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A. Construction Timetable:
1. Grantee shall give notice to the city sixty (60) days prior to the anticipated completion date of any cable system upgrade and again at such time as grantee has, in fact, completed all construction.
2. Upon receipt of notice that all construction has been completed, the city shall have sixty (60) days to obtain a written report from an independent engineer paid by the city confirming the completion of construction; provided, however, that if the city fails to obtain such a written report within said sixty (60) days, the construction shall be deemed completed, unless the failure to obtain such a report is due to unforeseen events, acts of God or events beyond the reasonable control of the city.
3. Notwithstanding anything contained herein to the contrary, the city may condition completion of construction upon receipt of a written report from an independent engineer, which report confirms the following:
a. That all construction has been completed or otherwise satisfactorily resolved;
b. Satisfactory test results using the technical standards set forth in subsection 3-7-5E of this chapter at up to ten (10) widely separated subscriber drops selected by the independent engineer and using the following tests:
Bandpass response of cable system
Carrier to noise
Hum
Signal level
c. Compliance with all applicable codes and standards.
d. Installation and the proper working of the emergency alert cable system required at subsection 3-7-6D of this chapter.
B. Construction Delay: Grantee shall notify the city of any delay in the construction. The city shall excuse only upon occurrence of unforeseen events beyond grantee's reasonable control or acts of God.
C. Construction Standards:
1. All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, as well as all state and local codes where applicable.
2. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical and Safety Code and National Electrical Code.
3. Antennas and their supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the federal aviation administration and all other applicable state or local laws, codes and regulations.
4. All of grantee's plant and equipment, including, but not limited to, the antenna site, headend and distribution cable system, towers, house connections, structures, poles, wire, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the city may deem appropriate to make or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
5. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.
D. Construction Codes And Permits:
1. Grantee shall obtain all required permits from the city before commencing any work requiring a permit, including the opening or disturbance of any street, or public property or public easement within the city, such permits not to be unreasonably withheld. Grantee shall strictly adhere to all building and zoning codes currently or hereafter applicable to construction, operation or maintenance of the cable system in the city.
2. The city shall have the right, at its cost, to inspect all construction or installation work performed pursuant to the provisions of this franchise and to make such tests as it shall find necessary to ensure compliance with the terms of the franchise and applicable provisions of local, state and federal law. Such inspections shall not interfere with said construction or installation work.
3. Nothing contained in this franchise shall be construed to give grantee the authority to enter upon or work on private property in areas not encumbered with public easements without the permission of the property owner.
E. Repair Of Streets And Property: 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 cable system shall be promptly repaired by grantee, at its expense, to a condition substantially the same as that prevailing prior to grantee's construction.
F. Use Of Existing Poles: Grantee shall not erect, for any reason, any pole on or along any street in an existing aerial utility cable system without the advance written approval of the city, such approval not to be unreasonably withheld. Grantee shall exercise its best efforts to negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction.
G. Undergrounding Of Cable:
1. Cable shall be installed underground at grantee's expense where both the existing telephone and electrical utilities are already underground unless pole lines exist, are not scheduled to be removed and such pole lines are being utilized. Grantee shall endeavor to place cable underground in newly platted areas in concert with both the telephone and electrical utilities.
2. In the event that telephone or electric utilities are reimbursed by the city or any agency thereof for the placement of cable underground or the movement of cable, grantee shall be reimbursed upon the same terms and conditions as the telephone or electric utilities.
3. In the event an underground installation is required and the ground is frozen, saturated or otherwise unable to immediately facilitate underground installation, such installation shall be performed on a temporary basis in compliance with all state and federal rules, regulations, codes, or other generally applicable standards. As soon as conditions change to permit proper underground installation of cable, grantee shall immediately undertake all necessary steps to install the cable underground pursuant to the terms and conditions of this franchise and in no event shall completion of all undergrounding of cable occur later than August 1. Grantee shall be excused upon occurrences of unforeseen events beyond grantee's reasonable control or for acts of God.
H. Reservation Of Street Rights:
1. Nothing in this franchise shall be construed to prevent the city from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any street; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating or repairing any sidewalk or other public work.
2. All such work shall be done, insofar as practicable in such a manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of grantee.
3. If any such property of grantee shall interfere with the construction or relocation, maintenance or repair of any street or public improvement, whether it be construction, repair, maintenance, removal or relocation of a sewer, public sidewalk or water main, street or any other public improvement, thirty (30) days' notice shall be given to grantee by the city and all such poles, wires, conduits or other appliances and facilities shall be removed or replaced by grantee in such manner so that the same shall not interfere with the said public work of the city and such removal or replacement shall be at the expense of grantee.
4. Nothing contained in this franchise shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring grantee's facilities while performing any work connected with grading, regrading or changing the line of any street or public place or with the construction or reconstruction of any sewer or water cable system.
I. Trimming Of Trees: Grantee shall, subject to applicable local laws and regulations, have the authority to trim trees upon and hanging over streets, alleys, sidewalks and public places of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee; provided, however, all trimming shall be done under the supervision of the city, if requested by the city.
J. Street Vacation Or Abandonment: In the event any street or portion thereof used by grantee shall be vacated by the city or the use thereof discontinued by grantee during the term of this franchise, grantee shall, at grantee's expense, subject to applicable laws, forthwith remove its facilities therefrom unless specifically permitted by the city to continue the same, and upon the removal thereof restore, repair or reconstruct the street area where such removal has occurred, and replace the street area where such removal has occurred to a condition similar to that existing before such removal took place, but the grantee shall in all cases have the right of abandonment of its property. In the event of failure, neglect or refusal of grantee, after thirty (30) days' notice by the city to remove the facilities or to repair, restore, reconstruct, improve or maintain such street portion, the city may do such work or cause it to be done, and the reasonable cost thereof shall be paid by grantee as directed by the city and collection may be made by any available lawful remedy. Should the city sell property to a third party, third party shall be responsible for reimbursement of costs to relocate.
K. Moving Facilities: In the event it is necessary temporarily to move or remove any of grantee's wires, cables, poles or other facilities placed pursuant to this franchise, in order to lawfully move a large object, vehicle, building or other structure over the streets of the city, upon two (2) weeks' notice by the city to grantee, grantee shall move at the expense of the person requesting the temporary removal, such payment to be made in advance, any of grantee's facilities as may be required to facilitate such movements. Any service disruption provisions of this franchise shall not apply in the event that the removal of grantee's wires, cables, poles or other facilities results in temporary service disruptions. (Ord. 4154, 2-19-1996)
A. Open Books And Records: The city shall have the right to inspect, upon twenty four (24) hours' written notice, at any time during normal business hours at the cable system office all books, records, maps, plans, revenue statements, service complaint logs, performance test results, record of requests for service and other like materials of grantee which are reasonably necessary to monitor compliance with the terms of this franchise. Notwithstanding anything to the contrary set forth in this chapter, grantee may reasonably designate information provided to the city as proprietary or confidential in nature. The city agrees to treat any information disclosed by the grantee to it as confidential and only to disclose it to employees, representatives and agents thereof having need to know, or in order to enforce the provisions of this chapter.
B. Communications With Regulatory Agencies: Copies of all petitions, applications, communications and reports submitted by grantee or on behalf of or relating to grantee to the FCC, securities and exchange commission or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the cable system authorized pursuant to this franchise shall be made available to the city upon request. Grantee shall provide city with a list of all such above-referenced communications within sixty (60) days of the date of adoption of this franchise to be updated, as necessary throughout the term of this franchise. The city shall have the right to request copies of any and all communications referenced above, as well as copies of responses from such regulatory agencies. Grantee shall take all reasonable steps to provide such copies within fourteen (14) days from the date of request.
C. Annual Report: On or before April 1 of each year during the term of this franchise, including the year in which the franchise becomes effective, grantee shall file with the city a statement for the immediately preceding fiscal year of gross revenues certified by an officer of grantee who is also a certified public accountant.
D. Additional Reports: Grantee shall prepare and furnish, upon request, to the city, at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions or property, which are reasonably necessary for the administration and enforcement of this franchise. Notwithstanding anything to the contrary set forth herein, grantee may reasonably designate information provided to the city as proprietary or confidential in nature. The city agrees to treat any information disclosed by the grantee to it as confidential and only to disclose it to employees, representatives and agents thereof that have a need to know, or in order to enforce the provisions of this chapter.
E. Maps: Grantee shall provide the city with a current strand map or set of maps drawn to scale showing the cable system in place in streets and other public places. The maps shall be updated on a yearly basis on April 1, if changes have been made.
F. Audit: The city and its agents and representatives shall have the authority, during normal business hours, to arrange for and conduct an inspection of the books and records of grantee solely for the purpose of enforcing the terms and provisions of this franchise. Grantee shall first be given ten (10) days' written notice of the inspection request, the description of and purpose for the inspection and description, to the best of the city's ability, of the books, records, and documents it wants to inspect. Nothing in this subsection shall, in any way, alter or affect the ability of the city to inspect, upon twenty four (24) hours' written notice, the books and records of grantee pursuant to subsection A of this section.
G. Periodic Inspection: The city may and grantee shall, at the request of the city, undertake an inspection of the cable system to ascertain the cable system performance at preselected addresses based on complaints received indicating an unresolved controversy or problem. Grantee shall have fifteen (15) days to inspect and report to the city of any findings concerning an unresolved controversy or problem before initiating an inspection of the cable system.
H. Periodic Evaluation Sessions: The field of cable communications is a relatively new and rapidly changing one which may see many regulatory, technical, financial, marketing and legal changes during the term of this franchise. Therefore, in order to provide for a maximum degree of flexibility in this franchise, and to help achieve a continued advanced and modern cable system, the following evaluation provisions will apply:
1. The city may require, at its sole discretion, evaluation sessions at any time during the term of this franchise; provided, however, there shall not be more than one evaluation session during any two (2) year period.
2. Topics which may be discussed at any evaluation session include, but are not limited to, rates, channel capacity, the cable system performance, programming, access, municipal uses of cable, subscriber complaints, judicial rulings, FCC rulings and any other topics the city or grantee deems relevant.
3. During an evaluation session, grantee shall fully cooperate with the city and shall provide without cost such reasonable information and pertinent documents as the city may request to perform the evaluation.
4. If at any time during its evaluation the city determines that reasonable evidence exists of inadequate cable system performance, the city may require grantee to perform tests and analyses directed toward such suspected inadequacies under any applicable terms and conditions of this franchise which may include, but not be limited to, subsection 3-7-5F of this chapter. Notwithstanding any other provisions of this franchise, the expense for such tests or analyses shall be the grantee's if system performance is not substantially in compliance, and the city's if system performance is in substantial compliance.
5. Grantee shall submit to city a written report regarding any findings of the above-referenced tests and/or analyses regarding any inadequate cable system performance, pursuant to the applicable terms and conditions of this franchise, which may include, but not be limited to, subsection 3-7-5F of this chapter. The city may enlist an independent engineer to verify testing results. The costs and expenses of such independent engineer shall be at grantee's expense if the cable system performance is not substantially in compliance, and at the city's expense if the cable system performance is in substantial compliance.
6. As a result of an evaluation session, the city or grantee may determine that a change in the terms of the franchise may be required, that the cable system or franchise requirements should be updated, changed, revised or that additional services should be provided. If the change is consistent with the terms of this franchise or is due to regulatory, technical, financial, marketing, inflation or legal requirements and implementation of a change would not unreasonably add to the cost of providing cable television services, grantee and the city will, in good faith, negotiate the terms of the change and any required amendment to this franchise. (Ord. 4154, 2-19-1996)
A. Approval Of Changes:
1. The city reserves the right to regulate rates for basic service and any other services offered over the cable system, to the extent permitted by federal or state law. Grantee shall maintain on file with the city at all times a current schedule of all rates and charges. To the extent applicable and required, the city shall comply with the rules relating to cable rate regulation promulgated by the FCC at 47 CFR part 76.900, subpart N, or such other applicable laws, rules, or regulations with respect to the regulation of the rates charged by grantee.
2. Not less than thirty (30) days prior to the effective date of any change within grantee control in any fee, charge, deposit, term or condition (or such shorter period as may, upon a showing of good cause, be approved by the city), the grantee shall: a) submit a revised products and services price list to the city, and b) provide written notice of the proposed change to each affected subscriber. The grantee shall not make any change in any rate within grantee's control unless it has provided the notice required in subsection 3-7-10F of this chapter.
B. Charges For Disconnection Or Downgrading Of Service:
1. Grantee may impose a charge reasonably related to the cost incurred for a downgrade of service, except that no such charge may be imposed when:
a. A subscriber requests total disconnection from the cable system; or
b. A subscriber requests the downgrade within a thirty (30) day period following any rate increase relative to the service in question.
2. If a subscriber requests disconnection from service prior to the effective date of an increase in rates, the subscriber shall not be charged the increased rate if grantee fails to disconnect service prior to the effective date. Any subscriber who has paid in advance for the next billing period and who requests disconnection from service shall receive a prorated refund of any amounts paid in advance.
C. Subscriber Complaint Practices:
1. Grantee shall maintain a local office within the city limits which shall be open during normal business hours at least eight (8) hours per weekday and four (4) hours on either a weekday evening or on Saturdays. Grantee shall have a publicly listed toll-free telephone number and be so operated as to receive subscriber complaints and requests on a twenty four (24) hours a day, seven (7) days a week basis. At least ninety percent (90%) of the time, grantee shall connect a telephone caller to a live service representative staff member within thirty (30) seconds, seven (7) days per week, at least during the hours from eight thirty o'clock (8:30) A.M. to six o'clock (6:00) P.M. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. Under "normal operating conditions", as that term may be defined by the FCC, customers will receive a busy signal less than three percent (3%) of the time. Grantee shall maintain, on a quarterly basis, written or computer generated records, which may include statistics for both Waterloo and Cedar Falls, demonstrating, to the satisfaction of the city, its ability to meet the standards in this subsection. A written log shall be maintained listing all complaints and their dispositions. A copy of the written log shall be provided, upon request, for the cable commission's review at said commission's monthly meetings.
2. Within grantee's local office, cable programming available on the local cable system shall be displayed, allowing subscribers to view a properly received cable picture.
3. Grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the cable system. A written log shall, upon written request, be made available to the city for inspection regarding all service interruptions subject to section 632 of the Cable Act.
4. Grantee shall maintain adequate telephone lines and personnel to respond in a timely manner to schedule service calls and answer subscriber complaints or inquiries as required by this subsection.
5. Under "normal operating conditions", as that term may be defined by the FCC, each of the following five (5) standards will be met no less than ninety five percent (95%) of the time measured on a quarterly basis:
a. Standard installations will be performed within seven (7) business days after an order has been placed.
b. Excluding conditions beyond the control of grantee, grantee will begin working on service interruptions promptly and, in no event later than twenty four (24) hours after the interruption becomes known (i.e., is reported to grantee's customer service representative or other appropriate representative of grantee). Grantee must begin actions to correct other service problems the next business day after notification of the service problem.
c. The appointment window alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four (4) hour time block during "normal business hours" as this term is defined in subsection C1 of this section. Grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.
d. Grantee may not cancel an appointment with a customer after the close of business on the day prior to the scheduled appointment.
e. If grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer.
6. Grantee shall respond within two (2) hours to all outage reports affecting at least one channel for five percent (5%) or more of the cable system's subscribers.
7. Service calls for maintenance or repair shall be performed at no charge; provided, however, if such maintenance or repair is required as a result of damage caused by a subscriber then grantee may charge according to its actual cost for time and material.
8. If grantee fails to correct a service problem within twenty four (24) hours after a subscriber contacts grantee regarding notification of a service problem, grantee shall, upon request, credit one-thirtieth (1/30) of the monthly charge to the subscriber for each twenty four (24) hours or fraction thereof after the first twenty four (24) hours from the time grantee receives notice that a subscriber is with reduced service. Grantee shall, upon request, inform the commission regarding the disposition of credits provided by grantee to subscribers pursuant to this subsection.
D. Installation:
1. Grantee shall at all times comply with any applicable FCC regulations regarding installation. At a minimum, however, subscribers who will request installation, maintenance or repairs shall be given the schedule option of a four (4) hour block of time in the morning, afternoon or on Saturday appointments. Persons requesting installation of cable service shall be afforded a right of rescission between the time cable service is requested and the time service is actually installed. Pursuant to applicable FCC regulations, all new installations, reconnects, service upgrades or downgrades shall be performed within seven (7) business days of the date the subscriber requests an installation, reconnection, service upgrade or downgrade.
2. Grantee shall extend service to those areas not included in the initial service area when the density of homes meets or exceeds ten (10) homes within one thousand three hundred twenty (1,320) cable-bearing strand feet (1/4 cable mile).
3. Only those homes which require drops in excess of one hundred fifty feet (150') shall be required to pay for grantee's materials and time. All other installations will be billed at an hourly service charge pursuant to FCC rate regulations.
4. Areas below the density of ten (10) homes within one thousand three hundred twenty (1,320) cable-bearing strand feet (1/4 cable mile) shall have service available on a cost-sharing basis. The following procedures will apply:
a. Upon request for service, grantee will construct the needed line extension in accordance with the above criteria.
b. Construction will be accomplished in a timely manner subsequent to such a request. Construction completion will be subject to such factors as type of construction (aerial or under ground), seasonal conditions, and make-ready factors.
c. The cost of the line extension will be prorated based on the number of subscribers served by the extension. Grantee will absorb the first one hundred dollars ($100.00) per subscriber of the prorated cost. Subscribers on a line extension costing less than one hundred dollars ($100.00) per serviced subscriber would not be subject to the cost sharing obligation.
d. Once the line extension is built on the above basis, the standard installation and monthly rates will apply.
e. Provision of service through a line extension shall be accomplished no later than six (6) months from the date of request.
f. Grantee reserves the right to require payment in advance for the subscriber's portion of any line extension cost.
g. Nothing in this subsection shall prohibit the city, the grantee, or real estate developers from entering into an agreement whereby entire new housing developments in the city shall be prewired for efficient future expansion of cable television service.
E. Subscriber Information: To the extent required by federal law, grantee shall provide written subscriber service information: 1) upon request to the city, 2) to all new subscribers, 3) annually to existing subscribers, and 4) at any time upon request, which shall include, at a minimum, the following:
1. A/B switch notice (to the extent required by state and federal law);
2. Privacy notice (to the extent required by state and federal law);
3. Products and services offered;
4. Prices and options for programming and conditions of subscription to programming and other services;
5. Installation and service maintenance policies;
6. Instructions on how to use the cable service;
7. Channel positions of programming carried on the system;
8. Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office;
9. Assistance procedures (applicable only for new subscribers); and
10. Channel line-up card.
F. Subscriber Billing Practices:
1. Grantee shall notify new subscribers of its billing practices. The service information shall describe grantee's billing practices, including, but not limited to, the following: frequency of billing, time periods upon which billing is based, advance billing practices, security deposit requirements, charges for late payments or returned checks, payments required necessary to avoid account delinquency, availability of credits for service outages, procedures to be followed to request service deletions including the notice period a subscriber must give to avoid liability for such services and procedures to be followed in the event of a billing dispute.
2. Grantee shall notify all affected subscribers not less than thirty (30) days prior to any change in the billing practices and such notice shall include a description of the changed practice.
3. The subscriber bill shall contain the following information presented in plain language and format:
a. Name and address of grantee;
b. The period of time over which each chargeable service is billed including prorated periods as a result of the establishment and termination of service;
c. Each reasonably distinct rate or charge levied;
d. The amount of the bill for the current billing period, separate from any balance;
e. Grantee's telephone number and a statement that the subscriber may call this number with any questions or complaints about the bill; and
f. The date on which payment is due from the subscriber.
4. The account of a subscriber shall be considered delinquent ten (10) days following the due date printed on subscriber's bill. Grantee may, at its discretion, modify or change billing practices based on the reasonable needs of the grantee.
a. Grantee may impose an administrative fee when a subscriber's account is delinquent.
b. Grantee may charge a reasonable administrative fee for late payment.
5. Refund checks will be issued promptly, but no later than either: a) the subscriber's next billing cycle following resolution of the request, or thirty (30) days, whichever is earlier; or b) the return of the equipment supplied by grantee if service is terminated.
6. Credits for service will be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.
G. Parental Control Option: Grantee shall provide parental control devices to all subscribers who wish to be able to delete any objectionable programming from the cable service entering the subscriber's home. Grantee shall comply with all applicable state and federal laws and regulations regarding parental control devices and/or blocking devices, particularly with respect to any fees or charges which may be assessed by grantee with respect to such devices. (Ord. 4154, 2-19-1996)
A. Payment To City:
1. Grantee shall pay to the city an annual amount equal to five percent (5%) of grantee's gross revenues.
2. Payments due the city under this provision shall be computed at the end of each quarter-year. Payments shall be due and payable for each quarter or a portion of a quarter-year forty five (45) days from the end of the previous quarter. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be reasonably required by the city.
3. Subject to applicable local, state and federal law, no acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for further or additional sums payable under the provisions of this franchise. All amounts paid shall be subject to audit and recomputation by the city. Notwithstanding the above, the period of limitation for recovery of any franchise fee payable hereunder shall be the applicable statute of limitations under Iowa law.
4. With each annual report required pursuant to subsection 3-7-8C of this chapter, grantee shall provide the city with a certification of the gross revenues for the prior calendar year prepared by an officer of grantee who is also a certified public accountant. This certification shall be used to determine the exact amount of payments due the city and to correct any overpayments or underpayments by grantee.
5. In the event any payment is not made on the due date, upon written notice from city, grantee shall have fifteen (15) days to cure said missing payment, or interest on the amount due shall accrue from such date at the annual rate of the prime rate plus one and one-half (11/2) percentage points at such prime rate as advertised by the Homeland Bank or other similarly situated financial institution should Homeland Bank no longer be in existence.
B. Not Franchise Fees:
1. Grantee expressly acknowledges and agrees that except for the payments expressly required by subsection A of this section, none of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities to be provided or performed by grantee at the direction of the city or otherwise pursuant to this franchise, or otherwise in connection with the construction, operation, maintenance or upgrade of the cable system (including specifically, but not by way of limitation, such payments, contributions, services, equipment, facilities, support, resources or other activities as described in or provided for in this franchise and the exhibits hereto) are franchise fees chargeable against the compensation payments to be paid to the city by grantee pursuant to subsection A of this section.
2. Grantee expressly acknowledges and agrees that, as applicable, except for the compensation payments expressly required by subsection A of this section, each of the payments or contributions made by, or the services, equipment, facilities, support, resources or other activities to be provided by the grantee, are within the exclusions from the term "franchise fee" set forth in section 622(g)(2) of the Cable Act (47 USC section 542(g)(2)).
3. Grantee expressly acknowledges and agrees that the compensation payments due from the grantee to the city pursuant to subsection A of this section, shall take precedence over all other payments, contributions, services, equipment, facilities, support, resources or other activities to be paid or supplied by the grantee pursuant to this franchise, and the compensation and other payments to be made pursuant to subsection A of this section shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which the grantee shall be required to pay to the city or to any state or federal agency or authority, all of which shall be separate and distinct obligations of the grantee.
4. Grantee expressly acknowledges and agrees that the only credits or deductions from franchise fees will be made pursuant to the exclusions set forth in section 622(g)(2) of the Cable Act (47 USC section 542(g)(2)).
C. Performance Bond:
1. Within thirty (30) days of the effective date of the franchise, grantee shall furnish the city with a performance bond in the amount of ten thousand dollars ($10,000.00). The city expressly agrees to accept a guarantee in lieu of a bond in a form reasonably acceptable by the city attorney. The guarantee in lieu of bond is conditioned upon the faithful performance of grantee of all terms and conditions of this franchise. The rights reserved to the city with respect to the guarantee or other security are in addition to all other rights the city may have under the franchise or any other law.
2. The rights reserved by the city with respect to the guarantee are in addition to all other rights the city may have under the franchise or any other law.
D. Security Fund:
1. If this franchise is ever sold or transferred pursuant to subsection 3-7-12B of this chapter, the transferee shall provide and maintain through the remaining term of this franchise, a security fund in the sum of twenty five thousand dollars ($25,000.00) as common security for the faithful performance by it of all the provisions of this franchise and compliance with all orders, permits and directions of the city and the payment by grantee (transferee) of any claim, liens and taxes due the city which arise by reason of the construction, operation or maintenance of the cable system.
2. Provision shall be made to permit the city to draw from the security fund. Grantee (transferee) shall not use the security fund for other purposes and shall not assign, pledge or otherwise use this security fund as security for any purpose. The city reserves the right, in its sole discretion, to reduce the required amount of the security fund.
3. Within ten (10) days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to subsection D1 of this section, grantee (transferee) shall take all necessary steps sufficient to restore such security fund to the required amount.
4. If grantee (transferee) fails to pay to the city any taxes due and unpaid; or fails to repay to the city, any damages, costs or expenses which the city shall be compelled to pay by reason of any act or default of the grantee (transferee) in connection with this franchise; or fails, after ten (10) days' notice of such failure by the city to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security, the city may then withdraw such funds from the security fund.
5. The written instrument evidencing the security fund shall be subject to the approval of the city and shall contain the following endorsement:
It is hereby understood and agreed that this security fund may not be canceled by the issuer, nor may the intention not to renew be stated by the issuer, until thirty (30) days after receipt by the city of a written notice stating such intention to cancel or not to renew.
E. Penalties From Security Fund: This subsection shall be applicable only if the security fund identified in subsection D of this section is triggered by a sale or transfer. In addition to any other remedies provided herein, civil penalties for violations of this franchise are set forth below. As a result of any acts or omissions by grantee (transferee) pursuant to the franchise, the city may charge to and collect from the security fund the following penalties:
1. For failure to complete the construction in accordance with the franchise unless the city approves the delay, the penalty shall be one hundred dollars ($100.00) per day for each day, or part thereof, such failure occurs or continues.
2. For repeated and wilful failure to provide data, documents, reports or information or to cooperate or participate with the city during a renewal process or the cable system review, the penalty shall be one hundred dollars ($100.00) per day.
3. For substantial failure to comply with any material provision of this franchise, for which a penalty is not otherwise specifically provided, the penalty shall be one hundred dollars ($100.00) per day.
4. For failure to test, analyze and report on the performance of the cable system following a request by the city, the penalty shall be one hundred dollars ($100.00) per day.
5. For failure of grantee (transferee) to comply with operation or maintenance standards, the penalty shall be one hundred dollars ($100.00) per day.
6. For failure to provide the services grantee (transferee) proposed, the penalty shall be one hundred dollars ($100.00) per day.
7. For failure to comply with all conditions of the city permits to disturb streets, fix streets, or other terms or conditions of the city, the penalty shall be one hundred dollars ($100.00) per day.
F. Procedure For Imposition Of Penalties:
1. This subsection shall be applicable only if the security fund identified in subsection D of this section is triggered by a sale or transfer. Whenever the city finds that grantee (transferee) has allegedly violated one or more terms, conditions or provisions of this franchise, a written notice shall be given to grantee (transferee). The written notice shall describe in reasonable detail the alleged violation so as to afford grantee (transferee) an opportunity to remedy the violation. Grantee (transferee) shall have ten (10) days subsequent to receipt of the notice in which to correct the violation before the city may resort to the security fund. Grantee (transferee) may, within five (5) days of receipt of notice, notify the city that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by grantee (transferee) to the city shall specify with particularity the matters disputed by grantee (transferee) and shall stay the running of the above described time.
a. The city shall hear grantee's (transferee's) dispute at a regularly or specially scheduled meeting. Grantee (transferee) shall have the right to subpoena and cross-examine witnesses. The city shall determine if grantee (transferee) has committed a violation and shall make written findings of fact relative to its determination. If a violation is found, grantee (transferee) may petition for reconsideration.
b. If after hearing the dispute the claim is upheld by the city, grantee (transferee) shall have ten (10) days from such a determination to remedy the violation or failure. At any time after that ten (10) day period, the city may draw against the security fund all penalties due it.
2. The time for grantee (transferee) to correct any alleged violation may be extended by the city if the necessary action to correct the alleged violation is of such a nature or character to require more than ten (10) days within which to perform, provided grantee (transferee) commences the corrective action within the ten (10) day period and thereafter uses reasonable diligence, as determined by the city, to correct the violation.
3. The security fund deposited pursuant to this subsection shall become the property of the city in the event that the franchise is canceled by reason of the default of grantee (transferee) or revoked for cause. Grantee (transferee), however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise.
4. The rights reserved to the city with respect to the security fund are in addition to all other rights of the city whether reserved by this franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.
5. The city shall stay or waive the imposition of any penalties set forth above upon a finding that any failure or delay is a result of an act of God or due to circumstances beyond the reasonable control of grantee (transferee).
G. Damages And Defense:
1. Grantee agrees to indemnify, save and hold harmless, and defend the city, its officers, boards and employees, from and against all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of the construction, maintenance and operation of grantee's cable system, including, but not limited to, any liability for damages and for any liability or claims resulting from property damage, bodily injury (including accidental death), copyright infringement, defamation, antitrust, errors and omission, theft, fire and all other damages which arise out of grantee's construction, operation or maintenance of the cable system, including, but not limited to, reasonable attorney fees and costs. Such indemnification shall extend during the entire term of the franchise. This indemnification shall exclude any damages or causes of action arising out of the city's unlawful, negligent or ultra vires acts.
2. In order for the city to assert its rights to be indemnified, defended, or held harmless, the city must:
a. Promptly notify grantee of any claim or legal proceeding which gives rise to such right;
b. Afford grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding; and
c. Fully cooperate with the reasonable requests of grantee, at grantee's expense, in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to subsection G2b of this section.
3. In the event the city, in its sole discretion, determines that its interests cannot be represented in good faith by grantee, the city may, at its own cost, defend itself with regard to all damages and penalties mentioned in subsection G1 of this section.
H. Liability Insurance:
1. Grantee shall maintain, throughout the term of the franchise, comprehensive general liability insurance, naming the city as an additional insured in the minimum amounts of:
a. One million dollars ($1,000,000.00) for bodily injury or death to any one person;
b. Two million dollars ($2,000,000.00) for bodily injury or death resulting from any one accident;
c. Two million dollars ($2,000,000.00) for all other types of liability.
2. Within thirty (30) days of acceptance, grantee shall furnish to the city a certificate evidencing that a satisfactory insurance policy has been obtained. Said certificate shall demonstrate that the insurance provider holds a rating by Best of at least "A-". Said certificate shall also require that the city be notified thirty (30) days prior to any expiration or cancellation.
3. All insurance policies maintained pursuant to this subsection may not be canceled by the surety, nor may the intention not to renew be stated by the surety until thirty (30) days after receipt by the city, of a written notice of such intention to cancel or not to renew.
In addition, it shall be the obligation of the grantee promptly to notify the city of any pending or threatened litigation that would be likely to affect its insurance coverage.
I. City's Right To Revoke: In addition to all other rights which the city has pursuant to law or equity, the city reserves the right to revoke, terminate or cancel this franchise, and all rights and privileges pertaining thereto pursuant to subsection J of this section, in the event that:
1. Grantee substantially violates any material provision of this franchise; or
2. Grantee attempts to evade any of the provisions of the franchise and refuses to cure it; or
3. Grantee practices any fraud or deceit upon the city or subscriber; or
4. Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt; or
5. Grantee materially misrepresents a material fact in the application for or negotiation of, or renegotiation of, or renewal of, the franchise.
J. Revocation Procedures: In the event that the city determines that grantee has substantially violated any material provision of the franchise, or any applicable federal, state or local law regarding the operation of the cable system, the city may make a written demand on grantee, stating the exact nature of the alleged violation, requiring that grantee remedy such violation and that continued violation may be cause for revocation. If the violation, breach, failure, refusal or neglect is not remedied to the satisfaction of the city within thirty (30) days following such demand, the city shall determine whether or not such violation, breach, failure, refusal or neglect by grantee is due to acts of God or other causes which result from circumstances beyond grantee's control.
1. A public hearing shall be held and grantee shall be provided with an opportunity to be heard upon fourteen (14) days' written notice to grantee of the time and the place of the hearing. The causes for pending revocation and the reasons alleged to constitute such cause shall be recited in the notice. Said notice shall affirmatively recite the causes that need to be shown by the city to support a revocation.
2. If notice is given and, at grantee's option, after a full public proceeding is held, the city determines there is a violation, breach, failure, refusal or neglect by grantee, the city shall direct grantee to correct or remedy the same within such reasonable additional time, in such manner and upon such reasonable terms and conditions as city may direct.
3. If, after a public hearing it is determined that grantee's performance of any of the terms, conditions, obligations or requirements of franchise was prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified city in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and labor strikes.
4. If, after notice is given and, at grantee's option, a full public proceeding is held, the city determines there was a substantial violation, breach, failure, refusal or neglect, then the city may declare, by resolution, the franchise revoked and canceled and of no further force and effect unless there is compliance within such period as city may fix, such period not to be less than thirty (30) days, provided no opportunity for compliance need be granted for fraud, misrepresentation, or violation of privacy rights.
5. The issue of revocation shall automatically be placed upon the city council agenda at the expiration of the time set by it for compliance. The city then may terminate franchise forthwith upon finding that grantee has failed to achieve compliance or may further extend the period, in its discretion.
6. If the city, after notice is given and, at grantee's option, a full public proceeding is held and appeal is exhausted, declares the franchise breached, the parties may pursue their remedies pursuant to franchise or any other remedy, legal or equitable. Any decision by the city shall be subject to a de novo review by a court of competent jurisdiction.
K. Enforcement Of Franchise Provisions: In addition to any other remedies provided herein, the city may require grantee to appear before the city, or any designated entity, to address any alleged violations of the terms and provisions of this franchise. The city shall provide grantee fourteen (14) days' advanced written notice of such a meeting, which notice shall include a detailed description of any alleged violation. Grantee shall be prepared to explain the circumstances regarding such alleged violation, including any actions taken by grantee to cure such alleged violations or other relevant facts. If the city is dissatisfied with the responses received by grantee, it may exercise any other rights available to it under the terms and provisions of this franchise or applicable local, state and federal law. (Ord. 4154, 2-19-1996)
A. Foreclosure: Upon the foreclosure or other judicial sale of the cable system, grantee shall notify the city of such fact and such notification shall be treated as a notification that a change in control of grantee has taken place, and the provisions of this franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred.
B. Receivership: The city shall have the right to cancel this franchise subject to any applicable provisions of state law, including the bankruptcy act, one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of grantee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
1. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this franchise and remedied all defaults thereunder; and
2. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this franchise.
C. Abandonment: Grantee may not abandon any aerial portion of the cable system thereof without having first given three (3) months' written notice to the city. Grantee may not abandon any aerial portion of the cable system without compensating the city for damages, if any, resulting from the abandonment. (Ord. 4154, 2-19-1996)
A. Removal After Revocation Or Expiration:
1. Subject to applicable federal, state and local law, at the expiration of the term for which the franchise is granted, and any removal thereof or upon its lawful revocation, as provided for, the city shall have the right to require grantee to remove, at grantee's expense, but in all cases grantee shall have the right to abandon underground cable, all or any portion of the cable system from all streets and public property within the city. In so removing the cable system, grantee shall refill and compact at its own expense, any excavation that shall be made and shall leave all streets, public property and private property in as good a condition as that prevailing prior to grantee's removal of the cable system, and without affecting, altering or disturbing in any way electric, telephone or utility, cable wires or attachments. The city, or its delegation, shall have the right to inspect and approve the condition of such streets and public property after removal. The security fund (if applicable), insurance, indemnity and penalty provision of the franchise shall remain in full force and effect during the entire term of removal.
2. Subject to applicable local, state and federal law, if, in the sole discretion of the city, grantee has failed to commence removal of the cable system, or such part thereof as was designated within thirty (30) days after written notice of the city's demand for removal is given, or if grantee has failed to complete such removal within one year after written notice of the city's demand for removal is given, the city shall have the right to exercise one of the following options:
a. Declare all right, title and interest to the cable system to be in the city or its delegator with all rights of ownership including, but not limited to, the right to operate the cable system or transfer the cable system to another for operation by it; or
b. Declare the cable system abandoned and cause the cable system, or such part thereof as the city shall designate, to be removed at no cost to the city. The cost of said removal shall be recoverable from the security fund, indemnity and penalty section provided for in the franchise, or from grantee directly.
B. Sale Or Transfer Of Franchise:
1. This franchise shall not be sold, assigned or transferred, either in whole or in part, or leased or sublet in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except an entity controlling, controlled by or under common control with grantee, without full compliance with the procedures set forth in this subsection and applicable provisions of the cable communications policy act of 1984, as amended.
2. The provisions of this subsection shall apply to the sale or transfer of all or a majority of grantee's assets, merger, consolidation or sale or transfer of stock in grantee so as to create a new controlling interest. The term "controlling interest", as used herein, is not limited to majority stock ownership but includes actual working control in whatever manner exercised.
a. The parties to the sale or transfer shall make a written request to the city for its approval of a sale or transfer. The written request shall contain all information required by the city or by applicable state and federal laws and regulations. Upon receipt of a written request, the city shall make a determination pursuant to subsection C of this section as to the exercise of its first right of refusal to purchase the system.
b. The city shall reply in writing within thirty (30) days of the request and shall indicate approval of the request or its determination that a public hearing is necessary to analyze the legal, technical and financial ability of the proposed transferee and whether a potential adverse effect may result on grantee's subscribers.
c. The city shall issue a decision in writing either approving or denying the sale or transfer request within one hundred twenty (120) days following receipt of the written request from the parties to the sale or transfer, which written request shall contain all necessary information on which the city shall base its determination.
3. In reviewing a request for sale or transfer pursuant to subsection B1 of this section, the city may inquire into the legal, technical and financial qualifications of the prospective controlling party, and grantee shall assist the city in so inquiring. The city may condition said transfer upon such terms and conditions as it deems reasonably appropriate; provided, however, the city shall not unreasonably withhold its approval. In no event shall a transfer or assignment of ownership or control of the franchise be approved without the perspective controlling party becoming a signatory to this franchise.
4. Notwithstanding anything to the contrary contained in this subsection B, no such consent shall be required for a transfer in trust, by mortgage, or by hypothecation, or by assignment of any rights, title or interest of grantee in the franchise or cable system, in order to secure indebtedness.
C. Purchase By City Upon Expiration Or Revocation:
1. Subject to applicable local, state and federal law, at the expiration of this franchise, the city may purchase the cable system pursuant to section 627 of the cable act (47 USC 541).
2. Upon the revocation of this franchise, the city may, in lawful manner and upon the payment of an equitable price, lawfully purchase the cable system. (Ord. 4154, 2-19-1996)
A. Discriminatory Practices Prohibited: Grantee shall not deny service, deny access or otherwise discriminate against subscribers, programmers or general citizens on the basis of race, color, religion, national origin, gender, sexual orientation, gender identity or age. Grantee shall comply at all times with all other applicable federal, state and city laws relating to nondiscrimination. (Ord. 4891, 11-13-2007)
B. Subscriber Privacy: Grantee shall, at all times, comply with all applicable local, state and federal subscriber privacy provisions, including, but not limited to, section 631 of the cable act (47 USC 551). (Ord. 4154, 2-19-1996)
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