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0497 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 dsc chbbck 10.194 y 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; cable franchise ordinance - Page 1. chubbuck 10.066 0 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 cable franchise ordinance - Page 2. chubbuck10.06b 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 cable franchise ordinance - Page 3. chubbuck 10.06b 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 cable franchise ordinance - Page 4. chubbuck10.06b E 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. cable franchise ordinance - Page 5. chubbuck 10.066 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 cable franchise ordinance - Page 6. chubbuck10.06b • 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. cable franchise ordinance • Page 7. chubbuck10.06b 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 cable franchise ordinance - Page 8. chubbuck10.06b 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. cable rranchise ordinance - Page 9. chubbuckl0.06b 0 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 cable franchise ordinance - Page 10. chubbuck 10.066 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 cable franchise ordinance - Page 11. chubbuck 10.066 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. cable franchise ordinance - Page 12. chubbuck10.06b i 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. cable franchise ordinance - Page 13. chubbuck10.06b 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 cable franchise ordinance - Page 14. chubbuck 10.06b Air U 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 cable franchise ordinance - Page 15. chubbuck 10.06b 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. cable franchise ordinance - Page 16. chubbuck10.06b 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. cable franchise ordinance - Page 17. chubbuck10.06b 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. cable franchise ordinance - Page 18. chubbuck 10.06b 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. cable lranchise ordinance - Page 19. chubbuck 10.06b 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 cable franchise ordinance - Page 20. chubbuck10.06b 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 cable franchise ordinance - Page 21. chubbuckl0.06b 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 cable franchise ordinance - Page 22. chubbuck l0.066 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, cable franchise ordinance - Page 23. chubbuck10.06b 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. cable franchise ordinance - Page 23. chubbuck 10.066 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 cable franchise ordinance - Page 25. chubbuck10.06b 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. cable franchise ordinance - Page 26. chubbuckl0.06b 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. cable franchise ordinance - Page 27. chubbuck 10.06b 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� . — - Ir FRANCHISM LITHO TY: City of Chubbuck, ID TITLE: "�