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HomeMy WebLinkAboutOrdinance 3413 ,s FILED FOR RE60RD - 89 JUL 6 Pfd 2 46 WASHINOiU !v OO AR A . KOLLMEYER SCANNED ORDINANCE NO , 3413 MICROFILMED AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH WARNER CABLE COMMUNICATIONS , INC . FOR THE USE AND OCCUPANCY OF PUBLIC STREETS , ALLEYS AND PLACES TO CONSTRUCT , OPERATE AND MAINTAIN A BROAD BAND TELECOMMUNICATIONS NETWORK FOR THE PURPOSE OF CABLE TV TRANSMISSION . BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE , ARKANSAS : Section 1 , The Board of Directors hereby approves the franchise agreement with Warner Cable Communications , Inc . attached hereto , marked Exhibit " A" , and made a part hereof authorizing the use and occupancy of the public streets , alleys and other public place to construct , operate and maintain a broad band telecommunications network for the purpose of cable TV G transmission . -41 SECTION 2 . The Mayor and City Clerk are hereby authorized and directed to execute the aforesaid franchise agreement . �� SECTION 3 . All ordinances in conflict with the provisions of the Franchise approved hereby are hereby repealed on the . effective date of said franchise . PASSED AND APPROVED this 7th day of .March 1989 . APPROVED By : Ay El Mayor i A� ' ./1I k LIBER1324PAGE765 0 FRANCHISE AGREEMENT BETWEEN THE CITY OF FAYETTEVILLE , ARKANSAS AND WARNER CABLE COMMUNICATIONS , INC . EXHIBIT A IIBEB1324PAGE766 TABLE OF CONTENTS SECTION I 5 SHORT TITLE SECTION II . . . . . . . . . . . . . . . . . . . . . . . . . . 5 DEFINITIONS SECTION III . . . . . . . . . . . . . . . . . . . . . . . . 10 GRANT OF FRANCHISE SECTION IV . . . . . . . . . . . . . . . . . . . . . . . . . . 11 FRANCHISE AREA SECTION V . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SIGNIFICANCE OF FRANCHISE SECTION VI . . . . . . . . . . . . . . . . . . . . . . 12 LIABILITY AND INDEMNIFICATION SECTION VII 13 LETTER OF CREDIT SECTION VIII 17 CONDITION OF STREET OCCUPANCY SECTION IX . . . . . . . . . . . . . . . . . . . . . . . . . . 20 OPERATION OF THE FRANCHISE SECTION X . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SERVICE STANDARDS SECTION XI . . . . . . . . . . . . . . . . . . . . . . . . 27 RIGHTS RESERVED TO THE CITY SECTION XII . . . . . . . . . . . . . . . . . . . . . . . . . 28 FRANCHISE TRANSFER } SECTION XIII . . . . . . . . . . . . . . . . . . . . . . . . . 30 FRANCHISE RENEWAL SECTION XIV . . . . . . . . . . . . . . . . . . . . . . . . 32 FRANCHISE FEE PAYMENT SECTION XV . . . . . . . . . . . . . . . . . . . . . . . . . . 33 UPGRADE OF THE CABLE SYSTEM SECTION XVI . . . . . . . . . . . . . . . . . . . . . . . . . 35 EMERGENCY OVERRIDE SYSTEM - 2 _ twF1324nGE767 SECTION XVII 35 SUPPORT FOR PUBLIC ACCESS SECTION XVIII . . . . . . . . . . . . . . . . . . . . . . . . 36 PUBLIC SERVICE SECTION XIX . . . . . . . . . . . . . . . . . . . . . . . . . 37 TERMINATION OF FRANCHISE SECTION XX . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SERVICE RATES SECTION XXI . . . . . . . . . . . . . . . . . . . . . . . . . 40 SEPARABILITY SECTION XXII . . . . . . . . . . . . . . . . . . . . . . . . . 41 FORCE MAJEURE SECTION XXIII . . 42 REIMBURSEMENT OF EXPENSES SECTION XXIV . . . . . . . . . . . . . . . . . . . . . . . . . 42 EFFECTIVE DATE - 3 LIBER 1324PAGE768 WHEREAS , pursuant to the Cable Communications Policy Act of 1984 ( " the Cable Act " ) , the United States Congress established certain franchise procedures and standards , among other purposes , to encourage the growth and development of cable systems , to assure that cable systems are responsive to the needs and inter - ests of the local community , to assure that cable communications provide and are encouraged to provide the widest possible diver - sity of information services and services to the public and to assure that all access to cable service is not denied to any person ; and WHEREAS , the Grantee has voluntarily offered to provide certain facilities , equipment and services ; and WHEREAS , the Grantee , in arm ' s - length negotiations , has knowingly and voluntarily agreed to the terms of this Franchise , agrees that such terms comply with all applicable laws and regula- tions and are fully enforceable by the City ; WHEREAS , the City intends to exercise the full scope of its governmental powers , including both its police power and contract - ing authority , to promote the public interest , and to protect the 3 health , safety , and welfare ; and WHEREAS , the City seeks to assure that cable communications provide and are encouraged to provide the widest possible diver - sity of information sources and services to the public ; and . WHEREAS , the provisions of this franchise are consistent with the Cable Act ; - 4 - LIBE81324PAGE769 NOW , THEREFORE , THE CITY OF FAYETTEVILLE , ARKANSAS AND WARNER CABLE COMMUNICATIONS , INC . HEREBY AGREE AS FOLLOWS : SECTION I SHORT TITLE This Agreement shall be known and may be cited as the "Warner Cable Communications Inc . Franchise Agreement . " SECTION II DEFINITIONS For the purposes of this Agreement , the following terms , phrases , words and their derivations shall have the meaning given herein . When not inconsistent with the context , words used in the present tense include the future , words in the plural number include the singular number , and words in the singular number include the plural number . A . " BROADBAND TELECOMMUNICATIONS NETWORK" shall mean all of the component physical , operational and programming elements of any network of cable , optical , electrical or electronic equipment , including cable television , used for the purpose of transmission of electrical impulses of television , radio and other intel - ligence , either analog or digital , for sale or use by the in- habitants of the City . B . " CITY" is the City of Fayetteville , Arkansas . C . " GRANTEE " is Warner Cable Communications Inc . - 5 EIBEB1324PAGE7 O D . " BOARD" is the Board of Directors ( or other body in which the legislative power vests ) of the City of Fayetteville , Arkansas . E . " CHANNEL" shall mean a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel ( as television channel is defined by the Federal Communications Commission by regula - tion ) . F . " DEGRADED SIGNAL" shall mean a signal on any channel regardless of the point of origin of such signal , which fails to meet the signal quality guidelines established in Part 76 , Subpart K of the Federal Communications Commission ' s rules and regula- tions . G . " FCC " shall mean the Federal Communications Commission and any legally appointed or elected successor . H . " FRANCHISE PAYMENT" shall include all charges imposed for a franchise . I . " GROSS REVENUES " means all revenue , as determined in accordance with generally accepted accounting principles , which is derived , directly or indirectly , by the Grantee and by each Affiliated Person from or in connection with the operation of the Broadband Telecommunications Network , including , without limita- tion , the distribution of any service over the Broadband Tele - communications Network . Gross Revenue shall also include the Gross Revenue of any other person which is derived directly or - 6 - A LIBER 132 A PAGE 771 • f rel a r • 1 • indirectly from or in connection with the operation of the Broadband Telecommunications Network , including , without limita- tion , the distribution of any service over the Broadband Telecom- munications Network to the extent that said revenue is derived , as determined by the City , through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the franchise granted herein . Gross Revenue shall also include subscription fees and advertising receipts received by the Grantee or affiliated person in connec - tion with the sale within the City of any cable programming guide /magazine . Gross Revenue shall not include : ( i ) the revenue of any person , including , without limitation , supplier of program- ming to the Grantee , to the extent that said revenue is also included in Gross Revenue of the Grantee ; ( ii ) the revenue of the Grantee or any other person which is received directly from the sale of any merchandise through any service distributed over the Broadband Telecommunications Network , except any revenue received in lieu of compensation for use of any Channel ; ( iii ) taxes imposed by laws on Subscribers or other persons which the Grantee is obligated to collect ; ( iv ) amounts collected by the Grantee from Subscribers on behalf of leased or access channel program- mers , other than Affiliated Persons , to the extent that said amounts are passed on by the Grantee to said programmers ; ( v ) the revenue of any Affiliated Person which represents standard and reasonable amounts paid by the Grantee to said Affiliated Person for ordinary and necessary business expenses of the Grantee , - 7 - LIBER1324PAU 172 Oki.0 including , without limitation , professional service fees and insurance or bond premiums ; ( vi ) any investment income earned by the Grantee ; or ( vii ) that portion of the fee paid by the Grantee to an Affiliated Person for any service which exceeds the revenue of the Grantee from Subscribers for such service . J , " AFFILIATED PERSON" means each person who falls into one or more of the following categories : ( i ) each person having , directly or indirectly , a controlling interest in the Grantee ; ( ii ) each person in which the Grantee has , directly or indirectly , a controlling interest ; ( iii ) each officer , director , general partner , joint venturer or joint venture partner , of the Grantee ; and ( iv ) each person , directly or indirectly , controlling , controlled by , or otherwise related to the Grantee by common ownership , common management , or common control ; provided that " Affiliated Person" shall in no event mean the City , any limited partner of the Grantee , or any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a controlling interest in , being owned by , or being under common ownership , common manage - ment , or common control with , the Grantee . K , " INTERRUPTION OF SERVICE" shall mean no picture or sound at the television set of a customer due to a technical problem with the cable television system , L , " MAY" is permissive , M , " REASONABLE NOTICE " shall be written notice addressed to the Grantee at the address Grantee has designated to the City and - $ UB[fli3?4°AGE ( Ic] notice to the City shall be to the Board of Directors , City of Fayetteville , which notice shall be certified and postmarked no less than fifteen ( 15 ) days prior to that day in which the party giving such notice shall commence any action which required the giving of such notice . In computing said fifteen ( 15 ) days , Saturdays , Sundays and holidays recognized by the City shall be excluded . N . " SHALL" and "MUST" each are mandatory and not merely directory . O . " STATE" shall mean the State of Arkansas . P . " STREET" shall mean such of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority and located within the City limits : streets , roadways , highways , avenues , lanes , alleys , sidewalks , easements , rights -of -way and similar public ways and extensions and additions thereto , together with such other public property and areas that the City shall permit to be included within the definition of street from time to time . Q . " SUBSCRIBER" shall mean any person receiving either basic service or additional service from the grantee for the established monthly service fees . R . " PERSON " shall mean an individual , partnership , associa- tion , organization , labor organization , corporation , cooperative , legal representative , trustee or receiver . S . " SERVICE DROP " shall mean the cable required to trans - port the cable television signals from the exit point of the - 9 - �(e�ai3?4o��E?"74 Grantee ' s distribution system ( tap ) to the back of the sub- scriber ' s television set . SECTION III GRANT OF FRANCHISE This franchise shall be for a term of five ( 5 ) years from the effective date specified in Section XXV . If Grantee substantially complies with the material terms of Sections V . VI , VII , VIII , IX , X , XII , XIV , XV , XVI , XVII , XVIII , XX , AND XXIV of this franchise during said five year term , the franchise shall automatically be extended for an additional term of five ( 5 ) years . If , during the initial five year term of this franchise , the City contends that Grantee is not substantially complying with any material terms of Sections , V , VI , VII , VIII , IX , X , XII , XIp XV , XiI , 'XVII , 'r.VIII , .YND .X. IV of this franchise , the City shall give the Grantee c-.ritten notice as soon as reasonably practical upon receipt of the information upon which such contention is based , in any case , no later than six ( o ) months prior to the end of the initial five year term . Said written notice shall specify the asserted franchise violation , and Grantee shah have the opportunity to cure such material non- compliance before the expiration of the initial term . Upon cure of such non-compliance , Grantee shall so notify the City in writing , and Grantee ' s franchise shall be extended for the additional five ( 5 ) year term . In the event of a dispute between the City and Grantee with respect to the sufficiency of the cure , the Grantee and City shall use best efforts to promptly resolve the difference ; and in the event said - 10 - LIBER MMPAU775 dispute cannot be promptly resolved and the franchise is not automatically extended , the franchise shall remain in effect pending full due process proceedings of any appeal by Grantee to a court of competent jurisdiction . SECTION IV FRANCHISE AREA The franchise relates to the geographical area within the incorporated limits of the City and to any area henceforth annexed thereto during the term of this franchise . SECTION V SIGNIFICANCE OF FRANCHISE A . Franchise Amendable - The franchise granted herein may be amended from time to time to allow the Grantee to innovate and implement new services and developments ; provided , however , that no such amendments affecting the conditions of the franchise shall be implemented without the mutual consent of the City and the Grantee . B . Franchise Required - No person shall construct , install , maintain or operate on or under any street , any equipment or facilities for the distribution of television signals or radio signals or other intelligence , either analog or digital , over a Broadband Telecommunications Network to any subscriber unless a franchise authorizing the use of the streets has first been obtained . Such a franchise shall contain material terms and conditions no less restrictive than those set forth in this Franchise . - 11 - r� IIBER 1324PAGE776 C. Pole Use Agreements Required - The franchise granted hereunder does not relieve the Grantee of its obligation to obtain necessary pole or conduit use agreements from utility companies. D. No Right of Property - The award of any franchise hereunder shall not impart to the Grantee any right of ownership of streets or City owned property. E. Compliance with Laws, Rules and Regulations - Grantee at its expense, shall comply with all laws, orders and regulations or Federal, State and municipal authorities and with any direction of any public officer or officers pursuant to law, who shall legally impose any regulation, order or duty upon the Grantee with respect to the franchise. SECTION VI LIABILITY AND INDEMNIFICATION A. The Grantee shall pay, and by its acceptance of this Franchise, Grantee specifically agrees that it will pay all damages and penalties which the City may legally be required to pay as a result of granting this Franchise. These damages shall include, but shall not be limited to, damages arising out of the installation, operation or maintenance of the Broadband Telecom- munications Network authorized herein, allowed or prohibited by this Franchise. B. The Grantee shall pay and by its acceptance of this Franchise specifically agrees that it will pay all expenses incurred by the City in defending itself with regard to damages and penalties mentioned in subsection "A" above. These expenses -12- EIBER 1324PFGE 777 . shall include all reasonable out-of-pocket expenses, such as attorney fees, and shall also include the reasonable value of any services rendered by any employees of the City. C. The Grantee shall maintain, and by its acceptance of this Franchise specifically agrees that it will maintain, through the term of the franchise liability insurance insuring the City and the Grantee with regard to all damages mentioned in subsection "A" above in the following minimum amounts: 1. Liability - $500,000.00 for bodily injury or death to any one person, and $1,000,000.00 for bodily injury or death to more than one person in any one accident. 2. Property Damage - $300,000.00 resulting from any one single accident. D. Upon request, Grantee shall furnish certificates of insurance for the policies referenced in subsection "C". E. Grantee shall carry workmen's compensation insurance to protect its own employees, and the indemnification provisions set out in Section VI hereof shall apply also to the employees of the Grantee and the City. SECTION VII LETTER OF CREDIT A. Amount. On the effective date of the Franchise, Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, an irrevocable letter of credit from a financial institution licensed to do business in the State in the -13- IIBiF,1324oscE778 `I •1 \ • 1 •I . 1 1. 1 . • 1 • • • • amount of $250,000.00. After the upgrade of the cable television system described in Section XV is completed, the amount of the letter of credit shall be reduced to $100,000.00. The letter of credit shall name the City as beneficiary. The form and contents of such letter of credit shall be approved by the City, which approval shall not be unreasonably withheld, and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. B. Purpose. The Letter of Credit shall serve as security for: (1) the faithful performance by the Grantee of all material provisions of the franchise agreement; (2) any expenditure, damage, or loss incurred by the City occasioned by the Grantee's unexcused or uncured failure to comply with all rules, regula- tions, orders, permits and other directives of the City issued pursuant to the franchise agreement; (3) the payment by the Grantee of all uncontested liens and uncontested taxes, and all damages, claims, costs or expenses which the City has been compelled to pay or incur by reason of any act or default of the Grantee, and all other payments due to the City from the Grantee pursuant to the franchise agreement; (4) the loss of any payments required to be made by the Grantee to the City which would have been received by the City but for the Grantee's failure to perform its obligations, during the period of time between the Grantee's unexcused or uncured failure to perform and the date on which the City, in accordance with the terms and conditions of the franchise agreement, takes over, or authorizes any other Person to take over -14- (IBIR13324PAGE 779 the construction, operation or maintenance of the Broadband Telecommunications Network in the City necessitated by such failure; and (5) any costs incurred by the City in connection with the award of any franchise for, or other authorization to con- struct, operate or maintain a Broadband Telecommunications Network in the City necessitated by such failure. The withdrawal of amounts from the Security Fund shall constitute a credit against the amount of the applicable liability of the Grantee to the City, but only to the extent of said withdrawal. C. Procedure for withdrawals. If the Grantee: (1) fails to make any required payment within the time specified; (2) fails to pay to the City, within ten (10) business days after receipt of notice, any taxes or liens relating to Broadband Telecommunica- tions Network that are due and unpaid; (3) fails to pay to the City, within ten (10) business days after receipt of notice from the City, any damages, claims, costs or expenses which the City has been compelled to pay or incur by reason of any act or default of the Grantee; or (4) fails to comply, within ten (10) business days after receipt of notice from the City, with any provision of the franchise ordinance or franchise agreement which the City determines can be remedied by an expenditure of an amount under the letter of credit; thence the City may withdraw the amount thereof from the letter of credit, provided that, prior to each such withdrawal, the Grantee shall be afforded 30 days to cure any of said failures or present written comments contesting the validity of the withdrawal within fifteen (15) days after notice -15- l(BER 1324PRGE78O from the City that the withdrawal is to be made. D. Prior to drawing upon the letter of credit for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due, and the Grantee shall have fifteen (15) days from the receipt of such written notice to respond in writing to the City as to the alleged reason for drawing upon the letter of credit. If after a thorough review of the matter the City decides to draw upon the letter of credit, it shall notify the Grantee in writing of its intent to do so. Such notification shall occur three (3) days prior to the withdrawal from the letter of credit, and shall be by certified mail, return receipt requested. The notification shall include the amount, date and purpose for the withdrawal. E. No later than thirty (30) days after the City mails to the Grantee by certified mail notification of a withdrawal pursuant to paragraph "C" above, the Grantee shall replenish the letter of credit in an amount equal to the amount so withdrawn. F. The letter of credit required herein shall require thirty (30) days written notice of any non -renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the city, written evidence of the issuance of a replacement letter of credit within thirty (30) days following receipt by the City or the Grantee of any notice of cancellation. -16- UBER1324PAGE 781 • • 1 \.1 1 1 • •, • 1• 11 1 \ • \ • • • . 1 1 G. The rights reserved to letter of credit are in addition to whether reserved by the franchise action, proceeding or exercise of letter of credit shall affect any o the City with respect to the all other rights of the City, or authorized by law, and no a right with respect to such ther right the City may have. SECTION VIII CONDITION OF STREET OCCUPANCY A. Excavation Permits - Grantee shall not open or disturb the surface of any street, sidewalk, driveway or public place for any purpose without first obtaining a permit to do so from the City. In addition, where existing conduit or backyard easements are not available for underground installation, the Grantee shall design its system in such manner to permit construction behind the parallel with street curbing, or under the sidewalks where available, with a minimum of street excavation. B. Changes Required by Public Improvements - Grantee shall, upon reasonable notice, and at its expense, temporarily discon- nect, relocate or remove from the street or other public place any property of the Grantee when required by the City by reason of traffic conditions, public safety, street vacation, street construction, installation of sewers, drains, water pipes, City owned power lines, or any other type of structure or improvements by public agencies. C. Use of Existing Poles or Conduits - Grantee shall acquire permission from the City before being authorized to erect any new poles or underground conduits, and Grantee shall make -17- LIBER 1324PhGE782 I. every reasonable effort to utilize existing poles presently servicing the area. D. Facilities Not to be Hazardous or Interfere - All wires, conduits, cables and other property and facilities of the Grantee shall be so located, constructed, installed in an orderly and workmanlike manner, and maintained as not to endanger or unneces- sarily interfere with the usual and customary trade, traffic and travel upon the streets. The Grantee shall keep and maintain all of its property in good condition, order and repair. E. Method of Installation - The'facilities of the Grantee shall be installed underground in those areas of the City where existing telephone and electric services are underground at the time of new construction. F. Protection of Facilities - Nothing contained in this Section shall relieve any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid damaging the 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 system. G. Requests for Removal or Change - The Grantee shall, on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment -18- FIBER1324PAGE783 I in advance. The Grantee shall be given not less than fifteen (15) days' advance notice of any move contemplated to arrange for temporary wire changes. H. Authority to Trim Trees - The Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee. I. Restoration of Reimbursements - In the event of distur- bance of any street or private property by the Grantee, it shall, at its own expense and in a manner approved by the City or the owner, replace and restore such street or private property in as good a condition as before the work causing such disturbance was done. In the event the Grantee fails to perform such replacement or restoration, the City shall have the right to do so at the sole expense of the Grantee. J. Emergency Removal of Plant - If at anytime, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, or other appurtenances to the network of the Grantee, such cutting or moving may be done and repairs rendered necessary thereby shall be made by the Grantee, at its sole expense provided that such repairs are not necessitated by a negligent act of the City, in which case cost for repairs shall be borne by the City. -19 - IIB(R132APAGE784 SECTION IX OPERATION OF THE FRANCHISE A. Grantee Rules, Regulations - The Grantee shall have authority to promulgate such rules, regulations, terms and conditions as it deems necessary in order to operate the franchise granted under this Ordinance, provided such do not in any way lessen or abrogate the obligations of the Grantee under the Franchise. B. Subscribers' Antennas - Grantee is expressly prohibited from requiring the removal or from offering to remove or to provide any inducements for, removal of any potential or existing subscribers' antenna or satellite receiving stations as a condi- tion or provision of service of the Grantee. C. Except for circumstances beyond Grantee's control in providing services under the franchise, the Grantee shall: 1. Limit overall system interruptions to a minimum time duration by locating and correcting malfunctions promptly. Whenever it is necessary to shut off or interrupt service for the purpose of making repair, adjustments or installations, the Grantee shall attempt to do so at such times as will cause the least amount of inconvenience to its customers, and unless interruption is unforeseen and immediately necessary, Grantee shall give reasonable notice thereof to its customers; 2. Establish a comprehensive procedure of receiving, recording and resolving subscriber complaints. Such -20- ryQ LIBfR1324r GE 85 1 • 1 •♦ procedure shall be designed so that any subscriber may register a complaint by the use of local telephone service in the subscriber's area; 3. Respond to customers' request for service per the following guidelines: a. System outage - Defined as total loss of all video and audio signals by three (3) or more customers in the same geographic area; response within two (2) hours. Provided, however, after 10:00 p.m., Grantee shall respond by 9:00 a.m. the following day. b. Individual Outage - Defined as the total loss of all video and audio signals by a single cus- tomer; response no later than the end of the next business day. c. Degraded Signal - Response within the next two (2) working days. 4. Grantee shall maintain a manned answering service to receive customers' requests for service outside of normal business hours. Such answering service shall be capable of notifying technical and/or supervisory personnel to respond to system outages per the standards stated in Subsection 3a above. Grantee will at all times maintain a local telephone service number, and keep all subscribers advised thereof. -21- �A per+ FIBER 132A PAGE786 I 5. Grantee shall provide each customer with an itemized billing statement which details all cable television charges, including but not limited to, services subscribed to and the fee for each service, and charges for additional outlets and equipment. 6. Grantee shall remove, at the request of the subscriber, any premium service for which a separate program charge to customer is made, within three (3) days after the request of a subscriber. The billing for such service shall be discontinued as of the date the system's business office receives the subscriber's request to remove such service. The removal of the service shall be reflected in the subscriber's next billing cycle. The provisions stated above shall not apply until the system upgrade referenced in this agreement is completed. Until that time, the premium service will be billed to the customer until the converter authorized to receive such service is presen- ted to the system business office or its representative. 7. Grantee shall not eliminate or interrupt service to a subscriber without the consent of a customer, provided such subscriber has paid all fees, charges or rates due to the Grantee within (30) days after billing or other notice that such fees, charges or rates are due. The Grantee shall promptly make a credit or refund of any -22- EIBER 1324 PAGE 787 I amount charged to a customer and collected by the Grantee when such an amount represents an erroneous amount billed to a subscriber when such error arises out of an act or omission of the Grantee or its agents or contractors; and 8. Repair or replace a converter or other equipment required for the receipt of cable communications service within three (3) days after the Grantee determines that such converter or other equipment does not provide the services for which the subscriber is being billed. The subscriber shall be provided a pro -rata credit for such services. The time period utilized for the credit shall start with the date the subscriber notifies the system business office of the discrepancy, and shall end with the date the proper equipment is provided. D. The City shall promptly forward to the Grantee any and all complaints or inquiries received by the City so that the Grantee may resolve such complaints as provided in this franchise. The Grantee shall resolve complaints about service within thirty (30) days after the receipt thereof from a subscriber or referral thereof by the City unless a shorter response time is required by another provision of this franchise. E. The Grantee shall explain to customers and file with the City a copy of its rules and policies relating to the provision of and billing for its services. -23- UMR1324P&GE788 is. F. Grantee shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides, in keeping with Section 621(3) of the Cable Communications Policy Act of 1984. G. The standard length of the subscriber service drop, either aerial or underground, shall be 150 feet. The installation of a subscriber service drop with a length in excess of 150 feet shall be considered non-standard, and subject to non-standard installation charges. SECTION X SERVICE STANDARDS A. All structures and all lines, equipment and connections in, over, under and upon public property shall, at all times, be kept and maintained in a safe and suitable condition and in good order and repair, in accordance with the current standards of the industry. B. The installation of the Broadband Telecommunications Network shall be in accordance with the requirements of the National Electrical Code of the National Fire Protection Associa- tion and all applicable statutes, ordinances and administrative regulations of the State of Arkansas and of the City. C. For purposes of compliance with this agreement, Grantee shall, at all times, operate its Broadband Telecommunications Network, at a minimum, in conformance with the technical speci- -24- ryQ(� LIBIR132t.4GE 89 I fications contained in the FCC Regulations, or any applicable federal statute or administrative regulation which may supersede such rules. However, Grantee shall endeavor at all times to operate its Broadband Telecommunications Network in conformance with the standards set forth below. If, during the term of this franchise, the City is authorized by applicable law to regulate Grantee's technical standards, Grantee shall at all times from the date of such authorization operate its Broadband Telecommunica- tions Network, at a minimum, in conformance with the standards set forth below: 1. Adjacent channel video carrier signal levels shall be + or - 2 db, 2. The Carrier to Noise (C/N) ratio at all operating frequencies shall be no less than 42 db, 3. Hum Modulation shall be no greater than 2%, 4. Spurious signals shall be a minimum of 55 db below peak video carriers, and 5. The system frequency response shall be at least N/10 + 3 db, where "N" equals the number of amplifiers in the cascade. D. Grantee shall monitor electromagnetic radiation emana- ting from its Broadband Telecommunications System in accordance with applicable Federal Communications Commission regulations. -25- um 1324PAGE790 I • • E. Grantee shall, on a monthly basis, perform and record necessary tests to measure conformance to the standards set forth in paragraph C above. There shall be at least one (1) test point located at the end of the five (5) major system trunk cables. The results of the tests shall be maintained in a permanent log at the Grantee's local business office. Such log shall be available for inspection by the City during normal business hours. Upon request, Grantee shall make available to the City the individual subscriber tests recorded by the Grantee. F. Grantee shall establish and provide to the City within nine (9) months of the effective date of this agreement minimum signal strength levels to be maintained at the interface point between Grantee's service drop and each customer's television set. Such minimum levels shall be utilized as a basis for comparison when the City reviews customer complaints of degraded picture quality. G. Grantee shall maintain for a period of one (1) year an electronic record -of customer complaints regarding degraded signal quality. In addition, a log shall be kept of service outages, which shall be defined as the loss of audio and video signals on one (1) or more channels to fifty (50) or more customers for a period of at least two (2) minutes. Such records and/or logs shall be available for inspection upon reasonable request by the City. -26- (IBFR1324PAGE791 . . a • H. New construction of distribution system and service drops shall be aerial, except in those areas where underground placement of electrical and phone system service drops are required. In those areas where the electric and phone utilities are aerial and Grantee maintains an aerial distribution system; and subsequently, the existing aerial utilities are placed underground, Grantee shall not be obligated to City under the terms of this Franchise to place its distribution system under- ground; and if such underground placement is mandated by the terms of Grantee's agreement with either or both of the above -mentioned utilities, Grantee shall have the right to pass through all associated costs to its subscribers. SECTION XI RIGHTS RESERVED TO THE CITY A. City Rules - The right is hereby reserved to the City to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power, provided that such regulations, by Ordinance or otherwise, shall be reasonable, and not in conflict with the rights herein granted, and shall not be in conflict with the laws of the State of Arkansas, Federal laws or regulations. B. Right of Inspection - The City may inspect all construc- tion or installation work performed pursuant to the Franchise in order to ensure compliance with the terms of the Franchise. -27- UBER 1324PAGE792 is SECTION XII FRANCHISE TRANSFER No rights or obligations of the Grantee pursuant to this Franchise or in the Broadband Telecommunications Network shall be assigned, transferred, pledged, leased, sublet, or mortgaged in any manner, in whole or in part, to any person, nor shall title thereto, either legal or equitable, or any right of interest therein, pass to or vest in any person, nor shall any change in control of the Grantee occur, either by act of the Grantee, by operation of law, or otherwise, without the prior consent of the Board; such consent not to be unreasonably withheld. Any such action completed without the prior consent of the Board shall be null and void. The grant or waiver of any one or more of such consents shall not render unnecessary any subsequent consent or consents, nor shall the grant of any such consent constitute a waiver of any other rights of the City. In the event that the Grantee shall desire to transfer or assign the franchise or any of the rights, privileges, or immunities contained therein, to any existing operator of a telecommunications network, in the City, the Board expressly reserves the right to disapprove such transfer or assignment on any grounds stated elsewhere herein, and also the Board may consider the impact which said transfer would have upon the availability of modern cable communications facilities to sub- scribers generally within the City, as well as the impact of such transfer would have upon competition. -28- ERt3241'793 4RGE 193 I . The Grantee shall promptly notify the City Manager of any proposed action requiring the consent of the Board pursuant to this section, by submitting to the City Manager, with a copy to the City Attorney, a petition requesting the approval of the Board. The petition shall fully describe the proposed action and shall be accompanied by a justification for the action and such additional supporting information as the City Manager, the Board, or the City Attorney may require in order to review and evaluate the proposed action. Upon review of the petition, the City Manager shall submit the petition to the Board together with a recommendation for action on the petition. After receipt of the petition for consent, the Board shall schedule a public hearing on the petition. For the purpose of determining whether it shall grant its consent, the Board may inquire into: (i) the qualifications of each person involved; and (ii) all matters relevant to whether said person will adhere to all applicable provisions of this Franchise, and (iii) all other relevant matters. The Grantee shall provide all requested assistance to the Board in connection with any such inquiry and, as appropriate, shall secure the cooperation and assistance of all persons involved in said action. If the Board does not act upon the transfer within (90) days of the date of the Grantee's notification to the City Manager, the transfer shall be deemed to have been approved. (IBER 1324PncE 794 -29- 1 • S' • l• As a condition to the granting of any consent required hereby, the Board may require that each person involved shall execute an agreement, in a form and containing such conditions as may be specified by the Board, providing that said person assumes and agrees to be bound by all applicable provisions of this ordinance. The execution of said agreement by said person shall in no way relieve the Grantee or any other transferor involved in any action described herein, of its obligations under this ordinance without the consent of the Board. Nothing in this section shall be deemed to prohibit any assignment, pledge, lease, sublease, mortgage, or other transfer of all or any part of the Broadband Telecommunications Network, or any right or interest therein, for financing purposes, provided that each such assignment, pledge, lease, sublease, mortgage, or other transfer shall be subject and subordinate to the rights of the City pursuant to this Franchise and other applicable law. The restrictions against assignment and transfers shall not apply when the assignment or transfer is to an entity under the same ultimate control as the Grantee. SECTION XIII FRANCHISE RENEWAL Subject to Section 626 of the Cable Act, the City reserves the absolute right to grant or refuse to grant any renewal of the franchise following the expiration of the initial term of the -30- UBER 1324Ph@GE795 franchise and to condition any such renewal upon the Grantee's agreement to comply fully with all amendments or other modifica- tions to this Franchise as may be specified by the Board. At any time prior to the expiration of the initial term of the franchise, the City and the Grantee may agree to renegotiate all or any part of this Franchise. As a result of such a renego- tiation, the City may grant a renewal of the franchise for a period of up to five (5) additional years subject to the Grantee's agreement to comply fully with all amendments or other modifications to this Franchise as may be specified by the Board. Unless the Grantee or the City has exercised its right to commence renewal proceedings pursuant to Section 626(a) of the Cable Act, then not less than twenty-four (24) months prior to the expiration of the initial term of the franchise and any subsequent renewal of the franchise following the initial term of the franchise, the City Manager shall notify the Grantee, in writing of the date upon which the term of the franchise will expire. Not more than six (6) months after receipt of said notice, the Grantee shall notify the City, in writing, of its intention to seek or not to seek a renewal of the franchise pursuant to Section 626(h) of the Cable Act. If the Grantee intends to seek a renewal of the franchise other than in accordance with Section 626 (a) through (g) of the Cable Act, it shall file a petition to that effect with the Board. in the event that the notice from the Grantee specifies that the Grantee shall not seek any renewal or in the event that the -31- EIBER I324PAGE796 Grantee fails to provide said notice within the aforementioned six (6) month period, said notice or failure to provide notice shall constitute an irrevocable waiver of any rights the Grantee would otherwise have regarding further renewal of the franchise. SECTION XIV FRANCHISE FEE PAYMENT A. Grantee shall pay to the City an annual franchise fee equal to five percent (5%) of its annual gross revenues as described in Section II -I. B. Payment of the five percent (5%) franchise fee shall be made to the City on a calendar, quarterly basis; within thirty(30) days following the end of each calendar quarter. All payments shall be accompanied by a certified detailed statement of receipts upon which the franchise fee has been calculated. C. Delinquent franchise fees shall bear interest at an annual rate equivalent to the maximum rate allowed under appli- cable Arkansas law. D. The City shall, according to applicable law, have access at all reasonable hours to all of the Company's physical system plans, and engineering, accounting, financial, statistical, customer and service records relating to the property and the operation of the Fayetteville system, and to all other records required to be kept hereunder. All, such information shall be kept confidential by the City to the extent permissible under Arkansas law. The following records and reports shall be filed with the City Clerk and in the system business office of the Grantee: -32- EIBEP 132IPAGE797 • 11 • • 1. System Subscriber Rules and Regulations. Copies of such subscriber rules, regulations, terms and conditions adopted by the System for the conduct of its business. 2. Gross Revenues. An annual summary report certified correct by a financial officer of the Grantee, showing gross revenues by the system from its operation within the City during the preceding year. E. No acceptance of any payment shall be construed as a release, or as an accordance and satisfaction, of any claim the City may have for further or additional sums payable under this section. SECTION XV A. Grantee hereby agrees to upgrade the existing distribu- tion system to a capacity of 400 MHz, with a corresponding capacity of 54, 6 MHz channels. The system shall be addressable and capable of delivering signals in stereo. B. The upgraded system shall be available to all households which are passed by Grantee's system on February 21, 1989 no later than nineteen (19) months after the adoption of the ordinance approving this agreement. In the event the upgraded system is not completed within the time specified herein, the Grantee shall pay to the City liquidated damages in the amount of $100.00 per day; provided, however, Grantee shall be entitled to a three (3) month extension of the upgrade period specified herein, if the delay is due to no fault of the Grantee. -33- pp EIBER 1324PAcE798 C. Grantee does not waive its rights under the Cable Communications Policy Act of 1984 to determine specific pro- gramming services to be offered to subscribers on the upgraded system; however, Grantee shall offer as basic services the following broad categories of programming: one of each of the major network affiliates; one Little Rock, Arkansas, network affiliate broadcast station; public broadcast station; independent broadcast station; satellite - children's programming channel; satellite - music/cultural programming channel; satellite - sports programming channel; satellite - national public affairs channel; satellite - news programming channel; and, satellite - home shopping channel; provided, Grantee shall have the right to change the broad categories of programming offered as basic services upon any legal, regulatory or economic occurrence that substantially affects Grantee's ability to continue to provide such programming as basic services. D. Prior to commencing construction work related to the upgrade of the cable television system, Grantee shall submit to the City for its approval a detailed design and construction plan which identifies phases of construction and customer conversions. During the City's approval process, time requirements related to the cable system upgrade shall be stayed. -34- IIPIR13 4p4GE799 r •• • •1• • a 1 . • 1 • • . , SECTION XVI EMERGENCY OVERRIDE SYSTEM Grantee shall continue to work with the City to ensure the effective operation of the Emergency Override System which exists as of the effective date of this Ordinance. SECTION XVII SUPPORT FOR PUBLIC ACCESS A. Grantee agrees to activate and make available to the City at no cost three (3) channels for access programming, as follows: Government Access, Educational Access and Public Access. The City shall regulate the use of said access channels. B. Grantee agrees to provide to the City, within sixty (60) days after the effective date of this Franchise, a one-time payment in the amount of $230,000.00 to be utilized for the construction, purchase and/or renovation of a City -owned building to be utilized for access programming purposes. In addition, Grantee agrees to provide to the City on the fifth and tenth anniversaries of the effective date of this Franchise, $35,000.00 payments to be utilized for capital expenses associated with access facilities. C. Within four (4) months after a written request is received from the City, but no earlier than ten (10) months from the effective date of this Franchise, Grantee shall activate the equipment necessary to transport one (1) six Megahertz channel of audio and video signals from the University of Arkansas Continuing Education Center to Grantee's headend. Grantee shall provide the -35- FIBER 1q')4PAGE8OO headend equipment necessary to process the audio and video signals and place them on the Educational Access channel. D. Grantee shall provide a similar active return capability under the same terms and conditions as stated in "C" above for the Fayetteville public high school building (East Campus) and Walton Arts Center. E. Grantee shall continue to maintain the active return capability from the City Administration Building and the County Courts building. F. Grantee shall maintain the active return capability from the current Fayetteville Open Channel Facility until the access facility referenced in •Section XVII-B of this Franchise is activated for the production of access programming by the City. Grantee shall provide and maintain an active return capability from the facility referenced in Section XVII-B of this Franchise, commencing with the activation of the facility for the production of access programming. SECTION XVIII PUBLIC SERVICE In consideration of the granting of this Franchise to the Grantee, the Grantee shall furnish without monthly fee, basic service outlet connections to existing public buildings, as designated by the City, as well as one outlet to each existing public school currently passed by the Broadband Telecommunications Network. The Grantee further agrees to furnish without monthly -36- 111ALa2A PAGE801 • fee, one basic service outlet connection to new municipal and/or school buildings, if it is economically and technically feasible to do so, but reserves the right to charge an installation fee for any non-standard installation that may be required. SECTION XIX TERMINATION OF FRANCHISE A. Grounds for Termination - Subject to subsection B below, the city reserves the right to terminate this Franchise and rescind all rights and privileges associated with the Franchise in the following circumstances, each of which shall represent a default and breach under this Ordinance and the franchise grant: i. If the Grantee should default in the performance of any of its obligations under Sections V, VI, VII, VIII, IX, X. XII, XIV, XV, XVI, XVII, XVIII, XX, and XXIV of this Franchise. 2. If the Grantee ceases to provide service over the Broadband Telecommunications Network without cause, except for circumstances beyond the control of Grantee. B. Procedure Prior to Termination - The City may not terminate this Franchise unless reasonable written notice is given by the City to Grantee of Grantee's default; and Grantee shall be given ninety (90) days, or a longer period of time as may be required and reasonable, after receipt of said written notice to remedy and cure such default. The franchise shall remain in effect pending full due process proceedings and any appeal by Grantee to a court of competent jurisdiction. -37- HOER 1324 PAGE 802 • 1 . . C. Restoration of Property - In removing its plant, structure and equipment, the Grantee shall refill at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee's removal of its equipment and appliances, without affecting any electrical or telephone cables, wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cable wires, attachments and poles after removal. The liability insurance and indemnity as provided under Section VI herein shall continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this subsection and this Ordinance. D. Restoration by City, Reimbursement of Costs - In the event of a failure by the Grantee to complete any work required by subsection C above the City may cause such work to be done and the Grantee shall reimburse the City the costs thereof within thirty (30) days after receipt of an itemized list of such costs. SECTION XX SERVICE RATES A. No less than thirty (30) days prior to the effective date of any change in any rate, the Grantee shall (i) provide notice of the rate change to the City Manager; and (ii) provide notice of the rate change to each affected subscriber and other person utilizing the affected service. -38- USER 1324PAGE 803 •1 B. Subject to applicable law, Grantee shall establish rates that are nondiscriminatory within the same general class of subscribers which must be applied fairly and uniformly for all services. Nothing contained herein shall prohibit the Grantee from offering (i) discounts to commercial and multiple family dwelling subscribers billed on a bulk basis; (ii) promotional discounts; or (iii) reduced installation rates for subscribers who have multiple services. C. Neither the Grantee nor any Affiliated Person shall deny access to any service to any group of existing or potential residential subscribers because of the income or the residents of the area in which such group resides. D. To the extent applicable law or regulation may now, or as same may hereafter be amended, to authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law; provided, however, that prior to such rate regulation, the City Board shall enact a resolution which specifically details the City's decision to regulate service rates as authorized by this section. Such resolution shall also prescribe the procedures to be utilized by the City in the regulation of applicable service rates, and shall be introduced and acted upon according to Arkansas law; but under no condition will such a resolution be enacted without a public hearing. -39- (IBEB1324PAGE804 1• E. The City's regulatory authority shall be exercised by the Board, in the public interest, in a manner that does not impair the Grantee's ability to offer services or to derive a reasonable profit from the overall operation of the Broadband Telecommunications Network. SECTION XXI SEPARABILITY A. Non -Material Provision - If any provision of this agreement is held by any court or by any Federal, State or local agency of competent jurisdiction to be invalid as conflicting with any Federal, State or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered non -material by the City and the Grantee, said provision shall be considered a separate, distinct and independent part of this ordinance, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provisions hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, provided that the City shall give the Grantee thirty (30) days written notice of such change before requiring compliance with said provision. -40- UBER 1324PAGE805 . • I. • 1 B. Material Provision - If any material section of this agreement, as determined by the City or the Grantee, is held to be invalid or preempted by Federal, State or County regulations or laws, resulting in a material adverse consequence to either party, the City and Grantee shall attempt to negotiate appropriate modifications to the franchise to provide reasonable relief to the City or Grantee from such invalidity or preemption. SECTION XXII FORCE MAJEURE If for any reason of force majeure either party is unable in whole or in part to carry out any of its obligations contained in this franchise, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall have the following meaning: strikes; acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of Arkansas or any of their departments, agencies, or political subdivisions; riots; epidemics; landslides; 'Lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; arrests; civil disturbances; explosions; partial or entire failure of utilities; or any other cause or event not reasonably within the control of the disabled party. -41 IIBFRl324F GE806 " " w 4 • Y SECTION XXIII REIMBURSEMENT OF EXPENSES a In addition to the five percent (5%) franchise fee provided hereunder, the Grantee shall reimburse the City for any and all reasonable and necessary expenses expended and documented by the City for engineers, experts and attorneys employed by the City in connection with the granting of this Franchise, or in connection with any renewal, renegotiation, amendment or other modification of this Franchise initiated by the Grantee; such amount not to exceed $40,000.00 during the term of this Agreement. SECTION XXIV EFFECTIVE DATE This Franchise shall be effective on the first day of the twentieth month after the adoption of the ordinance approving this franchise. YIN WITNESS WHEREOF this agreement has been executed this 7th ay bfarch , 1989. r • .' w ,, .�' CITY OF FAYETTEV LLE, ARKANSAS L • 4.;: T S •a!l 'y By: Mayor Att�sti I Ci lerk WARNER CABLE COMMUNICATIONS, INC. By Ti Attest: Title: ssi tant Secretary -42- LIBER 1324PAGE807 CERTIFICATE OF RECORD State of Arkansas ( SS City of Fayetteville I, Suzanne C. McWethy, City Clerk and Ex -Officio recorder for the City of Fayetteville, do hereby certify that the annexed or fore- going is of record in my office and the same ap- pears in Ordinance & Resolution book X_V at page 1 Witness my had and seal thisday of T 19 y er and ExC fbcio Recorder . -- I, Alma-Knllmey�r, C. c.,d : -x-officio RecoN_er for w'_t;, Arkansas, do h ereby,.c^orfo stralnenf was filed fur record -r as ind)rpled here© tnd he s,. duly recofdad y,Ih the a<;: ..v.,.' and certificate thereon i. Page as indicated thereon. IN WITNESS \'.'HEU' F, • . Set my hand and affix?;: j.,c s t s..id Court on the date indicator h„rcon. Alma Kollmeyer Circuit Clerk and Ex -officio Recordar by