B. - Ameritech New Media, Inc.
ORDINANCE NO. 99-798
AN ORDINANCE GRANTING A FRANCHISE TO AMERITECH NEW MEDIA, INC., TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF DEARBORN, MICHIGAN.
THE CITY OF DEARBORN ORDAINS:
I. - GENERAL PROVISIONS
Section 1.1. Definitions. The definitions contained in the Dearborn City Cable Ordinance are incorporated by reference as if fully set forth. In addition, for the purposes of this Franchise, the following words, terms, phrases, and their derivations will have the meanings given herein. When consistent with the context in which they are used, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number. The word "will" is always mandatory and not merely directory. The word "may" is not mandatory and is merely permissive.
a. Authorized Area means the entire area from time to time within the corporate limits of City, excluding, however, all areas that are within such limits solely due to agreements executed under the authority of Michigan Act 425 of 1984 unless such agreements expressly reference Cable Services, Cable Systems or the Cable Television Business.
b. Building Director means the Director of Building and Safety or his or her designee.
c. Cable Ordinance means Ordinance Chapter 6 of the Code of Ordinances, City of Dearborn.
d. Cable Services means only
(1) the one-way transmission to all subscribers of (i) Video Programming, or (ii) other programming services, by which is meant information which Franchisee makes available to all subscribers generally, such as digital cable radio service or information services; the definition of Cable Service contained in Section 602 of the Cable Act is incorporated herein by reference.
(2) subscriber interaction, if any, which is used for the selection or use of such Video Programming or other programming services.
e. Cable System, Cable Communications System, Cable Television System, CATV, or Broadband Communications Network means a system, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed and used solely to provide Cable Services, which includes Video Programming to multiple subscribers within the Authorized Area, but such terms do not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way, (iii) a facility of a common or private carrier which is subject in whole or in part to the provisions of Title II of the Communications Act of 1934, as amended, except that such a facility will be considered a Cable System to the extent such facility is used in the transmission of Video Programming directly to subscribers, except if the extent of such use is solely to provide Interactive On-Demand Services.
f. Cable Television Business means the provision by Franchisee of Cable Services solely by means of the Cable System.
g. City means the City of Dearborn, a Michigan municipal corporation.
h. EAS [means] a designated channel which will be used for emergency broadcasts of both audio and video.
i. Effective Date means the date that the cable franchise is fully executed by the parties.
j. Event of Default means the occurrence, at any time during the term of the Franchise of a failure of payment of franchise fees; breach or violation of any of the materials, terms, covenants, representations or warranties; failure to pay, or cause to be paid any governmentally imposed taxes; dissolution or termination of a Franchisee or general partner of Franchisee; Franchisee files voluntary petition in bankruptcy.
k. FCC means the Federal Communications Commission or its Successor.
l. Federal Cable Act means of the Communications Act of 1934 and Cable Communications Policy Act of 1984, as amended.
m. Franchise or Franchise Agreement or Agreement means this document.
n. Franchisee means Ameritech New Media, Inc., a Delaware corporation or its successors and assigns.
o. Gross Revenues or Gross Annual Revenues means all revenue derived from the operation of the cable system to provide cable services. This term includes copyright fees but does not include any other sales, excise or other fees or taxes collected by Franchisee on behalf of any state, City or other governmental unit, and will be net of bad debt, refunds to subscribers, advertising revenues and home shopping revenues.
p. Interactive On-Demand Services means services providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.
q. Municipal Charter means City's charter.
r. Municipal Code means the Code of Ordinances of the City of Dearborn.
s. Normal Business Hours means those hours during which most similar businesses in the community are open to service customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours.
t. Normal Operating Conditions means those service conditions which are within the control of Franchisee, including, but not limited to special promotions, pay-per-view events, rate increases, regular and peak seasonal demands and maintenance or upgrade of the Cable System. Those conditions which are not within the control of Franchisee include without limitation, power outages, telephone network outages, natural disasters, civil disturbances, and extreme weather conditions.
u. PEG Channels means public, educational and government channels, in either analog or digital format, placed on the basic tier of service, available twenty-four (24) hours a day to subscribers at no cost to the City or Users.
v. Public Ways and Public Rights-of-Way means all dedicated public rights-of-way, streets, highways, and alleys. "Public Ways" and "Public Rights-of-Way" will not include property of City which is not a dedicated public right-of-way, street, highway, or alley.
w. School Systems means the Dearborn Public Schools and Dearborn Heights D-7 School Districts.
x. Service Interruption means the loss of picture or sound on one or more cable channels, affecting one or more cable subscribers.
y. Term means the 20-year period commencing on the Effective Date.
z. User means a person authorized to use a PEG Channel, and will include City and programmers. If several persons share the operation of a channel each person is a separate User.
aa. Video Programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
II. - GRANT OF FRANCHISE
Section 2.1.
a. Permission/Franchise. Subject to all these terms and conditions, the Michigan Constitution, Section 309(a) of Public Act 216 of 1995, the Municipal Charter, the Municipal Code, and the Federal Cable Act, City grants Franchisee permission during the Term to erect, construct, install and maintain a Cable System in, over, under, along and across the Public Ways in the Authorized Area and to transact a Cable Television Business in such area.
b. Additional Services. This Franchise may be amended by mutual agreement to allow the provision of such additional services not already authorized by this Franchise or Cable Ordinance as may be agreed to by Franchisee and City, or permission for the provision of additional services may be granted by a separate document.
c. No Priority. This Franchise does not establish any priority for the use of the streets and Public Ways by Franchisee or by any present or future franchisees or other permit holders.
d. Easements and Rights-of-Way. The parties acknowledge and agree that the purpose of the Franchise is to authorize Franchisee to construct, maintain and operate a Cable System and offer Cable Service in, along, among, upon, across, above, over, or under the Public Ways within City. To the extent allowed by applicable state and federal law, this Franchise Agreement authorizes the construction of the Cable System over Public Ways, and through easements, within the Authorized Area and which have been dedicated for compatible uses, subject to the requirements in the balance of this Section and this Franchise Agreement. In using all Public Ways and easements. Franchisee will comply with all federal, state, and local laws and regulations of general applicability governing the construction, installation, operation, and maintenance of a Cable System.
e. Authority Not Exclusive. The Franchise and the grant of authority for use of streets, sidewalks, easements, and rights-of-way as conferred in this Section 1 are nonexclusive. Franchisee will respect the rights and property of City and other authorized users of streets, sidewalks, easements and rights-of-way, and property owners. Except as otherwise required by applicable law, disputes between Franchisee and parties other than City over the use, pursuant to this Agreement, of the streets, sidewalks, easements and other rights-of-way will first be submitted to City for resolution.
f. No Burden on Public Rights-of-way. Franchisee will not erect, install, construct, repair, replace, or maintain its Cable System in such a fashion as to unduly burden the present or future use of the streets or Public Rights-of-Way.
g. Relocation of the Cable System. Upon thirty (30) days request, Franchisee will, at its own cost and expense, protect, support, disconnect, relocate or remove from the streets or Public Rights-of-Way any portion of the Cable System when reasonably required to do so by City due to street or other public excavation, construction, repair, grading, regrading; traffic conditions; the installation of sewers, drains, water pipes, power or signal lines, trackways or tracks; municipally owned facilities; or the vacation, construction or relocation of streets or any other type of structure; or other improvements by the City or another public agency or any other type of improvement which the City reasonably deems necessary for the public health, safety or welfare. City may temporarily disconnect, remove, or relocate any of the Franchisee's facilities which have not been disconnected, removed, or relocated within a reasonable period of time after a request from City and Franchisee will reimburse City its entire expense including a reasonable cost of overhead.
h. Weather. Underground installations are allowed upon Franchisee obtaining appropriate permits, including insuring that weather conditions allow proper restoration of disturbed areas in a timely manner.
i. Restoration of Property. Franchisee will restore at its sole cost and expense, within ten (10) working days, or such additional time as specified by the Building Director, in accordance with the Municipal Code and standards established by the Building Director any portion of the streets or Public Rights-of-Way that is in any way disturbed by the construction, operation, maintenance or repair of the Cable System to as good or better condition than existed previously. In addition, Franchisee will at its sole cost and expense, restore and replace any other property, real or personal, including home, commercial sprinkler and municipal sprinkler systems, disturbed, damaged or in any way injured by or on account of Franchisee or by its acts or omissions, to the same condition as such property was in immediately prior to the disturbance, damage or injury. In the event that Franchisee and its contractors and subcontractors fail to make such repair within the time specified by City, City is entitled to complete the repair and Franchisee will pay the costs of City for such repair.
j. Barriers. While any portion of the streets or Public Rights-of-Way are open, Franchisee will maintain reasonable barriers, lights at night and other warnings to the users of the streets or Public Ways in compliance with applicable government regulations requiring and pertaining to such barriers.
k. Traffic Control. For all work in the Public Rights-of-Way which may disturb the normal flow of vehicular or pedestrian traffic Franchisee will employ roadway closure or partial closure practices, as delineated in the Michigan Manual of Uniform Traffic Control Devices and standards which may be established by the Building Director.
l. Minimum Interference. The Cable System will be erected and maintained by Franchisee so as to cause the minimum interference with the use of the Public-Rights-of-Way and with the rights or reasonable convenience of property owners.
m. Map Accuracy. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In Public Rights-of-Way, where necessary, the location will be verified by excavation.
n. Construction—General. Franchisee will meet or exceed all the construction and service requirements set out in this Franchise and those set out in the Municipal Code.
o. Construction Schedule. Franchisee will complete its construction of the Cable System and have Cable Services available to all residents who desire service within 24 to 30 months of the effective date of this Agreement.
p. Construction Bond.
Unless otherwise provided for in the Franchise Agreement:
(1) Within thirty (30) days after the effective date of the franchise agreement, and prior to the commencement of any construction work by the franchisee, the franchisee, at its sole expense, will file with the City a performance and surety bond, in favor of the City. The performance and surety bond will be in the amount of fifty thousand dollars ($50,000.00). The bond will assure the City of recovery of any actual damages, losses, costs and expenses sustained or suffered by the City as a result of the failure of the franchisee to satisfactorily and timely complete and activate its cable system throughout the City, pursuant to this chapter and the franchise agreement. This bond will be maintained by the franchisee until the system is 75 percent complete as determined by the council. The performance and surety bond will be issued by a surety company licensed to do business in the state and acceptable to the City and in a form approved by the City attorney.
(2) The City may, upon completion of construction, waive or reduce the requirement of the franchisee to maintain the bond. However, the City may require a performance bond to be posted by the franchisee for any construction subsequent to the completion of the initial service areas, in a reasonable amount and upon such terms as determined by the council not exceeding $10,000.
(3) The construction bond will contain the following endorsement: "It is understood and agreed that this bond may not be canceled by the surety, nor the intention not to renew be stated by the surety, until thirty (30) days after receipt by the City of Dearborn, by registered mail, of a written notice of such intent to cancel or not to renew."
q. Emergency Notification. Franchisee will provide the Mayor's office with a twenty-four (24) hour emergency telephone number.
r. Right of Inspection. City will have the right to inspect all construction or installation work and to make such tests as it deems necessary to ensure compliance with the terms of the Franchise, Municipal Code, or other pertinent provisions of law.
s. Notice of Construction—Residents. Franchisee will provide advance notice, appropriate to the circumstances, prior to entry whenever desiring to enter or cross any private property within City or work in abutting Public Rights-of-Way. By way of example, Franchisee will provide at least forty-eight (48) hour advance notice to affected property owners (such as by door hanger) prior to construction or reconstruction requiring entry on private property or work in the Public Rights-of-Way abutting such private property. During maintenance work, installation work, and outage repair, Franchisee will attempt to notify affected residences (such as by knocking and, if no answer, leaving a door hanger) prior to entering private property. Work performed in an emergency in easements and Public Rights-of-Way to repair system outages is exempted from this section.
t. Removal of Obsolete Facilities/Cooperation. When Franchisee opens a trench, accesses a conduit or boring, or is working on aerial locations, it will remove all of Franchisee's facilities that are both obsolete and inactive from such locations.
u. Joint Use by City. Franchisee will permit without charge the joint use of excess height, space and capacity in Franchisee-owned poles, located in the Public Rights-of-Way by the City, provided that no such use is in competition with Franchisee.
v. Underground Street Crossing. Whenever Franchisee must place the Cable System or other facilities beneath the traveled or paved portion of the Public Rights-of-Way, Franchisee will do so by means acceptable to the Building Department. Directional boring will be done wherever possible so that the excavations necessary for it are not in the paved portion of the right-of-way.
w. Temporary Relocation. Upon 30 business days notice, Franchisee will either temporarily raise or lower its wires or other equipment upon the request of any person, including without limitation, a person holding a building moving permit issued by City. Franchisee may charge a reasonable rate for this service, not to exceed its actual costs with an advance deposit of the estimated cost.
x. Pavement Cut Coordination. Franchisee will coordinate its construction program and all other work in the Public Rights-of-Way with City's program for street construction, rebuilding, resurfacing, and repair.
y. Vacated Streets. If by action of the City Council a Public Right-of-Way is vacated, eliminated, discontinued or closed, where appropriate, City will act to ensure, that all rights of Franchisee under this Franchise to continue to use same will continue unaffected, such as by providing for easements from the affected property owners for Franchisee to continue to use the former public Right-of-Way. If such continued use is not provided for, Franchisee will at its expense promptly remove its Cable System from the former Public Way.
z. As-Builts/Location of Facilities. Franchisee will keep accurate, complete, and current maps and records of the Cable System and its facilities and will provide copies to City as set forth below. Such maps and records will be available for inspection by the public at the offices of City.
(1) Franchisee will furnish two complete sets of "as-built" maps and records to City and Franchisee will provide City copies of any new or revised "as-built" or comparable drawings as and if they are generated for portions of Franchisee's facilities and Cable System located within City (and in no event later than thirty (30) days after construction of any portion of the System). Upon request by City, Franchisee as soon as possible (but no more than 7 business day from the request) will inform City of any changes from such maps and records previously supplied and will mark up maps provided by City so as to show the location of the Cable System.
(2) The "as built" maps will include at a minimum all system and facility routings and the location of appurtenant structures, such as nodes, amplifiers, power supplies and system monitor test points, and will be drawn to scale and provided to the Building Director and City Engineer.
(3) Upon request Franchisee will provide City with a computer file which accurately displays Franchisee's "as built" Cable System. If changed, this file will be updated and will be provided at no cost to City and become the property of City if compatible with the City's system. Franchisee will provide City with reasonable information about Franchisee's computer program which generates the file and its implementation so as to aid City in converting and incorporating the files into a layer in the Geographical Informational System City's uses.
aa. Miss Dig. Franchisee will participate in and be a member of the "Miss Dig" utility notification program provided for by Michigan Compiled Law Annotated § 460.701(ff) or subsequent statute.
bb. Discontinuance and Removal of the Cable System. Upon the revocation, termination, or expiration of this Franchise, absent renewal of the Franchise Franchisee either:
(a) By mutual agreement of City and Franchisee; or
(b) By Franchisee's acquiescence or failure to challenge same; or
(c) By a final order of a court which Franchisee either does not appeal or from which there is no further right of appeal then Franchisee will immediately discontinue the provision of Cable Services and all rights of Franchisee to use the Public Rights-of-Way will cease.
Franchisee, at the direction of City, will remove its aboveground Cable System except that Franchisee may abandon its facilities in place with City's consent. Franchisee will also restore any property, public or private, to the condition in which it existed prior the installation, erection, or construction of its Cable System, including any improvements made to such property subsequent to the construction of its Cable System.
III. - FRANCHISE FEES
Section 3.1.
a. Franchise Fees. From and after the Effective Date of this Agreement and throughout the full Term of the Franchise, Franchisee will pay to City a franchise fee equal to five percent (5%) of annual Gross Revenues.
(1) Payments will be made within forty-five (45) days of the end of each calendar quarter for Gross Revenues received during such calendar quarter.
(2) The payment for the fourth calendar quarter in a year will be accompanied by an annual statement set forth on Exhibit C.
(3) City may audit Franchisee to verify the accuracy of franchise fees paid City. All records reasonably necessary for such audit will be made available by Franchisee at a location within 25 miles of the City. Any additional amount due verified by Franchisee and City will be paid within 30 days of City's submitting an invoice for such sum, and if such sum will exceed 5% of the total franchise fee which the audit determines should have been paid for any calendar year, Franchisee will pay City's reasonable cost of such audit.
IV. - CONSTRUCTION OF CABLE SYSTEM
Section 4.1.
a. Construction Schedule. Construction of the Cable System and provision of service will be in accordance with the construction schedule and cable system description which are attached to this Franchise Agreement as Exhibit A. Franchisee will give City Engineer written notice within a reasonable time before the commencement of construction, but in no event may notice be given less than seven days before such commencement. Throughout the construction period Franchisee will give the Mayor and City Engineer a weekly schedule of construction areas and planned street disturbances.
b. Maintenance. Franchisee will maintain all wires, conduits, cables and other real and personal property and facilities owned by Franchisee and used in the operation of the Cable System in good condition, order and repair.
c. Compliance with Law. Franchisee will comply with all applicable federal, state and local laws and regulations governing the construction, installation, operation and maintenance of a Cable System. Such laws and regulations will include, without limitation, the requirements of Section 621(a)(2)(A) of the Federal Cable Act.
d. Other Construction Concerns. In addition to the above requirements:
(1) Codes. Franchisee will comply with the provisions of the National Electrical Safety Code of the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters and the Bell Telephone System's code of Pole Line Construction, as such codes are in force as of the time of installation or other work.
(2) Parallel Installation. All cables and wires or other work will be installed parallel with existing telephone and electric utility wires whenever possible.
(3) Engineering and Safety. Multiple cable configurations will be in parallel arrangement and bundled in accordance with engineering and safety considerations.
(4) Installation Above and Below Ground. Except where otherwise provided by applicable law in areas where all telephone and electric utilities' and other cable operators' facilities are above ground at the time of the installation of Franchisee's Cable System, Franchisee may install its facilities above ground. In areas where all telephone and electric utilities' and other cable operators' facilities are underground. Franchisee will install its facilities underground. If City gives the same notice to Franchisee to all telephone and electric utilities and to all other cable operators in City requesting that aboveground facilities be moved underground. Franchisee will at its expense comply with all such reasonable requests by City to Franchisee. City will coordinate among Franchisee, telephone and electric utilities, other cable operators and/or users of Public Ways to ensure that relocation is done in the most economical and appropriate manner possible.
(5) Identification of Franchisee's Cable. Throughout the Term, Franchisee will arrange to identify its cable drops (by color code, stamping, engraving, tags stickers or other appropriate method to be selected by Franchisee in its sole discretion) so as to distinguish Franchisee's cable from that of all other cable operator(s) in the Authorized Area.
e. General Density Requirement. During the Term of the Franchise, Grantee shall be required to make service available to areas that have a density of thirty-five (35) homes per linear cable mile continuous of existing plant, or fractional equivalent, as measured from the extremity of the system nearest to the area to be served to the farthest dwelling unit in the area to be served.
f. Annexed Areas. In areas subsequently annexed, Grantee shall provide service to the annexed area unless the following occurs or is present:
(1) The annexed area is already served by a cable operator; or
(2) The annexed area does not meet 35 homes per linear mile minimum density requirement.
g. Cost-Sharing Arrangements in Less Dense Areas. Notwithstanding the foregoing density requirements, Grantee agrees that, in areas with fewer homes per linear mile than specified above, Grantee shall make available a cost-sharing arrangement with potential customers.
(1) Formula. In such a cost sharing arrangement, Grantee's per-home share will be the result of dividing the per-mile cost of the entire project by 35. The customer's share will be the result of dividing the per-mile cost of the entire project by the number of serviceable homes per mile in the project and subtracting Grantee's share.
(2) Installment Payments. In such a cost-sharing arrangement, Grantee will permit customer payment schedules for such installation to be paid in equal amounts over a three months period, excluding, however, any deposit that Grantee may require up front.
g. Installation Costs. Franchisee will build its Cable System so that it is capable of providing service to all residences located along Public Ways and public institutions located within the Authorized Area. Franchisee will install its Cable System at then-prevailing installation charges except as provided below:
(1) Drops Exceeding 150 Feet. Where the drop to the customer's home is more than 150 feet in length, in addition to the prevailing installation charge, Franchisee may charge the customer the actual difference between Franchisee's cost of installing a 150-foot drop and the cost of installing the longer drop required by the customer.
(2) Authorized Area Extensions. In any areas adjacent to the Authorized Area which are annexed by City during the Term, where the residence of a customer requesting service is more than 500 feet from the existing Cable System (where aboveground installation is permitted) or 250 feet of distance from the existing Cable System (where underground installation is required), service will be provided if the customer requesting service (or persons, on a pro rata basis) contribute the actual cost of material and labor for the portion of construction that is beyond the then-applicable distances described above.
h. Ownership of Installed Cable. Franchisee will own all cable installed by Franchisee within the Authorized Area; provided, however, that, if a similar requirement is imposed upon (by law, ordinance or regulation) all other cable operator(s) within the Authorized Area, Franchisee agrees that its customers will own all cable installed by Franchisee inside the customers' dwellings plus such further length of cable extending beyond the dwellings' exteriors as is required by law.
i. Liquidated Damages. It is understood that it is impractical at this time to reasonably ascertain the total extent of damages which may be incurred as a result of a failure by Franchisee to complete construction within the time periods set forth above. Such impracticality arises out of the difficulty of establishing a cost for future damages suffered by the public and other factors which are incapable of measurement in precise monetary terms. Therefore, Franchisee offers and agrees to compensate City in the amount up to One Hundred Dollars ($100.00) per day for each calendar day of nonexcusable delays in completing construction of the Cable System in accordance with the schedule set forth above. In no event may liquidated damages exceed $10,000 during the term of the Franchise.
(1) City agrees to waive such liquidated damages in the event that a failure to meet the construction schedule arises out of acts of God, labor stoppages, strikes, judicial orders, new FCC regulations, earthquake, lightening, flood, fire, explosion, riots or civil disturbances, or other causes not foreseeable and beyond the control of Franchisee.
(2) Such liquidated damages will be assessed using the same procedure as is set forth in Section 15(d).
j. State of Art. Franchisee will use reasonable efforts to continue to keep the Cable System at a high quality level where technically and economically feasible.
k. Emergencies. City may reasonably remove or damage portions of the Cable System in the case of fire, disaster, or other emergencies. In such event neither the City nor any agent, contractor or employee acting reasonably will be liable to the Franchisee for any damages caused to the Franchisee or the Cable System, such as for, or in connection with, protecting, breaking through, moving, removal, altering, tearing down, or relocating any part of the Cable System.
l. Emergency Alert System. Franchisee without charge will install as a part of its Cable System, and will operate throughout the Term, an Emergency Alert System (EAS) (or successor to that system) in accordance with all requirements imposed from time to time by the FCC, including, without limitation, the requirements that cable television systems transmit a visual EAS message on at least one channel (47 C.F.R. § 11.51(g)(3)) and that cable systems also provide video interruption and audio EAS message on all channels, with the audio message further stating which channel is carrying the visual message (47 C.F.R. § 11.51(g)(2)). In establishing Franchisee's EAS system pursuant to this Section, Franchisee will:
(1) Designate a channel (which may be the government channel) which will be used for emergency broadcasts of both audio and video;
(2) Inform customers of the designated emergency channel at least weekly on at least one channel (which may be the government channel) of the multi-channel system;
(3) Test the emergency override system not less than once every three months;
(4) Maintain all channel text crawl capability able to be activated remotely by security measures deemed mutually agreeable by City and Franchisee;
(5) Cooperate with City on the use and operation of the emergency alert override system; and
(6) Maintain the capacity to permit City in time of emergency the ability to inform viewers on all channels (such as by text crawl) to which channel to tune to receive emergency information in a manner which does not conflict with Federal EAS regulations.
m. Backup Power. Franchisee will provide battery backup power (or an electric generator) at all locations on the Cable System where the loss of electric power might disrupt the provision of service within City such that the Cable System will operate for at least four hours even if electric service from conventional utility lines is interrupted.
n. Preventive Maintenance. Upon completion of construction, Franchisee will institute and adhere to a preventive maintenance program at least as rigorous and stringent as that set forth on Exhibit B.
V. - AUTHORIZED AREA LINE EXTENSION
Section 5.1.
a. Municipal Facilities. During the Term, Franchisee will provide, at no cost to City, one aboveground cable drop of up to 150 feet and one cable converter (set top) box, if necessary, to each municipal facility (as defined below) within the Authorized Area. If City requests that a particular municipal facility receive either a cable drop which exceeds 150 feet in length and/or an underground installation, Franchisee may charge City the actual difference between Franchisee's cost of installing a 150-foot above ground drop and Franchisee's actual cost of installing the drop as requested by City.
b. Landlord/Tenant. Franchisee is required, in accordance with this Agreement and applicable law, to provide service to individual units of a multiple housing facility with all services offered to other dwelling units within the Authorized Area, so long as the owner of the facility consents in writing, if requested by Franchisee, to the following:
(1) To Franchisee's providing of the service to units of the facility;
(2) To reasonable conditions and times for installation, maintenance and inspection of the system of the facility premises;
(3) To reasonable conditions promulgated by Franchisee to protect Franchisee's equipment and to encourage widespread use of the system; and
(4) To not demand or accept payment from Franchisee for permitting Franchisee to provide service to the facility and to not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not.
VI. - PUBLIC, EDUCATIONAL AND GOVERNMENTAL CHANNELS
Section 6.1.
a. Channels Made Available. Franchisee will provide and equip with fiber optic transmitters and receivers and carry the following public channels, educational channels, and government access channels as set forth in 6(a)(1), (2) and (3). The PEG channels can be either analog or digital format. All PEG Channels will be placed on the basic tier of service (and in the lowest tier of service, if different), unless both parties mutually agree otherwise. Such channels will be available twenty-four (24) hours per day throughout the Term of this Franchise at no cost to City or Users. PEG Channels will initially be allocated as follows:
(1) Government Channel. One (1) government channel for use by City for noncommercial purposes.
(2) Education Channel. One (1) educational channel to be administered for noncommercial purposes by the School Systems, other public primary and secondary schools or public higher education institutions from time to time designated by City.
Although City is served by multiple School Systems, Franchisee will design, construct and operate its Cable System and Cable Services such that each School System may provide noncommercial programming to subscriber locations within its school district boundaries as they exist on the Effective Date. City acknowledges that this may result in one channel being shared by several entities with different noncommercial programming potentially being provided on such channel at different locations within City.
(3) Public Access. One (1) public access channel for use for noncommercial purposes.
b. PEG Access Support. Franchisee will make the following payments for the support of PEG Channels in the amounts and according to the procedures set forth below.
(1) A grant to City of Sixty Thousand Dollars ($60,000.00) within thirty (30) days of the execution of this Franchise by City, which sum the City may apply toward PEG channels or Users.
(2) Quarterly payments by Franchisee to City in an amount equal to one percent (1%) of Franchisee's Gross Revenues. Such ongoing payments will be and are in addition to the franchise fee set forth in Section 2 and in the Cable Ordinance.
c. PEG Signal Quality. The PEG channel delivery system from the signal input points described in Section 5(a)(4) will meet the same technical standards as the remainder of the Cable System.
d. Free Basic Cable Installation and Service Drop. Franchisee shall provide free installation and basic cable service to one location specified on Exhibit "H."
VII. - CUSTOMER SERVICE
Section 7.1.
a. Regulation of Rates.
(1) With respect to rates and charges, the parties agree that they will abide by federal law and FCC Regulations.
(2) Free installation and cable service may, at the discretion of the Franchisee, be provided to non-profit community organizations, other than schools.
(3) Nothing will prohibit Franchisee from requiring advance payment for installation or service.
(4) Subject to provisions of applicable laws, nothing herein will prohibit the Franchisee from levying a charge for late payment of a subscriber's account or terminating service for non-payment.
b. Consumer Protection and Service Standards
(1) General. Throughout the Term of this Agreement, Franchisee will meet the standards regarding customer service set forth in Part 76, § 76.309 of the FCC's Rules. In the event that the customer service standards set forth in § 76.309 of the FCC's Rules are modified or amended, Franchisee will upon ninety (90) days' written notice from City to Franchisee comply with such modified or amended Rules.
(2) Office Hours and Telephone Availability.
i. Franchisee will provide a collect call or toll-free telephone access line which will be available to subscribers 24 hours a day, seven days a week, including weekends and holidays; and arrangements for no charge delivery and pickup of converter boxes, remotes and similar Franchisee-provided customer premises equipment. No physical office in City need be maintained. Trained representatives of Franchisee will be available to respond to telephone calls 24 hours a day, seven days a week.
ii. Under normal operating conditions, telephone answer time by a customer representative, including wait time, will not exceed thirty (30) seconds when the connection is made. If the call needs to be referred, transfer time will not exceed thirty (30) seconds. These standards will be met no less than ninety (90%) percent of the time, measured on a quarterly basis.
iii. Under normal operating conditions, all incoming customer service lines will not be simultaneously busy more than an accumulative period of three percent (3%) of the time, measured on a quarterly basis.
iv. Franchisee will evaluate maintaining a drop box for the receipt of customers' bill payments. Such drop box, if maintained, will be at City Hall or at such location as City and Franchisee may from time to time agree.
v. When there are customers with problems relating to home wiring or converters, Franchisee will dispatch a technician out to the home within 24 hours to make repairs or pick up and exchange the broken set top boxes. If the customer wants to return the box, Franchisee will dispatch a technician within seven business days.
[(3) Reserved. ]
(4) Installations and Outages.
i. Franchisee will maintain an emergency system maintenance and repair staff, capable of responding to and repairing the cable system on a twenty four (24) hour basis, seven (7) days a week, including holidays.
ii. Under normal operating conditions, Franchisee will meet each of the following four standards no less than ninety-five percent (95%) of the time, measured quarterly:
(a) Standard Installation: 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 150 feet from the existing distribution system.
(b) Service Interruption: Excluding conditions beyond the control of Franchisee, Franchisee will begin working on Service Interruptions promptly and in no event later than 24 hours after the interruption becomes known. Franchisee must begin actions to correct other service problems the next business day after notification of the service problem.
(c) Appointment Windows. The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (Franchisee may schedule service calls and other installation activities outside of Normal Business Hours for the express convenience of the customer.)
(d) Franchisee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.
(e) For other service problems: Within seven (7) business days of request for problems other than those addressed above (such as hanging wires or equipment removal after cancellation of service), except, in the case of an emergency or where public safety is endangered, Franchisee will begin working on the problem promptly after notice.
iii. Franchisee will make every reasonable effort to complete work and restore service within one service response.
iv. If the service representative is running late for, an appointment with a subscriber and will not be able to keep the appointment as scheduled, Franchisee will contact the subscriber. The appointment will be rescheduled as necessary to a time that is convenient for the subscriber.
v. Franchisee guarantees that installations and service calls will be performed during the time period agreed upon with the subscriber or subscriber remuneration will be provided. Remuneration will be determined by subscriber requirements, and may take the form of free installation, service credit or promotional items of comparable value.
vi. Franchisee will, at its sole expense, properly bury or raise all drops within thirty (30) days of the installation, except, however, in areas where drops are buried and the ground is frozen, the drops will be buried no later than May 31.
vii. All officers, agents or employees of Franchisee or its contractors or subcontractors will wear on their outer clothing a photo identification card bearing their name and photograph and the company logo. Franchisee will account for all identification cards at all times. Every vehicle of Franchisee or subcontractors having customer contact will be clearly identified as Franchisee's vehicle.
viii. No charge will be made to a subscriber for the repair or replacement of defective Franchisee-owned equipment provided by Franchisee and leased or rented to the subscriber, except where the defect is caused by subscriber abuse.
(5) Customer Communications.
i. Franchisee will provide written instructions and information on each of the following subjects at the time of installation of service, and at least annually to all subscribers, and at any time upon reasonable request of a resident or City:
(a) Products and services available.
(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 programming carried on the Cable System.
(f) Billing and complaint procedures.
(g) Franchisee's address, telephone numbers, and office hours including specified weekend and evening hours.
ii. Franchisee will give notice to subscribers and City of any changes in rates, programming service or channel positions as soon as possible. Notice will be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of Franchisee. Franchisee will notify subscribers thirty (30) days in advance of any significant changes in the other information required pursuant to subsection (i) above. Notwithstanding the foregoing. Franchisee will not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or franchising authority on the transaction between Franchisee and the subscriber.
(6) Truth in Billing.
i. Bills will be clear, concise and understandable. Bills must be fully itemized to include basic and premium service charges and equipment charges and as to any other charge thereon. Bills will clearly delineate all activity during the billing period, including optional charges, rebates, credits and franchise fees, if applicable.
ii. In case of a billing dispute, Franchisee must respond to a written complaint from a subscriber within thirty (30) days.
iii. Refund checks will be issued promptly, but not later than either:
(a) The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier; or
(b) Upon the return of all equipment (if any) supplied by Franchisee if service is terminated.
iv. Credits for service will be issued promptly, but in no event later than the first of the following to occur: (1) the customer's next billing cycle following resolution or (2) 60 days following resolution.
(7) Additional Service Standards.
i. Franchisee will adhere to its Complaint/Inquiry Resolution Policy as from time to time in effect and will otherwise establish as needed written procedures for reporting and resolving subscriber service complaints. Franchisee will publish a copy thereof to each new subscriber, and to all subscribers and City at such time as there is a material change in the policy. A copy of Franchisee's current Policy is attached as Exhibit G.
ii. Franchisee will receive all material service and signal quality subscriber complaints and will handle all such complaints promptly but in no event later than seven (7) days after receipt. Franchisee will keep a log of all complaints received describing the nature of each complaint, the date and time it was received, the disposition of the complaint and the time and date thereof Subject to applicable laws regarding subscriber policy, this log will be made available to City for the preceding two years of request.
(8) Disconnect and Downgrade Charges.
i. Franchisee will make no charge to any subscriber on account of complete discontinuance of service and will remove the customer service drop box upon request within fourteen (14) days.
ii. If any subscriber terminates any monthly service prior to the end of a prepaid period, a proportionate portion of any prepaid subscriber service fee, using the number of days as a basis, will be refunded to the subscriber by Franchisee.
(9) Subscriber Credits. Franchisee will credit one-thirtieth ( 1/30 th) of the regular monthly charge for each day, or fraction thereof exceeding three hours, that service is not provided to the subscriber, automatically after receipt of notification of a loss of a service, until the service is restored, unless restoration is prevented by cause beyond the control of Franchisee. Such credit will be made by the Franchisee following notification to the Franchisee by the subscriber identifying the loss of service by channel description and date and time.
c. Pay Per View. Subscribers will be given the option of not having pay per view or per program service available at all or only having such service provided upon the subscriber providing a security number selected by an adult representative of subscriber.
d. Blocking. Franchisee will give subscribers the option to entirely block both the audio and video portion of a channel or channels. Franchisee's offering a converter which has this feature will comply with the preceding sentence.
e. Complaints Referred by City. If City refers a complaint from a subscriber to Franchisee for resolution, then within five (5) business days Franchisee will investigate (including attempting to contact the subscriber) and respond to City as to its proposed resolution of same, and will have an additional five (5) business days if City requests a written response.
f. Reports. If there is a pattern of complaints about customer service then Franchisee will provide reports to City quarterly as follows.
(1) The reports will be in a form reasonably acceptable to the City, showing on a consistent basis, fairly applied the matters set forth below so as to measure Franchisee's compliance with the service standards set forth above. Such reports will show Franchisee's performance excluding periods of abnormal operating conditions, and if Franchisee contends any such conditions occurred during the period in questions, it will also describe the nature and extent of conditions and show Franchisee's performance both including and excluding the time periods Franchisee contends such conditions were in effect.
(2) The reports will show the number of phone calls originating from within City (or other appropriate area for which telephone records are reasonably available) and measure Franchisee's compliance with the standards set forth above.
(3) Franchisee will maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, of all subscriber service complaints. Such log will list the date and time of such complaints, identifying the subscribers and describing the nature of the complaints and when and what actions were taken by Franchisee in response thereto. Such log will promptly be made available by Franchisee to City, reflecting the operations to date for a period of at least two (2) years, and will be available for public inspection during regular business hours. Franchisee will submit a summary of such complaints quarterly to City for its review or a copy thereof if City so requests.
g. Access to Service. Franchisee will not deny service, deny access, or otherwise discriminate on the availability or rates, terms or conditions of Cable Services provided to actual or potential subscribers on the basis of race, color, creed, religion, ancestry, national origin, sex, disability, age, marital status, location within City, status with regard to public assistance or income level. Notwithstanding the foregoing, Franchisee reserves the right under Section 623(d) of the Federal Cable Act to establish a rate structure, for the provision of Cable Service. Franchisee will comply at all times with all applicable federal, state and local laws and regulations relating to nondiscrimination. The preceding provisions will not prevent Franchisee from providing discounts to selected groups of subscribers, senior citizens age 65 or older and head of household with some form of incentive or discount.
VIII. - FRANCHISE ADMINISTRATION.
Section 8.1.
a. Meetings. As one means to assist in the administration of the Franchise, City (or its designated official or representative) and Franchisee will make reasonable efforts to schedule and hold Periodic (as defined below) conferences with representatives from City in order to discuss matters relating to the enforcement and administration of the Franchise. Such periodic conferences may focus on franchise administration business matters including, but not limited to: (a) information supplied pursuant to scheduled and periodic preventive maintenance inspections; (b) public, educational, and governmental access support; (c) franchise fees; (d) response times, billing practices and other customer service items; (e) construction-related concerns; and (f) resolving or addressing concerns, questions or disputes with respect to multiple operators serving or attempting to serve the same subscriber or geographic area (including cutting of cable and/or damage to other facilities and equipment). For purposes of this provision, the term "periodic" means: (a) quarterly until the construction of Franchisee's Cable System is completed; (a) semi-annually after the construction of Franchisee's Cable System is completed; and (b) where the parties mutually agree in good faith concerning the need to do so, City and Franchisee may schedule and hold conferences more or less frequently than the foregoing requirements. Except in the case of an emergency, such conferences should be held within the normal business hours of Franchisee.
b. FCC Technical Standards. Franchisee will comply with 47 CFR § 76.601 and subsequent amendments:
c. Representative. Franchisee will designate a managerial representative to attend the meetings of City, upon request, to assist with the resolution of cable complaints, and to serve as liaison between Franchisee and City as matters arise pertaining to the provision of cable services and the administration of this Franchise Agreement.
d. Reports.
(1) Upon request, on or before one hundred twenty (120) days after the end of Franchisee's fiscal year and each successive year Franchisee will submit a written report to City containing the following information:
i. A summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in the development of the Cable System, including, but not limited to, services begun or discontinued during the reporting year, total number of subscribers, subscribers added or discontinued during the reporting year;
ii. A list of Franchisee's officers, members of its board of directors and other principals of Franchisee; and
iii. A list of stockholders or other equity investors holding ten (10%) percent or more of the voting interest of Franchisee.
(2) Simultaneously with the Annual Report required under subsection (1), Franchisee will submit to City an annual plant survey report on a City-wide basis if there are any changes from the prior year's report. Said the report will contain the results of testing prescribed by the FCC and will be in sufficient detail to enable City to ascertain that the technical standards of the FCC are achieved.
(3) A copy of Franchisee's or parent corporation's publicly available annual reports (including financial reports to shareholders), and those of its parent, will be submitted to City within thirty (30) days of its issuance.
(4) All reports under this Agreement will be provided at the expense of Franchisee.
IX. - INDEMNIFICATION; INSURANCE; PERFORMANCE AND COMPLETION BONDS
Section 9.1.
a. General Duty. Franchisee agrees to defend, indemnity and save harmless the City and its employees, agents, servants, officers, directors, officials, contractors, subcontractors and representatives (collectively, "Indemnified Party") against all damages, losses and expenses (including, without limitation, reasonable attorneys' fees and costs of suit or defense) arising from any claims, demands and suits for personal jury (fatal or nonfatal), property damage or claims of any other nature, to the extent such damages, losses or expenses arise out of or are caused by the negligent or other wrongful acts or failures to act of Franchisee or its employees, agents, servants, officers, directors, shareholders, officials, contractors, subcontractors or representatives. Notwithstanding the foregoing, this Subsection will not apply to any liability which may accrue to the City with regard the City's use of any channel provided for the City's use or arising out of the use of the emergency override capability required pursuant to this Agreement.
b. Franchisee's Additional Duty. The City and Franchisee acknowledge that Section 635A of the Federal Cable Act limits the liability of the City to third parties in connection with the grant of the Franchise. In particular, Section 635A limits to injunctive and declaratory relief any relief in any court proceeding brought by a third party involving any claim arising from the regulation of cable service or from a decision to grant, renew, transfer or amend the Franchise, to the extent that relief is required by any other provision of federal, state or local law. Notwithstanding this provision. Franchisee agrees that, in addition to its duty to indemnity the City under subsection 13.1(a) above, Franchisee will indemnify and hold harmlessly the City against all damages, losses and expenses (including, without limitation, reasonable attorneys fees and costs of suit or defense) arising from third-party suits which either: (1) challenge the authority of the City to issue the Franchise; or (2) allege that, in issuing the Franchise, the City has acted in a disparate or discriminatory manner.
c. Notice and Defense. The Indemnified Party will give Franchisee reasonably prompt written notice of any claim, demand, action or proceeding for which indemnification will be sought under this provision of the Agreement and, if such claim, demand, action or proceeding is a third-party claim, demand, action or proceeding, Franchisee will have the right at its expense to assume the defense of such claim, demand, action or proceeding, using counsel reasonably acceptable to the indemnified Party. The Indemnified Party will have the right to participate, at its own expense, with respect to any such third-party claim, demand, action or proceeding that Franchisee so defends. In connection with any such third-party claim, demand, action or proceeding, Franchisee and the indemnified Party will cooperate with each other and provide each other with access to relevant books and records in their possession. No such third-party claim, demand, action or proceeding will be settled without the prior written consent of the indemnified Party, which consent the Indemnified Party will not unreasonably withhold or delay.
d. The Franchisee will obtain, effective from the Effective Date of this Agreement, and will keep in force and effect during the Term of this Agreement insurance coverage with limits of $2,000,000 injury per person. $5,000,000 bodily injury per accident, $2,000,000 for damage to property, and $5,000,000 property damage per occurrence.
e. The Franchisee will maintain in force, during the Term of this Agreement and any renewal or extension thereof, Workers= Compensation Insurance, covering its obligations under the Workers= Compensation statute, and will show to the reasonable satisfaction of the City that such insurance is in effect at all times.
f. Franchisee may, as its option, self-insure by providing adequate assurances to the City of its methods of doing so.
X. - PRIVACY
Section 10.1.
a. Cable Tapping Prohibited. Franchisee will not, nor will Franchisee knowingly permit any person, agency, or entity, without the customer's consent, to tap, or to arrange for the tapping, of any cable, line, signal input device or customer outlet or receiver for any purpose except routine maintenance of the system, polling with audience participation or audience viewing surveys to support advertising research regarding viewers where individual viewer behavior cannot be identified.
b. Invasion of Privacy and Personal Rights Prohibited. In the conduct of providing its services or pursuit of any collateral commercial enterprise resulting from its services, Franchisee will take all action necessary to prevent an invasion of a customer's right to privacy or other personal rights as such rights are defined by applicable law. Franchisee will not without lawful court order utilize the Cable System's interactive two-way equipment or capability for personal surveillance of any customer or general citizen.
c. Sale of Personalized Data Restricted. Franchisee will not sell or otherwise make available to unaffiliated third parties lists of the names and addresses of customers which identifies, by name, customer viewing habits, or personalized data pertaining to a customer's use of any of Franchisee's services without the express written consent of the customer to which the personalized data pertains. For purposes of this Section, "personalized data" will mean the name and/or address of an individual customer directly associated with data obtained on his or her use of specific services provided by or through Franchisee. Nothing in this Agreement will be construed to prevent, as a normal incident of commercial enterprise, the sale or availability of "non-personalized" or "aggregate data" which is not personalized data as defined in this Agreement.
XI. - TAXES, RATES AND CHARGES
Section 11.1. Nothing contained in this Agreement will be construed to exempt Franchisee from any tax, levy or assessment which is or may later on be authorized by law.
XII. - TRANSFERS, OWNERSHIP AND CONTROL
Section 12.1.
a. Franchise Transfers. The Franchise, the Cable System and any portion of the Cable System may not be transferred without the prior written consent of City.
(1) Exclusions. For the purpose of this Section 12, "transfer" and "transferred" will not include: (a) a transfer solely for security purposes (such as the grant of a mortgage or security interest) but will include any realization on the security by the recipient, such as a foreclosure on a mortgage or security interest; or (b) the replacement of components of the Cable System in the course of ordinary maintenance and day-to-day operation.
(2) Exception. Franchisee may, without additional approval by City, transfer or assign this Franchise Agreement to an entity controlled and at least 50% owned by Ameritech Corporation (a Delaware corporation with its principal place of business at 30 South Wacker Drive, Chicago, Illinois, 60606) so long as SBC Communications or Ameritech Corporation is the ultimate publicly traded parent corporation, where the new entity: assumes all of Franchisee's cable services operations and obligations in the Southeast Michigan area (Wayne, Oakland, Macomb and Washtenaw Counties); assumes all of Franchisee's obligations and liabilities under this Franchise, agrees to comply with all provisions of this Franchise Agreement and Cable Ordinance and becomes a signatory to the Franchise Agreement; has the legal, managerial, technical and financial ability to properly perform and discharge such obligations and liabilities, and such abilities are each at least as great as those of Franchisee. City will be advised in writing of such transfer and of the new entity's qualifications at least sixty (60) days before such transfer occurs and will be reimbursed any reasonable, documented costs it incurs in connection with such transfer.
b. Transfer of Ownership or Control. There will be no transfer of or acquisition of control of Franchisee or of any entity, at any tier or level, which directly or indirectly controls Franchisee without the prior written consent of City.
(1) For the purposes of this Franchise,"…transfer of or acquisition of control of Franchisee …" will mean any change in the identity of the entities, individuals or group which directs, or has the power to direct, the management and policies of Franchisee, whether through the ownership of voting securities or other equity interest, by contract or otherwise. Without limiting the generality of the foregoing, for the purposes hereof, such a change will be deemed to have occurred at any point in time when there is (a) a change in working or effective voting control, in whatever manner effectuated, of Franchisee; (b) an agreement of the holders of voting stock or rights of Franchisee which effectively vests or assigns policy decision-making in any person or entity other than Franchisee; or (c) a sale, assignment or transfer of any shares or interest in Franchisee which results in a change in the control of Franchisee.
c. Applications for Consent/Procedure. If Franchisee seeks to obtain the consent of City to any transactions or matters described in Section 12(a), (b) or (c), Franchisee will submit an application for such consent to City and will submit or cause to be submitted to City such additional documents and information as City may reasonably request.
(1) City will have 120 days from the date of submission of an application (such as an FCC Form 394) to act upon any such application for consent. If City fails to act upon such application for consent within 120 days, such application will be deemed consented to unless the City and Franchisee otherwise agree to an extension of time.
(2) City will not unreasonably withhold its consent to any proposed transfer, and may grant its consent outright, may grant such consent with reasonable conditions which it finds are in the public interest, or may deny consent but may not use the transfer to renegotiate the Franchise.
(3) Nothing in any approval by City of an authorization of any transfer will be construed to waive or release any rights of City in and to the streets, Public Ways, and public places of City, or as a release of any of City's police powers, or as an exercise of eminent domain.
(4) City's granting of consent in any one instance will not require it to grant consent in other instances.
(5) Franchisee will pay and/or reimburse City for all costs reasonably incurred by City due to any proposed transfer.
XIII. - RENEWAL OF FRANCHISE
Section 13.1. With respect to the renewal of Franchisee's Franchise, the parties agree as follows:
a. Applicability of Federal Law. City and Franchisee agree that any proceedings undertaken by City that relate to the renewal of Franchisee's Franchise will be governed by and comply with applicable federal law, including the renewal provisions in Section 626 of the Federal Cable Act as then in effect.
XIV. - DEFAULTS
Section 14.1.
a. Events of Default. The occurrence, at any time during the Term of the Franchise, of any one or more of the following events, will constitute an Event of Default by the Franchisee under this Franchise.
(1) The failure of Franchisee to pay the Franchise fee, Section 6(b) PEG support fees or liquidated damages assessed pursuant to 14(c) on or before the due dates specified herein.
(2) A franchisee's breach or violation of any of the terms, covenants, representations or warranties contained herein or Franchisee's failure to perform any obligation of this Agreement.
(3) Franchisee's failure to pay or cause to be paid any governmentally imposed taxes of any kind whatsoever, including but not limited to real estate taxes, income taxes and personal property taxes on or before the due date for same, provided, however, Franchisee will not be in default with respect to the non-payment of taxes which are being disputed in good faith in accordance with applicable law.
(4) The entry of any judgment against Franchisee in excess of One Hundred Thousand ($100,000.00) Dollars which remains unpaid and is not stayed pending rehearing or appeal, for ninety (90) or more days following entry thereof.
(5) The dissolution or termination, as a matter of law, of Franchisee or any general partner of Franchisee without the prior approval of City, which will not unreasonably be withheld.
(6) If Franchisee files a voluntary petition in bankruptcy; is adjudicated insolvent; obtains an order for relief under Section 301 of the Bankruptcy Code (11 U.S.C. 3301); files any petition or fails to contest any petition filed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors; seeks or consents to or acquiesces in the appointment of any bankruptcy trustee, receiver, master, custodian or liquidator of Franchisee, or any of Franchisee's property and/or Franchise and/or of any and all of the revenues, issues, earnings, profits or income thereof; makes an assignment for the benefit of creditors; or fails to pay Franchisee's debts generally as they become due.
b. Uncured Events of Default. Upon the occurrence of an Event of Default which can be cured by the immediate payment of money to City or a third party, Franchisee will have thirty (30) days from written notice from City to Franchisee of an occurrence of such Event of Default to cure same before City may exercise any of its rights or remedies provided for in Section 15. Upon the occurrence of an Event of Default by Franchisee which cannot be cured by the immediate payment of money to City or a third party, Franchisee will have ninety (90) days from written notice from City to Franchisee of an occurrence of such Event of Default to cure same before City may exercise any of its rights or remedies provided for in Section 15.
(1) If any Event of Default is not cured within the time period allowed for curing the Event of Default, as provided for herein, such Event of Default will, without additional notice, become an Uncured Event of Default, which will entitle City to exercise the remedies provided for in Section 15.
XV. - REMEDIES
Section 15.1.
a. Remedies. Upon the occurrence of any Uncured Event of Default as described in Section 13, City will be entitled to exercise any and all of the following cumulative remedies
(1) The commencement of an action against Franchisee at law for monetary damages.
(2) The commencement of an action in equity seeking injunctive relief or the specific performance of any of the provisions which, as a matter of equity, are specifically enforceable.
(3) For a violation of a material provision of this Franchise, City will have the right to seek the forfeiture and termination of the Franchise in accordance with Section 16.
(4) In no event may liquidated damages exceed $10,000 by the term of the Franchise.
b. Remedies Not Exclusive. The rights and remedies of City set forth in this Franchise, or in the Cable Ordinance, will be in addition to and not in derogation of, any other rights and remedies provided by law or in equity.
c. Liquidated Damages. In addition to the other remedies provided for herein, liquidated damages in the amounts set forth below may be awarded City (individually and on behalf of subscribers) from Franchisee. Franchisee agrees that such sums are reasonable given that the actual damages are difficult of precise ascertainment and that the actual damages are often incurred by City and subscribers, and cumulatively are large, but are so small for each subscriber as to not be worth their while pursuing, and that without provisions such as this Franchisee would be unjustly enriched.
(1) For violations of Section 12 liquidated damages in the amount of $100 per day.
(2) For Uncured Events of Default other than violations of Section 4(a) liquidated damages in the amount of $250 per day that the Uncured Event of Default continues.
(3) In no event may liquidated damages under this Section 15(c) exceed $10,000 during the term of the Franchise.
d. Liquidated Damages Procedure. Liquidated damages may be awarded in accordance with the following procedure.
(1) Franchisee will be given written notice of City's intent to assess liquidated damages at least ten (10) days in advance of the City Council meeting at which such damages are assessed.
(2) Franchisee may appear at the City Council meeting at which such damages are assessed either in person, by agent, or by letter (or other writing) to submit its views with respect to the proposed assessment.
(3) The City Council may then assess liquidated damages in amounts not exceeding those set forth above.
(4) Such assessment by City will be final and binding and will be subject to judicial review only if it is arbitrary, capricious, or substantially disparate, will be a monetary obligation of Franchisee to City in the amount determined by City Council; and will be paid in full by Franchisee within seven (7) business days of the date of assessment by City Council.
XVI. - REVOCATION OF FRANCHISE
Section 16.1.
a. Major Breach of Franchise. When any event, act or omission on the part of Franchisee occurs which represents a substantial or repeated violation of a material provision of this Agreement, then such event, act or omission may be considered a major breach of this Agreement. Under such circumstances, City will notify Franchisee in writing by certified mail, of the specific breach, and direct Franchisee to comply with all the provisions of this Agreement for which the Franchisee is in violation.
b. Events of Default. The events, acts and omissions referred to in this Section are the following: (1) bankruptcy; (2) insolvency; (3) failure to pay taxes or franchise fees; (4) failure to receive written City approval for assignment or transfer; or (5) a major breach of this Franchise (as noted in Subsection 15(a) above) that remains uncured for the 60-day cure period described in Subsection 16(c) below. They do not include events in the nature of force majeure.
c. Corrective Action. Where Franchisee corrects any of the enumerated conditions within 60 days from the receipt of notice from City, then in no event will the enumerated condition be weighed against Franchisee in any subsequent review of Franchise performance.
d. Public Hearing.
(1) Scheduling and Procedures. No sooner than 75 days after such written notice if notice of the breach is sent by certified mail to Franchisee, City may set a date for a public hearing on the matter. The hearing will be before Council or its designee and will afford full due process to Franchisee and will be held on the record. Both Franchisee and City will be permitted to compel the attendance of witnesses and the production of documents, to present evidence and to cross-examine witnesses. The public hearing may be canceled at any time, if City is satisfied that Franchisee has corrected and/or cured the violation.
(2) Notice. City will provide written notice, by certified mail, to Franchisee of the time and place of said public hearing in a manner consistent with state law.
(3) Evidence Regarding Status of Alleged Violation. At the time of the hearing, Franchisee may present information on the current status of the alleged breach of the Franchise. If the situation has been resolved, or steps are being taken to resolve the situation, then Franchisee should present such information at the hearing.
(4) Effect of Failure to Attend. If Franchisee fails to attend the hearing, or submit a written response, or request a continuance of the hearing, then Franchisee will be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the Franchise.
e. Alternatives if Violation is Found. City may (once it has held the public hearing) direct the Franchisee to take corrective action within a specified period of time, or may declare the Franchisee in default of this Agreement, and afterwards, revoke, terminate or cancel the Franchise.
f. Notice to Franchisee. If City directs corrective action to take place within a specified time or declares the Franchisee in default of this Agreement, then that declaration will be reduced to writing, and the notice of corrective action or default will be mailed, by certified mail, or in the alternative may be hand-delivered, to Franchisee within 15 days of City's action.
g. Revocation for Failure to Correct Violation. If, within 45 days after receipt of the notice of City's direction of corrective action as provided in this Section, Franchisee does not take significant action to rectify the breach, or submit a plan detailing how the Franchisee will eliminate the breach, then City may revoke Franchisee's Franchise and will notify Franchisee immediately; provided however, that such revocation will not be effective any earlier than 30 days following the date of such notification.
XVII. - CONTINUITY OF SERVICE
Section 17.1. It will be the right of all subscribers to receive all available services so long as their financial and other obligations to the Franchisee are honored. In the event the Franchisee elects to overbuild, rebuild, modify, surrender or sell the system, or City purchases the cable system, the Franchisee will make reasonable and best efforts to provide continued, uninterrupted service to subscribers for a period of up to six (6) months beyond the effective date of such sale or surrender of the franchise, or longer by mutual agreement of City and Franchisee; and the terms and conditions of the Franchise Agreement will remain in effect for the duration of such period.
XVIII. - COMPLIANCE WITH LAWS; SEVERABILITY.
Section 18.1.
a. Notwithstanding any other provisions of this Agreement to the contrary, Franchisee will at all times materially comply with all applicable laws and regulations of the Federal, state, county and City governments and all administrative agencies of those governments, including, but not limited to, judicial orders; provided, however, that if any such Federal, state or local or county law or other applicable regulation will require Franchisee to perform any service, or will permit Franchisee to perform any service or will prohibit Franchisee from performing any service, in conflict with the terms of this Agreement or of any law or regulation of the Issuing Authority existing as of the date of the Agreement, then Franchisee will be excused from performance under this Agreement, provided that it acts in good faith reliance on such Federal, state, local or county law or regulation, pending resolution of such conflict; provided, further, that, from the date of this Agreement through and until the expiration of the Term of the Franchise granted under this Agreement, no change made by the City in its ordinances or regulations will amend the Franchise or this Agreement without Franchisee's written consent. In the event of a conflict between this Agreement and any local law, rule or regulation (including, without limitation, any ordinance authorizing the grant of a cable television franchise), the terms of this Agreement will prevail.
b. If any provision of this Agreement or any related agreement is held by any court or by any Federal, state or local law, rule or regulation now or later on in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, said provision will be considered as a separate, distinct and independent part of this Agreement or such other agreement, and such holding will not affect the validity and enforceability of all other provisions of this Agreement or of such other agreement. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision of this Agreement or of such other agreement which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision will immediately return to full force and effect and will afterwards be binding on the parties to the Agreement, provided that the City will give Franchisee sixty (60) days' written notice of such change before requiring compliance with said provision.
c. If the City determines that a material provision of the Agreement or any related agreement is affected by such action of a court of the Federal, state or local government, the City and Franchisee will have the right to modify any of the provisions of this Agreement or in such related agreements to such reasonable extent as may be necessary to carry out the full intent and purpose of this Agreement and all related agreements.
XIX. - MISCELLANEOUS
Section 19.1.
a. Entire Agreement; Amendment. This Agreement, the documents that are referred to in this Agreement and the documents that are to be delivered pursuant to this Agreement constitute the entire agreement among the parties pertaining to the subject matter of this Agreement, and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written, and there are no representations or other agreements among the parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement. No amendment, supplement, modification, waiver, or termination of this Agreement will be binding unless executed in writing by the party to be bound by such amendment, supplement, modification, waiver, or termination. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provision of this Agreement, whether or not similar, nor will such waiver constitute a continuing waiver unless otherwise expressly provided in writing by the waiving party.
(1) City may waive any obligation or requirement of performance on the part of Franchisee set forth in this Franchise, in whole or in part, at any time. Such waivers include but are not limited to instances of a claim or showing by Franchisee that the costs associated with the provision being waived would increase the rates Franchisee is legally allowed to charge subscribers, such as a claim that such costs are an "external cost" which allow Franchisee to increase its rates under the FCC rules.
b. No Inducement. Franchisee, by accepting this Franchise, acknowledges that it has not been induced to accept the Franchise by any promise, oral or written, by or on behalf of City or by any third person regarding any term or condition of this Franchise not expressed herein. Franchisee further pledges that no promise or inducement, oral or written, has been made to any Municipal employee or official regarding receipt of a cable television franchise, except as expressed in this Agreement.
c. Notice.
(1) To City. All notices required or permitted to be given to City under any provisions of this Agreement will be in writing and will be deemed served:
i. When delivered by hand or by overnight express or similar service to City's offices during normal business hours; or
ii. When mailed to any other person designated in writing in this Agreement to receive such notice, via certified mail, return receipt requested.
(2) To Franchisee. All notices required to be given to Franchisee under any provision of this Agreement will be in writing and will be deemed served when delivered by one of the methods described in Subsections 20(c)(1)(i) and (ii) above.
(3) Addresses. Notice will be given to the following addresses:
If to City: | City Clerk City of Dearborn 13615 Michigan Avenue Dearborn, Michigan 48126 |
With a Copy to: | Corporation Counsel |
If to Franchisee: | Ameritech New Media, Inc. Attention: Vice President and General Counsel 300 South Riverside Plaza Suite 1800 North Chicago, Illinois 60606 |
With a Copy to: | Schnelz, Wells, Mona- ghan & Wells, P.C. Attention: Todd H. Wells, Esq. 255 S. Old Woodward Avenue Suite 200 Birmingham, Michigan 48009 |
Either party may change its address for notice purposes at any time by giving notice of such address change in accordance with the foregoing.
d. Successors. Subject to Section 12 of this Agreement, this Agreement will inure to the benefit of, and be binding upon, the parties and their respective successors and assigns, who will comply with all terms and conditions of this Agreement.
e. Counterparts; Headings. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but such counterparts will together constitute but one and the same Agreement. The Table of Contents and the Section and Subsection headings in this Agreement are inserted for convenience of reference only and will not constitute a part of this Agreement.
f. Exhibits. If a document or matter is disclosed in any Exhibit to this Agreement, it will be deemed to be disclosed for all purposes of this Agreement without the necessity of specific repetition or cross-reference. Unless expressly provided otherwise, all capitalized terms used in any Exhibit to this Agreement will have the definitions specified in this Agreement.
IN WITNESS OF THIS AGREEMENT, the parties have signed below, effective as of the Effective Date, by their duly authorized representatives.
WITNESSED: | CITY OF DEARBORN | |
____________ ____________ | By ____________ ____________ | ____________ Date |
____________ ____________ | Its ____________ ____________ | |
WITNESSED: | AMERITECH NEW MEDIA, INC. | |
____________ ____________ | By ____________ ____________ | ____________ Date |
____________ ____________ | Its ____________ ____________ | |