Chapter 5.60 CABLE TELEVISION

Chapter 5.60
CABLE TELEVISION

Sections:

5.60.010 Cable television – Definitions.

5.60.020 Board of Public Works.

5.60.030 City Controller.

5.60.040 Grant of franchise or renewal of franchises.

5.60.050 Assignment of franchise transfer of ownership.

5.60.060 Franchise fee.

5.60.070 Customer service obligations.

5.60.080 Violations – Penalties.

5.60.090 Reservation of authority.

5.60.100 Advertising costs.

5.60.110 Grant of franchise.

5.60.120 Procedures.

Prior legislation: Ord. G-93-26.

5.60.010 Cable television – Definitions.

The definitions found in 47 USCA 522 shall apply throughout this chapter unless a different meaning is clearly indicated.

“Board” shall mean the Board of Public Works.

“Cable Law” shall mean and include 47 USCA 522 through 555(a), all Federal regulations adopted thereunder, all State law and regulations adopted under State law regulating or affecting cable T.V.

“Street” shall mean such of the following which have been dedicated to the public and maintained by the City and located within the City limits: streets, roadways, highways, avenues, lanes, alleys or easements therefor, public rights-of-way, and similar public ways under the jurisdiction and control of the City. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.01.]

5.60.020 Board of Public Works.

(A) The Board of Public Works shall be the agency with authority to monitor, direct and control the installation, construction and maintenance of the cable system in any street or right-of-way. The board shall have authority to adopt reasonable rules and regulations consistent with this chapter and the Cable Law.

(B) The City reserves its rights to manage its streets and rights-of-way as allowed under State law and delegates that authority to the Board of Public Works as it affects cable T.V.

(C) Any permits required under this chapter for construction, installation or maintenance of the system in the streets or rights-of-way of the City shall be issued by the Board of Public Works. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.02.]

5.60.030 City Controller.

The City Controller shall be the person designated by the City to monitor, control and regulate cable T.V. except for construction, installation or maintenance in the streets and rights-of-way as provided above. The office of the City Controller shall be the agency to receive and monitor all complaints against a franchisee and for the franchisee to give notices to the City. If the franchisee is not satisfied with the decision of the City Controller regarding any decision of the City Controller or any decision of the Board of Public Works, it shall appeal that decision to the City Council, in writing, within 30 days of notice of the decision of the Board of Public Works or the City Controller. The decision of the City Council shall be final except for appeals to a Court of Law for a decision being arbitrary and capricious, or contrary to law. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.03.]

5.60.040 Grant of franchise or renewal of franchises.

(A) Any person desiring to apply for a cable T.V. franchise or renewal thereof shall apply to the City Controller and present its proposed plan of operations with details of such operations complying with the requirements of this chapter.

(B)(1) Any person desiring a cable T.V. franchise or the renewal thereof shall enter into an agreement with the City. The agreement shall be substantially in the following form:

Cable TV Franchise Agreement

This Agreement is made and entered into by and between the City of Evansville, Indiana, (a municipal corporation organized under the laws of the State of Indiana) (hereinafter “CITY”) and ____________________, a ________________ corporation organized to do business in the State of Indiana (hereinafter “FRANCHISEE”), under the following terms, conditions, covenants and commitments:

ARTICLE I

DEFINITIONS

Definitions

(a) The definitions found in 47 USCA Section 522 shall apply throughout this agreement.

(b) For purposes of clarification, the CITY is the franchising authority and ___________ is the cable operator, also known as the “FRANCHISEE” herein.

(d) The Cable Law shall refer to 47 USCA Sections 522 through 555(a) and all federal rules and regulations adopted thereunder, and all state law and regulations affecting Cable TV.

(e) Additional definitions

“City Council” shall mean the Common Council of the City of Evansville, Indiana.

“FCC” shall mean the Federal Communications Commission of the Federal Government.

“Board” shall mean the Board of Public Works of the City.

“Sale” shall mean any sale, exchange, or barter.

“Reasonable Notice” shall be written notice addressed to the FRANCHISEE at its principal office in Evansville, Indiana, or such other office as the FRANCHISEE shall designate to the CITY as the address to which notice should be transmitted. In the case of notice to the CITY, the notice shall be in writing, addressed to: City Controller, Room 300, Civic Center Complex, 1 N.W. Martin Luther King, Jr. Blvd., Evansville, Indiana 47708. All notices shall be sent by certified United States mail, postage prepaid, postmarked not less than four (4) days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said four (4) days, Saturdays, Sundays, and holidays observed by the CITY shall be excluded.

“Service Area” shall mean all geographical area within the incorporated limits of the CITY.

“Street” shall mean such of the following which have been dedicated to the public and maintained by the CITY and located within the CITY limits now or hereinafter added thereto: streets, roadways, highways, avenues, lanes, alleys or easements therefor, public rights-of-way, and similar public ways under the jurisdiction and control of the CITY.

“Substantially Completed” shall occur when sufficient distribution facilities have been installed by the FRANCHISEE so as to permit the offering of full network service to at least ninety percent (90%) of the dwelling units in the CITY.

ARTICLE II

RESERVATION OF RIGHTS, LIMITATION OF RIGHTS, AMENDMENTS TO STATUTE

The CITY hereby reserves all rights it has under the Cable Law. This Agreement shall at all times be construed consistent with the Cable Law. Any dispute or disagreement involving interpretation of law or the power of the CITY shall be interpreted in favor of the CITY. This Agreement shall be interpreted as limiting the power of the CITY in any manner mandated by the Cable Law. Any discretionary power of the CITY under the Cable Law shall be reserved by the CITY to be exercised as it deems best for the citizens of the CITY.

If the Cable Law is amended after the approval of this Agreement, the Agreement shall be amended consistent with said amendment so long as such requirement is mandated. If such amendment involves discretionary acts or powers of the CITY, the CITY reserves the right to make such amendments or not make them as the CITY deems best. The CITY shall comply with all mandatory amendments of the Cable Law on the effective date of such amendment. The FRANCHISEE shall comply with all mandatory amendments of the Cable Law on the effective date of the amendment. The FRANCHISEE shall comply upon notice with all discretionary acts and powers of the CITY upon notice to the FRANCHISEE. No notice shall be required if such act is required under this Agreement.

ARTICLE III

GRANT OF FRANCHISE

The CITY hereby grants to __________ a nonexclusive franchise to operate a cable system in the CITY under the terms and conditions of the Cable Law and this Agreement.

ARTICLE IV

DURATION OF FRANCHISE

The franchise granted hereunder shall be effective from the ______ day of _________, _____, to and including the _______ day of _____________, _______, subject however of the right to terminate by the CITY under the Cable Law or this Agreement.

Article V

QUINQUENNIAL FRANCHISE REVIEW

(A) On or about the fifth and tenth anniversaries of the effective date of the grant of the Franchise, the CITY will schedule and hold a public meeting or meetings with the FRANCHISEE to review the performance of the FRANCHISEE. The review shall include future plans of operation. FRANCHISEE shall make available to representatives of the CITY such records, documents, and information which are relevant to the meeting and inquiry. If the FRANCHISEE requests the information in any document be kept confidential as allowed under Federal and State law, the FRANCHISEE shall indemnify, defend and hold harmless the CITY, its officials and employees in and from any proceedings in any court or agency as a result of following the request for confidentiality by the FRANCHISEE. The FRANCHISEE acknowledges that under the laws of the State of Indiana, records held by the CITY are presumed to be public records. Where the CITY has discretion to release or not release the document or information, the CITY may exercise its discretion in the manner it deems appropriate. In the event of an assignment or transfer of ownership, the dates shall be calculated from the date of the original grant of the Franchise or renewal.

(B) Review of Franchise Prior to Expiration

Public Meeting to be Scheduled

At least six (6) months prior to the expiration of the franchise, the CITY shall schedule and hold a public meeting or meetings with the FRANCHISEE to review the FRANCHISEE’s performance. In particular, the CITY may inquire whether the FRANCHISEE is supplying a level and variety of services equivalent to those being generally offered at that time in the industry and comparable market situations. The FRANCHISEE shall make available to the CITY if requested by the CITY, such records, documents and information which are relevant to such meeting or inquiry. The FRANCHISEE shall indemnify, defend and hold harmless the CITY, its officials and employees in any proceeding before an agency or court in regards to a record, document or information being kept confidential as allowed under Federal and State law. The FRANCHISEE acknowledges that under Indiana law, the records are presumed to be public records. In the event the release of information is discretionary to the CITY, this Agreement shall not prevent the CITY from exercising its discretion to release such information as it deems best.

ARTICLE VII

SALE, TRANSFER OR ASSIGNMENT OF FRANCHISE

(A) Consent Prior to Transfer of Franchise

Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without prior consent of City Council, and then only under such conditions as the CITY may establish, and any such sale, transfer, lease, assignment or disposal shall represent a default on the terms and provisions of this Agreement. Such consent required by the City Council shall, however, not be unreasonably withheld.

(B) Consent Prior to Change of Control

Prior approval of the City Council shall be required where ownership or control of more than ten percent (10%) of the right of control of the FRANCHISEE is acquired, disposed of or transferred by a person or group of persons acting in concert. Transfer from a subsidiary to a parent corporation or vice-versa shall not be considered as a change of control.

Nothing in this Agreement shall be deemed to prohibit the mortgage or the pledge of the cable system or any part thereof or a leasing by a FRANCHISEE from another person of said cable system for financing purposes or otherwise. However, any such mortgage, pledge or lease shall be subject to the rights of the CITY under this Agreement and the Cable Law. Prior approval from the City for financing shall not be required.

(D) Pole Use Agreements Required

Any franchise granted hereunder shall not relieve the FRANCHISEE of its obligation to obtain necessary pole or conduit use agreements from such utilities including, but not limited to Southern Indiana Gas and Electric Company and Ameritech, and such others whenever it is necessary by the FRANCHISEE to make use of such poles or conduits.

(E) No Right of Property

The award of any franchise hereunder shall not impart to the FRANCHISEE any right of ownership of streets or other CITY-owned property.

(F) Franchise Binding

Any franchise granted hereunder shall be binding upon the FRANCHISEE, its successors, lessees or assigns, subject, however, to the required prior consent of the CITY.

(G) Compliance with Laws, Rules, and Regulations

FRANCHISEE, at its expense, shall comply with all laws, orders and regulations of Federal, State, and local governments and with any direction of any public officer or officers pursuant to law who shall legally impose any regulation, order or duty upon the FRANCHISEE with respect to the franchise.

ARTICLE VIII

OPERATION OF THE FRANCHISE

(A) Compliance with the Cable Law

FRANCHISEE shall, at all times, be in compliance with the Cable Law, State law, and this Agreement.

(B) Service Records Maintained

The FRANCHISEE shall, at all times, maintain a log of all complaints and interruptions or degradation of service received or experienced. Said log shall be maintained for a period of five (5) years from the date of occurrence. The records maintained above shall also include complaint response time and service restoral period.

Providing that such do not in any way lessen or abrogate the obligations of the FRANCHISEE under this Agreement and the Cable Law, and subject to the prior approval of the Board, the FRANCHISEE shall have authority to promulgate such rules, regulations, and conditions as it deems necessary in order to operate the franchise granted herein.

(D) Subscriber Antennas

FRANCHISEE is prohibited from requiring the removal of any potential or existing subscribers’ antenna as a condition of provision of service of the FRANCHISEE.

ARTICLE IX

RIGHTS RESERVED TO THE CITY

(A) The CITY reserves any and all rights it has under Federal, State, and local law, or Federal, State or local regulation. FRANCHISEE agrees to comply with any action or requirements of the CITY in the exercise of such rights and powers which either have been or shall subsequent to the grant of the franchise be enacted or established.

(B) CITY’s Transfer of Functions

CITY may designate and transfer its obligations and duties under the franchise to any official, employee, department, agent or board of the CITY and the FRANCHISEE shall recognize the authority of any such transferee upon notice.

The CITY may inspect all construction or installation work performed pursuant to the franchise grant under this Agreement.

(D) CITY’s Right of Network Installation

The CITY reserves the right to install and maintain free of charge upon or in the poles and conduits of the FRANCHISEE, any wire and pole fixtures necessary for City services on the condition that such installation and maintenance thereof does not interfere or compete with the operation of the FRANCHISEE’s broadband telecommunications network, and further provided that such usage is in full compliance with the National Electrical Safety Code.

(E) Reservation of Rights to Manage Rights-of-Way

Nothing in this Agreement shall be deemed to abrogate, limit or diminish the CITY’s right to manage its streets and rights-of-way under Federal, State or local law.

ARTICLE X

ACCEPTANCE OF TERMS AND ACTIONS TO BE DONE

(A) Records and Documents to be Filed

The franchise granted herein shall take effect and be in force from and after the date provided in Article IV; provided that within thirty (30) days after said date, the FRANCHISEE shall:

(1) File with the CITY an unconditional acceptance of this Agreement and enter into and execute such contracts and documents as required by the CITY consistent with the terms of this Agreement.

(2) File a certificate of insurance as required herein.

(3) File an initial performance bond payable to the CITY in the penal sum of Fifty Thousand Dollars ($50,000.00) as set forth herein. This provision shall not apply to renewals. This Bond is the same Bond as referred in ARTICLE XIV(E), page 11.

(4) Advise the CITY in writing of the FRANCHISEE’s location and its address for mail and official notification from the CITY.

(B) Failure to Comply

In the event the FRANCHISEE fails to comply in full with the provisions of subsection A above, then it shall be conclusively considered that the FRANCHISEE has abandoned its application and rights under this contract and the franchise, and any right it may have acquired shall terminate.

The FRANCHISEE acknowledges that it has relied upon its own investigation and understanding of the power and authority of the CITY to grant this franchise.

(D) Inducements not Offered

The FRANCHISEE by acceptance of any franchise awarded hereunder, acknowledges that it has not been induced to accept the franchise or any understanding or promise or other statement, whether verbal or written, by or on behalf of the CITY concerning any term or condition of said franchise that is not included in this Agreement.

(E) FRANCHISEE Accepts Terms

The FRANCHISEE by acceptance of any franchise awarded hereunder acknowledges that it has thoroughly examined and is familiar with the terms and conditions of this Agreement and fully agrees with all such terms, conditions, promises, and commitments.

ARTICLE XI

FRANCHISE FEE

(A) The Franchisee agrees to pay to the City an annual Franchise Fee of Five Percent (5%) of the Gross Revenue derived from the operation of the system, which Franchise Fee shall be paid to the City in quarterly installments on or before May 1, August 1, November 1 and February 1 for the preceding calendar quarter. For purposes of clarification, the Franchise Fee shall be the maximum amount allowed under the Cable Law from any and all sources and methods of calculations which result in the maximum fee under the Cable Law (see 47 USCA Section 542).

(B) The FRANCHISEE Fee provided herein may be amended any time if there is a change in the Cable Law allowing for additional fees. In the event the Cable Act reduces the fees, and the FRANCHISEE shall only be required to pay the maximum fee as then allowed.

(C) No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a Franchise Fee under this Agreement or for performance of any other obligation.

(D) In the event of a dispute as to the amount of the Franchise Fee to be paid, the City shall be allowed to audit the books and records of the FRANCHISEE by the CITY or, by a Certified Public Accountant. The accounting firm shall be designated by the City who shall pay the Firm’s costs and expenses. However, in the event it is determined the FRANCHISEE underpaid the Franchise Fee by five percent (5%) or more in any quarter, all costs and expenses of the Firm and the City for conducting the audit and collecting the Fee shall be paid by the FRANCHISEE.

(E) FRANCHISEE shall complete a worksheet (the form supplied by CITY) showing the sources of revenue and method of determination of the Franchise Fee and submit the same with each quarterly payment.

ARTICLE XII

INDEMNIFICATION AND LIABILITY

(A) The FRANCHISEE shall indemnify, defend and hold harmless the City from and against all claims, damages, losses, and expenses and attorney’s fees sustained by the City on account of any suit, judgment, execution, claim or demand arising out of, but not limited to, copyright infringements or the installation, operation or maintenance of the cable system. For purposes of clarification, the term “City” shall include all officials, employees, and agents of the City.

ARTICLE XIII

REPORTS AND RECORDS

(A) Annual Reports Required.

The FRANCHISEE shall file annually, upon request, with the City Controller on or before April 1 of each year, two (2) copies of:

(1) An “Annual Report of Cable Television Systems” (FCC Form 325).

(2) A “Cable Television Annual Financial Report” (FCC Form 326).

(3) A “Compilation of Cable Television Annual Fee” (FCC Form 326-A). If these forms are amended or replaced, then FRANCHISEE shall file the form most closely related to these forms.

(B) Annual Facilities Report Required.

The FRANCHISEE shall file annually with the City Controller on or before April 1 of each year two (2) copies of a total facilities report setting forth the total physical miles of plant constructed, rebuilt, or in operation during the fiscal year. Such report shall also contain any revisions to the network “as built” maps filed with the City as provided hereafter. Also, if requested by the City, progress reports on facilities construction or rebuilt, in addition to the annual facilities report, shall be supplied to the City at reasonable intervals to be established by the City.

The FRANCHISEE shall, if requested by the City, file with the City Controller a list of all trouble complaints and “downtime” received or experienced during the time period specified by the City. All such submitted data shall also include complaint disposition and response time.

(D) State or FCC Filings.

If requested by the City, FRANCHISEE shall file with the City copies of all correspondence or filings with the FCC or State regulatory agencies pertaining to operation of the cable system.

(E) City’s Access to Records.

The City Controller or designee shall have the right during the duration of any Franchise granted herein to have access during all normal business hours upon giving reasonable notice, to the Franchise Contracts, engineering plans, accounting, financial data and service records relating to the property and operations. All such records and other documents shall be maintained at the local office in Vanderburgh County and not be commingled with other data and information regarding other Franchises in other jurisdictions so that the data pertaining to this Franchise can be readily distinguished and ascertainable. Records of subscriber lists and statistical data shall be made available only upon a showing by the City that such records are material to the City’s enforcement of this agreement or its regulatory program. There shall be no fee for this obligation of FRANCHISEE or any other duties under this contract.

(F) Legal Proceedings.

The FRANCHISEE shall notify the City of any actions, suits, proceedings or investigations before or by any Court, public board or body, pending or threatened against or affecting the FRANCHISEE wherein a decision, ruling or findings would adversely affect the FRANCHISEE’s ability to construct or operate the cable system.

ARTICLE XIV

INSURANCE AND BONDS

(A) The FRANCHISEE shall maintain a general comprehensive liability insurance policy naming as an additional insured the City, its officers, officials, agents and employees in a company mutually acceptable by the FRANCHISEE and the City Controller and in a form satisfactory to the City Controller, protecting the City and all persons against liability for loss or damage for personal injury, death or property damage, occasioned by the operations of FRANCHISEE, in an amount of:

a. Five Hundred Thousand Dollars ($500,000.00) for bodily injury or death to any one (1) person, within the limit, however, of One Million Dollars ($1,000,000.00) for bodily injury or death resulting from any one (1) accident,

b. Five Hundred Thousand Dollars ($500,000.00) for property damage resulting from any one (1) accident, and

c. Workman’s Compensation Insurance in such coverage as may be required by the Laws of the State of Indiana.

FRANCHISEE’s insurance coverage of the City shall be primary.

(B) The insurance policies referred to above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the FRANCHISEE under the terms of this agreement and shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage thereof reduced until thirty (30) days after receipt by the City controller by certified mail of written notice of such intent to cancel or reduce the coverage.

(C) All policies of insurance or certified copies thereof and written evidence of payment of required premiums, shall be filed and maintained with the City Controller during the term of any franchise granted hereunder or any renewal thereof.

(D) Neither the provisions of this agreement nor any insurance accepted by the City pursuant hereto, nor any damages recovered by the City thereunder, shall be construed to excuse faithful performance by the FRANCHISEE or limit the liability of the FRANCHISEE under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise.

(E) The FRANCHISEE shall maintain throughout the period of network construction, a faithful performance bond in favor of the City, with sureties approved by the City Controller, in the penal sum total of Fifty Thousand Dollars ($50,000.00), conditioned upon the faithful performance by the FRANCHISEE of its obligations under this agreement. When the network construction is substantially completed as defined herein, the penal sum total of the performance bond shall be reduced to Twenty-five Thousand Dollars ($25,000.00) through the remainder of the term of the franchise, or any renewal or extension thereof and upon the further condition that in the event the FRANCHISEE shall fail to comply with any law, ordinance or regulation governing the franchise, there shall be recoverable jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the FRANCHISEE, plus a reasonable allowance for attorneys’ fees and costs, up to the full amount of the bond. The City, at its sole discretion, may at any time subsequent to completion of construction waive the requirement of the FRANCHISEE to maintain said bond. The bond shall contain the following endorsement:

It is hereby understood and agreed that this bond may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City Controller of Evansville, Indiana by certified mail of one (1) copy of a written notice of such intent to cancel or not to renew.

(F) The performance bond or a certified copy thereof and written evidence of payment of required premium, shall be filed and maintained, with the City Controller during the term of any franchise granted hereunder, or any renewal thereof.

ARTICLE XV

FEES, RATES AND CHARGES

(A) The City hereby reserves any rights it now has or may have in the future regarding the regulation of fees, rates and charges for any services offered by the Franchising Authority. Such regulation or limitation shall be effective upon notification to FRANCHISEE following any procedures mandated by the Cable Law or the Municipal Code.

(B) Charges for services shall be maintained for public inspection during normal hours of business at the FRANCHISEE’s local office. Current lists of charges for services shall be sent to the City Controller prior to such charges being instituted by the FRANCHISEE.

ARTICLE XVI

EDUCATION AND GOVERNMENTAL CONNECTION

(A) Connection to Buildings – The FRANCHISEE shall provide free of charge within the City, one (1) connection and monthly service to said connection for the basic service offered by the FRANCHISEE to each public school (Elementary, Middle and Secondary), each parochial school (Elementary, Middle and Secondary), the University of Evansville, the Civic Center Complex and such other not-for-profit private schools and governmental units as the City may designate.

(B) Extensions Within Buildings – Any free service granted pursuant to subsection A above, may be extended by the persons receiving such service to as many areas within the building where the service is granted or adjacent buildings which are a part of the total complex receiving such service, provided, however, that said extension shall only be used within such complex without expense to or payment of any additional fee to the FRANCHISEE, providing, however, that said service shall be limited to and used for educational and governmental purposes exclusively. The person receiving such service shall pay all expenses for any such extension and shall complete such extension so as not to interfere with the operation of the Cable System. All extensions shall be under the rules and regulations of the FCC and the FRANCHISEE and require prior approval of the FRANCHISEE.

ARTICLE XVII

EXTENSION OF SYSTEM

(A) Extension of System Within City Boundaries.

(1) Conditions of Required Extension – After the FRANCHISEE has substantially completed the construction of distribution facilities, it shall thereafter at its expense, extend its System where there are sufficient potential subscriber dwelling units so as to yield an average of fifty (50) dwelling units per linear mile so as to provide full network services to all residents of:

(a) newly annexed areas of the City not then served by Cable System.

(b) new housing areas developed within the City limits.

It being recognized that the obligation to substantially complete the construction of the distribution system shall not be limited or affected by the foregoing standards and that in the initial construction there is an obligation to furnish the service irrespective of the number of dwelling units per lineal mile.

(2) Extension Policy – The FRANCHISEE shall file with the City Controller within ninety (90) days from commencement of operation two (2) copies of an extension policy for potential subscribers for whom service is not required pursuant to paragraph (1) above.

ARTICLE XVIII

TIME FOR PERFORMANCE

(A) Permits – Within ninety (90) days after the effective date of a franchise grant as contemplated above, the FRANCHISEE shall file with the appropriate governmental authorities and with the necessary utility companies, all initial papers, applications, contracts and other documents necessary to permit the commencement of construction and operation of the Cable System, and shall thereafter make diligent efforts to obtain the proper execution and delivery of such. In the event, however, that FRANCHISEE is unable to obtain the execution and delivery and approval of all required initial papers, applications, contracts and other documents that are needed in order to obtain FCC certification and all other permits necessary for the commencement of construction within three hundred sixty (360) days from the effective date of the franchise grant, such shall represent a default under this Agreement, and the City shall be entitled to resort to such remedies as provided herein for default under this Agreement. FRANCHISEE shall report to City every ninety (90) days of its progress in obtaining necessary permits, contracts and other necessary documents as above contemplated.

(B) Commencement of Construction – Within ninety (90) days after the effective date of FCC certification, providing all other necessary permits and contracts have been obtained and entered into, FRANCHISEE shall commence the construction of the Cable System and pursue such with reasonable diligence. However, in the event the FRANCHISEE is unable to obtain FCC certification within three hundred sixty (360) days after the effective date of the franchise grant, such shall represent a default under this Agreement and in such event the City shall be entitled to its remedies as herein provided.

(C) Commencement of Operation – Within eighteen (18) months after the commencement of construction, the FRANCHISEE shall commence operation.

(D) Substantial Completion of Construction – Within thirty-six (36) months after the commencement of construction, the FRANCHISEE shall have substantially completed construction. The FRANCHISEE shall install and construct sufficient distribution facilities so as to permit the offering of full Broadband Telecommunications Network service to at least ninety percent (90%) of the dwelling units in the City. However, the date to substantially complete construction shall be extended by the number of days of delay of the FRANCHISEE caused by strikes, lock-outs, fire, unusual delay in transportation, unavoidable casualty or such other delay authorized by the City.

ARTICLE XIX

SYSTEM TECHNICAL REQUIREMENTS

FRANCHISEE shall meet all requirements of the Cable Law and this Agreement regarding System Technical Requirements. The City reserves the right to institute System Technical Requirements under authority of the Cable Law as provided now or in the future.

ARTICLE XX

PUBLIC ACCESS CHANNEL AND EDUCATION AND GOVERNMENTAL ACCESS CHANNELS

(A) Public Access Channel – The FRANCHISEE shall provide at least one (1) dedicated, noncommercial public access channel, associated production equipment and necessary staff production assistance to be made available for the first five (5) minutes of each live production to the public at no charge on a first come-first served basis. Hours of availability for the use of such channel, if known, shall be specified in the application for franchise. As the total number of public access channels is of a great deal of interest to the City, FRANCHISEE may provide a greater number of such channels than the minimum set forth herein. FRANCHISEE shall have eighteen (18) months to comply with this Subsection.

(B) Education and Government Access Channels – The FRANCHISEE shall in addition to paragraph (A) above, provide two (2) additional channels, one (1) for educational use and one (1) for use by the City. For the first five (5) years from the date these channels are made available there shall be no charge made to their users by the FRANCHISEE, and thereafter at no charge unless specifically prohibited by the Cable Law or, if not permitted, in accordance with the schedule of charges filed with and/or approved by the City. As both educational and municipal channel availability and the free use of associated production equipment is of a great deal of interest to the City, FRANCHISEE may provide a greater number of dedicated channels or free usage for this purpose than the minimums set forth.

(C) Production Costs on Access Channels – The FRANCHISEE shall not be responsible for the production costs of programs prepared for transmission (other than for brief live studio presentations not exceeding five [5] minutes for each live studio presentation) over the channels as set forth in paragraph (A) above other than as it may elect to do so.

(D) A Weather Channel – The FRANCHISEE shall provide one (1) channel of weather information.

(E) Emergency Alert Override – The FRANCHISEE shall incorporate into its facilities the capability for an emergency override audio alert whereby a designee of the City, in times of emergency, may introduce an audio message on all channels simultaneously. The FRANCHISEE shall provide, in a location to be designated by the City, all equipment necessary for use of the emergency alert system.

ARTICLE XXI

SERVICE STANDARDS

(A) Office and Phone – The FRANCHISEE shall maintain an office in Vanderburgh County which shall be open during all usual business hours, have a locally listed, toll-free telephone, and be so operated that complaints and requests for repairs or adjustments may be received at any time.

(B) Notification of Service Procedures – The FRANCHISEE shall provide to each subscriber at the time of connection to the cable system, and at reasonable intervals thereafter, written notification of the telephone number and address for filing complaints and requests for service. In addition, such notification shall provide information and procedures for contacting the City Controller’s Office to make complaints against the FRANCHISEE.

(C) Service Response Time – The FRANCHISEE shall provide “same day” service response, seven (7) days a week for all complaints and request for repairs or adjustments received prior to 2:00 P.M. each day. In no event shall the response time for calls received subsequent to 2:00 P.M. exceed twenty-seven (27) hours. In the event the Cable Law requires a shorter response time, the shorter period shall apply.

(D) Service Interruptions and Notifications – The FRANCHISEE whenever it is necessary to interrupt service over the system for the purpose of maintenance, alteration or repair, shall do so at such time as will cause the least amount of inconvenience to its subscribers and unless such interruption is unforeseen and immediately necessary, it shall give prior notice thereof to the affected subscribers.

(E) Upgrading of Facilities, Equipment and Service – The FRANCHISEE shall, if economically viable, upgrade its facilities, equipment and service.

(F) Stricter Service Standards to Apply – If the Cable Law requires stricter service standards than found in this Agreement, the stricter service standards shall apply.

ARTICLE XXII

CONSTRUCTION STANDARDS

(A) Compliance with Safety Codes – All construction practices shall be in accordance with all applicable sections of the Federal Occupational Safety and Health Act and any amendments thereto as well as all State and local Codes where applicable.

(B) Compliance with Electrical Codes – All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable sections of the current edition of the National Electric Safety Code and all State and local Codes where applicable.

(C) Antennas and Towers – Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in Electronics Industry Association’s R.S. – 22A Specifications.

(D) Compliance with Aviation Requirements – Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal, State and local Codes and Regulations.

ARTICLE XXIII

CONDITIONS OF STREET OCCUPANCY

(A) Approval of Proposed Construction – The FRANCHISEE shall request a permit from the Board at least ten (10) days prior to the intention of the FRANCHISEE to commence any construction in any streets. Board shall cooperate with the FRANCHISEE in granting such permits providing such grant and subsequent construction by the FRANCHISEE shall not duly interfere with the use of such streets.

(B) Excavation Permits – The FRANCHISEE shall not open or disturb the surface of any street, sidewalk, driveway, or public place for any purpose without first obtaining a permit to do so from the Board. In addition, where existing conduit or backyard easements are not available for underground installation, the FRANCHISEE shall design its system in such manner to permit construction behind and parallel with street curbing, or under the sidewalks where available, with a minimum of street excavation. Under no circumstances shall the Board permit street excavation for the installation of subscriber drop cables.

(C) Changes Required by Public Improvements – A FRANCHISEE shall, at its expense temporarily disconnect, relocate or remove from the street or other public place, any property of the FRANCHISEE when required by the City by reason of traffic conditions, public safety, street vacation, street construction, installation of sewers, drains, water pipes, City-owned signal lines, and tracts or any other type of structure or improvement by public agencies.

(D) Use of Existing Public or Conduits – The FRANCHISEE shall request permission from the City before being authorized to erect any new poles or underground conduits, and FRANCHISEE shall make every reasonable effort to utilize existing poles presently servicing the area.

(E) Facilities Not to be Hazardous or Interfere – All wires, conduits, cables and other property and facilities of the FRANCHISEE, shall be so located, constructed, installed in an orderly and workmanlike manner, and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the streets. The FRANCHISEE shall keep and maintain all of its property in good condition, order and repair.

(F) Method of Installation – The facilities of the FRANCHISEE shall be installed underground in those areas of the City where existing telephone and electric services are underground at the time of system construction. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the FRANCHISEE may install its facilities aerially with the understanding that at such time as either the telephone or the electrical facilities are required to be placed underground by the City, the FRANCHISEE shall likewise place its facilities underground.

(G) Protection of Facilities – Nothing contained in this Section shall relieve the City or any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid damaging the FRANCHISEE’s facilities while performing any work connected with grading, regrading, or changing the line of any street or public place or with the construction or reconstruction of any sewer or water system.

(H) Requests for Removal or Change – The FRANCHISEE shall, on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the FRANCHISEE shall have the authority to require such payment in advance. The FRANCHISEE shall be given no less than five (5) days advance notice of any move contemplated to arrange for temporary wire changes.

(I) Authority to Trim Trees – The FRANCHISEE shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. The City may, at its discretion, require such additional trimmings as may be necessary to preserve the symmetrical growth of the tree. The FRANCHISEE may contract for such services, however, any firm or individual so retained shall be approved by the City prior to commencing such activity.

(J) Restoration or Reimbursements – In the event of disturbance of any street or private property by the FRANCHISEE, it shall, at its own expense and in a manner approved by the City or the owner, replace and restore such street or private property in as good a condition (using the same type of materials) as before the work causing such disturbance was done. In the event the FRANCHISEE fails to perform such replacement or restoration, the City or the owner shall have the right to do so at the sole expense of the FRANCHISEE.

(K) Office and Records – The FRANCHISEE shall at all times make and keep at an office maintained by the FRANCHISEE in Vanderburgh County full and complete plans and records showing the exact location of all equipment installed or in use in the streets and other public places of the City. The FRANCHISEE shall file and maintain with the City a set of system “as built” maps, drawn to scale, showing all of the cable facilities installed in the City. Subscriber service drop facilities need not be shown.

(L) Emergency Removal of Plant – If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, or other appurtenances to the cable system, such cutting or removing may be done and any repairs rendered necessary thereby shall be made by the FRANCHISEE, at its sole expense provided that such repairs are not necessitated by a negligent act of the City in which case, cost for repairs shall be borne by the City.

(M) Alternate Routing of Plant – In the event continued use of a street is denied to the FRANCHISEE by the City for any valid reason, the FRANCHISEE shall provide service to affected subscribers over alternate routes within a reasonable period of time.

ARTICLE XXIV

INTERCONNECTION

(A) No prohibition of Interconnection – Nothing in this Agreement shall be construed so as to prohibit the FRANCHISEE from interconnecting its system with other similar systems either in the City or in other Municipalities, Counties or States. Any applicable revenues derived therefrom shall be equitably allocated in the calculation of annual gross subscriber revenues.

(B) Study Required for Interconnection – The FRANCHISEE shall, if requested by the City, conduct an economic feasibility study of any interconnection requested by the City. In the event that the study shows such interconnection to be feasible, the FRANCHISEE shall, if so instructed by the City, accomplish said interconnection. In the event that the study fails to indicate economic feasibility, the City may elect to arrange for compensation to be paid to the FRANCHISEE, in an amount sufficient to assure economic feasibility and so order the interconnection.

ARTICLE XXV

PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED

(A) Affirmative Action Program – The FRANCHISEE shall establish and maintain an Affirmative Action program providing that no individual shall be discriminated against with respect to compensation, terms, conditions or other privileges or employment because of race, color, religion, sex, national origin, physical condition or age.

(B) Services to be Equally Available – The FRANCHISEE shall not, as to rates, charges, service, rules, regulations or in any other respect make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscription to the network or other legitimate uses thereof; nor shall it be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classifications shall be entitled.

(C) Fairness of Accessibility – The entire Cable System of the FRANCHISEE shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios, and other services to all citizens, businesses, public agencies, or other entities having a legitimate use for the system; and no one shall be arbitrarily excluded from its use; allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same.

ARTICLE XXVI

SUBSCRIBER PRIVACY

(A) FRANCHISEE shall comply with FCC Subscriber Privacy Rules and Regulations.

(B) Subscriber Lists – FRANCHISEE shall not without prior valid authorization from each subscriber so affected, provide any list designating subscribers’ names or addresses to the City or any other party except as may be required in this Agreement.

ARTICLE XXVII

FULL AGREEMENT

The parties acknowledge and agree that this instrument represents the full agreement of the parties and there are no promises, terms, conditions or commitments except as expressed or referenced herein.

Approved by the Parties hereto on the date shown below.

City of Evansville, Indiana by and through its City Council

_________________
President

_________________
Date

Attest: _________________
City Clerk

FRANCHISEE

_________________
President

_________________
Date

Attest: _________________
Secretary

(2) Said agreement shall be approved by the City Council before it is effective. Only the City Council may amend the form of the agreement on behalf of the City. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.04.]

5.60.050 Assignment of franchise transfer of ownership.

(A) Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means, without prior consent of City Council, and then only under such conditions as the City may establish, and any such sale, transfer, lease, assignment or disposal shall represent a default on the terms and provisions of this agreement. Such consent required by the City Council shall, however, not be unreasonably withheld.

(B) Prior approval of the City Council shall be required where ownership or control of more than 10 percent of the right of control of the franchisee is acquired, disposed of or transferred by a person or group of persons acting in concert. Transfer from a subsidiary to a parent corporation or vice versa shall not be considered as a change of control.

(C) Nothing in this chapter shall be deemed to prohibit the mortgage or the pledge of the cable system or any part thereof or a leasing by a franchisee from another person of said cable system for financing purposes or otherwise. However, any such mortgage, pledge or lease shall be subject to the rights of the City under the agreement and the Cable Law.

(D) No assignment of the franchise or transfer of ownership shall be approved until the transferee does one of the following:

(1) Executes an agreement with the City in the form which is found in EMC 5.60.040, except the duration of the agreement shall be reduced to the remaining time of the franchise then in effect; or

(2) Acknowledges in writing the documents which constitute the agreement along with an acknowledgment that the franchise fee is the maximum allowed under Federal law. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.05.]

5.60.060 Franchise fee.

The City hereby imposes and the franchise shall pay five percent of the gross revenue derived from the operation of the system, which franchise fee shall be paid to the City Controller in quarterly installments on or before May 1st, August 1st, November 1st and February 1st for the preceding calendar quarter. For purposes of clarification, the franchise fee shall be the maximum amount allowed under the Cable Law from any and all sources and methods of calculation which will result in the maximum fee under the Cable Law (see 47 USCA 542). [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.06.]

5.60.070 Customer service obligations.

(A) The City hereby exercises its authority to adopt and enforce the customer service standards set forth in Section 76.309(c) (an amendment to 47 CFR Part 76) and as it may from time to time be amended by the FCC. The City Controller shall issue the appropriate notice to the operator.

(B) In the event there is a discrepancy between the standards in the franchise agreement and the FCC rules, the stricter shall apply. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.07.]

5.60.080 Violations – Penalties.

(A) No person shall operate a cable system in the City except in strict compliance with this chapter, rules adopted under this chapter, and in strict compliance with the franchise agreement.

(B) Any person operating a cable system in violation of subsection (A) of this section shall be subject to the following:

(1) Revocation of the franchise;

(2) Any and all remedies allowed under Federal or State law or this municipal code; and

(3) Civil fines under EMC 1.05.180. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.08.]

5.60.090 Reservation of authority.

The City hereby reserves any and all rights, powers, or authority it has under Federal and State law. The failure to enumerate such rights, powers, or authority shall not be deemed a waiver thereof. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.09.]

5.60.100 Advertising costs.

All costs associated with advertising notices of hearings or proceedings hereunder shall be paid by the franchisee. [Ord. G-98-30, passed 9-21-98. 1983 Code § 9.97.10.]

5.60.110 Grant of franchise.

The Common Council finds that it is in the public interest to grant a nonexclusive franchise for the right and privilege of constructing, operating, and maintaining in, on, over, under, and across the streets, alleys, public ways, and public grounds of the City a broadband telecommunications network for the purpose of the transmission of CATV and other services, and the electrical impulses of television, radio, and other intelligence, either analog or digital, for public and private use in and to the City and its residents. [1962 Code, Art. 5, Ch. 11, § 1; 1982 Code § 117.015; 1983 Code § 11.117.015.]

5.60.120 Procedures.

The procedures for granting a franchise for a broadband telecommunications network for the City, and the terms and provisions which shall be applicable to the construction, operation, and maintenance of the broadband telecommunications franchise and network are set forth on an exhibit which is incorporated herein as if fully set out. The procedures, terms, and provisions shall include, but shall not be limited to, topics which cover the operation of the franchise, application for the franchise, acceptance of the effective date and termination of the franchise, regulatory jurisdiction procedures, reports and records, fees to be paid by the franchise, rates and charges permitted to be charged by the franchisee, education and governmental connection to the telecommunications network, performance measurements, and channels to be provided. Two copies of the procedures, terms and provisions shall be available for public inspection at the office of the City Clerk, during the regular business hours of the office. [1962 Code, Art. 5, Ch. 11, § 2; 1982 Code § 117.016; 1983 Code § 11.117.016.]