CATV - CABLE TELEVISION (10)
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ORDINANCE NO. 6108-96
AN ORDINANCE GRANTING TO TIME WARNER
ENTERTAINMENT - ADVANCE/NEWHOUSE PARTNERSHIP THE
PERMISSION TO OCCUpy MUNICIPAL STREETS AND RIGHTS-
OF-WAY IN THE CITY OF CLEARWATER, FLORIDA, AS A
MEANS OF PROVIDING CABLE TELEVISION SERVICES;
PRESCRIBING THE TERMS AND CONDITIONS ACCOMPANYING
THE GRANT OF FRANCHISE; AND PRESCRIBING PENALTIES
FOR THE VIOLATION OF ITS PROVISIONS; PROVIDING FOR
SEVERABILITY OF PROVISIONS; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF CLEARWATER,FLORIDA:
Section 1 -- Findings
Pursuant to the procedures in the Cable Act (as defined in
Section 3), the Grantor (as defined in Section 3) has determined to
renew the existing cable television franchise originally granted to
Vision Cable of pinellas, Inc. and subsequently transferred to Time
Warner Entertainment - Advance/Newhouse Partnership (the "Grantee")
(Ordinance No. 2084) on the terms and conditions set forth in this
Ordinance, and the Grantee agrees to such terms and conditions.
Section 2 -- Short Title
This Ordinance shall be known and may be cited as the "Time
Warner Entertainment-Advance/Newhouse Partnership Cable Television
Franchise."
Section 3 -- Definitions
phrases,
herein.
present
include
include
and not
For purposes of this Ordinance, the following terms,
words, and their derivations shall have the meaning given
When not inconsistent with the context, words in the
tense include the future, words in the plural number
the singular number and words in the singular number
the plural number. The word "shall" is always mandatory
merely directory.
"Abandonment" means: (i) the cessation, by act or failure
to act of the Grantee of the provision of all, or substantially
all, of the Services then being provided over the System to
Subscribers or the Grantor for twenty-four (24) or more consecutive
hours, except if due to an event beyond the control of the Grantee;
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or (ii) the completion of any action described in Section 14 of
this Ordinance without the prior written consent of the Grantor.
IIAffiliated Personll 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, limited partner holding an interest of twenty-five percent
(25%) or more, joint venturer or joint venture partner, of the
Grantee; and (iv) each Person, directly or indirectly, controlling,
controlled by, or under common Control with, the Grantee; provided
that IIAffiliated Person II shall in no event mean the Grantor, the
entity, if any, administering some or all of the Access Channels,
any limited partner holding an interest of less than twenty-five
percent (25%) 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 management,
or common Control with, the Grantee.
IIBasic Service II means that level of Cable Services
distributed over the Subscriber Network, which, at a minimum, shall
include: (i) all Signals carried on the System in fulfillment of
the requirements of Sections 614 and 615 of the Cable Act (47
U.S.C. ~~ 534 and 535, respectively); (ii) any Access Channel
programming required by this Ordinance to be provided to
Subscribers; (iii) any Signal of any broadcast station provided by
the Grantee to any Subscriber, except a Signal which is secondarily
transmitted by a satellite carrier beyond the local service area of
such station; and (iv) any other Cable Services offered as basic
service.
IICable Actll means the Cable Communications Policy Act of
1984, 47 U.S.C. ~~ 521-611 (1991) and any amendments thereto and
the Cable Television Consumer Protection and Competition Act of
1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992), codified at 47
U.S.C. ~~ 151-611 (1993) and any amendments thereto, both of which,
among other things, are amendments to the Communications Act of
1934, 47 U.S.C. ~~ 151-611 (1991).
IICommunications Systemll means any facility, consisting of
a set of closed transmission paths and associated signal
generation, reception and control equipment, a function of which is
to provide Cable Services by receiving through any means,
including, without limitation, coaxial cable, optical fiber,
antenna, or satellite or microwave transmission, and distributing
video, audio, voice, or data Signals, whether originating within
the Franchise Area or elsewhere. The foregoing definition of
IICommunications System" shall not be deemed to circumscribe the
valid authority of any governmental body, including the Grantor, to
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regulate the activities of any other communications system or
provider of communications services.
"Cable Service" means: (i) the one-way transmission to
Subscribers of video programming or other programming service and
(ii) Subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming
service.
"Channel" means a band of frequencies in the electromagnetic
spectrum, or any other means of transmission (including, without
limitation, optical fibers or any other means now available or that
may become available), which is capable of carrying a video Signal,
an audio Signal, a voice Signal, or a data Signal.
"Control" or "Controlling Interest" means actual working
control in whatever manner exercised, including, without
limitation, working control through ownership, management, debt
instruments, or negative control, as the case may be, of the
System, the Franchise or the Grantee.
"Economically and Technically Feasible and Viable" means
capable of being provided: (a) through technology which is readily
available with reasonable delivery schedules from two (2) or more
sources of supply and has been demonstrated in actual operating
conditions (not simply through tests or experiments) to operate in
a workable manner; and (b) in a manner which has a reasonable
likelihood of generating a reasonable return on the Grantee's
investment when measured over the remaining term of the Franchise.
"FCC" means the Federal Communications Commission, its
designee, or any successor thereto.
"Franchise Area" means the area consisting of the corporate
limits of the City of Clearwater, as its borders may be changed
from time to time.
"Grantee" means Time Warner Entertainment - Advance/Newhouse
Partnership, a partnership duly organized and validly existing
under the laws of the State of New York, whose principal, place of
business is located at 300 First Stamford Place, Stamford,
Connecticut 06902.
"Grantor" means the City of Clearwater, Florida, or, as
appropriate in the case of specific provisions of this Ordinance,
any board, bureau, authority, agency, commission, department of, or
any other entity of or acting on behalf of, the City of Clearwater,
Florida, or any officer, official, employee, or agent thereof, any
designee of any of the foregoing, or any successor thereto.
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"Gross Revenue" means all revenue, as determined in
accordance with generally accepted accounting principles, including
advertising revenue, which is received, directly or indirectly, by
the Grantee, by any Affiliated Person, and any other Person from or
in connection with the distribution of any Service on the System or
the provision of any service related activity in connection with
the System. Gross Revenue shall not include the revenue of any
Affiliated Person or other Person, including, without limitation,
a supplier of programming of the Grantee, to the extent that said
Revenue is also included in Gross Revenue of the Grantee.
"Pay service" means any Cable Service offered on a per
Channel or per program basis.
"Person" means any natural person or any association, firm,
partnership, joint venture, corporation, or other legally
recognized entity, whether for-profit or not-for-profit, but shall
not mean the Grantor.
"Responsible Franchising Official" means the body,
organization or official to whom the applicable rights or
obligations have been delegated by the Grantor pursuant to
applicable law.
"Rights-of-Way" means all of the public streets, alleys,
highways, waterways, bridges, easements, sidewalks and parks of the
City of Clearwater, as they now exist or may be hereafter
constructed, opened, laid out or extended within the present limits
of the City, or in such territory as may hereafter be added to,
consolidated or annexed to the City.
"Service" means any Cable Service, including any Basic
Service, or any other service, including the provision of any
equipment and any installation of equipment or facilities and
monthly use thereof, whether originated by the Grantee or any other
Person, which is offered to any Person in conjunction with, or
distributed over, the System.
"Signal" means any transmission of radio frequency energy
or of optical information.
"State-of-the-Art" or "State of the Art," as applicable,
means that level of technical or service performance, capacity and
capability (including, but not limited to, plant or other
equipment; construction techniques; customer service; facilities,
equipment, systems and operations; and performance standards) which
has been developed and demonstrated in the cable industry to be
workable and Economically and Technically Feasible and Viable from
time to time throughout the term of the Franchise.
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"Subscriber" means any Person lawfully receiving any Service
provided by the Grantee by means of or in connect ion wi th the
System, whether or not a fee is paid for such Service.
"Subscriber Network" means that portion of the System over
which Services are provided primarily to residential Subscribers.
"System" means the Communications System which is to be
constructed, operated, maintained and upgraded, as necessary, by
the Grantee pursuant to this Ordinance, including, without
limitation, all real property, all tangible and intangible personal
property, buildings, offices, furniture, Subscriber lists, cables,
amplifiers and all other electronic devices used in connection
therewith and all. rights, contracts and understandings with regard
to any matter related thereto.
Section 4 -- Grant of Authority
(A) There is hereby granted by Grantor, to Grantee, the
rights and privilege to construct, erect, operate, own and
maintain, in, upon, along, across, above, over and under Rights-of-
Way now laid out or dedicated, and all extensions thereof, and
additions thereto in the Grantor, poles, wires, cables, underground
conduits, manholes and other communication fixtures and utility
structures necessary or proper for the maintenance and operation of
the System in accordance with the provisions of this Ordinance.
This Franchise is awarded subject to all applicable provisions of
general or special laws of Florida and the federal laws and
regulations.
(B) This Franchise is for use by Grantee of Grantor's
Rights-of-Way to provide Cable Services only and only within the
Franchise Area.
(C) The Franchise is nonexclusive. Nothing in this
Ordinance shall affect the right of the Grantor to grant to any
Person, or to itself, a franchise, consent, or right to occupy and
use the Rights-of-Way, or any part thereof, for the construction,
operation, or maintenance of all or any part of a Communications
System within the Franchise Area or for any other purpose.
(D) This Section 4(0) shall be applicable if the Grantor
exercises its right to grant to any third party one or more
franchises for the construction, operation or maintenance of a
cable system pursuant to the Cable Act, and shall be implemented
consistent with Section 166.046 of the Florida Statutes
(Municipalities Definitions; minimum standards for cable
television franchises imposed upon counties and municipalities) .
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If the Grantor exercises its right to grant to any third
party one or more franchises (hereinafter "Additional Cable
Franchise Ordinance") for the construction, operation or
maintenance of a cable system pursuant to the Cable Act and the
Grantee believes the Additional Cable Franchise Ordinance pursuant
to which such Additional Cable Franchise Ordinance is granted
bestows benefits and imposes burdens on the franchisee which, taken
asa whole, are materially more advantageous to such third party
than the benefits bestowed and burdens imposed on the Grantee by
this Ordinance, taken as a whole, are to the Grantee, then the
Grantee may request that the Grantor make a determination to such
effect and, in the event of such a determination, renegotiate the
terms and conditions of this Ordinance as provided below. The
Grantee may only request such a determination if the Grantee is in
substantial compliance with the material provisions of this
Ordinance.
In the event of such a request, the Grantor shall determine,
under its standard procedures, whether the Additional Cable
Franchise Ordinance bestows benefits and imposes burdens on the
third party which, taken as a whole, are materially more
advantageous to the third party than the benef i ts and burdens
imposed by this Ordinance, taken as a whole, are to the Grantee.
In making a determination under this subsection, the Grantor
may consider factors such as, but not limited to: (i) the term of
each franchise; (ii) the franchise fee to be paid by each
franchisee, including the Grantee; (iii) differences in
construction, operational and maintenance costs; (iv) differences
in required system characteristics, including state-of-the-art
requirements; (v) differences in service obligations, including
public, educational and governmental access and institutional
service requirements; (vi) differences in permitted company fees
and charges; and (vii) such other factors and considerations as it
considers to be relevant to an inquiry into the overall economic
comparability of the agreements.
If the Grantor determines that the Additional Cable
Franchise Ordinance bestows benefits and imposes burdens on the
third party, which, taken as a whole, are materially more
advantageous to the third party than the benefits bestowed and
burdens imposed by this Ordinance, taken as a whole, are to the
Grantee, then upon the Grantee's request, the Grantor and the
Grantee shall enter into good faith negotiations to seek to modify
this Ordinance to bestow benefits and impose burdens which, taken
as a whole, create overall economic comparability between this
Ordinance and the Additional Cable Franchise Ordinance.
(E) Nothing in this Ordinance shall be construed to
prohibit the Grantor from (i) operating as a multichannel video
programming distributor in the Franchise Area, notwithstanding the
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granting of one or more franchises by the Grantor or (ii) requ1r1ng
the Grantor to secure a franchise to operate as a multichannel
video programming distributor.
(F) Nothing in this Ordinance shall (i) abrogate the right
of the Grantor to perform any public works or public improvements
of any description, (ii) be construed as a waiver of any codes or
ordinances of the Grantor or of the Grantor's right to require the
Grantee or any Person utilizing the System to secure the
appropriate permits or authorizations for such use, or (iii) be
construed as a waiver or release of the rights of the Grantor in
and to the Rights-of-Way. In the event that all or part of the
Rights-of-Way within the Franchise Area are eliminated,
discontinued and closed, the Franchise shall cease with respect to
such Rights-of-Way upon the effective date of the final action of
the Grantor with respect thereto.
(G) Nothing in this Ordinance authorizes the Grantee to
provide noncable services. The Grantee shall if required by
applicable law petition the Grantor for the authority to provide
noncable services, and the Grantor may grant such authority on
terms and conditions that the Grantor reasonably determines are
appropriate in the circumstances.
Section 5 -- Ter.m of Franchise
(A) The Franchise and rights herein granted shall take
effect and be in force from and after the final passage hereof, as
required by law and upon the filing of an acceptance by Grantee of
all the terms thereof with the Grantor and shall, unless sooner
terminated pursuant to this Ordinance or applicable law, continue
in force and effect for a term of fifteen (IS) years after the
effective date of this Franchise.
(B) Subject to Section 626 of the Cable Act (47 U.S.C.
~ 546), the Grantor reserves the right to grant or deny renewal of
the Franchise.
Section 6 -- Compensation and Other Payments
(A) As compensation for the Franchise, the Grantee shall
pay, or cause to be paid, to the Grantor the amounts set forth in
this Section 6{A)--
(I) The Grantee shall pay to the Grantor franchise
fees of Five Percent (5%) or the maximum amount permitted
by the Cable Act, if hereafter adopted by resolution of the
Grantor.
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\:'~.:Y (2)) All such payments of francLise ~s shall be
made on a quarterly basis and shall be remitted
simultaneously with the submission of the Grantee's
quarterly report required pursuant to Section 6(A) (3).
(3) The Grantee shall submit to the Grantor a
report, in such form and containing such detail as the
Grantor shall reasonably require, not later than thirty
(30) days after the last day of each quarter throughout the
term of this Ordinance setting forth the Gross Revenue for
the preceding quarter.
(4) No acceptance of any franchise fee payment by
the Grantor shall be construed as an accord and
satisfaction that the amount paid is in fact the correct
amount or a release of any claim that the Grantor may have
for further or additional sums payable under this
Ordinance, and all amounts paid shall be subject to audit
and recomputation by the Grantor.
If, as a result of such audit or any other review,
the Grantor determines that the Grantee has underpaid its
fees in any twelve (12) month period by ten percent (10%)
or more, then, in addition to making full payment of the
relevant obligation, the Grantee shall reimburse the
Grantor for all of the reasonable costs associated with the
audit or review, including all reasonable out-of-pocket
costs for attorneys, accountants, and other consultants.
(5) If the Grantee collects from Subscribers any
amounts to be paid to any Person for the provision of
Services on the System that do not fall within the
definition of Gross Revenue, the Grantee shall deduct the
same percentage from such amounts as the then-applicable
franchise fee percentage pursuant to Section 6 (A) (1) and
include such deducted amounts in its payment to the Grantor
pursuant to this Section 6(A) and include such payments in
its report pursuant to Section 6(A) (3).
(6) The Grantee shall ensure, through contract Or
other arrangement, that any Person other than the Grantee
who collects from Subscribers amounts that would constitute
Gross Revenue if received directly by the Grantee (e.g.,
from a Person who leases a channel pursuant to Section 612
of the Cable Act but not to include revenues from the sale
of merchandise) is required to remit to the Grantor
quarterly a percentage of such amounts collected which is
equal to the then-applicable franchise fee. Such contract
or arrangement must also require the Person to submit a
quarterly report which meets the requirements of Section
6(A) (3) and must entitle the Grantor to enforce the fee and
reporting requirements directly against the Person.
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(B) The parties agree that the compensation and other
payments to be made pursuant to this Section 6 and any other
provision of this Ordinance are not a tax and are not in the nature
of a tax and are in addition to any and all taxes of general
applicability or other fees or charges (including any fees or
charges which may be imposed on the Grantee for the use of poles,
conduits or similar facilities that may be owned or controlled by
the Grantor) which the Grantee or any Affiliated Person shall be
required to pay to the Grantor.
(C) If any payment required by this Ordinance is not
actually received by the Grantor on or before the applicable date
fixed in this Ordinance or by the Grantor, the Grantee shall pay
interest thereon, from the due date to the date paid at a rate of
one percent (1%) per month, compounded monthly, for the period of
delinquency.
(D) In the event the Grantee continues to operate all or
any part of the System after the term of the Franchise, then the
Grantee shall continue to comply with all applicable provisions of
this Ordinance, including, without limitation, all compensation and
other payment provisions of this Ordinance, throughout the period
of such continued operation, provided that any such continued
operation shall in no way be construed as a renewal or other
extension of the Franchise.
(E) The Grantee has paid or arranged to pay, in a manner
satisfactory to the Grantor, a grant in the amount of Fifty
Thousand Dollars ($50,000.00) that can be used for any lawful
purpose.
Section 7 -- The System
(A) The Grantee shall construct, operate, maintain, and
upgrade the System as provided in this Ordinance.
(B) The Grantee shall rebuild the System on the schedule
and as otherwise provided in Appendix A. Upon completion of the
rebuild, the System shall be capable of providing Seventy-nine (79)
activated downstream video Channels, and a minimum upstream
capacity of 350 MHz, an emergency override mechanism, and the other
characteristics set forth on Appendix A.
(C) The Grantee shall construct, operate, maintain and
upgrade the System such that it is capable of transmitting and
receiving signals to and from any other Communications System in
the City of Clearwater.
(D)
Appendix B
The Grantee shall comply with the terms set forth in
in connection with all work involved in the
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construction, operation, maintenance, repair, upgrade, and removal
of the System, in addition to any other requirements or procedures
reasonably specified by the Grantor. All work involved in the
construction, operation, maintenance, repair, upgrade, and removal
of the System shall be performed in a safe, thorough and reliable
manner using materials of good and durable quality. If, at any
time, it is determined by the Grantor or any other agency or
authority of competent jurisdiction that any part of the System,
including, without limitation, any means used to distribute Signals
over or within the System, is harmful to the health or safety of
any Person, then the grantee shall, at its own cost and expense,
promptly correct all such conditions.
(E) Neither the Grantor nor its officers, employees,
agents, attorneys, consultants or independent contractors shall
have any liability to the grantee or any Affiliated Person for any
liability unless such liability arises because of the willful
misconduct or gross negligence of the Grantor or its officers, as
a result of or in connection with the protection, breaking through,
movement, removal, alteration, or relocation of any part of the
System by or on behalf of the grantee or the Grantor in connection
with any emergency, public work, public improvement, alteration of
any municipal structure, any change in the grade or line of any
Street, or the elimination, discontinuation, and closing of any
Street, as provided in this Ordinance.
(F) Performance Bond--
(1) To ensure that the operation of the System
continues in an orderly and uninterrupted manner in the event of a
default by the Grantee, and for the other purposes specified in
Section 7(F) (3) hereof, the Grantee shall arrange for, and shall
maintain throughout the term of this Ordinance, a performance bond
solely for the protection of the Grantor, with a corporate surety
and trust company acceptable to the Director, as provided in this
Section.
(2) The performance bond shall be in a face amount of
not less than Fifty Thousand Dollars ($50,000.00).
(3) The performance bond shall indemnify the Grantor,
up to the full face amount of the bond, for: (i) the cost to
continue any upgrade of the System in the Franchise Area and to
maintain operation of the System following a termination of this
Ordinance up to the date upon which the face amount of the bond,
plus all net revenue actually received through the continued
operation of the System during said period, have been exhausted;
(ii) any loss or damage to any municipal structure during the
course of any construction or operation of the System; (iii) any
other costs, or loss or damage actually incurred by the Grantor as
a result of the Grantee's failure to perform its obligations
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pursuant to this Ordinance; and (iv) the removal of all or any part
of the System from the Rights-of-Way; (v) the payment of
compensation set forth in this Ordinance; (vi) the payment of
premiums for the liability insurance required pursuant to this
Ordinance; (vii) the removal of the System from the property of the
Grantor at the termination of this Ordinance, at the election of
the Grantor, pursuant to this Ordinance; (viii) the payment to the
Grantor of any amounts for which the Grantee is liable pursuant to
Section 16 which are not paid by the Grantee's insurance; (ix) the
payment of any other amounts which become due to the Grantor
pursuant to this Ordinance or law; and (x) any costs, losses or
damages incurred by the Grantor as a result of a default of the
Grantee's obligations under this Ordinance.
(4) The performance bond shall be in a form approved
by the City Attorney. Such approval shall not be unreasonably
withheld. Such bond shall provide that it may not be cancelled
without the consent of the Grantor. The Grantor will be given
sixty (60) days written notice by registered mail, return receipt
requested of intent to cancel or not renew this bond.
(5) The faithful performance by and the liability of
the Grantee pursuant to this Ordinance shall not be limited by the
acceptance of the bond required by this Section 7(F) .
(6) Throughout the term of this Ordinance, or for as
long as the Grantee operates the System, whichever period is
longer, and for at least ninety (90) days thereafter, the Grantee
shall maintain the performance bond in the amount specified in this
Section 7(F) (2). Within fifteen (15) business days after receipt
of notice from the Grantor that any amount has been withdrawn from
the performance bond, as provided in this Section, the Grantee
shall restore the performance bond to the amount required pursuant
to Section 7 (F) (2), provided that said restoration obligation shall
be suspended during the period of any judicial challenge by the
Grantee to the propriety of said withdrawal from the performance
bond. If a court determines that said withdrawal by the Grantor
was improper, the Grantor shall restore the improperly withdrawn
amount to the performance bond.
(7) The Grantor shall have the right to withdraw
amounts from the performance bond to cure any breaches of
obligations for which the performance bond acts as security,
provided, however, that the Grantor shall not make any withdrawals
by reason of any breach for which the Grantee has not been given
written notice and an opportunity to cure pursuant to Section 15 of
this Ordinance, including notice that the Grantor may make a
withdrawal from the performance bond. The withdrawal of amounts
from the performance bond shall constitute a credit against the
amount of the applicable liability of the Grantee to the Grantor
but only to the extent of said withdrawal.
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Section 8 -- Service Obligations
(A) The Grantee shall make all Cable Services distributed
over the System available to all Persons within the Franchise Area
who request service, including, without limitation, Marina Harbor
and Harbor View Center. Extension to new subdivisions or
developments within the Franchise Area shall be commenced within
thirty (30) days after a request for service and service shall be
activated within ninety (90) days, unless the Grantor consents to
some other time period.
(B) Throughout the term of the Franchise, the Grantee shall
endeavor to offer to all Subscribers a diversity of video
programming services.
(C) The Grantee shall not discriminate or permit
discrimination between or among any Persons in the availability of
Services. It shall be the right of all Persons to receive
continuously all available Services insofar as their financial and
other obligations to the Grantee are satisfied.
(D) The Grantee shall provide one outlet and free expanded
basic service to the governmental and institutional facilities
located in the Franchise Area that currently receive service, and
shall provide such service to any additional governmental and
institutional facilities that can be served by a standard one
hundred fifty foot (150') drop, upon the City's request.
Section 9 -- Public Services
(A) In accordance with Section 611 of the Cable Act
(47 U.S.C. ~ 531), the Grantee agrees to provide Channel capacity
to be designated for public, educational or governmental ("PEG")
use and related equipment and facilities, services and/or financial
support for the development and use of PEG access as provided in
Appendix C.
(B) The Grantee shall continue to provide the PEG Channels
and related services and related equipment and facilities that it
is providing on the Effective Date, as provided in Appendix C.
(C) The Grantee shall also provide capital grants for the
acquisition, lease or other provision or use of PEG access
facilities and equipment, as provided in Appendix C.
Section 10 -- Institutional Network
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(A) The Grantee's obligations with respect to the
Institutional Network shall be in accordance with Appendix D.
(B) The Institutional Network shall be interconnected by
the Grantee to the Subscriber Network at the headend or hubs of the
System and such other Cable Communications Systems as required by
the Grantor.
Section 11 -- Fees and Charges
(A) General requirements--
(1) The Grantee shall comply at all times with the
provisions of the Cable Act and FCC rules and regulations
applicable to rates and charges for any Service and the
associated terms and conditions for the provision of any
Service.
(2) During the term of this Ordinance, the Grantee
shall maintain with the Grantor a complete listing of fees,
charges, deposits and associated terms and conditions for
all Services.
(3) The Grantor reserves the right to regulate the
rates, fees, charges, deposits and associated terms and
conditions for any Service provided pursuant to this
Ordinance to the fullest extent permitted by applicable
law.
(B) In addition to the requirements set forth in Section
7.1 of Appendix E to this Ordinance, not less than thirty (30) days
prior to the effective date of any change in any fee, charge,
deposit, term or condition (or such shorter period as may upon a
showing of good cause be approved by the Responsible Franchising
Official), the Grantee shall (i) submit a revised listing of fees,
charges, deposits and associated terms and conditions to the
Responsible Franchising Official and (ii) provide written notice of
the proposed change to each affected Subscriber.
(C) The Grantee shall not discriminate or permit
discrimination between or among any Persons in the rates, terms and
condi tions for any Service, except as set forth below. The
foregoing requirements shall not prevent the use of: (i) different
charges for residential Subscribers than for nonresidential
Subscribers, except with respect to Basic Service; (ii) short-term
sales promotions and other short-term discounts or reduced charges;
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(iii) reasonable discounts or reduced charges to senior citizens or
other economically disadvantaged groups; or (iv) bulk rate
arrangements.
Section 12 -- CUstomer Service;
Subscriber Bills; and Privacy Protection
(A) The Grantee agrees to comply in all respects with the
requirements of the customer service standards set forth in
Appendix E to this Ordinance. The Grantee shall also comply with
all rules and regulations established by the FCC pursuant to
Section 632 of the Cable Act (47 U.S.C. ~ 552).
(B) The Grantee shall comply at all times with the
provisions of the Cable Act and FCC rules and regulations
applicable to Subscriber bills, including, but not limited to, the
format and itemization thereof and shall use all reasonable efforts
to ensure Subscriber bills are not misleading.
(C) The Grantee shall comply at all times with the
Subscriber privacy provisions of the Cable Act or other applicable
law. The Grantee shall cooperate with the Grantor so as to ensure
the Grantor's ability to enforce the terms and conditions of this
Ordinance by providing, upon the request of the Responsible
Franchising Official, such Subscriber information as may be
reasonably requested by the Responsible Franchising Official.
(D) The Grantee shall comply at all times with FCC rules
and regulations applicable to Subscriber equipment and equipment
compatibility.
Section 13 -- Oversight and Regulation
(A) The Grantor shall have the right to oversee, regulate,
and periodically inspect the construction, operation, maintenance
and upgrade of the System, and all parts thereof, in accordance
with the provisions of this Ordinance and applicable law, including
the Grantor's police power.
(B) When reasonably necessary to the administration or
enforcement of the Ordinance, and at the request of the Grantor,
the Grantee shall promptly submit to the Grantor such information
as the Grantor may request regarding the Grantee, its financial
statements or other financial information, its compliance with any
term or condition of this Ordinance, with respect to the System or
its operation, any Service distributed over the System, or any
activity or function associated with the production or distribution
of any Service over the System.
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(C) Throughout the term of the Agreement, the Grantee shall
maintain in the Franchise Area, or make available in the Franchise
Area within fifteen (15) business days, complete and accurate books
of account and records regarding the Grantee's ownership and
operation of the System and the provision of Services over the
System, including without limitation, books of account and records
adequate to enable the Grantee to demonstrate that it is, and
throughout the term of this Ordinance has been, in compliance with
this Ordinance. All such documents pertaining to financial matters
which may be the subject of an audit by the Grantor shall be
retained by the Grantee for a minimum of five (5) years following
termination of this Ordinance.
(0) The Grantor's rights of inspection and audit shall
include--
(1) Upon notice to the Grantee, the Grantor or its
designated representatives, shall have the right to examine, when
reasonably necessary to the administration or enforcement of the
Ordinance in the Franchise Area, all books and records pertaining
to the Grantee's or any Affiliated Person's ownership or operation
of the System or to the Grantee's or Affiliated Person's provision
of Services over the System. Further, during normal business hours
and upon notice to the Grantee, the Grantor or its designated
representatives may inspect and examine any other aspect of the
System, including facilities and equipment thereof.
(2) Access by the Grantor to any of the documents,
records or other information covered by this Section 13(0) shall
not be denied by the Grantee on grounds that such documents,
records or information are alleged by the Grantee to contain
proprietary information, provided that this requirement shall not
be deemed to constitute a waiver of the Grantee's right to assert
that the proprietary information contained in such documents,
records or other information, should not be disclosed and to
withhold such information upon the agreement of the Grantor. If
the Responsible Franchising Official concurs with the Grantee's
assertion regarding the proprietary nature of such information, the
Grantor will not disclose such information to any Person, unless
required by applicable law or order of governmental authority. If
the Responsible Franchising Official does not concur with such
assertion, then the Grantee may appeal such decision to the
appropriate individuals or bodies within the Grantor in accordance
with applicable laws and procedures. If the Grantor does not
concur with the Grantee's assertion, or if the Grantee does not
appeal, then the Grantee shall promptly provide such documents,
including the alleged proprietary portion thereof, to the Grantor,
provided that the Grantee shall not be required to provide the
proprietary portion thereof during the pendency of any court
challenge to such provision.
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(3) The Grantor may conduct a full compliance audit and
hold public hearings at any time during the term of the Franchise,
provided it gives the Grantee written notice ten (10) days in
advance of the commencement of such audits and associated hearings.
Section 14 -- Restrictions Against
Assignments and Other Transfers
(A) The Grantee may not transfer the Franchise or any of
the Grantee's rights or obligations in or regarding the System or
the Franchise without the prior written consent of the Grantor.
Such consent shall not be unreasonably withheld.
(B) No change in Control of the Grantee, the System or the
Franchise shall occur after the Effective Date, by act of the
Grantee or by act of any Person holding Control of the Grantee, the
System or the Franchise, by operation of law, or otherwise, without
the prior written consent of the Grantor, which consent shall not
be unreasonably withheld.
(C) Any request for approval shall be handled by the
Grantor in accordance with its customary rules and procedures. In
connection with any request for approval, the Franchisee shall
submit to the Grantor such information as the Grantor may
reasonably request.
(D) Notwithstanding anything to the contrary, no such prior
consent shall be required for any transfer or assignment to any
Person controlling, controlled by or under the same common control
as the Grantee (a "qualified Personll). For the purposes of this
paragraph (D) the term II control II (including the terms
IIcontrolling,1I IIcontrolled byll and lIunder common controlll) means
the power or authority to direct or cause the direction of the
management and policies of the Grantee. In order for the Grantee
to avail itself of this paragraph (d) and implement a transfer or
assignment to a qualified Person without the prior consent of the
City the Grantee shall deliver to the City at the time of such a
transfer or assignment a guarantee from Time Warner Entertainment
Company, L.P. in the form attached hereto as Appendix E.
Section 15 -- Specific Rights and Remedies
(A) The Grantee agrees that the Grantor shall have the
specific rights and remedies set forth in this Section 15. These
rights and remedies are in addition to any and all other rights or
remedies, now or hereafter available to the Grantor to enforce the
provisions of this Ordinance, and will not be deemed waived by the
exercise of any other right or remedy. The exercise of any such
right or remedy by the Grantor shall not release the Grantee from
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its obligations or any liability under this Ordinance, except as
expressly provided for in this Ordinance or as necessary to avoid
duplicative recovery from or payments by the Grantee.
(B) Events of default--
(1) The Grantee agrees that an Event of Default shall
include, but shall not be limited to, any of the following acts or
failures to act by the Grantee:
(a) Any substantial failure to comply with any
material provision of this Ordinance that is not cured
within thirty (30) days after notice pursuant to this
Section 15;
(b) The occurrence of any event which may
reasonably lead to the foreclosure or other similar
judicial or nonjudicial sale of all or any material part of
the System;
(c) The condemnation by a public authority other
than the Grantor, or sale or dedication under threat or in
lieu of condemnation, of all or any part of the System, the
effect of which would materially frustrate or impede the
ability of the Grantee to carry out its obligations, and
the purposes of this Ordinance;
(d) In the event that the Grantee shall suspend or
discontinue its business, shall make an assignment for the
benefit of creditors, shall fail to pay its debts generally
as they become due, shall become insolvent (howsoever such
insolvency may be evidenced), shall be adjudicated
insolvent, shall petition or apply to any tribunal for, or
consent to, the appointment of, or taking possession by, a
receiver, custodian liquidator or trustee or similar
official pursuant to state or local laws;
(e) A persistent failure by the Grantee to comply
with any of the provisions, terms or conditions of this
Ordinance or with any rules, regulations, orders or other
directives of the Grantor after having received notice of
a failure to comply.
(2) Upon the occurrence of an Event of Default, then,
in accordance with the procedures provided in Section 15 (B) (3), the
Grantor may, at any time during the term of this Ordinance:
(a) Draw upon the Performance Bond, as permitted
by this Ordinance; and/or
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(b) Require the Grantee to take such actions as the
Grantor deems appropriate in the circumstances; and/or
(c) Seek money damages from the Grantee as
compensation for such Event of Default; and/or
(d) Seek to obtain the
court-appointed trustee or similar
actions which the Grantor deems
circumstances; and/or
appointment of
Person to take
appropriate in
a
any
the
(e) Revoke the Franchise by termination of this
Ordinance pursuant to this Section 15; and/or
(f) Exercise any other remedies that may be
available under applicable law.
(3) Upon the occurrence of an event of default, the
Grantor shall exercise the rights provided in Section 15(B) (2) in
accordance with the procedures set forth below:
(a) The Responsible Franchising Official shall
notify the Grantee, in writing, of an alleged Event of
Default, which notice shall specify the alleged Event of
Default with reasonable particularity. The Grantee shall,
within thirty (30) days after receipt of such notice or
such longer period of time as the Responsible Franchising
Official may specify in such notice, either cure such
alleged Event of Default or, in a written response to the
Responsible Franchising Official, either present facts and
arguments in refutation or excuse of such alleged Event of
Default or state that such alleged Event of Default will be
cured and set forth the method and time schedule for
accomplishing such cure.
(b) The Responsible Franchising Official shall
determine (A) whether an Event of Default has occurred; (B)
whether such Event of Default is excusable; and (C) whether
such Event of Default has been cured or will be cured by
the Grantee.
(c) If the Responsible Franchising Official
determines that an Event of Default has occurred and that
such Event of Default is not excusable and has not been or
will not be cured by the Grantee in a manner and in
accordance with a schedule reasonably satisfactory to the
Responsible Franchising Official, then the Responsible
Franchising Official shall prepare a written report which
may recommend the action to be taken by the Grantor's
governing body. The Grantor shall provide notice and a
copy of such report to the Grantee. In the event that the
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Grantor's governing body determines that such Event of
Default has not occurred, or that such Event of Default
ei ther has been or will be cured in a manner and in
accordance with a schedule reasonably satisfactory to the
Grantor's governing body, or that such Event of Default is
excusable, such determination shall conclude the
investigation.
(d) If the Grantor's governing body determines that
such Event of Default has occurred, and that such Event of
Default has not been and will not be cured in a manner and
in accordance with a schedule reasonably satisfactory to
the Grantor's governing body, and that such Event of
Default is not excusable, then the Grantor may take any of
the actions provided in Section 15(B) (2) .
(C) In the event of any termination of this Ordinance,
whether by expiration (where the Grantee does not seek renewal or
where renewal is denied), revocation or otherwise, the Grantor may:
(i) direct the Grantee to operate the System on behalf of the
Grantor pursuant to the provisions of this Ordinance and such
additional terms and conditions as are equitable to the Grantor and
the Grantee, for a period of up to twelve (12) months; or (ii)
order the Grantee to cease all construction and operational
activities in a prompt and workmanlike manner.
(D) In addition to its rights under Section 15 (C), upon any
termination, the Grantor may issue a removal order directing the
Grantee to remove, at the Grantee's sole cost and expense, all or
any portion of the System from all Rights-of-Way and other public
or nonpublic property within the Franchise Area, subject to the
following:
(1) in removing the System, or any part thereof, the
Grantee shall, at its own expense, refill and compact any
excavation it makes, and shall leave the Rights-of-Way and
other property, including utility cables, wires and
attachments, in as good condition as that prevailing prior
to the Grantee's removal of the System;
(2) the liability insurance and indemnity provisions
of this Ordinance shall remain in full force and effect
during the period in which the System is being removed and
the associated repairs to the Rights-of-Way and other
property are being made; and
(3) if in the reasonable judgment of the Grantor, the
Grantee fails to substantially complete removal, including
repair of the Rights-of-Way and other property within
twelve (12) months of the Grantor's issuance of a removal
order, the Grantor shall have the right to: (A) authorize
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removal of the System, at the Grantee's cost, by another
Person; and (B) declare that all rights, title and interest
to the System belong to the Grantor, including any portion
of the System not designated for removal, without
compensation to the Grantee. The Grantee shall execute and
deliver such documents as the Grantor may request, to
evidence such ownership by the Grantor.
Notwi thstanding the foregoing, the Grantee may dispose of any
portion of the System not designated by the Grantor for removal
during such twelve (12) month period, provided, however, that if
the Grantee fails to complete the removal of the portiones) of the
System designated for removal by the Grantor within such period,
then all such portiones) of the System not disposed of and all
amounts collected for any portiones) of the System disposed of by
the Grantee during such period shall belong to the Grantor, with no
price due to the Grantee.
(4) Upon any termination and as an alternative to
ordering removal of the System, the Grantor may acquire or effect
a transfer to a third party of all or any part of the System and
all components thereof necessary to maintain and operate the System
pursuant to the terms of this Ordinance.
(5) The price to be paid to the Grantee upon an
acquisition or transfer by the Grantor shall depend upon the nature
of the termination as follows:
(a) if the Franchise expires without the Grantee
seeking renewal or if the renewal is denied, then the price
shall be the fair market value of the System valued as a
going concern with a deduction for the value allocable to
the Franchise itself; and
(b) if the termination is due to a revocation of
the Franchise for cause, such as the occurrence of an Event
of Default as provided in Section 15(B), the price shall be
an equitable price, considering the injury to the Grantor
and the residents of the City of Clearwater and with no
value allocable to the Franchise itself.
(E) In the event of any acquisition, transfer or
Abandonment pursuant to Section 15(D), the Grantee shall:
(1) cooperate with the Grantor or third party in
maintaining continuity in the distribution of Services to
Subscribers over the System;
(2) promptly execute all appropriate documents to
transfer to the Grantor or third party title to the System,
all components necessary to operate and maintain the
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System, and any rights, contracts, permits or
understandings necessary to operate or maintain the System
including those necessary to the distribution of Services
over the System. All items transferred shall be
transferred free of any liabilities, except for the
interests in collateral of lending institutions which are
secured creditors or mortgagees of the Grantee with respect
to the transferred collateral at the time of transfer.
With respect to such creditors, the Grantor shall only be
obligated to repay any outstanding amounts to the extent of
the net operating revenues received by the Grantor from its
operation of the System; and
(3) promptly supply the Grantor or third person with
all records necessary to reflect the change in ownership
and to operate and maintain the System.
Section 16 -- Liability and Insurance
(A) Prior to commencement of construction, but in no event
later than sixty (60) days after the effective date of the
Franchise and thereafter continuously throughout the duration of
the Franchise and any extensions or renewals thereof, the Grantee
shall furnish to the City, certificates of insurance, approved by
the City, for all types of insurance required under this Section.
Failure to furnish said certificates of insurance in a timely
manner shall constitute a violation of this Ordinance.
(B) Neither the provisions of this Section or any damages
recovered by the City hereunder, shall be construed to or limit the
liability of the Grantee under any Franchise issued hereunder or
for damages.
(C) All insurance policies maintained pursuant to this
Ordinance or the Franchise shall contain the following, or a
comparable, endorsement:
It is hereby understood and agreed that
this insurance policy may not be canceled
by the insurance company nor the intention
not to renew be stated by the insurance
company until thirty (30) days after
receipt by the City Manager, by certified
mail, of a written notice of such
intention to cancel or not to renew.
(D) The franchise agreement and all contractual liability
insurance policies maintained pursuant to this Ordinance or the
franchise shall include the following provisions:
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The Franchisee/Grantee/Insured agrees to
indemnify, save harmless and defend the
City of Clearwater, its officials, agents,
servants, and employees, and each of them
against and hold it and them harmless from
any and all lawsuits, claims, demands,
liabilities, losses and expenses,
including court costs and reasonable
attorney's fees for or on account of any
injury to any person, or any death at any
time resulting from such injury, or any
damage to any property, which may arise or
which may be alleged to have arisen,
whether in whole or in part, out of or in
connection with the actions or omissions
of the grantee.
(E) All insurance policies provided under the provisions of
this Ordinance or the Franchise shall be written by companies
authorized to do business in the State of Florida, and approved by
the State Department of Insurance.
(F) The City shall be named as an additional named insured
on all general liability policies issued to the Grantee.
(G) To offset the effects of inflation and to reflect
changing liability limits, all of the coverage, limits, and amounts
of the insurance provided for herein are subj ect to reasonable
increase at the end of every three (3) year period of the
Franchise, applicable to the next three year period, upon the
determination of the City; provided at no time shall the grantee be
required to provide insurance in amounts or coverage which exceed
that commonly provided throughout the Tampa Bay area by cable
operators.
(H) General Liability Insurance. The Grantee shall
maintain, and by it acceptance of any Franchise granted hereunder
specifically agrees that it will maintain throughout the term of
the Franchise, general liability insurance insuring the Grantee in
the minimum of:
(1) $500,000 for property damage per occurrence;
(2) $500,000 for property damage aggregate;
(3) $1,000,000 for personal bodily injury or death to
anyone person; and
(4) $3,000,000 bodily injury or death aggregate per
single accident or occurrence.
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(I) Such general liability must include coverage for all of
the following: comprehensive form, premises-operations, explosion
and collapse hazard, underground hazard, products/completed
operations hazard, contractual insurance, broad form property
damage, and personal injury.
(J) Automobile Liability Insurance. The Grantee shall
maintain, and by its acceptance of any Franchise granted hereunder
specifically agrees that it will maintain throughout the term of
the Franchise, automobile liability insurance for owned, non-owned,
or rented vehicles in the minimum amount of:
(1) $1,000,000 for bodily injury and consequent death
per occurrence;
(2) $1,000,000 for bodily injury and consequent death
to anyone person.
(3) $500,000 for property damage per occurrence.
(K) Worker's Compensation and Employer's Liability
Insurance. The Grantee shall maintain and by its acceptance of any
Franchise granted hereunder specifically agrees that it will
maintain throughout the term of the Franchise, Worker's
Compensation and employer's liability, valid in the State, in the
minimum amount of:
(1) Statutory limit for Worker's Compensation.
(2) $500,000 for employer's liability.
Section 17 -- SUBSEQUENT ACTION
(A) In the event that, after the Effective Date, any court,
agency, commission, legislative body, or other authority of
competent jurisdiction: (A) declares this Ordinance invalid, in
whole or in part, or (B) requires the Grantee either to:
(a) perform any act which is inconsistent with any provision of
this Ordinance or (b) cease performing any act required by any.
provision of this Ordinance, then the Grantee and the Grantor shall
enter into good faith negotiations to amend this Ordinance, so as
to enable the Grantee to perform obligations and provide Services
for the benefit of the Grantor and others equivalent to those
immediately prior to such declaration or requirement, to the
maximum extent consistent with said declaration or requirement. In
connection with such negotiations, the Grantor and the Grantee
shall consider whether the circumstances existing at that time are
such that the Grantee should continue to perform such obligations
or their equivalent.
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(B) To the extent that any statute, rule, regulation,
ordinance or any other law is enacted, adopted, repealed, amended,
modified, changed or interpreted in any way during the term of this
Ordinance so as to enhance the Grantor's ability to meet the
cable-related needs and interests of the community, the Grantor and
the Grantee shall negotiate in good faith as to what modifications
to this Ordinance or regulation of the System might be appropriate
to reflect such enactment, adoption, repeal, amendment,
modification, change or interpretation.
Section 18 -- Miscellaneous
(A) Controlling Authorities. This Ordinance is made with
the understanding that its provisions are controlled by the Cable
Act, other federal laws, state laws, and all applicable local laws,
ordinances, and regulations.
(B) Appendices. The Appendices to this Ordinance, attached
hereto, and all portions thereof and exhibits thereto, are, except
as otherwise specified in such Appendices, incorporated herein by
reference and expressly made a part of this Ordinance.
(C) Enforceabilitv of Aqreement: No Opposition. By
execution of this Ordinance, the Grantee acknowledges the validity
of the terms and conditions of this Ordinance under applicable law
in existence on the Effective Date, and pledges it will not assert
in any manner at any time or in any forum that this Ordinance, the
Franchise, or the processes and procedures pursuant to which this
Ordinance was entered into and the Franchise was granted are not
consistent with the applicable law in existence on the Effective
Date.
(D) Notices. All notices shall be in writing and shall be
sufficiently given and served upon the other party by first class
mail, registered or certified, return receipt requested, postage
prepaid, and addressed as follows:
THE GRANTOR:
Elizabeth M. Deptula, City Manager
City of Clearwater
P. O. Box 4748
Clearwater, FL 34616
THE GRANTEE:
Time Warner Entertainment -
Advance/Newhouse Partnership
General Manager
2350 Drew Street
Clearwater, FL 34625
cc: Division President
2600 McCormick Drive, Suite 255
Clearwater, FL 34619
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(E) Police Powers. In accepting this Franchise, the
Grantee acknowledges that its rights hereunder are subject to the
police power of the Grantor to adopt and enforce general ordinances
necessary to the safety and welfare of the public; and it agrees to
comply with all applicable general laws and ordinances enacted by
the Grantor pursuant to such power.
Any conflict between the provisions of this Franchise and
any other present or future lawful exercise of the Grantor's police
powers shall be resolved in favor of the latter, except that any
such exercise that is not of general application in the
jurisdiction or applies exclusively to the Grantee's System or
Cable Communications Systems which contain provisions inconsistent
with this Franchise shall prevail only if upon such exercise, the
Grantor finds an emergency exists constituting a danger to health,
safety, property or general welfare or such exercise is mandated by
law.
(F) Bindina Effect. This Ordinance shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted transferees and assigns . All of the
provisions of this Ordinance apply to the Grantee, its successors,
and assigns.
(G) No Waiver: Cumulative Remedies. No failure on the part
of the Grantor to exercise, and no delay in exercising, any right
or remedy hereunder including, without limitation, the rights and
remedies set forth in Section 15 of this Ordinance, shall operate
as a waiver thereof, nor shall any single or partial exercise of
any such right or remedy preclude any other right or remedy, all
subject to the conditions and limitations established in this
Ordinance. The rights and remedies provided herein including,
without limitation, the rights and remedies set forth in Section 15
of this Ordinance, are cumulative and not exclusive of any remedies
provided by law, and nothing contained in this Ordinance shall
impair any of the rights or remedies of the Grantor under
applicable law, subject in each case to the terms and conditions of
this Ordinance.
(H) Severability. If any section, subsection, sentence,
clause, phrase, or other portion of this Ordinance is, for any
reason, declared invalid, in whole or in part, by any court,
agency, commission, legislative body, or other authority of
competent jurisdiction, such portion shall be deemed a separate,
distinct, and independent portion. Such declaration shall not
affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
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(I) No Aaency. The Grantee shall conduct the work to be
performed pursuant to this Ordinance as an independent contractor
and not as an agent of the Grantor.
(J) Governina Law. This Ordinance shall be deemed to be
executed in the City of Clearwater, Florida, and shall be governed
in all respects, including validity, interpretation and effect, and
construed in accordance with, the laws of the State of Florida, as
applicable to contracts entered into and to be performed entirely
within that State.
(K) Survival. All representations and warranties contained
in this Ordinance shall survive the term of the Agreement.
(L) Deleaation of Grantor Riahts. The Grantor reserves the
right to delegate and redelegate, from time to time, any of its
rights or obligations under this Ordinance to any body,
organization or official. Upon any such delegation or
redelegation, references to "Grantor" in this Ordinance shall refer
to the body, organization or official to whom such delegation or
redelegation has been made. Any such delegation by the Grantor
shall be effective. upon written notice by the Grantor to the
Grantee of such delegation. Upon receipt of such notice by the
Grantee, the Grantee shall be bound by all terms and conditions of
the delegation not in conflict with this Ordinance. Any such
delegation, revocation or redelegation, no matter how often made,
shall not be deemed an amendment to this Ordinance or require any
consent of the Grantee.
(M) Claims Under Aareement. The Grantor and the Grantee,
agree that, except to the extent inconsistent with Section 635 of
the Cable Act (47 U.S.C. ~ 555), any and all claims asserted by or
against the Grantor arising under this Ordinance or related thereto
shall be heard and determined either in a court of the United
States located in Tampa, Florida ("Federal Court") or in a court of
the State of Florida located in Clearwater, Florida (" Florida State
Court") . To effectuate this Ordinance and intent, the Grantee
agrees that if the Grantor initiates any action against the Grantee
in Federal Court or in Florida State Court, service of process may
be made on the Grantee, either in person, wherever such Company may
be found, or by registered mail addressed to the Grantee at its
office in the Franchise Area as required by this Ordinance, or to
such other address as the Grantee may provide to the Grantor in
writing.
(N) Modification. Except as otherwise provided in this
Ordinance, any Appendix to this Ordinance, or applicable law, no
provision of this Ordinance nor any Appendix to this Ordinance,
shall be amended or otherwise modified, in whole or in part, except
by an instrument, in writing, duly executed by the Grantor and the
Grantee, which amendment shall be authorized on behalf of the
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Grantor through the adoption of an appropriate resolution or order
by the Grantor, as required by applicable law.
(0) Delays and Failures Bevond Control of Grantee.
Notwithstanding any other provision of this Ordinance, the Grantee
shall not be liable for delay in performance of, or failure to
perform, in whole or in part, its obligations pursuant to this
Ordinance due to strike, war or act of war (whether an actual
declaration of war is made or not), insurrection, riot, act of
public enemy, accident fire, flood or other act of God, technical
failure, sabotage or other events, where the Grantee has exercised
all due care in the prevention thereof, to the extent that such
causes or other events are beyond the control of the Grantee and
such causes or events are without the fault or negligence of the
Grantee. In the event that any such delay in performance or
failure to perform affects only part of the Grantee's capacity to
perform, the Grantee shall perform to the maximum extent it is able
to do so and shall take all steps within its power to correct such
cause(s). The Grantee agrees that in correcting such cause(s), it
shall take all reasonable steps to do so in as expeditious a manner
as possible. The Grantee shall notify the Grantor in writing of
the occurrence of an event covered by this Section within five (5)
business days of the date upon which the Grantee learns of its
occurrence.
Section 19 -- Acceptance
Grantee shall signify its acceptance of the Franchise terms
in writing prior to the City Commission's approval of this
Ordinance by filing such written acceptance with the City Clerk.
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Section 20 -- Effective Date
This Ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
November 7, 1996
PASSED ON SECOND AND
FINAL READING AND ADOPTED
November 21, 1996
ATTEST:
r sAL ~_ !i. D,"~
~ia E. Goudeau, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
~~Akin, City Attorney
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APPENDIX A
THE SYSTEM
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APPENDIX A
I. SYSTEM AND CAPACITY
A. System Design. .The cable system shall have a 750 MHz design with an average of
five hundred (500) homes passed and 6 homerun fibers from the headend or hub to each per node.
The plant hardware shall be 1 GHz passives, I GHz taps, 1.5 GHz active platforms, 750 MHz
amplifiers and other actives, and 60 volt powering. The system shall be capable of 79 analog channels
(50 to 550 MHz), 200 MHz is reserved for future use including, but not limited to, digital
transmission (550 to 750 MHz) in the forward direction and 5 to 40 MHz in the reverse direction.
The rebuilt system shall use all new fiber optics. The system shall be designed so that ninety-five
percent (95%) of the time there are no more than five (5) amplifiers in cascade.
The system shall be designed and constructed in accordance with the standards listed
below. The following design specifications shall be adhered to. The system shall be operated in
accordance with performance standards which meet FCC regulations and specifications. The system
has been constructed in compliance with this section and the design standards below, the Grantee's
compliance with the performance standards of the FCC shall constitute compliance with the ongoing
technical standards required by this Agreement.
System Design - Minimum
C/N 49 dB
XMOD 49 dB
CTB 51 dB
CSO 50 dB
HUM 52 dB
B. Compliance with Applicable Law. In constructing, operating and maintaining the
system, Grantee shall at all times comply with this agreement and all applicable laws and regulations.
C. Drops. All drops shall meet the standards of the National Electric Code, and meet
design specifications in A above. The system shall be designed to allow each subscriber drop to
provide service to two (2) television outlets.
D. Equipment Quality. Equipment used for the distribution system, headend and
reception facilities shall be of good and durable quality and be serviced and repaired on a regular basis
and shall at all times be of equal or better quality than the following equipment. The Franchisee shall
make the final determination of what constitutes equal or better equipment.
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Fiber Optics:
Siecor - loose tube, armored
Sumitomo - loose tube, armored
~ Aerial:
Underground:
Drop:
Trilogy JAF MC2
Trilogy JBMC2
Trilogy RG 6, quad shield
Trunk Amplifiers:
Jerrold:
BTD-75SH-SX
MB-750-H
Trunk Extenders:
Jerrold:
JLX-7-750PILC
Power Supplies:
Power Guard SLL
Splitters:
Jerrold
SSP-K
Subscriber Taps:
Jerrold
FFT-K
Connectors:
LRC Pin
Pedestals:
Channel Commercial
Converters to Other Subscriber Equipment:
General Instruments
DPBB7514-S8, CFT2224
E. Converters. Grantee shall provide the converters specified in this. Agreement to
subscnbers utilizing converters within ninety (90) days of completion of the upgrade. Grantee shall
not scramble the basic tier.
F. Emergency Alert. Grantee shall continue to provide an all-channel audio-only
emergency alert system for use by the City. The Grantee shall arrange to have the emergency alert
system tested at least once each year. The Grantee shall make records of such tests available for
inspection by the City. The Company shall provide an automatic tone that shall commence
emergency broadcast. Emergency messages shall be able to the initiated from any touch-tone phone
with an access code. The emergency alert service shall be upgraded throughout the Franchise term
as set forth in FCC rules, regulations, or guidelines. Notwithstanding the foregoing, Grantee shall
maintain throughout the term of this Agreement the capacity for the City to access the emergency
alert system and shall not claim the City's rights hereunder have been preempted by federal or state
law.
G. Ongoing Preventative Maintenance. Grantee shall comply with the FCC preventative
maintenance program. Grantee shall sweep and balance the trunk. FCC proof-of-performance tests
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shall be performed. All optical node actives shall be checked and balanced including laser
outputs/receiver inputs. Grantee shall perform leakage monitoring on the system. The entire system
shall be monitored for signal leakage. Subscriber drops with leaks exceeding the FCC's standards
(maximum 20UV per meter at 10') are promptly replaced.
H. Interference on Channel 8. Grantee shall use its good faith during the rebuild to
minimize interference on Channel 8.
I. Standby Power. Grantee shall provide a twenty-four (24) hour power-generating
capacity at the headend. Grantee shall maintain standby power system supplies, rated for at least two
(2.0) hours duration at all optical node locations in the distribution network.
1. Parental Control. Grantee shall provide to subscribers, upon request, parental control
devices that allow any channel or channels to be locked out. Upon request, Grantee will, at no cost
to the subscriber, provide devices that will block out the audio and video of any channels carrying
predominately adult programming.
K. Performance Testing. Grantee shall perform all system tests and maintenance
procedures as required by and in accordance with: the FCC; this Agreement; Grantee's standards of
good operating practice; and the National Cable Television Association's test procedure guidelines.
L. Technical Standards. The cable communications system permitted to be operated
hereunder shall be installed and operated in conformance with this Agreement, National Electric
Code, OSHA Rules and Regulations, Bellcore "Blue Book' manual of construction practices, where
applicable to cable system construction, and FCC rules and regulations.
M. Employee Identification. Grantee shall provide a standard identification document to
all field employees, including employees of subcontractors, who shall be in contact with the public.
Such documents shall include a telephone number than can be used to verify identification. In
addition, Grantee shall use its good faith efforts to clearly identify all field personnel, vehicles, and
other major equipment that are operating under the authority of Grantee.
N. Stereo. The system shall have the capability and shall provide Broadcast Television
Systems Committee (BTSC) stereo signals on all satellite, broadcast and local services that transmit
them.
O. State of the Art. Throughout the term of the Franchise, Grantee shall construct,
operate, maintain and upgrade the cable system in order to ensure that it continuously conforms to
the State of the Art. Notwithstanding anything to the contrary, this paragraph 0 shall not be enforced
against the Grantee at any time the Grantee is subject to effective competition as defined by federal
law.
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ll. CONSTRUCTION
A. System Design Review. The City shall have the authority to review the technical
design plans of the system to ensure that the system design meets the requirements of this Agreement,
as well as applicable portions of the City Code governing construction within public rights-of-way.
On a case by case basis, Grantee may use existing coaxial cable which meets manufacturer
specifications.
B. Underground Construction. Grantee shall participate in and use an underground utility
locator program and ensure that the cable is buried at a depth specified by City regulations.
Temporary drops shall be buried within one month of installation, weather permitting. Grantee shall
comply with the City's ten (10) year plan to have cable and utilities placed underground. Grantee in
accordance with such plan shall at its expense, remove, relay, and relocate its equipment, provided,
however, that other utilities are similarly required to do such work at their own cost and expense.
C. Cable Drops and Monthly Service. Grantee shall provide one free cable drop and free,
basic and tier services, excluding premium services, audio services, and pay-per-view to public
buildings already provided with free drops, on the effective date of this Agreement, and at any other
public buildings passed by the system, and designated by the City.
D. Right of Inspections. The City shall have the right to inspect any construction and
installation work performed subject to the provisions of this Agreement, and shall make such tests
as it shaU find necessary to ensure compliance with the terms of this Agreement and other pertinent
provisions of the law over which the City has jurisdiction.
E. Business Extensions. Grantee shall extend its cable. system and make cable service
available to every business in the franchise area in any case where the business subscriber agrees to
pay for the labor costs incurred and materials used in making the extension. Provided, however, if
the business subscriber is within one-hundred and fifty feet (150') of the cable system, the business
shall pay only the normal installation fee.
F. Clearwater Marina. Grantee shall extend its cable service to the Clearwater Marina
and the Harbor Master in accordance with the service agreement between the City and the Grantee.
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ApPENDIX B
Terms and Conditions
Applicable to Work on the System
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ApPENDIX B
Terms and Conditions
Applicable to Work on the System
General Requirement. The Grantee certifies that the System as upgraded as of the Effective Date,
complies with the construction and technical requirements contemplated by Appendix A to this Ordinance.
The Grantee agrees to comply with each of the terms set forth in this Appendix B and in Appendix A to
this Ordinance governing construction and technical requirements for the System, in addition to any other
requirements or procedures reasonably specified by the Grantor pursuant to its police power or as
otherwise permitted by applicable law.
Quality. All work involved in the construction, operation, maintenance, repair, upgrade, and
removal of the System shall be performed in a safe, thorough and reliable manner using materials of good
and durable quality. If, at any time, a reasonable determination is made by the Grantor or any other
agency or authority of competent jurisdiction that any part of the System, including, without limitation, any
means used to distribute Signals over or within the System, is harmful to the health or safety of any
Person, then the Grantee shall, at its own cost and expense, promptly correct all such conditions.
Licenses and Permits. The Grantee shall have the sole responsibility for diligently obtaining, at its
own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to
construct, operate, maintain, repair or upgrade the System, or any part thereof, prior to commencement of
any such activity.
New Grades or Lines. If the grades or lines of any Street within the Franchise Area are changed
at any time during the term of this Ordinance, then the Grantee shall, at its own cost and expense and upon
reasonable written notification and request of the Grantor, protect or promptly alter or relocate the System,
or any part thereof, so as to conform with such new grades or lines. In the event that the Grantee refuses
or neglects to so protect, alter, or relocate all or part of the System, following notice to do so, the Grantor
shall have the right to break through, remove, alter, or relocate all or any part of the System without any
liability to the Grantee, any Affiliated Person or any other Person, and the Grantee shall pay to the Grantor
the documented costs incurred in connection with such breaking through, removal, alteration, or
relocation.
Protect Structures. In connection with the construction, operation, maintenance, repair, upgrade,
or removal of the System, the Grantee shall, at its own cost and expense, protect any and all existing
structures belonging to the Grantor and all designated landmarks. The Grantee shall obtain the prior
approval of the Grantor before altering any water main, sewerage or drainage system, or any other
municipal structure in the Rights-of-Way required because of the presence of the System in the Rights-of-
Way. Any such alteration shall be made by the Grantee, at its sole cost and expense, and in any
reasonable manner prescribed by the Grantor. The Grantee agrees that it sha1I be liable, at its own cost
and expense, to replace or repair and restore to a condition as good as that prevailing before said work
and, in any reasonable manner as may be specified by the Grantor, any Street or any municipal structure
involved in the construction, operation, maintenance, repair, upgrade or removal of the System that may
become disturbed or damaged as a result of any work thereon by or on behalf of the Grantee pursuant to
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this Ordinance.
No Obstruction. In connection with the construction, operation, maintenance, repair, upgrade, or
removal of the System, the Grantee shall not obstruct the Rights-of-Way, subways, railways, passenger
travel, river navigation, or other traffic to, from, or within the Franchise Area without the prior consent of
the appropriate authorities.
Movement of Wires. The Grantee shall, upon prior written notice by the Grantor or any Person
holding a permit to move any structure, temporarily move its wires to permit the moving of said structure.
The Grantee may impose a reasonable charge (which may require advance payment in appropriate
circumstances) on any Person other than the Grantor for any such movement of its wires.
Safety Precautions. The Grantee-shall, at its own cost and expense, undertake all necessary and
appropriate efforts to prevent accidents at its work sites, including the placing and maintenance of proper
guards, fences, barricades, watchmen, and suitable and sufficient lighting.
Moving Wires. The Grantor may, in case of fire, disaster, or other such emergency, as
reasonably determined by the Grantor, in its sole discretion, cut or move any of the wires, cables,
amplifiers, appliances, or other parts of the System, in which event the Grantor shall not incur any liability
to the Grantee, any Affiliated Person or any other Person. The Grantor shall take reasonable efforts to
consult the Grantee prior to any such cutting or movement of its wires, and the Grantee shall be given the
opportunity to perform such work itself. All documented costs to repair or replace such wires, cables,
amplifiers, appliances or other parts of the System shall be borne by the Grantee.
No Liability for Public Woric, etc. Neither the Grantor nor its officers, employees, agents,
attorneys, consultants or independent contractors shall have any liability to the Grantee or any Affiliated
Person for any liability as a result of or in connection with the protection, breaking through, movement,
removal, alteration, or relocation of any part of the System by or on behalf of tbeGrantee or the Grantor
in connection with any emergency, public work, public improvement, alteration of any municipal
structure, any change in the grade or line of any Street, or the elimination, discontinuation, and closing of
any Street.
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APPENDIX C
PEG MATTERS
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APPENDIX C
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ACCESS CHANNELS, EQUIPMENT, FACILITIES, AND SERVICES.
In order to develop and promote educational, government
access, and local programming for the system's access channels,
Franchisee hereby agrees to provide the following:
A. Access Channels. During and after the rebuild,
Franchisee shall provide the following number of dedicated access
channels: two (2) channels for government access (one for the City
of Clearwater and one for Pinellas County) and one (1) additional
digital channel upon the City's request to be used by the City for
local government access, once Grantor provides programming
generally on a digital basis; one (1) channel for public access;
and two (2) channels for educational access (one for the Pinellas
County School District and one for the St. Petersburg Junior
College). Such channels shall be used exclusively for purposes of
public, educational and governmental access programming on a non-
commercial, not-for-profit basis. All active access channels shall
be placed on the basic tier of service, unless both parties
mutually agree otherwise.
B. Government Access Equipment and Facilities.
Franchisee agrees to provide a matching grant of one-hundred
thousand dollars ($100,000) to the City for purchase of access
equipment within one (1) month of the effective date of this
Agreement. The parties agree that such grant of funds for initial
government access equipment shall not be deducted from the
franchise fee.
C. Government Access Equipment Replacement. On or
before December 1, 2003 the Franchisee shall provide the City with
a government access equipment grant in an amount equal to $2.50
times the number of subscribers to the system as of October 21,
2003. The parties agree that such grant of funds for government
access equipment replacement shall not be deducted from the
franchise fee.
D. Public Access Facilities, Equipment and Services.
Franchisee agrees to continue to provide the same quality and level
of public access services, facilities, and equipment as provided
the year preceding the effective date of the franchise. Public
access equipment and facilities shall be maintained and replaced in
the same manner as during the previous franchise. The parties
agree that such funds shall not be deducted from the franchise fee.
The level of public access services, facilities, and equipment
provided on the effective date of this Agreement is included in
this Appendix.
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The City agrees to review these public access
obligations within three months of Franchisee's renewal of its
cable television franchise agreement in the County of Pinellas. If
as a result of that renewal, public access requirements are
established which provide substantially the same public access
benefits to the City residents that the City residents enjoy on
the effective date of this Ordinance, then Franchisee's public
access obligation to the City under this Ordinance shall be deemed
satisfied, so long as the County obligations are satisfied and so
long as they continue to provide public access benefits to the City
residents that are substantially the same as the City residents
enjoy on the effective date. If, as a result of the renewal of
Franchisee's franchise with the County of Pinellas, the City
reasonably determines, following a public hearing, that the public
access benefits enjoyed by the City residents are materially
reduced then the Franchisee shall pay the amounts below with
payment being made within ten working days following the public
hearing (prorated based on the number of weeks remaining in the
franchise year) and on each anniversary date of the effective date
of the Franchise Ordinance thereafter.
FRANCHISE YEAR
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
AMOUNT
$ 50,000
$ 50,000
$ 75,000
$ 75,000
$100,000
$100,000
$100,000
$100,000
$125,000
$125,000
$150,000
$150,000
$150,000
$150,000
$150,000
Any such payments shall be reduced by (i) the portion of all of
Franchisee's public access costs (direct and indirect as reasonably
approved by the City) allocable to the City (subject to audit by
the City) derived by multiplying such costs by a fraction, the
numerator of which is the number of subscribers in the City one
month before such payment is due and the denominator of which is
the total number of Franchisee's subscribers in Pinellas County as
of such date who are offered public access programming and (ii) the
annual costs of providing the services and equipment described in
subparagraphs F and G below.
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Until the Franchisee has renewed its franqhise with the County of
Pinellas, the City shall pay to Franchisee within 30 days of
adoption of this Ordinance and on the next two anni versaries
$50,000, and $75,000 on each anniversary for the remaining term.
After the fifth year, this payment shall be adjusted based on the
U. S. Department of Commerce "National Consumer Price Index" for
all Urban Consumers, U. S. City Average (CPI-U) indicator, and
shall be determined by dividing the CPI-U indicator from the most
recently published indicator prior to the payment date, by the CPI-
U January indicator published one year prior to the adjustment
date, and multiplying the resultant number by the payment amount.
In lieu thereof, any time after the 3rd franchise year the City may
upon its own initiative audit all of the costs (direct and
indirect) of Franchisee in providing public access, in which event,
the City shall pay on such date one-half of all such costs to
Franchisee. In the event that Franchisee at any time becomes the
sole cable franchisee in Clearwater, City shall have no obligation
under this paragraph.
E. Educational Access. If the public schools or other
educational institutions in the County of Pinellas receive
educational access equipment, services, programming and facilities
in excess of that provided to the public schools or other
educational institutions in the City of Clearwater, the Franchisee
shall provide additional educational equipment, services,
programming, and facilities to the public schools or other
educational institutions in the City of Clearwater such that the
City receives equipment, services, programming and facilities
equivalent on a per school basis to that provided in the County of
Pinellas. Franchisee may donate used equipment or services or
otherwise assist schools on a voluntary basis as a part of
Franchisee's community involvement without triggering the
provisions of the preceding sentence. Both parties agree that all
such educational access equipment, services, programming and
facilities will not be deducted from the franchise fee.
F. Mobile Van. Upon reasonable notice, Franchisee
agrees to provide the City with use of the Franchisee's local
origination van three (3) times per year for the production of
Government access programming. The mobile van will be in good
working order and will be staffed with the Franchisee's local
origination personnel. Provided, however, that if in the
Franchisee's business judgment, the Van is no longer to be operated
by the franchisee, then the City will be compensated for the lost
support as follows:
3 van usages @ $ 2,000 each = $ 6,000
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G. On-site Access Services. Franchisee agrees, at its
own cost, to provide the City with nine (9) hours per week of
Franchisee's local origination staff time for the duration of the
franchise term. Such personnel shall be available on-site at the
City and be qualified to assist the City in government access
production in accordance with the production needs of the City.
Provided, however, that if in the Franchisee's business judgment,
the relevant personnel no longer work for the Franchisee, then the
City will be compensated for the lost support as follows:
9 hrs X 52 wks x $20 per hr = $9,360
H. Publicity. Franchisee shall actively promote
ongoing community awareness of public, educational and government
access channels, and public access facilities and training
opportunities for public and educational access, at a minimum in
its program guides containing listings of the local off-air
broadcast signals in the Franchisee's basic service tier, provided
that the publisher of any such guide consents to the inclusion of
information, at no cost to the Franchisee, concerning public,
educational and governmental access programming carried by the
Franchisee based upon the good faith efforts of the Franchisee to
secure such listings, in an annual bill stuffer, and in public
service announcements supplied by Franchisor, all in such places
and at such times as Franchisee in its sole discretion shall
determine, and Franchisee shall provide Franchisor, on request,
with a summary of its activities in this regard.
I. Optical Transmission Equipment. The Franchisee
agrees to provide one (1) digital, optical transmission package to
the City at Franchisee's cost, if necessary to originate
programming.
J. Signal Quality. Franchisee shall ensure that the
access channel delivery system from all origination sites,
specified herein and in Appendix D, meet the same technical
standards as the remainder of the system as set forth in Appendix
B. The origination points at the Municipal Service Building and
City Hall shall be swept and balanced regularly.
K. Origination Sites. The Franchisee, at no charge,
agrees to construct an origination line from the Municipal Services
Building within six (6) months of the effective date of this
Agreement. The Franchisee shall maintain and/or replace and
maintain throughout the franchise term, origination lines in
existence upon the effective date of this Agreement, and the
origination line from the Municipal Services Building.
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APPENDIX c
COMMUNITY ACCESS EQUIPMENT
.DES.CBIeII.ON 0UANIlIY
Audio Consoles Yamaha - 12 Input 2
Camera Control Units Hitachi 4
C-1 Chip Cameras Hitachi 8
Switchers Sony - 8 Input 2
Videotape Recorders 3/4 Inch 12
Portable VTRs 3/4 Inch 3
Edit Controllers Sony 2
Time Base Correctors Industrial 4
Character Generators Industrial 2
Distribution Amplifiers Ditech 4
Monitors Industrial 12
CD Players Standard Video Tech C. D. 2
Tripods Bogen 8
Router Ditech 1
Signal Scopes T echtronics 4
Set Lights (various) Lee Colortran & Cowell 15
CYC Curtain & Tracks Standard Issue 2
Machine Racks Standard Issue 12
All equipment is of industrial quality as measured on a scale from lowest to highest
quality: Home, Industrial, Broadcast. The Community Access studio will be available
for the use of Clearwater residents a minimum of 40 hours per week, including some
evening and weekend hours.
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APPENDIX D
FRANCHISEE'S OBLIGATIONS WITH RESPECT
TO INSTITUTIONAL NETWORK
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APPENDIX D
I.
INSTITUTIONAL NETWORK
A. I-Net. Except as provided herein, Franchisee
shall, at its own cost, maintain and replace, as needed, the
institutional network to the sites which are a part of the
institutional network as of the effective date of this Agreement.
The City may relieve the Franchisee of this requirement in writing
at any time during the term of the Franchise. Franchisee agrees
not to charge subscribers, the City or other institutions with
institutional network sites for their noncommercial use of the
institutional network for video program distribution, training,
data transmission, and other applications (such as energy
management) .
B. End User Equipment. The City and such institutions
shall purchase all necessary end user equipment for data
transmission and other applications.
C. Interconnection with Subscriber Network. The
institutional network shall permit institutions to transmit
programming via upstream, institutional channels to access channels
on the residential subscriber network. Franchisee's system shall
be capable of switching from the upstream channels to the
downstream residential subscriber network and shall allow for
switching between the Municipal Services Building, City Hall and
other institutional network originating locations.
D. Design. Each origination site on the institutional
network shall be able to originate transmissions simultaneously
when economically and technically feasible and viable. The design
of the institutional network shall be the same as that on the
effective date of this Agreement or better. The Franchisee shall
work cooperatively with the City to design any institutional
network construction to meet the needs of the City.
E. Future Construction. At any time during the
franchise term, the City may require Franchisee to construct:
extensions to the coaxial cable ~nstitutional network in existence
on the effective date of the franchise. At least ninety (90) days
prior to requested construction, the Franchisee shall provide to
the City for its review and approval, a quotation of costs and
schedules for institutional network construction and installation.
The City will be charged for the construction of institutional
network facilities based on the Franchisee's direct costs of labor
and materials as specified below. For institutional network
construction in locations served by the institutional network in
existence the effective date of the franchise, the City will be
charged for one-hundred percent (100%) of the direct cost incurred
by the Franchisee.
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F. Franchisee will continue to own and perform routine
maintenance on the existing Institutional Network. All
extraordinary maintenance (i.e., replacement of cable and
electronics) will be done on a time and material basis, payable by
the City. In situations where Franchisee also has to replace cable
or electronics at the same time, no labor costs will be passed on
to the City. The City will pay for any improvements to the I-Net.
G. Use. The I-Net shall be a closed circuit loop
network dedicated for the non-commercial use of the City.
Provided, however, that if the City wishes to interconnect the I-
Net directly to a public switched network, then the following shall
apply:
1. If Franchisee (or a business affiliate of
Franchisee) offers the service sought to be accessed by City by
interconnecting to the public switched network, then the City shall
purchase such service from the Franchisee (or its affiliate) at a
discount of 10% from the lowest rates charged by Franchisee (or its
affiliate) for such service, if such a discount is allowed by
applicable law. If such a discount is not allowed by applicable
law, the service shall be furnished at the lowest rate of
Franchisee (or its affiliate) .
2. If Franchisee (or a business affiliate of
Franchisee) does not offer the service sought to be accessed by
City by interconnecting to the public switched network, then the
City may purchase such service from a third party, provided,
however, at such time as Franchisee (or a business affiliate of
Franchisee) offers such service, then the City shall purchase such
service from the Franchisee (or its affiliate) at a discount of 10%
from the lowest rates charged by Franchisee (or its affiliate) for
such service, if such a discount is allowed by applicable law. If
such a discount is not allowed by applicable law, the service shall
be furnished at the lowest rate of Franchisee (or its affiliate) .
Provided, however, that the City shall not be required to purchase
such service from Franchisee (or business affiliate of Franchisee)
if the cost is substantially higher than the City is currently
paying.
3. If the City interconnects the I-Net directly to a
public switched network and purchases service from a third party,
then the City shall from and after the date of such
interconnection, commence reimbursing Franchisee for the
incremental cost of all routine maintenance on the existing I-Net,
in addition to making the other payments described in paragraph F
above. The reimbursement for routine maintenance shall cease, and
the provisions of paragraph F shall be reinstated, at such time as
the City is no longer interconnected to the public switched network
of a third party.
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APPENDIX E
Customer Service Standards
(City of Clearwater)
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SECTION 1
SECTION 2
SECTION 3
SECTION 4
SECTION 5
SECTION 6
SECTION 7
SECTION 8
SECTION 9
SECTION 10
SECTION 11
SECTION 12
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APPENDIX E
CUSTOMER SERVICE STANDARDS
INDEX
SOUCIT A TION OF SUBSCRIPTIONS ......... . . . . .
TRAINING OF EMPLOYEES; TELEPHONES . . . . . . . . .
BILLING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EQUIPMENT PROVIDED BY The Grantee ...........
OUTAGE CORRECTION AND REPAIR SERVICE. . . . . .
SUBSCRIBER COMPLAINTS ....................
NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TERMINATION OF SERVICE
AND DISCONNECTION .......................
CREDITS AND REFUNDS ... . . . . . . . . . . . . . . . . . . .
MISCELLANEOUS REQUIREMENTS
. . . . . . . . . . . . . .
FAILURE TO COMPLY WITH
THESE REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . .
DEFINITIONS ..............................
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APPENDIX E
CUSTOMER SERVICE STANDARDS
SECTION 1
SOLICITATION OF SUBSCRIPTIONS
1.1 Subscription Information.
1.1.1 Before providing any service to any Subscriber and upon request by any
customer thereafter, the Grantee shall provide the following subscription information
a. a description of the Cable Services provided by the Grantee,
accompanied by a listing of the charges for each such service, either alone or in
combination;
b. a listing of all rates, terms and conditions for each Cable Service or
tier of Cable Service, both alone and in combination, and all other charges, such as for
returned checks and for relocating cable outlets;
c. instructions on how to use other communications devices which may
be used in conjunction with the System;
d. a description of the Grantee's billing and collection procedures;
e. the procedure for the resolution of billing disputes, including the
telephone number of the City of Clearwater office Subscribers may call with regard to
billing disputes, as specified by the Grantor;
f. a description of the Grantee's policies concerning credits for outages
and reception problems, consistent with these consumer protection standards;
g. an explanation of the procedures and charges, if any, for upgrading,
downgrading or disconnecting services, consistent with these consumer protection
standards;
h. the required time periods for the completion of installation requests,
consistent with these consumer protection standards, and an indication of the penalties
for failure to complete installation within such time periods;
i. the complaint resolution process;
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j. the procedures by which the Subscriber will be notified of any rate
k. the local numbers for the Grantee's Subscriber service telephone
system; and
1. a description of significant rights accorded to the Subscriber pursuant
to applicable law.
1.1.2 The Grantee shall deliver copies of all such subscription information to
the Grantor within three (3) days after distributing it to the first Subscriber or potential Subscriber
so that the Grantor may ensure that the information contained therein comports with these
consumer protection standards and is not misleading. If the Grantor determines that such
information does not comport with these consumer protection standards or this Ordinance or is
misleading, the Grantor may order the Grantee to submit to any Subscriber or potential Subscriber
corrected subscription information. The Grantee agrees that the Grantor assumes no liability for
the subscription information by virtue of its review of such information.
1.2 Right of Rescission. Anyone who requests the installation of Cable Service from
the Grantee shall have the right to rescind such request at any time prior to the point in time at
which physical installation upon the premises begins. Anyone who requests a particular service
from the Grantee shall have the same right of rescission, except that such right shall expire once
the requested service is actually received by such Person.
1.3 Marker Showing Converter Dial Locations. The Grantee will provide Subscribers
with a dial location card for all Cable Services when channel line-up changes, at the time of
installation and upon request thereafter.
1.4 Procedure for InstaJIation
1.4.1 Under nonnal operating conditions, the standards in this Section shall be
met no less than ninety-five percent (95%) of the time as measured on an annual basis.
1.4.2 Once a request for Cable Service is received, the Grantee shall either set
a specific appointment time or specify a four (4) hour time block during normal business hours,
as requested by the Subscriber or potential Subscriber, during which the Grantee's work crew shall
install the necessary equipment to receive service. The Grantee may schedule installation activities
outside of normal business hours for the express convenience of the Subscriber.
1.4.3 Unless a later date is requested by a potential Subscriber, the Grantee
shall complete installation of service for any new Subscriber within seven (1) business days after
any such request is received, where the installation is located up to 125 feet from the existing
distribution system.
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1.5 Records of Requests for Cable Service
1.5.1 The Grantee shall keep records capable of showing all requests for Cable
Service, which shall contain, with respect to each request for service, the name and address of the
Person requesting service, the date on which service was requested, the date and appointment
period on which service was scheduled to be provided and the date and appointment period service
was actually provided. These records shall be assembled continuously and made available to the
Grantor in summary form and in a legible format.
1.5.2 Any infonnation in the records required by Section 1.5.1 of this Appendix
may be destroyed five (5) years after such information was collected, unless the Grantor authorizes
the Grantee, in writing, to destroy any information required by Section 1.5.1 of this Appendix
prior to the expiration of such five (5) year period.
SECTION 2
TRAINING OF EMPLOYEES; TELEPHONES
2.1 Trainin~ of Employees
2.1.1 Each field employee of the Grantee who may come into contact with
members of the public at their places of residence shall: (i) wear a Company-provided uniform
identifying the Grantee; (ll) use a vehicle appropriately identifying the Grantee; (iii) wear a picture
identification card indicating his or her employment with the Grantee. Each such employee shall
also be trained to perfonn efficiently the various tasks, including responding to consumer inquiries
and complaints, necessary to provide consumer services in a responsible and courteous manner.
2.1.2 All Company employees shall identify themselves by first name when
answering Company telephone lines routinely used by members of the public.
2.2 Telephone Lines. The Grantee shall have local telephone lines for receiving
requests for repair or installation services, for reporting outages and for responding to billing
questions. Repair lines shall be answered twenty-four (24) hours per d~y, seven (7) days per
week.
2.3 Standard of Setvice for the Tel~hone System. At the commencement of the tenn
of this Ordinance, the telephone system shall have, at a minimum, enough incoming lines and
adequate staff to process incoming calls such that telephone answer time, including wait time,
shall not exceed thirty (30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. Subscribers shall receive a busy
signal less than three percent (3 %) of the time.
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2.4 Compliance. The standards in Section 2.2 and 2.3 of this Appendix shall be met
no less than ninety percent (90%) of the time under normal operating conditions, measured on a
n annual basis. The Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards unless a historical record of
complaints indicate a clear failure to comply.
SECTION 3
BILLING
3.1 The Format of a Subscriber's Bill
3.1.1 The bill shall be designed in such a way as to present the information
contained therein clearly and comprehensibly to Subscribers.
3.1.2 The bill shall contain itemized charges for each category of Service and
equipment and any installation of equipment or facilities and monthly use thereof (together,
"Equipment") for which a charge is imposed (including late charges, if any), an explicit due date,
the name and address of the Grantee and telephone number for the Grantee's office responsible
for inquiries and billing, the telephone number specified by the Grantor for the resolution of
billing disputes, and the FCC Community Unit Identifier Number. The bill shall state the billing
period, amount of current billing and appropriate credits or past due balances, if any.
3.1.3 The Grantee shall not charge a potential Subscriber or Subscriber for any
Service or Equipment that the Subscriber has not affirmatively requested by name. A Subscriber's
failure to refuse a cable operator's proposal to provide such Service or Equipment shall not be
deemed to be an affirmative request for such Service or Equipment.
3.2 Billin~ Procedures. All bills shall be rendered monthly, unless otherwise
authorized by the Subscriber, or unless service was provided for less than one (1) month.
3.3 Procedures for Collecting Late Bills
3.3.1 No bill shall be due less than fifteen (15) days from the date of the
mailing of the bill by the Grantee to the Subscriber.
3.3.2 A bill shall not be considered delinquent until at least thirty (30) days
have elapsed from the mailing of the bill to the Subscriber and payment has not been received by
the Grantee, provided that no bill shall be mailed more than fifteen (15) days prior to the date
services covered by such bill commence, except in cases where. a Subscriber requests advance
billing. Late fees will not exceed grantee's average cost of collecting delinquent accounts.
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3.3.3 The Grantee shall not physically or electronically discontinue service for
nonpayment of bills rendered for service until: (i) the Subscriber is delinquent in payment for
service; and (ii) at least five (5) days have elapsed after a separate written notice of impending
discontinuance has been served personally upon a Subscriber; or (Hi) at least eight (8) days have
elapsed after mailing to the Subscriber a separate written notice of impending discontinuance (for
which postage is paid by the Grantee), addressed to such Person at the premises where the
Subscriber requests billing; or (iv) at least five (5) days have elapsed after a Subscriber has either
signed for or refused a certified letter (postage to be paid by the Grantee) containing a separate
written notice of impending discontinuance addressed to such Person at the premises where the
Subscriber requests billing. Notice of Service discontinuance must clearly state the amount in
arrears, the total amount required to be paid to avoid discontinuance of service, reconnection
charges if applicable, and the date by which such payment must be made.
3.4 Procedure for the Resolution
of Billine Di~utes
3.4.1 The billing dispute resolution procedure shall be initiated once a
Subscriber contacts the Grantee's department which handles billing questions or the Grantor,
orally or in writing, so long as such contact occurs within thirty (30) days from the date of receipt
of the bill by the Subscriber. If the Subscriber contacts the Grantor, the Grantor shall notify the
Grantee, by mail, by telephone or by electronic means, that the dispute resolution procedure has
been initiated and the Grantee shall then contact the Subscriber to discuss the dispute.
3.4.2 The Subscriber shall not be required to pay the disputed portion of the
bill until the dispute is resolved. The Grantee shall not apply finance charges, issue delinquency
or tennination notices, or initiate collection procedures for the disputed portion of the bill pending
resolution of the dispute.
3.4.3 The Grantee shall promptly undertake whatever review is necessary to
resolve the dispute, and shall notify the Subscriber of the results of the review as soon as it is
completed, but in no case later than twenty (20) business days after receipt from the Subscriber
of the billing dispute, problem or complaint notification.
billing dispute.
3.4.4 The Grantee shall notify the Subscriber of its proposed resolution of the
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3.5 Referral of Delinquent Accounts
to a C01lection Agency
3.5.1 If the billing dispute resolution procedures have not been initiated, the
delinquent account may be referred to a private collection agency for appropriate action no sooner
than thirty (30) business days after it becomes delinquent.
3.5.2 If the billing dispute resolution procedures have been initiated, the
delinquent account shall not be referred to a collection agency prior to ten (10) business days after
the conclusion of those procedures, including any appeal to the Grantor.
SECTION 4
EQUIPMENT PROVIDED BY The Grantee
4.1 Types of Equipment To Be Provided
4.1.1 The Grantee shall supply a closed caption decoder to any hearing impaired
Subscriber who requests one at a charge not to exceed the Grantee's cost.
4.1.2 The Grantee shall comply with all rules and regulations promulgated by
the FCC pursuant to Sections 623 and 624A of the Cable Act (47 U.S.C. ~~ 543 and 544a).
4.2 Terms for Rental and Loaner Equipment
4.2.1 The Grantee may require deposits on certain Equipment it provides to
Subscribers, provided that all such deposits shall be placed in an interest bearing escrow account
for the Subscribers, which deposit shall bear a reasonable interest rate.
4.2.2 For billing purposes, the return of rental Equipment shall be deemed to
have taken place on the day such equipment is returned.
SECTION 5
OUTAGE CORRECTION AND REPAIR SERVICE
5.1 Interruption of Service. The Grantee shall exercise its good faith to limit any
scheduled interruption of any Cable Service for any purpose to periods of minimum use. Except
in emergencies or incidents requiring immediate action, the Grantee shall provide the Grantor and
all affected Subscribers with prior notice of scheduled service interruptions, if such interruptions
will last longer than one and one-half hours (1- 1/2).
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5.2 Time Periods by Which Outages
Must Be Corrected and R~airs Made
5.2.1 The Grantee shall maintain sufficient repair and maintenance crews so as
to be able to correct or repair any reception problem or other service problem of either picture,
or sound quality, including any outage of sound and/or picture, on any Channel except for a
problem caused by an intentional, wrongful act of the Subscriber or by the Subscriber's own
equipment which was not supplied by the Grantee, promptly and in no event later than forty-eight
(48) hours after the Grantee either receives a request for repair service or the Grantee learns of
it. For purposes of this Ordinance, "reception problem" shall constitute reception that an affected
Subscriber reasonably determines is unsatisfactory, unless the Grantee can demonstrate that the
Signals transmitted to such Subscriber are in compliance with the FCC's technical signal quality
standards (47 C.F.R. A 76.601 et seq.).
5.2.2 The Grantee shall maintain, at all times, an adequate repair and service
force in order to satisfy its obligations pursuant to the Section 5.2.1 of this Appendix, and in cases
where it is necessary to enter upon a Subscriber's premises to correct any reception problem or
other service problem, the Grantee shall either set a specific appointment time or specify a four
(4) hour time block during normal business hours, as requested by the Subscriber or potential
Subscriber, during which the Grantee's work crew shall work on the service problem. The
Grantee may schedule service calls outside of normal business hours for the express convenience
of the Subscriber, provided that the Grantee's customer service representatives shall at all times
endeavor to be aware of service or other problems in adjacent areas which may obviate the need
to enter a Subscriber's premises.
5.2.3 In no event shall the Grantee cancel any necessary scheduled service call
after the close of the business on the business day prior to the scheduled appointment. If the
Grantee needs to cancel a scheduled appointment, it must contact the Subscriber and reschedule
at a time convenient for the Subscriber.
5.3 Failure To Meet Time Periods May Be Excused. The Grantee's failure to correct
outages or to make repairs within the stated time periods shall be excused in the following
circumstances:
(i) if the Grantee could not obtain access to the Subscriber's premises; or
(ii) if the Grantor, acting reasonably, agrees with the Grantee that correcting
such outages or making such repairs was not reasonably possible within the
allotted time period.
5.4 No Char~e for R~r Service. The Grantee shall not imJX>se any fee or charge any
Subscriber for any service call to his or her premises to perform any repair or maintenance work
on Grantee's equipment.
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5.5 Service Calls To Be Provided on a Nondiscriminato(}' Basis. The Grantee shall
provide all service calls throughout the Franchise Area on a nondiscriminatory basis.
5.6 Records of R~air Service Requests
5.6.1 The Grantee shall keep records capable of showing all requests for repair
service and information on outage correction (to the extent available with respect to each of the
following types of information), which shall show, at a minimum, the name and address of the
affected SubsCriber, the date and the approximate time of request, the date and approximate time
the Grantee responds, the date and approximate time service is restored, the type and the probable
cause of the problem, and the names of the Grantee employees who took the corrective action(s).
Such records shall also describe the corrective action taken., and, in the case of outages, shall
estimate the number of Subscribers affected. For the purposes of this Section 5.6.1, "time" shall
mean the time of request or appointment period, as applicable.
5.6.2 Any information in the records required by Section 5.6.1 of this Appendix
may be destroyed two (2) years after such information was collected, unless the Grantor authorizes
the Grantee, in writing, to destroy any information required by Section 5.6.1 of this Appendix
prior to the expiration of such two (2) year period.
SECTION 6
SUBSCRIBER COMPLAINTS
6.1 Complaints. For the purposes of this Ordinance, "complaint" shall mean any
written communication by a Subscriber or potential Subscriber or oral communication by a
Subscriber or potential Subscriber reduced to writing, including to a computer form, expressing
dissatisfaction with any nonprogramming aspect of the Grantee's business or operation of the
System.
6.2 Time Period for the Resolution of Complaints. Except where another time period
is required by any other provision of this Appendix, the Grantee shall make its good faith to
resolve, as soon as practicable and in no event later than.seven (7) business days, all complaints
after they are received by the Grantee.
6.3 Referral of Complaints from the
Grantor to the Grantee
6.3.1 If the Grantor is contacted directly about a complaint concerning the
Grantee, the Grantor shall notify the Grantee.
6.3.2 Within seven (7) business days after being notified about the complaint,
the Grantee shall issue to the Grantor a report detailing the investigation thoroughly, describing
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the findings, explaining any corrective steps which are being taken and indicating that the Person
who registered the complaint has been notified of the resolution.
6.4 Complaint Records
6.4.1 The Grantee shall maintain complaint records, which shall record the date
a written complaint is received, the name and address of the affected Subscriber, a description of
the complaint, the date of resolution, and a description of the resolution.
6.4.2 Any information in the records required by Section 6.4.1 of this Appendix
may be destroyed after one (1) year after such information was collected, unless the Grantor
authorizes the Grantee, in writing, to destroy any information required by Section 6.4.1 of this
Appendix prior to the expiration of such one (1) year period.
SECTION 7
NOTICE
7.1 Notice Required
7.1.1 The Grantee shall provide notice to the Grantor and all Subscribers of any
change in any fee, charge, deposit, tenn or condition, which notice shall be provided no later than
thirty (30) days prior to the effective date of any such change. All notices required by this Section
7.1.1 shall specify, as applicable, the service or services affected, the new rate, charge, term or
condition, the effect of the change, and the effective date of the change.
7.1.2 The Grantee shall provide notice, in writing, to the Grantor and all
Subscribers of any change in any Channel assignment or in any Service provided over any such
Channel, which notice shall be provided no later than thirty (30) days prior to the effective date
of any such change.
SECTION 8
TERMINA nON OF SERVICE AND DISCONNECTION
8.1 Notice of Tennination of Service. As described in Section 3.3.3 of this Appendix,
the Grantee may tenninate service to any Subscriber whose bill has not been paid after it becomes
delinquent, so long as the Grantee gives proper notice to the Subscriber.
8.2 Resubscription to Cable Service. The Grantee shall not refuse to serve a former
Subscriber whose service was tenninated, so long as all past bills and late charges have been paid
in full.
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8.3 Length of Time to Disconnection. If disconnection occurs at the Subscriber's
written or oral request, then, for billing purposes, it shall be deemed to have occurred three (3)
business days after the Grantee receives the request for disconnection at Grantee's business offices
unless (i) it in fact occurs earlier or (ii) the Subscriber requests a longer period.
8.4 Scheduling Appointments. The Grantee shall either set a specific appointment time
or specify a four (4) hour time period during normal business hours, during which its work crew
shall visit the Subscriber's premises to disconnect service and to remove any Equipment. The
Grantee may schedule such service outside normal business hours for the express convenience of
the Subscriber.
8.5 Restoration of Subscriber Premises. The Grantee shall ensure that the subscriber's
premises are restored to their original condition if damaged by the Grantee's employees or agents
in any respect in connection with the installation, repair or disconnection of Cable Service.
8.6 No Fee for Disconnection. The Grantee shall not charge any fee for disconnection.
Grantee will make a seasonal plan available for part-time residents at discounted prices.
SECTION 9
CREDITS AND REFUNDS
9.1 Grounds. As a result of the Grantee's failure to comply with these consumer
protection standards, the Grantee shall provide to each affected Subscriber or potential Subscriber,
as applicable, the following credits:
(i) for a failure of the Grantee's crew to arrive at the Subscriber's premises at
the scheduled time or within the promised four (4) hour period for any installation
service, as provided in Section 1.4.2 of this Appendix, a credit equal to free
installation.
(ii) for any reception problem, including any outage of sound and/or picture on
any Channel, as defined in Section 5.2 of this Appendix, or for any other service
problem which remains unrepaired for more than twelve (12) hours after either the
Grantee receives from the Subscriber a request for repair service (provided that, to the
extent access to the Subscriber.'s premises is required to effect such repair, the
Subscriber has granted the Grantee such access) or the Grantee learns of such problem
an appropriate credit.
(ill) for a failure of the Grantee's crew to arrive to correct any outage or make
any repair during the stated time period, as specified in Section 5.2.2 of this Appendix
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10.4 Cable Guide. The Grantee shall provide in any cable programming guide supplied
to Subscribers, in which Grantee has editorial control, a listing of the channel location of all PEG
channels.
SECTION 11
FAILURE TO COMPLY WITH THESE REQUIREMENTS
11.1 Material Requirements
11.1.1 The Grantee agrees that substantial failure to comply with any material
requirement set forth in these consumer protection standards shall constitute an Event of Default.
11.1.2 The Grantee also agrees that if the Grantor determines, in the exercise
of its sole discretion, that the Grantee has, after notice from the Grantor, repeatedly failed to
comply with any requirement set forth in these consumer protection standards, then the Grantor
may elect to treat such failure in all respects as an Event of Default.
11.2 Liability for Contractors'/Subcontractors' Failure To Comply. If the Grantee fails
to take reasonable steps to ensure that its contractors, subcontractors or agents abide by these
consumer protection standards, the Grantee shall be liable for any breach of these consumer
protection standards committed by its contractors, subcontractors, or agents just as if the Grantee
itself had committed the breach.
SECTION 12
DEFINITIONS
12.1 Normal Business Hours. The term "normal business hours" means those hours
during which most similar businesses in the community are open to serve customers.
12.2 Normal O~ratin& Conditions. The term "normal operating conditions" means
those service conditions which are within the control of the Grantee. Those conditions which are
not within the control of the Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which are ordinarily within the control of the Grantee include, but
are not limited to, special promotions, pay-per-view events, rate increases, regular peak: or
seasonal demand periods, and maintenance or upgrade of the cable system.
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