HomeMy WebLinkAbout0497 TCI Cable Franchise 1998U
SUMMARY OF PROPOSED ORDINANCE 497
FOR THE CITY OF CHUBBUCK, IDAHO
On October 13, 1998, the Chubbuck City Council approved the first reading of the
proposed franchise ordinance with TCI Cablevision of Idaho, Inc. The full text of the ordinance
will be mailed upon request or will be available for review at the Chubbuck City Office, 5160
Yellowstone, Chubbuck, ID 83202.
The proposed ordinance would repeal former Cable TV Ordinance No. 262 and would
provide for a nonexclusive franchise for the operation of cable communication systems to TCI
Cablevision of Idaho, Inc. for a period of 15 years. The ordinance provides definitions,
establishes the franchise area as within the boundaries of the City of Chubbuck and provides for a
review of the franchise every three years. The ordinance provides for regulations for the use of
public rights-of-way and restoration thereof, provides authority to trim trees, move buildings and
other such items, provides specifications for the system, requires installation to public schools,
provides for required categories for programming and local access channel, including government
and community access, provides for a capital contribution through payments that are reimbursed
by the subscribers, provides for access support of $ .30, provides for reports, regulatory
provisions and remedies, land extension policies and provides for a 5% franchise fee based upon
the annual gross revenues from subscribers within the City of Chubbuck.
The ordinance provides verification and auditing procedures and miscellaneous provisions
including indemnity, severability and acceptance provisions.
This ordinance shall be in full force and effect 30 days after its passage, approval, and
publication as provided by law provided that the ordinance shall be null and void if acceptance is
not made within 60 days after publication of the ordinance.
Ron Conlin, City Clerk for Chubbuck, ID
Statement of Adequacy
A summary of the proposed franchise ordinance with TCI Cablevision of Idaho, Inc. and
the City of Chubbuck is a true and correct summary and provides adequate notice to the public
pursuant to Idaho Code §§ 50-329 and 50-901(a).
Tho s I Holm buck City Attorney
SUMMARY - Nage I
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CITY OF CHUBBUCK, ORDINANCE NO. 497
AN ORDINANCE OF THE CITY OF CHUBBUCK, A MUNICIPAL CORPORATION
OF IDAHO, REPEALING FORMER CABLE TV ORDINANCE NUMBER 262 AND
ENACTING A NEW CABLE TV FRANCHISE ORDINANCE; PROVIDING FOR A
NON-EXCLUSIVE FRANCHISE FOR THE OPERATION OF CABLE
COMMUNICATIONS SYSTEMS TO TCI CABLEVISION OF IDAHO, INC. FOR A
PERIOD OF FIFTEEN YEARS; PROVIDING DEFINITIONS, ESTABLISHING THE
FRANCHISE AREA; PROVIDING FOR REVIEW OF THE FRANCHISE EVERY
THREE YEARS; PROVIDING REGULATIONS FOR THE USE OF PUBLIC
RIGHTS-OF-WAY AND RESTORATION THEREOF; PROVIDING AUTHORITY TO
TRIM TREES, MOVE BUILDINGS, AND THE LIKE; PROVIDING SYSTEM
SPECIFICATIONS; REQUIRING INSTALLATIONS AT PUBLIC SCHOOLS;
PROVIDING FOR REQUIRED CATEGORIES OF PROGRAMMING; PROVIDING
FOR LOCAL ACCESS CHANNELS TO INCLUDE CHANNELS FOR
EDUCATIONAL ACCESS PROGRAMMING, GOVERNMENT ACCESS
PROGRAMMING, AND FOR COMMUNITY ACCESS PROGRAMMING;
PROVIDING FOR AN CAPITAL CONTRIBUTION FROM TCI THROUGH
PAYMENTS; PROVIDING FOR SPECIFIC AMOUNTS TO BE BILLED TO
SUBSCRIBERS TO RECOUP SUCH CAPITAL CONTRIBUTIONS;
ESTABLISHING REGULATORY PROVISIONS AND REMEDIES FOR
VIOLATIONS; PROVIDING FOR MONTHLY, ANNUAL, AND OTHER REPORTS;
ESTABLISHING A LINE EXTENSION POLICY; PROVIDING FOR FRANCHISE
FEES TO BE AN AMOUNT EQUAL TO FIVE PERCENT OF THE ANNUAL GROSS
REVENUES AND PROVIDING FOR NEGOTIATIONS FOR INCREASES IN THE
EVENT THE FEDERAL CEILING FOR FEES IS ALTERED, PROVIDING
VERIFICATION AND AUDITING PROCEDURES, ESTABLISHING VARIOUS
MISCELLANEOUS PROVISIONS INCLUDING INDEMNITY, SEVERABILITY,
AND ACCEPTANCE PROCEDURES; PROVIDING THAT THIS ORDINANCE
SHALL BE IN FULL FORCE AND EFFECT THIRTY DAYS AFTER ITS PASSAGE,
APPROVAL, AND PUBLICATION ACCORDING TO LAW; PROVIDING THAT
THIS ORDINANCE SHALL BE NULL AND VOID IN THE EVENT ACCEPTANCE
IS NOT MADE WITHIN 60 DAYS AFTER PUBLICATION OF THIS ORDINANCE.
WHEREAS, the City of Chubbuck, and TCI Cablevision of Idaho, Inc. have beea
negotiating a new franchise agreement in anticipation of the termination of the current
agreement; and
WHEREAS, the parties have mutually agreed on terms of the franchise ordinance
and the City Council deems it appropriate to enact said franchise ordinance at this time;
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NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND COUNCIL
OF THE CITY OF CHUBBUCK THAT A NON-EXCLUSIVE FRANCHISE FOR
CABLE COMMUNICATIONS SYSTEMS BE HEREBY GRANTED AS FOLLOWS:
FRANCAISE ORDINANCE
SECTION 1
DEFINITIONS
For the purpose of this Ordinance, the following terms, phrases, words, and abbreviations
shall have the meanings ascribed to them below.
A. "Access Channels" shall mean channels to be used for educational
purposes and by governmental and public agencies and/or their
representatives (commonly referred to as "PEG Channels").
B. "Basic Cable Service" is the lowest priced tier of service that
includes the retransmission of local broadcast television signals and any
Access Channels for public, education, and governmental use.
C. "Cable Act" collectively means the Cable Communications Policy
Act of 1984 and the Cable Television Consumer Protection and
Competition Act of 1992, as amended by the Telecommunications Act of
1996.
D. "Cable Services" shall mean (A) the one-way transmission to
Subscribers of (i) video programming, or (ii) other programming service,
and (B) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
E. "Cable System(s)" shall mean a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within a
community, but such term does not include (A) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; (B) a facility that serves Subscribers without using any Public
Way; (C) a facility of a common carrier which is subject, in whole or in
part, to the provisions of title 11 of the Cable Act, except that such facility
shall be considered a Cable System (other than for purposes of Section
621(c)) to the extent such facility is used in transmission of video
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programming directly. to Subscribers unless the extent of such use is solely
to provide interactive on -demand services; (D) an open video system that
complies with Section 653 of title VI of the Cable Act; or (E) any facilities
of any electric utility used solely for operating its electric utility system.
F. "City" shall mean the City of Chubbuck, State of Idaho, a municipal
corporation.
G. "Designated Provider" shall be the entity selected by City to
provide Access Channel support, to provide technical audits of Grantee
and to provide such other services.
H. "FCC" means Federal Communications Commission, or successor
governmental entity thereto.
I. "Franchise" shall mean the initial authorization, or renewal thereof,
issued by the Franchising Authority, whether such authorization is
designated as ? franchise, permit, license, resolution., contract, certificate,
or otherwise, which authorizes construction and operation of the Cable
System.
J. "Franchising Authority" means the City of Chubbuck, or the lawful
successor, transferee, or assignee thereof.
K. "Franchise Ordinance" means this Ordinance, which outlines terms
and responsibilities of the Franchise granted by the City to Grantee.
L. "Grantee" means TCI Cablevision of Idaho, Inc., or the lawful
successor, transferee, or assignee thereof.
M. "Gross Annual Revenues" means any and all compensation in
whatever form, grant, subsidy, exchange or otherwise, directly or indirectly
received by the Grantee as fully explained in Section 11.1 of this Franchise
Agreement.
N. 'Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
O. '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
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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
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 entitled the Franchising Authority and the Grantee to the
use thereof for the purposes of installing and operating the Grantee's
System over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments, and other property as may
be ordinarily necessary and pertinent to the System.
P. "Service Area" means the present municipal boundaries of the
Franchising Authority, and shall include any additions thereto by
annexation or other legal means.
Q. "Subscriber" means a person or user of the Cable System who
lawfully receives Cable Services or other services with Grantee's express
permission.
SECTION 2
FRANCHISE AGREEMENT
2.1 GRANT. The Franchising Authority hereby grants to the Grantee a nonexclusive
Franchise which authorizes the Grantee to construct and operate a Cable System 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 System. This
Franchise shall constitute both a right and obligation to provide the services of a Cable
System as required by the provisions of this Franchise Ordinance.
2.2 FRANCHISE TERM. The Franchise granted hereunder shall be for an initial
term of fifteen (1 S) years commencing of the effective date of the Franchise as set forth
below, unless otherwise lawfully terminated in accordance with the terms of this
Franchise.
2.3 FRANCHISE AREA. The franchise area shall be that area within the present or
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future corporate limits of the City. Service shall be made available to all Persons whose
homes or businesses are within the line extension policy outlined in this Franchise
Ordinance and to such further homes or businesses as agreed to by Grantee.
2.4 FRANCHISE NON-EXCLUSIVE. The Franchise granted herein shall be non-
exclusive. The Franchising Authority specifically reserves the right to grant, at any time,
such additional franchises for a Cable System as it deems appropriate. 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 public rights-of-way for the purpose of constructing or operating a Cable System or
providing Cable Service to any part of the Service Area, the material provisions thereof
shall be 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. The Franchising Authority shall not authorize or permit a System to
operate within the Service Area on terms or conditions more favorable or less burdensome
to such operator than those applied to the Grantee pursuant to this Franchise.
2.5 FRANCE; ISE RENEWAL OR NEW FRANCHISE. The Franchising
Authority may establish appropriate requirements for new Franchises or Franchise
renewals consistent with federal, state and local law, including provisions of Section 626
of the Cable Act, as amended.
2.6 PERIODIC PUBLIC REVIEW OF FRANCHISE. The Franchising Authority
may periodically, during the term of the Franchise conduct a public review of the
Franchise, but such review shall not occur more often then every three years. The purpose
of the review shall be to ensure, with the benefit of full opportunity for public comment,
that the Grantee continues to effectively serve the public in accordance with the Franchise
Ordinance and cable law and regulations. If such review is undertaken, both the
Franchising Authority and the Grantee agree to make a full and good faith effort to
participate in the review in a manner which accomplishes this end. During the review
process, the Franchising Authority will generate the appropriate reports to document
Grantee's compliance.
Matters appropriate for discussion at the public review will include, but will not be limited
to the following:
a. Annual technical evaluations done by the Designated Provider and
Grantee in cooperation. Tests required by FCC rules part 76 may be the
basis for such evaluations, but the Franchising Authority has no authority,
pursuant to federal law, to enforce compliance with such standards.
b. Quarterly financial reports provided by Grantee with franchise
payments.
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C. Annual financial reports provided by Grantee.
d. Quarterly basic subscriber statistics provided by Grantee.
e. Review of PEG access support, as set forth in this Franchise
Ordinance.
f. Current map review.
g. Customer service data review, including public hearing for
customer participation in the review process.
2.7 TRANSFER OF OWNERSHIP. The Grantee's right, title, or interest in the
Franchise shall not be sold, transferred, assigned, or otherwise encumbered, without the
prior consent of the Franchising Authority, such consent not to be unreasonably withheld.
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 the Grant-ce in the
Franchise or Cable System in order to secure indebtedness. Within 30 days of receiving
the request for transfer, the Franchising Authority shall, in accordance with FCC rules and
regulations, notify the Grantee in writing of the information it requires to determine the
legal, financial and technical qualifications of the transferee. If the Franchising Authority
has not taken action on the Grantee's request for transfer within 120 days after receiving
such request, consent by the Franchising Authority shall be deemed given.
2.8 CHANGE IN CONTROL. Grantee shall promptly notify the Franchising
Authority of any actual or proposed change in, or transfer of, or acquisition by any other
party of, control of Grantee. The word "control" as used herein is not limited to major
stockholders but includes a rebuttable presumption that a transfer of control has occurred
shall arise upon the acquisition or accumulation by and Person or group of Persons of fifty
percent (50%) of the voting interest of the Grantee. The Franchising Authority's consent
to change in control shall not be unreasonably withheld.
2.9 RECEIVERSHIP, INSOLVENCY, BANKRUPTCY.
a. Subject to applicable state and federal law, the Franchising
Authority shall have the right to declare a forfeiture or otherwise revoke
the Franchise one hundred and eighty (180) days after the appointment of a
receiver, or trustee, to take over and conduct the business of Grantee,
whether in receivership, reorganization, bankruptcy, or other action or
proceeding, unless such receivership or trusteeship shall have vacated prior
to the expiration of said one hundred and eighty (180) days, or unless:
Within one hundred eighty (180) days after his
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election or appointment, such receiver or trustee shall have been
approved by the Franchising Authority and shall fully have
complied with all the provisions of this Franchise Ordinance and
remedied all defaults thereunder, and
2. Such receiver or trustee, within said one hundred
and eighty (180) days, shall have executed an agreement duly
approved by the Franchising Authority, as well as the court having
jurisdiction in the premises, whereby such receiver or trustee
assumes and agrees to be bound by each and every provision of this
Franchise Ordinance.
b. In addition to any rights set out elsewhere in this Franchise
Ordinance, the Franchising Authority reserves the right to declare a
forfeiture or otherwise revoke the Franchise, and all rights and privileges
pertaining thereto in the event that TCI Cablevision of Idaho, Inc., or TCI
West, Inc., becomes insolvent, unable to or unwilling to pay its debts as
they become due or is adjudged bankrupt.
2.10 EXPIRATION. Subject to applicable Federal law, upon expiration of the
Franchise, the Franchising Authority shall have the right, at its own election to:
a. Renew the Franchise, in accordance with applicable law;
b. Invite additional Franchise applications or proposals;
c. Terminate the Franchise without further action;
d. Take such other action as the Franchising Authority deems appropriate.
SECTION 3
OPERATION IN PUBLIC RIGHTS-OF-WAY
3.1 USE OF PUBLIC RIGHTS-OF-WAY. Grantee may, subject to the terms of
this Franchise Ordinance, erect, install, construct, repair, replace, reconstruct, and retain
in, on, over, under, upon, across, and along the Public Way within the Franchising
Authority such lines, cables, conductors, ducts, conduits, vaults, utility access covers,
amplifiers, appliances, pedestals, attachments, and other property and equipment as are
necessary and appurtenant to the operation of a Cable System within the Franchising
Authority.
3.2 CONSTRUCTION OR ALTERATION. Grantee shall in all cases comply with
all lawful City ordinances and regulations regarding the acquisition of permits and such
other items as may be reasonably required in order to construct, alter or maintain the
Cable System. Annually, Grantee shall provide information to the Franchising Authority
regarding any extensions or alterations to the Cable System.
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3.3 NON-INTERFERENCE. Grantee shall exert its best efforts to construct and
maintain a Cable System so as not to interfere with other use of Public Way. Grantee shall
make reasonable efforts to individually notify all residents affected by proposed
construction prior to commencement of that work where and when this is reasonably
possible.
3.4 CONSISTENCY WITH DESIGNATED USE. Notwithstanding the above
grant to use Public Way, no Public Way shall be used by Grantee if the Franchising
Authority, in its sole opinion, determines that such use is inconsistent with the terms,
conditions, or provisions, by which such Public Way was created or dedicated, or
presently used under State and local laws.
3.5 UNDERGROUNDING. Grantee shall be compliant with all City building codes,
policies and procedures pertaining to underground construction, as specified by the City
Engineer and the Building Department.
3.6 RESTORATION. In case of disturbance of any Public Way, paved area or public
improvement, Grantee shall, at its own cost and expense and in accordance with the
requirements of local law, to the extent such repair or replacement was made necessary as
a direct result of the operations of the Grantee, restore such Public Way, paved area or
public improvement to as good or better condition as existed before the work involving
such disturbance took place.
a. All requirements of this section pertaining to public property shall
also apply to the restoration of private easements and other private
property.
b. Grantee shall perform all restoration work promptly.
C. If Grantee fails, neglects or refuses to make restorations to such
Public Way, paved area or public improvements as required under this
section, then the Franchising Authority may do such work or cause it to be
done, and the cost thereof to the Franchising Authority shall be paid by
Grantee.
d. In any dispute over the adequacy of a restoration to such Public
Way, paved area or public improvement, the City Council or its designated
agent shall in its sole discretion make the final determination.
3.7 TRIMMING OF TREES AND SHRUBBERY. Grantee, with 24 hour notice to
the property owner, shall have the authority to trim trees upon and overhanging Public
Way, alleys, sidewalks, and Public Ways in the Service Area so as to prevent the branches
of such trees from coming into contact with the wires and cables of Grantee. The Grantee
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shall reasonably compensate the Franchising Authority for any damages caused by such
trimming or at its own costs and expense, reasonably replace all trees damaged as a result
of any construction of the Cable System undertaken by the Grantee.
3.8 RELOCATION. If during the term of the Franchise the Franchising Authority or
any government entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any Public Way or other public property;
or to construct, maintain, or repair any public improvement; or to replace, repair, install,
maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wireholding structure,
or other facility, including a facility used for the provision of utility or other services or
transportation of drainage, sewage or liquids, Grantee shall, upon request, except as
otherwise hereinafter provided, at no expense to the City except as provided for by law or
entitlement remove or relocate as necessary its poles, wires, cables, underground conduits,
vaults, pedestals, utility access covers and any other facilities which it has installed.
Any Person requesting Grantee to remove or relocate its facilities shall give
Grantee no less than forty-five (45) days advance written notice to Grantee advising
Grantee of the date or dates removal or relocation is to be undertaken, provided that, no
advance notice shall be required in emergencies or in cases where public health and safety
or property is immediately and imminently endangered.
If Grantee fails, neglects or refuses to remove or relocate its facilities as directed
by the Franchising Authority; or in emergencies or where public health and safety or
property is immediately and imminently endangered, the Franchising Authority may do
such work or cause it to be done, and the cost thereof to the Franchising Authority shall
be paid by Grantee. If Grantee fails, neglects, or refuses to remove or relocate its facilities
as directed by another franchisee or utility, that franchisee or utility may do such work or
cause it to be done, and if Grantee would have been liable for the cost of performing such
work reasonable costs thereof to the party performing the work or having the work
performed shall be paid by Grantee.
3.9 MOVEMENT OF BUILDINGS. Grantee shall, upon request by any Person
holding a building moving permit, franchise or other approval issued by the Franchising
Authority, temporarily remove, raise or lower its wire to permit the movement of
buildings. The expense of such removal, raising, or lowering shall be paid by the Person
requesting same, and Grantee shall be authorized to require such payment in advance.
The Franchising Authority shall require all building movers to provide not less than three
(3) business days written notice to Grantee to arrange for such temporary wire changes.
3.10 PERMITS. Grantee shall obtain and maintain any permit required by any federal
or state regulatory body, relating to the construction, maintenance and operation of the
system.
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3.11 SAFETY REOUIRENIENTS. Construction, installation, and maintenance of the
Cable System shall be performed in an orderly and workmanlike manner. All such work
shall be performed in substantial accordance with applicable FCC and other Federal, State,
and local regulations and the National Electric Safety Code. The Cable System shall not
unreasonably endanger or interfere with the safety of Persons or property in the Service
Area.
SECTION 4
SYSTEM DESIGN AND CAPACITY
4.1 AVAILABILITY OF SIGNALS AND EQUIPMENT. Grantee shall,
commencing with the effective date of this Franchise Ordinance, at a minimum:
a. Make available to subscribers all signals that are required to be
made available by the FCC or as federal law provides;
U Distribute, in color, aL' tele�isicn signals which are received in co,c.
U.
unless a substantial reason for noncompliance can be demonstrated;
C. Make available parental control or "lock -out" devices (audio and
visual) upon request by subscriber and at a reasonable charge. These
devices should provide parental discretion and control to prevent
unauthorized viewing of any premium channel or channels and, where
technically and practically feasible, non -premium channels as well;
4.2 SERVICE TO PUBLIC BUILDINGS. The Grantee shall, upon request, provide
without charge, one outlet of Basic Cable Service and expanded Basic Cable Service to
those Franchising Authority offices, fire station(s), police station(s), and public school
building(s) that are passed by its Cable System. The outlets of Basic Cable Service and
expanded Basic Cable Service shall not be used to distribute or sell services in or
throughout such buildings, nor shall such outlets be located in areas open to the public.
The Franchising Authority shall take. reasonable precautions to prevent any use of the
Grantee's Cable System in any manner that results in the inappropriate use thereof or any
loss or damage to the Cable System. The Grantee shall not be required to provide an
outlet to such buildings where the drop lines from the feeder cable to the said buildings or
premises exceeds 150 cable feet or unless the appropriate governmental entity agreed to
pay the incremental costs of such drop line in excess of 150 cable feet.
4.3 EMERGENCY ALERT CAPABILITY.
a. In accordance with and at the time required by the provisions of
FCC Regulations Part 11, subpart D, Section 11.51, and as such provisions
may from time to time be amended, the Grantee shall install, if it has not
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already done so, and maintain an Emergency Alert System (EAS) for use in
transmitting Emergency Act Notifications (EAN) and Emergency Act
Terminations (EAT) in local and state-wide situations as may be designated
to be an emergency by the Local Primary (LP), the State Primary (SP)
and/or the State Emergency Operations Center (SEDC), as those
authorities are identified and defined within FCC Reg. Section 11.18.
b. The Franchising Authority shall permit only appropriately trained
and authorized Persons to operate the EAS equipment and shall take
reasonable precautions to prevent any use of the Grantee's Cable System in
any manner that results in inappropriate use thereof, or any loss or damage
to the Cable System. Except to the extent expressly prohibited by law, the
Franchising Authority shall hold the Grantee, its employees, officers and
assigns harmless from any claims arising out of the emergency use of its
facilities by the Franchising Authority, including, but not limited to,
reasonable attorneys' fees and costs.
4.4 STANDBY POWER. Grantee shall, provide standby power generating capacity
at the Cable System hub site. Standby power system supplies must be sufficient to deal
with outages of at least two (2) hours. Systems maps shall show standby power locations
and shall be available for inspection on request by the Franchising Authority.
Requirements for standby power systems may be modified at the request of the Grantee as
accepted industry design parameters for system architecture changes.
SECTION 5
PROGRAMMING AND SERVICES
5.1 CATEGORIES OF PROGRAMMING SERVICES. To the extent that Federal
law requires, Grantee shall provide broad categories of video programming substantially
equal to or an improvement upon what is provided at the time this Franchise is granted.
Video programming in at least the following broad general categories shall be provided:
a. News and information;
b. Sports;
c. General entertainment;
d. Arts, culture, and performing arts
e. Children and family;
f. Foreign language/ethnic programming;
g. Public, educational and governmental access;
h. Movies
i. Religious programming
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5.2 CHANGES IN VIDEO PROGRAMMING SERVICES. No category of
programming as identified above may be deleted by Grantee without Franchising
Authority approval provided that such approval does not constitute, in effect, direct or
indirect regulation of rates outside of that provided for and in accordance with federal law.
Approval of such deletion shall not be unreasonably withheld. Grantee shall provide
written notice to the Franchising Authority and to subscribers of any proposed deletions,
additions or rearrangements of individual programming services at least thirty (30) days in
advance unless exempt from doing so by federal law or regulation. Franchising Authority
reserves the right to regulate to the fullest extent permitted by law to ensure maintenance
of the quality of service provided that any action taken pursuant to this section does not
impair the rights of the Grantee under this Franchise.
5.3 BASIS FOR PROGRAMMING DECISIONS. Subject to the Subscriber
Privacy provisions of the Cable Act, Grantee shall make available to the Franchising
Authority upon request all local documents and records pertaining to individual requests,
inquiries and complaints regarding specific programs and types of programming. A
general explanation of local programming policies guiding Grantee's programming
decisions shall be pt ovided as a part of each year's annual report.
SECTION 6
PUBLIC. EDUCATIONAL AND GOVERNMENTAL ACCESS
6.1 ACCESS CHANNELS.
a. Grantee shall provide one full time channel on the Basic Cable
Service tier for educational access programming; one full time channel on
the Basic Cable Service tier for governmental access programming; and full
time use of Channel 12 for community access programming. The Grantee
agrees to retain these channels in their current channel position as it exists
at the time of approval by the Franchising Authority of this Franchise,
provided that the Grantee is not required to relocate such channel as a
result of federal requirements or by contract or if relocation of such
channel is necessitated by technical or engineering consideration. The
Access Channels shall be wholly controlled, supported, and managed by the
Chubbuck City Council or Designated Provider, provided however the
Chubbuck City Council may abstain from such designation in favor of any
designation made by the City of Pocatello.
b. Franchising Authority may contract with a Designated Provider to
provide public access and government access programming. Grantee shall
provide the public access and government Access Channels through those
like channels provided the City of Pocatello pursuant to Grantee's
Franchise Ordinance with the City of Pocatello.
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6.2 SUPPORT FOR ACCESS CHANNELS.
a. CAPITAL CONTRIBUTION. Grantee shall provide a Capital
Contribution to Franchising Authority which Franchising Authority intends
to provide to its Designated Provider for Access Channel equipment. A
portion of the amount payable shall be a one time payment of $6,500
payable to the Franchising Authority within 90 days of the acceptance of
this Franchise by Grantee. In order to recover this portion of the Capital
Contribution, Grantee may increase the monthly bill of each consumer in
the Service Area by an amount not to exceed twelve ($.12) cents and
equal to $6,500, amortized over eight years, plus interest which represents
the Grantee's cost of borrowing, divided by the total number of consumers
divided by ninety-six (96) months.
b. ACCESS SUPPORT. Grantee will collect thirty (30) cents per
subscriber, per month for the term of this Franchise as additional Capital
Contribuiiun to L -c paid to the Franchising Authority for access support.
Subject to paragraph 6.2c, the sum shall be paid to Franchising Authority
within thirty (30) days after the close of each quarter or, at the direction of
the Franchising Authority, may be paid directly to the Designated Provider.
If the Franchising Authority should ever discontinue its commitment to
Access Channels, then the collection of ongoing access support for Access
Channels from Subscribers and payments on behalf of the Grantee shall
cease.
C. TERMS. For purposes of this section, consumers of bulk rate
service shall be calculated by dividing the annual bulk rate charge by the
annual subscription rate for individual households corresponding to the
level for service received by the bulk rate Subscriber. The Franchising
Authority agrees that all amounts due to the Franchising Authority by the
Grantee as the Capital Contribution may be added to the price of Cable
Services, prorated monthly, and collected from the Grantee's Subscribers
as "external costs," as such term is used in 47 C.F.R. 76.922. In addition,
all amounts paid as the Capital Contribution may be separately stated on
Subscribers' bills as permitted in 47 C.F.R. %6.985. The Capital
Contribution will be payable by Grantee to the Franchising Authority after
(a) the approval of the Franchising Authority, if required, to the inclusion
of the Capital Contribution on Subscribers' bills including any required
approval pursuant to 47 C.F.R. 76.933; (b) notice to Grantee's
Subscribers of the inclusion; and, (c) with the exception of the one time
initial $6,500 payment, the collection of the Capital Contribution by the
Grantee from its Subscribers.
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d. SIGNAL QUALITY. The Grantee will assure that signal quality
for all Access Channels will meet FCC technical standards.
e. RETURN TRANSPORT LOCATIONS. In addition to the
above, and reflecting both the Franchising Authority's and Grantee's
abiding commitment to locally produced programming, Grantee will
provide return transport locations, as determined by the Franchising
Authority and the Grantee, subject to the approval of the applicable
administrative authorities of those sites, details to be set out in Appendix
A.
1. Grantee will absorb the engineering and
constructions costs of the return transport locations.
2. Designated Provider's staff will be able to go live
from one location at a time for government access and for other
public access.
3. The Grantee will be responsible for demodulation
and installation of switching equipment at the head end.
4. The return transport lines will be constructed and
information provided to Designated Provider by Grantee to
maximize video and audio signal quality.
5. If the managers of the sites listed in Appendix A do
not wish to participate as a return transport location, no other sites
will be proposed until after the third year this ordinance is in effect.
6. Grantee's costs associated with return transport
lines, including those costs associated with the modulation
equipment, engineering and construction, shall be reflected in
consumer costs as costs of obtaining Basic Cable Service
programming and will not be passed through to consumers.
6.3 CONTRIBUTION NOT FEE. Under the terms agreed to herein, all Capital
Contributions shall not be counted as franchise fees, nor as expenditures in lieu of
franchise fees.
SECTION 7
REGULATORY PROVISIONS
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7.1 INTENT. The Franchising Authority shall have the right to administer and
regulate activities under the Franchise up to the full extent permitted by applicable law.
7.2 DELEGATION OF AUTHORITY TO REGULATE. The Franchising
Authority reserves the right to delegate its regulatory authority wholly or in part to agents
of the Franchising Authority, including but not limited to an agency which may be formed
to regulate several Franchising Authority Franchises.
7.3 AREAS OF ADMINISTRATIVE AUTHORITY. In addition to reserving its
right to exercise all regulatory authority concerning the Franchise, the Franchising
Authority shall have the right to exercise administrative authority in areas including but
not limited to the following:
a. Administering and enforcing the provisions of this Franchise
Ordinance, including the adoption of administrative rules and regulations to
carry out this responsibility.
b. Coordination of the operation of public, government and
educational channels.
C. Coordinating Grantee's technical, programming and operational
assistance and support to City departments.
d. Recommending long-range cable communications policy for the
franchise area.
e. Disbursing and utilizing franchise revenues paid to the Franchising
Authority.
f. Administering the regulation of rates, to the extent permitted by
law.
Grantee shall cooperate fully in facilitating the Franchising Authority's discharge of its
administrative authority.
7.4 REGULATION OF RATES AND CHARGES.
The Franchising Authority expressly reserves the right to regulate Grantee's rates and
charges in accordance with applicable law as such law may provide during the term of the
Franchise.
7.5 REMEDIES FOR FRANCHISE VIOLATIONS. The Franchising Authority,
subject to the provisions of Sections 7.6 and 7.7, has the right to assert the following
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remedies in the event Grantee violates any provision of this Franchise Ordinance:
a. Drawing upon or foreclosing all or any part of any security
provided under this Franchise, including without limitation the written
guarantee in lieu of bond which the Franchising Authority may require
under Section 11.3 provided, however, such drawing or foreclosure shall
be only in such a manner and in such amount as the Franchising Authority
reasonably determines is necessary to remedy the default. Should the
Franchising Authority take this action, Grantee shall be responsible for all
direct and actual costs related to such action, including, but limited to, legal
and administrative costs;
b. Commence an action at law for monetary damages or seek other
equitable relief,
C. In the case of a substantial default of a material provision of this
Franchise Ordinance, declare the Franchise to be revoked;
d. Seek specific performance of any provisions, which reasonably
lends itself to such remedy, as an alternative to damages.
In determining which remedy or remedies for Grantee's violation are appropriate, the
Franchising Authority shall take into consideration the nature and extent of the violation,
the remedy needed to prevent such violations in the future, whether Grantee has a history
of previous violations of the same or similar kind, and such other considerations as are
appropriate under the circumstances.
7.6 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS.
a. NOTICE OF VIOLATION. In the event the Franchising
Authority believes that Grantee has not complied with the terms of this
Franchise Ordinance, the Franchising Authority shall notify Grantee in
writing of the exact nature of the alleged noncompliance.
b. GRANTEE' RIGHT TO CURE OR RESPOND. Grantee shall
have thirty (30) days from the receipt of notice described above to (a)
respond to the Franchising Authority in writing contesting the assertion of
noncompliance, or (b) to cure such default or, in the event that by the
nature of the default such default cannot be cured within the thirty (30) day
period, initiate reasonable steps to remedy such default and notify the
Franchising Authority in writing of the steps being taken and the projected
date they will be completed.
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C. PUBLIC HEARING. In the event that Grantee fails to respond to
the notice described herein or cure the default pursuant to the procedures
set forth above, the Franchising Authority shall schedule a public hearing to
investigate the default. The Franchising Authority shall give Grantee
twenty (20) calendar days, or in the case of an alleged substantial default of
a material provision of the Franchise, thirty (30) calendar days notice of the
time and place of the hearing provided Grantee with an opportunity to be
heard.
7.7 ENFORCEMENT. In the event the Franchising Authority, after such hearing,
determines that Grantee is in default of any provision of this Franchise Ordinance, the
Franchising Authority may impose any of the remedies set out in Section 7.5 herein.
7.8 FAILURE TO ENFORCE. Grantee shall not be relieved of any of its obligations
to comply promptly with any provision of this Franchise Ordinance by reason of any
failure of the Franchising Authority to enforce prompt compliance, and the Franchising
Authority's failure to enforce shall not constitute a waiver of rights or acquiescence in
untee' conduct.
7.9 ACTS OF NATURE. Grantee shall not be held in default or noncompliance with
the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto,
where such noncompliance or alleged defaults are caused by acts of nature, power
outages, or other events reasonable beyond its ability to control. However, Grantee shall
take all reasonable steps necessary to provide service despite such occurrences.
7.10 ALTERNATIVE REMEDIES.
a. No provision of this Franchise Ordinance shall be deemed to bar the
right of the Franchising Authority to seek or obtain judicial relief from a
violation of any provision of the Franchise Ordinance or any rule,
regulation, requirement or directive promulgated thereunder. Neither the
existence of other remedies identified in this Franchise Ordinance nor the
exercise thereof shall be deemed to bar or otherwise limit the right of the
Franchising Authority to recover monetary damages for such violation by
Grantee, or to seek and obtain judicial enforcement of Grantee's
obligations by means of specific performance, injunctive relief or mandate,
or any other Judicial remedy at law or in equity.
b. No provision of this Franchise shall be deemed to bar any rights the
Grantee may have under law, which may include the Cable
Communications Policy Act of 1984 and the Cable Television Consumer
Protection and Competition Act of 1992 and Television Act of 1996, as
amended, to the extent it is in force, and the right to review of any decision
by the Franchising Authority, by a court of competent jurisdiction.
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7.11 COMPLIANCE WITH THE LAWS. Grantee shall comply with all federal and
state laws and regulations, including regulations of any administrative agency thereof, as
well as all applicable ordinances, resolutions, rules and regulations of the Franchising
Authority heretofore or hereafter adopted or established during the entire term of the
Franchise. Nothing in this Franchise Ordinance shall limit the Franchising Authority's
right of eminent domain under state law. Nothing in this Franchise Ordinance shall be
deemed to waive the requirement of any applicable lawful code or resolution of the
Franchising Authority regarding permits, fees to be paid or manner of construction.
7.12 FRAUD OR DECEIT. In addition to any rights set out elsewhere in this
Franchise Ordinance, the Franchising Authority reserves the right to declare a forfeiture or
otherwise revoke the Franchise, and all rights and privileges pertaining thereto in the event
that the Grantee is found to have engaged in any actual or attempted fraud or deceit upon
the Franchising Authority, Persons or Subscribers.
SECTION 8
REPORTING REOUIREMENTS
The Grantee shall not be required to provide Consumer information in violation of Federal
law.
8.1 QUARTERLY REPORTS. Grantee shall submit, upon request from the
Franchising Authority, a quarterly summary showing the number of service calls done by
type, the percentage of service calls compared to the subscriber base by type of complaint,
the number of outages and the approximate total duration of these outages. These reports
shall be in a form approved by the Franchising Authority in such a manner that the
Chubbuck portion of the Cable System can be viewed as a separate entity wherever
reasonably possible. The Franchising Authority may from time to time request such
reasonable amendments to the forms as are required to ensure that all service issues are
reported clearly and accurately.
8.2 ANNUAL REPORT. No later than four (4) months following the end of
Grantee's fiscal year each year, Grantee shall present a written report to the Franchising
Authority which shall include the following information about the Chubbuck Cable
System, presented in such a manner that the Chubbuck Cable System can be viewed as a
separate entity wherever reasonably possible:
a. Financial statements for the previous year as needed to insure
compliance with all provisions of this Franchise Ordinance, and appropriate
explanatory footnotes.
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b. A summary of the previous year's activities for the City of
Chubbuck where available, or the Chubbuck Cable System, including the
total number of consumers for each general category and/or level of
service, the number of homes passed, miles of overhead and underground
cable plant, other significant system facilities and equipment constructed,
any services added or dropped, and any significant technological changes
occurring in the system.
c Statistics of written complaints received, including complaint
subject categories, with a summary of how these complaints were or will be
resolved.
d. Plans for the future.
8.3 MONITORING AND COMPLIANCE REPORTS. Upon request, Grantee
shall provide a written report of any and all FCC technical performance tests required in
FCC Rules and Regulations as now or hereinafter constituted that were conducted in the
previous 12 months. Grantee shall provide data from the annual technical evaluzation done
in cooperation with the Designated Provider no later than 30 days after the completion of
the evaluations.
8.4 ADDITIONAL REPORTS. Grantee shall prepare and furnish to the City
Council of the Franchising Authority, at the times and in the form prescribed, such
additional reports with respect to its operation, affairs, transactions, or property, as may
be reasonably necessary and appropriate to the performance of any of the specific rights,
functions or duties of the Franchising Authority in connection with this Franchise. In the
interest of reducing administrative burden such reports shall not be requested more often
than annually unless there is substantial proof of a pattern of non-compliance with a
provision of this Franchise.
8.5 COMMUNICATIONS WITH REGULATORY AGENCIES. Upon request
by the City Council actual copies of any petitions, applications, communications, or
reports submitted by Grantee to, or received by it from, the FCC or any other federal or
state regulatory commission or agency having jurisdiction with respect to any matter
affecting construction or operation of the Cable System franchised hereunder or services
provided through such system, shall be filed within ten (10) business days with the
Franchising Authority. In addition, Grantee shall within ten (10) business days of receipt
of any communication from such agency pertaining to any alleged or actual violation of a
law, regulation or other requirement specifically relating to the status or operation of the
Cable System, provide the Franchising Authority with a copy of the communication,
whether specifically requested by the Franchising Authority to do so or not.
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SECTION 9
CUSTOMER SERVICE STANDARDS (RESERVED)
The Franchising Authority reserves the right to adopt reasonable customer service
standards subsequently by separate ordinance as provided for and consistent with
applicable law. Grantee acknowledges and recognizes Franchising Authority's authority
and right to adopt such customer service standards.
SECTION 10
LINE EXTENSION POLICY
10.1 STANDARD INSTALLATION. Grantee shall make service available at
standard installation rates for every potential consumer:
a. Whose dwelling is one of a minimum of 11 dwelling units per 1/4
mile of linear cable, from the nearest existing cable plaint; or
Whose dwelling is situated such that cable constructed from the nearest
existing cable plant would pass an average of 44 homes per linear mile;
and
C. Where connection to the potential consumer's dwelling from cable
plant constructed as required under this Franchise requires no more than
150 foot drop cable.
SECTION 11
COMPENSATION AND FINANCIAL PROVISIONS
11.1 FRANCHISE FEES. During the term of the Franchise, Grantee shall pay to the
Franchising Authority an amount equal to five (5) percent of the annual Gross Revenues
as a franchise fee (as defined in Section 1 of this Franchise).
a. For the purposes of this section, the term annual Gross Revenues
includes, but is not limited to, revenues from Cable Service as defined by
the Cable Act provided to Subscribers for a fee or other consideration
which is attributable to the Cable System; revenues from the provision of
services, facilities or equipment required to or attributable to the provision
of Cable Service to Subscribers or the operation of the Cable System;
revenues from the sale of all advertising cablecast upon the Cable System;
revenues for carriage of any Cable Service; revenues received by the
Grantee from home shopping services, and any other compensation
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received by the Grantee from any source and regardless of form, cash and
non-cash attributable to the Cable System. Revenues from advertising sold
for transmission on more than one Cable System shall be allocated on a pro
rata basis, (revenues divided by number of basic Subscribers capable of
receiving the advertising on the systems for which the advertising is sold)
times (the number of basic Subscribers in the City).
b. For the purposes of this section, the term annual Gross Revenues
shall not include: (i) any tax, fee, or assessment of any kind imposed by the
Franchising Authority or other governmental entity on a cable operator, or
Subscriber, or both, solely because of their status as such, (ii) any tax, fee
or assessment of general applicability which is unduly discriminatory
against cable operators or Subscribers (including any such tax, fee, or
assessment imposed, both on utilities and cable operators and their
services), and (iii) any other special tax, assessment, or fee such as a
business, occupation, and entertainment tax.
C. If Congress or the CC alters the 5% franchise fee ceiling enacted
by the Cable Act, then Grantee and the Franchising Authority shall, at the
request of either party, enter into immediate negotiations to review
appropriate provisions of this Franchise.
d. Franchise fees shall be paid quarterly to the Franchising Authority
within 30 calendar days after the end of the previous quarter, accompanied
by a completed form reporting revenues by categories for the previous
quarter using forms approved by the Franchising Authority. The
Franchising Authority may from time to time request such reasonable
amendments to the forms as are required to ensure that all gross revenues
are reported clearly and accurately.
e. Grantee may estimate the quarterly fee, with any required
adjustment for underpayment or overpayment made annually with interest
at the national prime lending rate plus one (1) percent as published in the
Wall Street Journal for the last business day during the time period for
which payment was due.
f. Neither current nor previously paid copyright fees or other licensing
fees paid by Grantee be subtracted from gross revenues for purposes of
calculating franchise fees unless otherwise provided for by law.
g. In the event that federal or state law permits the Grantee to provide
non -video services to Subscribers (such as data or telephone
communications) through the facilities of the Cable System, and the
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Franchising Authority has the regulatory authority to collect a franchise fee
on such services, then the franchise fee for revenues derived by the Grantee
from such services shall be at the same rate as paid to the Franchising
Authority by other providers of the same services that utilize the Public
Way.
11.2 AUDITING AND FINANCIAL RECORDS.
a. The Franchising Authority shall have the right as necessary for
effectively administering and enforcing this Franchise Ordinance, to inspect
at any time during normal business hours upon reasonable notice, all books,
records, maps, plans, financial statements, service complaint logs,
performance test results, records required to be kept by Grantee pursuant
to the rules and regulations of the FCC and other like materials of Grantee
which directly relate to the operation of the Franchise. To the extent
allowed by Idaho law, the Franchising Authority shall protect the trade
secrets and other confidential information of Grantee.
b. Grantee agrees to meet with a representative of the Franchising
Authority upon request to review its methodology of record-keeping,
financial reporting, computing franchise fee obligations, and other
procedures the Franchising Authority deems necessary for understanding
the meaning of reports and records.
C. The Franchising Authority or its authorized agent may at any time
and at the Franchising Authority's own expense conduct an independent
audit of the revenues of Grantee in order to verify the accuracy of franchise
fees paid to the Franchising Authority. Grantee shall cooperate fully in the
conduct of such audit. In the event it is determined through such audit that
Grantee has underpaid franchise fees by five percent (5%) or more than
was due the Franchising Authority, then Grantee shall reimburse the
Franchising Authority for reasonable costs of the audit and any back
franchise fees with interest accrued at twelve (12) percent per annum or
two (2) percent above prime lending rate as quoted by the Wall Street
Journal, whichever is greater, within 30 days of the completion and
acceptance of the audit by the Franchising Authority. Unless the
Franchising Authority can demonstrate need for more frequent audits, such
audits will be conducted no more than once annually.
The Franchising Authority agrees to request access to only those
books and records, in exercising its rights under this Section, which it
deems reasonably necessary for the enforcement and administration of the
Franchise and this Franchise Ordinance. The Franchising Authority should
have reasonable cause to believe that the Grantee is not in compliance with
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this Franchise before it can require the Grantee to participate in such audit
more than once in a twelve month period.
11.3 GUARANTEE IN LIEU OF BOND.
a. The Grantee will provide a written guarantee in lieu of bond in the
amount of ten thousand dollars (S 10, 000).
b. Initially, no additional bond or other surety will be required
regarding performance of the contract provisions. Should the Franchising
Authority determine that Grantee performs unsatisfactorily in paying claims
made upon this guarantee in lieu of bond, the Franchising Authority
reserves the right to require a cash bond. In the event that a cash bond is
required in the future, the Franchising Authority agrees to give Grantee at
leasi sixty (60) days prior written notice :hereof stating the exact reason for
the change from guarantee in lieu of bond to cash bond.
C. Neither the provisions of this section nor any written guarantee in
lieu of bond accepted by the Franchising Authority pursuant thereto, nor
any damages or other amounts recovered by the Franchising Authority
thereunder shall be construed to excuse faithful performance by Grantee or
to limit liability of Grantee under this Franchise Ordinance either to the full
amount of the written guarantee in lieu of bond or otherwise, except as
otherwise provided herein.
11.4 INDEMNIFICATION BY GRANTEE. Grantee shall, at its sole expense, fully
indemnify, defend and hold harmless the Franchising Authority, and in their capacity as
such, the officers, employees, and agents of the Franchising Authority, and members of the
Cable Commission (if such Commission is appointed), from and against any and all claims,
suits, actions, liability, and judgments for damage or otherwise to the extent not arising
from negligence on the part of the Franchising Authority or its employees, for actual injury
to Persons or property, including loss of use of property due to an occurrence, whether or
not such property is physically damaged or destroyed, in any way arising out of or through
the acts or omissions of Grantee or its officers, agents, employees, or contractors, and
whether or not such acts or omissions were authorized or contemplated by this Franchise
or applicable law; arising out of any claim for damages for Grantee's invasion of the right
of privacy, defamation of any Person, firm or corporation, or the violation of infringement
of Person, firm or corporation, or the violation of infringement of any copyright,
trademark, trade name, service mark or patent, or any other right of any Person, firm, or
corporation, arising out of Grantee's failure to comply with the provisions of any statute,
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regulation or Resolution of the United States, State of Idaho or any local agency
applicable to Grantee in its business. Nothing herein shall be deemed to prevent the
parties indemnified and held harmless herein from participating in the defense of any
litigation by their own counsel at such parties' expense. Such participation shall not under
any circumstances relieve Grantee from its duty of defense against liability or of paying
any judgment entered against such party.
11.5 GRANTEE INSURANCE. Grantee shall maintain, in full force and effect, at its
own cost and expense during the term of the Franchise, Commercial General Liability
Insurance insuring Grantee, its officers, employees and agents, with regard to all claims
and damages specified in Section 11.4 herein, in the minimum amounts of:
a. $2,000,000 for personal injury or death to any one Person;
b. $2,000,000 for personal injury or death resulting from any one
accident, $2,000,000 for property damage resulting from any one accident;
and
C. $1,000,000 for all other types of liability.
Such certificate of insurance shall specifically name as additional insured the City of
Chubbuck, its Council members, its officers, and employees, and shall further provide that
the policy shall not be modified or canceled during the term of the Franchise without
giving 30 days written notice to the Franchising Authority.
Grantee shall file with the Franchising Authority copies of all certificates of insurance
showing up-to-date coverages and additional insured coverages. Coverages shall not be
changed or canceled without approval of the Franchising Authority, and failure to maintain
required insurance may be considered cause for the Franchising Authority to revoke the
Franchise. After the fifth and then again after the tenth anniversary of the effective date of
this Franchise, if it is determined by the Franchising Authority that circumstances require
and that it is reasonable and necessary to increase insurance coverage and liability limits to
adequately cover the risks of the Franchising Authority, Grantee, and Grantee officers,
agents, and employees, the Franchising Authority may require additional insurance to be
acquired by Grantee. Such increases shall not exceed 25% per five year period, and in no
case 'Ohall the requirements exceed those of the Franchising Authority's Standard
Construction Contract agreement. The Franchising Authority will provide Grantee 60
days written notice should the Franchising Authority exercise their right to require
additional insurance. All insurance shall provide 30 days prior written notice to the
Franchising Authority in the event of modification or cancellation. Grantee shall provide
written notice to the Franchising Authority within thirty (30) days after any approved
reduction in the general annual aggregate limit.
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SECTION 12
MISCELLANEOUS PROVISIONS
12.1 CABLE COMMISSION. The Franchising Authority may wish to establish
and/or continue the Chubbuck Cable Commission during the term of this Franchise. The
duties of this Commission are set forth in a separate ordinance, shall be consistent with all
provisions herein and shall not substantially impair the rights granted pursuant to this
Franchise.
12.2 GUARANTEE OF PERFORMANCE. Grantee agrees that it enters into the
Franchise voluntarily in order to secure and in consideration of the grant from the
Franchising Authority of a 15 year Franchise. Performance pursuant to the terms and
conditions of this Franchise Ordinance is guaranteed by Grantee.
12.3 GOVERNING LAW AND VENUE. The Franchise shall be governed by and
construed in accordance with the laws of the State of Idaho and Grantee consents to
jurisdiction and venue in the state and federal courts of the State of Idaho. In any action
or suii to enforce any right or remedy uncle► this Franchise, the prevailing party shall be
entitled to recover its costs, including without limitation reasonable attorneys' fees.
12.4 SEPARABILITY. If any portion of this ordinance shall be declared by a court of
competent jurisdiction to be void or unenforceable, then the Franchising Authority and
Grantee shall negotiate in good faith to modify the Franchise as may be necessary to meet
the requirements of the law.
12.5 CONSENT. Wherever the consent or approval of either Grantee of the
Franchising Authority is specifically required in this Franchise, such consent or approval
shall not be unreasonably withheld.
12.6 ORDINANCE TERMINATED. The cable television Franchise as originally
granted by Ordinance #262, shall be deemed terminated upon the effective date of this
ordinance, provided that any unpaid franchise fees and other outstanding liabilities and
obligations of Grantee to the Franchising Authority under such pre-existing Franchise shall
survive such termination.
12.7 NO THIRD PARTY BENEFICIARIES. There shall be no third party
beneficiaries of this ordinance.
12.8 FRANCHISE ORDINANCE ACCEPTANCE. Grantee, within sixty (60) days
after the date of adoption of the Franchise by City Council, shall execute three (3), and
return to the Franchising Authority one (1) original Franchise Ordinance. In accepting the
Franchise, Grantee acknowledges that it has carefully read the terms and conditions of this
Franchise and agrees to abide by same, that it has relied upon its own investigation of all
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relevant facts, that it has had the assistance of counsel, that it was not induced to accept a
Franchise, that this Franchise Ordinance represents the entire agreement between Grantee
and the Franchising Authority, and that Grantee accepts all reasonable risks related to the
interpretation of this Franchise Ordinance. The executed Franchise Ordinances shall be
returned to the Franchising Authority accompanied by the written guarantee in lieu of
bond and evidence of insurance as provided in Section 11.6 of this Franchise. In the
event, Grantee fails to submit a Franchise Ordinance as provided for herein, or fails to
provide the required accompanying documents, the Franchise shall be null and void.
12.9 EFFECTIVE DATE. This ordinance shall be effective thirty (30) days after its
adoption. Provided, however, that if Grantee does not accept this Franchise pursuant to
Section 12.8 and comply with all conditions for such acceptance set forth herein within
sixty (60) days after adoption of this Franchise Ordinance, this ordinance shall be null and
void.
BE IT FURTHER ORDAINED THAT THE ORDINANCE AND
APPENDIX SET FORTH HEREINABOVE ARE PASSED AND APPROVED
THIS 10TH. DAY OF NOVEMBER , 098.
CITY OF CHUBBUCK, a municipal corporation of Idaho
4J�n . Cotant, ayoror
ATTEST:
Ron C. Conlin, City Clerk
PUBLISHED:
ACCEPTANCE BY TCI CABLFVTSION OF IDAHO, INC.
Name: Scott Hiigel
Title: Senior Vice President
TCI Cablevision of Idaho, Inc.
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APPENDIX A
RETURN TRANSPORT LOCATIONS
Upon request from the Franchising Authority, a return transport location shall be provided
to Chubbuck City Hall and be operational within six months from the date of request.
An additional return transport location shall be provided to any high school educational
facility built within the City of Chubbuck and the service area and be operational within
one year after the completion of the facility.
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IPA
No. G0467
GL# 110262/51505
F# F1796
GUARANTEE IN LIEU OF BOND
THIS AGREEMENT is made this 4th day of January, 1999, between Guarantor,
Franchising Authority and Company (for the purpose of the Agreement, the terms
"Guarantor:, "Franchising Authority", and "Company" have the meanings ascribed to
them below).
WITNESSETH
WHEREAS, the Franchising Authority has granted a franchise to the Company pursuant
to the Franchise Document (as defined below) to own, operate and maintain a cable
television system ("System"); and
WHEREAS, TCI West, Inc., a Delaware corporation (Guarantor") is the indirect parent
company of the Company and has a substantial interest in the System and the conduct of
the Company in complying with a Franchise Document, and any and all amendments
thereof and any agreements related thereto; which Franchise Document is hereby
specifically referred to, incorporated herein, and made a part hereof, and
WHEREAS, section/paragraph/article 11.3(a) of the Franchise Document requires the
Company, as principal, to furnish bond or bonds issued to cover the faithful performance
of certain of the Company's obligations under the Franchise Document, not to exceed
$10,000.
NOW, THEREFORE, Guarantor hereby unconditionally guarantees the due and punctual
performance of any and all obligations of Company contained in section/paragraph/article
11.3(a) of the Franchise Document, not to exceed $10,000.
This Agreement, unless terminated, substituted or canceled, as provided herein, shall
remain in full force and effect for the duration of the term of the Franchise Document, or
as expressly provided otherwise in the Franchise Document.
Upon substitution of another Guarantor reasonably satisfactory to the Franchising
Authority, this Agreement may be terminated, substituted or canceled upon sixty (60)
days' prior written notice from Guarantor to the Franchising Authority and the Company.
Such termination shall not affect liability incurred or accrued under this Guarantee prior
to the effective date of such termination or cancellation.
Any notices given pursuant to this Agreement shall be addressed to the Guarantor and
Franchisee at Post Office Box 5630, Denver, Colorado 80217, and to the Franchising
Authority at City of Chubbuck, 5160 Yellowstone Avenue, Chubbuck, ID 83202.
No claim, suit or action under this Agreement by reason of any default of the Company
shall be brought against Guarantor unless asserted or commenced within six (6) months
after the effective date of such termination or cancellation of this Agreement.
IN WITNESS WHEREOF, the Guarantor, the Company and the Franchising Authority
have set their hands on the 4th day of January, 1999.
DEFINITIONS
(The following terms have meanings ascribed to them below)
Franchising Authority: City of Chubbuck, Idaho
Company: TCI Cablevision of Idaho, Inc.
Franchise Document: Franchise Agreement effective 12/10/98 - 12/09/2013
GUARANTOR: TCI West, Inc.
By
dX;'ex Wifiqgl- 6' a"l-, f,
Kathy A. ftefLs,4Director of Insurance
COMPANY: T able ' of aho, Inc.
By: F�
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FRANCHISM LITHO TY: City of Chubbuck, ID
TITLE: "�