41-96 Ordinance
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RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance NO.m.m....m4J.:-.~.6u Passednn.....n....mummmm nmnmu..19un.... \-
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AN ORDINANCE AUTHORIZING THE CITY MANAGER I
TO ENTER INTO A CABLE T.V. FRANCHISE AGREEMENT I
WITH AMERITECH NEW MEDIA, INC. I
- WHEREAS, The City of Dublin desires to provide a competitive cable T.V. market place for the benefit of I
...... its residents; and, I
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WHEREAS, the City of Dublin has determined that Ameritech New Media, Inc. can provide for the future I
cable related needs and interests of Dublin; and,
WHEREAS, the Franchise Agreement is mutually acceptable between the City of Dublin and Ameritech
New Media, Inc,; and,
WHEREAS, Dublin City Council desires to ratify said Franchise Agreement;
NOW THEREFORE BE IT ORDAINED, BY THE COUNCIL OF THE CITY OF DUBLIN, STATE OF OHIO,
7 OF THE ELECTED MEMBERS CONCURRING THAT:
Section 1. The City Manager is hereby authorized to enter into a Cable T.V. Franchise Agreement with
Ameritech New Media, Inc. for the purpose of constructing, operating, owning and maintaining a cable
television system in the City of Dublin in accordance with the Franchise Agreement executed by and
between the City of Dublin and Ameritech New Media, Inc. for the period commencing on January 1, 1998
and terminating on December 31, 2013.
- Section 2. That this ordinance shall take effect and be in force on the earliest date permitted by law.
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Passed this Is, day of b eft 0Yt.~ 997.
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Mayor - Presiding Officer
ATTEST:
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Clerk of Council
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I hereby certtfy that COllies of this Ord:nonce/....luRN were posted in the
City of Dublin in accordance witb Section 731.25 of It1e Ohlo.ae.i"d C...
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CITY OF nUBUN Memo
- Office of the City Manager
5200 Emerald Parkway
.... Dublin, Ohio 43017-1006
Phone: 614-761-6570
Fax: 614-761-6512
To: All Members of Dublin City Council t
From: Timothy C. Hansley, City Manag~
Initiated By: Dana L. McDaniel, Director of Se
Date: November 25, 1997
Re: City Ordinance 41-96, Ameritech New Media, Inc. Franchise
As you know, Staff requested City Council to remove Ordinance 41-96 from "the table" and place
it on your agenda for your December 1, 1997 meeting. Ordinance 41-96 previously received its
required readings, therefore, enabling Council to take action at the December 1 meeting, should you
choose to do so.
Staff recommends the approval of Ordinance Number 41-96, authorizing the City Manager to enter
into a franchise with Ameritech New Media, Inc. for the purpose of providing cable TV services to
Dublin residents. The Franchise will allow Ameritech New Media to construct a cable distribution
- system which will be in competition with the existing Time Warner Communications cable franchise.
- By passing this Ordinance, the following outcomes may result, as a minimum:
1. A competitive market place which will enable consumer choice. .'
2. Consumer choice may lead to improved customer service, lower prices, and/or more
programming and additional services for the dollar.
The Franchise Agreement itself is intended to:
1. Mirror, to the extent possible, the existing Time Warner Franchise Agreement.
2. Create a fair and level playing field between Time Warner and Ameritech New Media.
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CITY OF DUBLIN
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CABLE TV
FRANCHISE AGREEMENT"
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- WITH
AMERITECH NEW MEDIA, INC. ..
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TABLE OF CONTENTS
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1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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2. GRAN'T OF FRAN'CHISE ............................................... 6
2.1 Grant ......................................................... 6
2.2 Right of the City to Issue Franchise ................................. 7
2.3 Consent Not Exclusive ........................................... 7
2.4 Franchise Acceptance ............................................ 7
2.5 Rights Reserved to the City . . . . '.' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
2.6 Incorporation by Reference of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
3. GENERAL REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
3.1 Governing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
3.2 Franchise Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . .. 8
3.3 Payxn.ent to City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
3.4 Form of Payment . . . . . . . . . . . . . . . . . . . . . . . . " . . . . . . . . . . . . . . . . . . . . . . 10
3.5 Liability and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6 Insurance ............................:........................ 13
3.7 Security Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.8 Occupancy of Public Ways. . . . . . . . . . . . . . . . . . . . . . . . . . . . i~ . . . . . . . . .. 15
3.9 Sale, Transfer or Assignment ..................................... 19
~ 3.10 Franchise Termination and Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
3.11 Business/Operations Records and Reports ........................... 26
~ 3.12 Consent Commitments ........................................... 28
3.13 Form of Notice .................................................29
3.14 Supervision of the Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
3.15 Payrr1ent Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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4. CONSTRUCTION AND SERVICE REQUIREMENTS ....................... 29
4.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
4.2 Service Area .................................................. 30
4.3 Right of Inspection of Construction ................................ 31
4.4 Right to Ascertain Technical Performance ........................... 31
5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS ................ 31
5.1 System Configuration and Construction Schedule ..................... 31
5.2 Channel Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 32
5.3 Addressability ................................................. 32
5.4 Interconnection ................................................ 32
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5.5 Emergency Override ............................................ 33
5.6 Standby Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33
5.7 Parental Control Lock ............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34 ..
5.8 Service to Public Buildings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34 ;
5.9 Technical Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35 ......
5.10 Tests and Performance Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35
5.11 Performance Evaluation Sessions/Future Needs Assessment. . . . . . . . . . . .. 36
6. SERVICES AND PROGRAMMING .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 37
6.1 General Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 37
6.2 Local Channel ................................................. 38
7. RATES AND CHARGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
7.1 Fee Schedule .................................................. 39
-, 7.2 Subscriber Rates - Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 39
7.3 Rate Regulation . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
8. LIQUIDATED DAMAGES ............................................. 40
8.1 Assessment of Liquidated Damages ................................ 40
8.2 Underlying Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 43
9. SEPARABILITY . . . . . . . . . . . . . . . c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
10. FORCE MAJEURE: GRANTEE'S INABILITY TO PERFORM . . . . . . . . . . . . . . .. 44 ....
11. SUBSCRIBER AND RESIDENT RIGHTS ................................. 44 "II1fIIII'
11.1 Rights of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 44
11.2 Continuity of Service Mandatory .................................. 45
11.3 Grantee Rules and Regulations .................................... 46
11.4 Discontinuance of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'46
12. SERVICE AND PROGRAMMING PARITy................................ 47
13. NONCABLE SERVICE ................................................. 48
14. AGREEMENT CONTROLLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48
EXHIBIT A - Service and Programming
EXHIBIT B - Customer Service Standards
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1. DEFINITIONS
For the purpose of this Agreement, the following words, terms, phrases and their definitions
- shall have the meanings given herein. When not inconsistent with the context, words used in the
.... present tense include the future tense, words in the plural number include the singular number and
words in the singular number include the plural number. The word "shall" is always mandatory and
not merely directory.
1.1 "Agreement" or "Franchise Agreemeq.t" means this Agreement and any amendments
or renewals thereof.
1.2 "Basic Service" means any Cable Service tier which includes the retransmission of
local television broadcast signals.
1.3 "Control or Controlling Interest" means actual working control in whatever manner
exercised. "Control" or "Controlling Interest" as used herein may be held simultaneously by more
than one (1) Person or groups of Persons.
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1.4 "Council" means the Council for the City of Dublin, Ohio.
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1.5 "Cable Act" means the Communications Act of 1934 (47 D.S.C. 151 et seq.). The
Cable Communications Policy Act of 1984 and the Telecommunications Act of 1996; as amend~d.
1.6 The term "Cable System" means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that is designed to provide
Cable Service which includes video programming and which is provided to multiple subscribers
within a community, but such term does not include (1) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (2) a facility that serves only
subscribers without using any public right-of-way; (3) a facility of conunon carrier which is subject,
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in whole or in part, to the provisions of the Cable Act, except that such facility shall be considered
a Cable System to the extent such facility is used in the transmission of video programming directly
to subscribers; or (4) any facilities of any electric utility used solely for operating its electric utility ....
system. ..",
,.1.7 The term "Cable Service" means:
(1) the one-way transmission to subscribers of (i) video programming, or other
programming service, and
(2) subscriber interaction, if any, which is required for the selection or use of such
video programming or other programming service.
1.8 "Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum which is used in a 'Cable System and which is capable of delivering a television channel
as defined by the Federal Communications Commission.
1.9 "Completion of Construction" means that point in time when all distribution facilities
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have been built and installed by the Grantee so as to permit the offering of Cable Service to all of ....".
the potential subscribers in the Cable Service area.
1.10 "Dwelling Unit" means any distinct household.
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1.11 "Effective Date" shall mean the date this franchise is passed by City Council.
1.12 "Federal Communications Commission" and "FCC" mean the federal agency as
presently constituted by the Communications Act of 1934 (47 U.S.C. Sec. 151 et. seq.)
1.13 "Franchise" means the non-exclusive rights granted hereunder to construct, own and
operate a Cable System along the public ways in the City, or within specified areas in the City, and
is not intended to include any license or permit required for the privilege of transacting and carrying
on a business within the City as may be required by laws of the City.
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1.14 "Franchise Fees" means any tax, fee or assessment of any kind imposed by a
franchising authority or other governmental entity on a Grantee or cable subscriber, or both, solely
......... because of their status as such. The term "Franchise Fee" does not include:
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... (a) Any tax, fee or assessment of general applicability (including any such tax,
fee, or assessment imposed on both utilities and cable operators or their services but not including
a tax, fee, or assessment which is unduly discriminatory against Grantee or cable subscribers);
(b) Capital costs which are required by the Franchise to be incurred for public
servIces;
(c) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including, but not limited to, payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
(d) Any fee imposed under Title 17, United States Code.
1.15 "Grantee" means Ameritech New Media, Inc., or any person or entity who or which
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-- succeeds Grantee in accordance with the provisions of this Agreement.
1.16 Gross Revenues: means all cash, credit, property or any kind or nature, or other
consideration received by an Operator arising from or attributable to the sale or exchange of Ca~le
Services by the Operator within the City or in any way derived from the operation of its System for
the provision of such Cable Services, including, but not limited, to monthly fees charged to
Subscribers for Basic Cable Service; monthly fees charged to Subscribers for any optional Cable
Service; monthly fees charged to Subscribers for any tier of Cable Service other than Basic Service;
Pay Television fees; Installation, disconnection, and reconnection and late payment fees; leased
Channel fees; fees, payments, or other consideration received from programmers (exclusive of
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payments in support of marketing); Convertor rentals or sales; and the sale, exchange, or cablecast
of any programming developed on or for community service Channels or institutional users.
Traditional advertising revenues and revenues from home shopping Channels and like Services in ...
which-goods or services are purchased by Subscribers utilizing the System which are not delivered -
to or on behalf of the Subscribers via the System shall not be included in Gross Revenues; provided,
however, that "infomercials" and rental or lease payments for programming or channel time and like
revenues are not classified as advertising revenue. T4is sum shall be the basis for computing the fee
imposed pursuant to Section 3.2 hereof. This sum shall not include any taxes or fees on Cable
Services furnished by an Operator which are imposed upon any Subscriber or user by the state,
county, city or other governmental unit and collected by the Operator on behalf of said governmental
unit. Other than adjustments of Subscriber refunds and uncollectibles, there shall be no other
deductions from this sum unless specified herein. Gross revenues shall also include revenues
received by an Operator's affiliates, subsidiaries, parent, or any person in which an Operator has a ..
financial interest, arising from or attributable to the sale or exchange of Cable Services within the ...-
City, where such revenue was diverted by the Operator in such a manner as to lower Gross Revenues
and therefore the amount of Cable Services Permit Fees paid hereunder. .'
1.17 "Noncable Service" means any service distributed over the System other than a Cable
Service.
1.18 "Person" means an individual, partnership, association, joint stock company, trust,
corporation or governmental entity.
1.19 "Public way" means the surface, the reasonable air space above the surface, and the
area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive,
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or other public right-of-way including public utility easements or rights-of-way, and any temporary
or permanent fixtures or improvements located thereon now or hereafter held by the City which may
..... be utilized for the purpose of installing and maintaining Grantee's Cable System.
...... 1.20 "Resident" means any person residing in the City as otherwise determined by
applicable law.
1.21 "Section" means any section, subsection or provision of this Agreement.
1.22 "Service area" means all of the incorporated area of City.
1.23 "Subscriber" means a member of the general public who lawfully receives
programming distributed by a Cable System and does not further distribute it.
1.24 "Subscriber Network" means a broadband communications network dedicated
primarily for the purpose of distributing video programming to home subscribers, and the secondary
purpose of providing, receiving, amplifying or distributing audio, video, digital or other forms of
electronic or electrical signals to subscribers.
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1.25 "Video programming" means programming provided by, or generally considered
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comparable to programming provided by a television broadcast station.
1.26 "Year" means a full calendar year.
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2. GRANT OF FRANCHISE
2.1 Grant. Grantee is hereby granted for itself, its successors, and assigns, subject to the
terms and conditions of this Agreement, a Franchise, and the authority, right, and privilege, for a
fifteen (15) year period from and after the Effective Date ofthe Franchise, to construct, operate, own,
and maintain a Cable System above, along, within, and under the streets, and public ways and public
places within the City, as the same now or in the future may exist.
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2.2 Right of the City to Issue Franchise. Grantee acknowledges and accepts the right of
the City to issue a Franchise.
. 2.3 Consent Not Exclusive. The Consent granted hereunder is expressly conditioned
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upon the reservation by the City ofthe right through its proper officers, to grant to other persons or IIIIIIfi
corporations, rights, privileges, or authority similar to the rights, privileges, and authority herein set
forth, in the same or other streets and Public ways. All such future grants shall be on similar, but
not necessarily identical terms and conditions except that channel capacity may be different.
2.4 Franchise Acceptance.
2.4.1 Grantee, by executing this Agreement, accepts the Franchise granted herein,
and agrees to be bound by, and guarantees the performance of all the terms and conditions contained
herein.
2.4.2 Grantee, by accepting the Franchise, acknowledges that it has not been induced
to accept the same by any promise, oral or written, by or on behalf of the City or by any third person
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regarding any term or condition imposed by law or this Agreement, not contained herein. Grantee
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further pledges that no promise or inducement, oral or written, has been made to any City employee
or official regarding receipt of the Franchise
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2.5 Rights Reserved to the City. The City shall have the right to exercise its
governmental powers, now or hereafter, to the full extent that the powers may be vested in or granted
to the City. The Grantee acknowledges that its rights hereunder are subject to the power ofthe City
to enact or enforce any consumer protection laws of general applicability not inconsistent with other
laws or this Franchise.
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2.6 Inco1l)oration by Reference of Exhibits. Exhibits A and B, attached hereto, are
hereby incorporated and made a part of this Agreement.
- 3. GENERAL REQUIREMENTS
.... 3.1 Governing Requirements. This Agreement shall be governed by the Cable Act.
3.2 Franchise Fee. Grantee shall pay to the City an annual Franchise fee of up to five
percent (5%) of annual Gross Revenues. Initially the Franchise Fee shall be three percent (3%) of
annual gross revenues. The annual Franchise fee shall be payable quarterly. Grantee's fiscal quarters
for payment of the annual Franchise fee shall extend from January 1 to March 31 for the 1st quarter
from April 1 to June 30 for the 2nd quarter; from July 1 to September 30 for the 3rd quarter; and
from October 1 to December 31 for the 4th quarter. Commencing on the one-year anniversary of
the Effective Date of the Agreement, Grantee shall file with the City within 30 days after the
expiration of each of the quarters stipulated herein, a financial statement clearly showing the gross
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.'".."'" revenues of Grantee during the preceding quarter. Grantee shall also file with the City within 120
days after the expiration of the 4th quarter, an annual report, prepared and certified by the an
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authorized officer showing the yearly total gross revenues.
3.2.1 The City shall have the right to audit and to recompute any amounts determined
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to be payable in satisfaction of the annual Franchise fee. Any additional amount due the City as a
result of the audit shall be paid by Grantee within 30 days after Grantee receives a written notice
from the City. The notice which the City sends to Grantee shall include a copy of the audit report.
Grantee shall pay the cost ofthe audit if the City determines that the annual payment to the City for
the preceding year is thereby increased by more than five percent (5%).
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3.2.2 In the event that payment of any Franchise fee amount which has been
recomputed pursuant to Section 3.2.1 of this Agreement is not made on or before the expiration of
thirty (30) days following written notice by the City, Grantee shall be charged and shall pay, in ....
addition to the amount due, interest on the amount due equal to the prevailing prime rate plus two ......
hundred (200) basis point of interest compounded daily from the due date for payment of the
recomputed amount. The prevailing prime rate shall be the prime rate of Bank One in Columbus,
Ohio.
3.2.3 At any time, the City has the right to lower or raise the Franchise Fee consistent
with applicable law. The City shall provide Grantee with ninety (90) days written notice of the
decrease or increase in the Franchise Fee.
,. 3.3 Payment to City. No acceptance by the City of any payment shall be construed as
an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment
be construed as a release of any claim the City may have for further or additional sums payable under -
the provisions of this Agreement. All amounts paid to the City shall be subject to audit and w
recomputation by the City.
3.3.1 Grantee, within sixty (60) days after receipt from Issuing Authority of a
written itemization, shall reimburse City for its reasonable costs and fees of consultants and outside
counsel, not to exceed $25,000, incurred in connection with the granting of the franchise.
3.4 Form of Payment. Unless otherwise provided in this Agreement, all payments
required by this Agreement to be made payable to the City shall be made payable by check to the
order of City of Dublin c/o the Finance Director.
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3.5 Liability and Indemnity.
3.5.1 As between the City and Grantee, Grantee shall be responsible for any damage
- or loss to any real or personal property, and for injury to or death of any person arising out of or in
....... connection with the construction, operation, maintenance, repair or removal of the Cable System,
or in respect to any of its activities or the activities of any of its subcontractors within the scope of
the provision of Cable Service. Unless the City is solely responsible for any loss of or damage to
property, Grantee shall replace, repair or restore all such property to its prior condition within a
reasonable time and at its own expense.
3.5.2 Except as caused solely by its own actions or omissions or those of its officers,
agents, or employees, the City, its officers, employees, and agents shall not be liable for any loss or
damage to any person, arising out of or in connection with the construction, operation, maintenance,
repair, or removal of the Cable System, or in respect to any activity within the scope of the
- provision of Cable Service.
3.5.3 The City may remove or damage Grantee's facilities in the case of fire, disaster,
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or other emergency, as determined by the City Manager or the Fire Chief. In such event neither the
City nor any agent thereof shall be liable to Grantee for any damage caused to Grantee's facilities
other than to the extent permitted or provided by law.
3.5.4 Other than to the extent permitted or provided by law, the City shall not be
liable to Grantee for any damage or loss caused to any facility under the control of Grantee, as a
result of protection, breaking through, movement, removal, alteration, or relocation of any part of
the Cable System by or on behalf of grantee or the City in connection with any emergency, public
work or public improvement. Except for any emergency, the City shall provide reasonable
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notification to Grantee prior to breaking through, movement, removal, alteration or relocation of any
part of the Cable System, and, except for any emergency, the City shall also provide Grantee with
the opportunity to perform such action on behalf of the City. IIlIII
3.5.5 Other than to the extent permitted or provided by law, the City, its officers, IOIIIIIll'
employees, and agents shall not be liable to Grantee for any damages that may be incurred by
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Grant~e as a result of the City's lawful exercise of any right vested pursuant to this Agreement, or
other applicable laws.
3.5.6 Grantee shall, at its sole cost and expense, indemnify and hold harmless the
City, its committee members, officers, boards, commissions, agents, and employees against any and
all claims, suits, causes of action, proceedings, and judgments for damages and costs and expenses
related thereto, arising out 'of Cable Services delivered by Grantee, or the failure by Grantee to
provide Cable Services, whether or not any act or omission complained of is authorized, allowed,
or prohibited by this Agreement.
IIlIII
Indemnified expenses under this Section shall include, but not be limited to, all out-
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of-pocket expenses, such as attorney's fees. The indemnity contained herein is conditioned upon:
(1) The City or other indemnified party giving Grantee adequate notice of the
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receipt of notice of suit, i.e., service upon the City or other indemnified party of any suit or action
covered by the terms of this Section and prior to settlement of any claim, suit or action.
(2) Affording Grantee the opportunity to participate in and fully control any
compromise, defense, settlement or other resolution or disposition of such claim or proceeding;
(3) Fully cooperating in the defense of such claim and make available to Grantee
all pertinent information under its control relating thereto.
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3.6 Insurance.
3.6.1 At all times during the term ofthis Agreement, including any time for removal
,.... of facilities or management, Grantee shall obtain, maintain, and pay all premiums for all insurance
-... policies described in this Section. Within sixty (60) days of the Effective Date of the Agreement
granted hereunder, Grantee shall file with the City certificates of insurance. Such policies shall
designate the City as an additional named insured. Failure to obtain and maintain any insurance
policy required by this Section shall be deemed a l1J.aterial breach of this Agreement and may be
grounds for termination pursuant to Section 3.13 of this Agreement.
(a) Property Damage Liability -- Two Million Dollars ($2,000,000) per
occurrence with a Five Million Dollar ($5,000,000) umbrella policy. The property damage insurance
required by this Section shall indemnify, defend, and hold harmless Grantee and the City and the
respective committee members, officers, boards, commissions, agents, and employees of each from
and against all claims made by any person for property damage caused by the operation of Grantee
-
under the Franchise herein granted or alleged to have been so caused or alleged to have occurred.
~
(b) Comprehensive Public Liability -- Two Million Dollars ($ 2,000,000) per
occurrence with a Five Million Dollar (5,000,000) umbrella policy. The comprehensive pub.lic
liability insurance required by this Section shall indemnify, defend, and hold harmless Grantee and
the City and the respective board members, officers, boards, commissions, agents, and employees
of each from any and all claims made by any person on account of injury to, or death of a person or
persons caused by the operations of Grantee under the Agreement herein granted or alleged to have
been so caused or alleged to have occurred.
47477-2 11
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(c) Worker Compensation. Grantee shall meet all requirements of all applicable
Ohio worker compensation laws and submit to the city proof that satisfactory worker compensation
policies are in force if requested. ...
_ 3.7 Security Fund. .....
-.. 3.7.1 Upon the Effective Date of the Franchise, Grantee shall deposit into an escrow
account, administered by a bank within the City, the sum of Four Thousand and Five Hundred
Dollars ($4,500), or in the alternative maintain on file with the City a letter of credit in the same
amount. The letter of credit shall be in a form reasonably acceptable to the City Attorney which
shall c.onstitute the Security Fund for the purposes herein provided. This amount shall be in the form
of an irrevocable letter of credit in a form acceptable to the City Attorney. This security fund may
take Qther forms mutually agreed upon between Grantee and the Law Director.
3.7.2 The Security Fund shall be available to the City for the payment of any
liquidated damages assessed against the Grantee pursuant to Section 9.1. ....
3.7.3 The City may withdraw funds from the Security Fund only ifthe Grantee fails -
or refuses to pay the City the amount of any liquidated damages due and owing to the City under this
Agreement within thirty (30) days after receipt of written demand from the City.
"
3.7.4 The Security Fund shall be maintained in the amount of Four Thousand and
Five Hundred Dollars ($4,500) on an annual basis. Within thirty (30) days of any withdrawal
of funds, Grantee shall re-establish the fund in the full amount. Failure to do so shall be deemed a
material breach ofthis Agreement and may be grounds for termination pursuant to Section 3.13 of
this Agreement.
47477-2 12
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...
'-;,~~'"""""~._~=
-,",'''' -'~~ ~- - ",.."",,,,..,,.-~-'-
3.8 Occupancy of Public Ways.
3.8.1 Nothing in this Agreement shall abrogate the right of the City to the extent
- required or permitted by law to perform any public works or public improvement of any description.
..... In the event the Cable System interferes with the construction, operation, maintenance, or repair of
such public works or public projects access to which is granted to Grantee under the terms of this
Agreement, Grantee shall, upon the granting of its request for access, protect or promptly alter or
relocate the Cable System, or any part thereof, as directed by the City Engineer or the City Manager
at Grantee's own expense.
3.8.2 Nothing in this Agreement shall be construed as a waiver or release of the right
of the City in or to public ways within the City. In the event that all or part of a public way is
eliminated, discontinued, and closed, all rights and privileges granted pursuant to this Agreement
with respect to said public way, or any part thereof so eliminated, discontinued and closed, shall
cease upon the Effective Date of the ordinance in which said public way, or any part thereof is
-
ordered closed. The City shall review
-
all applications to close all or part of a public way, and where such applications affect the rights and
privileges granted hereunder shall, as appropriate, make such recommendations regarding ~he
proposed closing to protect and promote the public interest in cable television.
3.8.3 All excavation work performed by Grantee in any public way shall be subject
to all applicable laws, rules, and regulations of the City or any agency thereof. Unless otherwise
provided, nothing in this Agreement shall be deemed to relieve Grantee of the obligation to obtain
all permits, licenses, authorizations, and approvals, or to meet any condition or requirement of any
law, rule, or regulation Of general applicability in respect to the use, installation, construction, repair,
47477~2 13
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-
.
removal, or maintenance of Grantee's facilities in, on, under, or above the public ways within the
City.
3.8.4 Grantee shall utilize existing poles, conduits, and other facilities whenever II1II
practicable, and shall not construct or install any new, different, or additional poles, conduits, or --
other ,facilities until the written approval of the City is obtained, which approval shall not be
unreasonably withheld.
3.8.5 Where electrical, telephone and cable television utility wiring are located
underground, either at the time of initial construction or subsequent thereto, and there is adequate
capacity in the existing utility conduits for television cable, the cable shall be located underground.
If there is not adequate capacity in the existing underground conduits, the City shall determine
whether cable wiring should be located underground or overhead after considering, among other
matters, economic factors impacting upon Grantee's operations. The decision ofthe City respecting
this matter shall be binding on Grantee, provided the decision is not unreasonable, arbitrary or -
capricious. Nothing in this Section shall be construed to supersede any provision of existing laws """
or regulations with respect to the prohibition of the installation of overhead wiring in certain areas
of the City. .'
3.8.6 All transmission lines, equipment, and structures shall be so installed and
located as to cause minimum interference with the rights, appearance, and reasonable convenience
of property owners who adjoin on any public way and at all times Grantee's transmission lines,
equipment and structures shall be kept and maintained in a safe and adequate condition, and in good
order and repair. Grantee shall at all times employ ordinary care and shall install and maintain in
use commonly accepted methods and devices for preventing failures and accidents which are likely
47477 - 2 14
...
-,
.
-~ ,.., '""," -'~'- t
to cause damage, injuries, or nuisances to the public. Any pole or other fixtures placed in any public
way shall be placed in a manner so as not to interfere with the usual travel on the public way.
""""" 3.8.7 Grantee shall, at its own expense and in a manner approved by the City, restore
...... to a condition as good as that existing prior to said work, on a permanent basis, any damage or
disturbance caused to the public way as a result of its operations or construction of its operations on
its behalf. If restoration is not performed to the City's reasonable satisfaction, restoration may be
performed by the City after reasonable notice and opportunity to correct and the reasonable costs
associated therewith shall in that event be billed to Grantee.
3.8.8 At the request of any person holding a valid permit issued by the City to
remove a building, and upon at least seven (7) days' notice, Grantee shall temporarily raise, lower,
or cut its wires as may be necessary to facilitate, the move. The actual expense of the temporary
changes, including standby time, shall be paid by the permit holder, and Grantee shall have the
authority to require payment in advance.
~
3.8.9 Provided reasonable notice is given to the City, Grantee shall have the authority
"-':1_
to trim trees on public property and within utility easements at its own expense as may be reasonably
necessary to protect its wire and facilities, subject to the reasonable direction of the City. Trimming
"
of trees on private property shall require consent of the property owner. The Grantee shall
reasonably compensate the City or property owner for any damages caused by such trimmings.
3.8.10 In no event shall this Section be construed to limit the right of the City to
correct violations ofthis Agreement after giving Grantee appropriate notice of such violation.
47477-2 15
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3.9 Sale. Transfer or Assignment.
3.9.1 The Agreement granted hereunder shall be a privilege to be held in personal
trust by Grantee. It shall not be assigned, transferred, sold, or disposed of, in whole or in part, by ....
voluntary sale, merger, consolidation, or otherwise by forced or involuntary sale, without the prior ...",
consent ofthe City, which shall not be unreasonably withheld. The City may consider the following
factors in the determining whether to grant or withhold consent:
(a) Adequacy offmancialresources to perform the contract, or the ability
to obtain them;
(b) Ability to perform in timely manner, Considering all existing
commitments;
(c) , Existence of satisfactory performance records;
(d) Existence of satisfactory record of integrity and business ethics;
(e) Existence of necessary organization, experience, accounting and ...
operational controls, and technical skills or the ability to obtain them; 'WI
(f) Existence of the necessary construction, technical equipment and
facilities, or the ability to obtain them; and "
(g) Qualification and eligibility to receive this Agreement under applicable
laws and regulations.
(h) Grantee's compliance with this Agreement and all existing laws and
regulations ofthe City of Dublin, the State of Obi 0, the Federal Communications Commission, and
the United States of America,
47477-2 16
..
....
"1'[ .1 r ': , ~"'.~... ~ .., ~""'- '=-'
I
The City may take legal or equitable action to set aside, annul, revoke, or cancel the
transfer ofthe Franchise, if the transfer violates any material provision of this Agreement. A transfer
which violates any material provision shall be deemed a material breach of this Agreement and may
"...
be grounds for termination pursuant to Section 3.10 of this Agreement.
.....
3.9.2 No person who has a Controlling Interest in the Grantee shall transfer, sell,
assign, or othetwise dispose of its or his interest so that control of the Grantee is transferred without
the prior consent of the City which consent shall not be unreasonably withheld. The City may take
legal or equitable action to set aside, annul, revoke, or cancel the transfer of the ownership interest,
if the transfer is not made according to this Agreement; a transfer which violates any such provision
shall be deemed a material breach ofthis Agreement and may be grounds for
termination pursuant to Section 3.10.
3.9.3 Any sale, transfer, or assignment proposed by Grantee shall be preceded by
formal written notification, referring to this section, which shall be filed with the City at least ninety
",.... (90) days prior to any proposed sale, transfer or assignment.
l.....
(a) The City shall reply in writing within thirty (30) days of the request
and shall indicate approval of the request or its determination that a public hearing is necessary due
"
to potential adverse effect on the City or its customers.
(b) If a public hearing is deemed necessary, such hearing shall be
conducted within thirty (30) days of such a determination and notice of any such hearing shall be
given fourteen (14) days prior to the hearing by publishing notice thereof.
(c) Within thirty (30) days after the closing ofthe Public hearing, the City
shall approve or deny in writing the transfer request. Such approval shall not be unreasonably
withheld.
"""" 17
47477-2
..
-
I
3.9.4 The proposed assignee must be able to provide proof of financial, legal,
technical, and, as to controlling Persons, character qualification, as well as, for non-public
companies, a complete disclosure of all those persons holding an ownership interest in the proposed ~
assIgnee. -
3.9.5 In no event shall consent to transfer be required in the event of a transfer or
assignment to an entity Controlling, Controlled by or under the same Control as Grantee. In any
proceeding pursuant to this section, Grantee must demonstrate that the transfer or assignment is to
an entity Controlling, Controlled by or under the same Common Control as Grantee or prior approval
of the City is required.
3.10 Franchise Termination and Renewal.
3.10.1 Termination. In addition to any grounds for termination provided in the Cable
Act, the following constitutes grounds for termination ofthe Franchise in accordance with Section
'.
3.10.3(a): ...
(a) Bankruptcy of Grantee; --
(b) Practice of any fraud or willful misrepresentation of any material fact
upon the City or subscribers by Grantee. .'
3.10.2 Termination After Opportunity to Correct. The following constitutes grounds
for termination of the Franchise Agreement after completion of the procedures set forth in Section
3.10.3(b):
(a) Failure, refusal, or neglect to construct, conduct, operate, or maintain
the Cable System to comply substantially with the material terms of this Agreement;
(b) Failure, refusal or neglect to comply substantially with the conditions
of street occupancy;
18 ..-,
47477-2 ~
~
....
'--._-~"'-""~~"'~'-~"'- - "_C__._ =~"""""'_.._.._......_._,-'~ ~ -'''''"",'''''''~~~',",,"","~~~---==''
f
(c) Arbitrary or capricious discontinuance of Cable Service to subscribers;
(d) Insolvency or inability of Grantee to pay its debts;
~ (e) Failure to pay and/or provide to the City any Franchise fees, financial
- obligation, or benefits provided under Section 6 ofthis Agreement, or pay any damages, costs, or
expenses which the City is compelled to pay by reason of any act or default of Grantee in connection
with this Franchise; or
(f) Other violations of one or more terms and conditions of this
Agreement.
3.10.3 Procedures for Termination.
(a) Non-Compliance Under Section 3.10.1.
Upon a preliminary finding by the City of grounds under Section
3.10.1, written notice shall be given to the Franchisee of intent to, terminate the Franchise, stating
~-.,. the reasons; and a public hearing will be held and Grantee shall be afforded an opportunity to present
evidence on its behalf at such hearing. Upon completion of the hearing the City shall, within a
-
reasonable time, take action on the issue of whether to terminate the Franchise.
(b) Non-Compliance Under Section 3.10.2. ..
(1) Notice. For those acts of non-compliance set forth in Section
3.10.2 of this Agreement, the City shall notify Grantee in writing of the nature and facts of the
noncompliance and shall advise Grantee that it must correct such non-compliance within:
(a) Thirty (30) days after receipt for failure to pay and/or
provide to the City any Franchise fee, financial obligation or benefit to be provided under Section
6 of this Agreement, or any damages, costs, or expenses which the City is compelled to pay by
reason of any act or default of Grantee in connection with this Franchise;
~
47477-2 19
*;......
,
(b) Thirty (30) days after receipt of notice for any other
violations set forth in Section 3.10.2 of this Agreement.
The City shall extend the period for correction if it determines that correction cannot ....
be accomplished within the applicable time period specified above due to the inherent nature of the -
non-cgmpliance.
(2) Actions by City. Upon a finding by the City Manager that
Grantee has materially breached the terms and condit~ons of this Agreement for one or more grounds
set forth in Section 3.10.2 and that Grantee has previously been given notice and has failed to take
corrective actions as required by the City, the City may terminate the Franchise. Prior to action by
the City to terminate this Franchise, Grantee shall be afforded an opportunity to appear before the
City Council at 'a hearing which shall be open to the public. At least ten (10) days prior to such
hearing, the City shall notify Grantee ofthe time and place of hearing and shall provide Grantee with
a written statement of documents, testimony or other evidence expected to be considered at the -
hearing. Grantee shall be afforded an opportunity to present evidence on its behalf at such hearing;
"'"-'
provided, however, that judicial rules of evidence shall not apply to either party with regard to
evidence or material which may be considered at the hearing. Notice of the hearing shall be
.'
published at least ten (10) days prior to hearing in a newspaper of general circulation within the City,
and such notice shall include a statement of the opportunity for public comment at the hearing.
Upon completion of the hearing the City shall, within a reasonable time, take action on the issue of
whether to terminate the Franchise.
3.10.4 Grantee's Termination Obligations. Should the City decide to terminate the
Franchise, Grantee shall continue to operate the Cable System under the terms of this Franchise for
a period not to exceed six (6) months.
-
47477-2 20
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.
3.10.5 Renewal. The City and Grantee agree that any proceedings undertaken by the
City relating to the renewal or extension ofthe Franchise shall be governed by and comply with the
,.... provisions of the Cable Act in effect at the time ofthe renewal request. In the event the procedures
... and substantive protections set forth therein are preempted and/or superseded by the provisions of
any subsequent federal or state law, or such renewal provisions are deemed inapplicable or null and
void, the City retains the right to establish substantive and procedural rights, governing any request
by the Grantee for renewal or extension of the Franchise, to the extent permitted by law.
Concurrent with a request for renewal ofthe Franchise under the provisions of this
Franchise and the Cable Act, the Grantee and City shall undertake a study of future cable-related
community needs and interests at the request of either party. The Grantee shall assist the City, upon
request of the City, in preparing the study of such future cable-related needs and interests. The City
may determine that the study should be conducted by an ind:pendent consultant at the City's
expense.
.~.
3.11 Business/Operations Records and Reports.
-
3.11.1 The Grantee shall keep complete and accurate books of accounts and records
of its business and operations under and in connection with this Franchise. All such books ~nd
records shall be consistent with generally accepted accounting practices and such information shall
be made available for inspection by the City or its designee. All such books and records shall be
retained in Grantee's files not less than three years.
The City or its designee shall have the authority to examine, review, audit and obtain
copies of papers, books, accounts, documents, plans and other records of the Grantee at reasonable
times and for reasonable purposes to enforce this Agreement. Such information shall be made
47477-2 21
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available during nonnal business hours and upon reasonable notice to Grantee. In addition, the City
shall have the right to reasonably inspect, inventory, and appraise the plant, equipment, and other
property of the Grantee within its jurisdiction. Grantee shall fully cooperate in making available its ....
records and otherwise assisting in these activities. City shall preserve the confidentiality of ...
information disclosed to it by the Grantee to the extent permissible by law.
3.11.2 Copies of Grantee's schedule of charges, contract or application fonns for
basic Cable Service, policy regarding the Processing ofsubscriber complaints, delinquent subscriber,
disconnect and reconnect procedures, and any other tenns and conditions adopted as Grantee's policy
in connection with its subscribers shall be filed with the City upon request of City. Grantee shall
maintain work orders inclUding all material subscriber complaints received, corrective actions
completed and all perfonnance tests undertaken, and shall file witb the City upon request a semi-
annual Summary of such work orders.
3.11.3 Within ninety (90) days after the close of Grantee's fiscal year, the Grantee -
shan submit a written annual report in a fonn reasonably accepted by the City, inClUding, the ...,
infonnation in (a) below, and, if requested by the City, tbe infonnation in (b), (c), (d), (e), and (I)
below; ..
(a) A summary of the previous year's (or, in the case of the initial report
year, the initial year's) activities in development of the Cable System, inClUding, but not limited to,
Cable Services begun or discontinued during the reporting year, and the number of subscribers for
each class of Cable Service;
(b) A list of stockholders or other equity investors holding ten percent
(10%) or more ofthe voting interest in the Grantee, as wen as the percentage interest held by each
equity investor.
-
47477-2 22 -
^.,. =~~~",.~~.~"~' ....'-'_..~......~ -,.<_....,._~,~ "'~,"'"",.""'.-""';.AC--',~,..'-~".,.,."~,;_ .. "",", ,.~~ . ,,' '. '." ....,,-.-. ,~",-<._<~_,'-"<
(c) An annual shareholders report if Grantee is a publicly traded entity.
(d) A financial statement for the Dublin Cable System on an allocated
basis. Notwithstanding the above, Grantee shall not be required to provide the reports set forth in
-,1I"!!!;;1!i'...
this paragraph (d) unless Grantee has:
.... (i) requested a change in rates and requiring the prior consent of the
City; or
(ii) requested a franchise amendment in which the financial condition of
Grantee or the financial feasibility of the requested amendment is an
Issue; or
(iii) received a request from the City where such information is necessary
for the enforcement or administration of the franchise.
3.11.4 Upon request of the City, the Gr~tee shall submit to the City copies of all
pleadings and applications submitted by the Grantee to, as well as copies of all non-routine
--
decisions, correspondence and actions by, any Federal, State and local courts and State or Federal
- regulatory agency or commission specifically relating to its Franklin County cable television
operations. Confidential data exempt from public disclosure shall be retained in confidence by!he
City and its authorized agents and shall not be made available for public inspection unless required
by law.
3.12 Consent Commitments. Notwithstanding any other provision of this Agreement,
Grantee will fully abide by the provision ofthis Agreement unless otherwise directed by a Federal,
State or City agency or court to refrain from abiding by these provisions.
"",..-
47477-2 23
3.13 Form of Notice. Unless otherwise specified, any notice required to be given by either
the City or Grantee shall be in writing and shall be sent by certified mail. Grantee's System Manager
and the City Manager shall be the recipient of any notice issued pursuant to this Agreement. ..
3.14 Supervision ofthe Franchise. It shall be the right of the City at all times to be kept .
fully..informed as to all matters in connection with or affecting the construction, reconstruction, .-I
maintenance, operation, and repair ofthe properties of the Grantee, and the conduct of the Grantee's
business in the City Manager and of Cable Service being rendered by the Grantee. Grantee shall use
its best efforts to keep the City, through the City Manager, fully informed of any effective changes
in Federal or State law affecting the operation of cable communications systems.
:3.15 Payment Center. Grantee will make reasomable efforts to maintain, at a minimum,
one payment center in Dublin, at which Dublin customers may, at a minimum, make payments.
4. CONSTRUCTION AND SERVICE REQUIREMENTS
4.1 General. Grantee agrees to construct, operate, and maintain the Cable System subject
...
to supervision and inspection by the City and in full compliance with the regulations, including
applicable amendments, ofthe Federal Communications Commission and all other applicable federal ...
or local laws and regulations, including the latest editions of the National Electrical Safety Code ~d
the National Fire Protection Association National Electrical code. Grantee agrees to use its best faith
efforts to remain a member of Ohio Utility Protection Service (OUPS). Grantee also agrees to place
all new underground distribution cable at least 24 inches deep and agrees to locate all underground
cable with 72 hours notice.
4.2 Service Area. Grantee shall have the right but not the obligation to serve all dwelling
units in the City of Dublin.
47477-2 24
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j
'.1
~." ...._. ~- ....~--...-'O'^,"""......-'_~~"-""~.<__._""...._""._~""~."""..'_>d~~.""~~.,
4.2.1 InstallationlExtension. Grantee agrees to install conduit and/or cable at the
same time, and in conjunction with the installation of other utility facilities in new housing
- developments or other unserved areas located in the Service Area.
4.2.2 Those areas ofthe Service Area which do not have the necessary density of 35
- potential subscribers per linear mile shall be served by Grantee if the potential subscribers agree to
a grant-in-aid of construction on the following terms and conditions.
(1) Written requests to Grantee from a minimum of [10] potential
subscribers per linear mile or an equivalent pro rata number based on the actual length of the
extension.
(2) Grantee shall calculate its then current cost per mile of extension. This
shall be divided by 35 homes per linear mile to arrive at the required per home investment Grantee
must make.
- (3) The potential subscribers requesting Cable Service shall then be
multiplied by Grantee's Investment per home and this total amount shall be subtracted from
- Grantee's current cost per linear mile.
(4) The remaining amount shall then be shared pro rata by the poten~ial
subscribers requesting Cable Service and paid to Grantee prior to the time the extension is made.
4.3 Right of Inspection of Construction. The City shall have the right to inspect all
construction or installation work performed subject to the provisions ofthis Agreement and to make
such tests as it shall find necessary to ensure compliance with the terms ofthis Agreement and other
pertinent provisions of law.
47477-2 25
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4.4 Right to Ascertain Technical Performance.
4.4.1 In order to ascertain the continuing technical performance of the Cable System,
the City shall conduct technical evaluations whenever it determines it necessary. ..,
4.4.2 The City retains the right at all times to conduct technical and/or operational
evaluations of the system if the City believes that reasonable justification exists to warrant said ....
evaluations. The City shall bear the total expense for said evaluations.
5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
5.1 System Configuration and Construction Schedule. The Cable System shall consist
of a subscriber network. This network shall have bi-directional communications capability in its
configuration. Completion of Construction shall occur no later than December 31, 2000.
5.2 Channel Capacity. Grantee shall construct the Cable System with a capacity of not
less than 750 Megahertz (Mhz), and be capable of delivering 110 video channels and be programmed
to at least 48 channels. ...
5.3 Addressability. The Grantee shall make available to subscribers technology which
will, among other things, enable subscribers to receive pay-per-view programming. Using the -
addressable technology, programming changes may be accomplished without waiting for a ca}>le
technician to be dispatched.
5.4 Interconnection. Grantee will fully cooperate with any regional interconnection
authority or city, county, state or federal agency which may be established for the purpose of
providing for the interconnection of Cable Systems beyond the boundaries of the City.
Upon request by the City, Grantee shall negotiate in good faith to interconnect the Cable
System with other Cable Systems in Dublin to distribute Dublin government programming, access,
47477-2 26
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-,~,.~~~~-- ~ ' .>~"",,,,,,,,,, ~~'''''",",,~~-''<'-'''~_'''''~.=''"'.,,",_."~__,,"~".".,~,,_._,~,,~'''''''"'=_'"~'."""",..""~-""",_"",'"",,,,,,,.~_,c~.,,,
.
local origination, and institutional services. Within six (6) months of a request by the City, Grantee
shall report in writing to the City the results of the negotiations. Grantee shall share the costs
- involved to interconnect other Cable Systems. At the City's request, Grantee shall provide to the
City an estimate ofthe impact ofthe costs required to interconnect with other Cable Systems on the
... monthly basic service rate.
5.5 Emergency Override. In the case of any emergency or disaster, the Grantee shall
comply with Federal Emergency Alert System (EAS) regulations, as promulgated by the FCC.
5.6 Standby Power. Grantee shall provide standby power generating capacity at the cable
communications system control center and at all hubs. Grantee shall maintain standby power system
supplies at various locations along the trunk routes. The locations will be determined by the
company based on historic outage reports and other technical data. These battery packs will provide
operating power to the cable. Grantee shall prpvide standby power for critical system elements for
- a minimum of two (2) hours of continuous operation at 0 degrees Fahrenheit in the event of
commercial power failure. Since battery efficiency is a function of temperature, the specification
... is therefore rated at 0 degrees Fahrenheit.
5.7 Parental Control Lock. Grantee shall make available a parental control device ~hat
will allow the subscriber to restrict the reception of any channel.
5.8 Service to Public Buildings. The Grantee shall provide one free installation to the
subscriber network and free monthly basic service to one outlet in all state chartered schools, City
government buildings, fire stations, police stations and libraries which are passed by Grantee's cable.
Installation of additional outlets shall be provided at cost. Grantee shall constmct and maintain for
the City a communications link between City Hall and the Police station, located at 6565 Commerce
47477-2 27
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Parkway. Any electronics necessary at either site shall be the responsibility of the City including,
but not limited to acquisition, repair and replacement. Any maintenance ofthe fiber (or coaxial) link
shall be the responsibility of Grantee. The fiber (or coaxial) cable link shall be constructed within ....
twelve months of the Effective Date ofthe Franchise. In lieu of complying with the provisions of
this Section 5.8 and 6.2, Grantee shall have the option of making a one time election and providing ....i
the Cjty an additional fee equal to 0.5% of Gross Revenues, which fee shall not be a franchise fee
hereunder.
5.9 Technical Standards. The Federal Communications Commission (FCC) Rules and
Regulations, Part 76, Subpart K (Technical Standards), shall apply. Grantee shall, at all times,
comply with the technical standards and testing procedures, set forth by the FCC.
5.10 Tests and Performance Monitoring.
5.10.1 At its sole expense, the City may perform technical tests of the Cable System .....
during reasonable times and in a manner which does not unreasonably interfere with the normal
business operations of the Grantee or the Cable System in order to determine whether Grantee is in -
compliance with this Agreement. Except in emergency circumstances, such tests may be undert~en
only after giving Grantee reasonable notice thereof, not to be less than two (2) business days, and
providing a representative of Grantee an opportunity to be present during such tests.
In addition to the City's authority to perform technical tests, the City, for good cause,
shall have the right and authority to require the Grantee to periodically test, analyze, and report on
the performance of the system. The City may require, for good cause, that the tests be supervised
by a professional engineer or an engineer with proper training and experience approved by the City,
47477-2 28
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_~, . _. _.._~=~~n" " "",,,,,,,,~~,,","'",,,,,,~,..,,,.""~..".~~""",,,.,,"--~....~.,..""..
not on the permanent staff of the Grantee. The City's right to require Grantee to perform such
additional tests shall include requiring tests, analysis and reports covering specific subjects and
.... characteristics based on complaints or other evidence giving the City reasonable grounds to believe
that the complaints or evidence require tests to be performed to protect the public.
..... 5.11 Performance Evaluation SessionslFuture Needs Assessment.
5.11.1 To evaluate technological, economical, and regulatory changes in the state of
the art of cable communications, to facilitate renewal procedures, to promote the maximum degree
of flexibility in the Cable System, and to plan for a continuing, advanced modern system, the City
and Grantee shall comply with the following system and services review provisions set forth in this
section.
5.11.2 The City may require, upon the sixth anniversary of the Effective Date,
performance evaluation sessions.
-- 5.11.3 Each session shall be open to the public with notice of the date, time and
locations of all hearings given by the City at least thirty (30) days prior to the session. Members of
........ the public shall be afforded an opportunity to comment at the sessions. Any materials required by
the City shall be filed in preparation for the session. Copies of all materials filed with the 9ty
Manager in conjunction with this review shall be matters of public record unless deemed otherwise
under applicable State law. During a review and evaluation by City, Grantee shall fully cooperate
with the City in providing such information and documents as City may need to reasonably perform
the review.
5.11.4 Topics which may be discussed at any scheduled or special evaluation session
may include, but shall not be limited to, future needs assessment, state of the art, Cable Service rate
47477-2 29
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structure, franchise fee, penalties, application of new technologies, system performance, services
provided, programming offered, customer complaints, privacy, amendments to the Franchise
Agreement, judicial and FCC rulings, line extension policies, Grantee's ascertainment of community ....
needs and use of the system, insurance requirements, and Grantee or City rules. Either the City or
the Grantee may select additional topics for review. ....
",' 5 .11.5 The log, which may be in the form of computer records, maintained by
.J ~
Grantee regarding subscriber complaints, records of performance tests, and other relevant operation
and service information may be reviewed. In addition, any subscriber may submit complaints
during the review meetings, either orally or in writing, and these may also be considered. Grantee
shall. fully cooperate with the City in providing such information and documents as the City
reasonably needs to perform the review. Grantee shall be represented by its general manager or his
designee.
5.11.6 Within thirty (30) days after conclusion of the system performance review ....
meetings, the City shall issue written findings with respect to the adequacy of system performance
!'l
and quality of Cable Service under this Agreement. If inadequacies are found, the City, may -
exercise its enforcement powers as required by this Agreement and applicable law.
.'
6. SERVICES AND PROGRAMMING
6.1 General Matters. Grantee shall provide the channel capacity, basic services, premium
.c
services and all necessary equipment for the reception ofthe services and programming set forth in
Exhibit A attached hereto, and as otherwise required by this Agreement.
6.2 Local Channel. Grantee shall provide the City with the capability to override the
shared Columbus government access channel (currently Channel 3) in order that the City may
47477-2 30
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program that channel which shall be available to all Dublin subscribers. Said local channel shall be
programmed by the City. Grantee shall provide the equipment necessary for Dublin to originate
- programming on said channel, said equipment shall include a character generator and a remote
k'eyboard necessary to deliver the signal from City Hall to Grantee's hub site or headend and then
.... out to all ofthe subscribers of Dublin.
Grantee shall provide the capability for the City to insert audio-video programming on said
channel from City Hall. Grantee shall be responsible for any equip~ent necessary to insert the
signal onto the Cable System except the VCR. All equipment necessary to produce programming
shall be the responsibility of the City.
6.3 Grantee shall undertake any necessary changes to ensure all Dublin subscribers
shall be able to receive Dublin specific programming on the local channel. Grantee shall make every
effort to ensure that all future areas, that may be annexed by the City will also receive the Dublin
- channel and the emergency override. In the event that Grantee is unable, for technical (i.e. amplifier
cascade) or financial reasons to deliver Dublin programming to these new areas, Grantee will
promptly advise the City, including the reasons therefore, in writing.
-
7. RATES AND CHARGES ..
7.1 Fee Schedule. Fourteen (14) days in advance of Cable System activation, the Grantee
shall provide the City in writing the rates and charges to be initially charged by Grantee for basic
service, as well as all other rates and charges. The Grantee shall give notice to the City of any
modifications to its rates and charges or additional charges thirty (30) days prior to the effective date
thereof.
47477-2 31
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7.2 Subscriber Rates - Conditions.
7.2.1 Grantee shall publish and make available to each potential subscriber and the
City a schedule of all applicable fees and charges for providing Cable Service. ....
7.2.2 Unless specifically authorized by law, Grantee shall not, with regard to fees,
I
,
discriminate or grant any preference or advantage to any person; Grantee may, however, negotiate .....
fees with groups of subscribers as follows: Fees may be negotiated between Grantee and the
Subscribers, or a committee acting on behalf of subscribers, for basic service provided to multiple
dwelling units within an apartment building, condominium, garden apartment, to townhouse
complex under common ownership or to room units within hotels or motels; or to commercial
establishments engaged in the sale of television receivers.
7.2.3 Grantee may for competitive or promotional purposes and at its own discretion,
waive, reduce, or suspend connection or monthly Cable Service fees for specific or indeterminate
periods. ....
7.3 Rate Regulation.
7.3.1 To the extent that Federal or State law or regulation may now, or as the same -
may hereafter be amended, authorize the City to regulate the rates for any particular service ti~rs,
service packages, equipment, or any other services provided by Grantee, the City shall have the right
to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such
regulation for any period oftime, at the sole discretion ofthe City.....,
7.3.2 If and when exercising rate regulation, the City shall consider, along with any
other information it deems necessary or appropriate, the following factors in approving or
disapproving a rate increase request: the ability. of the Grantee to render system services and to
47477-2 32
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~-'--~~'="'-~ ~~ ~~~"-,",;;,;,,,""'-~'-'-'-"'-
-~""
.
derive a reasonable profit therefrom under the existing rate schedule and under the proposed rate
schedule; the revenues and profits derived from system services; the efficiency ofthe Grantee; the
- quality of the Cable Service offered by the Grantee; the fair value cost of the system less
depreciation; a fair rate of return over the life of the Agreement with respect to Grantee's investment;
- fairness to City residents, subscribers, and users. The City may retain rate consultants as it deems
appropriate.
8. LIQUIDATED DAMAGES
8.1 Assessment of Liquidated Damages. Recognizing the difficulty in calculating the
actual monetary damages which would be sustained by the City in the event of default by Grantee
in certain provisions of this Agreement, the City and the Grantee agree that the following shall
constitute the liquidated damage amount to be assessed against the Security Fund that would
reasonably compensate the City for said defaults; provided, however, that beginning the third year
after the Effective Date ofthis Franchise, each of the following amounts shall increase by 5% every
-
three (3) years on a compounded basis. The assessment of these amounts against Grantee shall be
at the sole option of the City and in addition to any other remedies available to the City, as
.........
specifically enumerated in this Agreement, and shall not be construed as penalties, and shall not, jn
any event, exceed Twenty Thousand Dollars ($20,000.00) in the aggregate.
(a) For failure to do, or cure any of the following within thirty (30) days after
written notice to the Grantee that performance or payment is due, the sum of One Hundred Dollars
($100) per day, per occurrence from the date said performance or payment is due:
(1) The payment of any Franchise fee or other payments required under
this Agreement to the City.
47477-2 33
,~
.
(2) Providing equipment or the performance of any public service
commitments provided in Section 6 of this Agreement.
(3) The performance of any testing, inspection or maintenance IIiIIII
requirements or the providing of any reports with regard to such responsibilities as required by this
Agreement. ....
(4) The providing of any data, documents, reports or information.
(5) Compliance with operational or maintenance standards.
(6) The providing of any Cable Services and programming and the staff
and equipment necessary to activate them as required in this Agreement.
(7) Compliance with construction requirements unrelated to construction
schedules.
8.1.1 Customer Service Standard Penalties. Grantee shall comply with the Customer
Service "standards" set forth in Exhibit B. At the request ofthe City, Grantee shall report quarterly, ..
in a form mutually acceptable to the City and Grantee, its performance against the Standards.
In the event Grantee's performance in any quarter falls below the Standards, then -
Grantee must report what steps are being taken to meet the Standards or why corrective action is :pot
necessary (e.g. outages in previous quarter because of a severe storm). Grantee will then report on
a monthly basis, its performance against any Standard which was not previously met until the
Standard is met. Each monthly report shall state what corrective steps are being taken.
In the event that Grantee fails to meet any Standard for two consecutive monthly
reports, liquidated damage of One Hundred Dollars ($100) per day shall be assessed. Prior to
assessment, Grantee shall be afforded an opportunity to petition the City to waive the applicable
47477-2 34
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. ,. . ;'<'; ':", ~.~.'.
customer service standard. The liquidated damages shall continue to be assessed at the rate of One
Hundred Dollars ($100) per day until the monthly reports indicate the Standards are met.
- The City shall have the right to inspect and audit the compilation of Grantee's
Standard reports. The City may also retain independent reports for the purpose of analyzing and
.... auditing Grantee's Standards reports.
8.2 Underlying Obligation. It is agreed between the parties that the payment of any
liquidated damages by Grantee under this provision shall be deemed as adequate compensation to
the City for the damages incurred in the delay in the performance or payment of the obligations
indicated, and shall in no way be construed as relieving Grantee of the underlying obligations
themselves.
9. SEP ARABILITY
Ifthis Agreement or any material section thereof is determined by an appropriate government
..... agency or judicial authority to be invalid or preempted by federal, state or local regulations or laws,
all other provisions of this Agreement shall remain in effect and the City shall have the right to
modify such invalid or pre-empted section in.a manner consistent with the remaining terms ofthe
-
Agreement; provided, however, that no such modification shall impose upon Grantee total finan~ial
obligations in excess of those imposed upon Grantee under this Agreement.
10. FORCE MAJEURE: GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms, conditions, obligations or
requirements of this Agreement is prevented, preempted, delayed or impaired due to any cause
beyond its reasonable control, such inability to perform shall be deemed to be excused and no
penalties for default shall be imposed as a result thereof, provided Grantee has notified the City in
47477-2 35
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. writing within thirty (30) days of this discovery of the occurrence of such an event. Such causes
beyond Grantee's reasonable control shall include, but shall not be limited to, acts of God, non-
delivery by suppliers, technical breakdown, government administration or judicial order or ...
regulation, civil emergencies and labor unrest or strikes.
,
11. ,. SUBSCRIBER AND RESIDENT RIGHTS ......
11.1 Rights of Individuals.
11.1.1 Equal Employment Procedures. Grantee shall comply at all times with all
applicable federal, state and local laws and regulations, and all executive and administrative orders
relating to non-discrimination which are hereby incorporated and made part of this Agreement.
11.1.2 Subscriber Information. The City and Grantee agree that any matter
pertaining to the protection of subscriber privacy shall be governed by and comply with the
provisions of the Cable Act.
11.2 Continuity of Service Mandatory. ...
11.2.1 It shall be the right of all subscribers to continue receiving Cable Service
insofar as their financial and other obligations to Grantee are honored. In the event Grantee elects -
to rebuild, modify, or sell the system, or the City gives notice of intent to terminate or fails to ren~w
this Franchise, Grantee shall act so as to insure continuous, uninterrupted Cable Service.
In the event of a change of Grantee, or in the event a new operator acquires the
system, Grantee shall cooperate with the City and the new Grantee operator in maintaining
continuity of Cable Service to all subscribers. During such period, Grantee shall be entitled to the
revenues for any period during which it operates the system.
47477-2 36
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" -'--- _.~..~~,",,' ~-~""".,-"".",.,~.~...:.~^,..,-~.,.~.",,,," '~""'^""'-'~"'--~~'~-'"~'-~'-'''''-'~'''''''-'''',,,,,"~''~'''~"-
...
'-
11.2.2 In the event Grantee fails to operate the Cable System for seven (7)
consecutive days without prior approval of the City or without just cause, the City may, at its option,
- operate the system or designate an operator until such time as Grantee restores Cable Service under
conditions acceptable to the City or a permanent operator is selected. If the City is required to fulfill
.... this obligation for Grantee, Grantee shall reimburse the City for all reasonable costs or damages that
are the result of Grantee's failure to perform which are in excess of revenues the City receives from
the Cable System. Ifthe City and Grantee cannot agree as to whether the failure to operate the Cable
System was with just cause, the issue of just cause shall be submitted to a court with appropriate
jurisdiction.
11.3 Grantee Rules and Regulations. Grantee shall have the authority to promulgate such
rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable Grantee to "exercise its rights and perform its obligations under this Agreement,
- and to assure uninterrupted Cable Service to each and all of its Subscribers; provided, however, that
such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or
- applicable City, State, and Federal laws, rules and regulations. Such rules, regulations, terms and
conditions which affect Cable Service provided to subscribers shall be provided to the City u~pn
their request.
11.4 Discontinuance of Service.
11.4.1 Disconnection Service. Grantee shall provide disconnection service for
Subscribers wishing to discontinue service. Grantee shall not charge for disconnection service.
Grantee shall pro-rate Subscriber's final bill from the day after the disconnect order is placed.
Grantee shall restore Cable Service to Subscriber's wishing restoration, provided Subscriber shall
first satisfy any previous obligation owed including any additional deposit and/or penalty assigned.
......
47-177-2 37
"l^
... J
11.4.2 The Grantee may disconnect installations and discontinue service to a
subscriber upon failure by the subscriber to pay his/her bill within forty-five (45) days of rendition;
provided, however, the Grantee shall give at least ten (10) days written notice to such delinquent ....
subscriber, delivered either by mail or served in person, stating that Cable Service will be
discontinued unless arrearages are paid before the expiration of the forty-five (45) day period. ...
11.4.3 The Grantee may disconnect installations, discontinue or deny Cable Service
to a person who operates or attempts to operate a .television set on an installation for which no
service fees are being paid (including the operation of more than one television set when the
subscriber is paying for only one outlet), or permits any else to do the same, or who threatens the
safety of any Grantee employee.
12. : SERVICE AND PROGRAMMING PARITY
, After the Completion of Construction, Grantee agrees to program a comparable number of
channels as it programs in other communities in Franklin County. Grantee also agrees to provide ..
the comparable programs and services to Dublin, as it provides to other communities in Franklin
County, except that in no event shall this Section be construed to require: ..
(1) The carrying in Dublin of any other communities' Public, Educational,..or
Governmental channels.
(2) The carrying of an Experimental Channel. For purpose of this section,
"Experimental Channel"shall mean a channel which is carried in Franklin County by Grantee but
is carried for less than six (6) months.
(3) In the event City has regulatory control over Grantee's rates, the City may
enforce this section only if the rates and charges in Dublin are the same or higher than another
community served by Grantee in Franklin County with more channels of programming.
-
-i 7.177 - 2 38
"
.
13. NONCABLE SERVICES. This Agreement shall authorize a Grantee to provide both: (i)
; \ ", ~"~
Cable Services on the System; and (ii) Noncable Services on the System. Subject to any applicable
- provisions of state or federal law, such authority for the non-cable services shall be conditioned upon
acceptance by such Grantee of whatever terms and conditions the City Manager or City Council
..... reasonably determines are appropriate in the circumstances, it being understood and agreed that, at
.
a minimum, such terms and conditions may include payment to the City of compensation in respect
of such Noncable Services at rates different but no greater than those set forth herein; provided that
other competing providers of such Noncable Services are also required to make similar payments
and comply with similar terms and conditions.
14. AGREEMENT CONTROLLING
From,and after the Effective Date hereof, this Agreement shall supersede and replace all of
the terms and conditions any prior Agreement or understanding between the City and Grantee and
"
its predecessors.
-
IN WITNESS 'WHEREOF, the City has caused this Contract to be executed by its proper
officers pursuant to the authority granted by the City Council of the City of Dublin and the
~
Contractor has signed this agreement by its duly authorized officer and has caused its corporate st?al
to be affixed hereunto the day and year first written above.
CITY OF DUBLIN:
BY: ~~'l
Timothy C. Hansley
City Manager 1/
47477-2 39
.......
" , .
Subscribed and sworn to before me on this a j day of .j AN", It-R Y , 199i. ~
TAMARA L. BROWN-Y- ~
Notary Public, State of Ohio ~tt. ci IIIIlIIII
My Commission Expires 8/2/99 Notary Public
(Contractor must indicate whether Corporation, Partnership, Company or Individual) .......
THE PERSON SIGNING SHALL, IN CONTRACTOR:
HIS OWN HANDWRITING, SIGN .
THE PRINCIPAL'S NAME, HIS OWN /tnL2R/Td7/d~fk//4C?
NAME AND HIS TITLE. WHERE
THE PERSON SIGNING FOR A NAME OF COMPANY -
CORPORATION IS OTHER THAN 3Q7 S (J6{/bfJ<g/~ /8rL
THE PRESIDENT OR VICE
PRESIDENT, HE MUST, BY STREET ADDRESS
AFFIDAVIT, SHOW HIS C///CA00 IL 6oGoC
AUTHORITY TO BIND THE
CORPORATION. CITY, STATE, ZIP CODE
tN JJL-/CIZ ~.J, jtt/;J fW~
,
PRINTED NAME ...
1/cP- -
)- /AI'A7.#'C6-
T1TLiY/& d, ...
SIGNATURE tl ~
..
Subscribed and sworn to before me on this JljllL day of ,Yln U Cl r ,j , 1997.
/
. ~4AJ /Jf ~J
OFFICIAL SEAL Notary Public ' ..
SUSAN M. IZBAN ~
NOTARY PUBLIC, STATE OF IlliNOIS
MY COMMISSION EXPIRES 1.6.2002
47477-2 40
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~""'- ~ -~,"~'"'---~-"--
.
EXHIBIT A
SERVICE AND PROGRAMMING
-
.... 0 Sports programming
0 Local and National News programming
0 General programming
0 Family oriented programming
0 Children's programming
0 Weather programming
0 Educational or cultural programming
0 Premium movies
-
-
..
47477-2
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.._~~.,.._.__._-~~.
,
EXHIBIT B
FCC CUSTOMER SERVICE STANDARDS ...,
The following standards are those minimum customer service standards to be met by the Grantee ....
on a quarterly basis. Those standards are based upon normal operating conditions.
Service Call Rate - The number of problems which require a truck trip to the customer's home per
100 customers per month: 6
Service Call Response Time - The number of hours elapsed between the time a customer requests
and the service call has been completed: (a) anytime calls: 90 percent with 24 hours, (b)
appointments: 90 percent within 76 hours.
Installation Response Time - The number of days which elapsed between receiving a customer order
and the completion of the installation: (a) anytime installs: seven days; (b) appointment installs:
14 days.
-
Picture Quality - The percentage of test points in passing the FCC SignallPicture test on a monthly
basis: Ninety Percent (90%) of all test points.
-
Level of Telephone Service - The percentage of incoming telephone calls which are answered within
thirty second by an employee: Eighty percent (80%) of all incoming telephone calls. ..
All Trunks Busy - The amount of time per day when all incoming telephone lines are being used:
Ten percent (10%) of available phone hours.
Telephone Call Abandonment Rate - The percentage of daily telephone calls abandoned before the
call is answered by employee: 10 percent of all incoming calls.
dunn' dublin\franch2. rdl
47477-2
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