[HISTORY: Adopted by the Town Board of the
Town of Wappinger 8-12-1993. Amendments noted where applicable.]
This agreement is made and entered into as of
this 12th day of August 1993, by and between the Town of Wappinger,
located in Dutchess County, New York, hereinafter referred to as the
"municipality," and United States Cablevision Corp., a Rhode Island
corporation qualified to do business in the State of New York, hereinafter
referred to as the "operator."
A.Â
The operator has already constructed and has for some
years lawfully and properly operated a cable television system within
the Town of Wappinger pursuant to a franchise granted by the municipality,
which franchise had been scheduled to expire most recently on June
24, 1990.
B.Â
The operator has made proper application to the municipality
for a renewal and extension of its franchise, and the municipality
heretofore has extended the operator's previously granted franchise
rights and authority for a temporary term extending from the most
recent franchise expiration date until the effective date of this
franchise renewal.
C.Â
The municipality has considered the technical ability,
financial condition and character of the operator and has reviewed
the operator's plans for constructing, maintaining, improving and
operating the cable television system in the Town of Wappinger.
D.Â
In a full public proceeding affording due process
to all affected and interested persons, the municipality has considered
the operator's plans for further investment and continued operation
of the cable television system within the Town of Wappinger and has
found such plans adequate and feasible.
E.Â
The municipality has resolved and determined to grant
to the operator a renewed and extended franchise, upon the terms,
conditions, understandings and obligations stated herein, for an addition
term of 10 years from the effective date of this agreement.
F.Â
This franchise complies with the current franchise
standards of the New York State Commission on Cable Television.
G.Â
The municipality, therefore, subject to the provisions
expressed in this agreement, grants to the operator the right to erect,
maintain and operate a cable television system and to provide cable
service and other lawful communications services within the jurisdiction
of the municipality and to use and occupy any and all of the public
streets, roads and rights-of-way within the current or future boundaries
of the Town of Wappinger.
As used in this agreement, the following terms
shall have the meanings indicated:
This contract and its provisions.
Television, video and audio programming and other transmissions
that are received by subscribers via the cable system.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable service and other lawful services
via electrical, electronic and optical signals to subscribers and/or
customers.
Cable Communications Policy Act of 1984 (47 U.S.C. §§ 521-559)
as enacted and as amended by the Cable Television Consumer Protection
and Competition Act of 1992 and as may be further amended by Congress.
The date on which the operator's previous franchise rights
and authority shall expire and on which the provisions and term of
this agreement shall begin to take effect, which date shall be the
date upon which the NYSCCT approves and certifies this franchise renewal
and this agreement without material conditions or modifications substantially
adverse to the operator, as evidenced by the date of adoption of the
order of approval of said NYSCCT.
The Federal Communications Commission.
Any and all compensation received by the operator that is
derived from the operation of the cable television system within the
Town of Wappinger, including, but not limited to, such receipts from
all current and future sources of such compensation during the term
of this agreement, excluding receipts from operations within the Village
of Wappingers Falls; provided, however, that gross receipts shall
not include any taxes on services furnished by the operator imposed
directly or indirectly on any subscriber by any state, city or other
governmental unit or third party and collected by the operator on
behalf of such entity; and provided further, that gross receipts shall
provide for the deduction of adjustments to cash receipts such as
refunds to customers.
The government of the Town of Wappinger that is a party to
this franchise.
The New York State Commission on Cable Television.
The grantee of this franchise, United States Cablevision
Corp., a Rhode Island corporation qualified to do business in the
State of New York, and its successors, transferees and assigns.
All individuals residing in a dwelling or doing business
in the Town of Wappinger from a structure physically capable of receiving
cable service.
The geographic area within which the operator maintains and
operates the cable television system from which service is provided
to the residents of the town and neighboring communities in Dutchess
County.
The corporate and territorial limits of the Town of Wappinger,
the municipality that is a party to this franchise, as exist on the
day this agreement is signed and as may be amended or modified during
the term of this agreement, exclusive of the area within the Town
of Wappinger governed by the Village of Wappingers Falls.
A.Â
The operator shall offer cable service to any person
within the Town of Wappinger who demands service and who is located
within 200 feet of feeder cable, and the charge for the installation
for any subscriber so situated shall not be in excess of the normal
installation charge.
B.Â
The operator will not abandon service to any portion
of the Town of Wappinger without the approval of the municipality.
C.Â
The municipality grants to the operator, for the purpose
of installing the cable system and providing cable service or other
lawful communications services, the right to use and occupy any and
all of the public streets, roads and rights of way within the boundaries
of the Town of Wappinger and any of the public property of the municipality
and any easements over which the municipality exercises control and
which may be granted for or dedicated to compatible uses, such as
electric, gas, telephone or other utility transmissions.
D.Â
The operator agrees to make its best efforts to utilize
existing utility poles in the construction and extension of its cable
television system. In the event that the use of said utility poles
is not feasible, the operator may erect its own poles and may erect
such poles within the public streets, roads or rights-of-way upon
notice to the municipality and subject to compliance with applicable
requirements of the municipality's Superintendent of Highways, whose
approval shall not be unreasonably withheld.
E.Â
The operator will locate its facilities underground
in accordance with local laws, ordinances, rules and regulations of
areas of the Town of Wappinger where both electric and telephone utilities
are so located. In the event that it is not feasible for the operator
to locate its facilities underground in such areas, it may petition
Town Board for a waiver of this provision for due cause shown and
for permission to locate its facilities upon poles as the Town Board
may direct, subject to compliance with applicable laws, rules and
regulations.
F.Â
The operator will locate its facilities so as to cause
the least possible interference with the usual use of the streets
and so as to cause minimal interference with the rights of property
owners abutting said streets. In no event shall any cable television
system equipment or facility be located so as to unreasonably interfere
with the usual public travel on any street in the Town of Wappinger.
G.Â
Upon prior notification to the municipality, the operator
may trim trees that are located in the municipality's rights-of-way
to the minimum extent necessary so as to prevent the branches from
coming in contact with the wires, cables and other equipment of the
cable television system.
H.Â
Where the municipality requires the relocation of
any property of the operator, the latter shall remove and relocate
or reinstall such property upon written notice as may be reasonably
necessary to meet the requirements of the municipality.
I.Â
Upon the request of a person holding a building or
moving permit issued by the municipality, the operator will temporarily
relocate its property so as to permit the movement or erection of
buildings. The expense of any such temporary removal shall be paid
in advance to the operator by the person holding the permit, who shall
give the operator not less than 10 working days' prior written notice
to arrange for the changes required.
J.Â
The operator will obtain such additional prior approval
of the municipality as may be required before performing any work
that will affect municipal property and the operator will promptly
repair or replace any municipal property damaged or destroyed by the
operator so that the affected property is restored to its original
or like condition to the extent reasonably practicable.
K.Â
The operator shall inform each owner and each subscriber
resident of any residence or structure of any work to be performed
by the operator that will affect that property. The operator will
repair or replace any private property damaged or destroyed by the
operator so that the affected property is restored to its original
or like condition to the extent reasonably practicable, unless otherwise
agreed between the parties.
L.Â
The operator shall give notice to the municipality
and to residents and commercial establishments in the vicinity of
proposed construction, excavation, laying or stringing of cable under
streets or on poles, not less than seven calendar days before the
commencement of such work, if such work will result in a substantial
obstruction or inconvenience to normal activity in the area such work
is to be performed.
M.Â
The construction, installation, operation, maintenance
and/or removal of the cable system shall meet all of the following
safety, construction and technical specifications and codes and standards:
Occupational Safety and Health Administration Regulations (OSHA);
National Electrical Code; National Electrical Safety Code (NESC);
National Cable Television Standard Code; all applicable and pertinent
federal, state and municipal construction requirements including FCC
Rules and Regulations and Rules and Regulations of the NYSCCT; all
applicable building and zoning codes; all applicable land use restrictions.
(1)Â
The operator will comply with such specifications,
codes and standards as they now exist and as they may be amended hereafter.
(2)Â
The municipality or its designee shall have the right
upon due notice to the operator to inspect the cable system during
normal business hours and to make such tests as it shall deem necessary
to ensure compliance with such codes and standards, the terms of this
agreement and all other applicable and pertinent laws and regulations,
so long as such tests are reasonable and do not interfere with the
operation or the performance of the facilities of the cable system.
(a)Â
The operator shall cooperate fully with the
municipality or its designee during all such inspections and tests
and shall provide access to all records, materials and information
necessary for the conduct of such inspections and tests, subject to
the requirements relating to the protection of confidentiality of
subscriber records.
(b)Â
Such inspections and tests shall be performed
without cost to the operator other than expenses for the operator's
personnel if the presence or assistance of such personnel is necessary
for the conduct of such inspection or test or if the presence or assistance
of such personnel is required by the operator. In the event that such
inspection or testing determines that the operator is not in compliance
with existing regulations and codes, the operator shall reimburse
the municipality for all reasonable costs incurred in making such
inspections and tests.
N.Â
All contractors or subcontractors of the operator
must be properly licensed and insured under all applicable federal,
state and local laws and regulation.
O.Â
Except where there exists an emergency situation necessitating
a more expeditious procedure, the operator shall use its best efforts
to interrupt cable service for the purpose of repairing or modifying
the cable system only during periods of minimum use. Whenever such
an interruption is scheduled, the operator shall provide at least
24 hours' prior notice to subscribers that will be affected by the
interruption through a character-generated announcement on a channel
commonly utilized by the operator to communicate with its subscribers
about their cable service. The operator also shall provide notice
to the municipality at least 24 hours prior to the time the interruption
is scheduled to occur; operator may provide such notice by telephone
or by FAX transmission or in writing. The operator will comply with
all applicable federal and state regulations.
A.Â
The operator shall complete a technical upgrade and
rebuild of the current cable system within two years of the effective
date of this agreement. The resulting cable system shall have a minimum
capacity of 450 MHz or 60 channels.
(1)Â
The operator will make reasonable efforts in good
faith to maximize the number of energized channels available to subscribers
and provide to those subscribers a wide diversity of programming sources
and services.
(2)Â
The operator shall present to the municipality a plan
for the completion of the rebuild and upgrade within 30 days of the
effective date of this agreement. This plan shall include:
(a)Â
A detailed map of the entire franchise area
clearly indicating all street names and accurately indicating the
areas to be affected by the upgrade and rebuild and confirming that
the proposed upgrade and rebuild shall encompass all areas of the
town now served.
(b)Â
A description, in stages and in chronological
order, of how the completion of the upgrade and rebuild is expected
to proceed.
(c)Â
Notification of whether the newly rebuilt and
upgraded cable system will be activated in stages or upon completion
of the entire project and the projected date(s) this will occur. (It
is understood that all dates provided by the operator about the rebuild
and upgrade are for informational purposes only and that the operator
will remain in compliance with the terms of this section of this agreement
as long as the rebuild and upgrade are completed within two years
of the effective date of this agreement and the required plans are
tendered to the municipality within 30 days of the effective date
of this agreement.)
(3)Â
The conduct of the operator's rebuild and upgrade
shall conform to the plans submitted by the operator. The operator
shall inform the municipality, in writing, of any substantial deviations
from those plans, no more than 30 days after such deviations become
known to operator.
B.Â
Parental control devices capable of securing individual
channels from being heard and viewed will be made available to all
subscribers, upon request.
C.Â
The operator shall construct and operate the cable
system in such a manner as to deliver in proper form, directly to
the television receivers of its subscribers, those stereo audio signals
and other similar special audio signals that accompany the television
signals received and distributed by the operator.
D.Â
During the rebuild and upgrade and any extension of
the cable system, the operator shall use materials of good and durable
quality and all work involved in the construction, installation, extension,
maintenance and repair of the cable system throughout the term of
this agreement shall be performed in a safe, thorough and reliable
manner subject to applicable regulations.
E.Â
Upon written request by the municipality, the operator shall provide a free installation of cable service to one television reception outlet and shall provide without charge a basic level of subscriber service for one such outlet, to each qualified public and private school, police station, firehouse, volunteer ambulance corps facility, municipal building, public library and municipality-sponsored senior citizen center located within 200 feet of the cable system and within the Town of Wappinger. For purposes of determining the operator's obligations under this § A245-5E, a qualified school shall include only a school offering primary or secondary education (grades K through 12) properly licensed or certified by the State of New York and the Dutchess County Community College.
The operator shall comply with § 595.4
of the Rules and Regulations of the NYSCCT pertaining to public, educational
and governmental (PEG) access to the cable system.
A.Â
The operator shall maintain and operate its cable
television system at all times in compliance with the applicable technical
performance standards and requirements of the NYSCCT and the FCC.
B.Â
The operator shall maintain staffing levels and support
equipment to assure that telephone inquiries are handled promptly
in order to minimize busy signals and hold time in accordance with
all applicable regulations.
C.Â
The operator shall have on call at all times a person
able to perform at least minor repairs or corrections to malfunctioning
equipment of the cable system.
(1)Â
The operator shall have in place at all times and
shall maintain a system for receipt of subscriber complaints and reports
of service problems or service interruptions. Such a complaint and
reporting system shall allow subscribers to call in a complaint or
report a problem by telephone at any time of day, on all days of the
year, and such reports shall be received by company agents or recorded
and monitored so that prompt response may be initiated as appropriate.
(2)Â
The operator shall initiate response to all service
complaints promptly and in no case later than the following business
day. An appropriate response to reports of service interruptions shall
be initiated as promptly as is feasible and in no case later than
within 24 hours following receipt of the reports of service interruption,
unless general emergency conditions make such response impossible.
(3)Â
Whenever the operator becomes aware that the volume
of incoming telephone calls exceeds the capacity of the operator's
telephone answering system to accommodate normal receipt of complaints
and reports, the operator shall promptly take action to put in place
an audio message on its telephone system to inform callers that an
outage or other emergency is in progress and that appropriate repairs
or other actions are underway and explaining the appropriate procedure
for making subsequent reports or seeking credit of subscriber charges
if appropriate.
D.Â
The municipality shall have the right and authority
to request an inspection or test of the cable system by the NYSCCT,
the FCC or to have such inspection or test performed at the municipality's
expense. The operator shall fully cooperate in the performance of
such testing.
A.Â
Rates and charges imposed by the operator for cable
service shall be subject to the approval of the municipality and the
NYSCCT to the extent consistent with applicable state and federal
law. The rates for any cable service for which approval is required
shall be deemed part of the franchise whether or not the same are
specifically set forth therein.
B.Â
All rates and charges associated with the provision
of cable service shall be published, with the exception of temporary
special and promotional rates. A written schedule of all such rates
currently in effect shall be available and obtainable in person or
by mail upon request during business hours at the operator's business
office and at the offices of the municipality and shall be provided
to each subscriber and the municipality annually.
A.Â
The municipality will be held harmless and indemnified
from all liability, damage, cost or expense arising from claims of
injury to persons or damage to property by reason of any conduct undertaken
in the Town of Wappinger by the operator, its agents, servants, employees,
contractors or subcontractors in the operation of the cable system.
B.Â
By its acceptance of this franchise, the operator specifically agrees that it will pay all reasonable expenses incurred by the municipality in defending itself with regard to all damages and/or penalties mentioned in Subsection A of this section, provided that the municipality gives to the operator reasonable notice of claims for damage and penalties upon receipt of the same. These expenses shall include out-of-pocket expenses such as attorney's fees. In connection with the defense of claims for damages and/or penalties mentioned in Subsection A of this section which may from time to time be brought against the municipality as a result of this franchise, the operator shall have the option of selecting the attorney or attorneys to represent the operator and the municipality. Notwithstanding anything to the contrary contained herein, the municipality shall not be indemnified or reimbursed in relation to any matter in such action, suit or proceeding to the extent which the municipality shall finally be adjudicated to have been guilty of or liable for negligence, willful misconduct or criminal acts or the municipality has entered into a compromise settlement without notice to and consent of the operator, except to the extent that said compromise settlement shall have been approved by a court of competent jurisdiction after a hearing regarding which the operator was given notice and the opportunity to be represented by counsel.
C.Â
By its acceptance of this franchise, the operator specifically agrees that it will maintain, throughout the term of this agreement, liability insurance insuring the municipality and the operator with regard to all damages and/or penalties mentioned in Subsection A of this section in the minimum amounts of:
D.Â
A certificate evidencing the insurance coverage herein
provided shall be delivered by the operator to the municipality within
30 days after the effective date of this agreement. The municipality
will be an additional insured on any and all such policies or coverages.
A.Â
The operator will pay to the municipality on a quarterly
(quarter-annual) basis throughout the term of this agreement a sum
totaling 3% of gross receipts received by the operator during each
quarterly period, less any amount due the NYSCCT for such period.
(1)Â
The first quarterly period for the purpose of
the payment of the franchise fee pursuant to this section shall begin
on the effective date of this agreement and extend to the end of the
subject calendar quarter and payments for this period shall be prorated
appropriately. Subsequent quarterly periods shall coincide with the
calendar year (January-February-March, April-May-June, July-August-September,
October-November-December). Payments shall be due by a date 31 days
following the close of each calendar quarter.
B.Â
The operator shall submit to the municipality a statement
containing sufficient information necessary to permit the municipality
to independently verify that payment of the franchise fee has been
fully and accurately made. The statement shall be submitted at the
same time as payment of the franchise fee is made. The statement shall
include gross receipts itemized by category, both cable and noncable,
with accompanying subscriber data.
(1)Â
The accuracy of the statement may be independently
audited by the municipality at any time at its own expense, subject
to the obligations of the operator to protect the confidentiality
of subscriber records under applicable state or federal law.
(a)Â
If an error of greater than 5% of the correct
franchise fee owed is found, the operator shall promptly reimburse
the municipality for all expenses incurred in the conduct of the audit,
in addition to any additional fee owed the municipality.
(b)Â
However, if the operator disputes the findings
of the municipality's audit, the disputed amount shall be placed in
escrow until a final judgment is rendered by a court of competent
jurisdiction. As an alternative to litigation, the parties may agree
to abide by a final judgment arrived at through binding arbitration.
(c)Â
Any final judgment for the municipality that
shows an error of greater than 5% shall result in a requirement that
the operator reimburse the municipality for court costs or arbitration
fees incurred by the municipality.
(2)Â
Subject to the obligation of the operator to
protect the confidentiality of subscriber records under applicable
state and federal law, the underlying books and records of the operator
may be audited on the municipality's behalf as is reasonably necessary
to effect such independent audit of the statement and the operator
shall cooperate fully with the municipality and its agents in the
conduct of the audit.
C.Â
In addition to the quarterly fee payment described above in Subsection A of this § A245-10 of this agreement, the operator shall make a one-time payment to the municipality of an additional sum of $75,000 as an additional lump sum franchise fee. Such one-time payment shall be paid at a time and in a manner to be determined by the municipality in coordination with the operator, not later than December 31, 1993, but in no event earlier than the effective date of this agreement or the dates upon which currently promulgated federal rate regulation provisions become effective and currently promulgated federal rate freeze limitations expire.
A.Â
The operator shall not transfer this franchise to
any other person, firm, company, corporation or entity without the
prior approval of the municipality.
B.Â
The operator shall file with the municipality prompt
notice of any proposed transfer of control for which approval is legally
required from the municipality or the NYSCCT.
C.Â
The municipality shall not unreasonably withhold its
approval of a request for transfer of the franchise or transfer of
control filed by the operator.
(1)Â
For the purpose of determining whether it shall
consent to such change, transfer or acquisition of control, the municipality
may inquire into the legal, financial, character, technical and other
public interest qualifications of the prospective controlling party
and the operator shall assist the municipality in any such inquiry.
(2)Â
Failure to provide all transfer-related information
reasonably requested by the municipality as part of said inquiry shall
be grounds for denial of the proposed change, transfer or acquisition
of control.
D.Â
The municipality shall act on a request for any consent
or approval required by this section within 60 days of such request.
E.Â
The municipality may approve a request for transfer
contingent on compliance with standards, terms or conditions within
its purview, as permitted by federal or state law and regulation or
as permitted by the terms of this agreement, provided that such standards,
terms or conditions are not inconsistent with the terms, rights and
privileges granted to the operator under this agreement.
F.Â
In the event that the municipality refuses to approve
a request for transfer, it shall specifically set forth its reasons
for its decision, in writing, by municipal resolution.
A.Â
Formal notices made by the municipality to the operator
as required by any provision of this agreement must be in writing,
by registered first class United States mail, return receipt requested.
Notices to the operator shall be addressed to:
|
U.S. Cablevision Corp.
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38 Old Route 9
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P.O. Box 889
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Wappingers Falls, New York 12590
| |
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Attention: General Manager
| |
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with a copy to:
| |
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U.S. Cablevision Corp.
| |
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20 Washington Place
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Providence, Rhode Island 02901-0969
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Attention: President
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B.Â
Unless otherwise required, notices required to be
made by the operator to the municipality pursuant to the provisions
of this agreement may be made, in writing, by telephone or by FAX
transmission. Any such written notices to the municipality shall be
addressed to:
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Town of Wappinger
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Town Hall
| |
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20 Middlebush Road
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P.O. Box 324
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Wappingers Falls, New York 12590
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Attention: Town Supervisor
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C.Â
The parties will notify each other of any change in
this information within 15 days of such change.
A.Â
It shall be the obligation of the operator to promptly
file with the municipality copies of any and all reports, applications,
petitions, requests, submissions, responses or other communications
that have been submitted or provided by the operator to the FCC or
NYSCCT or other governmental agency and that are required to be provided
to the municipality by current or future law or rule or any further
modification or amendment thereof, including without limitation applications
to the NYSCCT pursuant to §§ 821 and 822 of Article
28 of the New York State Executive Law (Executive Law), notices of
program service deletions required to be given to the municipality
pursuant to § 824-a of the Executive Law, notices of abandonment
that may be governed by § 826 of the Executive Law, requests
for modification of franchise obligations or renewal of franchise
rights that are required to be given to the municipality pursuant
to §§ 625 or 626 of the CCPA (47 U.S.C. §§ 545
or 546), requests for modification of any subscriber rates or charges
that may be subject to regulation by the municipality pursuant to
applicable federal law, requests submitted to the FCC for special
relief pursuant to § 76.8 of the FCC regulations and that
would directly affect the municipality if granted; provided, however,
that the obligation of the operator to submit any such information
or documentation shall be limited to the extent necessary to permit
the operator to protect the confidentiality of subscriber information
as required by state or federal law or to protect confidential or
proprietary business information or commercial trade secrets.
B.Â
The operator shall maintain the following records:
(1)Â
A record of all service repair orders received
including the date and time received, nature of complaint, date and
time resolved and action taken to resolve or current status if not
resolved.
(2)Â
A log showing, when known, the date, approximate
time and duration, type and probable cause and resolution of all cable
system outages, whole or partial, due to causes other than routine
testing or maintenance.
C.Â
The municipality reserves the right to inspect any
and all pertinent records the operator is required to maintain pursuant
to this agreement or applicable laws and regulations upon reasonable
notice and during normal business hours. The operator shall promptly
make such materials available at its local business office, subject
to the obligation of the operator to protect the confidentiality of
subscriber records.
D.Â
Once during the first quarter of each calendar year
during the term of this agreement, at the request and invitation of
the municipality, the operator's system manager or regional manager
shall appear at a public session scheduled by the municipality to
answer the inquiries of representatives of the municipality and the
residents of the Town of Wappinger pertaining to the operation of
the cable system in the Town of Wappinger and to present a report
on the operation of the cable system.
E.Â
The municipality may adopt additional reasonable regulations
as it may find necessary in the exercise of its police power that
are consistent with and not in contravention of the provisions of
this agreement and applicable laws and regulations.
F.Â
The operator shall provide to the municipality copies
of all general correspondence to its subscribers, including but not
limited to the forms of surveys sent generally to all subscribers
within the Town of Wappinger.
A.Â
The operator shall respond to trouble calls and shall
conform its subscriber billing practices in the manner prescribed
in the applicable provisions of all applicable rules and regulations.
B.Â
Consistent with all applicable federal and state requirements,
the operator shall maintain and operate a local customer service center
and bill payment location which shall be open at least during normal
business hours and which shall be conveniently located within its
service area and which shall operate for the purpose of receiving
and resolving all complaints, including without limitation those regarding
service, equipment malfunctions or billing and collection disputes.
(1)Â
In addition to being open for walk-in business,
the business office shall have a publicly listed, toll-free telephone
number.
(2)Â
The operator shall periodically and at various
times of the day present its business office address and publicly
listed toll-free telephone number by means of alphanumeric display
on a channel regularly used by the operator to communicate with subscribers
and about aspects of its cable service.
(3)Â
In the event that the operator moves its primary
business office outside the Town of Wappinger during the term of this
agreement, the operator shall arrange to have an agent within the
Town of Wappinger for receiving payment of bills.
C.Â
A subscriber who is dissatisfied with the operator's
handling or resolution of a complaint may petition the municipality
or the NYSCCT at any time for assistance in reaching a satisfactory
resolution.
D.Â
The operator will discontinue charging subscribers
for cable service or any portion thereof on the date cessation of
such service or portion thereof was requested by the subscriber, provided
that the subscriber surrenders any equipment of the operator necessary
for receiving such service at the time mutually agreed upon between
the operator and the subscriber, and provided that the operator is
not prohibited hereby from sending its subscriber bills in advance
of service periods nor from sending subsequent bill notices reflecting
the correct amount of prorated charges actually due.
E.Â
Employees of the operator shall not enter a customer's
home without the permission of the customer or under other appropriate
legal authority.
F.Â
Each representative or employee of the operator entering
upon private property on the operator's business shall be required
to have, and produce on request, an employee identification card issued
by the operator bearing a picture of said representative.
G.Â
The operator shall provide for display a standard
photo-identification document to all employees, including employees
of subcontractors, who will be in contact with the public. Such documents
shall include a telephone number that can be used to verify identification.
H.Â
The operator shall respond within 20 days to all written
inquiries of subscribers.
A.Â
The operator shall provide a construction surety bond in the amount of $25,000 until the rebuild and upgrade of the cable system required in § A245-5 is completed and shall maintain a performance surety bond in the amount of $10,000 for the remaining term of this agreement.
(1)Â
Each surety bond shall be provided and regulated
in accordance with the provisions of this section.
(2)Â
Each surety bond shall be provided within 30
days of the effective date of this agreement.
(3)Â
Each surety bond shall provide that there shall
be recoverable by the municipality jointly and severally from the
principal and surety bond, subject to then-existing limits of the
surety bond, any and all damages, losses, costs and expenses suffered
or incurred by the municipality resulting from the failure of the
operator to faithfully comply with the terms and conditions of this
agreement as pertains to each specific bond.
(4)Â
Each surety bond required herein shall be in
a form satisfactory to the municipality and shall require 30 days
written notice of any nonrenewal, alteration or cancellation to both
the municipality and the operator. The operator shall, in the event
of any such cancellation notice, obtain, pay all premiums for and
file a replacement bond within 45 days following receipt by the municipality
or operator of any such notice of cancellation.
(5)Â
The municipality shall not seek recovery from
the surety bonds until it has provided the operator with at least
60 days to cure any defaults as specified herein.
B.Â
In the event that the municipality has reason to believe that it has suffered or incurred damages, losses, costs or expenses, as a result of a default by the operator in the performance of its obligations under this agreement, except as excused by force majeure and other circumstance beyond the operator's control enumerated in § A245-16D of this agreement, the municipality shall notify the operator, in writing, of the provision or provisions which the municipality believes may be in default. The operator shall have 60 days from the receipt of such notice to:
(1)Â
Respond to the municipality, in writing, contesting
the municipality's assertion of default and providing such supporting
information or documentation as may be necessary; or
(2)Â
To cure any such default or, in the event that
by nature of the default such default cannot be cured within such
sixty-day period, to take reasonable steps to cure the default and
diligently continue such efforts until said default is cured. The
operator shall report to the municipality, in writing, at thirty-day
intervals, as to the operator's efforts, indicating the steps taken
by the operator to cure the default and reporting the operator's progress
until such default is cured.
C.Â
In the event that the municipality believes that a default continues to exist and the operator fails to comply with the terms of § A245-15B herein, the municipality may convene a public hearing on reasonable notice at which hearing the operator may be heard and after which the municipality shall specify its complaint against the operator.
(1)Â
The municipality and operator may agree on the
appointment of an impartial person to act as a factfinder who shall
fix a date for a hearing at which evidence shall be received and a
record kept of evidence of the complaint.
(2)Â
The factfinder shall report, in writing, to
both parties with his or her findings of fact. The municipality shall
make a finding of violation or no violation based on those findings.
(3)Â
In the event that the municipality after such
hearing determines that the operator is in default of any such provision
of this agreement, the municipality may also determine to pursue any
or all of the following remedies:
(a)Â
Foreclose on all or any part of the surety bonds
provided pursuant to this section; provided, however, the foreclosure
shall be in such amount as the municipality reasonably determines
is necessary to recover its damages, losses, costs or expenses as
a result of the default and any reasonable costs in connection with
the foreclosure.
(b)Â
Commence an action at law for monetary damages,
including the expenses of the factfinding hearing.
(c)Â
Any other recourse as available by law or federal
or state regulation.
D.Â
The operator shall not be held to be in default, violation or noncompliance with the provisions of this agreement where such default, violation or noncompliance is a result of force majeure or other circumstances beyond the control of the operator, as enumerated in § A245-16D of this agreement, are deemed to exist. No decision by the municipality to invoke any remedy under this agreement or under any statute, law or regulation shall preclude the availability of any other remedy.
E.Â
Whenever moneys are taken from the performance bond
pursuant to this section, the operator must replenish the bond to
the amount required by this agreement.
A.Â
Except during the final 12 months of this agreement,
the municipality may revoke this agreement for the following material
breaches of this agreement:
(1)Â
Failure to complete the required rebuilds and upgrades as provided for in § A245-5 of this agreement.
(2)Â
Reporting fraudulent information to the municipality
or displaying gross negligence in the preparation, transmission or
maintenance of information required under this agreement.
(3)Â
Failure to pay taxes or fees due the municipality
or, if the amount to be tendered under this agreement is in dispute,
failure to pay taxes or fees due the municipality as finally determined
by a court of competent jurisdiction.
(4)Â
Failure to maintain insurance at the levels
required by this agreement.
(5)Â
Failure to establish and maintain the performance
bonds as required by this agreement.
(6)Â
Failure to obtain prior approval of the municipality
for transfer of the franchise as required by this agreement.
B.Â
No revocation provided for in this section shall be
effective unless and until the municipality shall have provided:
C.Â
The operator retains all rights of judicial appeal
provided by federal and state law or regulation.
D.Â
In no event, and notwithstanding any contrary provision
in this section or in this agreement, shall this franchise be subject
to revocation or the operator be liable for breach of this agreement
during the period of time where substantial noncompliance or failure
to take reasonable steps to remedy a duly noticed material provision
is due to war, government restrictions, embargo, civil commotion,
strikes or work stoppage, fires and any act of God or other similar
condition beyond the control of the operator. Provided that the operator
timely informs the municipality of such circumstance, the operator
shall be released from specific obligations herein so affected, except
for provisions guaranteeing public safety, during the course of any
such conditions, and the time specified for performance of the operator's
obligations hereunder shall automatically extend for a period of time
equal to the period of the existence of any such conditions which
interferes with the performance of the operator's obligations.
A.Â
Subject to the limits upon the authority of the municipality
to regulate the services provided by the operator under applicable
state and federal law, the operator shall provide, at a minimum, the
following broad categories of programming:
(1)Â
Broadcast stations as required by federal law.
(2)Â
Children's programming.
(3)Â
Music programming.
(4)Â
Government and public affairs programming.
(5)Â
News programming.
(6)Â
Religious programming.
(7)Â
Sports programming.
(8)Â
General entertainment programming.
(9)Â
Ethnic programming.
(10)Â
Pay TV programming.
(11)Â
Shopping services.
(12)Â
Educational programming.
This agreement shall expire 10 years from the
effective date of this agreement.
A.Â
The operator may apply to the municipality for a temporary
waiver of any provision of this agreement or for an extension of time
to comply with any provision of this agreement. The municipality may
grant such waiver or extension for good cause shown. The municipality
may require the operator to submit information necessary to support
such request for waiver or extension.
B.Â
All references within this agreement to the applicability
of the current or future rules, regulations, standards or requirements
of the FCC or the NYSCCT are hereby expressly conditioned upon the
validity and enforceability of such rules or regulations and subject
to any waivers thereof by action of the FCC or the NYSCCT, respectively.
C.Â
The validity of the ten-year term of this agreement
and the franchise rights of the operator shall be considered a material
element of this agreement. Should any other provision of this agreement
be held invalid by a court or regulatory agency, the remaining provisions
of this agreement shall remain in full force and effect.
D.Â
Subject to the obligation of the operator to protect
the confidentiality of subscriber records under applicable state or
federal law, the municipality reserves the right to inspect all pertinent
books, records, maps, plans, financial statements and other like materials
of the operator upon reasonable notice and during normal business
hours.
E.Â
The operator will not refuse to hire an employee,
nor bar or discharge from employment, nor discriminate against any
person in compensation or in terms, conditions or privileges of employment
because of age, race, creed, color, national origin or sex.
F.Â
This agreement is subject to the approval of the NYSCCT.
G.Â
This franchise is nonexclusive. It is the understanding
and agreement of the parties hereto that the municipality may grant
other franchises at any time, subject to applicable federal and state
laws and regulations. If such a franchise is granted, the municipality
shall give notice to the operator of such grant. Upon the request
of the operator, the municipality shall amend the terms of this agreement
to reflect any more favorable provisions of such other franchise agreement
entered into by the municipality during the term of this agreement,
provided that the operator agrees to comply with other lawful provisions
of such other franchise agreement.
H.Â
The official responsible for administration of this
agreement on behalf of the municipality shall be the Town Supervisor
or such other official as may be designated hereafter by the formal
action of the municipality.
I.Â
This agreement shall be governed by the laws of the
State of New York and is subject to the applicable provisions of federal
law and regulations including the CCPA.
J.Â
By execution of this agreement neither the operator
nor the municipality waives any rights either may have under federal,
state or local law.
