HomeMy WebLinkAbout97-123 Resolution No. 97-123
RESOLUTION
AUTHORIZING EXECUTION OF A CABLE FRANCHISE AGREEMENT WITH
AMERITECH NEW MEDIA, INC.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Robert O. Malm, Interim City Manager, be and is
hereby authorized and directed to execute a Cable Franchise
Agreement on behalf of the City of Elgin with Ameritech New
Media, Inc . for a cable television franchise, a copy of which
is attached hereto and made a part hereof by reference.
s/ Kevin Kelly
Kevin Kelly, Mayor
Presented: May 28, 1997
Adopted: May 28, 1997
Vote : Yeas 6 Nays 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
AMERITECH NEW MEDIA, INC.
CABLE FRANCHISE AGREEMENT
WITH
THE CITY OF ELGIN, ILLINOIS
May 28, 1997
AMERITECH NEW MEDIA, INC.
CABLE FRANCHISE AGREEMENT
SECTION TABLE OF CONTENTS PAGE
1 Purpose and Intent 3
2. Definitions 4
3. Grant of Authority 6
4. Authority Not Exclusive 7
5. Amendment of Franchise Agreement 7
6. Fees 8
7. Construction of the Cable System 8
8. Tree Trimming 12
9. System Design and Performance Requirements 12
10. Construction Requirements 12
11. Service to Customers 14
12. Reports 14
13. Support for Public Usage and Local Programming
Allocation of Resources 16
14. Indemnity and Insurance 18
15. Franchisee Default and Remedies 21
16. Compliance with Laws; Severability 23
17. Taxes 24
18. Sale or Transfer of Franchise 24
19. Privacy 25
20. Statute of Limitations 26
21. Service of Notice 26
22. Force Majeure 27
23. Renewal of Franchise 27
24. Compliance with this Agreement 28
25. Acceptance 28
26. Removal or Abandonment of Cable System 28
27 Franchise Fee Prepayment 29
28. Entire Agreement 30
Exhibit 7.1 - Construction Schedule
Exhibit 8 - Ameritech New Media Architecture
Exhibit 11.1 - Customer Service Obligations
Exhibit 13.2 - List of Locations
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1. PURPOSE AND INTENT
THIS CABLE FRANCHISE AGREEMENT (the "Agreement") is made and
entered into as of the effective date of May 28, 1997, (the "Effective Date") by
and between the City of Elgin, an Illinois municipal corporation organized under
the applicable laws of the State of Illinois, (hereinafter referred to as the "Issuing
Authority"), and Ameritech New Media, Inc., a Delaware corporation with its
principal place of business at 300 South Riverside Plaza, Suite 1800 North,
Chicago, Illinois, 60606 (hereinafter referred to as "Franchisee").
WHEREAS, the Issuing Authority, pursuant to Section 621 of the Cable
Communications Policy Act of 1984 as now in effect (the "Federal Cable Act"),
state statutes, and local ordinances, is authorized to grant one or more non-
exclusive franchises to construct, operate, and maintain a cable television
system within the municipal boundaries of the Issuing Authority ("Franchisee
Area") and may not unreasonably refuse to award an additional competitive
franchise; and,
WHEREAS, the Issuing Authority has analyzed fully and considered the
technical ability, financial condition, and legal qualifications of Franchisee; and,
WHEREAS, the Issuing Authority, after such consideration, analysis and
deliberation as are required by applicable law, has determined a public need exists
for the issuance of an additional cable television franchise; the capacity of public
rights-of-ways to accommodate such service; the potential disruption to existing
uses of public rights-of-way to be used by Franchisee to complete construction
and to provide cable television services within the Franchise Area; the long-term
economic impact of the proposed additional cable television system within the
community; and such other factors as the Issuing Authority deemed appropriate,
has approved and found sufficient the technical, financial and legal qualifications of
the Franchisee to provide cable television service; and,
WHEREAS, the Issuing Authority has also considered and analyzed the
plans of Franchisee for the construction and operation of a cable television
system and found the same to be adequate, feasible and in the public interest;
and,
WHEREAS, the Issuing Authority and Franchisee have agreed to be
bound by the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the parties agree as follows:
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2. DEFINITIONS
Unless otherwise defined herein, terms used in this Agreement shall have
the meanings ascribed to them by the Federal Cable Act, in effect at the date
hereof.
AGREEMENT Shall mean this AGREEMENT and any amendments or
renewals thereof.
ANNUAL GROSS Shall mean all revenues received by Franchisee for Cable
REVENUES Service in an annual period from the operation of
Franchisee's Cable System within the Franchise Area and
which are attributable to or occasioned by the grant of the
Franchise. Annual Gross Revenue does not include,
however: (1) any taxes or fees imposed and/or assessed by
law on subscribers (including state sales taxes) which
Franchisee is obligated to collect and pay in full to the
applicable authorities; (2) any amounts documented as
written off by Franchisee as bad debt or refunds to
subscribers; (3) any revenue derived from items which are
subject to state or local sales tax; (4) any copyright fees
collected from Subscriber and paid to the Copyright Royalty
Tribunal or its successor; (5) home shopping revenues and
(6) advertising revenues; provided, however, in the event
Franchisee agrees to include advertising revenues in the
definition of gross revenues from which franchise fees are
derived in any other franchise agreement entered into with
any issuing authority after the date of this Franchise
Agreement, advertising revenue shall be thereafter deemed
to be included in this definition of Annual Gross Revenues;
provided further, however, in recognition of the fact that
some portion of the monies paid and payable pursuant to
Section 13 is to compensate for the exclusion of advertising
revenue from the definition of Annual Gross Revenues, in
the event this provision is invoked by the inclusion of
advertising revenue in such other franchise agreement, the
Issuing Authority and Franchisee shall in good faith
determine the revised amounts to be paid pursuant to
Section 13 based upon the additional revenue accruing to
the Issuing Authority from the inclusion of advertising
revenue.
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CABLE SERVICE Shall mean:
a.the one-way transmission to subscribers of video
programming, or other programming service; and
b.subscriber interaction, if any, which is required for the
selection of such video or other programming service.
CABLE SYSTEM Shall mean a facility, consisting
OR SYSTEM 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 a community.
DAY Shall mean "calendar" day unless specified otherwise.
CITY Shall mean the City of Elgin, Illinois.
FCC Shall mean the Federal Communications Commission,
established under the Federal Communications Act of 1934,
as amended, and shall include any successor or additional
Federal governmental body with authority superior to the
Issuing Authority with regard to the regulation of any activity
authorized by this Agreement.
FRANCHISE Shall mean the non-exclusive right and privilege to
construct, operate, and maintain a Cable System (and
related Cable System equipment) for the purpose of
providing Cable Service in the public right-of-way of the
Issuing Authority as provided for in this Agreement subject
to the conditions and restrictions as hereinafter provided. It
shall be further provided that the Issuing Authority shall have
the right to review such Franchise periodically at such time
as the Issuing Authority may from time to time elect to do so
as hereinafter provided.
FRANCHISE Shall mean all areas within the municipal boundaries of
AREA the Issuing Authority and which area has thirty-five (35)
permanent structures per cable mile.
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PUBLIC RIGHT- Shall mean the surface of, as well as the space above and
OF-WAY OR below any public street, road, highway, freeway, lane, path,
PUBLIC RIGHTS- public way or place, alley, court, sidewalk, boulevard,
OF-WAY parkway, drive or other easement, or any extension thereof,
now or hereafter held by the Issuing Authority for any public
purpose, (including but not limited to street, highway,
sidewalk, lighting, drainage, utility or cable television
easements, and all public ways and places contiguous
thereto). Within their proper use and meaning, the public
Right-of-Way entitles the Issuing Authority and Franchisee to
the use thereof for the purpose of installing, or transmitting
cable transmissions over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments, and other property as may be ordinarily
necessary and pertinent to a Cable System. The Issuing
Authority, in granting a Franchise to use the Public Rig ht-of-
Way, grants only such rights as it possesses and does not
guarantee the right of Franchisee to utilize such territory nor
will it grant the right of quiet enjoyment except from acts of
the Issuing Authority itself which would be inconsistent with
this Agreement.
STANDARD Shall mean cable connections that are located up to one
INSTALLATION hundred fifty (150) feet from the existing distribution system
and shall not mean commercial or MDU installations, inside
"wall fish" installations or buried installations, irrespective of
distance, where adverse terrain (such as excessive rocky
conditions) or other factors render extension of the system
economically or technically more expensive or difficult than
typically encountered by Franchisee in its normal operations.
SUBSCRIBER Shall mean any person, company, corporation or entity
lawfully receiving a Cable Service.
3. GRANT OF AUTHORITY
3.1 There is hereby granted by the Issuing Authority, which represents and
warrants that it has the requisite power and authority to do so, to Franchisee, for
a period of twenty (20) years from and after the Effective Date of this Agreement
(the "Term"), the non-exclusive right and franchise to construct, use, operate,
own, modify and maintain such towers, antennas, cables, electronic equipment,
and other appurtenances necessary for the operation of a Cable System subject
to applicable local, state and federal law (the "Franchise").
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3.2 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 hereby grants to Franchisee authority to use the Public Right-
Of-Way, and this Franchise shall be construed to authorize the construction of a
Cable System in, over and upon such Public Rights-Of-Way in accordance with
Section 621(a)(2) of the Federal Cable Act, and to grant access to such Public
Rights-Of-Way whether or not such Public Rights-Of-Way specifically
contemplate or designate "Cable TV" The Issuing Authority, to the extent it is
lawfully able, shall also include this grant in future easements, licenses and
rights-of-way as they are created.
4. AUTHORITY NOT EXCLUSIVE
4.1 This Franchise and the grant of authority conferred in Section 3 above,
are non-exclusive.
4.2 Nothing in this Agreement shall be in preference or hindrance to the right of
the Issuing Authority, any township, Cook or Kane County, or any state highway
authority or commission, to perform or carry on any public works or public
improvements of any description, and should the system in any way interfere with
the construction, maintenance, or repair of such public works or improvements,
Franchisee shall, at its own cost and expense, protect or relocate its system, or
part thereof, as reasonably directed by the Issuing Authority, any township, Cook
or Kane County, or any state officials, authority, or commission with proper
jurisdiction.
5. AMENDMENT OF FRANCHISE AGREEMENT
•
5.1 In addition to such amendments and modifications as are provided for in
the Federal Cable Act and other applicable law, it is the intent of the parties that
this Agreement may be amended from time to time in accordance with this
Section to allow Franchisee to implement new services and developments, or to
agree to any terms allowed by law, and each party agrees to bargain in good
faith with the other party upon the initiation of any such proposed amendments.
The Issuing Authority shall not be required to amend this agreement on the
Franchisee's request, however, Issuing Authority shall not unreasonably withhold
its consent to amendments requested by Franchisee. Notwithstanding the
foregoing, franchising authority shall have, in the exercise of reasonable
discretion, the sole right and authority to determine whether a requested
amendment is in the best interest of the public health, safety and welfare.
5.2 If either party determines that a change is recommended and consistent
with the terms of this Agreement, and is economically feasible as determined
following a joint evaluation of Franchisee's financial condition, the length of the
Term remaining, economic waste, if any, that would occur should the terms be
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changed, and the profitability of the Cable System within the Franchise Area,
and will not adversely affect or limit the rights and privileges granted to
Franchisee hereunder, then the parties will in good faith, review and negotiate
the terms of the change and any amendment to this Agreement. Based on this
review, and upon adoption of such a change or new requirement through a
mutually acceptable amendment, the change will become effective.
6. FEES
6.1 From and after the Effective Date of this Agreement and throughout the
Term, Franchisee shall pay to the Issuing Authority a franchise fee of five
percent (5%) of Annual Gross Revenues derived from the operation of the Cable
System within the Franchise Area for each calendar year. Such payments shall
be made twice yearly within forty-five (45) days after June 30 and December 31
of each year.
7. CONSTRUCTION OF THE CABLE SYSTEM
7.1 Construction of the Cable System and provision of service shall be in
accordance with the construction schedule attached hereto as Exhibit 7.1 and
hereby incorporated. Franchisee shall give the Issuing Authority written notice
within a reasonable time prior to the commencement of construction, but in no
event shall such notice be given less than seven (7) business days before such
commencement.
7.2 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.
7.3 Franchisee shall comply with applicable Federal, state and local rules and
regulations governing the construction, operation, maintenance and installation
of the System. Such rules and regulations shall include, without limitation, the
requirements of Section 621(a)(2)(A) of the Federal Cable Act to ensure:
(a) that the safety, function, and appearance of the property and the
convenience and safety of other persons shall not be adversely affected by the
installation or construction of facilities necessary for the Cable System;
(b) that the cost of the installation, construction, operation, or removal
of such facilities be borne by Franchisee or, in the circumstances covered by
Subsection 7.7 below, by a combination of Franchisee and subscriber(s); and
(c) that Franchisee shall maintain adequate insurance to cover any
damages caused by the installation, construction, operation, or removal of such
facilities by Franchisee.
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7.4 In addition to the above requirements, Franchisee will ensure that:
(a) its work shall comply with the provisions of the 1994 National
Electrical Safety Code of the National Bureau of Standards, the National
Electrical Code of the National Board of Fire Underwriters and the Bell
Telephone System's Code of Pole Line Construction as such codes are in force
as of the time of installation or other work;
(b) all cables and wires or other work shall be installed parallel with
existing telephone and electric utility wires whenever possible;
(c) multiple cable configurations shall be in parallel arrangement and
bundled in accordance with engineering and safety considerations; and
(d) except where otherwise provided by applicable law, in areas where
both telephone and electric utilities' facilities are above ground at the time of the
installation of the Cable System, Franchisee may install its facilities above
ground. In areas where both the telephone and electric utility companies'
facilities are underground, Franchisee shall install its facilities underground. If the
Issuing Authority provides notice to telephone and electric utility companies and
any other cable system franchisee requesting that above-ground portions of
Franchisee's Equipment be moved underground, Franchisee will comply, at its
expense, with all such reasonable requests by the Issuing Authority, provided
that such utilities and other cable system franchisees do likewise. The Issuing
Authority shall coordinate among Franchisee, telephone and electric utility
companies and/or users of public rights-of-way to ensure that relocation is done
in the most economical and appropriate manner possible.
7.5 The Issuing Authority shall give Franchisee no less than forty-five (45)
days (except in case of emergency declared by an appropriate officer of the City
in which event such lesser notice as shall be reasonable under the
circumstances presented) advance written notice of street improvements or other
activity which could affect the Cable System, including but not limited to, street or
public rights-of-way excavation; construction repair; grading; traffic conditions;
installation of sewers, drains or water pipes, power or signal lines; tracks; or
vacation or improvement of public works.
(a) All such public works shall be done, insofar as possible, in such a
manner as not to obstruct, injure or prevent the free use and operation of the
poles, wires, conduits, conductors, pipes or appurtenances of Franchisee's
Cable System. Nothing contained in this Agreement shall relieve any person or
entity from liability arising out of the failure to exercise reasonable care to avoid
interfering with Franchisee's facilities while performing the public works.
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(b) If any of Franchisee's equipment shall interfere with the public
works, then, upon receipt of the 45-day notice, that part of Franchisee's
equipment which interferes shall be removed or replaced by Franchisee in such
manner as shall be directed by the Issuing Authority so that the same shall not
interfere with the public works as reasonably determined by the Issuing
Authority, and Franchisee shall bear the expense of such removal or
replacement.
7.6 Franchisee shall keep accurate, complete and current maps and records
of its Cable System and facilities, to be updated periodically as warranted.
Franchisee shall furnish, as soon as they are available, two (2) complete sets of
route maps to the Issuing Authority applicable to the Franchise Area. Such maps
shall be available for inspection by the public during normal business hours at a
location designated by Franchisee or at an Issuing Authority office.
7.7 Franchisee shall build its Cable System so that it is capable of providing
service to all residences and businesses located along public rights-of-way
located within the Franchise Area, except that Franchisee shall not be required
to extend Cable Service to areas where the required easements are not
reasonably available or obtainable. Service will be provided at then-prevailing
installation charges except as provided below under the following circumstances:
(a) where the drop to the subscriber location is not a Standard
Installation, in addition to the prevailing installation charge, Franchisee may
charge the subscriber the difference between Franchisee's cost of installing a
150 foot drop and the cost of installing a longer drop;
(b) in any adjacent areas which are annexed by the Issuing Authority
during the term of this Franchise:
(i) where the residence or business of a person requesting
cable service is more than 500 feet from the existing system (where overhead
may be used) or 250 feet of distance from the existing system (where
underground must be used), service will be provided if the person requesting
service (or persons, on a pro rata basis) contributes the actual cost of material
and labor for the portion of construction that is beyond the above distances; and
(ii) where access to the property is denied by the property
owner or where a cost is imposed to cross private property, Franchisee shall
have the option not to provide cable service. In such circumstances, however,
Franchisee will endeavor in good faith to reach agreement with those requesting
service in an effort to make extension of the Cable System economically feasible
by a contribution in aid of construction by those requesting service.
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In implementing this subparagraph (b), Franchisee may require that
the estimated amount of the subscribers' capital contribution be paid in advance.
Any excess amounts so collected will be returned to the subscribers upon
completion of construction.
(c) those portions of the Franchise Area which do not have the
necessary density of 35 potential subscribers per linear mile shall be served by
Franchisee if the potential subscribers agree to a grant-in-aid of construction on
the following terms and conditions:
(i) Franchisee shall receive written requests from a minimum of
20 potential subscribers per linear mile or an equivalent pro rata number based
on the actual length of the extension.
(ii) Franchisee shall calculate its then current cost per mile of
extension. This shall be divided by 35 locations per linear mile to arrive at the
required per location investment Franchisee must make.
(iii) The potential subscribers requesting service shall then be
multiplied by Franchisee's investment per location and this total amount shall be
subtracted from Franchisee's current cost per linear mile.
(iv) The remaining amount shall then be shared pro rata by the
potential subscribers requesting service and paid to Franchisee prior to the time
the extension is made.
7.8 Franchisee shall be required, in accordance with this Agreement and
applicable law, to provide service to individual units of a multiple dwelling unit
(MDU) with all services offered to other dwelling units within the Franchise Area,
so long as the owner of the MDU consents in writing, if requested by Franchisee,
to the following:
(a) to Franchisee's providing of service to individual units of the MDU;
(b) to reasonable conditions and times for installation, maintenance,
and inspection of the Cable System on the MDU premises;
(c) to reasonable conditions promulgated by Franchisee to protect
Franchisee's equipment and to encourage widespread use of the Cable System;
and
(d) to not demand payment from Franchisee for permitting Franchisee
to provide service to the MDU and to not discriminate in rental charges, or
otherwise, between tenants who receive cable service and those who do not.
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8. TREE TRIMMING
8.1 Franchisee may upon reasonable notice to the City trim trees or other
vegetation on public property or property owned by the Issuing Authority or
encroaching upon the public right of way to prevent branches or leaves from
touching or otherwise interfering with Franchisee's wires, cables or other
structures. All trimming or pruning shall be at the sole cost of Franchisee.
8.2 Franchisee may contract for trimming or pruning services with any person
approved by the Issuing Authority prior to the rendering of such services, which
approval shall not be unreasonably withheld.
9. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
9.1 The Cable System architecture, configuration, and capacity are set forth
on Exhibit 9 attached hereto.
9.2 Franchisee shall install and maintain a standby power system that
provides a minimum of five (5) hours duration, at the headend and three-hour
rated batteries at 77 degrees Fahrenheit throughout the System.
9.3 Franchisee shall provide subscribers, upon request, with the means to
restrict viewing of individual channels.
9.4 System headends and distribution to the node, as well as standby power,
will have remote status monitoring.
9.5 The Federal Communications Commission "FCC" Rules and Regulations,
Part 76, Subpart K "Technical Standards", shall apply.
9.6 Franchisee shall perform all tests necessary to determine compliance with
the technical standards of FCC Rule Section 76.601. Written records of test
results shall be maintained, and shall be available for the Issuing Authority's
inspection upon request.
9.7 Franchisee shall comply with applicable FCC Rules and Regulations
regarding Emergency Alert Systems (EAS) by providing the system capability to
transmit an emergency alert signal in the event of disaster or public emergency.
10. CONSTRUCTION REQUIREMENTS
10.1 Franchisee shall complete construction of the System and offer service to
locations in accordance with the schedule set forth in Exhibit 7.1. The time-table
shall commence after required make-ready is completed and appropriate
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notification to and permitting by the City is accomplished. No permit fees shall
be imposed upon Franchisee.
10.2 The Issuing Authority shall have the right to inspect all construction or
installation work performed subject to the provisions of the Franchise and to
make such tests as it shall find necessary to ensure compliance with the terms of
the Franchise and other pertinent provisions of law.
10.3 Franchisee shall comply with the City's ordinance related to restoration of
parkway or tree bank and the City agrees that the security deposit required in
said ordinance is satisfied by compliance by Franchisee with Section 14.3 of this
Agreement.
10.4 Franchisee shall be a member of the Joint Utility Location Information for
Underground Excavator (J.U.L.I.E.).
10.5 Franchisee shall make reasonable effort to avoid major disturbances of
street pavements, sidewalks, alleys, public and private landscaping, and all other
publicly or privately held properties or structures thereupon during all phases of
construction and maintenance of the System. The open-cutting of public streets,
alleys, sidewalks, and other paved surfaces within any public right-of-way or
upon private property shall be prohibited except when specifically agreed upon
by the Issuing Authority and restoration shall conform to the Issuing Authority's
current engineering standards. All cable passing under any roadway shall be
installed in conduit. Franchisee and Issuing Authority shall meet and discuss
construction methods prior to commencement of construction. Directional boring
shall be used where it is practical and beneficial to the existing condition of the
right-of-way and customers to do so.
(a) In the case of the disturbance for construction or maintenance of any
landscape plantings, which may include, but is not limited to trees, shrubs
and grass, Franchisee shall, at its own expense, within five (5) working
days, weather permitting, in the manner required by the Issuing Authority's
ordinances, regulations, or policies, replace and restore all such surfaces
to their condition prior to Franchisee's activities. In the case of grass,
restorations shall be accomplished by resodding or seeding the area as
appropriate.
(b) In the case where any semi-permanent structure, such as a fence, dog-
house, tool shed, etc., lies within the desired and approved path of any
underground cable, Franchisee shall make every attempt to relocate the
cable path around or to auger under such semi-permanent structure. In
any event, whenever such relocation of the cable path is not feasible, all
semi-permanent structures which have been disturbed must be replaced
and restored to their prior condition, at Franchisee's expense.
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(c) In the case where any permanent structure, such as a garage, driveway,
sidewalk, alley, or other paved surface for permanent structure lies within
the desired and approved cable path, Franchisee shall be required to
auger under said paved surface or structure, or to relocate the cable to
avoid such disturbance.
11. SERVICE TO CUSTOMERS
11.1 Customer Service Cable Standards. Franchisee shall meet or exceed the
standards regarding customer service attached hereto as Exhibit 11.1.
11.2 Customer Service Guarantees. Franchisee guarantees that installations
and service calls will be performed during the time period agreed upon with the
subscriber or subscriber remuneration will be provided. Remuneration will be
determined by subscriber requirements, and may take the form of free
installation, service credit or promotional items of comparable value.
12. REPORTS
12.1 On or before one hundred twenty (120) days after the end of Franchisee's
calendar year, and each successive year during the Term of this Agreement,
Franchisee shall submit a written annual report to the Issuing Authority, including
the following information:
(a) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities and development of the Cable System,
including, but not limited to services begun or discontinued, total number of
subscribers, and subscribers added or discontinued during the reporting year;
and
(b) A list of stockholders holding ten percent or more of the voting
interest in Franchisee.
12.2 Upon request, Franchisee shall submit to the Issuing Authority copies of
all decisions, correspondence and actions by any Federal, state and local courts,
regulatory agencies and other government bodies relating to its cable television
operations within the Franchise Area; provided such documents shall exclude
any proprietary information or trade secrets of Franchisee.
12.3 Franchisee shall make available to the Issuing Authority such other
information or reports pertinent to enforcing the terms of the Franchise in such
forms and at such times as the Issuing Authority may reasonably request upon
reasonable advance written notice.
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12.4 Franchisee shall allow the Issuing Authority to make inspections of any of
its facilities and equipment at any time upon one (1) business day's prior notice.
12.5 The City shall have the right, at its expense, to inspect and audit
Franchisee's records to recompute any amounts determined to be payable to the
City pursuant to this Agreement; provided such audit shall take place within
twelve (12) months following the close of each calendar year. Any additional
amounts due the City or Franchisee as a result of the audit shall be paid within
thirty (30) days following written notice to such party (which notice with respect to
amounts due the City shall contain a copy of the audit report), unless contested
by Franchisee or the City within such thirty (30) days. In the event that the audit
reveals an underpayment of the lesser of$10,000 or five percent (5%) or more,
Issuing Authority may then conduct an audit of the two next preceding calendar
years of Franchisee, (if no audit was conducted of either or both of such prior
calendar years) to recompute any amounts determined to be payable to the
Issuing Authority pursuant to this Agreement. Under no circumstances shall
Issuing Authority be permitted to conduct an audit of any fiscal year more than
three (3) calendar years prior to the calendar year during which an audit takes
place.
12.6 A full and complete reproducible set of plans, records, and,"as built" maps
showing the location of all of its cable installed or in use within the Issuing
Authority, exclusive of subscriber service drops, shall be provided sixty (60) days
after construction is completed. [The "as built" maps shall be provided in
computer readable format compatible with Issuing Authority's system] at the time
of execution of this Agreement.
12.7 Franchisee shall file, within sixty (60) days of each June 30 and
December 31, a statement showing Annual Gross Revenues during the
preceding six (6) months by type of service certified as correct by Franchisee's
Chief Financial Officer.
12.8 Franchisee shall file annually with the Issuing Authority, no later than one
hundred twenty (120) days after the end of each calendar year, copies of all
material changes in rules, regulations, terms and conditions established or
imposed by Franchisee in connection with the establishment, construction,
operation, and maintenance of its System. Franchisee shall at all times maintain
on file with the Issuing Authority a complete and current rate card showing all
service options being provided by Franchisee, the fees and charges for each of
such services, the charges for connections or disconnections, and any other •
charges which may be made by Franchisee relative to the System.
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13. SUPPORT FOR PUBLIC USAGE, LOCAL PROGRAMMING, AND
ELGIN-NET; ALLOCATION OF RESOURCES
13.1 Franchisee shall provide three (3) channels to be allocated among public,
educational, and governmental (PEG) non-commercial usage as determined by
the City. After Franchisee is utilizing digital compression technology in its Cable
System it will provide an additional channel for non-commercial public,
educational, or governmental programming in the event the City requests such
additional channel and provided the three PEG channels are thin currently fully
utilized.
(a). As used herein, "fully utilized" shall mean utilized for
original, non-duplicative, locally produced video PEG programming not less than
six (6) hours per day, five (5) days per week, for a period of eight (8) consecutive
weeks.
The one additional channel provided pursuant to this Section 13.1 shall be
reviewed annually by joint review of the Franchisee and the City thereafter and
upon such annual review, the additional channel shall contin a to be made
available to the extent that the PEG channels, (including the original PEG
channels), were at least eighty (80) percent fully utilized throughout the
preceding year. If such usage requirement is not met, usage of the additional
PEG channel shall terminate subject to reactivation at the request of the City
upon demonstration that the three original PEG channels are fully, utilized, and to
the annual review provided herein. In no event shall non-PEG programming be
included in determining whether the channels are fully utilized. Non PEG
programming shall include the programming which is defined as commercial in
nature under the conditions of Sections 611 and 612 of the Cable
Communications Policy Act of 1984, as amended.
13.2 In recognition of the exclusion of advertising and Nome shopping
revenues from the definition of Gross Revenues and in lieu of providing PEG
equipment or services duplicative of those being provided by the incumbent
cable franchisee to the City, Franchisee will pay the City $70,000. within thirty
(30) days of approval of this Agreement, and in addition, during the first five
years of the Term, Franchisee will pay semi-annually along with the franchise fee
an amount equal to the greater of $12,500 ($25,000 annually) for one percent
(1.0%) of Adjusted Gross Revenues (Gross Revenues as defined in Section 2 of
this Agreement net of the franchise fee set forth in Section 6 of this Agreement).
During the remainder of the Term, Franchisee will pay semi-annually along with
the franchise fee an amount equal to the greater of $25,000 ($50,000 annually)
or one percent (1.0%) of Adjusted Gross Revenues. These payments shall be
used by the City for community purposes as the City deems appropriate.
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13.3 Franchisee shall provide one (1) free Standard Installation and basic
service, exclusive of premium or pay-per-view services (as those terms are
defined from time to time), at no charge to the locations listed onthe attached
Exhibit 13.3 provided that within sixty (60) days of the Effective Date, the Issuing
Authority provides to Franchisee the address and specific location of each such
installation site if such information is not already shown on Exhibit 13.3. At
locations for which internal wiring is required, Franchisee shall provide such
internal wiring and the entities identified on Exhibit 13.3 shall pays Franchisee's
actual expenses therefor.
13.4 Within thirty (30) days following renewal of this Franchise, !Franchisee
shall provide capital equipment, facilities, financial support, or any combination
thereof, as mutually agreed, equal in value to the institutional network ("Elginet")
required to be built by Jones Intercable, considering, among other things, the
documented and verifiable cost to Jones Intercable of the design; construction,
and maintenance of Elginet between September 27, 1989 and December 10,
1999. For the purposes of this Section 13.4, Franchisee and Issuing Authority
agree that the documented and verifiable cost to Jones Intercable of the design
and construction of Elginet was $350,000 and the bulk of such sum was
expended during 1995.
13.5 The cable system shall be capable of being connected to the Elginet.
Upon request of the City, and no later than sixty (60) days following such
request, Franchisee shall interconnect its cable system with the Elginet for the
purpose of transmitting PEG video programming to and from the Franchisee's
cable system and Elginet locations.
13.6 Franchisee shall provide a Local Origination Channel designated by
Franchisee for such purpose. Franchisee's Local Origination programming shall
provide the community with information of interest to persons in the City of Elgin
and the Chicago metropolitan area. The Local Origination Channel may be
designated by the Franchisee as an information Channel. In connection with this
Channel, Franchisee may develop and broadcast a video and/or txt-based
service which will offer a variety of news and informational items which will be of
interest to Subscribers. Among the items considered for inclusion!will be
national and local news, sports scores, and weather. The service may also
provide educational and governmental representatives and citizens with the
ability to provide local information such as school lunch menus, homework
hotlines, high school sports scores, school closings, local traffic reports, airport
arrival and departure schedules, train schedules, restaurant menus, classified
advertisements, recycling information, and City Council minutes and decisions.
13.7 Franchisee, within sixty (60) days of the Effective Date, will!provide the
City with $25,000. to be used for the purchase of a video camera and ancillary
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_ I
equipment, to facilitate the transmission to Subscribers of City Council meetings
or for such other purposes as the City determines.
14. INDEMNITY AND INSURANCE
14.1 Indemnity. To the extent permitted by law:
(a) The Issuing Authority shall not at any time be liable Ilfor any injury or
damage occurring to any person or property from any cause whatsoever arising
out of this Agreement or from the use, operation or condition of the Cable
System; except that the Issuing Authority does hereby indemnify,;save and hold
harmless and agrees to defend Franchisee from all liens, charges, claims,
demands, suits, actions, fines, penalties, losses, costs (including,,but not limited
to, legal fees and court costs), judgments, injuries, liabilities or damages, in law
or equity; of any and every kind and nature whatsoever, whether caused by or
arising out of any act of omission or commission, or any negligence of the
Issuing Authority, or its officers, elected or appointed officials, servants, agents,
employees or contractors, whether or not arising out of or in any way connected
with the Issuing Authority's use of the Cable System facilities or equipment;
however, the indemnity granted hereby shall not extend to liabilities of any type
or kind whatsoever arising out of any acts of negligent or willful misconduct on
the part of Franchisee, its officers, servants, agents, employees, or contractors.
(b) Franchisee does hereby indemnify, save and hold harmless and
agrees to defend the Issuing Authority from all liens, charges, claims, demands,
suits, actions, fines, penalties, losses, costs (including, but not limited to, legal
fees and court costs), judgments, injuries, liabilities or damages, in law or equity;
or of every and any kind and nature whatsoever arising out of or connected with
the negligent installation, operation, or maintenance or construction of the Cable
System; provided, however, that the indemnity granted hereby shall not extend
to liabilities of any type or kind whatsoever arising out of any acts of negligent or
willful misconduct on the part of the Issuing Authority, its officers, elected or
appointed officials, servants, agents, employees, or contractors while acting on
behalf of the Issuing Authority, or to the acts of third parties not acting or
authorized to act on behalf of Franchisee.
(c) The Issuing Authority and Franchisee acknowledge that Section
635A of the Federal Cable Act limits the liability of the Issuing Authority to third
parties in connection with the grant of the Franchise. In particular, Section 635A
limits to injunctive and declaratory relief any relief in any court proceeding
brought by a third party involving any claim arising from the regulation of Cable
Service or from a decision to grant, renew, transfer or amend the Franchise, to
the extent that relief is required by any other provision of Federal, state or local
law. Notwithstanding this provision, Franchisee agrees that, in addition to its
duty to indemnify the Issuing Authority under Subsection 14.1(b) above,
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Franchisee shall indemnify and hold harmless the Issuing Authority against all
damages, losses and expenses (including, without limitation, reasonable
attorneys' fees and cost of suit or defense) arising from third-party suits which
either: (1) challenge the authority of the Issuing Authority to issue the Franchise;
or (2) allege that, in issuing the Franchise, the Issuing Authority has acted in a
disparate or discriminatory manner.
(d) Each party shall give the other reasonably prompt written notice of
any claim, demand, action or proceeding for which indemnification will be sought
under this provision of the Agreement and, 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, using counsel reasonably acceptable to the Issuing
Authority . The Issuing Authority shall have the right to participate, at its own
expense, with respect to any such third-party claim, demand, action or
proceeding that Franchisee so defends. In connection with any such third-party
claim, demand, action or proceeding, Franchisee and the Issuing Authority
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 Issuing
Authority, which consent the Issuing Authority shall not unreasonably withhold or
delay.
14.2 Insurance.
(a) Franchisee shall obtain, effective from the Effective bate of this
Agreement, and shall keep in force and effect during the Term of this Agreement
and any renewal or extension thereof, liability insurance providing the following
minimum coverage: commercial general liability insurance in the amount of
$5,000,000 per occurrence and in the aggregate covering bodily injury, including
death and property damage. Franchisee shall name as additional insureds on
any such policy the Issuing Authority and its officers, boards, commissions,
elected and appointed officials, agents and employees.
(b) 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 Workers' Compensation statute,
and shall show to the reasonable satisfaction of the Issuing Authority that such
insurance is in effect at all times.
(c) Franchisee may, as its option, self-insure with respect to any or all
of the foregoing insurance requirements.
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14.3 Security Fund/Construction and Performance Guarantee.
Franchisee shall provide the Issuing Authority within thirty1(30) days of the
date of this Agreement but prior to commencement of construction an irrevocable
letter of credit or a performance bond (hereinafter "Security Fund"). The choice
of form shall be at the sole discretion of Franchisee provided further that the form
of the letter of credit or performance bond shall be approved by the Issuing
Authority's attorney, which approval shall not be unreasonably withheld. The
amount of the Security Fund shall be fifty thousand dollars ($50,000) and the
requirement to provide such shall be a continuing obligation of Franchisee which
shall terminate at the expiration or termination of this Agreement, provided,
however, that if no withdrawals have been required to be made within twenty-
four (24) months of the completion of construction, the Security Fund
requirements of this Section 14.3 shall cease and be of no further effect.
(a) The Security Fund shall guarantee completion of the Cable System
and facilities and the faithful performance by it of all the provisions of this
Franchise for which liquidated damages are applicable, and the payment by
Franchisee of any claims, liens, and taxes due the Issuing Authority which arise
by reason of the construction, operation or maintenance of the System.
(b) If Franchisee fails, after thirty (30) days notice to pay to the Issuing
Authority any Franchise fees or taxes due and unpaid; or fails to repay to the
Issuing Authority, within such thirty (30) days, any damages, costs or expenses
including reasonable attorneys' fees which the Issuing Authority shall be
compelled to pay by reason of any act of default of Franchisee in connection with
Section 14 of this Franchise; or fails, after thirty (30) days notice of such failure
by the Issuing Authority, to comply with any provision of the Franchise for which
liquidated damages are applicable, the Issuing Authority may immediately
withdraw or call on the amount thereof, with interest and penalties, from the
Security Fund. Upon such withdrawal, the Issuing Authority shall!notify
Franchisee of the amount and date thereof.
(c) Within ten (10) days after notice to it that any amount has been
withdrawn by the Issuing Authority from the Security Fund pursuant to this
Section, Franchisee shall restore such Security Fund to the original amount. If
Franchisee fails to restore such fund after twenty (20) days, such failure shall
constitute a material breach.
(d) Franchisee shall be entitled to the return of such Security Fund, or
portion thereof, as remains on deposit at the expiration of the term of the
Franchise, or upon termination of the Franchise at an earlier date, provided that
there is then no outstanding default on the part of Franchisee. '
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15. FRANCHISEE DEFAULT AND REMEDIES
15.1 If Franchisee fails to meet the construction completion date set forth in the
construction schedule (as the same may be amended pursuant hereto), and then
fails to do so in a timely manner after written notice and a reasonable opportunity
to cure, the Issuing Authority may, as its sole and exclusive remedy, assess
against Franchisee liquidated damages in the amount of$250 per day until the
construction is completed; provided, however, that Franchisee shall first have
sixty (60) days to cure any such default and, further, with regard to defaults
which cannot be cured within sixty (60) days, the Issuing Authority's right to
assess the aforesaid liquidated damages shall not be effective if Franchisee
commences to cure said default within sixty (60) days and continues diligently in
pursuit of such cure. The amount of such liquidated damages as determined by
the Issuing Authority shall, without proof, be deemed to represent damages
actually sustained by the Issuing Authority by reason of said failure to complete
the construction, and shall not be considered as a penalty. Prior to the imposition
of the $250 per day liability, Franchisee shall have the right, at its;request, to a
hearing in which it may participate and seek to demonstrate its compliance. In no
event shall the aggregate amount of liquidated damages paid by Franchisee
exceed $10,000 through the Term of the Franchise.
15.2 In the event of any dispute between Franchisee and the Issuing Authority
regarding compliance with or any other aspect of this Agreement, both parties
agree to cooperate with one another in good faith to assure as much as possible
the smooth, continuous operation of the Cable System and the provision of
service of the highest possible quality to subscribers. Provided however, nothing
herein shall serve to limit or abrogate the rights and duties of either party under
this Agreement.
15.3 In addition to all other rights, powers, or remedies pertaining to the Issuing
Authority in connection with this Agreement or otherwise, the Issuing Authority
reserves the right to revoke the Franchise in the event the Franchisee:
(a) fails to complete construction as specified herein and Issuing
Authority has not availed itself of the remedy provided in Section 15.1 of this
Agreement;
(b) breaches or violates any material provision of this Agreement;
(c) practices fraud or deception upon the City which actions may
include any attempt to purposefully evade or avoid any of the provisions of this
Franchise;
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(d) is adjudged bankrupt, has a receiver appointed for it, makes an
assignment for the benefit of creditors, or has a significant amount of its property
sold under the execution or other legal process or seized by creditors; or
(e) is in default in the making of payments under this Agreement.
15.4 If it appears to the Issuing Authority that, by reason of one1 or more causes
specified in Section 15.3 above, grounds exist for revoking Franchisee's
Franchise, the following procedures shall then be followed:
(a) The Issuing Authority shall make a written demand that Franchisee
comply with the term or condition, which the Issuing Authority deems to be
applicable. The Issuing Authority shall provide Franchisee with a copy of each
such written demand.
(b) If the failure, refusal or neglect of Franchisee continues for a period
of thirty (30) days following such written demand, the Issuing Aut i ority may place
a request for revocation of the grant upon the next regular meeting agenda, or
called special meeting of Issuing Authority. In such event, the Issuing Authority
shall cause to be served upon Franchisee, a notice in writing of its intent to
request a revocation of Franchisee's Franchise. Such notice shall state the time
and place of the meeting of the Issuing Authority and shall be served on
Franchisee at least fourteen (14) days prior to said meeting. In addition to the
foregoing, notice of such request shall be published by the Issuing Authority
Clerk at least once during the seven (7) day period preceding thelmeeting of the
Issuing Authority in a newspaper of general circulation within the Franchise Area.
(c) The Issuing Authority shall hear any persons interested therein and
shall determine, in its reasonable discretion, whether or not any failure, refusal,
or neglect by Franchisee was with or without just cause.
(d) If the failure, refusal, or neglect by Franchisee was with just cause,
the Issuing Authority shall direct Franchisee to comply within suchi time and
manner, and upon such terms and conditions, as are reasonable.
(e) If the Issuing Authority should determine that such failure, refusal,
or neglect by Franchisee was without just cause, the Issuing Authority may by
resolution or ordinance order a final revocation of the Franchise oil order a
revocation to take place unless there is compliance by Franchisee within such
period as the Issuing Authority shall designate. Franchisee may appeal the
decision of the Issuing Authority to a court of competent jurisdiction for de novo
review.
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16. COMPLIANCE WITH LAWS; SEVERABILITY
16.1 Notwithstanding any other provisions of this Agreement to the contrary,
Franchisee shall at all times materially comply with all applicable laws and
regulations of the Federal, state, county and city governments, (including the
non-discrimination requirements of any Federal or state law)and fall
administrative agencies thereof, including but not limited to judicial orders;
provided, however, that if any such Federal, state, local, or county law or other
applicable regulation shall require Franchisee to perform any serice, or shall
permit Franchisee to perform any service, or shall prohibit Franc i isee from
performing any service, in conflict with the terms of this Agreement or of any law
or regulation of the Issuing Authority existing as of the date hereof, then
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 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. In the event that the Franchisee
terminates the provision of Cable Service under this agreement, the public right
of way may not be used except in full compliance with all local laws, rules and
regulations in effect at the time of termination.
16.2 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 local law, rule or regulation now or
hereafter 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, said
provision shall be considered as a separate, distinct and independent part of this
or such other Agreement, and such holding shall not affect the validity and
enforceability of all other provisions hereof or thereof. In the event that such law,
rule or regulation is subsequently repealed, rescinded, amended or otherwise
changed, so that the provision hereof or thereof which had been geld invalid or
modified is no longer in conflict with the law, rules and regulations then in effect,
said provision shall thereupon return to full force and effect and shall thereafter
be binding on the parties hereto, provided that the Issuing Authority shall give
Franchisee sixty (60) days' written notice of such change before requiring
compliance with said provision.
16.3 If the Issuing Authority determines that a material provision of this
Agreement or any related agreement is affected by such action of'a court or of
the Federal, state or local government, the Issuing Authority and Franchisee
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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!
17. TAXES
Nothing contained in this Agreement shall be construed to exempt
Franchisee from any tax, levy or assessment which is or may be hereafter
lawfully imposed on all entities engaged in the same business as Franchisee.
18. SALE OR TRANSFER OF FRANCHISE
18.1 This Franchise shall be sold, assigned or transferred only in accordance
with this Section.
(a) In the event of a change of control of Franchisee ("change of
control" shall mean a change in ownership of a majority interest i voting stocks),
the parties to the sale or transfer shall make a written request to the Issuing
Authority for its approval of sale or transfer (a "Transfer Requiring,Approval").
The written request shall be accompanied by information required by FCC rules
and shall be presented on a form as prescribed by FCC rules.
(b) In accordance with the Federal Cable Act, the Issuing Authority
shall have 120 days from receipt of the information referred to in Subsection (a)
above to act upon the request for approval. If the Issuing Authority fails to
render a final decision on the request within that time, the request shall be
deemed granted unless Franchisee and the Issuing Authority agree to an
extension of the time.
(c) During the review period described in Subsection (b) above the
Issuing Authority may advise Franchisee that a public hearing is deemed
necessary to evaluate any potential adverse effect of the sale or transfer upon
Franchisee's subscribers. In such event Franchisee shall receive written notice
of the hearing, and of the opportunity to participate fully in it, as far in advance as
possible, and in no event less than fourteen (14) days before the start of the
hearing.
.(d) A decision of the Issuing Authority upon a request pursuant to this
Section shall be in writing and subject to review and appeal as provided in the
Federal Cable Act.
18.2 In reviewing a request for sale or transfer pursuant to Section 18.1 above,
the Issuing Authority may inquire into the technical, legal and financial
qualifications of the prospective controlling party, and Franchisee hall assist the
Issuing Authority in so inquiring. The Issuing Authority shall not unreasonably
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withhold its approval. In no event shall a transfer or assignment of ownership or
control be approved without the transferee or assignee assuming, in writing, the
obligations of Franchisee under this Agreement.
18.3 Notwithstanding anything to the contrary, no consent or approval by the
Issuing Authority shall be required for a transfer or assignment to any person or
entity controlling, controlled by or under common control with Franchisee, or for
any sale, transfer or assignment other than a Transfer Requiring'Approval.
19. PRIVACY
19.1 Franchisee shall not, nor shall Franchisee knowingly permit any person,
agency, or entity, without the Subscriber's consent, to tap, or to arrange for the
tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for
any purpose except routine maintenance of the System, routine operation of the
System, polling with audience participation, judicial order, or audience viewing
surveys to support advertising research regarding viewers where individual
viewer behavior cannot be identified.
19.2 In the conduct of providing its services or pursuit of any collateral
commercial enterprise resulting therefrom, Franchisee shall take any and all
necessary action to prevent an invasion of a Subscriber's right to privacy or other
personal rights as such rights are defined by applicable law. Franchisee shall not
without lawful court order utilize the System's interactive two-way equipment or
capability for unauthorized personal surveillance of any Subscriber or citizen.
19.3 Except to the extent permitted by law, Franchisee shall not sell or
otherwise make available to any third parties (including the Issuing Authority),
lists of the names and addresses of Subscribers which identifies, by name, the
extent of Subscriber viewing, or personalized data pertaining to a',Subscriber's
use of any of Franchisee's services without the express written c ',Subscriber's
of the
Subscriber to which the personalized data pertains. For the purposes of this
Section, "personalized data" shall mean the name and address of an individual
Subscriber directly associated with data obtained on his or her use of specific
services provided by or through Franchisee. Nothing herein shall be construed to
prevent, as a normal incident of commercial enterprise, the sale or, availability of
"non-personalized" or "aggregated data" which is not personalized data as
defined herein.
19.4 Franchisee will, upon written request from a Subscriber, inform such
Subscriber of any personally identifiable information Franchisee maintains
concerning such Subscriber.
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20. STATUTE OF LIMITATIONS
Any claim or legal action arising from or in connection with any failures in
the operation or the performance or non-performance of any obligation
hereunder including payment of any amounts due must be brought within five (5)
years after the date the cause of action accrues.
21. SERVICE OF NOTICE
21.1 All notices required or permitted to be given to either party by the other
party under any provisions of this Agreement shall be in writing and shall be
deemed served:
(a) When delivered by hand or by Federal Express or similar service to
that party's address set forth below during normal business hours; or
(b) When mailed to any other person designated by that party in
writing herein to receive such notice, via certified mail, return receipt requested.
21.2 Notice shall be given to the following:
(a) if to Issuing Authority:
City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attn: City Clerk
With a copy to:
City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attn: City Manager
(b) if to Franchisee:
Ameritech New Media, Inc.
300 South Riverside Plaza
Suite 1800 North
Chicago, Illinois 60606-9415
Attn.: Vice President - General Counsel
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22. FORCE MAJEURE
22.1 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, labor dispute, failure to deliver by suppliers, war,
riot, technical breakdown, or government administrative or judicial order or
regulation, shall not result in a default of the 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 during which such factor continues.
23. RENEWAL OF FRANCHISE
23.1 This Franchise may be renewed in accordance with Section 626 of the
Federal Cable Act.
23.2 Except to the extent inconsistent with applicable law, Issuing Authority
reserves the right to deny renewal of the Franchise Agreement for the reasons
listed below:
(a) Failure by the Franchisee to substantially comply with the material
terms of this Franchise Agreement and with applicable law.
(b) Failure by the Franchisee to provide reasonable quality of services,
response to consumer complaints and billing services in light of
community needs.
(c) Failure by the Franchisee to satisfactorily demonstrate to the
Issuing Authority its financial, legal and technical ability to continue
to provide the service, facilities and equipment set forth in this
Agreement.
(d) ; The Franchisee's proposal is reasonable to meet the future cable-
related community needs and interests, taking into account the cost
of meeting such needs and interests.
23.3 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.
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24. COMPLIANCE WITH THIS AGREEMENT
Franchisee shall not be excused from complying with any of the terms,
conditions, and provisions of this Agreement by any failure of the Issuing
Authority upon one or more occasions to insist upon or to seek compliance with
any such terms, conditions or provisions.
25. ACCEPTANCE
25.1 Franchisee expressly acknowledges that upon accepting the Franchise it
did so relying upon its own investigation and understanding of the power and
authority of the Issuing Authority in connection with the Cable System and this
Agreement. By the acceptance of the Franchise, Franchisee agrees that it will not
at any time in any court or other proceedings allege in any claim or, proceeding by
Franchisee against the Issuing Authority that any provision, condition or term of
this Agreement is unreasonable or arbitrary or that at the time of acceptance of this
Agreement by Franchisee, any such provision, condition or term was void or that
the Issuing Authority had no power or authority to make or enforce any such
provision, condition or term, except as to those matters preempted by Federal or
state law and not waived herein.
25.2 Franchisee, by acceptance of the Franchise, acknowledges that it has not
been induced to enter into the Franchise by any understanding, or promise or
other statement not expressed herein, whether oral or written, concerning any term
or condition of the Franchise regardless of whether such statement was made by
or on behalf of the Issuing Authority.
25.3 Franchisee further acknowledges by acceptance of the Franchise that it has
carefully read the terms and conditions of this Agreement and is willing to and
does accept all reasonable risks related to the provisions, terms ani conditions
herein.
26. REMOVAL OR ABANDONMENT OF CABLE SYSTEM
26.1 Following the Franchisee's commencement of service through its System,
the Franchisee shall promptly remove from the public streets whe ie its properties
are located all or any part of its aerial facilities or equipment and pedestals,
where one or more of the following enumerated conditions occurs:1
(a) The Franchisee ceases to operate its system for a continuous
period of six (6) months from the date of said occurrence;
(b) The Franchise is revoked pursuant to the provisions of Section 15
hereof; or
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(c) The City does not renew the franchise at the expiration of this
Agreement as provided in Section 23 hereof.
26.2 The City is herein and hereby authorized to enforce the provisions of this
Section 26 as hereinafter provided:
(a) The City shall notify the Franchisee in writing of any occurrence
provided for in this Section. Within one hundred eighty (180) calendar days
following receipt of said notice, the Franchisee shall either remove from the
streets of the city over which its properties are located all of said properties or
shall sell all of its facilities and equipment, unless otherwise authorized and
permitted by the City.
(b) The City may declare abandoned any property of the Franchisee
remaining in place over the streets of the City one hundred eighty-one (181)
calendar days after notification as hereinabove provided, and thel same shall be
considered permanently abandoned property unless the City extends the time for
removal of said property for good cause shown.
26.3 Any aerial property abandoned by the Franchisee shall become the
property of the City, and the Franchisee agrees to execute and deliver an
instrument in writing transferring its ownership interest in any such property to
the City, provided that any notice given the Franchisee by the City as provided in
this Section 26 shall be deemed notice to any other persons claiming interest in
said property of the Franchisee, and said persons shall be subject to all the
provisions hereinbefore provided.
27. FRANCHISE FEE PREPAYMENT
In recognition of the fact that a substantial franchise fee prepayment was
required of the incumbent cable operator's predecessor in consideration of the
renewal of the initial franchise grant before expiration of its term, Franchisee
shall negotiate a franchise fee prepayment or comparable investment during the
fifteenth year of the term of this Agreement. Such negotiations will take into
account such matters as the term of any extension or renewal negotiated in
connection with such discussions, the market share then enjoyed by Franchisee
and other factors deemed appropriate by both parties. Franchisee and Issuing
Authority agree that the benefit to the City of the franchise fee prepayment was
$235,362. in 1985 - 1990 dollars based upon the City's treasury pool rate. An
inflationary factor shall be applied to this sum at the time of negotiation.
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28. ENTIRE AGREEMENT
This Agreement and the documents and Exhibits that are referred to in
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 no representations or other
agreements among the parties in connection with the subject matter of this
Agreement, except as specifically set forth herein. No amendment, modification,
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound by it. 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.
IN WITNESS THEREOF, the parties have signed below, effective as of
the Effective Date, by their duly authorized representatives.
• y of Elg Ameritech New Media, Inc.
BY: %tit At By: 17:6M/1/177- --
Its: -=-1\ C.r, � Its: V i— j''.yy c-2
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EXHIBIT 7.1 - CONSTRUCTION SCHEDULE
Construction will be completed twenty-four (24) months after commencement of
construction.
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EXHIBIT 8 - AMERITECH NEW MEDIA ARCHITECTURE
The distribution network architecture is hierarchical, consisting of three
primary levels of geographic distribution. In order of the number of
subscribers supported these levels are: The Video Operations Center
(VOC), the Video Serving Office (VSO) and the Video End Office (VEO).
Each office in the hierarchy is capable of providing the functions of the
lower offices in the hierarchy (e.g., a VOC is also a VSO and VEO).
A VOC serves a metropolitan area. Control and management of the
Ameritech New Media (ANM) distribution network are performed at the
VOC. The VOC is the primary entry point for programming to the ANM
network. Programming information for the metro serving area is collected
and formatted for transport over the ANM distribution network at the VOC.
The VOC is also the connection point for the Integrated Network
Management System (INMS) to the Management and Support Network
(MSN). The MSN is a separate network used to manage and control
elements in the network.
Information received at the VOC is transported to VSOs via a fault tolerant
fiber optic network called the Metropolitan Video Transport System
(MVTS). The MVTS is designed for cost effective, one-way distribution of
digitized video/audio signals to multiple VSDs. The VOC and VSOs are
connected by fiber paths in a redundant architecture to provide reliable
delivery of video/audio signals. The MVTS consists of multiplexers and
demultiplexers. Multiplexers located at the VOC are used to combine and
convert incoming analog video/audio signals to a digital fo mat to be
distributed downstream to the VSOs via fiber optic cable. Demultiplexers
located at each VSO split the multiplexed video/audio signals into
separate video/audio signals.
Several VSOs are associated with a VOC within the ANM Architecture.
Each VSO is capable of distributing video/audio services to communities
consisting of 50,000 to 200,000 homes. At the VSO, the incoming digital
signals are passed through an optical splitter which forwards one set of
the incoming signals in their original digital form to the next VSO over the
MVTS, and sends the other set of signals to MVTS demultiplexers. The
demultiplexers convert the optical signals to electrical signals and strips
off up to 94 analog channels from the VOC for distribution to the VSO
serving area. Text and data are inserted into the video/audio signals at
the VSO. VSOs can also insert locally originated channels for delivery to
only their serving area.
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The VSO transports information to the VEOs via an analog fiber system
called the Analog Video Transport System (AVTS). The AVTS is
optimized for one-way delivery of Radio Frequency (RF) video/audio
signals. A VEO's analog channels are received from the VSO in three
distinct groupings of 40 channels, 30 channels, and 40 channels. To
improve link performance and reach of the system, these groupings are
based on the spectrum distribution between the range of 54 to 750 MHz.
Once grouped, the signals are converted from electrical to optical signals
for transport over three fibers in the AVTS fiber network.
A typical VEO is designed to serve from 16,000 - 30,000 households. The
VEO receives the three optical signals from the VSO, converts them into
electrical signals, filters and combines the signals into one signal, and
then converts the combined signal into an optical format for distribution to
the consumers via the Hybrid Fiber Coaxial Cable (HFC) network. Each
VEO also receives the upstream signaling information from the consumer
subscriber terminals (STs) via optical fiber from the nodes converts the
information into electrical signals, and then, sends the signals to the VOC.
VEO subscribers are grouped into nodes that are arranged
geographically. A typical node serves approximately 500 i ouseholds.
From each node, coaxial cable is used to deliver all information streams
down to subscribers and carry upstream communication back to the node.
At the neighborhood nodes, the downstream analog channels are
received and sent over coaxial cable to the STs located at the consumer
premises. The HFC network uses bi-directional amplifiers in the outside
plant to maintain appropriate signal levels for two-way communication and
the video/audio transmission to subscribers.
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AMC /DMC Network Architecture
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(logical view) AVTS
VEO VSO/ VEO VEO
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VEO
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AVTS Aootog Video Transport System
HFC — - O/E Opoul/Elrc ascot
MSN Management Support Netuok
At a pedestal or pole near the consumer, a port on a coaxial cable tap is
used to connect a coaxial drop cable from the coaxial distribution network
to the STs. The system also contains power and battery back-up to
support the active elements of the hybrid fiber coax plant. Through the
use of duplex filters, information can be sent downstream, `for video/audio
and other services, as well as upstream from the ST. A transponder
provides the ISX node elements with a communication path back to the
VOC for the purpose of management via an FSK modem. Another
transponder provides the power supply with a communication path. Both
transponders transmit management information upstream.
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AMC HFC
VEO — ISX Node t
Dipkz Si-Directional
Filter
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Fiber _' Opp Coax '• Q.'
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Fiber (ISX) a4 =Optical 'Transponder
0/Ej Ranrmlttet A$ To Subr<riben
a.
QUAD Rmirer \ —^ / i j Set Top
i$
Ts
Transponder
0
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• Z from other nodes •
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Dipkz 111-Directional
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FiberFilter
I:N Optical oil optkalrr Coax
ar
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(ISX) •n 1y L/C opdrJ (Transponder 11
To Subscribers
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.
Upstream signals 11
from other nodes
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Subscriber RF Interface
The subscriber RF interface is originated at a network ground block that is
placed at the subscriber's location via the Network Interface Unit (NIU).
The connection point to the ANM network is the subscriber side of the
ground block. This connection point has the following physical
characteristics:
Item Specification
Connector Type Female "F"
Nominal Center
Conductor Diameter(In) 0.032 to 0.04
Thread Type 3/8"-32-2A
Impedance (Q) 75 (Nominal)
The quality and level of the downstream (forward path) RF electrical
signal provided at the ground block is dependent on the n i tuber of
amplifiers in cascade and the distance of the subscriber from the tap
(improving with decreased distance). In all instances the qualityland level
of the downstream (forward path) RF electrical path at the ground block
meets or exceeds the specifications listed below:
Item Specification
Frequency Range (MHz) Forward Path 54 to 750*
Frequency Range (MHz) Reverse Path I 5 to 40
Maximum Visual Carrier Level Difference [after 30m 14.0
of Drop Cable] (dB)
In Channel Frequency Response [-0.5 to
3.75 MHz Relative to Visual Carrier] (dB) ±2.0
Minimum Signal Level per Visual Carrier @
Subscriber Terminal (dBmV) +0.0
Minimum Visual Carrier to Noise (dB) 43.0
Maximum Composite Triple Beat (dBc) I -51.0**
Maximum Composite Second Order (dBc) I-51.0**
Maximum Hum Modulation of Visual Carrier(%) I 3.0
Modulation Format NTSC, AM-VSB
• The initial service offering will be carried in the 54 to 750 MHz frequency range. However, with
upgrades in distribution equipment,that spectrum can be expanded to 1 GHz and beyond as driven
by market demand.
• Modulated Carriers
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Subscriber Coaxial Components
The performance of the subscriber indoor coaxial components is very
important to the quality of the video service. To that end, ANM
recommends the following characteristics for those components:
Coaxial Cable: The coaxial cable used inside the house is a RG-
6 cable with a foil and braid structure with a minimum of 60%
braiding. An RG-59 cable can also be used, but will introduce
higher loss than the RG-6 design. All cable shall have a 75 ohm
impedance.
Splitters: Splitters shall be 75 ohm impedance, be bi-directional,
have a low loss, have a minimum return loss of 12.0 dB, and have
a minimal rating to 750 MHz (1 GHz is preferred).
Connectors: Connectors shall be "F" type with a 75 ohm
impedance, have a low loss, and be of a design that provides good
connectivity with the shield of the coaxial cable while not crushing
the cable itself.
Indoor Amplifiers: Indoor amplifiers shall be bi-directional with a
passband of 54 to 750 MHz (54 to 1000 MHz is preferred) in the
forward path, and minimally 5 to 40 in the reverse path. They shall
have a minimum return loss of 12.0 dB, have a low noise figure (10
dB), and have a 75 ohm impedance.
The ANM Architecture is designed using state-of-the art electronics
technology to deliver video information with the least possible amount of
signal degradation and yet be economically viable. In addition, the ANM
Architecture is flexible enough to integrate future technology advances
in order to provide superior levels of service to the consumer.
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EXHIBIT 11.1
CUSTOMER SERVICE OBLIGATIONS
1. OFFICE HOURS AND TELEPHONE AVAILABILITY
a) Franchisee will maintain a local, toll-free or collect call telephone
access line which will be available to its customers twenty-four (24)
hours a day, seven (7) days a week.
i) Trained representatives will be available to respond to
customer telephone inquiries during normal business hours.
ii) After normal business hours, the access line may be
answered by a service or an automated response system,
including an answering machine. Inquiries received after
normal business hours may be responded to by a trained
representative on the next business day.
b) Under normal operating conditions, telephone answer time by a
customer representative, including wait time, shall riot exceed thirty
(30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds.
These standards shall be met no less than ninety percent (90%) of
the time under normal operating conditions, measured on a
quarterly basis.
c) Franchisee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering
standards above unless a historical record of complaints indicates
a clear failure to comply.
d) Under normal operating conditions, the customer will receive a
busy signal less than three percent (3%) of the time
e) Bill payment locations will be open at least during normal business
hours and will be conveniently located.
2. INSTALLATIONS, OUTAGES AND SERVICE CALLS. Under normal
operating conditions, each of the following five (5) standards will be met
no less than ninety-five percent (95%) of the time measured on a quarterly
basis:
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a) Standard Installations will be performed within seven (7) business
days after an order has been placed.
b) Excluding conditions beyond its control, Franchisee will begin
working on "service interruptions" promptly and in To event later
than twenty-four (24) hours after the interruption becomes known.
Franchisee must begin actions to correct other service problems
the next business day after notification of the service problem.
c) The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or,
at maximum, a four-hour time block during normal business hours.
(Franchisee may schedule service calls and other inrstallation
activities outside of normal business hours for the express
convenience of the customer.)
d) Franchisee may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled
appointment.
e) If a representative is running late for an appointment with a
customer and will not be able to keep the appointment as
scheduled, the customer will be contacted. The appointment will
be rescheduled, as necessary, at a time which is convenient for the
customer.
3. COMMUNICATIONS BETWEEN FRANCHISEE AND CABLE
SUBSCRIBERS
a) Notifications to subscribers
i) Franchisee shall provide written information on each of the
following areas at the time of installation of service, at least
annually to all subscribers, and at any time upon request:
a) Products and services offered;
b) Prices and options for programming services and
conditions of subscription to programming and other
services;
c) Installation and service maintenance policies;
d) Instructions on how to use the cable service;
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e) Channel positions of programming carried on the
system; and
f) Billing and complaint procedures, including the
address and telephone number of Issuing Authority's
cable office.
b) Customers will be notified of any changes in rates, programming
services or channel positions as soon as possible in writing. Notice
must be given to subscribers a minimum of thirty (30) days in
advance of such changes if the change is within thep control of
Franchisee. In addition, Franchisee shall notify subscribers thirty
(30) days in advance of any significant changes in the other
information required by paragraph (c)(3)(i)(A) of this section.
Notwithstanding any other provision of Part 76, Franchisee shall
not be required to provide prior notice of any rate change that is the
result of a regulatory fee, franchise fee, or any other fee, tax,
assessment, or charge of any kind imposed by any Federal
agency, State, or Issuing Authority on the transaction between the
operator and the subscriber.
c) Billing
i) Bills will be clear, concise and understandable. Bills must be
fully itemized, with itemizations including, but not limited to,
basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
ii) In case of a billing dispute, Franchisee must respond to a
written complaint from a customer within thirty (30) days.
d) Refunds. Refund checks will be issued promptly, but not later than
either:
i) The customer's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier , or
ii) The return of the equipment su lied byFranchisee if
supplied
service is terminated.
e) Credits for service will be issued no later than the customer's next
billing cycle following the determination that a credit is warranted.
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4. DEFINITIONS
a) Normal Business Hours. The term "normal business hours" means
those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week
and/or some weekend hours.
b) Normal Operating Conditions. The term "normal operating
conditions" means those service conditions which are within the
control of Franchisee. Those conditions which 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 which are ordinarily 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 upgrade of the cable system.
c) Service Interruption. The term "service interruption" means the loss
of picture or sound on one or more cable channels.
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EXHIBIT 13.3
LIST OF LOCATIONS
Elgin Community College 1700 Spartan Drive
Fire Station #2 250 Big Timber Road
Fire Station #5 804 Villa
Fire Station #1 550 Summit
Larkin High School 1475 'Larkin
Abbot Jr. High School 949 Van Street
Ellis Jr. High 225 S. Liberty
Larsen Jr. High 665 Dundee
Kimball Jr. High 451 N. McLean
Channing Elementary School 63 S. 1Channing
Garfield Elementary School 420 May
Gifford Elementary School 240 SI Clifton
Washington Elementary School 819 W. Chicago
Administration Building District U-46 4 S. Gifford
Grant Elementary School 265 NI Jackson
McKinley Elementary School 258 Lovell
Sheridan Elementary School 510 F rIanklin
Lowrie Elementary School 264 Oak
Century Oaks Elementary School 1235 Braebum
Lord's Park Elementary School 323 Waverly
Hillcrest Elementary School 80 N. Airlite
Highland Elementary School 1221 W. Highland
Elgin High School 1200 Maroon
Illinois Park Elementary School 1350 Wing Street
Administration Building /Adult Education School Bldg. 355 E. Chicago
Huff Elementary School 801 Hastings
P.A.D.S. 316 Douglas
Coleman Elementary School 1220 Dundee
Police Department 151 Douglas
Fire Station #3 2455 Royal
Fire Station #4 599 McLean
City Hall 150 Dexter
Gail Borden Public Library 200 N. Grove
Hemmens Auditorium 150 Dexter Court
Elgin Public Museum Academy 350 Pa'rk Street
Public Works 35 Ann Street
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