HomeMy WebLinkAboutOrdinance 12-2013 ORDINANCE NO. 12-2013
AN ORDINANCE GRANTING A FRANCHISE TO MEDIACOM MINNESOTA LLC,
TO CONSTRUCT, OPERATE, MAINTAIN, REPAIR, REPLACE, RECONSTRUCT
AND REMOVE A CABLE TELEVISION SYSTEM IN THE CITY OF BROOHINGS,
SOUTH DAKOTA, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT
OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE
SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS
PROVISIONS.
The City Council of the City of Brookings ordains:
STATEMENT OF INTENT AND PURPOSE
The Grantor intends,by the adoption of this Franchise,to authorize Mediacom Minnesota
LLC to continue to construct, operate,maintain, repair, replace,reconstruct and remove a Cable
Television System in the City of Brookings, South Dakota.
FINDINGS
In the review of the request for a Franchise Renewal of Mediacom Minnesota LLC
("Grantee"), and as a result of a public hearing,the City Council makes the following findings:
1. The Grantee's technical ability, financial condition, legal obligations, 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,upgrading, and operating the System were considered
and found acceptable in a full public proceeding after due notice and a reasonable opportunity to
be heard;
3. The Franchise granted to Grantee by the Grantor complies with the existing applicable
state and federal laws and regulations.
SECTION 1.
SHORT TITLE AND DEFINITIONS
Short Title. This Franchise Ordinance shall be known and cited as the Cable Television
Franchise Ordinance or as the Franchise Agreement.
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. The word "shall" is always mandatory and not
merely directory. The word "may" is directory and discretionary and not mandatory.
"Basic Cable Service" means any Cable Service tier that includes the lawful retransmission of
local television broadcast signals and any Public, Educational, and Governmental Access
programming required by this Ordinance or a Franchise Agreement to be carried on the basic tier.
Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997), as
may from time to time be amended.
"Cable Act" means the Cable Communications Policy Act of 1984, Pub. L.No. 98-549, (codified
at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L.No. 102-385, and the Telecommunications Act
of 1996, Pub. L.No. 104-104 (1996)as may, from time to time, be amended.
"Cable Internet Service" unless determined otherwise under applicable law,means an
Information Service offered by a Grantee whereby Persons receive access to the Internet or high-
speed information services through the Cable System.
"Cable Service" or"Service" means:
A. The one-way transmission to Subscribers of video programming or Other
Programming Service; and
B. Subscriber interaction, if any,that is required for the selection or use of such
video programming or Other Programming Service;
"Cable Television Svstem" or "Cable Svstem" 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 to multiple Subscribers within the Franchise Area, but such
term does not include:
A. A facility that serves only to retransmit via broadcast the television signals of one
or more television broadcast stations;
B. A facility that serves Subscribers without using any public Right-of-Way;
C. A facility of a common carrier which is subject, in whole or in part,to the
provisions of Title II of the Communications Act of 1934, as it may be amended, except that such
facility sha11 be considered a Cable System to the extent such facility, whether on a common
carrier basis or otherwise, 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;
D. An Open Video System that complies with § 653 of the Telecommunications Act;
and
E. Any facilities of any electric utility used solely for operating its electric utility
System.
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"Capital Costs" means costs associated with assets, including but not limited to equipment and
facilities, that will provide Service for more than one year,whether incurred during initial
construction or throughout the life of a System.
"Channel" means a portion of the electromagnetic frequency spectrum that is used in a Cable
System and which is capable of delivering a television Channel as defined by the Federal
Communications Commission.
"C�" means the City of Brookings, South Dakota. The City is sometimes also referred to as
"Grantor" in this Franchise Ordinance.
"Complaint" means any written, faxed or electronic inquiry, allegation, or assertion made by a
Person regarding Service. While"Complaint" does not include oral complaints, Grantee shall
use reasonable efforts to log oral complaints it receives and shall not be obligated to provide
verbatim reports or transcripts of oral complaints provided the nature of the complaint is
adequately provided to the Grantor if requested by Grantor.
"Community Access Corporation" or"CAC" means a non-profit Access Corporation serving the
Grantor, its assignees or delegees, whose duties shall include the management, and programming
of the PEG Access Channels.
"Converter" means an electronic device that converts signals to a frequency not susceptible to
interference within the television receiver of a Subscriber and,through the use of an appropriate
Channel selector, permits a Subscriber to view all authorized Subscriber signals delivered at
designated converter dial locations.
"Council" means the City Council of Brookings, South Dakota.
"Drop" means the cable or cables that connect the users of the System to the distribution System.
"Educational Access Facilities" means:
A. Channel capacity designated for non-commercial educational access programming
use; and
B. Facilities and equipment for the use of such capacity.
"Effective Date" means the date a Franchise becomes effective in accordance with the Franchise
and the rules and procedures of the Grantor.
"FCC" means the Federal Communications Commission and any legally appointed, designated or
elected agent or successor.
"Franchise" means the rights and obligations extended by the Grantor to a Person to own, lease,
construct,maintain, or operate a Cable System in the Right-of-Way within the Franchise Area for
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the purpose of providing Cable Services. Any such authorization, in whatever form granted, shall
not mean or include: (i) any other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances and laws of the City; (ii)
any permit, agreement, or authorization required in connection with operations in the Right-of-
Way including, without limitation, permits and agreements for placing devices on or in poles,
conduits, or other structures, whether owned by the Grantor or a private entity, or for excavating
or performing other work in or along the Right-of-Way.
"Franchise Agreement" means a Franchise granted pursuant to this Ordinance.
"Franchise Area" means the entire geographic area within the City as it is now legally
constituted or may in the future be legally constituted, or any other area in the City for which a
Franchise is granted in a Franchise Agreement. Unless the Franchise Agreement specifically
states otherwise, every Franchise Agreement shall apply to the entire axea within the corporate
limits of the City of Brookings as such corporate limits legally exist or may legally exist in the
future.
"Franchise Fee" means any tax, fee, or assessment of any kind imposed by the Grantor or other
governmental entity on a Grantee or Cable Subscriber, or both, solely because of its status as
such. The term "Franchise Fee" does not include: (i) 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 that is unduly
discriminatory against cable operators or cable Subscribers); (ii) Capital Costs that are required
by a Franchise Agreement to be incurred by a Grantee for PEG Access Facilities; (iii)
requirements or charges incidental to the awarding or enforcing of a Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.
"Government Access Facilities" means:
A. Channel capacity designated for non-commercial governmental access
programming use; and
B. Facilities and equipment for the use of such channel capacity.
"Grantee" means Mediacom Minnesota LLC, its agents and employees, lawful successors,
transferees or assignees.
"Grantor" means the City and its successors or delegates.
"Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the
operation of its Cable System to provide Cable Service, within the Franchise Area, other than
telecommunications services as defined under federal law, or other services for which the
Grantee is subject to a separate franchise ordinance. Gross Revenues shall include "pay" cable
service fees charged to customers within the Franchise area.
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The term"Gross Revenues"does not include taxes on Services furnished by Grantee and
imposed by any municipality, state,or other governmental unit and collected by Grantee for such
governmental unit. (e.g.t�on the Franchise Fee) In addition,the FCC User Fee is not included in
Gross Revenue. Fees for Cable Internet Service shall not be included in Gross Revenues unless
in accordance with applicable law such service may be subject to local franchise fees.
It is understood and agreed that the Grantee operates other telecommunications services
within the City of Brookings. Gross revenues, as defined in this paragraph,pertain to only revenue
derived by the Grantee from the operation of its cable system and not from any other
telecommunications Grantee offers in the City of Brookings. Specifically, Gross Revenues include
all recurring video revenues including revenue from packaged video offerings both residential
and commercial,the video portion of bundled services that include other telecommunication
services, premium video services, music packages, specialized equipment used in multiple
dwelling units, and fees charged to video customers who do not have additional
telecommunications services with Grantee.
"Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal that inhibits
the video or audio portions of a certain program or certain Channel(s)provided by way of a Cable
System.
"Normal Business Hours"means,unless otherwise defined in a Franchise Agreement,those hours
during which most similar businesses in the community are open to serve customers. In all cases,
Normal Business Hours must include some evening hours,at least one night per week,and/or some
weekend hours.
"Normal Operating Conditions" means any and a11 service and operational situations or conditions
that are ordinarily within the control of a Grantee,including but not limited to, special promotions;
pay-per-view events;rate increases;regular peak or seasonal demand periods;and maintenance,
repair or upgrade of the Cable System,and any associated computer or software systems.Those
conditions that are not within the control of a Grantee including but not limited to,natural disasters;
civil disturbances;power outages;telephone network outages;and severe or unusual weather
conditions.
"Other Pro�rammin� Service"means information that a Grantee makes available to a11 Subscribers
generally.
"Person" means any corporation,partnership,proprietorship,individual,organization,
governmental entity or any natural person.
"Public Access Facilities" means:
A. Channel capacity designated for non-commercial public access programming
use; and
B. Facilities and equipment necessary for the use of such channel capacity.
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"Resident" means any Person residing in the City.
"Service Interruption" means the loss of picture, sound, or data on one or more cable Channels
on the System, or the degradation of the picture and/or sound quality on such Channels to the
extent that the subscriber is unable to use the signals.
"Standard Installation" means any Service installation that can be completed using a Drop of
one hundred twenty-five (125) feet or less, unless otherwise agreed to in the Franchise
Agreement.
"Street" means the surface of, and the space above and below, any public street, road or highway,
sidewalk, easement or right-of-way now or hereafter held by Grantor.
"Subscriber" means any Person that lawfully elects to subscribe to Cable Service provided by a
Grantee by means of, or in connection with, the Cable System.
"Svstem" means a Grantee's Cable System operated pursuant to a Franchise Agreement within
the Franchise Area.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant. The cable television Franchise granted on the 24�'day of June, 2003,to Brookings
Mediacom, and now held by Grantee, is hereby renewed, subject to the terms and conditions of
this Franchise Agreement(hereinafter also referred to as the "Agreement"). The renewal provides
Grantee with the authority, right and privilege,to construct,reconstruct, operate and maintain a
Cable Television System and to provide cable service and any other cable services permitted by
this Franchise or applicable law within the Streets in the City as it is now or may in the future be
constituted. This Franchise does not prohibit or grant any franchise rights concerning the
provision of"telecommunications services which is defined as:
"the offering of telecommunications"for a fee directly to the public, or to
such classes of users as to be effectively available directly to the public, regazdless
of the facilities used."
2. Effective Date of Renewal. The renewal shall be effective on the date that both parties
have executed this Franchise Agreement,provided that said date is no later than sixty(60)days
after the date that the City Council,by resolution, approves this Franchise Agreement. The
renewal is further contingent upon the filing by Grantee with the City Clerk, of the executed
Franchise Agreement and the required insurance certificates, except that if the filing of any such
insurance certificate does not occur within sixty(60) days after the effective date of the
resolution approving this renewal and any extension of time hereunder,the Grantor may declare
this renewal null and void.
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3. Franchise Required. It shall be unlawful for any Person to construct, operate or maintain a
Cable Television System in City unless such Person or the Person for whom such action is being
taken shall have first obtained and shall currently hold a valid Franchise Agreement. It shall also
be unlawful for any Person to provide Cable Service in City unless such Person shall have first
obtained and shall currently hold a valid Franchise Agreement.
4. Governing Reguirements. Grantee shall comply with all lawful requirements of this
Franchise Agreement and applicable State and Federal law.
5. Grant of Nonexclusive Franchise.
(a) The Grantee shall have the right and privilege to construct, erect, operate, and
maintain, in, upon, along, across, above, over and under any public street,road or
highway, sidewalk, easement or right-of-way now laid out or dedicated and all
extensions thereof, and additions thereto in City,poles, wires, cables,
underground conduits,manholes, and other television conductors and fixtures
necessary for the maintenance and operation in City of a Cable Communications
System as herein defined.
(b) This Franchise shall not be construed as any limitation upon the right of Grantor,
through its proper offices, and in accordance with applicable law,to grant to other
qualified Persons or corporations rights,privileges or authority similar to the
rights, privileges and authority herein set forth, in the same or other Streets the
Grantee is entitled to occupy by this Franchise Agreement,permit or otherwise;
provided,however,that such additional grants shall not operate to materially
modify, revoke or terminate any rights granted to Grantee herein.
(c) No Franchise shall be granted on terms less burdensome or more favorable than
this Franchise Agreement.
6. Franchise Term. This Franchise shall be in effect for a period of ten(10)years from the
effective date,unless renewed, revoked,terminated, shortened or extended as herein provided.
7. Previous Franchises. Upon execution of the Franchise Agreement by Grantee as required
by Section 2.2 herein, this Franchise sha11 supersede and replace any previous Ordinance or
Agreement granting a Franchise to Grantee to own, operate and maintain a Cable Television
System within the City of Brookings. Ordinance No. 18-03 is therefore hereby expressly
repealed.
8. 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 obligation under this Franchise.
9. Franchise Area. This Franchise is granted for the corporate boundaries of Grantor,as it
exists from time to time.
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10. Geographical Coverage.
(a) Grantee shall design, construct and maintain the Cable Television System to have
the capability to pass every dwelling unit in the City, subject to any line extension
requirements of the Franchise Agreement.
(b) After service has been established by activating trunk and/or distribution cables
for any part of the City, Grantee shall provide Cable Service to any requesting
Subscriber within the City within thirty(30) days from the date of request,
provided that the Grantee is able to secure all rights-of-way necessary to extend
service to such Subscriber within such thirty(30) day period on reasonable terms
and conditions.
11. 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 of Brookings
Attn: City Manager
City Hall
P.O. Box 270
Brookings, South Dakota 57006
If to Grantee: Mediacom Minnesota LLC
Regional Vice President
1504 2°d Street SE
PO Box 110
Waseca, MN 56093
With a copy to:
Mediacom Communications
Bruce Gluckman, Esq.
One Mediacom Way
Mediacom Park,NY 10918
Such addresses may be changed by either party upon notice to the other party given as provided
in this Section.
12. Public. Educational or Government Access Facilities.
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(a) Grantee shall make available to each of its subscribers who receive some or all of
the services offered on the System, reception of at least two (2) access channels,which shall be
used for noncommercial purposes as follows:
(1) Educational access;
(2) Government access;
The channels designated for access sha11 be provided by Grantee as a part of the basic
cable service. The access channels shall be made available by Grantee for use by the Grantor and
its citizens in accordance with the rules and procedures established by the Grantor or any
lawfully designated person, group, organization or agency authorized by the Grantor for that
purpose.
(b) Grantee shall dedicate an additional channel for public, educational or
governmental access no later than six(6)months following the Grantor's request.
(1) The use of repeat programming in excess of ten percent of the amount of original
programming on that channel, as well as text or character-generated programming shall
not be considered a continuous use.
(2) The access channels shall be considered separately. Continuous use of one
channel to capacity as defined in this section is sufficient to initiate a request for an
additional channel.
(3) In no event shall Grantee be required to provide in excess of three (3)access
channels total.
(4) To the extent that any access channel is not being used for the provision of non-
commercial,public, educational or governmental access purposes, Grantee sha11 be
permitted to use such channel(s) for the provision of other services.
Grantee's permitted use of any access channel made pursuant to this section shall cease
within ninety(90) days of Grantee's receipt of notice from Grantor that such channel will again
be used for public, educational or governmental access.
(c) Notwithstanding the above, Grantee may accommodate a request from the Grantor
for additional access capacity made pursuant to this Section by combining more than one access
use on a channel provided that:
(1) It is technically and economically feasible for Grantee to do so;
(2) The scheduling needs of all users of the channel can be reasonably
accommodated; and
(3) The access entity,which requires use of the alternate channel, must be able to
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access the alternate channel from the site where it normally originates playback of its
programs and may not be required to transport tapes to a remote site for playback.
(d) Origination Points
Grantee shall provide free cable transmission facilities at City Hall and no more than two
other locations for activated return capability provided the cost of providing such cable
transmission facilities does not exceed the sum of Ten Thousand Dollars ($10,000.00), and any
costs of providing such cable transmission faciiities in excess of Ten Thousand Dollars
($10,000.00) shall be divided equally between the Grantor and Grantee. Grantee shall also
provide free modulation equipment to introduce programming onto these transmission facilities
by linking the below listed origination points with the headend, or through hubs to the headend,
for distribution to all subscribers. Grantee shall be permitted to pass this cost to Subscribers to
the extent permitted by Federal and State law.
However, costs of providing said facilities shall not be a credit against payment of the
Franchise fee imposed under this Franchise Agreement.
(e)Equipment and Facilities for Public, Educational or Government Access Facilities
Grantee's Responsibility for Equipment. Grantee is responsible for all headend
equipment, including repair and maintenance, essential to playback of programming of signals
generated by Grantor or its Access producing designees.
Grantor's Responsibility for Access. The Grantor shall be responsible for the operation of
Government Access Facilities and equipment. In this regard Grantor may delegate from time to
time its responsibilities to others who then shall assume the responsibility of Grantor in
accordance with the Grantor's delegation.
The Grantor will develop reasonable rules regarding use of Access Facilities and
equipment and determine the needs of the Grantor for public, educational and governmental
access services. In this regard,the Grantor shall regularly coordinate with Grantee for the purpose
of developing and maintaining reasonable Access Facilities.
The Grantor, or persons to whom it delegates responsibility for access, shall have the
responsibility to provide funding for operating expenses associated with public, educational and
governmental access.
13. Drops to Public Buildin�s. Grantee shall provide Standard Installation of one (1) cable
Drop, one(1)cable outlet, and monthly Basic Cable Service without charge to the public
buildings set forth on the attached Exhibit"A".
Additional Drops and/or outlets in any of the above locations will be provided by Grantee
at the cost of Grantee's time and material. Alternatively, at the institution's request, said
institution may add outlets at its own expense, as long as such installation meets Grantee's
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standards and provided that any fees for Cable Services are paid.Nothing herein shall be
construed as requiring Grantee to extend the System to serve additional institutions as may be
designated by Grantor.
14. Annual Report. Upon written request by the Grantor, Grantee shall submit, within ninety
(90) days after its year end, a written end-of-the-year report to Grantor of services, changes,
customer service and operational and ownership change.
15. Periodic Evaluation and Review. Grantor and Crrantee acknowledge and agree that the
field of cable television is a relatively new and rapidly changing one that may see many
regulatory,technical, financial, marketing and legal changes during the tertn of this Franchise
Agreement. Therefore,to provide for the maximum degree of flexibility in this Franchise
Agreement, and to help achieve a continued advanced and modern Cable System,the following
evaluation and review provisions will apply:
(a) The Grantor may request evaluation and review sessions at any time during the
term of this Agreement and Grantee shall cooperate in such review and
evaluation; provided,however,that there shall not be more than one(1)
evaluation and review session every three years.
(b) Topics that may be discussed at any evaluation and review session include,but are
not limited to, rates, channel capacity,the System performance,programming,
PEG access,municipal uses of cable, Subscriber complaints,judicial rulings,FCC
rulings and any other topics that the Grantor or Grantee may deem relevant.
(c) During an evaluation and review session Grantee shall fully cooperate with the
Grantor and shall provide without cost such reasonable information and
documents as the Grantor may request to perform the evaluation and review. The
Grantee shall not be compelled to produce information, which it deems to be
proprietary and confidential.
(d) If at any time during the evaluation and review,the Grantor reasonably believes
that there is evidence of inadequate technical performance of the Cable System,
the Grantor may require Grantee, at Grantee's expense,to perform appropriate
tests and analyses directed toward such suspected technical inadequacies. In
making such requests,the Grantor shall describe and identify in writing as
specifically as possible the nature of the problem,the reason the Grantor has
requested special testing and the type of test that the Grantor believes to be
appropriate. Grantee shall cooperate fully with the Grantor in performing such
tests and shali report to the Grantor the results of the tests, which sha11 include at
least:
(1) the System component tested;
(Z) the equipment used and procedures employed in testing;
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(3) the results of the test(s) and, if necessary,the method by which the System
performance problem was resolved; and
(4) any other information pertinent to said tests and analyses;
(e) As a result of an evaluation and review session,the Grantor or Grantee m�.y
determine that a change in the System or in the terms of the Franchise Agreement
may be appropriate. In that event, either the Grantor or the Grantee may propose
modifications to the System or the Franchise. Grantee and the Grantor shall
review the terms of the proposed change and any proposed amendment to this
Franchise Agreement and seek to reach agreement on such change or amendment
provided the change or amendment is not inconsistent with applicable law or
regulations and the change or amendment technically feasible, economically
reasonable and will not result in a material alteration of the rights and duties of the
parties under the Franchise Agreement.
SECTION 3.
CONSTRUCTION STANDARDS
1. Construction Codes and Permits.
(a) Grantee shall obtain all necessary permits from Grantor before commencing any
construction upgrade or extension of the System, including the opening or
disturbance of any Street, or private or public property within City.
(b) The Grantor shall have the right to inspect a.11 construction or installation work
performed pursuant to the provisions of the Franchise and to make such tests at its
own expense as it shall find necessary to ensure compliance with the terms of the
Franchise and applicable provisions of local, state and federal law and to protect
the public health, safety and welfare of Grantor's citizens. Grantee shall have the
right to be present at such inspections.
2. Repair of Streets and Propertv. Any and all Streets or public property or private property,
which are disturbed or damaged during the construction, repair,replacement,relocation,
operation,maintenance 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.
3. Buildin�Movers. The Grantee shall, on request of any Person holding a moving permit
issued by Grantor,temporarily move its wires or fixtures to permit the moving of buildings with
the expense of such temporary removal to be paid by the Person requesting the same, and the
Grantee shall be given not less than five (5)business days advance notice to arrange for such
temporary changes. The Grantee shall have the right to require advance payment for the costs of
moving its facilities.
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4. Tree Trimmin�. The Grantee shall consult with the Parks and Forestry Department for
approval to trim any trees upon and overhanging the Streets, alleys, sidewalks, or public
easements of Grantor so as to prevent the branches of such trees from coming in contact with the
wires and cables of the Grantee.
5. No Waiver.Nothing contained in this Franchise shall relieve any Person, as defined in
this Agreement from liability arising out of the failure to exercise reasonable care to avoid
injuring Grantee's facilities.
6. Under�rounding of Cable.
(a) In all areas of City where all other utility lines are placed underground, Grantee
shall construct and install its cables, wires and other facilities underground.
(b) In any area of City where one or more public utilities are aerial, Grantee may
construct and install its cables,wires and other facilities from the same pole with
the consent of the owner of the pole.
7. Safety Requirements. The 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, injuries, or nuisances to
the public.
8. Drop Burial. Temporary drops will be buried within sixty(60) days of installation. Such
sixty(60) day period shall not apply if the installation is made during the winter months,which
shall be defined as November 1 to April 1. The installation period shall be extended throughout
the winter months until weather conditions permit the Grantee to complete such drop buries. In
the event the Grantee fails to bury said drops within sixty(60) days if outside the winter months
or if the installation is made during the winter months,within sixty days after the winter months,
the Grantor shall notify the Crrantee of violation of this section in accordance with the
enforcement provisions in this Franchise Agreement
SECTION 4.
OPERATIONS PROVISIONS
1. Svstem Design and Channel Ca�acitv.
(a) Grantee shall develop, construct and operate a System capable of providing a
minimum of 60 channels of video programming during the term of this Franchise
Agreement.
(b) All final programming decisions remain the discretion of Grantee;provided that
when within the control of Grantee, Grantee notifies Grantor and Subscribers in
writing thirty(30) days prior to any channel additions, deletions, or realignments,
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and further subject to Grantee's signal carriage obligations hereunder and pursuant
to 47 U.S.C. § 531-536, and further subject to Grantor's rights pursuant to 47
U.S.C. § 545.
2. �ecial Testin�.
(a) Grantor may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints pertaining to
such location(s). Demand for such special tests may be made on the basis of
complaints received or other evidence indicating an unresolved controversy or
noncompliance. Such tests shall be limited to the particular matter in controversy
or unresolved complaints. The Grantor 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) Before ordering such tests, Grantee shall be afforded thirty(30) days to correct
problems or compiaints upon which tests were ordered. The Grantor shall meet
with Grantee prior to requiring special tests to discuss the need for such and, if
possible, visually inspect those locations, which are the focus of concern. If,after
such meetings and inspections, Grantor wishes to commence special tests and the
thirty(30)days have elapsed without correction of the matter in controversy or
unresolved complaints; the tests shall be conducted by a qualified engineer
selected by Grantor and Grantee. In the event that special testing is required by
Grantor to determine the source of technical difficulties,the cost of said testing
shall be borne equally by the Grantee and the Grantor.
3. Parental Control Lock. Grantee shall provide, for sale or lease,to Subscribers,upon
request, a parental control locking device or digital code that permits inhibiting the video and
audio portions of any channels offered by Grantee.
4. Emergency Alert Ca ap bilitv. Grantee shall provide an Emergency Alert System(EAS)in
accordance with FCC Rules and Regulations and applicable law.
SECTION 5.
SERVICES AND PROGRAMMING PROVISIONS.
l. Pro�rammin�.
(a) Broad programming categories. Grantee sha11 provide or enable the provision of at
least the following initial broad categories of programming:
(1) Educational programming;
(2) News & information;
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(3) Sports;
(4) General entertainment(including movies);
(5) Children/family-oriented;
(6) Arts; culture and performing arts;
(7) Science/documentary;
(8) Weather information;
(9) Public affairs;
(b) Deletion or reduction of programming categories.
(1) Grantee shall not delete or so limit as to effectively delete any broad
category of Programming identified in this Section and within its control
without the consent of the Grantor or as otherwise authorized by law.
(2) In the event of a modification proceeding under Federallaw,the mix and quality
of services provided by the Grantee on the effective date of this Franchise sha11 be
deemed the mix and quality of services required under this Franchise throughout its term.
2. Leased Commercial Access. Grantee shall offer leased commercial access in accordance
with applicable law.
3. Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and
be operated so as to receive Subscriber complaints and requests on a twenty-four(24)hour-a-day,
seven(7) days-a-week basis.
4. Refund Policv. In the event a Subscriber established or terminates service and receives
less than a full month's 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.
5. General Technical Standards and Customer Service Practices.
A. This Ordinance incorporates technical standards and establishes customer Service
practices that a Grantee must satisfy.
B. In accordance with applicable law, Grantee shall maintain such equipment and
keep such records as are reasonably required to enable the Grantor to determine whether the
Grantee is in compliance with all standards required by these regulations and other applicable
Iaws.
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Technical Standards. The technical standards used in the operation of a System shall comply, at
minimum,with the technical standards promulgated by the FCC relating to Cable Systems
pursuant to the FCC's rules and regulations and found in Title 47, Sections 76.601 to 76.617, as
may be amended or modified from time to time, which regulations are expressly incorporated
herein by reference.
Test and Compliance Procedure. Tests for a System shall be performed in accordance with the
FCC's rules and regulations. Representatives of the Grantor may witness the tests and written test
reports shall be made available to the Grantor upon reasonable prior written request. If more than
ten percent(10%) of Grantee's locations in the City tested fail to meet the performance standards,
Grantee shall be required to indicate what corrective measures have been taken and the entire test
shall be repeated if requested by the Grantor.
Emer�enc,y Requirements. Grantee must provide emergency alert override capabilities in a
manner consistent with the FCC's emergency alert System("EAS")rules and consistent with any
State and/or regional emergency alert System plans adopted in response to the FCC's EAS rules
that are applicable to the Franchise Area.
Pro amming Decisions. In accordance with applicable law, Grantee shall provide programming
from each of the broad programming categories listed in accordance with the Franchise
Agreement. All programming decisions remain within the sole discretion of each Grantee
provided that Grantee complies with federal law regarding notice to Grantor and Subscribers
prior to any Channel additions, deletions, or realignments, and further subject to the Grantee's
signal carriage obligations pursuant to 47 U.S.C. §§ 531-536, as may be amended and subject to
the Grantor's rights pursuant to 47 U.S.C. § 545, as may be amended.
Cable System Hours and Telephone Availabilitv.
A. Grantee shall maintain a publicly listed toll-free or collect call telephone access
line that is available to Subscribers twenty-four(24)hours a day, seven(7)days a week. The
local or toll-free numbers shall be listed, with appropriate explanations, in all widely utilized
local phone directories. If Grantee discontinues use of a customer service office, it shall provide a
local agent to accept payment of bills and shall provide a convenient alternative procedure for
services formerly provided through its local customer Service office.
B. Grantee shall have trained representatives available to respond to Subscriber
telephone inquiries during Normal Business Hours. The term "trained representatives" shall mean
employees of the Grantee who have the authority and capability while speaking with a Subscriber
to, among other things, answer billing questions, and schedule Service and installation calls.
C. All employees of the Grantee shall identify themselves when answering an
incoming call or inquiry, or working in the field. Supervisory personnel must use reasonable
efforts to respond to Subscriber requests to speak with a"manager or supervisor" within one
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business day of the request under Normal Operating Conditions, during Normal Business Hours
and supervisory personnel will respond no later than the next business day.
D. After Normal Business Hours,the telephone 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 representative on the next
business day.
E. Grantee shall use reasonable efforts to provide prior notice to Subscribers through
answering Service/machine, voice mail messages, bill messages, or through its Mediacom local
access channel regarding hours or dates when its offices will not be open. In addition, during
such "closed" periods,the Grantee shall use reasonable efforts to provide voice messages and
notice on its premises of the after hours contact numbers.
F. The period of three (3)hours following major outages (more than 25%of the
Subscribers) or periods of natural disasters are not included in the response requirements above,
provided that Grantee has used reasonable best efforts to provide voice-mail information about
the outage on phone answering equipment and the System bulletin board(assuxning outage is not
City-wide) and the Grantee provides documentation to Grantor as soon as reasonably possible
following the outage, including beginning and ending times, area of outage, location and cause of
problem.
G. Grantee shall respond to all Subscriber or user inquiries or complaints within ten
(10) days of the inquiry or complaint, unless the resolution of the Subscriber or user inquiries or
complaints is not reasonably available within that time frame, in which case Grantee shall
respond as soon as reasonably possible. The requirement that Grantee respond to all Subscriber
or user inquiries or complaints within ten(10) days of the inquiry or complaint as provided above
shall apply except to the extent a more stringent standard is set forth for specific types of
activities, inquiries or complaints herein or in the Franchise Agreement.
Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the
following standards must be met no less than ninety-five percent(95%) of the time as measured
on a quarterly basis:
A. Maintenance Service capability enabling the prompt location and correction of
substantial System malfunctions or outages shall be available twenty-four(24)hours a day, seven
(7)days a week.
B. To the extent practical, at the time an appointment is scheduled,the Grantee shall
inform the Subscriber of Service procedures, required payments,possible delays,phone or field
verification procedures which are related to the appointment and/or possible
rescheduling/cancellation.
C. The appointment window alternatives for Standard Installations and Service ca11s
will be within a maximum four(4)hour time block during Normal Business Hours. Grantees
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may schedule Service calls and other installation activities outside of Normal Business Hours for
the express convenience of a Subscriber, if so requested.
D. No Grantee may cancel an appointment with a Subscriber after the close of
business on the business day prior to the scheduled appointment.
E. If a Grantee's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, all reasonable efforts will be made to
contact the Subscriber. The appointment must be rescheduled, as necessary, at a time that is
convenient for the Subscriber.
F. The Grantee may phone the Subscriber within the appointment window to verify
that the appointment is still needed. If the subscriber telephone is answered by a machine or
Service,the Grantee may leave a message which includes a number the Subscriber may use to
call back to confirm or reschedule the appointment.
G. Appointments may not be canceled or rescheduled until field personnel of the
Grantee make reasonable efforts to verify that the Subscriber or other authorized adult is not at
the address for the appointment.
H. Upon arrival at the Subscriber's address, if the Grantee verifies that a Subscriber is
not at the address during the scheduled appointment window,the Grantee sha11 leave a door tag
or similar notice with the name of the person leaving the notice,the time the person determined
that the Subscriber was not at home; and a telephone number the Subscriber may ca11 back to
confirm or reschedule an appointment.
I. Any vehicle used for the installation, construction, maintenance, or repair of a
Cable System shall bear the identification of the Grantee in a conspicuous place and manner.
J. Reconnections due to erroneous disconnection based on billing or technical errors
must be completed at no charge within twenty-four(24)hours of notification by the affected
Subscriber.
K. Reconnections after a disconnection attributed to non-payment of bills must be
completed within seven(7)business days of Grantee receipt of back payment.
L. The Subscriber may be billed for installations or reconnections as soon as each
such service is installed.
M. Runs in building interiors shall be as unobtxusive as reasonably possible and
outlets shall be located for the convenience of the Subscriber. The Grantee shall use due care in
the process of installation and shall repair any damage to the Subscriber's property caused by
installation work. Such restoration shall be undertaken as soon as possible after the damage is
incurred, shall be subject to reasonable Subscriber approval of the corrective action, and Grantee
shall use its best efforts to complete the corrective action within no more than thirly(30) days
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after the damage is incurred. Should such restoration not be corrected within thirty(30) days,the
Grantee shall notify the Subscriber as to the cause for the delay and the date when such action
shall be completed.
N. Failure of the Grantee to maintain adequate budget, sufficient staff or properly
trained staff shall not constitute justification for failure to comply with these provisions.
Repairs and Interruptions.
A. Every Grantee will begin working on Service Interruptions and outages within a
reasonable timeframe but in no event later than twenty-four(24)hours after the Service
Interruption becomes known.
(1) Any reports of"no picture/no sound" must be responded to within sixteen(16)
business hours of such report, unless reported during a weekend or holiday,which
shall require a response during the next regular business day.
(2) Work not requiring the Operator to enter Subscriber premises (or property) sha11
not require the Subscriber to be available for an appointment and shall not be
delayed on account of the Grantee's inability to arrange an appointment with the
Subscriber.
B. Work on all other requests for Service must begin by the next business day after
notification of the problem.
C. The Subscriber does not need to be home for outside plant and line repairs.
D. A Grantee may interrupt Service only for good cause and for the shortest time
possible, including interruption for System upgrade, maintenance and repair. Grantee shall use
reasonable efforts to perform maintenance at times that affect the fewest number of Subscribers.
The Grantee shall post override notices on the System to advise Subscribers in advance of
planned Service interruptions. For a planned Service interruption that is likely to last four(4)
hours or more, Grantee shall broadcast information concerning the planned Service interruption
on its local access and notify the local newspaper.
E. A Grantee shall provide a pro rata credit for Service for each Service Interruption
exceeding twenty-four(24)hour period, unless it is demonstrated that the Subscriber caused the
outage, or the outage was planned as part of an upgrade or other work of which the Grantor and
the Subscriber received appropriate prior general notification or the Service Interruption was
determined to be beyond the control of Grantee. A Subscriber is entitled to a full refund for any
Cable System or equipment impairment to pay per view event. These credits and refunds shall be
made available upon request by Subscriber.
F. Service Call Charges. Unless otherwise agreed to, no charge shall be made to a
Subscriber for any Service ca11 relating to Grantee owned and Grantee maintained equipment
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after the initial installation of Cable Service unless the problem giving rise to the Service request
can be demonstrated by Grantee to have been:
(1) Caused by the negligence or malicious destruction of cable equipment by the
subscriber; or
(2) A problem established as having been non-cable in origin.
(3) A customer education problem requiring unnecessary visits by Grantee.
G. An "Identified Outage" is construed as reports of no picture/no sound from three
(3)or more Subscribers in close geographic proximity or along the same trunk or feeder line
within twenty(20)minutes of each other.
H. Within one (1)hour of an Identified Outage during Normal Business Hours,
Service technicians will respond and use all availabte reasonable means to correct the outage in
the shortest possible amount of time. The Grantee shall maintain and forward to the Grantor upon
request reports on the cause, area, duration and repair of the outage.
I. Cable drop lines, cable trank lines, or any other type of outside wiring that
comprise part of the Grantee's Cable System that are located underground, sha11 be placed in such
locations pursuant to City Code, and the surrounding ground sha11 be restored to a reasonably
comparable condition to the condition immediately prior to such construction within seventy-two
(72)hours after connection to the Cable System, or such time as agreed to by the property owner.
Additional time may be allowed for the completion of such restoration if individual
circumstances warrant. The requirements of this subsection shall apply to all installation,
reinstallation, Service or repair commenced by the Grantee within the City during Normal
Operating Conditions.
Communications Between Grantees and Subscribers.
A. Notifications to Subscribers:
(1) In accordance with applicable law, every Grantee shall provide written
information to Subscribers on each of the following topics at the time of installation,at least
annually to a11 Subscribers, at any time upon request, and at least thirty(30)days prior to making
significant changes in such information:
(a) Product and Services offered;
(b) Prices and options for programming services and conditions of
subscription to programming and other services and facilities;
(c) Installation and maintenance policies including,when applicable,
information regarding the Subscriber's home wiring rights and information
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describing ownership of internal wiring during the period Service is
provided;
(d) Instructions on how to use Services;
(e) Channel positions of programming offered on a System;
(fl Billing and Complaint procedures, including the name, address and
telephone number of the Grantor;
(g) The availability of Converters, Lockout Devises or other signal control
devices;
(h) The Grantee`s practices and procedures for protecting against invasions of
privacy; and
(i) The address and telephone number of the Grantee's office to which
Complaints may be reported.
(2) Grantee promotional materials, announcements and advertising of Service to
Subscribers, including pay-per-view or event programming, shall clearly and
accurately disclose price terms. In the case of telephone orders,the Grantee shall
take appropriate steps to reasonably explain the price terms to potential customers
before the order is accepted.
(3) Subscribers will be given thirty(30)days advance notice of any changes in rates,
programming Services, or Channel positions through any written means that is
reasonably likely to bring such information to the attention of Subscribers.
B. Billing:
(1) Bills must be clear, concise, and understandable. Bills must be itemized,with
itemizations including,but not limited to, Basic and premium Service charges and
equipment charges.
(2) Bills must clearly show a specific payment due date.
(3) If a Grantee chooses to itemize, as a separate line item on bills,Franchise Fees or
other government imposed fees attributable to the total bill, such fees must be
shown in accordance with any applicable law concerning the Grantee's ability to
itemize such fees.
(4) Bills must also clearly delineate all activity during the billing period, including
optional charges, rebates, and credits.Nothing in this section prohibits or restricts
21
a Grantee from offering packages of programming to Subscribers and to identify
such packages on the Subscriber bill.
(5) The billing statement must clearly and conspicuously indicate the past due date,
and if applicable the date certain that a Subscriber's Service will be eligible for
disconnection.
(6) Negative option billing is prohibited unless applicable federal law specifically
requires that the Grantee be permitted to engage in such practice.
(7) In case of a billing dispute, a Grantee must respond to a written Complaint from a
Subscriber within thirty(30) days. Credits for Service shall be issued no later than
the Subscriber's next billing cycle after determination that the credit is warranted.
Com�laint Lo�. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every
Grantee sha11 prepare and maintain written or electronic records of all Complaints made to them
and the resolution of such Complaints, including the date of such resolution. Such written
records shall be on file at the office of each Grantee. Every Grantee shall make available to
Grantor a written summa.ry of such Complaints and their resolution upon request.
Lockout Device.
A. Grantee shall provide to any Subscriber upon request for sale or lease a Lockout
Device for blocking both video and audio portions of any channel(s) of programming entering
the Subscriber's premises.
B. Scrambling/Blocking. Grantee shall at all times scramble both the audio and video
portions of all channels with predominately adult oriented programming.
Line Extension Policv. No resident shall be refused Service arbitrarily. Unless otherwise set
forth in the Franchise Agreement, whenever Grantee receives a request for Cable Service in an
unserved portion of the Franchise area where there are at least 25 dwelling units(which shall be
interpreted to include businesses that have contractually agreed to subscribe to Cable Service)
within one linear cable mile of the Grantee's nearest trunk or distribution cable from which it is
technically feasible to extend Service, or the dwelling unit is within 125 feet of Grantee's
distribution cable, it shall extend its Cable System to such Subscriber at no cost, other than the
published standard installation fee charged to all Subscribers.
Mobility Limited Subscribers. Unless otherwise agreed in a Franchise Agreement,upon the
request of mobility-limited Subscribers, a Grantee shall arrange for delivery,pickup or exchange
or replacement of converters or other equipment at the Subscriber's address.
Customer Service Reporting Requirements. Based on a substantial number and a documented
pattern of verbal or written Complaints received by Grantor, Grantor may require a Grantee to
22
prepare and furnish to Grantor reports and any other reasonable information relevant to the
complaints, including, at minimum, the following:
A. A telephone report containing the following information relevant to the question
of whether the Grantee's telephone answering System complies with the standards
of this Ordinance:
(1) Total number of calls received by the Call System handling the Franchise Area;
(2) Total number of calls abandoned by the Call System handling the Franchise Area;
(3) Total percentage of calls abandoned;
(4) Percentage of calls answered within thirty(30) seconds; and
(5) A description of significant events impacting telephone response times.
B. The number of free Standard Installations that were issued for failure to arrive for
Standard Installations.
C. A significant Service Interruptions report that tracks information on a monthly
basis to include:
(1) Total number of Service Interruptions;
(2) Time of all Service Interruptions;
(3) Total hours that the System was out-of-Service as related to planned maintenance
or Channel line-up changes performed by a Grantee; and
(4) Estimated number of Subscribers affected by each incident.
In addition to the above,the Grantor may request that Service Interruption reports
conta.in graph(s)that depict a Grantee's performance with respect to the items
above for the first three(3)year period of this Franchise and thereafter up to a
three (3)year period prior to the date the report was requested.
D. Results of any technical testing on the System.
Dispute Resolution.
A. Grantee sha11 establish procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts, without intervention by the Grantor. Such
procedures shall prescribe the manner in which any Subscriber may submit a complaint by
telephone, fax, e-mail or in writing to the Grantee that it has violated any provision of these
23
Customer Service Standards, any terms or conditions of the Customer's contract with the
Grantee, or reasonable business practices. Grantee shall use reasonable efforts to log oral
camplaints it receives and shall not be obligated to provide verbatim reports or transcripts of oral
complaints provided the nature of the complaint is adequately provided to the Grantor if
requested by Grantor.
B. The Grantee's complaint procedure shall be filed with the Grantor on or before the
effective date of this Franchise Agreement.
C. The Grantee's investigation of a Subscriber complaint shall be concluded in no
more than fifteen(15)business days after receiving the complaint, at which time the Grantee
shall notify the Subscriber of the results of its investigation and its proposed action or credit.
D. The Grantor may also notify the Subscriber of his/her rights to file a complaint
with the Grantor in the event the Subscriber is dissatisfied with the Grantee's decision, and shall
thoroughly explain the necessary procedures for filing such complaints with the Grantor.
E. The Grantor will review and notify Grantee of all complaints it receives against
Grantee regarding quality of service, equipment malfunctions,billing disputes, and property
damage. In conducting its review,the Grantor may request additional information from the
Grantee and/or Subscriber.
SECTION 6.
FRANCHISE FEE,INSURANCE PROVISIONS
1. Franchise Fee.
(a) Grantee sha11 pay to Grantor an Annual Franchise Fee in an amount of five
percent(5%) of its annual Gross Revenues.
(b) Any payments due under this provision shall be payable within 30 days of the end
of the Grantee's fiscal quarter and shall include a report showing the basis for the
computation.
(c) The Grantor shall have the right, at any time during the term of this Franchise,to
increase the Annual Franchise Fee to the maximum percentage permitted by law,
however the Grantor shall provide Grantee at least sixty(60)days notice prior to
the effective date of any increase or decrease of the Annual Franchise Fee.
2. Access to Records. The Grantor 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.
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3. Indemnification.
(a) Except as otherwise provided herein, Grantee shall indemnify, hold harmless,
release and defend Grantor, its officers, agents and employees from and against
any and all Iawsuits, claims, actions, demands, damages, disability, losses,
expenses including attorney's fees and other defense costs or liabilities of any
nature that may be asserted by any Person or entity arising out of the activities of
Grantee, its subcontractors, employees and agents hereunder. Grantee shall be
solely responsible and save Grantor harmless from all matters relative to payment
of Grantee's employees including compiiance with Social Security, withholdings,
etc.
(b) This indemnification obligation is not limited in any way by a limitation of 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 Agreement, or the terms, applicability or
limitations of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against Grantee which it may
have by reason of this indemnification,because of the acceptance by Grantor, or
the deposit with Grantor by Grantee, of any of the insurance policies described in
this Agreement.
(d) This indemnification by Grantee shall apply to all damages and claims for
damages of any kind suffered by reason of any of the aforesaid operations referred
to in this Section,regardless of whether or not such insurance policies sha11 have
been determined to be applicable to any such damages or claims for damages.
(e) Grantee shall not be required to indemnify Grantor for negligence or misconduct
on the part of Grantor or its officials,boards, commissions, agents, or employees
(hereinafter "such acts"). Grantor shall hold Grantee harmless for any damage
resulting from any such acts of the City or its officials, boards, commissions,
agents, or employees in utilizing any PEG access channels,equipment, or
facilities and for any such acts committed by Grantor in connection with work
performed by Grantor and permitted by this Agreement, on or adjacent to the
Cable System.
4. Grantee's Insurance. Grantee shall not commence any Cable System construction work or
permit any subcontractor to commence work until both shall have obtained or caused to be
obtained all insurance required under this Section. Said insurance shall be maintained in full
force and effect until the completion of construction.
5. Worker's Compensation Insurance. Grantee shall obtain and maintain workers'
compensation insurance for all Grantee's employees, and in case any work is sublet, Grantee shall
require any subcontractor similarly to provide workers' compensation insurance for all
25
subcontractor's employees, all in compliance with State laws, and to fully protect the Grantor
from any and all claims arising out of occurrences on the work. Grantee hereby indemnifies
Grantor for any damage resulting to it from failure of either Grantee or any subcontractor to take
out and maintain such insurance. Grantee shall provide the Grantor with a certificate of
insurance indicating workers' compensation coverage with its acceptance of this Franchise.
6. Insurance.
(a) Grantee shall file with its acceptance of this Franchise, and at all times thereafter
maintain in full force and effect during the entire term of this Franchise at its sole
expense, comprehensive general liability insurance that shall protect the Grantee,
the Grantor, and the Grantor's officials, officers, employees and agents from
claims which may arise from operations under this Franchise, whether such
operations are by the Grantee, its officials, officers, directors, employees and
agents, or any subcontractor 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 automobiles,products and
completed operations. The amount of insurance for single limit coverage applying
to bodily and personal injury and property damage shall not be less than one
million dollars ($1,000,000)per occurrence and two million dollars ($2,000,000)
in aggregate. The following endorsements shall attach to the liability policy:
(1) The policy shall cover personal injury as well as bodily injury.
(2) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier's standard
endorsement as to bodily injuries,personal injuries and property damage.
(3) Broad form property damage liability shall be afforded.
(4) The Grantor shall be named as an additional insured on the policy.
(5) An endorsement shall be provided which states that the coverage is primary
insurance and that no other insurance affected by the Grantor will be called upon
to contribute to a loss under this coverage.
(6) Standard form of cross-liability shall be afforded.
(7) Each policy of insurance shall contain a statement on its face that the insurer will
not cancel the policy or fail to renew the policy, whether for nonpayment of
premium,or otherwise, and whether at the request of Grantee or for other reasons,
except after thirty(30)days' advance written notice have been provided to
Grantor.
(b) Grantor reserves the right to adjust the coverage limit requirements no more than
26
every five (5)years. Any such adjustment by the Grantor will be no greater than
the increase in the State of South Dakota Consumer Price Index(all consumers)
for such five (5)year period.
(c) Grantee shall submit to Grantor 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.
(d) Any deductible or self-insured retention must be declared to Grantor.
SECTION 7.
FRANCHISE VIOLATION/REVOCATION OF FRANCHISE
1. Franchise Violations. Grantor, by action of the City Manager, shall first notify Grantee of
the violation in writing by personal delivery or registered or certified mail, and demand
correction within a reasonable time, which shall not be less than twenty(20)days in the case of
the failure of the Grantee to pay any sum or other amount due the Grantor under this Agreement,
and thirty(30) days in all other cases. If Grantee fails to correct the violation within the time
prescribed, or if Grantee fails to commence corrective action within the time prescribed and
diligently remedy such violation thereafter,the Grantee shall then be given a written notice of not
less than thirty(30) days of a public hearing to be held before the Council. Said notice shall
specify the violations alleged to have occurred.
(a) At the public hearing,the City Council shall hear and consider all relevant
evidence, and thereafter render findings, its decision, and the penalty or penalties
for the violation.
(b) In the event the City Council finds that Grantee has corrected the violation, or has
diligently commenced correction of such violation after notice thereof from CiTy
and is diligently proceeding to fully remedy such violation, or that no material
violation has occurred,the proceedings shall terminate and no penalty or other
sanction shall be imposed. In determining whether a violation is material Grantor
shall take into consideration the reliability of the evidence of the violation,the
nature of the violation and the damage, if any, caused to the Grantor thereby,
whether the violation was chronic, and any justifying or mitigating circumstances
and such other matters as the Grantor may deem appropriate.
(c) Grantor may impose any penalty or sanction authorized by Federal or State law
for a Violation of this Franchise,however imposition of any such penalty shall not
constitute a waiver of any right of the Grantor to pursue any other remedy
permitted by law.
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2. Revocation of Franchise.
(a) Grantor's Right to Revoke.
(1) In addition to all other rights which Grantor has pursuant to law or equity, Grantor
reserves the right to revoke,terminate or cancel this Franchise, and all rights and privileges
pertaining thereto, if after the hearing required by Section 7.1 herein, it is determined that:
(i) Grantee has violated any material provision of this Franchise; or
(ii) Grantee has attempted to evade any of the material provision of the
Franchise; or
(iii) Grantee has practiced fraud or deceit upon City or Subscriber.
(b) Procedures for Revocation.
(1) Grantor 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 performance in compliance
with the Franchise.
(2) Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to revocation, which public hearing shall follow the thirty(30)day
notice provided in paragraph(b.l.) immediately above. At the public hearing, Grantee shall be
provided a fair opportunity for full participation, including the right to be represented by legal
counsel, to introduce relevant evidence, to require the production of evidence,to compel the
relevant testimony of the officials, agents, employees or consultants of the Grantor,to compel the
testimony of other persons as permitted by law, and to question witnesses. A complete verbatim
record and transcript shall be made of such hearing,the cost of such transcript to be paid by
Grantee. The Grantor shall provide Grantee with written notice of its decision together with
written findings of fact supplementing said decision.
(3) After the public hearing and upon written determination by Grantor to revoke the
Franchise, Grantee may appeal said decision with an appropriate sta.te or federal court or agency
within sixty(60) days of said decision. Unless otherwise provided by Federal or state law,the
decision of the Grantor to revoke the Franchise shall be subject to review de novo.
(4) During the appeal period,the Franchise shall remain in full force and effect unless
the term thereof sooner expires.
(5) The Grantor may, at its sole discretion,take any lawful action,which it deems
appropriate to enforce the Grantor's rights under the Franchise in lieu of, or in addition to,appeal
or public hearing upon revocation of this Franchise.
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SECTION 8.
PROTECTION OF INDIVIDUAL RIGHTS
l. Subscriber Privacv. Grantee shall comply with the terms of 47 U.S.C. § 551 relating to
the protection of Subscriber privacy.
SECTION 9.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm,
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
connection, extension, or division, whether physically, acoustically, inductively, electronically or
otherwise, with or to any segment of the System.
2. Removal or Destruction Prohibited. It sha11 be unlawful for any firm, Person, group,
company, corporation, or government body or agency to willfully interfere,tamper,remove,
obstruct, or damage, or assist thereof, any part or segment of the System for any purpose
whatsoever.
3. Penal . Any firm, Person, group, company, corporation or government body or agency
found guilty of violating this section may be fined not more than Two Hundred Dollars($200.00)
for each and every subsequent offense. Each continuing day of the violation shall be considered a
separate occurrence and offense.
SECTION 10.
GRANTOR'S RIGHT TO PURCHASE THE CABLE SYSTEM
If this Franchise or the Mediacom Minnesota LLC Cable System is to be transferred or
sold,the Grantor has the right to purchase the Grantee's Cable System serving the City of
Brookings. The Grantor shall be required to pay to the Grantee the fair market value,exclusive
of any value allocated to the Franchise itself, of that portion of the Grantee's Cable System
serving the City of Brookings.
SECTION 11.
MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be done in accordance with
applicable federal, state and local laws and regulations.
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2. Amendment of Franchise Ordinance. Grantee and Grantor may agree, from time to time,
to amend this Franchise. Such written amendments may be made at any time if Grantor 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. Grantor shall act pursuant to local law
pertaining to the ordinance amendment process.
3. Mediation. To aid in the analysis and resolution of any future disputed matters relative to
this Franchise Agreement,the Grantor and Grantee may, by mutual agreement(both as to
whether to hire and whom to hire), employ the services of technical, financial or legal
consultants, as mediatars. All reasonable fees of the consultants incurred by the Grantor and the
Grantee in this regard shall be borne equally.
4. Force Majeure.Neither Grantor nor Grantee shall be liable for damages or subject to
penalty due to delay or failure to perform any duty imposed by this Franchise Agreement if such
delay or failure results directly or indirectly from circumstances beyond the control of such party.
Within thirty(30) days of Grantee's discovery of the event causing such delay or failure, Grantee
shall provide Grantor written notice describing the cause of the delay or failure and estimating
the period of time in which such delay or nonperformance will be cured.
5. Rate Regulation/Internet as a cable service. If Grantor is permitted under federal and/or
State law to regulate the rates charged by Grantee, and if Grantor elects to regulate, Grantor sha11
establish reasonable procedures consistent with due process and applicable law and follow those
procedures before so regulating In addition, if Internet service is determined by the FCC to be a
cable service, such services shall be subject to the Franchise Fee to the extent permitted by
Federal and state law.
SECTION 12.
CONFLICT WITH OTHER ORDINANCES
In the event of any conflict or ambiguity between the terms and conditions of this
Franchise Ordinance and any other Ordinance,this Ordinance shall control, except as may be
specifically otherwise provided in this Ordinance. The Grantor reserves all rights that it may
possess under law to adopt any ordinance regulating the use of the Grantor's streets and rights of
ways.
SECTION 13.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
l. Publication; Effective Date. This Franchise shall be published in accordance with
applicable South Dakota law. The Effective Date of this Franchise shall be the Date Grantee has
accepted this Franchise.
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J �
2. Acceptance.
(a) Grantee shall accept this Franchise within sixty(60) days of its enactment by the
City Council,unless the time for acceptance is extended by Grantor. Such
acceptance by the Grantee shall be deemed the grant of this Franchise for all
purposes. Upon acceptance of this Franchise, Grantee shall be bound by ail the
terms and conditions contained herein.
(b) Grantee shall accept this Franchise in the following manner:
(1) This Franchise will be properly executed and acknowledged by Grantee
and delivered to Grantor.
(2) With its acceptance, Grantee shall also deliver any Insurance certificate
required herein that have not previously been delivered.
Passed and adopted this 26�'day of November, 2013.
,��uy�
�.'Y��''� CITY OF B OOKINGS, GRANTOR
�� '�W Q� -��/'�� .
�4'�J�� � •" v BY� ��� ---
°�1;��� erk Tim Reed
Its: Mavor
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
MEDIACOM MINNESOTA LLC, GRANTEE
Dated: ��Pi�m 1��" �' ��13 By: �n.�, �'iIl�,�,�..,Y,,.�
�
�ts: �«,,�1,«.���,J�,��- L�,�� �►����I�-��� ��,�
)
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� �
EXHIBIT A
DROPS TO PUBLIC BUILDINGS
The following cable drops to public buildings shall be provided upon request by the
Grantor:
City: Brookings City and County Government Center
Brookings Police Department
School: All current schools
Any Future schools constructed during the franchise period
Library
Larson Ice Center
Swiftel Center
Street Maintenance Shop
The following High Speed Data lines (HSD) shall also be provided:
City: The Brookings City and County Government Center and Brookings Police
Department-2 High speed data lines(HSD)installed at each building at no cost to the Grantor,
with HSD service provided at residential rates, though not to upgraded without monthly charge
added to associated speed and service.
Note: Buildings not identified on the above list may be included by Grantor's notice to
Grantee of the building and location provided the building is within five hundred feet of
Grantee's nearest trunk or distribution cable. Grantee shall provide free drop within ninety(90)
days after receipt of notice.
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