. If the appropriate course of action is mat implemented within forty-five
(45) days, Company shall be deemed in violation of the Franchise and City may
impose liquidated damages as set forth in 8.03.
H. No earlier than one hundred eighty (180) days and no later than thirty (30)
days prior to a scheduled periodic review and evaluation session, Company shall
conduct a written poll of the programming and service preferences of at least
twenty-five (25) percent of the subscribers within the City. Each poll shall
16
be cone in a manner approved by City and conducted so as to provide
statistically reliable measurements of subsc riWr preferences four:
1) Programming and services offered by Company at the time the poll is
conducted and
2) General types of progra[taidng and services generally available to cable
aubscxibers but not offered by Company at the time the poll is conducted.
The poll results shall be compiled and published by Company in a mariner readily
oamprehensible to the public and shall be made available for public review
within the City at locations and times convenient to the public. Upon request
of City, Company shall make the subscriber returns available for City review
and inspection.
I. Company shall, at the time of each scheduled periodic review and evaluation
session, report in writing what steps the Company is taking to implement the
findings of the poll. In the event fifty-arse percent (51-%) or more of the
resporxdents request a service not currently offered, Company shall consider
providing such service. If the Company chooses not to provide such service, it
shall provide written notification to the City as to its reason for not
providing this service.
J. As a result of a periodic review or evaluation session, upon agreement by
the City and the Company, the franchise agreement may be modified. Company
will comply with any such requirement of City unless terliyology does not permit
it, the proposed changes and rate increases taken in combination are not
economically feasible, or insufficient time has been allowed for imple-
mentation. Failure of Company to upgrade or modify System as required shall be
grounds for forfeiture of monies from the letter of credit, unless due to
reasons beyond the reasonable control of Company and so demonstrated by
Company. City or Company may also pursue such other legal or equitable
remedies as may be available to it.
K. All reasonable, out-of-pocket expenses relating to the periodic review or
evaluation, including but not limited to the conduct of the poll, and analyses
and the employment of a consultant, shall be borne by Company. Any consultants
utilized shall be approved in advance by both Company and City.
sn TT s.
GENERAL FIIamIAL AND DOUPANM PROVISICINS.
8.01 Payment to City.
A. Company shall pay to City an annual amount equal to five percent (5%) of
its Gross Annual Revenues. The foregoing payment shall be compensation for use
of streets and other public property. The amount is deemed fair and reasonable
and may be used by City for such put-poses as it, from time to time, shall
determine.
17
® B. Payments due City antler this provision shall be computed at the end of each
quarter year for that quarter year. Payments shall be due and payable for each
quarter or a portion of a quarter year and payable to the City on February 1,
May 1, August 1, and November 1. Each payment shall be a000mpanied by a brief
report shovirxi the basis for the corputation and such other relevant facts as
may be required by the City.
C. No acceptance of any payment shall 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 City may have for further or
additional sums payable under the provisions of this Franchise Agreement. All
amounts paid shall be subject to audit and reoamputation by City or Company.
D. In the event that any payment or recomputed amount is not made on or before
the date specified he rein, Company shall pay as additional compensation:
1. An interest charge, omputed from such due date, at the annual rate
equal to the federal prime rate in effect upon the due date;
2. A sum of money equal to five percent (5%) of the amount due in order to
defrays those additional expenses and costs incurred by City by reason of
delinquent payment.
8.02 Letter of Credit.
A. At the time this Franchise is accepted, Company shall deliver to City an
irrevocable and unconditional letter of credit, in form and substance
acceptable to City from any bank approved by City within the state in the sum
of Twenty Thousand and No/100 Dollars ($20,000.00) as security for the faithful
performance by it of all the provisions of the Franchise, and compliance with
all valid orders, permits and directions of City, and the payment of Clo mparzy of
any claim, and liens due City which arise by reason of the construction,
operation or maintenance of the System. Company may, upon approval of City,
maintain one letter of credit for one or more cities.
B. The letter of credit shall provide that funds will be paid to City, upon
written demand of City, and in an amount determined by City, unless being
contested in good faith in appropriate prooeedings. Such amount shall be:
1) Liquidated damages as set forth in 8.03; and
2) Reimbursement for expenses incurred by City in connection with performing
or securing performance of the Franchise provisions by Company as provided
in this franchise.
C. If said letter of credit or any subsequent letter of credit delivered
pursuant hereto expires prior to twelve (12) months after the expiration of the
term of the Franchise, it shall be re *wed or replaced during the term of the
Franchise to provide that it will not expire earlier than twelve (12) months
after the expiration of the Franchise. The renewed or replaced letter of
credit shall be on the same form and with a bank authorized herein and for the
full amount stated in paragraph A of this section. If Company cannot obtain a
® letter of credit extending past the expiration of the Franchise, Company shall
18
® post a cash bond or cash security fund, or other financial instrument
acceptable by City and Company, to expire no later than twelve (12) months
after the expiration of the Franchise.
D. If City draws upon the letter of credit, or any subsequent letter of credit
delivered pursuant hereto, in whole or in part, Company shall replenish the
same within tan (10) days, when the amount of the draw dawn surpasses One
Thousand Dollars ($1,000.00).
E. If any letter of credit is not so replenished, City may draw on said letter
of credit for the whole amount thereof and hold the proceeds, without interest,
and use the proceeds to pay costs incurred by City in performing and paying for
any or all of the obligations, duties and r lities of Company under the
Franchise that are not performed or paid for by Company pursuant hereto,
including attorneys' fees incurred by the City in so performing and paying.
The failure to so replenish any letter of credit may also, at the option of
City, be deemed a default by Company under this Franchise. The drawing on the
letter of credit by City, and use of the money so obtained for payment of
liquidated damages or of expenses incurred by City in couneation with
performing or securing performance of the Franchise provisions by Cag3any,
shall not be a waiver or release of any default by Company.
F. If Company fails, after ten (10) days written mice, fails to repay to
City within such ten (10) days, any damages, costs or expenses which City shall
be compelled to pay by reason of Company's failure to perform its obligations
in connection with the Franchise: or fails, after ten (10) written days notice
of such failure by City, to comply with any provision of the Franchise which
® City reasonably determines can be remedied by an expenditure of the security,
City may immediately withdraw the amount thereof, with interest and any
liquidated damages, fron the letter of credit. Upon such withdrawal, City
shall notify Company of the amount and date thereof.
8.03 Liquidated Damages from Letter of Credit.
In addition to recovery of any monies oared by Company to City or damages or any
other remedies as a result of any acts or omissions by Company pursuant to the
Franchise, City may charge to and collect from the letter of edit the
following liquidated damages:
A. Fbr failure to complete System construction in accordance with ale
provided by Company, unless City approves the delay, the amount shall be Two
Hundred Dollars ($200.00) per day.
B. . For failure to meet conditions of City permits to disturb the sheets, the
amount shall be Fifty Dollars ($50.00) per day. Should the City adopt a
general ordinance providing for penalties for street cuts, this section shall
be deemed withdrawn from the franchise and Company shall be subject to the
provisions of any such ordinance.
C. For failure of Company to comply with construction, operation or
maintenance standards as required or provided in the franchise agreement, the
amount shall be One Hundred Dollars ($100.00) per day.
19
D. For failure to test, analyze and report on the performance of the System
following a request by City as provided in the franchise agreement amount shall
be One Hundred Dollars ($100.00) per day.
E. Far failure to provide data, documents, reports or infoacmaticn or to
cooperate with the City during an application process, audit, or System review,
the amount shall be one Hundred Dollars ($100.00) per day.
F. For failure to oomply with any of the provisions of the Franchise for which
an amount is not otherwise specifically provided pursuant to this section, the
amount shall be one Hundred Dollars ($100.00) per day.
G. Each violation of any provision of the Franchise shall be considered a
separate violation for which the penalty imposed is assessed for each day the
violation oontinues.
H. Failure of CompaYy to make system service available within the time periods
established in this franchise shall result in the imposition of a penalty of
two (2) dollars per day to be paid to the subscriber requesting service and one
(1) dollar per day to be paid to the City for each subscriber that has not
received cable service after the expiration of twenty-cna (21) days following
the request for service.
I. If the subscriber is without service for twenty--four (24) hours or more, the
Cmpany shall be assessed a penalty, of two (2) dollars per day to be credited
or paid to the subscriber who is without service and one (1) dollar per day to
be paid to the City for each subscriber without service for twenty-four (24)
hours or more, provided the loss of service is not due to neglect, abuse or any
fault of the subscriber, nor caused by strikes, Acts of God, or other events
beyond the Company's ability to control. The City's penalty shall be
accumulated and paid amially.
8.04 Relaticn to Other Remedies.
The rights reserved to City with respect to the letter of credit and the
liquidated damages are in addition to all other rights of City, whether
reserved by the Franchise or authorized by law, and no action, proceeding or
exercise of a right with respect to the letter of credit or the liquidated
damages shall affect any other right City may have.
8.05 Procedure.
A. kNuv ver City finds that company has violated one (1) or more terms,
oonditions or provisions of the Franchise a written notice shall be given to
Coupany informing it of such violation. company shall have fourteen (14) days
subsequent to receipt of the notice in which to correct the violation before
City shall resort to the letter of credit. Cmpany may notify City within ten
(10) days of notice, that there is a dispute as to whether a violation, or
failure has, in fact, occurred. Such notice shall stay the running of the
above described fourteen (14) day period, and such notice shall specify with
particularity the matters disputed by Cmpany.
20
B. City shall hear Company's dispute at its next regularly scGieduied meeting
of the Camd.ssicn. City shall supplement the decision with written findings of
fact. Any hearing shall be only after the City has given Canpany reasonable
notice of not less than seven days (7), and the Company shall be given the
opportunity to be heard.
C. If after hearing the dispute the claim is upheld by City, CompmYy shall
have fourteen (14) days from such a determination to remedy the violation or
failure provided that the time may be extended by the City at the hearing upon
a showing by the Canpany of need for an additional period. At any time after
the fourteen (14) day period or such time as may have been allowed, City may
draw against the letter of credit all liquidated damages due it. If the matter
cannot be corrected due to the fact it is totally beyond Conpany's ability to
control or correct, then no, penalty shall be assessed.
D. The letter of credit provided pursuant to the Franchise shall become the
property of City in the event that the Franchise is cancelled by reason of the
default of Company or revoked for cause. However, Cmpany shall be entitled to
the return of such letter of credit or portion thereof as remains on deposit at
the expiration of the term of the Franchise or upon termination of the
Franchise at an earlier date, prodded that there is them m outstanding
default on the part of Company.
8.06 Damages and Defense.
A. Company shall hold harmless City for all damages and penalties as a result
of the exercise of the Franchise. These damages and penalties shall include,
but shall not be limited to, damages arising out of copyright infringement,
defamation and all other damages arising out of negligence in the construction,
operation, maintenance or reconstruction of the System authorized herein,
whether or not any act or omission cwplain9d of is authorized, allowed or
prohibited by the Franchise.
B. Company shall pay all reasonable expenses incurred by City in defending
itself with regard to all damages and penalties mentioned in paragraph A of
this section. These expenses shall include all out-of-pocket expenses, such as
attorneys' fees, and shall also include the reasonable value of any services
rendered by any employees of City.
8.07 Liability Lwnwanoe and Indemnification.
A. Company shall maintain, throughout the term of the Franchise, liability
insurance insuring Company and City with regard to all damages mentioned in
paragraph A of the Section 8.06, in the minimum amounts of:
$250,000 for property damage to any one person;
$1,000,000 for property damage in anyone accident;
$1,000,000 for personal bodily injury to any one person; and
$2,000,000 for personal bodily injury in any one accident.
21
B. At time of acceptance, Company shall furnish to City a certificate that a
satisfactory insurance policy has been obtained.
RII0VAL AM PURCHASE.
9.01 Removal After Revocation.
A. At the expiration of the term for which the Franchise is granted or upon
its revocation, City shall have the right to require Company to remove, at
Company's expense, any portion of System from all streets and public property
within the City. In so removing System, Company shall refill and compact any
excavation that shall be made and shall leave all streets, public property and
private property in as good a condition as that prevailing prior to Company's
removal of System and without affecting, altering or disturbing in any way
electric, telephone or utility, cables, wires or attachments. City, or its
designee, shall have the right to inspect and approve the condition of such
streets and public property after removal. The letter of credit, Insurance,
Indemnity and Liquidated Damages provision of the Franchise shall remain in
full force and effect during the entire term of removal.
B. If, in the sole discretion of City, Company has failed to commence removal
of System, or such part thereof as was designated within thirty (30) days after
written notice of City's demand for removal is given, or if Company has failed
to complete such removal within one (1) year after written notice of City's
demand for removal is given, City shall have the right to exercise one of the
following options:
1) Declare all right, title and interest to System to be in City or its
delegator with all rights of ownership including, but not limited to, the
right to operate System or transfer System to another for operation by it.
2) Declare System abandoned and cause system, or such part thereof as the
City .shall designate, to be removed at no cost of City. The cost of said
removal shall be recoverable from the letter of credit, Indemnity and
Liquidated Damages section provided for in the Franchise, or from Company
directly as a liquidated damage.
9.02 City's Right to Purchase System.
City shall be entitled to a right of first refusal of any bona fide offer to
purchase System made to Company. Baba fide as used in this section means an
offer received by Company that it intends to accept. Company shall notify City
of its intent to accept a bona fide offer, and City shall have thirty (30)
business days to exercise its right on the same terms and conditions as the
bona fide offer.
9.03 General Purchase Provisions.
22
A. Upon termination of the franchise, City may purchase, take over and hold
the property and plant of Canpany as follows:
I. If such purchase or taking over be at the expiration of the Franchise,
such valuation shall be the fair market value, determined on the basis of
the cable system valued as a going concern, but with no value allocated to
the Franchise itself.
2. If such purchase or taking oven be at the revocation of the Franchise,
such valuation shall be at an equitable price.
SE MON 10
PRM ESIONS.
10.01 Sale or Transfer of Franchise.
A. The Franchise shall not be sold, assigned or transferred, either in whole
or in part, or leased or sublet in any manner, nor shall title thereto, either
legal or equitable, or any right, interest or property therein, pass to or vest
in any person without full ompliance with the procedure set forth in this
section. Any sale or transfer of the Franchise shall be subject to any
applicable ownership and control limitations or prohibitions imposed by federal
or state law. This section shall include sale or transfer of all or a majority
of a corporation's assets, manger (including any parent and its subsidiary
corporation), consolidation, creation of a subsidiary corporation or sale or
transfer of stock in a corporation so as to create a new controlling interest
in System. The term "controlling interest" as used herein is not limited to
majority stock ownership, but includes actual working control in whatever
mariner exercised.
B. The procedure prior to the sale or transfer is as follows:
1) The parties to the sale or transfer of the Franchise shall make a written
request to City for its approval of a sale or transfer of the Franchise.
2) City shall reply in writing within thirty (30) days of the request and
shall indicate approval of the request or its determination that a public
hearing is necessary due to potential adverse effect on the subscribers.
3) If a public hearing is deemed necessary pursuant to (2) above, such
hearing shall be ccrAmted within thirty (30) days of such determination and
notice of such public hearing shall be given pursuant to applicable law.
4) Within thirty (30) days after the public hearing, City shall approve or
deny in writing the sale or transfer request.
5) many, upon transfer, shall within sixty (60) days thereafter file with
City a copy of the deed, agreement, mortgage, lease or other written
instrument evidencing such sale, transfer of ownership or control or lease,
certified and sworn to as correct by Cmnpany.
23
1 • 1
® C. In reviewing a request for sale or transfer pursuant to section (A) above,
City may inquire into the qualifications of the prospective controlling party,
and Company shall assist City in so inquiring. City may condition said
transfer upon such reasonable terms and conditions as it deems appropriate.
The City's consent to the sale or transfer of the franchise shall not be
unreasonably withheld.
D. In no event shall a transfer or assignment of ownership or control be
appravea without the transferee becoming a signatory to the Agreement.
10.02 Subsequent Action by State or Federal Bodies: Sev rability.
A. It is the intent of the parties that the terms, conditions and cbligatials
set forth in this Agreement shall be binding upon both parties for the full
tern of the Franchise, unless, due to cant determination, federal or state law
or regulation applicable to the Franchise, one (1) or more of the following
aorxditions exist:
1. City or Ccatpany is specifically prohibited from performing any service
set forth in the Franchise, or
2. City or Company is specifically required to perform a service
inconsistent with the Franchise, or
3. City or Ccaparry is specifically prohibited from being subject to the
regulatory standards of the Franchise.
B. City or Cog3any may agree to terminate the franchise if both parties agree
that the ocriditians set forth in Paragraph (A) constitute, at that time, a
consideration material to the continuance of the Franchise. Any such
revocation will occur only after following the procedures applicable to
revocation.
C. City and Company agree that either party may seek a ruling as to tt-,e
applicability of any court determination, federal or state law or regulation to
the terms of the Franchise.
10.03 No Aacoca se Against the city.
Ewept as otherwise provided in this franchise, Campany shall have no recourse
whatsoever against City or its officials, agents or employees for any loss,
costs, expense or damage arising out of any provision or requirement of the
Franchise or because of the enforcement of the Franchise.
10.04 Nanenforaement by City.
Company shall not be relieved of its obligation to comply with any of the
provisions of the Franchise by reason of any failure of City to enforce prampt
oanpliance.
10.05 General Provision an Rights and Remedies.
® A. All rights and remedies given to City by the Franchise shall be in addition
to and cumulative with any and all other rights or remedies, existing or
implied, now or hereafter available to City, at law or in equity, and such
rights and remedies shall not be exclusive, but each and every right and remedy
specifically given by the Franchise or otherwise existing or given may be
exercised from time to time and as often and in such order as may be deemed
expedient by City and the exercise of one or more rights or remedies shall not
be deemed a waiver of the right to exercise at the same time or thereafter any
of the right or remedy. No delay or omission of City to exercise any right or
remedy shall impair any such right or remedy, nor shall any such delay or
omission be construed to be a waiver of or aequiesoenee to any default. The
exercise of any such right or remedy by City shall not release Canpany from its
obligations or any liability under the Franchise.
B. In addition to all other remedies granted or available to City, it shall be
entitled to the restraint by injunction of the violation, or attempted or
threatened violation, by Company of any terms or provisions of the Franchise,
or to a decree compelling performance by ComparYy of any term or provision of
the Franchise.
C. This Agreement is entered into in good faith and the parties hereto have
read, understood and agreed to all the terms and conditions herein. Both
parties believe that the terms and conditions herein are not unreasonable or
arbitrary and that each party has the power to agree to the terms and
conditions herein.
® D. City reserves the right to delegate and redelegate from time to time any of
its rights or obligations under the Franchise to any body or organization.
10.06 Separability.
If arrl provision of this Franchise is held by any court or by any federal,
state, or county agency of competent jurisdiction to be invalid as conflicting
with any federal, state, or county law, rule or regulation now or hereafter in
effect, or is held by such court or agency to be modified in any way in order
to conform to the requirements of any such law, rule or regulation, said
provision shall be considered a separate, distinct and independent part of this
Franchise and such holding shall not affect the validity and enforceability of
all other provisions hereof. In the event that such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed, .no that the
provision hereof or thereof which had been held invalid or modified is no
longer in conflict with the law, rules and regulations then in effect, said
Provision shall thereupon return to full force and effect and shall thereafter
be binding on City and Company, provided that the City shall give Company
thirty (30) days written notice of such change before requiring compliance with
said provisions.
10.07 Chmiges in Claezt Law.
In the event the Cable Communication Policy Act of 1984, Pub. L. No. 98-549, 98
Stat. 2779 (1984), or any other law or amendment regulating cable
ooimnuzicaticns is invalidated or changed to permit additional regulation by the
25
City of the rates or programming of Company, then the City shall be deemed to
® be back in the rate and progranming regulation upon the passage or invalidation
of any such law. In the event of such an occurrence there shall be a one year
moratorium placed opal any regulation of programming. Rates of the Company in
existence at the time of such change in the law shall be ccntintwd but may not
be increased, except that notwithstanding anything to the contrary herein, an
increase of up to eight percent (8$) shall be allaaed annually on the
anniversary date of the franchise. To obtain the increase, Grantee shall file
written notice of explanation which shall be no longer than five (5)
,ypewritten pages to the City within thirty (30) days of the anniversary date
of the frank. The written notice shall state the increase in percent and
real dollars. The increase shall go into effect on the thirtieth (30th) day
after filing.
SDC'!'ION 11.
CONFLICT.
To the extait that there is any conflict between this franchise and federal
law, federal law shall apply. To the extent there is any conflict bebmen this
franchise and Ordinance No. 10833 of the City of Jefferson, the provisions of
this franchise shall apply.
SD(.TIONd 12.
CHMGES DUE TO AMMCN!AL GRANTS OF FFfNCfIISES.
® In the event the City enters into a franchise, permit, license, authorization,
or other agreement of any kind with any other person or entity other than the
Grantee for the purpose of constructing, operating, or maintaining a cable
system or providing cable servioe to the franchise area which either (a)
permits such person or entity to make system service available to less than 100
Percent of the dwellirxg units in the Grantee's service area, or (b) contains
terms more favorable to such person or entity in any regard than similar
provisions of this agreement, then this agreement shall be deemed amended as of
the effective date of the other franchise, permit, license, authorization, or
other agreement, so as to give the Grantee the benefit of any such more
favorable terms, except that disparate terms may be permitted during the first
two years of an agreement with any other person or entity.
26
IN WRMS WRERMF, the Parties hereto set have their hands and seals this
jk t day of
Q CITY OF JEFFERSON, MISSOURI
ATTEST:
-iQLty Clerk
TCI CABLMSION OF MISSOURI, INC.
�reS iCl ex�
ATMT:
Title:
27
A C ORD ` � b e� ,`r�"LRoi��f��iw� �y��y�µ ����"i�}"" / AM D11TE(MMIDOIYY)
^' c 'svl�rita}± !R[uN::r,+i< a«.d<„ 5270000 12/18/98
►RODUCER rr THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
LOCKTON COMPANIESIDENVER ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
P.O.BOX 221300 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
DENVER,CO 80222.0099 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
COMPANY OLD REPUBLIC INSURANCE COMPANY
A
tNSUREO COMPANY
AMERICAN ALTERNATIVE INS.CO.
TCI CABLEVISIOiV OF MISSOURI,
INC. COMPANY
5819 DTC PARKWAY C
COMPANY
ENGLEWOOD,CO 80111 D
z l-
/�
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MA'Y PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION
LTR DATE(MM/DDIYY) DATE(MM/DD/Ylf) LIMITS
A GENERALLIABIUTY MWZY64753 1/1/97 1/1/98 GENERAL AGGREGATE $ 1,000,000
ftOWNER'S OMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG 3 1,000,000
CLAIMS MADE XI OCCUR PERSONAL 6 ADV INJURY S 1,000,000
&CONTRACTOR'S PROT EAC4 OCCURRENCE S 1,000,000
FIRE DAMAGE(Any one ere) S 100,000
MED EXP(Any one person) 3
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT $
ANY AUTO
ALL OWNED AUTOS BODILY INJURY
SCHEDULED AUTOS (Per person) $
HIRED AUTOS BODILY INJURY
NON-OWNED AUTOS (Per accident) s
PROPERTY DAMAGE S
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $
ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT S
AGGREGATE S
EXCESS LIABILITY EACH OCCURRENCE is
UMBRELLA FORM AGGREGATE $
OTHER THAN UMBRELLA FORM Is
WORKERS COMPENSATION AND RY LIMIT ER
EMPLOYERS'LIABILITY
EL EACH ACCIDENT $
THE PROPRIETOR/ INCL EL DISEASE-POLICY LIMIT $
PARTNERS/EXECUTIVE
OFFICERS ARE: EXCL EL DISEASE-EA EMPLOYEE $
OTHER
DESCRIPTION OF OPERATIONSILOCATIONS IVEHICLESISPECIAL ITEMS
JEFFERSON CITY,CERTHOLDER IS ADDL INSD ON GL POLICY,IF REQUIRED BY WRITTEN CONTRACT.CABLE TELEVISION AND/OR MICROWAVE TRANSMISSION
V G OLQ Tn1Y!!y�{' „F W'1,/A�I j'.u*)r> ,tiNY ;' '.�{ L � Y ,,,, ? }CA CELLATIO If�.i•'i�elf>� 1=9Y t 1 �ry wi.- 't,N � }: S P^ ;�
.�l�.I��.!►,T.-:�..�....�R:.�.a�.,�:,:�+z.,s.e.,h ���.�,���:��.r:.�...,.�1,.;;t.�..:,��<,.,<�. . N�.. ,N;��II,���:��:;i,'��....a�.....,.1:�„��,.' X
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
CITY OF JEFFERSON CITY EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
OCCARTY ST, OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES,
AUTHORIZED REPRESEN"
JEFFERSON CITY,MO 85101