TITLE VIII FRANCHISE ORDINANCES
COON CREEK TELECOMMUNICATIONS CORPORATION
GRANTING VIDEO FRANCHISE
Section 8-107-1 Terms
Section 8-107-2 Grant
Section 8-107-3 Term
Section 8-107-4 Acceptance: Effective Date
Section 8-107-5 Equal Protection
Section 8-107-6 Conditions of Street Occupancy
Section 8-107-7 Restoration of Public Ways
Section 8-107-8 Relocation at Request of Franchising Authority
Section 8-107-9 Relocation at Request of Third Party
Section 8-107-10 Trimming of Trees and Shrubbery
Section 8-107-11 Use of Grantee’s Equipment by Franchising Authority
Section 8-107-12 Safety Requirements
Section 8-107-13 Aerial and Underground Construction
Section 8-107-14 Required Extensions of Service
Section 8-107-15 Subscriber Charges for Extensions of Service
Section 8-107-16 Service to Public Buildings
Section 8-107-17 Customer Service Standards
Section 8-107-18 Review Sessions
Section 8-107-19 Franchise Fee
Section 8-107-20 Rates & Charges
Section 8-107-21 Renewal of Franchise
Section 8-107-22 Conditions of Sale
Section 8-107-23 Transfer of Franchise
Section 8-107-24 Testing for Compliance
Section 8-107-25 Books and Records
Section 8-107-26 Insurance Requirements
Section 8-107-27 Indemnification
Section 8-107-28 Bonds and Other Surety
Section 8-107-29 Notice of Violation
Section 8-107-30 Grantee’s Right to Cure or Respond
Section 8-107-31 Public Hearing
Section 8-107-32 Enforcement
Section 8-107-33 Acts of God
Section 8-107-34 Misdemeanor
Section 8-107-35 Documents Incorporated and Made a Part Hereof
Section 8-107-36 Preemption
Section 8-107-37 Action of Franchising Authority
Section 8-107-38 Notice
Section 8-107-39 Descriptive Headings
Section 8-107-40 Severability
SECTION 8-107-1 TERMS. For the purpose of this Ordinance, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:
(1) “Affiliate” means an entity which owns or controls, is owned or controlled by, or is under common ownership with Grantee.
(2) “Basic Video Service” is the tier of service regularly provided to all Subscribers that includes the retransmission of local broadcast television signals.
(3) “Basic Revenues” means the monthly Video Service revenues received by Grantee from Subscribers for Basic Video Service on an annual basis; provided, however, that such phrase shall not include: (i) revenues received from national advertising carried on the Video System; (ii) any taxes on the Video Service which are imposed directly or indirectly on any Subscriber thereof any governmental unity or agency, and which are collected by the Grantee on behalf of such governmental unity or agency.
(4) “Cable Act” means the Cable Communications Policy Act of 1984, as amended.
(5) “Video Service” means (i) the one-way transmission to Subscribers of video programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such Video Programming or any other lawful communication service.
(6) “Video System: means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other communications equipment that is designed to provide Video Service and other services to Subscribers. See also “Switched Digital Video System”.
(7) “FCC” means Federal Communications Commission, or successor governmental entity thereto.
(8) “Franchise” shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the Video System for the purpose of offering Video Service or other services to Subscribers.
(9) “Franchising Authority” means the City of Belle Plaine, Iowa, or the lawful successor, transferee, or assignee thereof.
(10) “Grantee” means Coon Creek Telecommunications, Corp., or the lawful successor, transferee, or assignee thereof.
(11) “Person” means an individual, partnership, association, joint stock company, trust corporation, or governmental entity.
(12) “Public Way” shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Service Area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Video System. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing or transmitting Grantee’s Video Service or other services over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Video System.
(13) “Service Area” means the present municipal boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means.
(14) “Service Tier” means a category of Video Service or other services provided by Grantee and for which a separate charge is made by Grantee.
(15) “Subscriber” means a person or user of the Video System who lawfully receives Video Service or other services there from with Grantee’s express permission.
(16) “Switched Digital Video System” or “Video System” shall mean any telecommunications infrastructure that receives and redistributes signals transmitting programs broadcast by one or more television stations or networks and distributes such signals utilizing Grantee’s existing telecommunications infrastructure to subscribing members of the public who pay for such services.
(17) “Video Programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
SECTION 8-107-2 GRANT. The Franchising Authority hereby grants to Grantee a non-exclusive Franchise which authorizes the Grantee to construct and operate a Switched Digital Video System and offer Video Service and other services in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Video System.
SECTION 8-107-3 TERM. The Franchise granted pursuant to this Ordinance shall be for an initial term of ten (10) years from the effective date of the Franchise as set forth in this Chapter, unless otherwise lawfully terminated in accordance with the terms of this Ordinance.
SECTION 8-107-4 ACCEPTANCE: EFFECTIVE DATE.. Grantee shall accept the Franchise granted pursuant hereto by signing this Ordinance and filing same with the City Clerk or other appropriate official or agency of the Franchising Authority within sixty (60) days after the passage and final adoption of this Ordinance. Subject to the acceptance by Grantee, the effective date of this Ordinance shall be the sixtieth day after its passage and final adoption.
SECTION 8-107-5 EQUAL PROTECTION. In the event the Franchising Authority enters into a Franchise, permit, license, authorization or other agreement of any kind with any other person or entity other than the Grantee to enter into the Franchising Authority’s streets and Public Ways for the purpose of constructing or operating a Cable System or Switched Digital Video System or providing Video Service to any part of the Service Area, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another and to provide all parties equal protection under the law.
SECTION 8-107-6 CONDITIONS OF STREET OCCUPANCY. All transmission and distribution structures, poles, other lines, and equipment installed or erected by the Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said Public Ways.
SECTION 8-107-7 RESTORATION OF PUBLIC WAYS. If during the course of Grantee’s construction, operation, or maintenance of the Video System there occurs a disturbance of any Public Way by Grantee, it shall, at its expense, replace and restore such Public Way to condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance.
SECTION 8-107-8 RELOCATION AT REQUEST OF FRANCHISING AUTHORITY. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of the Grantee when lawfully required by Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, the Grantee shall in all cases have the right of abandonment of its property. If public funds are available to any company using such street, easement, or right-of-way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to the Grantee.
SECTION 8-107-9 RELOCATION AT REQUEST OF THIRD PARTY. The Grantee shall, on the request of any person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary wire changes.
SECTION 8-107-10 TRIMMING OF TREES AND SHRUBBERY. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Video System in the Service Area so as to prevent braches from coming in contact with the Grantee’s wires, cables, or other equipment. The Grantee shall reasonably compensate the Franchising Authority or property owner for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the Video System undertaken by Grantee. Such replacement shall satisfy any and all obligations Grantee may have to the Franchising Authority or property owner pursuant to the terms of this section.
SECTION 8-107-11 USE OF GRANTEE’S EQUIPMENT BY FRANCHISING AUTHORITY. Subject to any applicable state or federal regulations or tariffs, the Franchising Authority shall have the right to make additional use, for any public purpose, of any poles or conduits controlled or maintained exclusively by or for the Grantee in any Public way; provided that (a) such use by the Franchising Authority does not interfere with a current or future use by the Grantee; (b) the Franchising Authority holds the Grantee harmless against and from all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits, including but not limited to, reasonable attorney’s fees and costs; and (c) at Grantee’s sole discretion, the Franchising Authority may be required either to pay a reasonable rental fee or otherwise reasonably compensate Grantee for the use of such poles, conduits, or equipment; provided, however, that Grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement, or other authorization, relating to the Service Area.
SECTION 8-107-12 SAFETY REQUIREMENTS.. Construction, installation, and maintenance of the Video System shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations. The Video System shall not unreasonably endanger or interfere with the safety of persons or property in the Service Area.
SECTION 8-107-13 AERIAL AND UNDERGROUND CONSTRUCTION. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving Grantee’s cable and other equipment without technical degradation of the Video System’s signal quality. In those areas of the Service Areas where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, Grantee shall, subject to the City’s approval, construct, operate, and maintain all of its transmission and distribution facilities or any part thereof, aerially or underground. Nothing contained in this section shall require Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this Ordinance, Grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground it if is given reasonable notice and access to the public utilities’ facilities at this time that such are placed underground.
SECTION 8-107-14 REQUIRED EXTENSIOINS OF SERVICE. The Video System as constructed as of the date of the passage and final adoption of this Ordinance substantially complies with the material provisions hereof. Grantee is hereby authorized to extend the Video System as necessary, as desirable, or as required pursuant to the terms hereof within the Service Area. Whenever Grantee shall receive a request for service from at least eight (8) Subscribers within 1,320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its Video System to such Subscribers at no cost to said Subscribers for system extension, other than the usual connection fees for all Subscribers; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition, or market development of the Video System, or as provided for under this Ordinance.
SECTION 8-107-15 SUBSCRIBER CHARGES FOR EXTENSIONS OF SERVICE. No Subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a Subscriber’s request to locate his cable drop underground, existence of more than one hundred fifty (150) feet of distance from distribution cable to connection of service to Subscribers, or a density of less than eight (8) Subscribers per 1,320 cable-bearing strand feet of trunk or distribution cable, Video Service or other services may be made available on basis of a capital contribution in aid of construction, including cost of materials, labor, and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by Grantee and Subscribers in the area in which Video Service may be expanded, Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential Subscribers per 1,320 cable-bearing strand feet of its trunk or distribution cable, and whose denominator equals eight (8) Subscribers.
SECTION 8-107-16 SERVICE TO PUBLIC BUILDINGS. The Grantee shall provide without charge, one (1) outlet of basic Service to the Franchising Authority’s office buildings(s), fire station(s), police station(s), and public school building(s) that are passed by its Video System. The outlets of Basic Video Service shall not be used to distribute or sell Video Services in or throughout such buildings; nor shall such outlets be located in common or public areas open to the public. Users of such outlets shall hold Grantee harmless from any and all liability or claims arising out of their use of such outlets, including but not limited to, those arising from copyright liability. In the event that additional outlets of Basic Video Service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials.
SECTION 8-107-17 CUSTOMER SERVICE STANDARDS.
(1) System office hours and telephone availability.
(a) The Grantee will maintain a local, toll-free or collect call telephone access line which will be available to Subscribers 24 hours a day, seven days a week.
(i) Trained representatives of the Grantee will be available to respond to Subscriber telephone inquires during Normal Business Hours, as defined herein.
(ii) After Normal Business Hours, an access line will be available to be answered by a service or an automated response system, including a phone answering system. Inquiries received after Normal Business Hours must be responded to by a trained representative of the Grantee on the next business day.
(b) Under Normal Operating Conditions, as defined herein, telephone answer time by a customer representative, including wait time, will not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time will not exceed 30 seconds. These standards will be met no less than 90 percent of the time under Normal Operating Conditions, as measured by the Grantee on a quarterly basis.
(c) The Grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards set forth above unless an historical record of complaints indicates a clear failure to comply with such standards
(d) Under Normal Operating Conditions, the Subscriber will receive a busy signal less than 3 percent of the time.
(e) Customer service center and bill payment locations such as a drop box will be open at least during Normal Business Hours and will be conveniently located.
(2) Installation, outages and service calls. Under Normal Operating Conditions (excluding the start – up phase), each of the following four standards will be met no less than 95 percent of the time, as measured by the Grantee on a quarterly basis:
(a) Standard installations will be performed within seven business days after an order has been placed. “Standard” installations are those that re located up to 125 feet from the existing distribution system.
(b) Excluding conditions beyond its control, the Grantee will begin working on Service Interruptions, as defined herein, promptly and in no event later than 24 hours after the interruption becomes known. The Grantee will begin actions to correct other service problems the next business day after notification of the service problem.
(c) The Grantee will provide “appointment window” alternatives for installations, service calls, and other installation activities, which will be either a specific time or at maximum, a four-hour time block during Normal Business Hours.
(d) The Grantee shall not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment.
(e) If a representative of the Grantee is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, the Subscriber will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the Subscriber.
(3) Communications between Grantee Subscribers.
(a) Notifications to Subscribers. The Grantee shall provide written information on each of the following areas at the time of installation of service, at lest annually to all Subscribers, and at any time upon request.
(i) products and services offered;
(ii) prices and options for services and conditions of subscription to programming and other services.
(iii) installation and service maintenance policies;
(iv) instructions on how to use the service;
(v) channel positions of programming carried on the System;
(vi) billing and complaint procedures, including the address and telephone number of the local Franchising Authority’s Video Service office as designated by the Franchising Authority.
(b) Subscribers will be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the System and in writing. Notice will be given to Subscribers a minimum of 30 days in advance of such changes if the change is within the control of the Grantee. In addition, the Grantee shall notify Subscribers 30 days in advance of any significant changes in the other information required by the preceding paragraph.
(ii) Bills will be clear, concise and understandable. Bills will be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bill will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.
(iii) In case of a billing dispute, the Grantee will respond to a written complaint from a Subscriber within 30 days from receipt of the complaint.
(c) Refund checks will be issued promptly, but no later than either (i) the Subscriber’s next billing cycle following resolution of the request or 30 days, which ever is earlier, or (ii) the return of the equipment supplied by the Grantee if service is terminated.
(d) Credits for service will be issued no later than the Subscriber’s next billing cycle following the determination that a credit is warranted.
(4) Definitions: For purposes of this Section, the following definitions shall apply:
(a) Normal Business Hours – The terms “Normal Operating Conditions” means those hours during which most similar businesses in the community are open to serve Subscribers. In all cases, “Normal Business Hours” are 8:30 a.m. through 4:30 p.m., Monday through Friday and Grantee’s answering service for service calls is available at all times. The Grantee will notify its Subscribers and the Franchising Authority of its Normal Business Hours.
(b) Normal Operating Conditions – The term “Normal Operating Conditions” means those service conditions which are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the System.
(c) Service Interruption – The term “service interruption” means the loss of picture or sound on one or more channels.
SECTION 8-107-18 REVIEW SESSIONS.
During the fifth year of the renewal term, the Franchising Authority may undertake a comparison of the Video System’s then current capabilities with the capabilities of Video Systems in communities with demographic and socioeconomic attributes similar to those of the City for the purpose of determining whether or not the existing Video System is technically and technologically adequate to serve the community considering the cost of providing for the video related needs and interest of the Subscribers, Grantee shall participate in the review by providing relevant information on current technology in the industry. The Franchising Authority may undertake such independent inquiry as it deems appropriate and Grantee shall cooperate fully in that process.
Taking into consideration the present capabilities of the Video System, the remaining life of the Franchise and the nature, extent and cost of additions to the Video System, the Franchising Authority and Grantee may then mutually agree to amend this Franchise, provided that the Grantee can reasonably recoup its investment by way of a reasonable rate of return if Grantee upgrades the Video System.
SECTION 8-107-19 FRANCHISE FEE.
(1) Grantee shall pay to the Franchising Authority a franchise fee equal to one percent (1%) of Basic Revenues (as defined in Section 1.1 of the Franchise Agreement) received by Grantee from the operation of the Video System on an annual basis. For the purpose of this section, the 12-month period applicable under the Franchise for the computation of the franchise fee shall be the calendar year, unless otherwise agreed to in writing by the Franchising Authority fee shall be the calendar year, unless otherwise agreed to in writing by the Franchising Authority and Grantee. The franchise fee payment shall be due and payable forty-five (45) days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report from a representative of Grantee showing the basis for the computation. In no event shall the franchise fee payments required to be paid by Grantee exceed five percent (5%) of Gross Revenues received by Grantee in any 12-month period.
(2) Limitation on Franchise Fee Actions. The period of limitation for recovery of any franchise fee payable hereunder shall be five (5) years from the date on which payment by the Grantee is due. Unless within five (5) years from and after said payment due date the Franchising Authority initiates a lawsuit for recovery of such franchise fee in a court of competent jurisdiction, such recovery shall be barred, and the Franchising Authority shall be stopped from asserting any claims whatsoever against the Grantee relating to any such alleged deficiencies.
SECTION 8-107-20 RATES AND CHARGES. The Franchising Authority may not regulate the rates for the provision of Video Service and other services, including, but not limited to, ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law including, but not limited to, the Cable Act and FCC Rules and Regulations relating thereto. From time to time, and at any time, Grantee has the right to modify its rates and charges including, but not limited to, the implementation of additional charges and rates; provided, however, that Grantee shall give notice to the Franchising Authority of any such modifications or additional charges thirty (30) days prior to the effective date thereof.
In the event that rates for Basic Video Service are subject to approval of the Franchising Authority, the Grantee may, at its discretion and without consent of the Franchising Authority, increase rates fro Basic Video Service by an amount which is at least equal to the cumulative increase (calculated from the date of the last basic rate increase) in the Consumer Price Index of All Urban Consumers – United States Average (CPI) published by the Bureau of Labor Statistics of the Untied States Department of Labor.
In the event that Basic Video Service rate increases are subject to approval of the Franchising Authority, the Grantee may, at its discretion and without consent of the Franchising Authority, increase rates relating to the provision of Basic Video Service by an amount which is at least equal to five percent (5%) per year.
SECTION 8-107-21 RENEWAL OF FRANCHISE. The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee’s Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act (as such existed as of the effective date of the Cable Act), unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law.
In addition to the procedures set forth in said Section 626(a), the Franchising Authority agrees to notify Grantee of its preliminary assessments regarding the identity of future video – related community needs and interests, as well as the past performance of Grantee under the then current Franchise term. The Franchising Authority further agrees that such a preliminary assessment shall be provided to the Grantee prior to the time that the four (4) month period referred to in Subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary set forth in this section, the Grantee and Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof. The Grantee and the Franchising Authority consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act.
SECTION 8-107-22 CONDITIONS OF SALE. Except to the extent expressly required by federal or state law, if a renewal or extension of Grantee’s Franchise is denied or the Franchise is lawfully terminated, and the Franchising Authority is either lawfully acquires ownership of the Video System or by its actions lawfully effects a transfer of ownership of the Video System to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the Video System valued as a going concern.
Grantee and Franchising Authority agree that in the case of a lawful revocation of the Franchise, at Grantee’s request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its Video System to a qualified third party. The Franchising Authority further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Video System which is reasonably acceptable to the Franchising Authority, Grantee and Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee’s continued operation of its Video System during the six (6) month period shall not be deemed to be a waiver, nor an extinguishments of, any rights of either the Franchising Authority or the Grantee. Notwithstanding anything to the contrary set forth in this section, neither Franchising Authority nor Grantee shall be required to violate federal or state law.
SECTION 8-107-23 TRANSFER OF FRANCHISE. Grantee’s right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of the Franchising Authority, such consent not to be unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the Franchise or Video System in order to secure indebtedness.
SECTION 8-107-24 TESTING FOR COMPLANCE. The Franchising Authority may perform technical tests of the Video System during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of the Grantee or the Video System in order to determine whether or not the Grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only after giving Grantee reasonable notice thereof, not to be less than two (2) business days, and providing a representative of Grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the Grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the Grantee. In the event that such testing demonstrates that Grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the Franchising Authority. The Franchising Authority agrees that the results thereof shall be made available to the grantee upon Grantee’s request.
SECTION 8-107-25 BOOKS AND RECORDS. The Grantee agrees that the Franchising Authority may review such of its books and records, during normal business hours and on a nondisruptive basis, as are reasonably necessary to monitor compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The Franchising Authority agrees to treat any information disclosed by the Grantee to it as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof.
SECTION 8-107-26 INSURANCE REQUIREMENTS. Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Comprehensive General Liability Insurance in the amount of $2,000,000 combined single limit for bodily injury and property damage. Said insurance shall designate the Franchising Authority as an additional insured. Such insurance shall be non-cancelable except upon thirty (30) days prior written notice to the Franchising Authority.
SECTION 8-107-27 INDEMNIFICATION. The Grantee agrees to indemnify, save and hold harmless, and defend the Franchising Authority, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the Grantee’s construction, operation, or maintenance of its Video System, including, but not limited to, reasonable attorney’s fees and costs.
SECTION 8-107-28 BONDS AND OTHER SURETY. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. The Franchising Authority acknowledges that the legal, financial, and technical qualifications of Grantee are sufficient to afford compliance with the terms of the Franchise and the enforcement thereof. Grantee and Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for Video Services. In order to minimize such costs, the Franchising Authority agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefore. The Franchising Authority agrees that in no event, however, shall it required a bond or other related surety in an aggregate amount greater than $10,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the Franchising Authority agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in the Grantee’s legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith.
SECTION 8-107-29 NOTICE OF VIOLATION.. In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged noncompliance.
SECTION 8-107-30 GRANTEE’S RIGHT TO CURE OR RESPOND. Grantee shall have thirty (30) days from receipt of the notice described in Section 7.1 (a) to respond to the Franchising Authority contesting the assertion of noncompliance or; (b) to cure such default or; (c) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed.
SECTION 8-107-31 PUBLIC HEARING. In the event that Grantee fails to respond to the notice described in Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied with sixty (60) days after the Grantee is notified of the alleged default pursuant to Section 7.1, the Franchising Authority shall schedule a public meeting to investigate the default. Such public meeting shall be Held at the next regularly scheduled meeting of the Franchising Authority which is scheduled at a time which is no less than five (5) business days there from. The Franchising Authority shall notify the Grantee of the time and place of such meeting and provide the Grantee with an opportunity to be heard.
SECTION 8-107-32 ENFORCEMENT. Subject to applicable federal and state law, in the event the Franchising Authority, after such meeting, determines that Grantee is in default of any provision of the Franchise, the Franchising Authority may:
(1) Foreclose on all or any part of any security provided under this Franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the Franchising Authority reasonably determines is necessary to remedy the default;
(2) Commence an action at law for monetary damages or seek other equitable relief;
(3) In the case of a substantial default of a material provision of the Franchise; declare the Franchise Agreement to be revoked; or
(4) Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.
The Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the Franchising Authority to enforce prompt compliance.
SECTION 8-107-33 ACTS OF GOD. The Grantee shall not be held in default or noncompliance with the provision of the Franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.
SECTION 8-107-34 MISDEMEANOR. In addition to those criminal and civil remedies provided by state and federal law, it shall be a misdemeanor for any person, firm, or corporation to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the Video System without the express consent of the Grantee. Subject to applicable federal and state law, the Franchising Authority shall incorporate into it criminal code, if not presently a part thereof, criminal misdemeanor law which will enforce the intent of this section.
Establishing Penalties for Unauthorized Connections: In addition to those criminal and civil remedies provided by state and federal law, it shall be a misdemeanor for any person, firm or corporation to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the Video System without expressed consent of the Grantee.
SECTION 8-107-35 DOCUMENTS INCORPORATED AND MADE A PART HEREOF. The following documents shall be incorporated herein by this reference, and in the case of a conflict or ambiguity between or among them, the document of latest date shall govern:
(1) Any enabling Ordinance in existence as of the date hereof;
(2) Any franchise agreement between Grantee and Franchising Authority reflecting the renewal of the Franchise, if any.
SECTION 8-107-36 PREEMPTION. If the FCC, or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the Franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by the Franchising Authority, the jurisdiction of the Franchising Authority shall cease and no longer exist.
SECTION 8-107-37 ACTION OF FRANCHISING AUTHORITY. In any action by the Franchising Authority or representative thereof 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 or delayed.
SECTION 8-107-38 NOTICE. Unless expressly otherwise agreed between the parties, every notice or response to be served upon the Franchising Authority or Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a post office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the Franchising Authority shall be addressed as follows:
City of Belle Plaine, Iowa
1207 8th Avenue
Belle Plaine, Iowa 52208
The notices or responses to the Grantee shall be addressed as follows:
Coon Creek Telecommunications, Corp.
312 Locust Str., NE
Blairstown, Iowa 52209
Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other.
SECTION 8-107-39 DESCRIPTIVE HEADINGS. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
SECTION 8-107-40 SEVERABILITY. If any section, 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, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise or any renewal or renewals thereof. Provided however, should Switched Digital Video Systems be found to be outside the jurisdiction of the Cable Act as declared by an agency or court of competent jurisdiction by rule or decision, the Franchise hall become null and void.
Passed and adopted this 15th day of August, 2005, subject to applicable federal, state and local law.