HomeMy WebLinkAbout2004-192 Franchise Agrmt - AFNCABLE TELEVISION SYSTEM FRANCHISE AGREEMENT
Cable Services Franchise Agreement ("agreement") dated August/~' ,2004, between
the City of Ashland and Ashland Fiber Network, a division of the City of Ashlland
Department of Electric Utilities ("Grantee").
Recitals:
A. AFN is a cable service provider in the City of Ashland and has requested a
renewal to the franchise dated August 3, 1999, to, operate and maintain a cable
television system within the City of Ashland;
B. City is authorized to grant one or more nonexclusive franchises to construct,
operate, and maintain a cable television system within the city limits; and
C. Grantee is willing to accept this agreement and to abide by the terms and
conditions;
City and Grantee agree:
1. Definitions. For the purposes of this agreement, the following terms, phrases, words
and their derivations shall have the meaning set forth below. When not inconsistent with
the context, words used in the present tense include the future, words in the plural
include the singular, and words in the singular include the plural. Words not defined
shall be given their common and ordinary meaning. The word "shall" is always
mandatory and not merely directory.
1.1. Access means the availability for noncommercial use by various agencies,
institutions, organizations, groups and individuals in the community, including City and
its designees, of the Cable System to acquire, create, receive, and distribute video,
Cable Service, and signals as permitted under applicable law, including, but not
limited to:
1.1.1. Public Access which means Access where organizations, groups or
individual members of the general public, on a nondiscriminatory basis, are the
primary users;
1.1.2. Educational Access which means Access where school.'; and
educational institutions are the primary users of programming and service
1.1.3. Governmental Access which means Access where governmental
institutions are the primary users of programming and service; and
1.1.4. PEG Access which means Public Access, Educational Access, and
Governmental Access, collectively.
1.2. Access Channel means any Channel, or portion of any Channel,
designated for non-commercial Access purposes or otherwise made available to
facilitate or transmit Access programming or service.
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1.3. Basic Service means any service tier which includes the retransmission of
local television broadcast signals and PEG Access Channels.
1.4. Cable Acts means the Cable Communications Policy Act of 198,4 and the
Cable Television Consumer Protection and Competition Act of 1992 and any
amendments, including those contained in the Telecommunications Act of 1996.
1.5. Cable Operator means any Person or group of Persons, including Grantee,
who provide Cable Service over a Cable System and directly owns a significant interest
in such Cable System, or who otherwise control or are responsible for, through any
arrangement, the management and operation of such a Cable System.
1.6. Cable Service means the one-way transmission to Subscribers of video
programming or other programming service and Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming
service.
1.7. 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 Subscribers without using any public
right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except
that such facility shall be considered a Cable System (other than for purposes of
Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand service; (4) an open video system that compllies with
federal statutes; or (5) any facilities of any electric utility used solely for operating its
electric utility systems.
1.8. Channel means a portion of the electromagnetic frequency spec, trum which
is used in a cable system and which is capable of delivering video signal whether in an
analog or digital format. This definition does not restrict the use of any channel to the
transmission of analog video signals.
1.9. Downstream means the transmission from the Headend to remote points
on the Cable System.
1.10. FCC means the Federal Communications Commission.
1.11. Franchise Area means the area within the city limits of Ashland as they
now exist or as they may be amended in the future.
1.12. Gross Revenues means all revenues of Grantee, in any way derived from
the operation of the Cable System to provide Cable Services in the Agreement Area.
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Gross Revenues include, by way of illustration and not limitation, monthly fees charged
Subscribers for any Basic, optional, premium, per-channel, or per-program service;
installation, disconnection, reconnection, and change-in-service fees; leased channel
fees; late fees and administrative fees; revenues from rentals or sales of converters or
other equipment; advertising sales revenues; revenues from program guides; and
revenues from home shopping channels. The term "Gross Revenues" encompasses
any and all revenue of any kind, form or nature including franchise fees passed through
by Grantee to Subscribers, except that the term does not include sales taxes imposed
by law on Subscribers that the Grantee is obligated to collect. With the exception of
recovered bad debt, "Gross Revenues" shall not include bad debt. Gross Revenues
shall not include: 1. Any taxes, fee or assessment of general applicability collected by
the Grantee from Subscribers for pass-through to a government agency, including, the
FCC User Fee; and 2. Any PEG or I-Net amounts recovered from Subscribers.
1.13. Headend means a facility for signal reception and disseminatio~ on a
Cable System, including cables, antennas, wires, satellite dishes, monitors, switches,
modulators, processors and all other related equipment and facilities.
1.14. Interconnection means the provision by Grantee of technical, engineering,
physical, and all other necessary components to maintain a physical linking of
Grantee's Cable System and Cable Service or any designated Channel or siignal
pathway with neighboring Cable Systems, so that Cable Service of technica!lly adequate
quality may be sent to, and received from, other systems in accordance with, this
agreement.
1.15. Leased Access means the use of Channel capacity designated for
commercial use by Persons unaffiliated with Grantee as defined in Section 612 of the
Cable Act.
1.16. Origination Point means a location where Public, Educational, or
Governmental use programming is delivered to the Grantee for Upstream transmission.
1.17. Person means any individual, natural Person, sole proprietorship,
partnership, association, or corporation, or any other form of entity or organization.
1.18. Public Rights of Way include, but are not limited to, streets, roads,
highways, bridges, alleys, sidewalks, trails, paths, public utility easements, and all other
public ways, including the subsurface under and air space over these areas,, excluding
parks and parkways, but only to the extent of City's right, title, interest, or authority to
grant a franchise to occupy and use such streets and easements for a Cable System
and only to the extent that sufficient capacity exists for a Cable System. "Public rights of
way" shall also include any easement granted to or owned by City or County and
acquired, established, dedicated, or devoted for public utility purposes.
1.19. Quarterly, or quarter, means the standard calendar periods of ,January 1 -
March 31, April 1 - June 30, July 1 - September 30, and October 1 - December 31,
unless otherwise specified in this agreement.
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1.20. RVTV means Rogue Valley Community Television as administered by the
Extended Campus Program of Southern Oregon University.
1.21. School means any accredited educational institution, public or private,
including, but not limited to, primary and secondary schools, and colleges and
universities.
1.22. Street means each of the following which have been dedicated to the
public, or which may be dedicated to the public in the future, and maintained under
public authority or by others and located within the Franchise Area: Streets, roadways,
highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and other public
ways.
1.23. Subscriber means any Person who elects to subscribe to, for any
purpose, Cable Service provided by Grantee by means of, or in connection with, the
Cable System, and whose premises are physically wired and lawfully activated to
receive Cable Service from Grantee's Cable System.
1.23.1. Commercial Subscriber means any Subscriber other than a
Residential Subscriber.
1.23.2. Residential Subscriber means any Person who contrac, ts
individually for Cable Service to a residence, whether that residence is a single
family unit or located in a multiple dwelling unit.
1.24. Telecommunications, Telecommunications Facilities and
Telecommunications Services have the same meaning as set forth in Ashland
Municipal Code Title 16.
1.25. Upstream means the carrying of a transmission to the Headend from
remote points on the Cable System.
2. Grant of Franchise.
2.1 Grant.
2.1.1. City grants to Grantee in the public interest a nonexclusiive and
revocable authorization to make lawful use of the Streets and Public Rights of
Way within the Franchise Area to construct, operate, maintain, reconstruct, and
repair a Cable System for the purpose of providing Cable Services.
2.1.2. This agreement is intended to convey limited rights and interests
only as to those Streets and Public Rights of Way, in which the City has an
actual interest. It is not a warranty of title or interest in any right-of-way, it does
not provide the Grantee any interest in any particular location within the right-of-
way, and it does not confer rights other than as expressly provided in this
agreement. This agreement does not deprive the City of any powers, rights, or
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privileges it now has, or may acquire in the future, to use, perform work on, or
regulate the use and control of the City's Streets covered by this agreement,
including without limitation, the right to perform work on its roadways, rights-of-
way, or appurtenant drainage facilities, including constructing, altering, paving,
widening, grading, or excavating.
2.1.3. This agreement is subject to the general lawful police power of City
affecting matters of local government concern and not merely existing
contractual rights of Grantee. Nothing in this agreement shall be deemed to
waive the requirements of the other codes and ordinances of general
applicability enacted, or which may be enacted in the future, by City.
2.1.4. This agreement authorizes Grantee to engage in providing Cable
Service, as that term is defined in 47 U.S.C. Sec. 522(6) as amended. This
agreement shall not be interpreted to prevent the City from imposing Ilawful
additional conditions, including additional compensation conditions for use of the
rights-of-way should Grantee provide service other than Cable Service so long
as similar conditions are also imposed on other similarly situated rights-of-way
users. Nothing in this agreement shall be interpreted to prevent Grantee from
challenging the lawfulness or enforceability of any provisions of applicable law.
2.1.5. Grantee promises and guarantees as a condition of exercising the
privileges granted by this agreement, that any joint venture or partner of the
Grantee directly involved in the offering of Cable Service in the Franchise Area,
or directly involved in the management or operation of the Cable System in the
Franchise Area, will also comply with the terms and conditions of this agreement.
2.2. Use of Public Streets And Ways. Subject to City's supervision and control,
Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on,
over, under, upon, across, and along the public Streets, including rights-of-way and
public utility easements within the Franchise Area, such wires, cables, conductors,
ducts, conduits, vaults, amplifiers, pedestals, attachments, and other property and
equipment as are necessary and appurtenant to the operation of a Cable System for
the provision .of Cable Service within the Franchise Area. Grantee shall comply with all
applicable construction codes, laws, ordinances, regulations and procedures now in
effect or enacted in the future, and must obtain any and all necessary permits from the
appropriate agencies of City prior to commencing any construction activities. Grantee,
through this agreement, is granted extensive and valuable rights to operate iits Cable
System for profit using City's public rights-of-way and public utility easements within the
Franchise Area in compliance with all applicable City construction codes and
procedures. As trustee for the public, City is entitled to fair compensation to be paid for
these valuable rights throughout the term of this agreement.
2.3. Duration. The term of this agreement and all rights, privileges, obligations,
and restrictions pertaining to this agreement shall be from the effective date of this
agreement through June 30, 2009, unless extended or terminated sooner as provided
below.
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2.4. Effective Date. The effective date of this agreement shall be July 1, 2004,,
unless Grantee fails to file an unconditional written acceptance of this agreement and
post any required bond or deposit within 45 days from Grantee's written acceptance of
this agreement. In either event, this agreement shall be null and void, and any and all
rights of Grantee to own or operate a Cable System within the Franchise Area under
this agreement shall be of no force or effect.
2.5. Franchise Nonexclusive. This agreement shall be nonexclusive, and is
subject to all prior rights, interests, agreements, permits, easements or licen:ses granted
by City to any Person to use any street, right-of-way, easements not otherwise
restricted, or property for any purpose whatsoever, including the right of City to use
same for any purpose it deems fit, including the same or similar purposes alllowed
Grantee. City may, at any time, grant authorization to use the public rights-of-way for
any purpose not incompatible with Grantee's authority under this agreement, and for
such additional Franchises for Cable Systems as City deems appropriate, upon
substantially equivalent terms and conditions to those contained in this agreement as
City deems appropriate.
2.6. Grant of Other Franchises.
2.6.1. In the event the City enters into a franchise or other agreement of
any kind with any other Person or entity other than the Grantee to enter into the
City's public ways for the purpose of constructing or operating a Cable System,
or providing Cable Service to any part of the Service Area in which the Grantee
is actually providing Cable Service under the terms and conditions of this
agreement, or is required to extend Cable Service under the provisions of
section 11.2, 11.2, the material provisions of such other franchise or agreement
shall be reasonably comparable to those contained in this agreement, in order
that one operator not be granted an unfair competitive advantage over another.
2.6.2. If City grants a Franchise to a third party for service to an area that
Grantee is not actually serving or required to extend service to, and which has
material provisions that are not reasonably comparable to those contained in this
agreement, City shall offer Grantee a franchise to serve the same area under
terms and conditions that are reasonably comparable to those set forth in the
franchise agreement entered into with the third party.
2.7. Police Powers. Grantee's rights under this agreement are subject to the
lawful police powers of City to adopt and enforce ordinances necessary to the safety,
health, and welfare of the general public and Grantee agrees to comply with all
applicable laws and ordinances enacted, or enacted in the future, by City or any other
legally-constituted governmental unit having lawful jurisdiction over the subject matter of
the enactment.
2.8. Relations to Other Provisions of Law. This agreement and all rights and
privileges granted under it are subject to, and the Grantee must exercise all rights in
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accordance with, applicable law as amended over the Franchise term. This agreement
is a contract, subject to the City's exercise of its police and other regulatory powers and
such applicable law. This agreement does not confer rights or immunities upon the
Grantee other than as expressly provided in the agreement. In cases of conflict
between this agreement and any ordinance of general application enacted pursuant to
the City's police power, the ordinance shall govern. Nothing in this agreement, however,
shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability
of any provision of applicable law. The Franchise issued and the Franchise fee paid are
not in lieu of any other required permit, authorization, fee, charge, or tax, unless
expressly stated in this agreement.
2.8.1. Without limiting the foregoing, by way of example and not limitation, this
agreement shall not include or be a substitute for:
2.8.1.1. Any other permit or authorization required for the privilege of
transacting and carrying on a business within the City that may be required by
the ordinances and laws of the City.
2.8.1.2. Any permit, agreement or authorization required in connection
with operations on or in public streets or property, including by way of example
and not limitation, street cut permits; or
2.8.1.3. Any permits or agreements for occupying any other property of
the City or private entities to which access is not specifically granted by this
Agreement including, without limitation, permits and agreements for placing
devices on or in poles, conduits, other structures, or railroad easements, whether
owned by the City or a private entity.
2.8.2. This agreement does not authorize Grantee to provide
Telecommunications Services, or to construct, operate or maintain Telecommunications
Facilities. This Agreement is not a bar to imposition of any conditions on Grantee with
respect to Telecommunications, whether similar, different or the same as conditions
specified herein. This Agreement does not relieve Grantee of its obligations to obtain an
authorization to provide Telecommunications Services, or to construct, operate or
maintain Telecommunications Facilities, or relieve Grantee of its obligation to comply
with any such authorizations.
2.9. Effect of Acceptance. By accepting the agreement the Grantee: (1)
acknowledges and accepts the City's legal right to issue and enforce the agreement; (2)
agrees that it will not oppose the City's intervening or other participation in any
proceeding affecting the Cable System; (3) accepts and agrees to comply with each
and every provision of this agreement; and (4) agrees that the agreement was granted
pursuant to processes and procedures consistent with applicable law, and that it will not
raise any claim to the contrary.
2.10. Non-Discriminatory Access to Internet Access System. Grantee shall
provide non-discriminatory access to the Grantee's Internet Access System for internet
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service providers, whether or not such providers are affiliated with Grantee. Grantee
may limit such access only in terms of requiring such providers to utilize the network
and technological standards developed by Grantee.
3. FRANCHISE FEE AND FINANCIAL CONTROLS.
3.1. Franchise Fees. As compensation for the benefits and privileges granted
under this agreement, and in consideration of permission to use City's Streets, Grantee
shall pay as a Franchise fee to City, throughout the duration of this agreement, an
amount equal to five percent of Grantee's Gross Revenues including the franchise fee
itself, derived from the operation of the Cable System to provide Cable Service in the
Franchise Area. Accrual of such Franchise fees shall commence as of the effective
date of this agreement. The Franchise fees are in addition to all other fees,
assessments, taxes, or payments of general applicability that the Grantee may be
required to pay under any federal, state, or local law to the extent not inconsistent with
applicable law. This agreement and the Franchise fees are not in lieu of any other
generally applicable required permit, authorization, fee, charge, or tax.
In the event any law or valid rule or regulation applicable to this franchise limits
franchise fees below the five percent of gross revenues, the Grantee agrees to and
shall pay the maximum permissible amount and, if such law or valid rule or regulation is
later repealed or amended to allow a higher permissible amount, then the Grantee shall
pay the higher amount up to the maximum allowable by law, not to exceed five percent
during all affected time periods.
3.2. Payments. Grantee's Franchise fee payments to City shall be computed
quarterly. Each quarterly payment shall be due and made available to City no later than
30 days after the last day of the preceding quarter.
3.3. Acceptance of Payment and Recomputation. No acceptance of any
payment shall be construed as an accord by City that the amount paid is, in fact, the
correct amount, nor shall any acceptance of payments be construed as a release of any
claim City may have for further or additional sums payable or for the perforrnance of
any other obligation of Grantee.
3.4. Quarterly Franchise Fee Reports. Each payment shall be accompanied by
a written report to City containing an accurate statement in summarized forrn, as well as
in detail, and in a form approved by City, of Grantee's Gross Revenues and 'the
computation of the payment amount.
3.5. Annual Franchise Fee Reports. Grantee shall, no later than 180 days after
the end of each calendar year, furnish to City a statement (Audited Gross Receipts
Report) stating the total amount of Gross Revenues and all payments, deductions, and
computations for the period covered by the payments.
3.6. Audits/reviews. On an annual basis, no more frequently than every 12
months, upon 30 days prior written notice, City shall have the right to conduct an
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independent audit or review of Grantee's records reasonably related to the
administration or enforcement of this agreement, in accordance with generally accepted
accounting principles. For purposes of this section, records reasonably related to the
administration and enforcement of this agreement include those financial records
pertaining to the number and location of cable customers within City's Urban~ Growth
Boundary. The City may hire an independent certified public accountant to audit or
review the Grantee's financial records, in which case the Grantee shall provide all
necessary records to the certified public accountant. All such records shall be made
available in the local offices of the Grantee. If the audit or review shows that Franchise
fees have been underpaid by 3% or more, Grantee shall reimburse to City the total cost
of the audit or review and the underpayment plus interest, at the rate specified in
section 3.7 within 30 days of the City's written demand for same.
Records for audit/review purposes shall include without limitation:
3.6.1. Source documents, which demonstrate the original or beginning
amount, and the final amount shown on any report related to or included in the
determination of franchise fees, revenues or expenses.
3.6.2. Source documents that completely explain any and all calculations
related to any allocation of any amounts involving franchise fees, revenues, or
expenses.
3.6.3. Any and all accounting schedules, statements, and any other form
of representation, which relate to, account for, or support or correlate to any
accounts involving franchise fees, revenues or expenses.
3.7. Interest on Late Payments. In the event that a franchise fee payment or
other sum is not received by the City on or before the due date, or is underpaid, the
Grantee shall pay in addition to the payment, or sum due, interest from the clue date at
a rate equal to the legal interest rate on judgments in the State of Oregon.
3.8. Alternative Remedies. If any section, subsection, paragraph, term, or
provision of this Franchise agreement or any ordinance, law, or document incorporated
by reference is held by a court of competent jurisdiction to be invalid, unconstitutional,
or unenforceable, such holding shall be confined in its operation to the section,
subsection, paragraph, term, or provision directly involved in the controversy' in which
such holding shall have been rendered, and shall not in any way affect the validity of
any other section, subsection, paragraph, term, or provision. Under such a
circumstance the Grantee shall, upon the City's request, meet and confer with the City
to consider amendments to the Franchise agreement. The purpose of the amendments
shall be to place the parties, as nearly as possible, in the position that they were in prior
to such determination, consistent with applicable law. In the event the parties are
unable to agree to a modification of this agreement within 60 days either party may (1)
seek appropriate legal remedies to amend the agreement, or (2) shorten the agreement
to 36 months, at which point either party may invoke the renewal procedures under 47
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U.S.C. Subsection 546. Each party agrees to participate in up to 16 hours of negotiation
during the 60 day period.
3.9. Additional Commitments Not Franchise Fees. No term or condition in this
agreement shall in any way modify or affect Grantee's obligation to pay Franchise fees
to City. Although the total sum of Franchise fee payments and additional commitments
set forth elsewhere in this agreement may total more than 5% of Grantee's Gross
Revenues in any 12-month period, Grantee agrees that the additional commitments are
not Franchise fees as defined under any federal law, to the extent not inconsistent with
applicable federal law, nor are they to be offset or credited against any Franchise fee
payments due to City.
3.10. Costs of Publication. Grantee shall pay the reasonable cost of' newspaper
notices and publication pertaining to this agreement, and any amendments, including
changes in control or transfers of ownership, as such notice or publication is reasonably
required by City or applicable law.
3.11. Tax Liability. Payment of the Franchise fees under this agreement shall
not exempt Grantee from the payment of any generally applicable license, permit fee or
other generally applicable fee, tax or charge on the business, occupation, property or
income of Grantee that may be imposed by City.
3.12. Payment on Termination. If this agreement terminates for any reason, the
Grantee shall file with the City within 90 calendar days of the date of the termination, a
financial statement, certified by an independent certified public accountant, showing the
Gross Revenues received by the Grantee since the end of the previous fiscal year. The
City reserves the right to satisfy any remaining financial obligations of the Grantee to
the City by utilizing the funds available in a Letter of Credit or other security provided by
the Grantee.
4. ADMINISTRATION AND REGULATION
4.1. Authority. City is vested with the power and right to regulate the exercise of
the privileges permitted by this agreement in the public interest, or to delegate that
power and right to the extent permitted under state and local law, to any agent, in its
sole discretion.
4.2. Rates and Charges. All of Grantee's rates and charges related t.o or
regarding Cable Service shall be subject to regulation by City to the full extent
authorized by applicable federal, state and local laws.
4.3. Rate Discrimination. All of Grantee's rates and charges shall be published
and shall be nondiscriminatory as to all Persons and organizations of similar' classes,
under similar circumstances and conditions. Grantee shall apply its rates in accordance
with governing law, with similar rates and charges for all Subscribers receiving similar
Cable Service, without regard to race, color, familial, ethnic or national origin, religion,
age, sex, sexual orientation, marital, military or economic status, or physical or mental
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disability, or geographic location in the Franchise Area. Grantee shall provide equivalent
Cable Service to all Residential Subscribers at similar rates and to Commercial
Subscribers as authorized by applicable laws. Nothing in this section shall be construed
to prohibit:
4.3.1. The temporary reduction or waiving of rates or charges i~r~
conjunction with valid promotional campaigns;
4.3.2. The offering of reasonable discounts to senior citizens o~r
economically disadvantaged citizens;
4.3.3. Grantee from establishing different and nondiscriminatory rates and
charges for commercial customers, as well as different nondiscriminator~
monthly rates for commercial customers as allowable by federal law and
regulations; or
4.3.4. Grantee from establishing different and nondiscriminatory rates and
charges for Residential Subscribers as allowable by federal law and regulations.
4.4. Filing of Rates and Charges. Throughout the term of this agreement,
Grantee shall maintain on file with City a complete schedule of applicable rates and
charges for Cable Service provided under this agreement. Nothing in this subsection
shall be construed to require Grantee to file rates and charges under temporary
reductions or waivers of rates and charges in conjunction with promotional campaigns,
and rates for multiple dwelling units.
Grantee shall provide upon request from City a complete schedule of current
rates and charges for any and all Leased Access provided by Grantee. The schedule
shall include a description of the price, terms and conditions established by Grantee for
Leased Access.
4.5. Time Limits Strictly Construed. Whenever this agreement sets forth a time
for any act to be performed by Grantee, such time shall be deemed to be of the
essence, and any failure of Grantee to perform within the allotted time may be
considered a material violation of this agreement and sufficient grounds for City to
invoke any relevant provision of this agreement. However, in the event that Grantee is
prevented or delayed in the performance of any of its obligations under this agreement
by reason of a force majeure occurrence, such as acts of God (for example, floods,
tornadoes, earthquakes or unusually severe weather conditions), Grantee's
performance shall be excused during the force majeure occurrence. After such
occurrence Grantee shall promptly perform the affected obligations under this
agreement or procure a substitute for performance which is satisfactory to C, ity. Grantee
shall not be excused by mere economic hardship nor by misfeasance or malfeasance
of its directors, officers, employees, or duly authorized agents. Notwithstanding the
foregoing, City shall utilize the procedure in section 13 to resolve any material breach
committed by Grantee.
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5. INDEMNIFICATION. Grantee shall, at its sole cost and expense, indemniify, hold
harmless, and defend the City and its officers, boards, commissions, duly authorized
agents, and employees against any and all claims, including, but not limited to, third
party claims, suits, causes of action, proceedings, and judgments for damages or
equitable relief, to the extent such liability arises out of or through the acts or omissions
of the Grantee arising out of the construction, operation or repair of its Cable System
regardless of whether the act or omission complained of is authorized, allowed, or
prohibited by this agreement, provided, however, the Grantee will not be obligated to
indemnify City should City intervene in any proceeding regarding the grant of this
agreement pursuant to section 7. Without limiting in any way the Grantee's obligation to
indemnify the City and its officers, boards, commissions, duly authorized agents, and
employees, as set forth above, this indemnity provision also includes damages and
liabilities such as:
5.1. To persons or property, to the extent such liability arises out of or' through
the acts or omissions of the Grantee, its contractors, subcontractors, and
their officers, employees, or duly authorized agents, or to which the Grantee's
negligence or fault shall in any way contribute;
5.2. Arising out of any claim for invasion of the right of privacy; for defamation
of any Person, firm or corporation; for the violation or infringement of .any
copyright, trademark, trade name, service mark, or patent; for a failure by the
Grantee to secure consents from the owners or authorized distributors of
programs to be delivered by the Cable System; or for violation of any other
right of any Person, to the extent such liability arises out of or through the
acts or omissions of the Grantee, provided, however, that Grantee will not be
required to indemnify City for any claims arising out of use of PEG Access
Channels by City or RVTV;
5.3. Arising out of Grantee's failure to comply with the provisions of any federal,
state or local statute, ordinance, rule or regulation applicable to the Grantee with
respect to any aspect of its business to which this agreement applies, to the
extent such liability arises out of or through the acts or omissions of the Grantee;
and
5.4. Arising from any third party suit, action or litigation, whether brought by a
competitor to Grantee or by any other Person or entity, to the extent such liability
arises out of or through the acts or omissions of the Grantee, whether' such
Person or entity does or does not have standing to bring such suit, ac, tion or
litigation if such action (1) challenges the authority of the City to issue this
agreement to Grantee; or (2) alleges that, in issuing this agreement to Grantee,
the City has acted in a disparate or discriminatory manner.
5.5. The City shall give the Grantee timely written notice of any claim or of the
commencement of any action, suit or other proceeding covered by the indemnity
obligation in this Section. In the event any such claim arises, the City or any
other indemnified party shall tender the defense to the Grantee and the Grantee
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shall have the obligation and duty to defend, settle or compromise any claims
arising from the claim, and the City shall cooperate fully. Grantee shall accept or
decline the tender within 30 days. Grantee shall reimburse reasonable attorney
fees and costs incurred by the City during the 30 day period in which the Grantee
accepts or declines tender. In the event that the Grantee declines defense of the
claim in violation of section 11, the City may defend such claim and seek
recovery from Grantee its expenses for reasonable attorney fees and
disbursements, including expert witness fees, incurred by City for defense and in
seeking such recovery.
6. CUSTOMER SERVICE. Grantee shall render efficient service, make repairs promptly
and interrupt service only for good cause and for the shortest time possible. Such
interruptions, insofar as possible, shall be preceded by notice to subscribers affected
and occur during periods of minimum use.
7. REPORTS AND RECORDS.
7.1. Open Records.
7.1.1. Grantee shall manage all of its operations in accordance with a
policy of keeping its documents and records directly concerning its gross
revenues, including customer identification numbers (e.g. account numbers) and
levels of service, open and accessible to City. City shall have access 'to, and the
right to inspect, any books and records of Grantee. Grantee shall not deny City
access to any of Grantee's records on the basis that Grantee's records are under
the control of any parent corporation, affiliated entity or a third party. City may, in
writing, request copies of any such records or books and Grantee shall provide
such copies within ten business days of the transmittal of such request. If the
requested books and records are too voluminous, or for security reasons cannot
be copied or removed, then Grantee may request, in writing within ten business
days, that City inspect them at one of Grantee's local area offices. If any books
or records of Grantee are not kept in a local office, Grantee will provide or
otherwise make such documents available for inspection and review at the local
office within ten business days.
7.1.2. Grantee shall at all times maintain and allow City, with reasonable
notice, access and the right to review a full and complete set of plans, records
and "as built" maps showing the exact location of all Cable System equipment
installed or in use in the Franchise Area, exclusive of electronics, Subscriber
drops and equipment provided in Subscribers' homes. These maps slhall include
computer maps and shall be maintained in a standard format and medium
specified by the city, in sufficient detail to agreed upon by the City and the
Grantee. City's review of the plans, records, and as-built maps, shall occur at the
Grantee's local office, or, if the Grantee has no office within the city, then at a
location within the city specified by the City.
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7.1.3. The ability for City to obtain records and information from Grantee
is critical to the administration of this agreement. Grantee's failure to comply with
the requirements of this section may result in fines as prescribed in section 13.2.
7.2. Confidentiality. Subject to the limits of the Oregon Public Records Law, City
agrees to treat as confidential any books and records that constitute proprietary or
confidential information under federal or state law, to the extent Grantee makes City
aware, whether verbally or in writing, of such confidentiality. If City believes it must
release any such confidential books and records in the course of enforcing this
agreement, or for any other reason, it shall advise Grantee in advance so that Grantee
may take appropriate steps to protect its interests. If City receives a demand from any
Person for disclosure of any information designated by Grantee as confidential, City
shall, so far as consistent with applicable law, advise Grantee and provide Grantee with
a copy of any written request by the party demanding access to such information within
a reasonable time. Until otherwise ordered by a court or agency of competent
jurisdiction, City agrees that, to the extent permitted by state and federal law, it shall
deny access to any of Grantee's books and records that are deemed to be confidential
as set forth above to any Person.
7.3. Copies of Federal and State Documents. Grantee shall submit to City a
list, or copies of actual documents, of all pleadings, applications, notifications,
communications and documents of any kind, submitted by Grantee or its parent
corporations or affiliates to any federal, state or local courts; regulatory agencies or
other government bodies if such documents specifically relate to the operations of
Grantee's Cable System within the Franchise Area. Grantee shall submit such list or
documents to City no later than 30 days after their filing, mailing or publication. Grantee
shall not claim confidential, privileged or proprietary rights to such documents unless
under federal, state, or local law such documents have been determined to be
confidential by a court of competent jurisdiction, or by a federal or state agency. To the
extent allowed by law, any such confidential material determined to be exempt from
public disclosure shall be retained in confidence by City and its duly authorized agents
and shall not be made available for public inspection.
7.4. Inspection of Facilities. City may inspect upon request any of Grantee's
facilities and equipment to confirm performance under this agreement at any time upon
at least 24 hours notice, or, in case of an emergency, upon demand without prior
notice.
7.5. False Statements. Any intentional false or misleading statement or
representation in any report required by this agreement may be deemed a material
violation of this agreement and may subject Grantee to all remedies, legal olr equitable,
which are available to City under this agreement or otherwise.
7.6. Report Expense. All reports and records required under this or any other
Section shall be furnished, without cost, to City.
8. PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG) ACCESS.
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8.1. General Definitions. With respect to purposes of this section, th,9 following
definitions will apply with respect to PEG use of the Cable System.
8.1.1. "Access Channel" means any Channel, or portion of any Channel,
designated for non-commercial Access purposes or otherwise made available to
facilitate or transmit Access programming or service. Each Access Channel shall
be.six MHz and must be capable of transmitting a standard analog video signal.
The capacity can be used to transmit non-commercial signals in any format, and
can be used to transmit: audio only, video, or other information (including, by
way of example and not limitation, secondary audio, text, digital information,
high-definition signals, and compressed signals.) A non-standard NTSC use
shall be subject to the Grantee's prompt prior review and approval to ensure that
the use will not cause unreasonable technical interference with other .Channels.
Such uses must be in furtherance of PEG uses. Additionally, there shall not be
commercial use or lease of such PEG capacity without the express written
permission of the Grantee.
8.1.2. "Digital Access Channel", as used in this Section, means a Channel
carrying PEG continuous full-motion video programming in a digital format.
Digital Access Channels shall have the same compression ratio and
transmission quality as is used to carry any of the commercial Chann~,_.ls that
deliver programming to the City in a similar format for delivery to each
Subscriber.
8.1.3. "Origination Point" means a location, where PEG programming is
delivered to the Grantee for Downstream transmission.
8.2. Management And Control of Access Channels.
8.2.1. City may authorize RVTV to control and manage the usE; of any and
all Access Facilities provided by Grantee under this agreement, including,
without limitation, the operation of Access Channels. To the extent of such
designation by City, as between RVTV and Grantee, RVTV shall have sole and
exclusive responsibility for operating and managing such Access Facilities. The
City or its designee may formulate rules for the operation of the PEG Access
Channels, consistent with this agreement; such rules shall not be designed to
control the content of Public Access programming. Nothing in this section shall
prohibit the City from authorizing itself or others to manage or co-manage PEG
Access Channels and facilities.
8.2.2. Grantee shall cooperate with the City and RVTV in the u~se of the
Cable System and Access facilities for the provision of PEG Access. Grantee
shall enter into such operating agreements with RVTV as may be necessary to
facilitate and coordinate the provision of PEG Access, provided that such
operating agreements shall not be inconsistent with the terms of this .agreement
and shall be subject to approval by the City.
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8.2.3. Except as provided in this agreement, the City shall allocate Access
resources only to RVTV. The Grantee shall cooperate with the City in such
allocations, in such manner as the City shall direct.
8.2.4. Subject to written authorization from the City, the Grantee shall
have the right to use temporarily any Channel, or portion of any Channel, which
is allocated under this section for PEG uses pursuant to section 611((t) of the
Cable Act.
8.3. Channel Capacity And Use.
8.3.1. Upon the effective date of this agreement, all Access Channels
provided for in this agreement are administered by the City or designee.
8.3.2. Upon the effective date of this agreement, the Grantee shall provide
five Access Channels for distribution of PEG Access programming on the
residential Cable System with provisions for an additional channel for public and
government access uses. Such additional channel shall be made available
when all channels granted pursuant to this paragraph are used for access
purposes with locally produced programming 70% of the available broadcast
time. The programming of additional channels required shall be distinct and
non-repetitive of the previous channels. A program may be repeated no more
than three times for purposes of the trigger calculation. For purposes of this
computation, all time allocated to character generated or similar programming
shall be excluded for the determination of when such channel is in use and
programmed with public and governmental access programming.
8.3.3. The Grantee shall provide connection of all PEG Access Channels
required by this agreement to and from the Grantee's Headend and RVTV's
Headends as of the effective date of this agreement. Grantee agrees to provide
reconnection for RVTV's Headend if it is relocated within 12 months of the
effective date of this agreement, at no charge to City or to RVTV.
8.3.4. If video programming is delivered in a digital format or the City
requests that PEG Channels be digitized, then, in lieu of the Access Channels
provided for in section 8.3.2, there shall be a maximum of 18 PEG continuous,
full-motion video programming Digital Channels ("Digital Access Channels"). The
City shall determine the number of Digital Access Channels to be activated, not
to exceed 18.
8.4. Relocation of Access Channels. Grantee shall provide City with a
minimum of 60 days' notice, and use its best efforts to provide 120 days notiice, prior to
the time PEG Access Channel designations are changed. Grantee shall consult with
City prior to making a final determination regarding any changes in PEG Access
Channel designations/assignments. Any new Channel designations for the PEG Access
Channels provided pursuant to this agreement shall be in full compliance with FCC
signal quality and proof of performance standards.
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8.5. Origination Points.
8.5.1. Additional permanent Origination Points required by the City
or RVTV shall be provided by Grantee within 90 days following receipt of
written notice from City at the expense of City or RVTV.
8.5.2. By mutual agreement by City and Grantee, upon six weeks written
notice in advance of the scheduled cablecast, and provided that an active drop is
available at the desired location, Grantee shall provide additional Origination
Points on a short term basis for the live cablecast of Access Programming. The
incremental, out-of-pocket costs to Grantee shall be paid for by City or RVTV.
Grantee shall not be required to facilitate more than one such Origination Points
in any one week period.
8.5.3. There shall be no charge to the City, nor to any other person for the
use of the upstream capacity from the program origination locations described in
this section, so long as the transmissions are designed for rerouting and
distribution on any PEG Channels.
8.6. Access Interconnections.
8.6.1. The Grantee shall maintain for the duration of this agreement any
and all existing Interconnections of Access Channels with contiguous cable
systems.
8.6.2. Grantee shall be capable of interconnection of PEG Access
Channels in the Cable System and Cable Systems in Franchise Areas that are
geographically adjacent to City, provided that City has secured the written
permission for such Interconnection from the regulatory authority for the adjacent
Franchise Area. The cost of such Interconnections shall be Grantee's so long as
Grantee or Grantee's affiliate owns the adjacent Cable System. If the adjacent
Cable System is not owned by Grantee, the cost for interconnection shall be
equally shared by the two Cable Systems.
8.6.3. All Interconnections shall have the capability of transmitting and
receiving PEG programming. All Interconnections shall be accomplished in a
manner that permits the transmission of signals meeting the technicall standards
of this agreement on all interconnected Channels, consistent with section 8.10.
Installation of all interconnect capacity shall be completed at the Grantee's
expense, except as otherwise provided in this agreement.
8.6.4. The City, or RVTV, shall have the right to control and sclhedule the
operation of all interconnected Access Channels and capacity. In addlition, the
City, or RVTV, shall have the right to use, at its sole discretion and at no cost,
any Access Channels and capacity provided under this agreement for non-
commercial purposes, in furtherance of PEG use. However, the requirement to
interconnect PEG programming with adjacent Cable Systems of willing franchise
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authorities shall not result in an increase in the number of PEG Channels beyond
the number of Access Channels provided for in section 8.3.
8.6.5. The Grantee shall take all necessary steps to ensure that
technically adequate signal quality in compliance with FCC requirements are
initially and continuously provided for all Access Interconnections and Origination
Points.
8.7. Capital Support For Access Costs.
8.7.1 Grantee shall provide $0.75 per month, per Residential :Subscriber
for capital support for PEG Access.
The contribution shall be payable by the Grantee to the City after
notice has been given to Grantee's subscribers and contribution
has been included on subscribers bills. The Grantee shall make its
best efforts to submit the content of notice to subscribers regarding
such changes to the City for review and comment at least 10 days
prior to its printing.
Except for the payment for the fiscal year beginning July 1,2004,
Grantee shall make such payments annually in advance on or
before June 30 of each year for the ensuing fiscal year. The
payment for the fiscal year beginning July 1, 2004, shall be made
within 45 days from Grantee's written acceptance The advance
shall be based upon an estimation of the fees for the ensuing fiscal
year. Any difference in the advance fees and the actual fees will
be reconciled at the end of the fiscal year for which the advance
was made.
8.8. Access Support Not Franchise Fees.
8.8.1. The Grantee agrees that support for Access shall in no way modify
or otherwise affect the Grantee's obligations to pay franchise fees to the City.
The Grantee agrees that although the sum of Franchise fees and the payments
set forth in this section may total more than 5% of the Grantee's Gross
Revenues in any 12 month period, the additional commitments shall not be offset
or otherwise credited in any way against any franchise fee payments under this
agreement.
8.8.2. The City recognizes Franchise fees and certain additional
commitments are external costs as defined under the FCC rate regulations in
force at the time of adoption of this agreement and the Grantee has tlhe right and
ability to include franchise fees and certain other commitments on thc; bills of
cable customers.
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8.9. Access Channels on Lowest Available Tier. All Access Channels
provided to Subscribers under this agreement shall be included by the Grantee, without
limitation, as a part of the lowest available tier offered by the Grantee on its (.gable
System.
8.10. Change in Technology. In the event the Grantee makes any change in
the Cable System and related equipment and Facilities or in the Grantee's signal
delivery technology, which directly or indirectly substantially affects the signa[I quality or
transmission of Access services or programming, the Grantee shall, at its own expense,
take necessary technical steps or provide necessary technical assistance, including the
acquisition of all necessary equipment, and full training of the City's or Access
personnel to ensure that the capabilities of Access services are not diminished or
adversely affected by such change.
8.11. Technical Quality. The Grantee shall maintain all Upstream and
Downstream Access services, Channels and Interconnections at the same level of
technical quality and reliability required by this agreement and all other applicable laws,
rules and regulations for Residential Subscriber Channels. The Grantee shall provide
routine maintenance and shall repair and replace all transmission equipment, including
associated cable and equipment in use upon the effective date of this agreement,
necessary to carry a quality signal to and from the City's or RVTV's facilities. City and
Grantee agree that the point of demarcation will be the input RF connection to
Grantee's Fiber Optics Laser Transmitter, with Grantee responsible for repai[r and
maintenance from the point of demarcation to Grantee's headend.
8.12. Promotional Services. The Grantee shall allow the City to include two bill
stuffers per year. The City or RVTV shall be responsible for the cost of printing its bill
stuffers, the costs of inserting the information into Grantee's bills, and for any
incremental postage costs. Bill stuffers must conform to Grantee's mailing
requirements. Grantee shall be provided an opportunity to review and approve all PEG
bill stuffers.
8.13. Channel Identification. If requested by the City or RVTV, at City or RV-I-V
costs, the Grantee will identify the PEG Channels in its printed and electronic
programming guides, by the general type of programming carried on the Channel.
Grantee will bill the City or RV'I'V for the costs of these listings.
9. GENERAL STREET USE AND CONSTRUCTION.
9.1. Construction.
9.1.1. Subject to applicable laws, regulations and ordinances of City and
the provisions of this agreement, Grantee may perform all construction
necessary for the operation of its Cable System. All construction and
maintenance of any and all facilities within Streets incident to Grantee's Cable
System shall, regardless of who performs the construction, be and remain
Grantee's responsibility. Grantee shall apply for, and obtain, all permiits
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necessary for construction or installation of any facilities, and for excavating and
laying any facilities within the Streets. Grantee shall pay, prior to issuance, all
applicable fees of the requisite construction permits.
9.1.2. Prior to beginning any construction, Grantee shall provide City's
Department of Public Works with a construction schedule for work in the Streets.
All construction shall be performed in compliance with this agreement and all
applicable City Ordinances and Codes, especially AMC Chapter 16.12 and
section 16.12.090. When obtaining a permit, Grantee shall inquire in writing
about other construction currently in progress, planned or proposed, i~n order to
investigate thoroughly all opportunities for joint trenching or boring. Whenever it
is possible and reasonably practicable to joint trench or share bores o.r cuts,
Grantee shall work with other providers, grantees, permittees and franchisees so
as to reduce as far as possible the number of Street cuts.
9.1.3. City shall have the right to inspect all construction or installation
work performed within the franchise area as it shall find necessary to ensure
compliance with the terms of this agreement and other pertinent provisions of
law.
9.2. Location of Facilities. Within 48 hours after notification of any proposed
Street excavation, Grantee shall, at Grantee's expense:
9.2.1. Mark on the surface all of its underground facilities within the area
of the proposed excavation;
9.2.2. Notify the excavator of any unlocated underground facilities in the
area of the proposed excavation; or
9.2.3. Notify the excavator that Grantee does not have any underground
facilities in the vicinity of the proposed excavation.
9.3. Relocation. City shall have the right to require Grantee to change the
location of any part of Grantee's Cable System within the Streets when the public
convenience requires such change, and the expense shall be paid by Grantee. Should
Grantee fail to remove or relocate any such facilities by the date established by City,
City may effect such removal or relocation, and the expense shall be paid by Grantee,
including all costs and expenses incurred by City due to Grantee's delay. If City requires
Grantee to relocate its facilities located within the Streets, City shall make a reasonable
effort to provide Grantee with an alternate location within the Streets.
9.4. Restoration of Streets.
9.4.1. Whenever Grantee disturbs the surface of any Street for any
purpose, Grantee shall promptly restore the Street to at least its prior condition.
When any opening is made by Grantee in a hard surface pavement in any
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Street, Grantee shall refill within 24 hours the opening and restore the surface to
a condition satisfactory to City.
9.4.2. If Grantee excavates the surface of any Street, Grantee shall be
responsible for restoration in accordance with applicable regulations of the
jurisdiction within the area affected by the excavation. City may, after providing
notice to Grantee, refill or repave any opening made by Grantee in the Street,
and the expense shall be paid by Grantee. City may, after providing notice to
Grantee, remove or repair any work done by Grantee that, in the determination
of City, is inadequate. The cost, including the costs of inspection and
supervision, shall be paid by Grantee. All excavations made by Grantee in the
Streets shall be properly safeguarded for the prevention of accidents. All of
Grantee's work under this agreement, and this section in particular, shall be
done in strict compliance with all rules, regulations and ordinances of City. Prior
to making any Street or right-of-way cuts or openings, Grantee shall provide
written notice to City.
9.5. Maintenance and Workmanship.
9.5.1. Grantee's Cable System shall be constructed and maintained in
such manner as not to interfere with sewers, water pipes, or any other property
of City, or with any other pipes, wires, conduits, pedestals, structures, equipment
or other facilities that may have been laid in the Streets by, or under, .City's
authority.
9.5.2. Grantee shall provide and use any equipment necessary to control
and carry Grantee's cable television signals so as to prevent injury to City's
property or property belonging to any Person. Grantee, at its own expense, shall
repair, change and improve its facilities to keep them in good repair, and safe
and presentable condition.
9.6. Reservation of City Street Rights. Nothing in this agreement shall prevent
City or utilities owned, maintained or operated by public entities other than C;ity, from
constructing sewers; grading, paving, repairing or altering any Street; repairing or
removing water mains; or constructing or establishing any other public work or
improvement. All such work shall be done, insofar as practicable, so as not to obstruct,
injure or prevent the use and operation of Grantee's Cable System. However, if any of
Grantee's Cable System interferes with the construction or repair of any Street or public
improvement, including construction, repair or removal of a sewer or water main,
Grantee's Cable System shall be removed or replaced in the manner City shall direct,
and City shall in no event be liable for any damage to any portion of Grantee's Cable
System. Any and all such removal or replacement shall be at the expense of Grantee.
Should Grantee fail to remove, adjust or relocate its facilities by the date established by
City's written notice to Grantee, City may effect such removal, adjustment or' relocation,
and the expense thereof shall be paid by Grantee, including all reasonable costs and
expenses incurred by City due to Grantee's delay.
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9.7. Street Vacation. If any Street or portion of any Street used by Grantee is
vacated by City during the term of this agreement, unless City specifically reserves to
Grantee the right to continue its installation in the vacated Street, Grantee shall, without
delay or expense to City, remove its facilities from such Street, and restore, repair or
reconstruct the Street where such removal has occurred, and place the Street in such
condition as may be required by City. In the event of failure, neglect or refusal of
Grantee, after 30 days' notice by City, to restore, repair or reconstruct such Street, City
may do such work or cause it to be done, and the reasonable cost, as found and
declared by City, shall be paid by Grantee within 30 days of receipt of an invoice and
documentation, and failure to make such payment shall be considered a material
violation of this agreement.
9.8. Discontinuing Use of Facilities. Whenever Grantee intends to discontinue
using any facility within the Streets, Grantee shall submit for City's approval a complete
description of the facility and the date on which Grantee intends to discontinue using
the facility. Grantee may remove the facility or request that City allow it to remain in
place. Notwithstanding Grantee's request that any such facility remain in place, City
may require Grantee to remove the facility from the Street or modify the facility to
protect the public health, welfare, safety, and convenience, or otherwise serve the
public interest. City may require Grantee to perform a combination of modification and
removal of the facility. Grantee shall complete such removal or modification in
accordance with a reasonable schedule set by City. Until such time as Grantee
removes or modifies the facility as directed by City, or until the rights to and
responsibility for the facility are accepted by another Person having authority to
construct and maintain such facility, Grantee shall be responsible for all necessary
repairs and relocations of the facility, as well as maintenance of the Street, in the same
manner and degree as if the facility were in active use, and Grantee shall retain all
liability for such facility. If Grantee abandons its facilities, City may choose to use such
facilities for any purpose whatsoever including, but not limited to, public, governmental,
or educational purposes.
9.9. Hazardous Substances.
9.6.1. Grantee shall comply with all applicable local, state and federal
laws, statutes, regulations and orders concerning hazardous substances relating
to Grantee's Cable System in the Streets.
9.6.2. Grantee shall maintain and inspect its Cable System located in the
Streets. Upon reasonable notice to Grantee, City may inspect Grantee's facilities
in the Streets to determine if any release of hazardous substances has occurred,
or may occur, from or related to Grantee's Cable System. In removing or
modifying Grantee's facilities as provided in this agreement, Grantee shall also
remove all residue of hazardous substances.
9.10. Undergrounding of Cable.
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9.10.1. Wiring.
A. Where all utility lines are installed underground at the time of
Cable System construction, or when such lines are subsequently placed
underground, all Cable System lines or wiring and equipment shall also be
placed underground on a nondiscriminatory basis with other utility lines
services at no additional expense to the City or Subscribers, to the extent
permitted by law and applicable safety codes. Cable must be installed
underground where: (1) all existing utilities are placed underground, (2)
statute, ordinance, policy, or other regulation requires utilities to be placed
underground, or (3) all overhead utility lines are placed underground.
Related Cable System equipment such as pedestals mu~st be
placed in accordance with applicable Code requirements and
underground utility rules as interpreted by each City's appropriate public
works official. In areas where electric or telephone utility wiring is aerial,
the Grantee may install aerial cable, except when a property owner or
resident requests underground installation and agrees to bear the
reasonable additional cost in excess of aerial installation.
B. The Grantee shall utilize existing poles and conduit wherever
possible.
C. This agreement does not grant, give or convey to the Grantee
the right or privilege to install its facilities in any manner on specific utility
poles or equipment of the City or any other Person without their
permission. Copies of agreements for use of poles, conduits or other utility
. facilities must be provided upon request by the City upon demonstrated
need and subject to protecting Grantee's proprietary information from
disclosure to third parties.
9.10.2. Repair and Restoration of Property.
A. Grantee shall protect public and private property from damage. If
damage occurs the Grantee shall promptly notify the property owner
within 24 hours in writing.
B. If public or private property is disturbed or damaged, the
Grantee shall restore the property to its former condition, normal wear and
tear excepted. Public right-of-way or other City property shall be restored,
in a manner and within a timeframe approved by the City's Director of
Public Works or other appropriate designated official. If restoration of
public right-of-way or other property of the City is not satisfactorily
performed within a reasonable time, the Director of Public Works or other
appropriate designated official may, after prior notice to the Grantee, or
without notice where the disturbance or damage may create a risk to
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public health or safety, or cause delay or added expense to a public
project or activity, cause the repairs to be made at the Grantee's expense
and recover the cost of those repairs from the Grantee. Within 30 days of
receipt of an itemized list of those costs, including the costs of labor,
materials and equipment, the Grantee shall pay the City. If suit is brought
upon Grantee's failure to pay for repair or restoration, and if judgment in
such a suit is entered in favor of the City, then the Grantee shall pay all of
the City's actual costs and expenses resulting from the non-payment,
including penalties, interest from the date the bill was presented,
disbursements, attorneys' fees and litigation-related costs. Private
property must be restored promptly, considering the nature of the work
that must be performed and in no event later than 72 hours.
C. Prior to entering onto private property to construct, operate or
repair its Cable System in a manner in which it is assumed thai: temporary
property damage will occur or the work will be of a duration exceeding four
hours, Grantee shall give the Person residing on or using the property
adequate written notice (such as a door hanger which clearly identifies the
anticipated construction) that it intends to work on the property.., a
description of the work it intends to perform and a name and phone
number the Person can call to protest or seek modification of the work.
Work shall be done in a manner that causes the least interfere~nce with
the rights and reasonable convenience of property owners, residents and
users. Such notification is not required when Grantee is performing
connection, disconnection and/or repair of its drop system or in times of
emergency restorations of its plant.
9.10.3. Movement of Cable System For and By City. The City rnay
remove, replace, modify or disconnect Grantee's facilities and equipment located
in the public right-of-way or on any other property of the City in the case of fire,
disaster, or other emergency, or when a project or activity of the City's makes the
removal, replacement, modification or disconnection necessary or less
expensive for the City. Except during an emergency, the City shall provide
reasonable notice to Grantee prior to taking such action and shall, when feasible,
provide Grantee with the opportunity to perform such action. Reasonable notice
to Grantee includes notice by telephone. Following notice by the City, Grantee
shall remove, replace, modify or disconnect any of its facilities or equipment
within any public right-of-way, or on any other property of the City, except that
the City shall provide at least 60 days' written notice of any major capital
improvement project which would require the removal, replacement, rnodification
or disconnection of Grantee's facilities or equipment. If the Grantee fails to
complete this work within the time prescribed and to the City's satisfaction, the
City may cause such work to be done and bill the cost of the work to the
Grantee. Within 30 days of receipt of an itemized list of those costs, the Grantee
shall pay the City.
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9.10.4. Movement for Other Franchise Holders. If any removal,
replacement, modification or disconnection is required to accommodate the
construction, operation or repair of the facilities or equipment of another
Franchise holder, Grantee shall, after at least 30 days' advance written notice,
take action to effect the necessary changes requested by the responsible entity.
Those Persons shall determine how costs associated with the remowd or
relocation shall be allocated.
9.10.5. Movement for Other Permittees. At the request of any Person
holding a valid permit and upon reasonable advance notice, Grantee ..shall
temporarily raise, lower or remove its wires as necessary to permit the moving of
a building, vehicle, equipment or other item. The permit holder must pay the
expense of such temporary changes, and Grantee may require a reasonable
deposit of the estimated payment in advance.
9.10.6. Tree Trimming. Subject to acquiring prior written permission of the
City, the Grantee shall have the authority to trim trees that overhang a public
right-of-way of the City so as to prevent the branches of such trees from coming
in contact with its Cable System, in accordance with applicable codes and
regulations and current, accepted professional tree trimming practices.
9.11. Codes. Grantee shall strictly adhere to all building and zoning codes
currently in effect or in effect in the future. Grantee shall arrange its lines, cables and
other appurtenances, on both public and private property, in such a manner as to not
cause unreasonable interference with the use of said public or private property by any
Person. In the event of such interference, City may require the removal or relocation of
Grantee's lines, cables, and other appurtenances, at Grantee's cost, from the property
in question.
9.12. Standards.
9.12.1. All work authorized and required shall be done in a satin, thorough
and workerlike manner. The Grantee must comply with all safety requirements,
rules, and practices and employ all necessary devices as required by applicable
law during construction, operation and repair of its Cable System. By way of
illustration and not limitation, the Grantee must comply with the National Electric
Code, National Electrical Safety Code and Occupational Safety and Health
Administration (OSHA) Standards.
9.12.2. Grantee shall ensure that individual Cable System drops are
properly bonded to the electrical power ground at the home, and are ,consistent,
in all respects, with the requirements of the National Electric Code and the
National Electrical Safety Code.
10. TEST AND COMPLIANCE PROCEDURES. Upon request, Grantee shall advise
City of schedules and methods for testing the Cable System on a regular basis to
determine compliance with the provisions of applicable FCC technical standards.
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Representatives of City may witness tests, and written test reports may be made
available to City upon request.
As required by FCC Rules, Grantee shall conduct proof of performance tests and
cumulative leakage index tests designed to demonstrate compliance with FCC
requirements. Grantee shall provide City summary written reports of the results of such
tests.
11. SERVICE EXTENSION, CONSTRUCTION, AND INTERCONNECTION
11.1. Equivalent Service. It is Grantee's general policy that all residential
dwelling units in the Franchise Area have equivalent availability to Cable Service from
Grantee's Cable System under nondiscriminatory rates and reasonable terms and
conditions. Grantee shall not arbitrarily refuse to provide Cable Service to andy Person
within its Franchise Area.
11.2. Service Availability.
11.2.1. Grantee shall provide Cable Service in new subdivisions upon the
earlier of either of the following occurrences: (A) Within 60 days of th(; time when
foundations have been installed in 50% percent of the dwelling units in any
individual subdivision; or (B) Within 30 days following a request from a resident.
For purposes of this section, a receipt shall be deemed to be made on the
signing of a service agreement, receipt of funds by the Grantee, receipt of a
written request by Grantee, or receipt by Grantee of a verified verbal request.
Grantee shall provide such service: (i) With no line extension charge except as
specifically authorized elsewhere in this agreement; (ii) At a nondiscriminatory
installation charge for a standard installation, consisting of a drop no longer
than125 feet, with additional charges for non-standard installations computed
according to a nondiscriminatory methodology for such installations, adopted by
Grantee and provided in writing to City; and at nondiscriminatory mon~thly rates
for Residential Subscribers.
11.3. Required Extensions of Service. Whenever the Grantee shall receive a
request for service from at least ten residences within 1320 cable-bearing strand feet
(one-quarter cable mile) of its trunk or distribution cable, it shall extend its Cable
System to such Customers at no cost to the Customers for Cable System extension,
other than the usual connection fees for all Customers within 90 days, provided that
such extension is technically feasible, and if it will not adversely affect the operation, of
the Cable System, or as provided under section 2.6.
11.3.1. No Customer shall be refused service arbitrarily. However, for
unusual circumstances, such as a Customer's request to locate a cable drop
underground, existence of more than 125 feet of distance from distribution cable
to connection of service to Customers, or a density of less than ten residences
per 1320 cable-bearing strand feet of trunk or distribution cable, serviice may be
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made available on the basis of a capital contribution in aid of construction,
including cost of material, labor, and easements. For the purpose of determining
the amount of capital contribution in aid of construction to be borne by the
Grantee and Customers in the area in which service may be expanded, the
Grantee will contribute an amount equal to the construction and other costs per
mile, multiplied by a fraction whose numerator equals the actual number of
residences per 1320 cable-bearing strand feet of its trunks or distribution cable
and whose denominator equals ten residences. Customers who request such
service will bear the remainder of the construction and.other costs on a pro rata
basis. The Grantee may require that the payment of the capital contribution in
aid of construction borne by such potential Customers be paid in advance.
11.3.2. Failure to meet these standards shall subject grantee to
enforcement actions on a per Subscriber basis in section 13.
11.3.3. Connection of Public Facilities. Grantee shall, at no cost to City,
provide one outlet of Basic and expanded basic programming to City' public use
buildings, as designated by City, and all libraries and Schools. In addition, Grantee
agrees to provide, at no cost, one outlet of Basic and expanded basic programming to
all such future public buildings if the drop line to such building does not exceed 125
cable feet or if City agrees to pay the incremental cost of.such drop line in excess of
125 feet, including the cost of such excess labor and materials. Outlets of Basic and
expanded basic programming provided in accordance with this subsection may be used
to distribute Cable Service throughout such buildings, provided such distribution can be
accomplished without causing Cable System disruption and general technical standards
are maintained. Cost for any additional outlets shall be the responsibility of City.
12. STANDBY POWER. Grantee shall provide standby power generating capacity at
the Cable System Headend capable of providing at least 12 hours of emergency
operation. Grantee shall maintain standby power system supplies, to the node, rated for
at least two hours duration. In addition, throughout the term of this agreement, Grantee
shall have a plan in place, along with all resources necessary for implementing such
plan, for dealing with outages of more than two hours. This outage plan and evidence of
requisite implementation resources shall be presented to City no later than 90 days
following the effective date of this agreement.
13. FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE.
13.1. Procedure For Remedying Franchise Violations.
13.1.1. If City believes that Grantee has failed to perform any obligation
under this agreement or has failed to perform in a timely manner, City shall notify
Grantee in writing, stating with reasonable specificity the nature of thE; alleged
violation.
13.1.2. The City must provide written notice of a violation. Upon receipt of
notice, the Grantee will have a period of 30 days to cure the violation or 30 days
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to present to the City a reasonable remedial plan. The City shall, with Grantee's
consent, decide whether to accept, reject, or modify the remedial plan presented
by the Grantee. Fines shall be assessed only in the event that either a cure has
not occurred within 30 days or the City rejects the remedial plan. The procedures
provided in section 13 shall be utilized to impose any fines. The date of violation
will be the date of the event and not the date Grantee receives notice of the
violation provided, however, that if City has actual knowledge of the viiolation and
fails to give the Grantee the notice, then the date of the violation shall be no
earlier than ten business days before the City gives Grantee the notice of the
violation.
Grantee shall have 30 calendar days from the date of receipt of such notice to:
13.1.2.1. Respond to City, contesting City's assertion that a violation has
occurred, and requesting a hearing in accordance with subsection 13..1.5, or;
13.1.2.2. Cure the violation, or;
13.1.2.3. Notify City that Grantee cannot cure the violation within the thirty
30 days, and notify the City in writing of what steps the Grantee shall take to cure
the violation including the Grantee's projected completion date for such cure. In
such case, City shall set a hearing date within 30 days of receipt of such
response in accordance with section 13.1.3.
13.1.3. In the event that the Grantee notifies the City that it cannot cure
the violation within the 30 day cure period, City shall, within thirty 30 days of
City's receipt of such notice, set a hearing. At the hearing, City shall review and
determine whether the Grantee has taken reasonable steps to cure the violation
and whether the Grantee's proposed plan and completion date for cu~re are
reasonable. In the event such plan and completion date are determined by
mutual consent to be reasonable, the same may be approved by the ,City, who
may waive all or part of the fines for such extended cure period in accordance
with the criteria set forth in section 13.1.7.
13.1.4. In the event that the Grantee fails to cure the violation within the
30 day basic cure period, or within an extended cure period approvedl by the City
pursuant to section 13.1.3, the City shall set a hearing to determine what fines, if
any, shall be applied.
13.1.5. In the event that the Grantee contests the City's assertiion that a
violation has occurred, and requests a hearing in accordance with section
13.1.2.1, the City shall set a hearing within 60 days of the City's receipt of the
hearing request to determine whether the violation has occurred, and if a
violation is found, what fines shall be applied.
13.1.6. In the case of any hearing pursuant to this section, City shall notify
Grantee of the hearing in writing and at the hearing, Grantee shall be provided
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an opportunity to be heard, examine City's witnesses, and to present evidence in
its defense. The City may also hear any other person interested in the subject,
and may provide additional hearing procedures as City deems appropriate.
13.1.7. The fines set forth in section 13.2 may be reduced at the
discretion of the City, taking into consideration the nature, circumstances, extent
and gravity of the violation as reflected by one or more of the following factors:
(A) Whether the violation was unintentional;
(B) The nature of the harm which resulted;
(C) Whether there is a history of prior violations of the same or
other requirements;
(D) Whether there is a history of overall compliance, or;
(E) Whether the violation was voluntarily disclosed, admitted or
cured.
13.1.8. If, after the hearing, City determines that a violation exists, City
may use one or more of the following remedies:
(A) Order Grantee to correct or remedy the violation within a
reasonable time frame as City shall determine;
(B) Establish the amount of fine set forth in section 13.2, taking into
consideration the criteria provided for in section 13.1.7 of this
section as appropriate in City's discretion;
(C) Revoke this agreement, or;
(D) Pursue any other legal or equitable remedy available under this
agreement or any applicable law.
13.2. Fines.
13.2.1. Failure to comply with provisions of the agreement may result in
injury to City. It will be difficult to accurately estimate the extent of such injury.
Therefore, the financial penalty provisions of this agreement are intended as a
reasonable forecast of compensation to City for the harm caused by violation of
this agreement, including but not limited to administrative expense, legal fees,
publication of notices, and holding of a hearing or hearings as provided in this
agreement. The fine for violating any provision of this agreement shall be I;250 per day
for every day the violation continues with a cap of $10,000.
13.2.2. Collection of Fines. The collection of fines by the City shall in no
respect affect:
(A) Compensation owed to Subscribers; or
(B) The Grantee's obligation to comply with all of the provisions of
this agreement or applicable law; or
(C) Other remedies available to the City.
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13.3. Revocation. In addition to all other rights and powers retained by the
City under this agreement or otherwise, the City reserves the right to forfeit end
terminate this agreement and all rights and privileges of the Grantee, in wholle or in
part, in the event of a material violation of its terms and conditions. A material
violation by the Grantee shall include, but shall not be limited to the following:
13.3.1. Violation of any material provision of this agreement or any
other agreement between City and Grantee, or any material rule, order,
regulation, standard or determination of the City or authorized agent made
pursuant to this agreement or other agreement;
13.3.2. Attempt to evade any material provision of this agreement or to
practice any fraud or deceit upon the City or its Subscribers or custorners;
13.3.3. Failure to restore service after 48 consecutive hours of
interrupted service system-wide, except when approval of such interruption is
obtained from the City;
13.3.4. Material misrepresentation of fact in the application for or
negotiation of this agreement, or;
13.4. Relationship of Remedies.
13.4.1. Remedies are Non-exclusive. The remedies provided for in this
agreement are cumulative and not exclusive; the exercise of one remedy shall
not prevent the exercise of another remedy, or the exercise of any rights of the
City at law or equity provided that the cumulative remedies may not be
disproportionate to the magnitude and severity for the breach for which they are
imposed. By way of example and not limitation, the collection of fines by City
shall in no respect affect:
(A) Compensation owed to subscribers; or
(B) Grantee's obligation to comply with the provisions of' this
agreement or applicable law.
13.4.2. No Election of Remedies. Without limitation, the recovery of
amounts under the insurance, indemnity or penalty provisions of this agreement
shall not be construed as any of the following: an election of remedies; a limit on
the liability of Grantee under the agreement for fines or otherwise; or an excuse
of faithful performance by Grantee.
13.5. Removal.
13.5.1. In the event of termination, expiration or revocation of this
agreement, City may order the removal of the above-ground Cable System
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facilities and such underground facilities as required by City in order to achieve
reasonable engineering or Street-use purposes, from the Franchise Area at
Grantee's sole expense within a reasonable period of time as determined by
City. In removing its plant, structures and equipment, Grantee shall refill, at its
own expense, any excavation that is made by it and shall leave all Streets, public
places and private property in as good a condition as that prevailing prior to
Grantee's removal of its equipment.
13.5.2. If Grantee fails to complete any required removal to the
satisfaction of City, City may cause the work to be done and Grantee shall
reimburse City for the reasonable costs incurred within 30 days after receipt of
an itemized list of the costs.
13.6. No Recourse Against City. Grantee shall not have any monetary recourse
against City or its officials, boards, commissions, agents or employees for any loss,
costs, expenses or damages arising out of any provision or requirement of this
agreement or its enforcement, in accordance with the provisions of applicable federal,
state and local law. The rights of the City under this agreement are in addition to, and
shall not be read to limit, any rights or immunities the City may enjoy under federal,
state or local law.
13.7. Nonenforcement by City, Grantee is not relieved of its obligation to
comply with any of the provisions of this agreement by reason of any failure of City to
enforce prompt compliance. City's forbearance or failure to enforce any provision of this
agreement shall not serve as a basis to stop any subsequent enforcement. The failure
of the City on one or more occasions to exercise a right or to require compliance or
performance under this agreement or any applicable law shall not be deemed to
constitute a waiver of such right or a waiver of compliance or performance, unless such
right has been specifically waived in writing. Any waiver of a violation is not a waiver of
any other violation, whether similar or different from that waived.
14. ABANDONMENT
14.1. Effect of Abandonment. If the Grantee abandons its System during the
agreement term, or fails to operate its Cable System in accordance with its duty to
provide continuous service, the City, at its option, may operate the Cable System;
designate another entity to operate the Cable System temporarily until the Grantee
restores service under conditions acceptable to the City or until the agreement is
revoked and a new Franchise is selected by the City; or obtain an injunction requiring
the Grantee to continue operations. If the City is required to operate or designate
another entity to operate the Cable System, the Grantee shall reimburse the City or its
designee for all reasonable costs, expenses and damages incurred.
14.2. What Constitutes Abandonment. The City shall be entitled to exercise its
options and obtain any required injunctive relief if:
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14.2.1. The Grantee fails to provide Cable Service in accordance with this
agreement to the Franchise Area for 96 consecutive hours, unless thE; City
authorizes a longer interruption of service, except if such failure to provide
service is due to a force majeure occurrence, as described in section .4.5; or
14.2.2. The Grantee, for any period, willfully and without cause refuses to
provide Cable Service in accordance with this agreement.
15. FRANCHISE RENEWAL AND TRANSFER.
15.1. Renewal.
15.1.1. Any proceedings undertaken by the City that relate to the renewal
of Grantee's agreement shall be governed by and comply with the provisions of
the Cable Act (47 USC §546), unless the procedures and substantive protections
there set forth shall be deemed to be preempted and superseded by the
provisions of any subsequent provision of federal or state law.
15.1.2. In addition to the procedures set forth in the Cable Act, the City
agrees to notify Grantee of the completion of its assessments regarding the
identification of future cable-related community needs and interests, as well as
the past performance of Grantee under the then current Franchise term.
Notwithstanding anything to the contrary set forth in this agreement, City and
Grantee agree, that at any time during the term of the then current agreement,
while affording the public adequate notice and opportunity for comment, City and
Grantee may agree to undertake and finalize negotiations regarding renewal of
the then current agreement and the City may grant a renewal. Grantee and City
consider the terms set forth in this section to be consistent with the express
provisions of the Cable Act.
15.2. Transfer of Ownership or Control.
15.2.1. The Cable System and this agreement shall not be sold, assigned,
transferred, leased, or disposed of, either in whole or in part, either by
involuntary sale or by voluntary sale, merger, consolidation, nor shall 'the title,
either legal or equitable, or any right, interest, or property pass to or vest in any
Person or entity, without the prior written consent of the City, which consent shall
not be unreasonably withheld. Grantee shall reimburse the City for all direct and
indirect fees, costs, and expenses reasonably incurred by the City in considering
a request to transfer or assign the Cable System or this agreement.
15.2.2. The Grantee shall promptly notify the City of any actuall or
proposed change in, or transfer of, or acquisition by any other party of control of
the Grantee. The word "control" as used is this section is not limited to majority
stockholders but includes actual working control in whatever manner exercised.
A rebuttable presumption that a transfer of control has occurred shall arise on
the acquisition or accumulation by any Person or group of Persons of 10% of the
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shares or the general partnership interest in the Grantee, except that this
sentence shall not apply in the case of a transfer to any Person or group already
owning at least a 10% interest of the shares or the general partnership interest in
the Grantee. Every change, transfer or acquisition of control of the Grantee shall
make this agreement subject to cancellation unless and until the City shall have
consented.
15.2.3. The parties to the sale or transfer shall make a written request to
the City for its approval of a sale or transfer and furnish all information required
by law and the City.
15.2.4. The City shall render a final written decision on the request within
120 days of the request, provided it has received all requested information.
Subject to the foregoing, if the City fails to render a final decision on the request
within 120 days, such request shall be deemed granted unless the requesting
party and the City agree to an extension of time.
15.2.5. Within 30 days of any transfer or sale, if approved or deemed
granted by the City, Grantee shall file with the City a copy of the deed,
agreement, lease or other written instrument evidencing such sale or 'transfer of
ownership or control, certified and sworn to 'as correct by Grantee and the
transferee.
15.2.6. In reviewing a request for sale or transfer, the City may inquire into
the legal, technical and financial qualifications of the prospective controlling party
or transferee, and Grantee shall assist the City in so inquiring. The City may
condition said sale or transfer upon such terms and conditions as it deems
reasonably appropriate, provided, however, any such terms and conditions so
attached shall be related to the legal, technical, and financial qualifications of the
prospective controlling party or transferee and to the resolution of outstanding
and unresolved issues of noncompliance with the terms and conditions of this
agreement by Grantee.
15.2.7. The consent or approval of the City to any transfer by the Grantee
shall not constitute a waiver or release of any rights of the City, and any transfer
shall, by its terms, be expressly subordinate to the terms and conditions of this
agreement.
15.2.8. Notwithstanding anything to the contrary in this section, the prior
approval of the City shall not be required for any sale, assignment or transfer of
the agreement or Cable System for cable television system usage to an entity
controlling, controlled by or under the same common control as Grantee
provided that the proposed assignee or transferee must show financial
responsibility as may be determined necessary by the City and must agree in
writing to comply with all provisions of the agreement.
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16. SEVERABILITY. If any section, subsection, paragraph, term or provision of this
agreement is determined to be illegal, invalid or unconstitutional by any court of
competent jurisdiction or by any state or federal regulatory authority having jurisdiction,
such determination shall have no effect on the validity of any other section, subsection,
paragraph, term or provision of this agreement, all of which will remain in full force and
effect for the term of the agreement.
17. MISCELLANEOUS PROVISIONS.
17.1. Preferential or Discriminatory Practices Prohibited. Grantee shall not
discriminate in hiring, employment or promotion on the basis of race, color, creed,
ethnic or national origin, religion, age, sex, sexual orientation, marital status, or physical
or mental disability. Throughout the term of this agreement, Grantee shall fullly comply
with all equal employment or nondiscrimination provisions and requirements of federal,
state and local law and, in particular, FCC rules and regulations.
17.2. Dispute Resolution. Should a dispute arise between the partie:s
concerning any aspect of this agreement which is not resolved by mutual agreement of
the parties, and unless either party believes in good faith that injunctive relief is
warranted, the dispute will be submitted to mediated negotiation prior to any party
commencing litigation. In such event, the City and Grantee agree to participate in good
faith in a non-binding mediation process. The mediator shall be selected by mutual
agreement of the parties. In the absence of such mutual agreement, each party shall
select a temporary mediator, and those mediators shall jointly select a permanent
mediator.
If the parties are unable to successfully conclude the mediation within 45 days
from the date of the selection of the mediator, either party may terminate further
mediation by sending written notice to the other. After written notice has been received
by the other party, either party may pursue whatever legal remedies exist. All costs
associated with mediation shall be borne, equally and separately, by the parties.
17.3. Notices. Throughout the term of the agreement, Grantee shall maintain
and file with City a designated legal or local address for the service of notices by mail. A
copy of all notices from City to Grantee shall be sent, postage prepaid, to such address
and such notices shall be effective upon the date of mailing. At the effective date of this
agreement, such addresses shall be:
AFN Television
90 North Main Street
Ashland, Oregon 97520
All notices to be sent by Grantee to City under this agreement shall be sent,
postage prepaid, and such notices shall be effective upon the date of mailing. At the
effective date of this agreement, such address shall be:
City Administrator
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City of Ashland
20 East Main Street
Ashland, Oregon 97520
Either party may with 30 days prior written notice to the other party, change the
address(es) to which notice shall be sent pursuant to this section 17.3.
17.4. Binding Effect. This agreement shall be binding upon the parties, their
successors and assigns.
17.5. Authority to Amend. This agreement may be amended at any time by
written agreement between the parties.
17.6. Governing Law. This agreement shall be governed in all respects by the
laws of the State of Oregon.
17.7. Captions. The captions and headings of this agreement are for
convenience and reference purposes only and shall not affect in any way th(; meaning
or interpretation of any provisions of this agreement.
17.8. Entire Agreement. This agreement contains the entire agreement
between the parties, supersedes all prior agreements or proposals except as
specifically set forth in this agreement, and cannot be changed orally but only by an
instrument in writing executed by the parties.
17.9. Construction of Agreement. The provisions of this agreement shall be
liberally construed to promote the public interest.
Agreed to this
day of August, 2004.
AFN
Title: ~///~. r~r-..--~, ¢-~,~_.z¢ ¢
By:
Title:
City of Ashland
Mayor
City Recorder
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