[HISTORY: Adopted by the Mayor and Council
of the Town of Middletown as indicated in article histories. Amendments
noted where applicable.]
Attachment 1 - Exhibit 1 Atlantic Broadband Customer Service Obligations
Attachment 2 - Exhibit 2 Atlantic Broadband Municipal FacilitiesAttachment 3 - Exhibit A Verizon Municipal Buildings to be Provided Free Cable ServiceAttachment 4 - Exhibit B Verizon Service AreaAttachment 5 - Exhibit C Verizon Customer Service Standards
Attachment 2 - Exhibit 2 Atlantic Broadband Municipal FacilitiesAttachment 3 - Exhibit A Verizon Municipal Buildings to be Provided Free Cable ServiceAttachment 4 - Exhibit B Verizon Service AreaAttachment 5 - Exhibit C Verizon Customer Service Standards[Adopted 10-4-2021 by Ord. No. 21-09-04[1]]
[1]
Editor's Note: This ordinance also repealed former Ch. A191,
Cable Television Franchise, adopted 3-6-1980 by Ord. No. I-9.
The Issuing Authority, pursuant to Section 621 of the Cable
Communications Policy Act of 1984 as now in effect ("Federal Cable
Act"),[1] is authorized to grant one or more nonexclusive franchises
to construct, operate and maintain a cable television system within
the municipal boundaries of the Issuing Authority ("service area").
[1]
Editor's Note: See 47 U.S.C. § 541.
The Issuing Authority has analyzed and considered the technical
ability, financial condition and legal qualifications of franchisee.
The Issuing Authority, after such consideration, analysis and
deliberation as are required by applicable law, has approved and found
sufficient the technical, financial and legal qualifications of franchisee
to provide cable television service within the municipality.
A.
Grant and term. The Issuing Authority grants to franchisee for the
term ("term") of 15 years commencing on the effective date (as defined
below) the nonexclusive right and franchise ("franchise") to construct,
use, operate, own and maintain a cable system (as defined in the Federal
Cable Act) ("cable system") subject to all applicable local, state
and federal laws and regulations. For purposes of this agreement,
the term "effective date" is 60 working days following the approval
of this agreement by the Issuing Authority and franchisee. The term
shall automatically extend for three additional terms of five years
each, provided franchisee references this section in writing to the
Issuing Authority at most 36 months and no later than three months
before the expiration date, unless the Issuing Authority notifies
franchise, in writing, during the same time period of its desire to
enter into renewal negotiations as provided under the Cable Act, in
which case there shall be no such automatic extension.
B.
Easements and rights-of-way. Without reducing its police powers to
adopt and enforce ordinances of general applicability necessary to
the health, safety and welfare of the public, the Issuing Authority
grants to franchisee the authority to use the Issuing Authority's
streets, sidewalks, easements and rights-of-way for the purposes of
this agreement, and the franchise shall be construed to authorize
the construction of a cable system over such rights-of-way and through
compatible-use easements in accordance with Section 621(a)(2) of the
Federal Cable Act,[1] and to grant access to such easements whether or not such
easements specifically contemplate or designate "Cable TV" and to
include this grant in future easements and rights-of-way as they are
created. The parties acknowledge and agree that the purpose of the
franchise is to authorize franchisee to construct, maintain and operate
a cable system and offer cable service and any other services franchisee
may provide over the facilities of the cable system in, along, among,
upon, across, above, over or under the public rights-of-way within
the Issuing Authority's boundaries as they may now exist, or
as they may be extended through annexation, and for that purpose to
erect, install, construct, repair, replace, reconstruct, maintain,
or retain in, on, over, under, upon, across, or along any public right-of-way
or bridges such poles, wires, cables, conductors, ducts, conduits,
manholes, amplifiers, attachments and equipment as may be necessary
or pertinent to the cable system.
[1]
Editor's Note: See 47 U.S.C. § 541(a)(2).
C.
Authority not exclusive. The franchise and the grant of authority for use of streets, sidewalks, easements and rights-of-way as conferred in this § A191-4 are nonexclusive. Franchisee shall respect the rights and property of the Issuing Authority and other authorized users of streets, sidewalks, easements and rights-of-way, and property owners. Except as otherwise required by applicable law, disputes between franchisee and parties other than the Issuing Authority over the use, pursuant to this agreement, of the street, sidewalks, easements and other rights-of-way shall be submitted to the Issuing Authority for resolution.
From and after the effective date of this agreement and throughout
the full term of the franchise, franchisee shall pay to the Issuing
Authority, in accordance with generally acceptable accounting principles
and the FCC Rules and Regulations as amended from time to time, a
franchise fee equal to 0% of annual gross revenues from the provision
of cable service ("franchise fee"). Annual "gross revenues" shall
be defined, unless preempted by applicable federal and state law,
as compensation received by franchisee from subscribers for the provision
of cable service to subscribers over the cable system. This term shall
also include equipment, wire maintenance, late fees and other subscriber
revenues. This term does not include any revenue from the provision
of any telephone or internet service, sales, excise, or other taxes
or fees collected by franchisee on behalf of any state, city or governmental
unit and, further, shall not include actual bad debt, refunds and
credits to subscribers, one-time charges, advertising and home shopping
revenues and leased access revenues and franchise fees. Franchisee
shall pay the franchise fee to the Issuing Authority on an annual
basis, with such franchise fee payable 45 days following the preceding
year end.
A.
Maintenance. Franchisee shall maintain all wires, conduits, cables
and other real and personal property and facilities owned by franchisee
and used in the operation of the cable system in good condition, order
and repair.
B.
Compliance with law. Franchisee shall comply with all applicable
federal, state and local laws and regulations governing the construction,
installation, operation and maintenance of a cable system. Such laws
and regulations shall include, without limitation, the requirements
of Section 621(a)(2)(A) of the Federal Cable Act.[1]
[1]
Editor's Note: See 47 U.S.C. § 541(a)(2)(A).
C.
Standard installation.
(1)
Drops exceeding 125 feet. Where the drop to the customer's premise
is more than 125 feet in length, in addition to the prevailing standard
installation or activation charge, franchisee may charge the customer
the actual difference between franchisee's cost of installing
a 125-foot drop and the cost of installing the longer drop required
by the customer.
D.
Ownership of installed cable. Franchisee shall own all cable installed
by franchisee within the service area.
E.
Municipal facilities. During the term, franchisee shall provide,
at no cost to the Issuing Authority, one aboveground cable drop of
up to 125 feet, expanded basic service (excluding premium and pay-per-view
services) to each municipal facility (as set forth in the attached
Exhibit 2[2]) within the service area. If the Issuing Authority requests
that a particular municipal facility receive either a cable drop which
exceeds 125 feet in length and/or an underground installation, franchisee
may charge the Issuing Authority the actual difference between franchisee's
cost of installing a 125-foot aboveground drop and franchisee's
actual cost of installing the drop as requested by the Issuing Authority.
For purposes of this agreement, the term "municipal facilities" means:
(1)
The public school buildings within the municipal limits;
(2)
One public library within the municipal limits;
(3)
The Issuing Authority's city hall (or comparable building);
(4)
One police facility within the municipal limits; and
(5)
One fire facility within the municipal limits.
[2]
Editor's Note: Said exhibit is included as an attachment
to this article.
A.
Indemnification.
(1)
General duty. Except with respect to the negligent or intentional
act or omission of the Issuing Authority, its agents, employees or
representatives, franchisee agrees to defend, indemnify and save harmless
the Issuing Authority and its employees, agents, servants, officers,
directors, shareholders, elected officials, contractors, subcontractors
and representatives (collectively, "indemnified party") against all
damages, losses and expenses (including, without limitation, reasonable
attorneys' fees and costs of suit or defense) arising from any
claims, demands and suits for personal injury (fatal or nonfatal),
property damage or claims of any other nature, to the extent such
damages, losses or expenses arise out of or are caused by the negligent
or other wrongful acts or failures to act of franchisee or its employees,
agents, servants, officers, directors, shareholders, officials, contractors,
subcontractors or representatives in the construction, operation and
maintenance of the cable system. Notwithstanding the foregoing, this
subsection shall not apply to any liability which may accrue to the
Issuing Authority with regard to the Issuing Authority's use
of any channel provided for the Issuing Authority's use, arising
out of the use of the emergency override capability required pursuant
to this agreement or other local ordinance or regulation, or arising
out of any act of commission or omission, or any negligence of the
Issuing Authority, or its officers, elected or appointed officials,
servants, agents, employees or contractors.
(2)
Notice and defense. The indemnified party shall give franchisee reasonably
prompt written notice of any claim, demand, action or proceeding for
which indemnification will be sought under this provision of the agreement.
If such claim, demand, action or proceeding is a third-party claim,
demand, action or proceeding, franchisee will have the right at its
expense to assume the defense of such claim, demand, action or proceeding.
Franchisee and the indemnified party shall cooperate with each other
and provide each other with access to relevant books and records in
their possession. No such third-party claim, demand, action or proceeding
shall be settled without the prior written consent of the indemnified
party, which consent the indemnified party shall not unreasonably
withhold or delay.
B.
C.
Workers' compensation insurance. Franchisee shall maintain in
force, during the term of this agreement and any renewal or extension
thereof, workers' compensation insurance, covering its obligations
under the worker's compensation statute, and shall show to the
reasonable satisfaction of the Issuing Authority that such insurance
is in effect at all times.
A.
Invasion of privacy prohibited. In the conduct of providing its services
or pursuit of any collateral commercial enterprise resulting from
its services, franchisee shall take all action necessary to prevent
an invasion of a customer's right to privacy as such right is
defined by applicable law.
B.
Sale of personalized data restricted. Franchisee shall not sell or
otherwise make available to unaffiliated third parties (including
the Issuing Authority) lists of names and addresses of customers,
or any list which identifies, by name, customer viewing habits, or
personalized data pertaining to a customer's use of any of franchisee's
services without the express written consent of the customer to which
the personalized data pertains unless permitted by applicable law.
For purposes of this section, "personalized data" shall mean the name
and/or address of an individual customer directly associated with
data obtained on his or her use of specific services provided by or
through franchisee. Nothing in this agreement shall be construed to
prevent, as a normal incident of commercial enterprise, the sale or
availability of "nonpersonalized" or "aggregate data" which is not
personalized data as defined in this agreement.
C.
Landlord/tenant. Franchisee shall be required, in accordance with
this agreement and applicable law, to provide service to individual
units of a multiple housing facility with all services offered to
other dwelling units within the service area, so long as the owner
of the facility consents, in writing, if requested by franchise, to
the following:
(1)
To franchisee's providing of the service to units of the facility;
(2)
To reasonable conditions and times for installation, maintenance
and inspection of the system of the facility premises;
(3)
To reasonable conditions promulgated by franchisee to protect franchisee's
equipment and to encourage widespread use of the system; and
(4)
To not demand or accept payment from franchisee for permitting franchisee
to provide service to the facility and to not discriminate in rental
charges, or otherwise, between tenants which receive cable services
and those who do not.
Franchisee shall pay any taxes required by applicable law to
be paid by franchisee, and franchisee shall have the right to pass
through to customers any applicable taxes and fees, including franchise
fees. With respect to rates and charges, the parties agree that they
will abide by federal law and Federal Communications Commission ("FCC")
Regulations.
A.
General. There shall be no assignment of franchisee's franchise,
in whole or in part, by franchisee without the written notification
to the Issuing Authority.
B.
Exception. This section shall not apply to any sale, assignment or
transfer to one or more purchasers, assignees or transferees controlled
by, controlling, or under common control with, franchisee, and franchisee
shall be permitted to effect any such sale, assignment or transfer
without prior notification to the Issuing Authority.
The Issuing Authority and franchisee agree that any proceedings
undertaken by the Issuing Authority that relate to the renewal of
franchisee's franchise shall be governed by and comply with applicable
federal law, including the renewal provisions in Section 626 of the
Federal Cable Act[1] as then in effect. The Issuing Authority acknowledges
that franchisee will make a substantial investment in providing facilities
and services pursuant to this franchise agreement and that renewal
of the franchise, provided it meets the criteria specified in applicable
law, is a significant factor in franchisee's willingness to assume
its obligations hereunder.
[1]
Editor's Note: See 47 U.S.C. § 546.
In the event that the Issuing Authority grants one or more franchise(s)
or similar authorization(s), for the construction, operation and maintenance
of any communication facility which shall offer services substantially
equivalent to services offered by the franchisee, it shall not make
the grant on more favorable or less burdensome terms. If franchisee
finds that the agreement(s) granting said other franchise(s) contain
provisions imposing increased rights and/or lesser obligations on
the company(s) there of than are imposed by the provisions of this
franchise, the parties agree that this franchise shall be automatically
amended to reflect such increased rights and/or lesser obligations.
Any delay, preemption, or other failure to perform, including
but not limited to system construction, caused by factors beyond the
parties' reasonable control, such as an act of God, war, riot,
or government, administrative or judicial order or regulation ("each
an event of "force majeure"), shall not result in a default of this
agreement. Each party shall exercise its reasonable efforts to cure
any such delays and the cause thereof, and performance under the terms
of this agreement shall be excused for the period of time necessary
to recover from such force majeure event. Force majeure also covers
work delays caused by waiting for utility providers to service or
monitor their own utility poles on which franchisee's cable and/or
equipment is attached.
A.
Major breach of franchise. When any event, act or omission on the
part of franchisee occurs which represents a substantial or repeated
violation of a material provision of this agreement, then such event,
act or omission may be considered a major breach of this agreement.
Under such circumstances, the Issuing Authority shall notify franchisee,
in writing by certified mail, of the specific breach, and direct franchisee
to comply with all provisions of this agreement for which the franchisee
is in violation.
B.
Events of defaults. The events, acts and omissions referred to in this section are the following: 1) bankruptcy; 2) insolvency; or 3) a major breach of this franchise (as noted in Subsection A above) that remains uncured for the sixty-day cure period described in Subsection C below. They do not include events in the nature of force majeure.
C.
Opportunity to cure. Issuing Authority shall provide franchisee with
written notice of the violation alleged to have occurred and the franchisee
shall have 60 days in which to: 1) cure such violation; 2) in the
case of any alleged violation which cannot reasonably be cured within
such sixty-day period, commence and diligently pursue a cure; or 3)
notify the Issuing Authority, in writing, that it disputes the Issuing
Authority's claim of an alleged violation. In the event that
franchisee disputes the Issuing Authority's claim, the Issuing
Authority shall, upon reasonable prior written notice, set a hearing
before the Council at which the Issuing Authority, franchisee and
any interested party may present evidence relating to the alleged
violation. Following the hearing, the Issuing Authority shall make
a determination as to whether a violation has occurred. In the event
that the Authority reasonably determines that a violation has occurred,
the Issuing Authority shall notify franchisee, in writing, of its
finding, and shall provide franchisee 30 days in which to cure such
violation, or in the case of a violation which cannot reasonably be
cured with such thirty-day period, such reasonable amount of time
to allow franchisee commence and diligently pursue a cure.
D.
Public hearing.
(1)
Scheduling and procedures. No sooner than 45 days after such
written notice is sent by certified mail to franchisee, the Issuing
Authority may set a date for a public hearing on the matter. The hearing
shall afford full due process to franchisee and shall be held on the
record. Both franchisee and the Issuing Authority shall be permitted
to compel the attendance of witnesses and the production or documents,
to present evidence and to cross-examine witnesses. The public hearing
may be cancelled at any time, if the Issuing Authority is satisfied
that franchisee has corrected and/or cured the violation.
(2)
Notice. The Issuing Authority shall provide written notice,
by certified mail, to franchisee of the time and place of said hearing
in a manner consistent with state law.
(3)
Evidence regarding status of alleged violation. At the time
of the hearing, franchisee may present information on the current
status of the alleged breach of the franchise. If the situation has
been resolved, or steps are being taken to resolve the situation,
then franchisee should present such information at the hearing.
(4)
Alternatives if violation is found. The Issuing Authority may
(once it has held the public hearing) direct the franchisee to take
corrective action within a specified period of time, or may declare
the franchisee in default of this agreement, and afterwards, revoke,
terminate or cancel the franchise.
(5)
Notice to franchisee. If the Issuing Authority directs corrective
action to take place within a specified time or declares franchisee
in default of this agreement, then that declaration shall be reduced
to writing, and the notice of corrective action or default shall be
mailed, by certified mail, or in the alternative may be hand-delivered,
to franchisee within 15 days of the Issuing Authority's action.
As to continuity of service, subject to franchisee's federal
and state constitutional and statutory rights which the parties are
deemed not to have waived under this agreement, the parties agree
as follows:
A.
Service after revocation, termination, nonrenewal, abandonment or
withdrawal. Subject to applicable federal and state law, franchisee
shall provide service for an interim period of up to six months beyond:
(1)
Any then-existing term of this franchise agreement or any renewal
of the term;
(2)
Forty-five days' notice from franchisee to the Issuing
Authority of franchisee's proposed abandonment, withdrawal or
cessation of service; and
(3)
The effective date of any revocation, termination or nonrenewal/expiration
(absent renewal) of this agreement.
B.
Issuing Authority assistance. During such interim period, the Issuing
Authority will assist and otherwise use its best efforts to assist
franchisee in providing a satisfactory basis for franchisee to continue
providing service under this agreement.
C.
Revenues. During any such interim period in which franchisee continues
to provide service, franchisee is entitled to all revenues collected,
less any franchise fees or other moneys owed to the Issuing Authority;
provided, however, that franchisee is not required during any such
interim period to provide service if the revenues collected are less
than the operating costs incurred.
If any provision of this agreement or any related agreement
is held by any court or by any federal, state or county agency of
competent jurisdiction to be invalid as conflicting with any federal,
state or county law, rule or regulation now or later on in effect,
or is held by such court or agency to be modified in any way in order
to conform to the requirements of any such law, rule or regulation,
that provision shall be considered as a separate, distinct and independent
part of this agreement or such other agreement, and such holding shall
not affect the validity and enforceability of all other provisions
of this agreement or such other agreement. In the event that such
law, rule or regulation is subsequently repealed, rescinded, amended
or otherwise changed so that the affected provision of this agreement
(or such other agreement) which had been held invalid or modified
is no longer in conflict with the law, rules and regulations then
in effect, that provision shall immediately return to full force and
effect and shall afterwards be binding on the parties to this agreement,
provided that the Issuing Authority shall give franchisee 60 days'
written notice of such change before requiring compliance with that
provision.
A.
Notwithstanding any other provisions of this agreement to the contrary,
the franchisee shall at all times comply with all applicable laws
and regulations of the federal, state, county and city governments
and all administrative agencies thereof, including but not limited
to judicial orders; provided, however, that if any such federal, state,
city, or county law or other applicable regulation shall require the
franchisee to perform any service, or shall permit the franchisee
to perform any service, or shall prohibit the franchisee from performing
any service, in conflict with the terms of this agreement or of any
law or regulation of the Issuing Authority, then as soon as possible
following knowledge thereof the franchisee shall notify the Issuing
Authority of the point of conflict believed to exist between such
regulation or law and the laws or regulations of the Issuing Authority
of this agreement, and the franchisee shall be excused from performance
hereunder, provided that it acts in good faith reliance thereon, pending
resolution of such conflict; provided, further, that, from the date
of this agreement through and until the expiration of the term of
the franchise granted under this agreement, no change made by the
Issuing Authority in its ordinances or regulations shall amend the
franchise or this agreement without the franchisee's written
consent. In the event of a conflict between this agreement and any
local law, rule or regulation (including, without limitation, any
ordinance authorizing the grant of a cable television franchise),
the terms of this agreement shall prevail.
B.
If the Issuing Authority determines that a material provision of
this agreement or any related agreement is effected by such action
of a court or of the federal, state or county government, the Issuing
Authority and franchisee shall have the right to modify any of the
provisions hereof or in such related agreements to such reasonable
extent as may be necessary to carry out the full intent and purpose
of this agreement and all related agreements.
A.
Entire agreement; amendment. This agreement, the documents that are
referred to in this agreement and the documents that are to be delivered
pursuant to this agreement constitute the entire agreement among the
parties pertaining to the subject matter of this agreement, and supersede
all prior and contemporaneous agreements, understandings, negotiations
and discussions of the parties, whether oral or written, and there
are not representations or other agreements among the parties in connection
with the subject matter of this agreement, except as specifically
set forth in this agreement. No amendment, supplement, modification,
waiver or termination of this agreement shall be binding unless executed
in writing by the party to be bound by such amendment, supplement,
modification, waiver or termination. No waiver of any of the provisions
of this agreement shall be deemed or shall constitute a waiver of
any other provision of this agreement, whether or not similar, nor
shall such waiver constitute a continuing waiver unless otherwise
expressly provided in writing by the waiving party.
B.
Notice.
(1)
To Issuing Authority. All notices required or permitted to be
given to the Issuing Authority under any provisions of this agreement
shall be in writing and shall be deemed served:
(2)
To franchisee. All notices required to be given to franchisee
under any provision of this agreement shall be in writing and shall
be deemed served when delivered by one of the methods described above.
(3)
Addresses.
(a)
Notice shall be given to the following addresses:
|
If to Issuing Authority:
|
Town of Middletown
19 West Green Street
Middletown, DE 19709
|
|
If to franchisee:
|
Atlantic Broadband
Two Batterymarch Park, Suite 205
Quincy, MA 02169
Attn: General Counsel
|
|
With copy to:
|
Atlantic Broadband
330 Drummer Drive
Grasonville, MD 21638
Attn: VP and General Manager
|
(b)
Either party may change its address for notice purposes at any
time by giving notice of such address change on accordance with the
foregoing.
C.
Successors. Subject to § A191-10B of this article, this agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and assigns.
D.
Interpretation. Unless the context requires otherwise, all words
used in this agreement in the singular number shall extend to and
include the plural, all words in the plural number shall extend to
and include the singular, and all words in any gender shall extend
to and include all genders.
[Adopted 10-4-2021 by Ord. No. 21-09-05]
Except as otherwise provided herein, the definitions and word
usages set forth in the Communications Act are incorporated herein
and shall apply in this agreement. In addition, the following definitions
shall apply:
Any such portion of the service area added pursuant to § A191-21A(3) of this article.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with, franchisee.
Any service tier that includes the retransmission of local
television broadcast signals required by this franchise.
Defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. § 522(6).
Defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. § 522(7), meaning franchisee's
facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed
to provide cable service which includes video programming and which
is provided to multiple subscribers within the service area. The cable
system shall be limited to the optical spectrum wavelength(s), bandwidth,
or future technological capacity that is used for the transmission
of cable services directly to subscribers within the franchise/service
area and shall not include the tangible network facilities of a common
carrier subject in whole or in part to Title II of the Communications
Act or of an information services provider.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(4).
The Communications Act of 1934, as amended.[1]
The ability to exercise de facto or de jure control over
day-to-day policies and operations or the management of franchisee's
affairs.
The United States Federal Communications Commission, or successor
governmental entity thereto.
An event or events reasonably beyond the ability of franchisee
to anticipate and control. This includes, but is not limited to, severe
or unusual weather conditions, strikes, labor disturbances, lockouts,
war or act of war (whether an actual declaration of war is made or
not), insurrection, riots, act of public enemy, actions or inactions
of any government instrumentality or public utility including condemnation,
accidents for which franchisee is not primarily responsible, fire,
flood, pandemics, epidemics, and other public health emergencies,
or other acts of God, or work delays caused by waiting for utility
providers to service or monitor utility poles to which franchisee's
FTTP network is attached, and unavailability of materials and/or qualified
labor to perform the work necessary.
The incorporated area (entire existing territorial limits)
of LFA and such additional areas as may be included in the corporate
(territorial) limits of LFA during the term of this franchise.
Verizon Delaware LLC, and its lawful and permitted successors,
assigns, and transferees.
All revenue, as determined in accordance with generally accepted
accounting principles, which is derived by the franchisee or its affiliates,
from the operation of the cable system to provide cable service in
the Town, including, but not limited to:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged to subscribers for premium cable services;
Fees for video-on-demand and pay-per-view;
Fees charged to subscribers for any optional, per-channel or
per-program cable services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video programming;
Fees for changing any level of cable service programming;
Fees for service calls;
Early termination fees (solely to the extent such early termination
fee can be proportionately attributable to cable service);
Fees for leasing of channels;
Rental of any and all subscriber equipment, including digital
video recorders, converters and remote control devices;
Advertising revenues (on a pro rata basis) as set forth herein;
Revenue from the sale or rental of subscriber lists;
Revenues or commissions received from the carriage of home shopping channels (on a pro rata basis as set forth herein) subject to Subsection C(5) below;
Fees for music services that are cable services over the cable
system;
Fees for DVR;
Regional sports programming fees;
Late payment fees;
NSF check charges;
Foregone revenue that the franchisee chooses not to receive in exchange for trades, barters, services, or other items of value consistent with Subsection C(8) below.
For the avoidance of doubt, advertising revenues shall include the amount of the franchisee's gross advertising revenue calculated in accordance with generally accepted accounting principles (i.e., without deducting commissions paid to independent third parties). Advertising and home shopping revenue, as described in Subsection A(13) and (15) above, is based upon the ratio of the number of subscribers as of the last day of the period for which gross revenue is being calculated to the number of the franchisee's subscribers within all areas covered by the particular revenue source as of the last day of such period. By way of illustrative example, the franchisee sells two ads: Ad "A" is broadcast nationwide; Ad "B" is broadcast only within Pennsylvania. The franchisee has 100 subscribers in the Town, 500 subscribers in Delaware, and 1,000 subscribers nationwide. Gross revenue as to the Town from Ad "A" is 10% of the franchisee's revenue therefrom. Gross revenue as to the Town from Ad "B" is 20% of the franchisee's revenue.
Revenues received by any affiliate or other person in exchange
for supplying goods or services used by franchisee to provide cable
service over the cable system;
Bad debts written off by franchisee in the normal course of
its business; provided, however, that bad debt recoveries shall be
included in gross revenue during the period collected;
Refunds, rebates, or discounts made to subscribers or other
third parties;
Any revenues classified, in whole or in part, as noncable services
revenue under federal or state law including, without limitation,
revenue received from telecommunications services; revenue received
from information services, including, without limitation, internet
access service, electronic mail service, electronic bulletin board
service, or similar online computer services; charges made to the
public for commercial or cable television that is used for two-way
communication; and any other revenues attributed by franchisee to
noncable services in accordance with FCC or state public utility regulatory
commission rules, regulations, standards, or orders;
Any revenue of franchisee or any other person that is received
directly from the sale of merchandise through any cable service distributed
over the cable system, notwithstanding that portion of such revenue
which represents or can be attributed to a subscriber fee or a payment
for the use of the cable system for the sale of such merchandise,
which portion shall be included in gross revenue;
The sale of cable services on the cable system for resale in
which the purchaser is required to collect cable franchise fees from
purchaser's customer;
The sale of cable services to customers, which are exempt, as
required or allowed by LFA including, without limitation, the provision
of cable services to public institutions as required or permitted
herein;
Any tax of general applicability imposed upon franchisee or
upon subscribers by a Town, state, federal, or any other governmental
entity and required to be collected by franchisee and remitted to
the taxing entity (including, but not limited to, sales/use tax, gross
receipts tax, excise tax, utility users tax, public service tax, communication
taxes, and non-cable franchise fees);
Any forgone revenue that franchisee chooses not to receive in
exchange for its provision of free or reduced cost cable or other
communications services to any person, including without limitation,
employees of franchisee and public institutions or other institutions
designated in the franchise; provided, however, that such forgone
revenue that franchisee chooses not to receive in exchange for trades,
barters, services, or other items of value shall be included in gross
revenue;
Sales of capital assets or sales of surplus equipment;
Program launch fees;
Directory or internet advertising revenue including, but not
limited to, yellow page, white page, banner advertisement, and electronic
publishing; and
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(20).
Dial-up or broadband access service that enables subscribers
to access the internet.
The Town of Middletown, Delaware, or the lawful successor,
transferee, or assignee thereof.
Any service that does not constitute the provision of video
programming directly to multiple subscribers in the franchise area
including, but not limited to, information services and telecommunications
services.
Those service conditions that are within the control of franchisee.
Those conditions that are not within the control of franchisee include,
but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather
conditions. Those conditions that are within the control of franchisee
include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and
maintenance or rebuild of the cable system. See 47 C.F.R. § 76.309(c)(4)(ii).
An individual, partnership, association, joint-stock company,
trust, corporation, or governmental entity.
The surface and the area across, in, over, along, upon, and
below the surface of the public streets, roads, bridges, sidewalks,
lanes, courts, ways, alleys, and boulevards, including public utility
easements and public lands and waterways used as public rights-of-way,
as the same now or may thereafter exist, which are under the jurisdiction
or control of LFA. Public rights-of-way do not include the airwaves
above a right-of-way with regard to cellular or other nonwire communications
or broadcast services.
All portions of the franchise area where cable service is
being offered, including any additional service areas.
The portion of the franchise area as outlined in Exhibit
B.[3]
The loss of picture or sound on one or more cable channels.
A person who lawfully receives cable service of the cable
system with franchisee's express permission.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(46).
Franchisee's existing telecommunications services and
information services facilities and its FTTP network facilities.
Title II of the Communications Act.
Title VI of the Communications Act.
Any transaction in which:
An ownership or other interest in franchisee is transferred,
directly or indirectly, from one person or group of persons to another
person or group of persons, so that control of franchisee is transferred;
or
The rights held by franchisee under the franchise are transferred
or assigned to another person or group of persons.
However, notwithstanding Subsection A, a "transfer of the franchise" shall not include transfer of an ownership or other interest in franchisee to the parent of franchisee or to another affiliate of franchisee; transfer of an interest in the franchise or the rights held by franchisee under the franchise to the parent of franchisee or to another affiliate of franchisee; any action that is the result of a merger of the parent of franchisee; or any action that is the result of a merger of another affiliate of franchisee.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(20).
Any entity using wired facilities occupying a substantial
portion of the public rights-of-way as the primary means of delivery
to provide video programming services to multiple subscribers within
the territorial boundaries of the Township, for purchase, barter,
or free of charge, regardless of the transmission method, facilities
or technologies used. A VSP shall include, but is not limited to,
any entity that provides cable services, video programming services
or internet-protocol based services within the territorial boundaries
of the Township.
A.
Grant of authority. Subject to the terms and conditions of this agreement
and the Communications Act, LFA hereby grants franchisee the right
to own, construct, operate, and maintain a cable system along the
public rights-of-way within the franchise area, in order to provide
cable service. No privilege or power of eminent domain is bestowed
by this grant; nor is such a privilege or power bestowed by this agreement.
B.
LFA does not regulate telecommunications. LFA's regulatory authority
under Title VI of the Communications Act is not applicable to the
construction, installation, maintenance, or operation of franchisee's
FTTP network to the extent the FTTP network is constructed, installed,
maintained, or operated for the purpose of upgrading and/or extending
Verizon's existing telecommunications facilities for the provision
of non-cable services.
C.
Term. This franchise shall become effective on __________, 2021 (the "effective date"). The term of this franchise shall be five years from the effective date until __________ unless the franchise is earlier terminated by franchisee pursuant to the terms of Subsections D and E of this section or revoked by the Township pursuant to § A191-30D of this article.
D.
Termination generally. Notwithstanding any provision herein to the
contrary, franchisee may terminate this franchise and all obligations
hereunder at any time during the term of this franchise for any reason,
in franchisee's sole discretion, upon six months' written
notice to the LFA.
E.
Modification/termination based on VSP requirements. If there is a
change in federal, state, or local law that reduces any material financial
and/or operational obligation that the LFA has required from or imposed
upon a VSP, or if the LFA enters into any franchise, agreement, license,
or grant of authorization to a VSP to provide video programming services
to residential subscribers in the LFA with terms or conditions materially
less burdensome than those imposed by this franchise, franchisee and
the LFA shall, within 60 days of the LFA's receipt of franchisee's
written notice, commence negotiations to modify this franchise to
create reasonable competitive equity between franchisee and such other
VSPs. Any modification of the franchise pursuant to the terms of this
section shall not trigger the requirements of Subpart 892-1 of the
NY PSC rules and regulations.
(1)
Franchisee's notice pursuant to Subsection E shall specify the change in law and the resulting change in obligations. Franchisee shall respond to reasonable information requests from the LFA, as may be necessary to review the change in obligations resulting from the cited law.
(2)
In the event the parties do not reach mutually acceptable agreement
on a modification requested by franchisee, franchisee shall, at any
time and in its sole discretion, have the option of exercising any
of the following actions:
(a)
Commencing franchise renewal proceedings in accordance with
Section 626 of the Communications Act, 47 U.S.C. § 546,
with the franchise term being accelerated, thus being deemed to expire
36 months from the date of franchisee's written notice to seek
relief hereunder;
(b)
Terminating the franchise within two years from notice to the
LFA;
(c)
If agreed by both parties, submitting the matter to binding
commercial arbitration by a mutually selected arbitrator in accordance
with the rules of the American Arbitration Association; or
(d)
Submitting the matter to mediation by a mutually acceptable
mediator.
F.
Grant not exclusive. The franchise and the rights granted herein
to use and occupy the public rights-of-way to provide cable services
shall not be exclusive, and LFA reserves the right to grant other
franchises for similar uses or for other uses of the public rights-of-way,
or any portions thereof, to any person, or to make any such use themselves,
at any time during the term of this franchise. Any such rights that
are granted shall not adversely impact the authority as granted under
this franchise and shall not interfere with existing facilities of
the cable system or franchisee's FTTP network.
G.
Franchise subject to federal law. Notwithstanding any provision to
the contrary herein, this franchise is subject to and shall be governed
by all applicable provisions of federal law as it may be amended,
including but not limited to the Communications Act.
H.
No waiver.
(1)
The failure of LFA on one or more occasions to exercise a right
or to require compliance or performance under this franchise or any
other applicable law shall not be deemed to constitute a waiver of
such right or a waiver of compliance or performance by LFA, nor to
excuse franchisee from complying or performing, unless such right
or such compliance or performance has been specifically waived in
writing.
(2)
The failure of franchisee on one or more occasions to exercise
a right under this franchise or applicable law, or to require performance
under this franchise, shall not be deemed to constitute a waiver of
such right or of performance of this agreement, nor shall it excuse
LFA from performance, unless such right or performance has been specifically
waived in writing.
I.
Construction of agreement.
(1)
The provisions of this franchise shall be liberally construed
to effectuate their objectives.
(2)
Nothing herein shall be construed to limit the scope or applicability
of Section 625 Communications Act, 47 U.S.C. § 545.
(3)
Should any change to state law have the lawful effect of materially
altering the terms and conditions of this franchise, then the parties
shall modify this franchise to the mutual satisfaction of both parties
to ameliorate the negative effects on franchisee of the material alteration.
Any modification to this franchise shall be in writing. If the parties
cannot reach agreement on the above-referenced modification to the
franchise, then franchisee may terminate this agreement without further
obligation to LFA or, at franchisee's option, the parties agree
to submit the matter to binding arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association.
J.
Police powers. Nothing in this franchise shall be construed to prohibit
the reasonable, necessary, and lawful exercise of the police powers
of LFA. However, if the reasonable, necessary, and lawful exercise
of the police power results in any material alteration of the terms
and conditions of this franchise, then the parties shall modify this
franchise to the mutual satisfaction of both parties to ameliorate
the negative effects on franchisee of the material alteration. If
the parties cannot reach agreement on the above-referenced modification
to the franchise, then franchisee may terminate this agreement without
further obligation to LFA or, at franchisee's option, the parties
agree to submit the matter to binding arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association.
K.
Compliance with federal and state privacy laws. Franchisee shall
comply with the privacy provisions of Section 631 of the Communications
Act, 47 U.S.C. § 551, and all other applicable federal and
state privacy laws and regulations. The parties agree that, during
the term hereof, franchisee shall not be subject to any local laws
or ordinances which, directly or indirectly, conflict with or exceed
the scope of such applicable federal and/or state privacy laws.
A.
Service area.
(1)
Service area.
(2)
Subject to the issuance of all necessary permits by the LFA, the franchisee shall offer cable service to all residential households in the service area and may make cable service available to businesses in the service area, except: A) for periods of force majeure; B) for periods of unreasonable delay caused by LFA; C) for periods of delay resulting from franchisee's inability to obtain authority to access rights-of-way in the service area; D) in areas where developments, buildings or other residential dwelling units are subject to claimed exclusive arrangements with other providers; E) in areas, developments, buildings or other residential dwelling units where the franchisee cannot gain access under reasonable terms and conditions after good faith negotiation, as reasonably determined by franchisee; F) in areas, developments, buildings or other residential dwelling units where the franchisee is unable to provide cable service for technical reasons or which require nonstandard facilities which are not available on a commercially reasonable basis, including, but not limited to, circumstances where franchisee cannot access the areas, developments, buildings or other residential dwelling units by using franchisee's existing network pathways and which would thus require the construction of new trunk, feeder, or distribution lines; G) in areas where the occupied residential household density does not meet the density requirements set forth in Subsection A(2)(a); and H) in areas, developments, buildings or other residential dwelling units that are not habitable or have not been constructed as of the effective date.
(a)
Density requirement. Franchisee shall make cable services available
to residential dwelling units in all areas of the service area where
the average density is equal to or greater than 35 occupied residential
dwelling units per mile as measured in strand footage from the nearest
technically feasible point on the active FTTP network trunk or feeder
line.
(3)
Additional service areas. Except for the service area, franchisee
shall not be required to extend its cable system or to provide cable
services to any other areas within the franchise area during the term
of this franchise or any renewals thereof. If franchisee desires to
add additional service areas within the franchise area, franchisee
shall notify LFA in writing of such additional service area at least
10 days prior to providing cable services in such areas.
B.
Availability of cable service. Franchisee shall make cable service available to all residential dwelling units and may make cable service available to businesses within the service area in conformance with Subsection A and franchisee shall not discriminate between or among any individuals in the availability of cable service. In the areas in which franchisee shall provide cable service, franchisee shall be required to connect, at franchisee's expense, all residential dwelling units that are within 125 feet of trunk or feeder lines not otherwise already served by franchisee's FTTP network. Franchisee shall be allowed to recover, from a subscriber that requests such connection, the actual costs incurred for residential dwelling unit connections that exceed 125 feet and actual costs incurred to connect any nonresidential dwelling unit subscriber.
C.
Cable service to public buildings. Subject to Subsection A, franchisee shall provide, without charge within the service area, one service outlet activated for basic service to each fire station, public school, police station, and public library as may be designated by LFA in Exhibit A[1]; provided, however, that if it is necessary to extend
franchisee's trunk or feeder lines more than 125 feet solely
to provide service to any such school or public building, LFA shall
have the option either of paying franchisee's direct costs for
such extension in excess of 125 feet, or of releasing franchisee from
the obligation to provide service to such school or other public building.
Furthermore, franchisee shall be permitted to recover, from any school
or other public building owner entitled to free service, the direct
cost of installing, when requested to do so, more than one outlet,
or concealed inside wiring, or a service outlet requiring more than
125 feet of drop cable; provided, however, that franchisee shall not
charge for the provision of basic service to the additional service
outlets once installed.
[1]
Editor's Note: Said exhibit is included as an attachment
to this article.
The parties recognize that franchisee's FTTP network has
been constructed and will continue to be operated and maintained as
an upgrade to and/or extension of its existing telecommunications
facilities. The jurisdiction of LFA over such telecommunications facilities
is restricted by federal and state law, and LFA does not and will
not assert jurisdiction over franchisee's FTTP network in contravention
of those limitations.
A.
Technical requirements. Franchisee shall operate, maintain, construct,
and extend the cable system so as to provide high quality signals
and reliable delivery of cable services for all cable programming
services throughout the LFA. The cable system shall meet or exceed
any and all applicable technical performance standards of the FCC,
the National Electrical Safety Code, the National Electric Code and
any other applicable federal laws and the laws of the State of Delaware,
to the extent not in conflict with federal law and regulations.
B.
System characteristics. Franchisee's cable system shall meet
or exceed the following requirements:
(1)
The system shall be operated with an initial digital carrier
passband between 57 and 861 MHz.
(2)
The system shall be designed with an initial analog passband
of 860 MHz.
(3)
The system shall be designed to be an operated initially as
an active two-way plant for subscriber interaction, if any, required
for the selection or use of cable services that allocates sufficient
portion of said bandwidth to deliver reliable two-way cable services.
C.
Interconnection. The franchisee shall operate its cable system so
that it may be interconnected with other cable systems in the service
area. Interconnection of systems may be made by direct cable connection,
microwave link, satellite, or other appropriate methods.
D.
Emergency alert system. Franchisee shall comply with the emergency
alert system ("EAS") requirements of the FCC and applicable state
and local EAS plans in order that emergency messages may be distributed
over the cable system.
Customer service requirements are set forth in Exhibit B,[1] which shall be binding unless amended by written consent
of the parties.
[1]
Editor's Note: Said exhibit is included as an attachment to
this article.
A.
Open books and records. Upon reasonable written notice to franchisee
and with no less than 30 business days' written notice to franchisee,
LFA shall have the right to inspect franchisee's books and records
pertaining to franchisee's provision of cable service in the
franchise area at any time during normal business hours and on a nondisruptive
basis, as are reasonably necessary to ensure compliance with the terms
of this franchise. Such notice shall specifically reference the section
or subsection of the franchise that is under review, so that franchisee
may organize the necessary books and records for appropriate access
by LFA. Franchisee shall not be required to maintain any books and
records for franchise compliance purposes longer than 24 months. Notwithstanding
anything to the contrary set forth herein, franchisee shall not be
required to disclose information that it reasonably deems to be proprietary
or confidential in nature, nor disclose any of its or an affiliate's
books and records not relating to the provision of cable service in
the service area. LFA shall treat any information disclosed by franchisee
as confidential and shall only disclose it to employees, representatives,
and agents thereof that have a need to know, or in order to enforce
the provisions hereof. Franchisee shall not be required to provide
subscriber information in violation of Section 631 of the Communications
Act, 47 U.S.C. § 551.
B.
Records required. Franchisee shall at all times maintain:
(1)
Records of all written complaints for a period of 24 months
after receipt by franchisee. The term "complaint" as used herein refers
to complaints about any aspect of the cable system or franchisee's
cable operations, including, without limitation, complaints about
employee courtesy. Complaints recorded will not be limited to complaints
requiring an employee service call;
(2)
Records of significant outages for a period of 24 months after
occurrence, indicating date, duration, area, and the number of subscribers
affected, type of outage, and cause;
(3)
Records of service calls for repair and maintenance for a period
of 24 months after resolution by franchisee, indicating the date and
time service was required, the date of acknowledgment and date and
time service was scheduled (if it was scheduled), and the date and
time service was provided, and (if different) the date and time the
problem was resolved;
(4)
Records of installation/reconnection and requests for service
extension for a period of 24 months after the request was fulfilled
by franchisee, indicating the date of request, date of acknowledgment,
and the date and time service was extended.
A.
Insurance.
(1)
Franchisee shall maintain in full force and effect, at its own
cost and expense, during the franchise term, the following insurance
coverage:
(a)
Commercial general liability insurance in the amount of $3,000,000
per occurrence for property damage and bodily injury. Such insurance
shall cover the construction, operation, and maintenance of the cable
system, and the conduct of franchisee's cable service business
in LFA.
(b)
Automobile liability insurance in the amount of $1,000,000 combined
single limit each accident for bodily injury and property damage coverage.
(c)
Workers' compensation insurance meeting all legal requirements
of the Commonwealth of Pennsylvania and employers' liability
insurance in the following amounts: A) bodily injury by accident:
$100,000; and B) bodily injury by disease: $100,000 employee limit;
$500,000 disease policy limit.
(2)
LFA shall be included as an additional insured as its interest
may appear under this franchise on commercial general liability and
automobile liability insurance policies.
(3)
Upon receipt of notice from its insurer(s), franchisee shall
provide LFA with 30 days' prior written notice of cancellation
of any required coverage.
(4)
Each of the required insurance policies shall be with insurers
qualified to do business in the State of Delaware, with an A-VII or
better rating for financial condition and financial performance by
Best's Key Rating Guide, Property/Casualty Edition.
(5)
Upon written request, franchisee shall deliver to LFA certificates
of insurance showing evidence of the required coverage.
B.
Indemnification.
(1)
Franchisee agrees to indemnify, save and hold harmless, and
defend LFA, its officers, agents, boards, and employees, from and
against any liability for damages or claims resulting from tangible
property damage or bodily injury (including accidental death), to
the extent proximately caused by franchisee's negligent construction,
operation, or maintenance of its cable system, provided that LFA shall
give franchisee written notice of LFA's request for indemnification
within 10 days of receipt of a claim or action pursuant to this subsection.
Notwithstanding the foregoing, franchisee shall not indemnify LFA
for any damages, liability, or claims resulting from the willful misconduct
or negligence of LFA, its officers, agents, employees, attorneys,
consultants, independent contractors, or third parties or for any
activity or function conducted by any person other than franchisee
in connection with EAS or the distribution of any cable service over
the cable system.
(2)
With respect to franchisee's indemnity obligations set forth in Subsection B(1), franchisee shall provide the defense of any claims brought against LFA by selecting counsel of franchisee's choice to defend the claim, subject to the consent of LFA, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent LFA from cooperating with franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense; provided, however, that after consultation with LFA, franchisee shall have the right to defend, settle, or compromise any claim or action arising hereunder, and franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such settlement do not include the release of LFA, and LFA does not consent to the terms of any such settlement or compromise, franchisee shall not settle the claim or action but its obligation to indemnify LFA shall in no event exceed the amount of such settlement.
(3)
LFA shall hold harmless and defend franchisee from and against,
and shall be responsible for damages, liability, or claims resulting
from or arising out of, the willful misconduct or negligence of LFA.
(4)
LFA shall be responsible for its own acts of willful misconduct
or negligence, or breach of obligation, subject to any and all defenses
and limitations of liability provided by law. Franchisee shall not
be required to indemnify LFA for acts of LFA that constitute willful
misconduct or negligence on the part of LFA, its officers, employees,
agents, attorneys, consultants, independent contractors, or third
parties.
Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no transfer of the franchise shall occur without the prior consent of LFA, provided that such consent shall not be unreasonably withheld, delayed, or conditioned. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of franchisee in the franchise or cable system in order to secure indebtedness, or for transactions otherwise excluded under the definition of "transfer of franchise" in § A191-19, above.
A.
Governing law. LFA and franchisee agree that any proceedings undertaken
by LFA that relate to the renewal of this franchise shall be governed
by and comply with the provisions of Section 626 of the Communications
Act, 47 U.S.C. § 546.
B.
Needs assessments. In addition to the procedures set forth in said
Section 626 of the Communications Act, LFA shall notify franchisee
of all of its assessments regarding the identity of future cable-related
community needs and interests, as well as the past performance of
franchisee under the then current franchise term. Such assessments
shall be provided to franchisee by LFA promptly so that franchisee
has adequate time to submit a proposal under Section 626 and complete
renewal of the franchise prior to expiration of its term.
C.
Informal negotiations. Notwithstanding anything to the contrary set
forth herein, franchisee and LFA agree that at any time during the
term of the then-current franchise, while affording the public appropriate
notice and opportunity to comment, LFA and franchisee may agree to
undertake and finalize informal negotiations regarding renewal of
the then current franchise, and LFA may grant a renewal thereof.
A.
Notice of violation. If at any time LFA believes that franchisee has not complied with the terms of the franchise, LFA shall informally discuss the matter with franchisee. If these discussions do not lead to resolution of the problem in a reasonable time, LFA shall then notify franchisee, in writing, of the exact nature of the alleged noncompliance in a reasonable time (for purposes of this § A191-29, the "noncompliance notice").
B.
Franchisee's right to cure or respond. Franchisee shall have
30 days from receipt of the noncompliance notice to: i) respond to
LFA, if franchisee contests (in whole or in part) the assertion of
noncompliance; ii) cure such noncompliance; or iii) in the event that,
by its nature, such noncompliance cannot be cured within such thirty-day
period, initiate reasonable steps to remedy such noncompliance and
notify LFA of the steps being taken and the date by which they are
projected to be completed. Upon cure of any noncompliance, LFA shall
provide written confirmation that such cure has been effected.
C.
Public hearing. In the event that franchisee fails to respond to the noncompliance notice pursuant to the procedures required by this section, or in the event that the alleged noncompliance is not remedied within 30 days or the date projected pursuant to Subsection B, item iii) above, if LFA seeks to continue its investigation into the alleged noncompliance, then LFA shall schedule a public hearing. LFA shall provide franchisee at least 30 business days' prior written notice of such public hearing, which will specify the time, place, and purpose of such public hearing, and provide franchisee the opportunity to be heard.
D.
Enforcement. Subject to applicable federal and state law, in the event LFA, after the public hearing set forth in Subsection C, determines that franchisee is in default of any provision of this franchise, LFA may:
E.
Revocation. Should LFA seek to revoke this franchise after following the procedures set forth above in this section, including the public hearing described in Subsection C, LFA shall give written notice to franchisee of such intent. The notice shall set forth the specific nature of the noncompliance. Franchisee shall have 90 days from receipt of such notice to object in writing and to state its reasons for such objection. In the event LFA has not received a satisfactory response from franchisee, it may then seek termination of the franchise at a second public hearing. LFA shall cause to be served upon franchisee, at least 30 business days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the franchise.
(1)
At the designated public hearing, franchisee shall be provided
a fair opportunity for full participation, including the rights to
be represented by legal counsel, to introduce relevant evidence, to
require the production of evidence, to compel the relevant testimony
of the officials, agents, employees, or consultants of LFA, to compel
the testimony of other persons as permitted by law, and to question
and/or cross examine witnesses. A complete verbatim record and transcript
shall be made of such hearing.
(2)
Following the second public hearing, franchisee shall be provided
up to 30 days to submit its proposed findings and conclusions to LFA
in writing, and thereafter LFA shall determine i) whether an event
of default has occurred under this franchise; ii) whether such event
of default is excusable; and iii) whether such event of default has
been cured or will be cured by franchisee. LFA shall also determine
whether it will revoke the franchise based on the information presented
or, where applicable, grant additional time to franchisee to effect
any cure. If LFA determines that it will revoke the franchise, LFA
shall promptly provide franchisee with a written determination setting
forth LFA's reasoning for such revocation. Franchisee may appeal
such written determination of LFA to an appropriate court, which shall
have the power to review the decision of LFA de novo. Franchisee shall
be entitled to such relief as the court finds appropriate. Such appeal
must be taken within 60 days of franchisee's receipt of the written
determination of LFA.
(3)
LFA may, at its sole discretion, take any lawful action that
it deems appropriate to enforce LFA's rights under the franchise
in lieu of revocation of the franchise.
A.
Actions of parties. In any action by LFA or franchisee that is mandated
or permitted under the terms hereof, such party shall act in a reasonable,
expeditious, and timely manner. Furthermore, in any instance where
approval or consent is required under the terms hereof, such approval
or consent shall not be unreasonably withheld, delayed, or conditioned.
B.
Binding acceptance. This agreement shall bind and benefit the parties
hereto and their respective heirs, beneficiaries, administrators,
executors, receivers, trustees, successors, and assigns, and the promises
and obligations herein shall survive the expiration date hereof.
C.
Preemption. In the event that federal or state law, rules, or regulations
preempt a provision or limit the enforceability of a provision of
this agreement, the provision shall be read to be preempted to the
extent, and for the time, but only to the extent and for the time,
required by law. In the event such federal or state law, rule, or
regulation is subsequently repealed, rescinded, amended, or otherwise
changed so that the provision hereof that had been preempted is no
longer preempted, such provision shall thereupon return to full force
and effect, and shall thereafter be binding on the parties hereto,
without the requirement of further action on the part of LFA.
D.
Force majeure. Franchisee shall not be held in default under, or
in noncompliance with, the provisions of the franchise, nor suffer
any enforcement or penalty relating to noncompliance or default, where
such noncompliance or alleged defaults occurred or were caused by
a force majeure.
(1)
Furthermore, the parties hereby agree that it is not LFA's
intention to subject franchisee to penalties, fines, forfeitures,
or revocation of the franchise for violations of the franchise where
the violation was a good faith error that resulted in no or minimal
negative impact on subscribers, or where strict performance would
result in practical difficulties and hardship being placed upon franchisee
that outweigh the benefit to be derived by LFA and/or subscribers.
E.
Delivery of payments. Franchisee may use electronic funds transfer
to make any payments to the LFA required under this agreement.
F.
Notices. Unless otherwise expressly stated herein, notices required
under the franchise shall be mailed first-class, postage prepaid,
to the addressees below. Each party may change its designee by providing
written notice to the other party.
G.
Entire agreement. This franchise and the exhibits hereto constitute
the entire agreement between franchisee and LFA and supersedes all
prior or contemporaneous agreements, representations, or understanding
(written or oral) of the parties regarding the subject matter hereof.
Any ordinances or parts of ordinances that conflict with the provisions
of this agreement are superseded by this agreement.
H.
Amendments. Amendments to this franchise shall be mutually agreed
to in writing by the parties.
I.
Captions. The captions and headings of articles and sections throughout
this agreement are intended solely to facilitate reading and reference
to the sections and provisions of this agreement. Such captions shall
not affect the meaning or interpretation of this agreement.
J.
Severability. If any section, subsection, sentence, paragraph, term,
or provision hereof is determined to be illegal, invalid, or unconstitutional
by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction thereof, such determination
shall have no effect on the validity of any other section, subsection,
sentence, paragraph, term, or provision hereof, all of which will
remain in full force and effect for the term of the franchise.
K.
Recitals. The recitals set forth in this agreement are incorporated
into the body of this agreement as if they had been originally set
forth herein.
L.
Modification. This franchise shall not be modified except by written
instrument executed by both parties.
M.
FTTP network transfer prohibition. Under no circumstance including,
without limitation, upon expiration, revocation, termination, denial
of renewal of the franchise, or any other action to forbid or disallow
franchisee from providing cable services, shall franchisee or its
assignees be required to sell any right, title, interest, use, or
control of any portion of franchisee's FTTP network including,
without limitation, the cable system and any capacity used for cable
service or otherwise, to LFA or any third party. Franchisee shall
not be required to remove the FTTP network or to relocate the FTTP
network or any portion thereof as a result of revocation, expiration,
termination, denial of renewal, or any other action to forbid or disallow
franchisee from providing cable services. This provision is not intended
to contravene leased access requirements under Title VI set out in
this agreement.
N.
Certain exceptions. LFA and franchisee each acknowledge that they
have received independent legal advice in entering into this agreement.
In the event that a dispute arises over the meaning or application
of any term(s) of this agreement, such term(s) shall not be construed
by the reference to any doctrine calling for ambiguities to be construed
against the drafter of the agreement.
