HomeMy Public PortalAboutCable TV franchise agreement Received: 4/29/04 8.14; - >US Cable Corp.; #936; Page 2
From:CITY OF TYBEE / ZONING 912 786 9539 04/29/2004 22 :13 #049 P.002/039
CABLE TELEVISION FRANCHISE ORDINANCE
FOR THE
CITY OF TYBEE ISLAND, GEORGIA
AND
US CABLE OF COASTAL-TEXAS, L., .
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From:CITY OF TYBEE / ZONING 912 786 9539 04/29/2004 22:13 #049 P.003/039
- I
TABLE OF CONTENTS
SECTION 1. SHORT TITLE AND DEFINITIONS 1
1. Short Title 1
2. Definitions 1
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 5
1. Grant of Franchise 5
2. Grant of Nonexclusive Authority 5
3. Lease or Assignment Prohibited 5
4. Franchise Term - 5
5. Previous Franchises. 6
6. Compliance with Applicable Laws, Resolutions and Ordinances 6
7. Rules of Grantee 6
8. Territorial Area Involved 6
9. Written Notice 7
10. Ownership of Grantee 7
SECTION 3. CONSTRUCTION STANDARDS 7
1. Registration, Permits Construction Codes and Cooperation 7
2. Use of existing poles or conduits 8
3. Minimum Interference 8
4. Disturbance or damage 8
5. Temporary Relocation 9
6. Emergency 9
7. Tree Trimming 9'
8. Protection of facilities
9. Installation records 10
10. Locating facilities 10
11. City's rights 10
12. Facilities in conflict 10
13. Relocation delays 11
14. Interference with City Facilities 11
15. Interference with Utility Facilities 11
16. Collocation 11
17. Safety Requirements 11
SECTION 4. DESIGN PROVISIONS 12
1. System Upgrade: Minimum Channel Capacity 12
2. Construction 12
3. Interruption of Service 12
4. Emergency Alert Capability 12
5. Technical Standards 12
6. Special Testing 12
7. FCC Reports 13
8. Interconnection 13
9. Annexation 13 "
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10. Line Extension 13
11. Lockout Device 14
SECTION 5. SERVICE PROVISIONS 14
1. Regulation of Service Rates 14
2. Non - Standard Installations 14
3. Sales Procedures 15
4. Consumer Protection and Service Standards 15
5. Subscriber Contracts 18
6. Refund Policy 18.
7. Late Fees '. 18
SECTION 6. ACCESS CHANNELS(S) PROVISIONS 18
1. Grantee Support for Access Channels 18
2. Compliance with Federal Law 18
SECTION 7. OPERATION AND ADMINISTRATION PROVISIONS 19
1. Administration of Franchise 19
2. Delegated- Authority 19
3. Franchise Fee 19
4. Not Franchise Fees 19
5. Access to Records 20
7. Periodic Evaluation 20
SECTION 8. GENERAL FINANCIAL AND INSURANCE PROVISIONS 21
1. Letter of Credit 21
2. Procedure for Remedying Franchise Violations 22
3. Liability Insurance 23
4. Indemnification 24
5. Grantee's Insurance 25
SECTION 9. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE25 •
1. City's Right to Revoke 25
2. Procedures for Revocation 25
3. Abandonment of Service 26
4. Removal After Abandonment, Termination or Forfeiture 26
5. Sale or Transfer of Franchise 26
SECTION 10. PROTECTION OF INDIVIDUAL RIGHTS 27
1. Discriminatory Practices Prohibited 27
2. Subscriber Privacy 27
SECTION 11. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS 27
1. Unauthorized Connections or Modifications Prohibited 27
2. Removal or Destruction Prohibited 27
3. Penalty 28
SECTION 12. MISCELLANEOUS PROVISIONS 28
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1. Franchise Renewal 28
2. Work Performed by Others 28.
3. Amendment of Franchise Ordinance 28
4. Compliance with Federal, State and Local Laws 28
5. Nonenforcement by City 29
6. Rights Cumulative 29
7. Grantee Acknowledgment of Validity of Franchise 29
8. Force Majeure 29
SECTION 13. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 29
1. Publication, Effective Date 29
2. Acceptance 29
EXHIBIT A OWNERSHIP A-1
EXHIBIT B GRANTEE COMMITMENT TO GOVERNMENT ACCESS FACILITIES
AND EQUIPMENT B-1
EXHIBIT C SERVICE TO PUBLIC BUILDINGS C-1
EXHIBIT D FRANCHISE FEE PAYMENT WORKSHEET E-1
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From:CITY OF TYBEE / ZONING 912 786 9539 04/29/2004 22:14 #049 P.006/039
ORDINANCE NO.
AN ORDINANCE GRANTING A FRANCHISE TO US CABLE OF COASTAL - 'TEXAS; L.P.,
TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM N THE CITY OF
TYBEE ISLAND, GEORGIA SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE
SYSTEM AND THE PUBLIC RIGHTS -OF -WAY AND PRESCRIBING PENALTIES FOR
THE VIOLATION OF THE PROVISIONS HEREIN;
The City Council of the City of Tybee Island, Georgia ordains:
STATEMENT OF INTENT AND PURPOSE
City intends, by the adoption of this Franchise, to bring about the continued operation and further
development of a Cable System. Such development can contribute significantly to the
coirununication needs and desires of the residents and citizens of City and the public generally.
Further, City may achieve better utilization and improvement of public services and enhanced
economic development with the development and operation of a Cable System.
Adoption of this Franchise is, in the judgment of the City Council, in the best interests of City
and its residents.
FINDINGS
In the review of the request for renewal by Grantee and negotiations related thereto, and as a
result of a public hearing, the City Council makes the following findings:
1. Grantee's technical ability, financial condition, legal qualifications, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
2. Grantee's plans for constructing and operating the Cable System were considered and
found adequate and feasible in a full public proceeding after due notice and a reasonable
opportunity to be heard;
3. The Franchise granted to Grantee by City complies with the existing applicable state
statutes, federal Iaws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1.
SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise Ordinance shall be known and cited as the Cable Television
Franchise Ordinance.
2. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and
their derivations shall have the meaning given herein. When not inconsistent with the
context, words in the singular number include the plural number, and words in the plural
number include the singular number. The word "shall" is always mandatory and not
merely directory. The word "may" is directory and discretionary and not mandatory.
Words not defined shall be given their common and ordinary meaning.
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a. "Applicable Laws" means state, local or federal law.
b. "Basic Cable Service" means any Service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational,
and governmental access programming required by the Franchise to be carried on
the basic tier. Basic Cable Service as defined herein shall not be inconsistent with
47 U.S.C. § 543(b)(7).
c. "Cable Service" or "Service" means (A) the one -way transmission to Subscribers
of (i) Video Programming or (ii) Other Programming Service, and (B) Subscriber
interaction, if any, which is required for the selection or use of such Video
Programming or Other Programming Service. Cable. Service as defined herein
shall not be inconsistent with the definition set forth in 47 U.S.C. § 522(6).
d. "Cable System" or "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes Video
Programming and which is provided to multiple Subscribers within a community,
but such term does not include:
(1) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
(2) a facility that serves Subscribers without using any public Right -of -Way;
(3) a facility of common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. § 201 et seq., except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)
to the extent such facility is used in the transmission of Video
Programming directly to Subscribers, unless the extent of such use is
solely to provide interactive on -demand services;
(4) an open video system that complies with 47 U.S.C. § 573; or
(5) any facilities of any electric utility used solely for operating its electric
utility systems.
e. "Channel" or "Cable Channel" means portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a
television channel.
f. "City" means City of Tybee Island, a municipal corporation, in the State of
Georgia, acting by and through its City Council, or its lawfully appointed
designee.
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g. "City Council" means the governing body of the City of Tybee Island, Georgia.
h. "Converter" means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber and by an appropriate selector
permits a Subscriber to view all Subscriber signals included in the Service.
i. "Drop" means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
j. "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
k. "Franchise" or "Cable Franchise" means this franchise ordinance and the
regulatory and contractual relationship established hereby.
R. "Franchise Fee" includes any tax, fee, or assessment of any kind imposed by the
City or other governmental entity on Grantee or Subscriber, or both, solely
because of their status as such. It does not include any tax, fee, or assessment of
general applicability (including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services but not including a tax, fee, or
assessment which is unduly discriminatory against cable operators or cable
Subscribers); capital costs which are required by the Franchise to be incurred by
Grantee for public, educational, or governmental access facilities; requirements or
charges incidental to the awarding or enforcing of the Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification,
penalties, or liquidated damages; or any fee imposed under Title 17.
in. "Grantee" is US Cable of Coastal-Texas, L.P., its lawful successors, transferees or
assignees.
n. "Gross Revenue" means all revenue derived directly or indirectly by Grantee, its
affiliates, subsidiaries, or parent from the operation of its Cable System to provide
Cable Service within City including, but not limited to, all Cable Service fees, ,
Franchise Fees, late fees, Installation and reconnection fees, upgrade and
downgrade fees, advertising revenue (consistent with GAAP), Converter rental
fees and Lockout Device fees. The term Gross Revenue shall not include any
taxes on services furnished by Grantee imposed by any municipality, state, or
other governmental unit and collected by Grantee for such governmental unit.
o. "Installation" means the connection of the Cable System from feeder cable to the
point of connection including Standard Installations and custom Installations with
the Subscriber Converter or other terminal equipment.
p. "Lockout Device" means an optional mechanical or electrical accessory to a
Subscriber's terminal which inhibits the viewing of a certain program, certain
Channel, or certain Channels provided by way of the Cable System.
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q. "Normal Business Hours" means those hours during which most similar
businesses in City are open to serve customers. In all cases, "No !Anal Business
Hours" must include some evening hours, at least one (1) night per week and/or
some weekend hours.
r. "Nomial Operating Conditions" means those Service conditions which are within
the control of Grantee. Those conditions which are not within the control of
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions.
Those conditions which are ordinarily within the control of Grantee include, but
are not limited to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of the Cable
System.
s. "Other Programming Service" means information that a cable operator makes
available to all Subscribers generally.
t. "Pay Television" means the delivery over the System of pay-per-channel or pay-
per-program audio-visual signals to Subscribers for a fee or charge, in addition to
the charge for Basic Cable Service or Cable Programming Services.
u. "Person" is any Person, firm, partnership, association, corporation, company,
limited liability entity or other legal entity.
v. "Right-of-Way" or "Rights-of-Way" means the area on, below, or above any real
property in City in which the City has an interest including, but not limited to any
street, road, highway, alley, sidewalk, parkway, park, skyway, or any other place,
area, or real property owned by or under the control of City, including other
dedicated Rights-of-Way for travel purposes and utility easements.
w. "Right-of-Way Ordinance" means any ordinance codifying requirements
regarding regulation, management and use of Rights-of-Way in City, including
registration and permitting requirements.
x. "Service Area" or "Franchise Area" means the entire geographic area within the
City as it is now constituted or may in the future be constituted.
y. "Service Interruption" means the loss of picture or sound on one or more Cable
Channels.
z. "Standard Installation" means any residential Installation which can be completed
using a Drop of one hundred fifty (150) feet or less.
aa. "Subscriber" means any Person who law receives Cable Service via the
System. In the case of multiple office buildings or multiple dwelling units, the
"Subscriber" means the lessee, tenant or occupant.
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bb. "Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein.
2. Grant of Nonexclusive Authority.
a. The Grantee shall have the right and privilege, subject to the permitting and other
lawf.: requirements of City to operate, construct, erect, and maintin, in, upon,
along, across, above, over and under the Rights-of-Way in City a Cable System.
The System constructed and maintained by Grantee or its agents shall not
interfere with other uses of the Rights-of-Way. Grantee shall make use of
existing poles and other above and below ground facilities available to Grantee to
the extent it is technically and economically feasible to do so.
b. Notwithstanding the above grant to use Rights-of-Way, no Right-of-Way shall be
used by Grantee if City determines that such use is inconsistent with the terms,
conditions, or provisions by which such Right-of-Way was created or dedicated,
or with the present use of the Right-of-Way.
c. This Franchise shall be nonexclusive, and City reserves the right to grant use of
said Rights-of-Way to any Person at any time during the period of this Franchise
for the provision of Cable Service. After the effective date hereof and so long as
applicable law allows, the City will not grant a franchise to an operator of a cable
system required by law to obtain a franchise, or amend the franchises existing on
the date hereof, if such franchise or amendment contains material terms that,
when taken in their entirety, are more favorable or less burdensome than the
material terms set forth in this Agreement.
3. Lease or Assignment Prohibited. No Person may lease Grantee's System for the purpose
of providing Cable Service until and unless such Person shall have first obtained and
shall currently hold a valid franchise or other lawful authorization from the City
containing substantially similar burdens and obligations to this Franchise. Any
assignment of rights under this Franchise shall be subject to and in accordance with the
requirements of Section 9.5 of this Franchise. This provision shall not prevent Grantee
from complying with any commercial leased access requirements or any other provisions
of Applicable Law.
4. Franchise Term. This Franchise shall be in effect for a period of seven (7) years from the
Effective Date, unless sooner extended, renewed, revoked or terminated as herein
provided. The Franchise shall be extended an additional three (3) years if the Grantee
upgrades to a 550 MHz System capable of providing a minimum of eighty (80) activated
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video Channels or its equivalent in a combination of analog and digital Video
Programming Services on the Cable System by December 31, 2005.
5. Previous Franchises. Upon acceptance by Grantee as required by Section 13 herein, this
Franchise shall supersede and replace any previous ordinance or other authorization
granting a franchise to Grantee.
6. Compliance with Applicable Laws, Resolutions and Ordinances.
a. The teiuis of this Franchise shall define the contractual rights and obligations of
Grantee with respect to the provision of Cable Service and operation of the
System in their entirety. However, Grantee shall at all times during the term of
this Franchise be subject to all lawful exercise of the police power of City. This
Franchise may also be modified or amended with the written consent of City and
Grantee as provided in Section 12.3 herein:
b. Grantee shall be subject to the terms of any City ordinance or regulation of
general applicability which addresses usage of the Rights -of -Way within City
adopted pursuant to a valid exercise of City's police powers.
c. In the event Grantee cannot determine how to comply with any Right -of -Way
requirement of City, whether pursuant to this Franchise or other requirement,
Grantee shall immediately provide written notice of such question, including
Grantee's proposed interpretation, to City, in accordance with Section 2.9. City
shall provide a written response within five (5) days of receipt indicating how the
requirements cited by Grantee apply or requesting additional time for review not
to exceed fourteen (14) days from receipt. Grantee may proceed in accordance
with its proposed interpretation in the event a written response or request for
additional time is not received within seven (7) days of mailing or delivering such
written question. City will use all reasonable best efforts to ensure that no Right -
of -Way ordinance provisions unduly slow Grantee's System rebuild unless
necessary to address health safety and welfare concerns.
7. Rules of Grantee. Grantee shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligations under
this Franchise and to assure uninterrupted Service to each and all of its Subscribers;
provided that such rules, regulations, terms and conditions shall not be in conflict with
applicable laws. .
8. Territorial Area Involved. This Franchise is granted for the corporate boundaries of City,
as they exist from time to time. Access to Cable Service shall not be denied to any group
of potential residential cable Subscribers because of the income of the residents of the
area in which such group resides.
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9. Written Notice. All notices, reports, or demands required to be given in writing under
this Franchise shall be deemed to be given when delivered personally to any officer of
Grantee or City's manager of this Franchise or forty -eight (48) hours after it is deposited
in the United States mail in a sealed envelope, with registered or certified mail postage
prepaid thereon, addressed to the party to whom notice is being given, as follows:
If to City: City Manager
403 Butler Street
Tybee Island, GA 31328 -2749
If to Grantee: US Cable of Coastal- Texas, L.P.
Attn: Vice President Operations
28 West Grand Avenue
Montvale, NJ 07645
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
10. Ownership of Grantee. Grantee represents and warrants to City that the corporate
structure as set forth in Exhibit A hereto is true and accurate.
SECTION 3.
CONSTRUCTION STANDARDS
1. Registration, Permits, Construction Codes, and Cooperation.
a. Grantee shall comply with the construction requirements of local, state and
federal laws.
b. Grantee agrees to obtain a permit as required by City prior to removing,
abandoning, relocating or reconstructing, if necessary, any portion of its facilities,
other than for the normal routine installation of Drop(s) and maintenance
activities. Notwithstanding the foregoing, City understands and acknowledges
there may be instances when Grantee is required to make significant repairs -that •
are of an emergency nature. Permits for emergency work, if necessary, shall_ be
applied for as soon as possible, but in no event later than (5) business days after
the emergency work has commenced.
c. The fees paid to obtain permits are separate, and in addition to, any other fees
included in the Franchise.
d. City may issue reasonable policy guidelines to all grantees to establish procedures
for determining how to control issuance of construction peunits to multiple users
of the same Rights -of -Way. Grantee shall cooperate with City in establishing
such policy and comply with the procedures established by the City Administrator
or his or her designee to coordinate the issuance of multiple construction permits.
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e. Upon reasonable prior written notice, Grantee shall meet with developers and be
present at pre-construction meetings to ensure that Cable System facilities are
installed in new developments within City in a timely manner.
2. Use of existing poles or conduits.
a. Grantee shall use its best efforts to utilize existing poles, conduits and other
facilities belonging to either Grantee or other utility providers whenever
commercially reasonable and shall not construct or install any new, different or
additional poles, conduits or other facilities on public property without the written
approval of City. No location or any pole or wire-holding structure of Grantee
shall be a vested interest, and such poles or structures shall be removed or
modified by Grantee at its own expense whenever City determines that such a
move is a public necessity. The Grantee shall not be responsible for the cost
associated with relocating the Cable System to accommodate other providers,
including the City, or private development projects or to satisfy a zoning
condition imposed upon a developer by the City.
b. The facilities of Grantee shall be installed underground in those areas of City
where all other public or private utilities are underground at the time of
construction by Grantee. In areas where the facilities of all other public or private
utilities are installed aerially at the time of System construction, Grantee may
install its facilities aerially; however, at such time as the existing aerial facilities
of all other public or private utilities are placed underground, Grantee shall
likewise place its facilities underground at its sole cost. If City requires utilities to
bury lines which are currently overhead, and the City financially participates in
said under grounding, then the City shall provide the same cost sharing to the
Grantee.
3. Minimum Interference.
a. Grantee shall use its best efforts to give reasonable prior notice to any adjacent
private property owners who will be negatively affected or impacted by Grantee's
significant construction work in the Rights-of-Way.
b. All transmission and distribution structures, lines and equipment erected by
Grantee shall be located so as to cause minimum interference with the
unencumbered use of Rights-of-Way and other public places and minimum -
interference with the rights and reasonable convenience of property owners who
adjoin any of the Rights-of-Way and public places.
4. Disturbance or damage. Any and all Rights-of-Way, or public or private property, which
are disturbed or damaged during the construction, repair, replacement, relocation,
operation, maintenance, expansion, extension or reconstruction of the System shall be
promptly and fully restored by Grantee, at its expense, to a condition as good as that
prevailing prior to Grantee's work. If Grantee fails to promptly perform the restoration
required herein, after written request of City and reasonable opportunity to satisfy that
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request, City shall have the right to put the Rights-of-Way back into condition as good as
that prevailing prior to Grantee's work. In the event City determines that Grantee is
responsible for such disturbance or damage, Grantee shall be obligated to fully reimburse
City for such reasonable cost of restoration within thirty (30) days after its receipt of
City's invoice therefor0.
5. Temporary Relocation.
a. At any time during the Term of the Franchise, Grantee shall, at its own expense,
protect, support, temporarily disconnect, relocate or remove any of its property
when, in the opinion of City, (i) the same is required by reason of traffic
conditions, public safety, Rights-of-Way vacation, freeway or Rights-of-Way
construction, alteration to or establishment of any Rights-of-Way or any facility .
within the Rights-of-Way, sidewalk, or other public place, including but not
limited to, installation of sewers, drains, waterlines, power lines, traffic signal
lines or transportation facilities; or (ii) a City project or activity makes
disconnection, removal, or relocation necessary or less expensive for City. If the
City requests the relocation, removal or reinstallation of any of Grantee's facilities
in any of the Rights-of-Way for the sole purpose of installing or providing its own
cable television or telecommunications services or those of a second cable
television or telecommunications service provider in competition with Grantee,
then such cost shall not be borne by Grantee but by the City or requesting entity.
b. Grantee shall, on prior written request of any Person holding a permit to move a
building, temporarily raise or lower its wires to permit the movement of such
buildings. The expense of such temporary removal or raising or lowering of wires
shall be paid by the Person requesting the same, and Grantee shall have the
authority to require such payment in advance. Grantee shall be given not less than
five (5) days advance notice to arrange such temporary wire alterations.
6. Emergency. Whenever, in case of fire or other emergency, it becomes necessary in the
judgment of the City Administrator, police chief, fire chief, or their delegates, to remove
or damage any of Grantee's facilities, no charge shall be made by Grantee against City , .
for restoration, repair or damages. .
7. Tree Trimming, Grantee shall have the authority to trim trees on public Rights-of-Way at
its own expense as may be necessary to protect its wires and facilities. Trimming of trees
on private property shall require consent of the property ev‘rner. Any trimming of trees
by the Grantee in the Rights-of-Way and public ways shall be subject to such regulation
or supervision as the City Administrator or other authorized official may establish to
protect the public health, safety and convenience.
8. Protection of facilities. Nothing contained in this section shall relieve any Person from
liability arising out of the failure to exercise reasonable care to avoid damaging Grantee's
facilities while perfoLuling any work connected with grading, regrading or changing the
line of any Rights-of-Way or public place or the construction or reconstruction of any
sewer or water system.
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9. installation records. Grantee shall keep accurate Installation records of the location of all
facilities in the Rights -of -Way and public ways and furnish strand maps to City upon
prior written request. Grantee shall cooperate with City to furnish such information in an
electronic mapping format, if possible compatible with the then - current City electronic
mapping format. Upon completion of new or relocation construction of underground
facilities in the Rights -of -Way and public ways, Grantee shall provide City with
Installation records in an electronic format, if possible compatible with the then - current
City electronic mapping format showing the location of the underground and above
ground facilities.
10. Locating facilities. .
a. If, during the design process for public improvements, City discovers a potential . .. .
conflict with proposed construction, Grantee shall either: (a) locate and, if .
necessary, expose its facilities in conflict or (b) use a location service to locate or
expose its facilities. Grantee is obligated to furnish the location information in a
timely manner, but in no case longer than thirty (30) days. .
b. City reserves the prior and superior right to lay, construct, erect, install; use,
operate, repair, replace, remove, relocate, regrade, widen, realign, or maintain any
Rights -of -Way and public ways, aerial, surface, or subsurface improvement,
including but not limited to water mains, traffic control conduits, cable and
devices, sanitary or storm sewers, subways, tunnels, bridges, viaducts, or any
other public construction within the Rights -of -Way of City limits.
11. City's rights.
a. Nothing in this Franchise shall be construed to prevent City from constructing,
maintaining, repairing or relocating sewers; grading, paving, maintaining,
repairing, relocating and/or altering any Right -of -Way; constructing, laying down,
repairing, maintaining or relocating any water mains; or constructing, .
maintaining, relocating, or repairing any sidewalk or other public work.
12. Facilities in conflict. If, during the course of a project, City determines Grantee's
facilities are in conflict, the following shall apply:
a. Prior to City Notice to Proceed to Contractor: Grantee shall, within a reasonable
time, but in no event exceeding three (3) months, remove or relocate the
conflicting facility. This time period shall begin running upon receipt by Grantee
of written notice from City. However, if both City and Grantee agree, the time
frame may be extended based on the requirements of the project.
b. Subsequent to City Notice to Proceed to Contractor: City and Grantee will
immediately begin the coordination necessary to remove or relocate the facility.
Removal or relocation is to begin no later than seventy -two (72) hours, if
practicable, after written notification from City of the conflict.
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13. Relocation delays.
a. In the event City becomes aware of a potential delay involving Grantee's
facilities, City shall promptly notify Grantee of this potential delay.
14. Interference with City Facilities. The Installation, use and maintenance of the Grantee's
facilities within the Rights -of -Way and public ways authorized herein shall be in such a
manner as not to interfere with City's placement, construction, use and maintenance of its
Rights -of -Way and public ways, Rights -of-Way lighting, water pipes, drains, sewers,
traffic signal systems or other City systems that have been, or may be, installed,
maintained, used or authorized by City.
15. Interference with Utility Facilities. Grantee agrees not to install, maintain or use any of its
facilities in such a manner as to damage or interfere with any existing facilities of another
utility located within the Rights -of -Way and public ways of City and agrees to relocate its
facilities, if necessary, to accommodate another facility relocation. Nothing in this -
section is meant to Iimit any rights Grantee may have under Applicable Laws to be
compensated for the cost of relocating its facilities from the utility that is requesting the
relocation.
16. Co- location. To maximize public and employee safety, to minimize visual clutter of
aerial plant, and to minimize the amount of trenching and excavation in and along City
Rights -of -Way and sidewalks for underground plant, Grantee shall make every
commercially reasonable effort to co- locate compatible facilities within the Rights -of-
Way subject to the engineering requirements of the owners of utility poles and other
facilities.
17. Safety Requirements.
a. Grantee shall at all times employ ordinary and reasonable care and shall install
and maintain in use nothing less than commonly accepted methods and devices
for preventing failures and accidents which are likely to cause damage or injuries.
b. Grantee shall install and maintain its System and other equipment in accordance
with City's codes and the requirements of the National Electric Safety Code and`:..
all other applicable FCC, state and local regulations, and in such manner that they
will not interfere with City communications technology related to health, safety
and welfare of the residents.
c. Cable System structures, and lines, equipment and connections in, over, under and
upon the Rights -of -Way of City, wherever situated or Located, shall at all times be
kept and maintained in good condition, order, and repair so that the same shall not
menace or endanger the health, safety or property of City or any Person.
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SECTION 4.
DESIGN PROVISIONS
System Upgrade/Construction: Minimum Channel Capacity.
a. Grantee shall at a minimum operate for the Term of this Franchise a 450 MI-Iz • •
. .
System capable providing a minimum of eighty (80) video Channels or its
equivalent in a combination of analog and digital Video Programming Services on
the Cable System.
b. Programming decisions remain the discretion of Grantee in accordance with
federal law, provided that Grantee notifies City and Subscribers in writing thirty
(30) days prior to any Channel additions, deletions, or realignments, and further
subject to Grantee's signal carriage obligations hereunder and pursuant to 47
U.S.C. § 531-536, and further subject to City's rights pursuant to 47 U.S.C. § 545.
2. Construction. During periods of upgrade or rebuild, on or about thirty (30) days prior to
any scheduled construction, affected subscribers, if any will receive a notice, which shall
include Grantee's telephone number that Subscribers can use to contact Grantee with any
questions or concerns they may have.
3. Interruption of Service. Grantee shall endeavor to interrupt Service only for good cause
and for the shortest time possible. If Service is interrupted for a total period of more than
twenty-four (24) continuous hours in any thirty (30) day period, Subscribers shall, upon
request, be credited pro rata for such interruption.
4. Emergency Alert Capability. Grantee shall provide within One Hundred Twenty (120) •
days from the date this Franchise is adopted the System capability to allow the City to
transmit from City Hall or other said location at City's discretion, an emergency alert
signal to all participating Subscribers, in the form of an audio message on all Channels
simultaneously in the event of disaster or public emergency. In addition, Grantee shall at
all times comply with the Emergency Alert System standards pursuant to Title 47,
Section 11, Subparts A-E of the Code of Federal Regulations, as may be amended or
modified from time to time.
5. Technical Standards. The technical standards used in the operation of the System shall
comply, at minimum, with the technical standards promulgated by the FCC relating to
Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal
Regulations, as may be amended or modified from time to time, which regulations are
expressly incorporated herein by reference.
6. Special Testing.
a. City shall have the right to inspect and test all construction or Installation work
performed pursuant to the provisions of the Franchise. In addition, City may
require special testing of a location or locations within the System as desired at
any time during the term of this Franchise. Demand for such special tests may be .
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made on the basis of complaints received or other evidence indicating an
unresolved controversy or noncompliance with FCC technical standards. City
shall endeavor to so arrange its request for such special testing so as to minimize
hardship or inconvenience to Grantee or to the Subscribers caused by such testing
b. : efore ordering such tests, Grantee shall be afforded thirty (30) days advance
written notice. City shall meet with Grantee prior to tests to discuss the need for
such and, if possible, visually inspect those locations which may be the focus of
concern. If, after such meetings and inspections, City wishes to commence
special tests and the thirty (30) days have elapsed, the tests shall be conducted by
a qualified engineer selected by City. Grantee shall participate and Cooperate in
such testing and shall not assess City or Subscribers any fees or costs associated
with time or labor Grantee may incur as a result of its participation in such testing.
If such special testing establishes that the System meets all required FCC
technical standards as set forth in Section 5 above, the City shall bear the expense
for such special testing. If such special testing establishes that the System does not
meet all required FCC technical standards set forth in Section 5 above, Grantee
shall bear the expense for such special testing.
7. FCC Retorts. Any reports filed by Grantee with the FCC shall upon written request, be
filed with City or its designee within Thirty (30) days of the date when report is filed with
the FCC.
8. Interconnection. At the written request of the City, Grantee shall enter into negotiations
with adjacent Cable Systems regarding interconnecting PEG Access Channels. The
interconnect shall be designed and built to the extent the transmission of signals between ,
the Grantee's System and other Cable Systems does not result in any deterioration in the
signal quality_
9. Annexation. Upon the annexation of any additional land area by the City, if the annexed
area is not currently served by a cable operator it will be subject to the other provisions of
this Section 4. If the annexed area is served by a cable operator, Grantee has the option
to extend its Cable System to the newly annexed area if Grantee determines that it is
economically feasible to do so. Upon the annexation of any additional land area by the
City, the annexed area shall be subject to all the terms of this Franchise upon ninety (90)
days of written notification by the City to Grantee. A cable operator other than Grantee
whose Cable System already passes homes in an annexed area shall not extend its Cable
System beyond those homes which it passes at the time the annexation occurs unless it
otherwise obtains a franchise from the City.
10. Line Extension.
a. Grantee shall construct and operate its Cable System so as to provide Service to
all parts of its Franchise area as provided in this Franchise and having a density
equivalent of seven (7) residential units per one-quarter (1/4) mile of System, as
measured from the Cable System.
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b. Where the density is less than that specified above, Grantee shall inform Persons
requesting Service of the possibility of paying for Installation or a line extension
and shall offer to provide them with a free written estimate of the cost, which
shall be provided within fifteen (15) working days of such a request. The charge
for Installation or extension for each Person requesting Service shall not exceed a
pro rata share of the actual cost of extending the Service.
c. Any residential and/or commercial unit located within one hundred fifty (150)
feet of the Grantee's System shall be connected to the System at no charge other
than the Standard Installation charge. Grantee shall, upon request by any
potential Subscriber residing in City beyond the one hundred fifty (150) foot
limit, extend Service to such Subscriber provided that the Subscriber may be
required to pay the net additional Drop costs.
d. Under Normal Operating Conditions, if Grantee cannot perform Installations
within the times specified in applicable customer standards, the Subscriber may
request and is entitled to receive a credit equal to the charge for a Standard
Installation. For any Installation that is not a free Installation or a Standard
Installation, Grantee shall provide the Subscriber with a written estimate of all
charges within seven (7) days of a request by the Subscriber. Failure to comply
will subject Grantee to appropriate enforcement actions. This section does not
apply to the introduction of new products and services when Grantee is utilizing a
phased introduction.
11. Lockout Device. Upon the request of a Subscriber, Grantee shall under normal operating
conditions, provide by sale or lease to each Subscriber, one of the following devices by .
which the Subscriber can block completely the video and audio signals of a particular
Cable Service: (i) a parental control device; or (ii) a converter with a parental control
feature; or (iii) a filter, trap or other method or device. The Grantee shall provide the
device in a timely manner not to exceed thirty (30) days after the request is received.
SECTION 5.
SERVICE PROVISIONS
1. Regulation of Service. Rates. City may regulate rates for the provision of Cable Service,
equipment, or any other communications service provided over the System to the extent
allowed under federal or state law(s). City reserves the right to regulate rates for any
future Services to the extent permitted by law.
2. Non - Standard Installations_ Grantee shall install and provide Cable Service to any
Person requesting other than a Standard Installation provided that said Cable Service can
meet FCC technical specifications and all payment and policy obligations are met. In .
such case, Grantee may charge for the incremental increase in material and labor costs
incurred beyond the Standard Installation. .
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3. Sales Procedures. At the time of installation, Grantee shall inform the non- Subscriber
of all levels of Service available, including the Lowest priced and free Service tiers.
Grantee shall have the right to market door -to -door during reasonable hours consistent
with local ordinances and regulation.
4. Consumer Protection and Service Standards. Grantee shall maintain a convenient bill
payment location City for receiving Subscriber payments. If there is no local business
office located in the City, equipment exchanges requiring a truck roll shall be at no
charge to the subscriber. Grantee shall also provide the necessary facilities, equipment
and personnel to comply with the following consumer protection standards under Normal
Operating Conditions:
a. Cable System office hours and telephone availability:
i. Grantee will maintain a local or toll -free telephone access line which will
be available to its Subscribers twenty -four (24) hours a day, seven (7) days
a week.
I. Trained Grantee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
2. After Normal Business Hours, the access line may be answered by a
service or an automated response system, including an answering
machine. Inquiries received after Normal Business Hours must be
responded to by a trained Grantee representative on the next business
day. •
ii. Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30)
seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed thirty (30) seconds. These standards shall
be met no less then ninety percent (90 %) of the time under Normal
Operating Conditions, measured on a quarterly basis.
iii. The Grantee will not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above
unless a historical record of complaints indicates a clear failure to comply.
iv. Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3 %) of the time_
v. Customer service center and bill payment locations will be open at least
during normal business hours.
b. Installations, Outages and Service Calls. Under Normal Operating Conditions,
each of the following four (4) standards will be met no less than ninety -five
percent (95 %) of the time measured on a quarterly basis:
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Standard Installations will be performed within seven (7) business days
after an order has been placed. "Standard" Installations are those that are
located up to one hundred fifty (150) feet from the existing distribution
system.
ii. Excluding conditions beyond the control of Grantee, Grantee will begin
working on "Service Interruptions" promptly and in no event later than
twenty -four (24) hours after the interruption becomes known. Grantee
must begin actions to correct other Service problems the next business day •
after notification of the Service problem.
iii. The "appointment window" alternatives for Installations, Service calls,
and other Installation activities will be either a specific time or, at
maximum, a four (4) hour time block during Normal Business Hours.
(Grantee may schedule Service calls and other Installation activities
outside of Normal Business Hours for the express convenience of the
customer.)
iv. Grantee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
v. If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the
customer will be contacted prior to the time of the scheduled appointment.
The appointment will be rescheduled, as necessary, at a time which is
convenient for the customer.
c. Communications between Grantee and Subscribers: •
Notifications to Subscribers:
1. Grantee shall provide written information on each of the following
areas at the time of Installation of Service, at least annually to all
Subscribers, and at any time upon request:
a. Products and Services offered;
b. Prices and options for programming services and
conditions of subscription to programming and other
services;
c. Installation and Service maintenance policies;
d. Instructions on how to use the Cable Service;
e. Channel positions of the programming carried on the
System; and
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f. •
Billing and complaint procedures, including the address
and telephone number of the City.
2. Subscribers will be notified of any changes in rates, programming
services or Channel positions as soon as possible in writing.
Notice must be given to Subscribers a minimum of thirty (30) days
in advance of such changes if the changes are within the control of
the Grantee. In addition, the Grantee shall notify Subscribers thirty
(30) days in advance of any significant changes in the other
information required by this Section 5.4(c)(i)(1). Grantee shall not
be required to provide prior notice of any rate changes as a result
of a regulatory fee, Franchise Fee, or other fees, tax, assessment or
charge of any kind imposed by any federal agency, state or City on
the transaction between the operator and the Subscriber.
ii. Billing:
1. Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and
premium Service charges and equipment charges. Bills will also
clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
2. In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
iii. Refunds: Refund checks will be issued promptly, but no later than either:
1. The Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
2. Thirty (30) days from the return of the equipment supplied by
Grantee if Service is terminated.
iv. Credits: Credits for Service will be issued no later than the Subscriber's
next billing cycle following the determination that a credit is warranted.
Upon 30 days written request, Grantee shall provide City with a quarterly compliance
report which report shall, at a minimum, describe in detail Grantee's compliance with
each and every term and provision of this section. Grantee shall comply with the cable
industry's on-time guaranty as endorsed by the National Cable Television Association.
This on-time guaranty generally provides that if Installation is not commenced within the
"appointment window" specified. by the operator, Installation shall be free for the
Subscriber. Moreover, Grantee shall provide Subscribers with a Twenty and No/100
Dollars ($20.00) credit for any missed service appointments.
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5. Subscriber Contracts. Upon request, Grantee shall file with City any standard form
residential Subscriber contract utilized by Grantee. If no such written contract exists,
Grantee shall file with the City a document completely and concisely stating the length
and terms of the Subscriber contract offered to customers. The length and terms of any
Subscriber contract(s) shall be available for public inspection during normal business
hours. A list of Grantee's current Subscriber rates and charges for Cable Service shall be
maintained on file with City and shall be available for public inspection.
6. Refund Policy.
a. If a Grantee's Cable Service is interrupted due to a System outage for twenty-four
(24) or more consecutive hours, Subscribers, upon request, shall be credited pro
rata for such interruption. Credits must be issued no later than the Subscriber's
next billing cycle following the determination that a credit is warranted. For this
purpose, every month will be assumed to have thirty (30) days
b. In the event a Subscriber establishes or terminates Service and receives less than 1
one (I) full month of Service, Grantee shall prorate the monthly rate on the basis
of the number of days in the period for which Service was rendered to the number
of days in the billing. Refund checks will be issued promptly, but no later than
thirty (30) days from the date of return of the equipment supplied by the Grantee
if Cable Service is terminated.
7. Late Fees. Fees for the late payment of bills shall be assessed in accordance with
applicable law.
SEC 6.
ACCESS CHANNELS(S) PROVIISIIONS
1. Grantee Support for Access Channels. Grantee shall provide the following support for
access Channel usage within the Service Area.
a. Provision of the Channel designated in Exhibit B of this Agreement for
government access use at no charge in accordance with the requirements of
Exhibit B.
b. Support of Governmental programming to the extent specified in Exhibit B of this
Agreement.
c. Provision of free public building Installation and Cable Service as more clearly
specified in Exhibit B.
2. Compliance with Federal Law. Grantee and City agree that the access support fee
referenced in Exhibit B will not be deemed to be "Franchise Fees" within the meaning of
Section 622 of the Cable Act (47 U.S.C. §542), and such obligations shall not be deemed
to be (i) "payments in kind" or any involuntary payments chargeable against the
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Franchise Fees to be paid to the City by Grantee pursuant to Section 7 hereof or (ii) part
of the Franchise Fees to be paid to City by Grantee pursuant to Section 7 hereof.
SECTION 7.
OPERATION AND ADMINISTRATION PROVISIONS
1. Administration of Franchise. The City Administrator or other lawful designee of the City
shall administer and represent the City's interest under this Franchise; provided, however,
that the City Council shall retain the sole authority to take enforcement action pursuant to
this Franchise.
2. Delegated- Authority. The City may appoint a citizen advisory body or may delegate to
any other body or Person authority to monitor the performance of Grantee pursuant to the
Franchise. Grantee shall cooperate with any such delegates of City.
3. Franchise Fee.
a. During the term of the Franchise, Grantee shall pay to City a Franchise Fee in an
amount equal to five percent (5%) of its annual Gross Revenues or such other
amount allowable by federal law; provided, however that the five percent (5 %)
shall not take effect until the first full monthly billing cycle following a period not
to exceed forty five (45) days from the Effective Date of this Franchise
Agreement and the Grantee shall not be compelled to pay any higher percentage
of franchise fees than any other cable operator providing service in the Franchise
Area.. Any change in the franchise fee assessed shall be considered an
amendment of the Franchise. Calculation, collection and pass - through of ,
franchise fees shall be in accordance with Applicable Laws.
b. Any payments due under this provision shall be made on a quarterly basis. Each
quarterly payment shall be made within forty -five (45) days of the end of each of
Grantee's fiscal quarters together with a report showing the basis for the
computation in form and substance substantially the same as Exhibit E attached
hereto. In the event that a Franchise Fee payment or other sum due is not
received by the City on or before the date due, after notice and opportunity to
cure, interest shall accrue on the outstanding amount at rates published by the
Internal Revenue Service for tax refunds and additional tax payments for the
period of delinquency.
c. All amounts paid shall be subject to audit and re- computation by City and
acceptance of any payment shall not be construed, as an accord that the amount
paid is in fact the correct amount. If any audit reveals an error by Grantee of 10%
or more during any audit period, Grantee shall be responsible for City's
reasonable out of pocket costs associated with the audit.
4. Not Franchise Fees.
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a. Grantee acknowledges and agrees that the Franchisee Fees payable by Grantee to
City pursuant to this section shall take precedence over all other payments,
contributions, services, equipment, facilities, support, resources or other activities
to be provided or performed by Grantee pursuant to this Franchise and that the
Franchise Fees provided for in this section of this Franchise shall not be deemed
to be in the nature of a tax, and shall be in addition to any and all taxes of general
applicability and other fees and charges which Grantee, shall be required to pay to
City and/or to any other governmental authority, all of which shall be separate and
distinct obligations of Grantee. -
b. Grantee shall not apply or seek to apply or make any claim that all or any part of
the Franchisee Fees or other payments or contributions to be made by Grantee to
City pursuant to this Franchise shall be deducted from or credited or offset against
any taxes, fees or assessments or general applicability levied or imposed by City
or any other governmental authority, including any such tax, fee or assessment
imposed on both utilities and cable operators or their services.
c. Grantee shall not apply or seek to apply all or any part of any taxes, fees or
assessments or general applicability levied or imposed by the City or any other
governmental authority (including any such tax, fee or assessment imposed on
both utilities and cable operators or their services) as a deduction or other credit
from or against any of the Franchise Fees or other payments or contributions to be
paid or made pursuant by Grantee to City to this Franchisee which shall be
deemed to be separate and distinct obligations of Grantee.
5. Access to Records. The City shall have the right to inspect, upon reasonable notice and
during normal business hours, or require Grantee to provide within a reasonable time
copies of any records maintained by Grantee which relate to System operations including •
specifically Grantee's accounting and financial records. City acknowledges that some of
the records which may be provided by Grantee may be classified as confidential and
therefore may subject Grantee to competitive disadvantage if made public. City shall
therefore maintain the confidentiality of any and all records provided to it by Grantee
which are not required to be made public pursuant to Applicable Laws. Grantee shall
produce such books and records for City's inspection at Grantee's local office within the
Service Area or at such other mutually agreed upon location within the City. To the
extent it is necessary for City to send representatives to a location outside of Georgia to
inspect Grantee's books and records, Grantee shall be responsible for all reasonable
travel costs incurred by City representatives.
6. Periodic Evaluation.
a. City may require evaluation sessions at any time during the term of this Franchise,
upon thirty (30) days prior written notice to Grantee beginning no sooner than
twelve (12) months from the Effective Date of this Agreement and no more often
than annually thereafter.
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b. Topics which may be discussed at any evaluation session may include, but are not
limited to, application of new technologies, System performance, programming
offered, access Channels, facilities and support, municipal uses of cable,
Subscriber rates, customer complaints, amendments to this Franchise, judicial
rulings, FCC rulings, line extension policies and any other topics City deems_
relevant.
SECTION 8.
GENERAL FINANCIAL AND INSURANCE PROVISIONS
1. Letter of Credit.
a. Within 30 days of acceptance of this Franchise, Grantee shall deliver to City a
letter of credit, in form and substance acceptable to City, from a National or State
bank or financial institution, in the amount of Five Thousand and No/100 Dollars
($5,000).
b. The letter of credit shall provide that funds will be paid to City, upon written
demand of City, and in an amount determined in accordance with this Section 8 in
payment for penalties charged pursuant to this Section 8.
c. The City and the Grantee agree that there are certain violations for which
damages cannot be readily determined. Accordingly, The City may charge to
Grantee and collect from the letter of credit only the following amounts as
liquidated damages up to a maximum of $1,000 per month:
i. For failure to provide data, documents, reports or information or to
cooperate with City during an application process or system review or as
otherwise provided herein, the penalty shall be One Hundred and No/100,
Dollars ($100.00) per day for each day, or part thereof, such failure occurs
or continues.
ii. For failure of Grantee to comply with construction, operation or
maintenance standards, the penalty shall be One Hundred Fifty and
No/100 Dollars ($150.00) per day for each day, or part thereof, such
failure occurs or continues.
iii. For failure to provide the Services Grantee has proposed, including, but
not limited to, the implementation and the utilization of the access
Channels and the maintenance and/or replacement of the equipment and
other facilities, the penalty shall be One Hundred Fifty and No/100 Dollars
($150.00) per day for each day, or part thereof, such failure occurs or
continues.
iv.
For failure to comply with any of the material provisions of this Franchise,
for which damages are not readily determined and are not otherwise
specifically provided pursuant to this subparagraph (c), the amount shall
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be One Hundred and No /100 Dollars ($100.00) per day for each day, or
part thereof, such failure occurs or continues.
d. Each violation of any provision of this Franchise shall be considered a separate
violation for which a separate penalty can be imposed.
e. Whenever City finds that Grantee has violated one or more terms, conditions or
provisions of this Franchise, or for any other violation contemplated in
subparagraph (c) above, a written notice shall be given to Grantee informing it of
such violation. Subject to section 8.2 below, at any time after thirty (30) days (or
such longer reasonable time which, in the sole determination of City, is necessary
to cure the alleged violation) following Grantee's receipt of notice, provided
Grantee remains in violation of one or more terns, conditions or provisions of this
Franchise, The City may draw from the letter of credit all liquidated damages due
City from the date of the Grantee's receipt of notice.
f. if said letter of credit or any subsequent letter of credit delivered pursuant thereto
expires prior to twelve (12) months after the expiration of the term of this
Franchise, it shall be renewed or replaced during the term of this Franchise to
provide that it will not expire earlier than twelve (12) months after the expiration
of this Franchise. The renewed or replaced letter of credit shall be of the sarne
faun and with a bank authorized herein and for the full amount stated in
subparagraph (a) of this section.
g. If City draws upon the letter of credit or any subsequent letter of credit delivered
pursuant hereto, in whole or in part, upon written request, Grantee shall replace or
replenish to its full arnount the same within thirty (30) days and shall deliver to
City a like replacement letter of credit or certification of replenishment for the full
amount stated in Section 8.1 (a). This shall be a continuing obligation for any
draws upon the letter of credit.
h.
arnount
The drawing on the letter of credit by City, and use of the money so obtained for
payment or performance of the obligations, duties and responsibilities of Grantee
which are in default, shall not be a waiver or release of such default.
2. Procedure for Remedying Franchise Violations.
a. Whenever the City believes that the Grantee is in violation of one or more of the
material terms, conditions, or provisions of this Franchise, a written notice shall
be given to the Grantee. The written notice shall describe in reasonable detail the
alleged violation so as to afford the Grantee the opportunity to remedy the
violation. Grantee shall have thirty (30) days subsequent receipt of written notice
in which to correct the violation. Grantee shall, within ten (10) business days of
receipt of written notice, notify the City if there is a dispute as to whether a
violation has, in fact, occurred. Such notice by the Grantee shall specify with
reasonable particularity the matters disputed and shall stay the running of the
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above- described time for cure.
b. The City shall hold a hearing regarding the alleged violation(s) at a regularly
scheduled or specially scheduled City Council meeting with at least ten (10) days
prior written notice to Grantee. The Grantee shall be afforded an opportunity to
be heard and present evidence at such hearing. The City shall make a
deter nination as to the alleged violation(s) and shall make written fmdings of fact
relative to its determination. Grantee may appeal decision of City to court of
competent jurisdiction.
c. If after hearing the dispute, the City Council finds that a violation exists, then the
Grantee shall have the remainder of the initial thirty (30) day cure period within -
which to remedy the violation or appeal the decision.
d. The time for Grantee to correct any alleged violation shall be extended by the City
if the necessary action to correct the alleged violation is of such a nature or
character as to require more than thirty (30) days and provided Grantee
commences corrective action within thirty (30) days and thereafter exercises due
diligence to correct the violation.
e. If the City elects to draw down against the Letter of Credit, then such election
shall constitute City's exclusive remedy for a period of ninety (90) days.
Thereafter, if the Grantee remains in non - compliance, the City may pursue any
other available remedy.
3. Liability Insurance.
a. Upon the effective date, Grantee shall, at its sole expense take out and maintain
during the term of this Franchise public liability insurance with a company
licensed to do business in the state of Georgia with a rating by A.M. Best & Co.
of not less than "A minus" listing the City as additional insured that shall protect
the Grantee, City and its officials, officers, directors, employees and agents from
claims which may arise from operations under this Franchise, whether such I
operations be by the Grantee, its officials, officers, directors, employees and
agents or any subcontractors of Grantee. This liability insurance shall include, but
shall not be limited to; protection against claims arising from bodily and personal
injury and damage to property, resulting from Grantee's vehicles, products and
operations. The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall not be less than Two Million and
No /100 Dollars ($2,000,000.00).
i. The policy shall not be canceled without thirty (30) days notice of such
cancellation given to City.
b. City reserves the right to adjust the insurance limit coverage requirements of this
Franchise no more than once every three- (3) years. Any such adjustment by City
will be no greater than the increase in the State of Georgia Consumer Price Index
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( all consumers) for such three- (3) year period. In the event the City elects to
increase the insurance requirement in accordance with this Section 8.3.b., the
Grantee shall have ninety (90) days from a written notice from City to effect the
increase in insurance coverage.
c. Within 30 days of Grantee's acceptance the Grantee shall submit to City
documentation of the required insurance, including a certificate of insurance
signed by the insurance agent and companies named, as well as all properly
executed endorsements.
4. Indemnification
a. Grantee shall indemnify, defend and hold City, its officers, boards, commissions,
agents and employees (collectively the "Indemnified Parties") harmless from and
against any and all lawsuits, claims, causes or action, actions, liabilities, demands,
damages, judarnents, settlements, disability, losses, expenses (including attorney's
fees and disbursements of counsel) and costs of any nature that any of the
Indemnified Parties may at any time suffer, sustain or incur arising out of, based
upon or in any way connected with the Grantee's operations, the exercise of the
Franchise, the breach of Grantee of its obligations under this Franchise and/or the
activities of Grantee, it subcontractor, employees and agents hereunder. Grantee
shall not be required to provide indemnification to City for programming
cablecast over the public, educational and governmental access Channels
administered by City.
b. The indemnification obligations of Grantee set forth in this Franchise not limited
in any way by the amount or type of damages or compensation payable by or for
Grantee under Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Franchise or the terms,
applicability or limitations of any insurance held by Grantee.
c. City does not, and shall not, waive any rights against Grantee which it may have
by reason of the indemnification provided for in this Franchise, because of the
acceptance by City, or the deposit with City by Grantee, of any of the insurance
policies described in this Franchise.
d. The indemnification. of City by Grantee provided for in this Franchise shall apply
to all damages and claims for damages of any kind suffered by reason of any of
the Grantee's operations referred to in this Franchise, regardless of whether or not
such insurance policies shall have been determined to be applicable to any such
damages or claims for damages.
e. Grantee shall not be required to indemnify City for negligence or misconduct on
the part of City or its officials, boards, commissions, agents, or employees. City
shall hold Grantee harmless, subject to the limitations in state statutes for any
damage resulting from the negligence or misconduct of the City or its officials,
boards, commissions, agents, or employees in utilizing any E&G access Channels,
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equipment, or facilities and for any such negligence or misconduct by City in
connection with work performed by City and permitted by this Agreement, on or
adjacent to the Cable System.
5. Grantee's Insurance.
Grantee shall not commence any Cable System reconstruction work or permit any
subcontractor to commence work until all insurance required under this Franchise has
been obtained. Said insurance shall be maintained in full force and effect until the
expiration of this Franchise.
a. In order for City to assert is rights to be indemnified, defended, and held
harmless, City must with respect to each claim:
i. Promptly notify Grantee in writing within ten (1 0) business days of any •
claim or legal proceeding which gives rise to such right;
ii. Afford Grantee the opportunity to participate in and fully control any
compromise, settlement or other resolution or disposition of any claim or
proceeding; and
iii. Fully cooperate with reasonable requests of Grantee, at Grantee's expense,
in its participation in, and control, compromise, settlement or resolution or
other disposition of such claim or proceeding subject to paragraph 2
above.
SECTi 1ON 9.
SA1IE, ABANDONMENT, TRANSIFTR AND REVOCATION Og: FRANCHISE
City's Right to Revoke.
a. In addition to all other rights which City has pursuant to law or equity, City
reserves the right to commence proceedings to revoke, terminate or cancel this
Franchise, and all rights and privileges pertaining thereto, if it is determined by
City that after notice and an opportunity to cure as reordered herein;
i. Grantee has violated material provisions(s) of this Franchise and has not
cured; or
ii. Grantee has practiced fraud or deceit upon City.
2. Procedures for Revocation.
a. City shall provide Grantee with written notice of a cause for revocation and the
intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of
the notice in which to correct the violation or to provide adequate assurance of
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performance in compliance with the Franchise. In the notice required therein,
City shall provide Grantee with the basis of the revocation.
b. Grantee shall, on at least ten day written notice, be provided the right to a public
hearing affording due process before the City Council prior to the effective date
of revocation, which public hearing shall follow the thirty (30) day notice
provided in subparagraph (a) above. City shall provide Grantee with written
notice of its decision together with written findings of fact supplementing said
decision.
c. Only after the public hearing and upon written notice of the determination by City
to revoke the Franchise may Grantee appeal said decision with an appropriate
state or federal court or agency.
d. During the appeal period, the Franchise shall remain in full force and effect unless
the terrn thereof sooner expires or unless continuation of the Franchise would
endanger the health, safety and welfare of any Person or the public.
3. Abandonment of Service. Grantee may not abandon the System or any portion thereof
without having first given three (3) months written notice to City. Grantee may not
abandon the System or any portion thereof without compensating City for damages
resulting from the abandonment, including all costs incident to removal of the System.
4. Removal After Abandonment Termination or Forfeiture.
a. In the event of a lawful termination or abandonment of the System, City shall
have the right to require Grantee to remove all or any portion of the System from
all Rights -of -Way and public property within City.
b. If Grantee has failed to commence removal of System, or such part thereof as was
designated by City, within thirty (30) days after written notice of City's demand
for removal is given, or if Grantee has failed to complete such removal within
twelve (12) months after written notice of City's demand for removal is given, .
City shall have the right to remove the System, apply funds secured by the letter
of credit and toward removal and/or declare all right, title, and interest to the
System to be in City with all rights of ownership including, but not limited to, the
right to operate the System or transfer the System to another for operation by it.
5. Sale or Transfer of Franchise.
a Neither the Grantee nor any other Person may sell, transfer or assign the Franchise
or any of the Grantee's rights or obligations in or regarding the System or the
Franchise without the prior written consent of the Franchising Authority which
consent shall not be unreasonably withheld.
b. No change in Control of the Grantee, the System or the Franchise, including actual
working control shall occur after the Effective Date, by operation of law, or
otherwise, without the prior written consent of the Franchising Authority. Such
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consent shall not be unreasonably withheld. No consent shall be required, however,
for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any
rights, title or interest of the Grantee in this Franchise or the Cable System in order
to secure indebtedness, or (ii) intracorporate reorganizations between or among
entities wholly owned and wholly controlled by GT parent company to the
extent such transaction does not involve a change in the management, day to day
operations, or financial condition of the Grantee; provided the Franchising Authority
shall be notified by the Grantee in the event of such intracorporate reorganization.
c. Any request for consent to a transfer shall be handled by the Franchising
Authority in accordance with its rules and procedures as such are consistent with •
federal and state law, with Section 617 of the Cable Act and with regulations of •
the FCC
d. Any proposed transfer must accept in writing the Franchise rights and
obligations.
SECTION 10.
PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatory Practices Prohibited. Grantee shall not deny Service, deny access, or
otherwise discriminate against Subscribers or general citizens on the basis of economic
status, race, color, religion, national origin, sex, age, or disability. Grantee shall comply
at all times with all other applicable federal, state, and City laws, relating to
nondiscrimination. It shall be the right of all Persons to continuously receive all available
services provided on the Cable System so long as such Person's financial or other
obligations to the Grantee are satisfied.
2. Subscriber Privacy. The Grantee shall comply with Section 631 of the Cable Act and
regulations adopted pursuant thereto.
SECTION 11.
UNAUTHORIZED CONNECTIONS Al' - 7 MOD77
1. Unauthorized Connections or Modifications Prohibited. It shall be unlav for any farm,
Person, group, company, corporation, or governmental body or agency, without the
express consent of the Grantee, to make or possess, or assist anybody in making or
possessing, any unauthorized connection, extension, or division, whether physically,
acoustically, inductively, electronically or otherwise, with or to any segment of the
System or receive Services of the System without Grantee's authorization.
2. emoyal or Destruction Prohibited. It shall be unlawful for any final, Person, group,
company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or
assist thereof, any part or segment of the System for any purpose whatsoever.
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3. Penalty. Any firm Person, group, company, or corporation found guilty of violating this
section may be prosecuted and fined according to applicable law.
. .
SECTION 12.
MISCELLANEOUS P ()VISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with
Section 626 of the Cable Act.
2. Work Performed by Others. All applicable obligations of this Franchise shall apply to
any contractor or others performing any work or services pursuant to the provisions of
this Franchise, however, in no event shall any such contractor or others performing work
obtain any rights to maintain and operate a System or provide Cable Service. Upon
written request by City, Grantee shall provide notice to City of the name(s) and
address(es) of any entity, other than Grantee, which performs substantial services
pursuant to this Franchise.
3. Amendment of Franchise Ordinance. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments if City and Grantee agree that such an
amendment will be in the public interest or if such an amendment is required due to
changes in federal, state or local laws; provided, however, nothing herein shall restrict
City's exercise of its police powers. However, no provision of this Franchise shall be
amended or otherwise modified, in whole or in part, except by an instrument, in writing,
duly executed by the City and the Grantee, which amendment shall be authorized on
behalf of the City through the adoption of an appropriate resolution or order by the City.
4. Compliance with Federal, State and Local Laws.
a. If any federal or state law or regulation shall require or permit City or Grantee to
perfoiiii any service or act or shall prohibit City or Grantee from performing any
service or act which may be in conflict with the terms of this Franchise, then as
soon as possible following knowledge thereof, either party shall notify the other
of the point in conflict believed to exist between such law or regulation. Grantee
and City shall conform to state and federal laws and regulations and rules
regarding cable communications, as they become effective.
b. If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable in whole or in part, by any court, agency, legislative body, or other
authority of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent portion. Such declaration shall not affect the validity of
the remaining portions hereof, which other provisions shall continue in full force
and effect. In the event such law, rule or regulation is subsequently repealed,
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rescinded, amended or otherwise changed so that the provision 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 Grantee and City.
•
5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with
any of the provisions of this Franchise by reason of any failure or delay of City to enforce
prompt compliance. City may only waive its rights hereunder by expressly so stating in
writing. Any such written waiver by City of a breach or violation of any provision of this
Franchise shall not operate as or be construed to be a waiver of any subsequent breach or
violation.
6. Rights Cumulative. All rights and given to City by this Franchise or retained by City
herein shall be in addition to and cumulative with any and all other rights existing or
implied, now or hereafter available to City, at law or in equity, and such rights and shall
not be exclusive, but each and every right specifically given by this 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 shall
not be deemed a waiver of the right to exercise at the same time or thereafter any other
right or .
7. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has had
an opportunity to review the terms and conditions of this Franchise and that under current
law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and
that Grantee believes City has the power to make the terms and conditions contained in
this Franchise.
8. Force Majeure. Neither party shall be liable for any failure of performance hereunder
due to causes beyond its reasonable control including but not limited to; acts of God, fire,
explosion, vandalism, storm or other similar catastrophes; national emergencies;
insurrection; riots; wars; or strikes, lockouts or work stoppages.
SECTION 13.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication, Effective Date. This Franchise shall be published in accordance with
applicable local and state law. The effective date of this Franchise shall be the date of
acceptance by Grantee in accordance with the provisions of Section 13.2.
2. Acceptance.
a. Grantee shall accept this Franchise within thirty (30) days of its enactment by the
City Council, unless the time for acceptance is extended by City. Such
acceptance by the Grantee shall be deemed the grant of this Franchise for all
purposes; provided, however, this Franchise shall not be effective until all City
ordinance adoption procedures are complied with and all applicable timelines
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have run for the adoption of a City ordinance. In the event acceptance does not
take place, or should all ordinance adoption procedures and timelines not be
completed, this Franchise and any and ail rights granted hereunder to Grantee
shall be null and void.
b. Upon acceptance of this Franchise, Grantee and City shall be bound by all the
terms and conditions contained herein.
C. Grantee shall accept this Franchise in the following manner:
i. This Franchise will be properly executed and acknowledged by Grantee •
and delivered to City.
ii, With its acceptance, Grantee shall also deliver any grant payments, and
insurance certificates as required herein, that have not previously been
delivered
Passed and adopted by the City Council thist day of 20_
A'I-1'ES _ CITY OF :EE IS : • e • (3 'IA
By; - - S - B y : `., ... Y.. .►vOi .
Its; City Clerk / Its; Mayor
ACCEPTED; This Franchise is accepted, and we agree to be bound by its terms and conditions, •• .
dor
Date: ,e- Y 20 d ( By: or"
l
` /e..r `-,-� 1
Its :
S W RN y AT: BEFORE ME this 0 Gt S c -i 4 `_ C_ .�-fn- L — 7 e. ,4. L L. 14-
day of ;.Y.,, , y
-- 21 - T/ -7 7 0111111 ,
. - '•- - '' l'..• . PUBLIC
r
30
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EXHIBIT A
OWNERSHIP
[Grantee must maintain on file with City an accurate chart outlining its complete
ownership structure]
. ,
•
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EXHIBIT B
GRANTEE COMMITMENT TO
GOVERNMENT ACCESS FACILITIES AND EQUIPMENT
1. GOVERNMENTAL ACCESS CHANNELS
Grantee shall malce one (1) video Channel available exclusively for Government use.
City and Grantee shall establish rules and procedures for such scheduling in accordance
with Section 611 of the Cable Act (47 U.S.C. § 531).
The City may, in its sole discretion, negotiate agreements with neighboring jurisdictions
served by the same Cable System, educational institutions or others to share the expenses
of supporting the Government Access Channel.
3. GOVERNMENT ACCESS SUPPORT
Grantee shall provide City with a capital grant of Twenty Five Thousand and No/100
Dollars ($25,000), to fund Government access equipment purchase. The Grantee shall
pay the City Twenty Five Thousand Dollars ($25,000) within thirty (30) days following
acceptance of the Franchise. The City and Grantee agree that the Twenty Five Thousand
Dollars ($25,000) will not be deducted from Franchise Fees.
4. ACCESS PROGRAiMMING TRANSMISSION LINK
Within ninety (90) days following acceptance of the Franchise, the Grantee shall provide
One (1) transmission link from City Hall to the Grantee's Headend. The City will provide
Grantee base band video and audio signals at City Hall. Equiprnent at the Grantee's
Headend will be capable of providing the signal received from City Hall and transmitted
to subscribers to not be noticeably degraded compared to other programming provided -
over the Subscriber network. Grantee shall ensure the City that the Government Access
Channel is of comparable quality, which includes the level of ingress interference, as
with other Channel on the System.
5. PRODUCTION FACILITIES AND PERSONNEL
The Grantee, shall within sixty (60) days of the Effective date of this Franchise provide
the personnel to televise and cablecast City Council meetings for a period of six months.
During the six-month period the Grantee shall provide camera training for City access
volunteers or employees. Such assistance will be provided at no cost to the City.
6. DROPS TO DESIGNATED BUILDINGS
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a. Upon written request, Grantee shall provide free of charge throughout the term of
this Franchise, Standard Installation of one (1) network Drop, one (1) cable outlet, 1,
and one (1) Converter, if necessary, and the expanded basic Cable Service offered
by Grantee, without charge to the institutions identified on Exhibit C attached
hereto and made a part hereof, and such other City buildings subsequently
designated by City as determined in City's sole discretion. Grantee shall be
responsible for the costs of extension to designated institutions for the first one
hundred fifty (150) feet as measured from Grantee's System. The institution may
pay up to the cost of labor and material for the any Drop or extension beyond one
hundred fifty (150) feet.
•
. .
•
B-2
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EXHIBIT C
SERVICE TO PUBLIC BUILDINGS
1. City Hall
2. Police Department
3. Tybee Island Fire Department
4. Public Library
5. K -12 state accredited schools
C.- I