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ORDINANCE 45-2011 AN ORDINANCE ACCEPTING THE PROPOSAL OF TIME WARNER CABLE FOR A NON-EXCLUSIVE, TEN (10) YEAR CABLE TELEVISION FRANCHISE SUBJECT TO THE CONDITIONS OF CHAPTER 6 OF THE OWENSBORO MUNICIPAL CODE WHEREAS , pursuant to its powers under Sections 163 and 164 of the Kentucky Constitution, the Owensboro Board of Commissioners may create franchises for cable television systems; and WHEREAS , Chapter 6 of the Owensboro Municipal Code, establishes a cable television franchise for the City of Owensboro; and WHEREAS , pursuant to a Request for Proposals, Time Warner Cable submitted a bid for a cable television franchise in the City of Owensboro which contained a Franchise Agreement to be signed by the Mayor; and WHEREAS, pursuant to the Communications Act of 1934, as amended, the Owensboro Board of Commissioners has determined that Time Warner Cable has substantially complied with all of the bid and application requirements of Chapter 6 of the Owensboro Municipal Code and with applicable law; that Time Warner Cable has the financial, legal and technical ability to provide the service, facilities and equipment it is proposing to provide in its bid; and that Time Warner Cable's bid is reasonable to meet the future needs of the community, taking into account the cost of meeting such needs and interests. NOW, THEREFORE, BE IT ORDAINED BY THE OWENSBORO BOARD OF COMMISSIONERS, AS FOLLOWS: Section 1 . That the bid of Time Warner Cable is hereby accepted and approved for a non-exclusive, ten (10) year cable service television franchise based upon and subject to the terms, specifications, restrictions and obligations set forth in Chapter 6 of the Owensboro Municipal Code and the Franchise Agreement. Section 2. That the Mayor is authorized to sign the Franchise Agreement with Time Warner Cable which memorializes the terms of the cable television franchise. Section 3 . That the statements set forth in the Preamble to this Ordinance are incorporated herein by reference, the same as if set forth at length herein. Section 4 . That if any section, sentence, clause or phrase of this Ordinance is held to be unconstitutional or otherwise invalid, such infirmity shall not affect the validity of the remainder of the Ordinance. Section 5. That this Ordinance shall be effective on the date of its passage and publication. INTRODUCED AND PUBLICLY READ ON FIRST READING, this the 1st day of November, 2011. PUBLICLY READ AND FINALLY APPROVED ON SECOND READING, this the 15th day of November, 2011.
_____ ATTEST: _____ FRANCHISE AGREEMENT TO PROVIDE CABLE TELEVISION SERVICES Between City of Owensboro, KY AND Time Warner NY Cable LLC FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT ("Agreement") is made and between the City of Owensboro, KY (the "Grantor") and Time Warner NY Cable LLC d/b/a Time Warner Cable. WHEREAS, the Grantee has applied under the provisions of Federal law to Grantor for a renewal of its franchise granting it the right to construct and operate a cable television system and provide cable service; and WHEREAS, the Company is providing such service pursuant to a franchise dated November 15, 2011 and has substantially complied with the material terms of the franchise and applicable law; and WHEREAS, the technical ability, financial condition and character of the Grantee and Grantee's plans for constructing and operating the cable system were considered and found adequate and feasible and approved by Grantor at a full public proceeding affording due process; and WHEREAS, the franchise granted herein is non-exclusive NOW, THEREFORE, in consideration of the mutual conditions and covenants contained herein: IT IS MUTUALLY AGREED AS FOLLOWS: SECTION 1. SHORT TITLE This Franchise Agreement shall become known and may be cited as the City of Owensboro/Time Warner Cable Franchise Agreement. SECTION 2. DEFINITIONS All definitions set forth in Chapter 6, Section 6-13 of the Owensboro Municipal Code as in effect on the date hereof pertain to this Franchise Agreement and shall be relevant to the purposes and meaning of this Franchise Agreement except that the following terms as used in this Agreement shall have the meaning set forth herein: 2.1 "Basic Service" means basic service as required by Federal law. 2.2 "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. § § 521-611) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385,106 Stat. 1460 (1992) and the Telecommunications Act of 1996, Pub. Law No. 104-104, 110 Stat. 56 (1996), and as may be further amended. 2.3 "Cable System" or "System" shall have the meaning provided under Section 602(7) of the Cable Act (47 U.S.C. §522(7) as may be amended. 2.4 "Channel" means a portion of the electromagnetic frequency spectrum or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available) which is used in a cable television system and is capable of delivering a television channel as television channel is defined by FCC regulation. 2.5 " Educational Access Channel" means a specifically designated channel for non-commercial use by local public and private school authorities, and shall be managed, scheduled and programmed exclusively by them. 2.6 "Effective Date" is November 15, 2011. 2.7 "Franchise Area" means the territorial area of the City of Owensboro. Such area shall include all areas annexed by the City of Owensboro. For purposes of this Agreement, annexations shall be effective upon sixty (60) days notice from the Grantor to Grantee, including a list of affected addresses. If Grantee is operating a cable system in an annexed area immediately prior to the date of annexation under the terms of another franchise, Grantee may, at its option, continue to operate under the terms of such other franchise until any date up to the expiration of said franchise at which time Grantee will operate its system in the annexed area under the terms of this Franchise. 2.8 " Government Access Channel" means a specifically designated channel for non-commercial local governmental use and shall be managed, scheduled and programmed exclusively by the City. 2.9 "Grantee" means Time Warner NY Cable LLC or any successor thereto. 2.10 " Public Access Channel" means a specifically designated channel available for non-commercial programming produced by residents of communities served by the system. 2.11 "Public Property" means any real property owned by any governmental unit. SECTION 3. GRANT OF AUTHORITY AND GENERAL PROVISIONS. 3.1 Grant of Franchise. A. Upon the Effective Date and subject to the terms and conditions of this Agreement and of applicable law, Grantee is granted a non-exclusive franchise for the occupation and use of the Grantor's Streets for the installation, operation, maintenance, repair, upgrade, and removal of the Cable System (the "Franchise"). This Agreement specifically gives Grantee the right to provide Cable Service via the Cable System within the Franchise Area. This Franchise is granted as a renewal under the provisions of Section 626(h) of the Cable Act and the provisions of Section 6-95 (a) and (b) of the Ordinance do not apply. B. The Franchise Agreement is subject to Chapter 6 of the Owensboro Municipal Code (hereafter referred to as "Cable Ordinance") except as otherwise provided herein. If a particular subject matter is treated in both the Cable Ordinance and this Franchise, only the provisions of this Franchise shall govern. Nothing in this Franchise Agreement shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid, or manner of construction to the extent such are consistent with state and Federal law. 3.2 Right of City to Issue Franchise Franchisee acknowledges and accepts the legal right of the City to issue this Franchise Agreement 3.3 Authority for Use of Streets. A. For the purpose of operating, maintaining, and constructing a Cable System in the Franchise Area, Grantee may erect, install, construct, repair, replace, relocate, reconstruct and retain in, on, over, under, upon, across and along the Streets within the Franchise Area such lines, cables, conductors, poles, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System. B. Grantee shall operate and maintain the Cable System so as not to interfere with other uses of Streets. Grantee shall participate and cooperate in any "one-call" or similar system for the exchange of information on the utility location or work to be conducted. 3.4 Franchise Term. This Franchise shall commence upon November 15, 2011 and shall expire ten (10) years thereafter on November 14, 2021 unless renewed, revoked or terminated sooner as herein provided. 3.5 Extension of System. A. Residents in those areas with a density of at least twenty (20) homes per cable mile, shall be provided service upon payment of the standard installation charge and applicable monthly fees; except that installations requiring aerial drops in excess of one hundred twenty five (125) feet or underground installations shall be considered a non-standard installation to be charged to the subscriber at Grantee's actual cost of installation. B. Service to homes not meeting those density requirements of paragraph (A) above shall be provided on a time plus material basis. C. Grantee shall, upon request, make service available to all commercial establishments located within three hundred feet (300) of its useable trunk at the expense of such commercial establishment. D. Grantee is not required to extend its system or construct plant within private rights-of-way for which Grantee is unable to secure easements or other rights of access on reasonable terms and conditions. 3.6. Police Powers. Grantor reserves the right to adopt in addition to the provisions contained herein and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of its police powers; provided, however, that such regulations are reasonable, not inconsistent with the privileges granted herein and consistent with all federal and state laws, rules, regulations and orders. 3.7 Written Notice. All notices, reports or demands shall be given in writing and shall be hand-delivered or deposited in the United States mail in a sealed envelope, with certified mail postage prepaid thereon, or by express mail or overnight air courier addressed to the party to which notice is being given, as follows:
Such addresses may be changed by either party upon notice to the other party given as provided in this Section. In addition, either party may agree to receive certain notices, reports or demands by email at an email address which it provides to other party. 3.8 Franchise Non-Exclusive. A. The Franchise granted herein is non-exclusive. The Grantor specifically reserves the right to grant, at any time, additional franchises for a cable television system in accordance with state and federal law. The Grantor agrees that any grant of additional franchises by the Grantor to any other entity to provide cable or video service shall not be on terms and conditions that when taken as a whole are more favorable or less burdensome to the franchisee of any such additional franchise than those which are set forth herein. B. If the Grantor grants a cable television franchise to provide cable service to another person on terms which overall provide greater benefits or impose lesser burdens than provided herein, the Grantee agrees to amend this Franchise (effective upon the grant to said other person) to overall provide such greater benefits or lesser burdens. C. (i) Grantee agrees that it will not move, damage, penetrate, replace or interrupt any portion of the Cable Television System of another franchisee without the prior written consent of such other franchisee. Grantee shall indemnify such other franchisee against any damages or expenses incurred by such other franchisee as a result of any removal, damage, penetration, replacement or interruption of the services of such other franchisee caused by the Grantee. (ii) In the event Grantor grants to any other Person (being referred to as "Other Person" in the below quoted paragraph) a franchise, to occupy or use the Streets, or any part thereof, for the construction, operation or maintenance of all or part of a cable television system or any similar system or technology, the Grantor shall include the following language or language to similar effect into any such franchise, consent or other document and/or promptly pass a resolution, conditioning the use of the Streets or any part thereof by any such Person, as follows: "Other Person agrees that it will not move, damage, penetrate, replace or interrupt any portion of the Cable Television System of another franchisee without the prior written consent of such other franchisee. Other Person shall indemnify such other franchisee against any damages or expenses incurred by such other franchisee as a result of any removal, damage, penetration, replacement or interruption of the services of such other franchisee caused by the Other Person." D. Notwithstanding any other provision in this Franchise: In the event any change to state or federal law occurring during the term of this Franchise eliminates the requirement for any person desiring to construct, operate or maintain a cable system in the Franchise Area to obtain a franchise from the Grantor for the construction, operation or maintenance of a cable system, then, Grantee shall have the right to terminate this Franchise and operate the system under the terms and conditions established in applicable law. If Grantee chooses to terminate this Franchise pursuant to this provision, this Franchise shall be deemed to have expired by its terms on the effective date of any such change in law, whether or not such law allows existing franchise agreements to continue until the date of expiration provided in any existing franchise. Furthermore, in the event any change to state or federal law occurring during the term of this Franchise materially alters the regime of cable franchising applicable to any persons desiring to construct, operate or maintain a cable system in the Franchise Area in a way that reduces the regulatory or economic burdens for such person, then, at Grantee's request, Grantor shall agree with Grantee to amend this Franchise to similarly reduce the regulatory or economic burdens on Grantee. It is the intent of this section that, at Grantee's election, Grantee shall be subject to no more burdensome regulation or provided lesser benefits under this Franchise than any other persons that might construct, operate or maintain a cable system in the Franchise Area. SECTION 4. TECHNICAL STANDARDS. 4.1 Technical Standards. The Cable System shall be designed, constructed, and operated so as to meet the technical standards promulgated by the FCC relating to Cable Communications Systems contained in part 76 of the FCC's rules and regulations, as may be amended from time to time. SECTION 5. EAS. 5.1 Emergency Alert System. Grantee shall comply with the Emergency Alert System regulations of the FCC. The emergency alert system shall meet all Federal and State requirements. SECTION 6. CONSTRUCTION PROVISIONS. 6.1 Construction Standards. A. Grantee shall construct and maintain its cable system using materials of good and durable quality. All work involved in the construction, installation, maintenance, and repair of the cable system shall be performed in a safe, thorough, and reliable manner. B. All construction practices shall be in accordance with all applicable Federal and state law and generally applicable local codes. C. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the applicable National Electrical Safety Code and National Electrical Code. D. All of Grantee's plant and equipment (a) shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices; and (b) shall not endanger or interfere with ordinary use of the rights-of-way or unnecessarily hinder or obstruct pedestrian or vehicular traffic. E. Grantee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. 6.2 Construction Codes. A. Grantee shall adhere to all building and zoning codes currently or hereafter applicable to construction in the Franchise Area. B. The Grantor shall have the right to inspect all construction or installation work in the public rights-of-way performed pursuant to the provisions of this Agreement. 6.3 Repair of Streets and Property. A. Any and all Streets, municipal property, or private property, which are destroyed or damaged by Grantee during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the Cable System shall be promptly replaced or repaired by Grantee, at its expense, and restored to a serviceable condition as good as that prevailing prior to Grantee's disturbance of, or damage to, the property. If Grantee fails to repair, replace, or otherwise correct a Street or property following reasonable written notice by the Grantor, the Grantor may complete any repair, replacement, restoration or other correction and invoice Grantee for the same. 6.4 Use of Existing Poles. A. Poles may be erected by Grantee subject to any generally applicable regulation by Grantor with regard to location, height, type, and any other pertinent aspect. It is the responsibility of Grantee to secure agreements for use of poles or conduits owned by third parties. B. Where poles already existing for use in serving the Franchise Area are available for use by Grantee, but it does not make arrangements for such use, the Grantor may require Grantee to use such poles if it determines that the public convenience would be enhanced thereby, and if the Grantee can obtain such use on reasonable terms and conditions and at less cost to Grantee than erecting its own poles. No term or condition shall be reasonable if not consistent with pole attachments rates and conditions established by the FCC and/or the State of Kentucky. 6.5 Undergrounding of Cable. Cable shall be installed underground where the existing telephone and electrical utilities are already underground. In the event the Grantor reimburses any utility for undergrounding, Grantee shall be similarly reimbursed. 6.6 Reservation of Street Rights. A. Nothing in this Agreement shall be construed to prevent the Grantor from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Street; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. B. All such work shall be done, insofar as practicable in such a manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of Grantee. C. If any such property of Grantee shall interfere with the construction or relocation, maintenance or repair of any Street or public improvement, whether it be construction, repair, maintenance, removal or relocation of a sewer, public sidewalk, or water main, Street or any other public improvement, at least thirty (30) days written notice shall be given to Grantee by the Grantor and all such poles, wires, conduits or other appliances and facilities shall be removed or replaced by Grantee in such manner as shall be directed by the Grantor so that the same shall not interfere with the said public work of the Grantor, as reasonably determined by the Grantor and such removal or replacement shall be at the expense of Grantee, provided, however, if any other right-of-way user is compensated for such work by the Grantor, then Grantee shall be similarly compensated. D. Nothing contained in this Agreement shall relieve any Person from liability arising out of the failure to exercise reasonable care to avoid damaging Grantee's facilities while performing any work connected with grading, re-grading, or changing the line of any Street or public place or with the construction or reconstruction of any sewer or water system or with any other work. 6.7 Trimming of Trees. Grantee shall have the authority to trim trees, in accordance with all generally applicable utility restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys, sidewalks, and public places of the Grantor so as to prevent the branches of such trees from interfering with the Cable System. 6.8 Movement of Facilities. In the event it is necessary temporarily to move or remove any of Grantee's wires, cables, poles, or other facilities placed pursuant to this Agreement, in order to lawfully move a large object, vehicle, building or other structure over the Streets of the Franchise Area, upon two (2) weeks written notice by the Grantor to Grantee, Grantee shall move, such of its facilities as may be required to facilitate such movements. The Person requesting the temporary removal shall pay Grantee in advance the costs Grantee incurs in moving its facilities. Any service disruption provisions of this Agreement shall not apply in the event that the removal of Grantee's wires, cables, poles or other facilities pursuant to this Section results in temporary service disruptions. SECTION 7. REPORTING PROVISIONS 7.1 Books and Records Grantee shall make its books and records available to Grantor as provided in Section 6-81(a) of the Ordinance, not 6-81(b). 7.2 Confidentiality Subject to applicable law, Grantor shall maintain as confidential any information provided to it by Grantee under the terms of this Franchise which Grantee has designated as confidential. 7.3 Reports Reports required by the Ordinance shall be filed with the City upon request, except for reports under Section 6-82(6) and (8) which shall be provided without request. SECTION 8. CUSTOMER SERVICE 8.1 Customer Service Grantee shall comply with a customer service provisions of the Ordinance. The only exception being that the office requirement shall be as provided in Section 6-81(a) of the Ordinance not Section 6-72(a). Said office will be located in Daviess County and be capable of receiving inquiries, requests and complaints concerning the system and of accepting payment of subscribers' service charges. 8.2 Parental Control Devices Franchisee shall provide to subscribers, upon request, parental control devices that allow any channel or all channels to be locked out. Such devices shall block both the video and the audio portion of such channels to the extent that both are unintelligible. Parental control may be provided by Franchisee as a feature of a converter. Franchisee shall notify subscribers annually of the availability of parental control devices. SECTION 9. PEG ACCESS A. Franchisee shall supply, without charge, the following PEG access channels: two educational access channels for local (City of Owensboro and Daviess County) public schools; one public access channel; one government access channel; one educational access channel for the Owensboro Community College Whenever the public access channel(s), the education access channel(s), or the government access channel(s) is (are) in use for locally produced original programming only, and excluding, without limitation, character-generated programming and repeats, 80 percent of the time, for six (6) consecutive months, and there is demand for use of an additional channel for the same purpose, Grantee shall then have six months, after receipt of request from the Grantor, in which to provide a new access channel for the same purpose up to a maximum of three (3) additional access channels, provided that such additional channel(s) may be placed on any tier selected by Franchise. Grantor acknowledges that each of the PEG channels may be transmitted by Grantee in either analog or digital format as determined by Grantee and Grantor shall not object to the transmission format(s) chosen. B. Section 6-75(b) of the Ordinance notwithstanding, other than the PEG access channels and such other channels which must be programmed as required by Federal law, Time Warner Cable reserves all rights to program its channels, operate its system, studios, equipment and other facilities as it in its sole discretion determines subject to applicable law. SECTION 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS. 10.1 Indemnity. A. Grantee shall indemnify, defend, and hold harmless the Grantor for all damages and penalties incurred by Grantor as a result of Grantee's conduct or performance under this Agreement or exercise of the Franchise. These damages and penalties shall include, but shall not be limited to, damages arising out of personal injury, property damage, copyright infringement, defamation, antitrust, errors and omission, theft, fire, and all other damages arising out of Grantee's exercise of the Franchise, whether or not any act or omission complained of is authorized, allowed or prohibited by this Agreement; such indemnification shall include, but not be limited to, reasonable attorney's fees and costs. Grantee's obligations hereunder shall not extend to any claim or loss to the extent arising from the Grantor's negligence; misconduct; the content of programming carried on any channel set aside for public educational or governmental use, or channels leased pursuant to 47 U.S.C. §532; and, the Grantor's use of Grantee's emergency alert system ("EAS") capability. B. In order for the Grantor to assert its rights to be indemnified and held harmless, the Grantor must: (1) promptly notify Grantee of any claim or legal proceeding which gives rise to such right; (2) afford Grantee the opportunity to participate in and fully control any compromise, settlement, resolution or disposition of such claim or proceeding; and (3) fully cooperate in the defense of such claim and make available to Grantee all such information under its control relating thereto. 10.2 Liability Insurance. A. Grantee shall maintain, throughout the term of the Franchise, liability insurance with a company licensed to do business in the State of Kentucky with a rating by Best of not less than "A-," insuring Grantee and the Grantor (wherein the Grantor is named as additional insured) with respect to Grantee's activities in the Franchise Area in the minimum amounts of: 1. One Million Dollars ($1,000,000.00) for bodily injury or death to any one (1) person; 2. Three Million Dollars ($3,000,000.00) for bodily injury or death resulting from any one (1) accident or occurrence; 3. One Million Dollars ($1,000,000.00) for all other types of liability. 4. Five Million Dollars ($5,000,000.00) excess liability or umbrella coverage. B. Grantee shall maintain in force during the term of this Agreement and any renewal thereof Workers' Compensation Insurance, covering its obligations under the Workers' Compensation statute. C. Upon request, Grantee shall furnish to the Grantor a certificate evidencing that a satisfactory insurance policy has been obtained. Such insurance policy shall require that the Grantor be notified thirty (30) days prior to any expiration or cancellation. SECTION 11. REVOCATION AND REMOVAL 11.1. City's Right to Revoke. A. In addition to all other rights which the Grantor has pursuant to law or equity, the Grantor reserves the right to revoke, terminate or cancel this Agreement and the Franchise and all rights and privileges pertaining thereto, after following the procedures outlined herein, in the event that Grantee substantially violates any material provision of this Agreement and fails to remedy such violation as required. B. Whenever the Grantor finds that Grantee has allegedly violated one or more material terms, conditions or provisions of this Franchise, a written notice shall be given to Grantee. The written notice shall describe in reasonable detail the alleged violation so as to afford the Grantee an opportunity to investigate and/or remedy the alleged violation. Grantee shall have sixty (60) days subsequent to receipt of the notice in which to correct the violation. Grantee may, within thirty (30) days of receipt of notice, notify the Grantor that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee shall specify with particularity the matters disputed by Grantee and stay the running of the above-described time. C. Grantor shall hear Grantee's dispute at a regularly scheduled or specially scheduled Council meeting of which Grantee has been given at least two weeks notice. Grantee shall have the right to subpoena and examine witnesses and cross-examine any other witnesses. The Grantor shall determine if Grantee has committed a violation and shall make written findings of fact relative to its determination and provide such findings to Grantee. If a violation is found, Grantee may petition for reconsideration. D. If after hearing the dispute, the claim of non-compliance is upheld by the Grantor, then Grantee shall have sixty (60) days from the date of receipt of Grantor's written decision within which to remedy the violation. E. The time for Grantee to correct any alleged violation shall be extended by the Grantor if the necessary action to correct the alleged violation is of such a nature or character as to require more than sixty (60) days within which to perform, provided Grantee commences corrective action and thereafter exercises due diligence to correct the violation. F. In the event that Grantee fails to remedy the violation within the time frame set herein, Grantor may revoke the franchisee by vote of its governing body after a public hearing of which Grantee has been given at least two weeks notice and at which Grantee shall have the right to be heard; to subpoena and examine witnesses; and cross-examine any other witnesses. Grantor shall state in writing the basis for any decision to revoke the Franchise. Any revocation hereunder is subject to appeal by Grantee in a court of competent jurisdiction. 11.2. Removal After Revocation or Termination. A. At the termination of the Franchise Term if renewal has been finally denied in accordance with Federal law, or upon revocation of the Franchise, as provided for herein, the Grantor shall have the right to require Grantee to remove, at Grantee's expense, all or any portion of the Cable System from Streets and Public Property within the Franchise Area. In so removing the Cable System, Grantee shall refill and compact at its own expense any excavation that shall be made and shall leave all Streets, Public Property and private property in as good a condition as that prevailing prior to Grantee's removal of the Cable System, and without affecting, altering or disturbing in anyway electric, telephone or utility, cables wires or attachments. The Grantor, or its delegate, shall have the right to inspect and approve the condition of such Streets and Public Property after removal. The insurance and indemnity provisions of this Agreement shall remain in full force and effect during the entire term of removal. SECTION 12. TRANSFER OF FRANCHISE The consent requirement of Section 6-34(a) of the Ordinance shall not apply in the event of a sale, transfer, lease assignment or disposition to an affiliate i.e. controlling parent of Grantee a controlled subsidiary or other entity of common control under Grantee. Grantee shall, however, provide notice thereof to Grantor. SECTION 13. RIGHTS OF INDIVIDUALS PROTECTED. 13.1 Discriminatory Practices Prohibited. A. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers or general citizens on the basis of age, race, creed color, national origin or sex. Grantee shall comply at all times with all applicable federal and state laws relating to non-discrimination. B. Grantee will not refuse to hire or employ, nor bar or discharge from employment, nor discriminate against any person in compensation or in terms, conditions or privileges of employment on the basis of age, race, creed, color, national origin or sex. SECTION 14. MISCELLANEOUS PROVISIONS. 14.1 Compliance with Laws. Grantor and Grantee shall conform to all applicable state and federal laws and rules regarding cable television as they become effective. Grantee shall also conform with all generally applicable Grantor ordinances, resolutions, rules and regulations heretofore or hereafter adopted or established during the entire term of the Franchise. In the event of a conflict between Grantor ordinances, resolutions, rules or regulations and the provisions of this Agreement, the provisions of this Agreement shall govern. 14.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be ineffective but the remainder of this Agreement will not be affected, and it will in all other respects, continue to be effective and enforceable. If the holding of invalidity or unenforceability is subsequently repealed, unenforceable or otherwise changed so that the provision which had been held invalid is no longer in conflict with the law, rules and regulations then in effect, the provision will return to full force and effect. 14.3 Controlling Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Kentucky. 14.4 No Third Party Beneficiaries . This Agreement is not intended to, and does not, create any rights or benefits on behalf of any person other than the parties to this Agreement. 14.5 Captions. The paragraph captions and headings in this Agreement are for convenience and reference purpose only and shall not affect in any way the meaning of interpretation of this Agreement. 14.6 Calculation of Time. Where the performance or doing of any act, duty, matter, payment or thing is required hereunder and the period of time or duration for the performance or during thereof is prescribed and fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period, or duration of time. When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation. 14.7 Amendments. This Agreement may be amended only by the mutual consent of the Grantor and Grantee. Any amendment must be in writing and executed by the Grantor and Grantee. 14.8 Force Majeure. In no event, and notwithstanding any contrary provision in this Franchise, shall this Franchise be subject to revocation or termination, or Grantor or Grantee be subject to penalty or prejudice or in any way liable for non-compliance with or delay in the performance of any obligations hereunder, where its failure to cure or take reasonable steps to cure is due to reason of Acts of God; acts of public enemies; order of any kind of a government of the United States of America or of the State or any of their departments, agencies, political subdivisions; riots; strikes; failure of suppliers; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; explosions; partial or entire failure of utilities or any other cause or event not reasonably within the control of the party. Neither Grantor nor Grantee shall be deemed to be in violation or default during the continuance of such inability and such party shall be excused from its obligations herein during the course of any such events or conditions and the time specified for performance of the obligations hereunder shall automatically extended for a period of time equal to the period of the existence of any such events or conditions and such reasonable time thereafter as shall have been necessitated by any such events or conditions. 14.9.1 Payment by Grantee (A) Grantee shall make payments at the times and in conformance with the requirements of Kentucky Revised Statutes Chapter 136 sections 136.600 - 136.660 ("Excise Tax") and said payments shall be in lieu of any franchise fees paid to Grantor. If at any time Kentucky law is changed to allow the collection of franchise fees by Grantor, the fee shall be in an amount equal to five percent (5%) of Grantee's gross revenue from all sources attributable to the operation of Grantee's Cable Communications System to provide cable service within the territorial limits of the Grantor. In such case the franchise fee shall be payable as follows: (a) It shall be payable quarterly and Grantee shall file a complete and accurate report, signed by and certified as accurate by an officer of the Grantee, of all applicable gross revenues received during the previous three month period, and said payment shall be made to Grantor no later than thirty (30) days after the expiration of the quarter when due. The gross revenue report from operations of Grantee within the franchise area shall include: a schedule of gross revenue by category by month; a schedule of the number of Subscribers by category of service by month; and a schedule of gross revenue upon which the franchise fee is based. (b) Upon reasonable notice, Grantor shall have the right during normal business hours to inspect Grantee's gross revenue records relevant to the obligation to pay franchise fees at Grantee's local office and the right to audit and to re-compute any amounts determined to be payable under this Ordinance; provided, however, that such audit shall take place within twelve (12) months following the close of each of Grantee's fiscal years. If, as a result of such audit or review, Grantor determines that Grantee has underpaid its fees to Grantor in any twelve (12) month period by ten percent (10%) or more, then, in addition to making full payment of the relevant obligation, Grantee shall reimburse Grantor for all of the reasonable costs associated with the audit or review, including costs for attorneys, accountants and other consultants. Any additional amount due to Grantor as a result of an audit or review shall be paid within the thirty (30) days following written notice to Grantee by Grantor, which notice shall include a copy of the audit report and copies of all invoices for which the City seeks reimbursement. (B) Grantor is not prohibited from collecting valid fees or taxes as set forth in KRS 136.660(3). IN WITNESS WHEREOF, the Grantor and Grantee have caused this Agreement to be signed by their duly authorized officials and officers as of November 15, 2011.
Approved as to form: _____ |
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