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HomeMy WebLinkAboutHam Co./Time Warner Franchise HAMCO.DOC FRANCHISE GRANT A FRANCItISE GRANTING PERMISSION TO TIME WARNER ENTERTAINMENT-ADVANCE/NEW'HOUSE PARTNERSHIP, DBA TIME WARNER CABLE, ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPERATE, AND MAINTAIN CABLE TELEVISION SYSTEMS IN HAMILTON COUNTY, INDIANA, AS FOLLOWS: Section 1. SHORT TITLE This Franchise shall be known and may be cited as the "Hamilton County/Time Warner Cable, Cable Television Franchise." Section 2. DEFINITIONS For the purpose ofthi~ Franchise, the following terms, words, and their derivations shall have the meaning given herein. Where not inconsistent with the context, words used in the present tense include the future, words in the singnlar number include the plural :l~umber. The word "shall" is always mandatory and not merely directory. 1. "County" is Hamilton County, Indiana. "Company" is Time Warner Entertainment-Advance/Newhouse Parmership, dba Time Warner Cable, the grantee of fights under this Franchise. ''Commissioner"is the Board of Commissioners, the County of Hamilton, Indiana. "Person" is any person, firm, partnership, association, corporation or organi?ation of any kind. "Cable Television System" means a system of coaxial cables, wave guides, or other conductors and equipment for the reception, amplification and distribution of television, radio or other signals to subscribing members of the public for a fee. 6. "FCC" is the Federal Communications Commission. "Gross subscriber revenue" shall include all compensation paid by a subscriber for the sale of the Company's monthly basic television services. This does not include revenue derived fi.om paid TV program charges, leased channels, Pay-TV service, advertising sales, nor does it include any sales or excise tax. ''Franchise Area" shall include all of the unincorporated area of Hamilton County, Indiana. Section 3. GRANT OF AUTHORITY (a) There is hereby granted by the Commissioners to the Company the fight and privilege to construct, erect, operate, and maintain a cable television system for the reception, amplification, and distribution of television, radio, and other signals to subscribing members of the public for a fee for a period of fifteen (15) years from and after the effective date of this Franchise. (b) The Company is hereby granted by the Commigsioners the right and privilege to construct, erect, operate, and maintain said cable television system in, upon, along, across, above, over, and under the streets, alleys, public ways, public places, and easements for roads, utilities, or other compatible uses heretofore or hereafter laid out or dedicated within the nnlncorporated areas of Hamilton County, Indiana. This grant is conditioned upon the Company's compliance under it's bond, with 47 United States Code, Section 541 (a) (2) (A), (B), and (C), and all of the terms and conditions contained herein. (c) The right to use and occupy said streets, alleys, public ways, and places for the purpose herein set forth shall not be exclusive and the Commissioners reserve the right to:~,~ant a similar use of said streets, alleys, public ways, and places to any person at any time during the period of this Franchise. (d) In connection with the right and privilege herein granted, the Commissioners have examined and approved the legal, character, financial, technical, and other qualifications of the Company, as well as the adequacy and feam'bility of its construction arrangements, as part ora public proceeding affording due process. Section 4. COMPLIANCE WITH THE APPLICABLE LAWS AND ORDINANCES (a) The Company shall, at all times during the life of this Franchise, be subject to all lawful exercises of police power of the County. (b) The Company agrees to comply with all valid local, state, and federal regulations, including rules and regulations of the FCC. (c) Any amendments or modifications of Section 76.31 of the Rules of the FCC or of the Cable Communications Policy Act of 1984, including the Cable Television Consumer Protection and Competition Act of 1992, shall be incorporated into this Franchise at the time of such modification or at the time of the renewal of this Franchise, whichever occurs first. 2 Section 5. INDEMNIFICATION The Company shall indemnify, protect, and save the County harmless from and against any and all losses, costs, or expenses resulting from damage to any property or bodily injury or death to any person, including payments made under any workmen's compensation law, which arise out of or occur by any reason of the exercise by the Company of the rights granted in this Franchise. The Company shall carry insurance to protect itself and the County from and against all claims, demands, actions, judgments, costs, expenses, and liabilities which may arise or result, directly, or indirectly, fi.om or by reason of such loss, injury, or damage. The insurance policy shall specifically provide that the County shall be an additional insured. The amounts of such insurance shall not be less than Five Hundred Thousand Dollars ($500,000.00) as to any one claim and not less than One Million Dollars ($1,000,000.00) aggregate in any single policy year; and against liability due to bodily injury or to death or persons, not less than Five Hundred Thousand Dollars ($500,000.00) as to any one (1) person, and not less than One Million Dollars ($1,000,000.00) as to all such clalma arising from any one (1) accident. The Company shall also carry such insurance as it deems necessary to protect it and the County from any and all clalma under the workmen's compensation laws in effect that may be applicable to ~e Company. All insurance required by thia Section shall be and remain in full force and ~'~l~ect for the entire period of this Franchise. The policies of insurance, or a certified copy or copies thereo~ shall be filed with the County Auditor of the County. Section 6. CONSTRUCTION STANDARDS (a) The Company shall equitably and reasonably extend its Cable Television System so as to enable it to render service to ail feasible areas within the County that are contiguous to existing cable facilities and which desire said service in any specified geographical area with a density offl~ (50) or more residential dwelling units per mile of system within the County.. (b) With regard to the Company's construction, operation, and maintenance of its cable television system, the following standards shall apply: O) The construction, maintenance, and use of the Company's cable telev~on system shall comply with the standards for materials and engineering and all other provis/ons of the National Electrical Safety Code and the National Electrical Code. (2) The County shall have the right to supervise all construction and installation work performed subject to the provisions of this Franchise and to make such inspections as it shall find necessary to ensure compliance with governing ordinances. (3) The Company agrees to upgrade its existing cable plant to provide for an increase in the Company's cable television system's channel capacity to at least seventy-seven (77) by December 31, 1999. Section 7. STREET VACATION OR ABANDONMENT Ia the event any street, alley, public highway, or utility easement, or any portion thereof~ used by the Company shall be Vacated by the County during the term of this Franchise, the Company shall forthwith remove its facilities theretS'om unless specifically permitted to leave them there, and upon the removal thereof~ restore, repair, or reconstruct the street area where such removal has occurred in the same or better condition as the street was in prior to such removal. Ia the event of the failure, neglect, or refusal of the Company, atter thirty (30) days notice by the County Commissioners to repair, improve, or maintain such street proportions, the County may do such work or cause it to be done, and the cost thereof as found and declared by the County shall be paid by the Company, and collection may be by court action or otherwise. Section 8. CONDITIONS ON STREET OCCUPANCY (a) USE. All transmission and distribution structures, lines, and equipment erected by the Company within the County shall be so located as to cause minimum interference with the proper use of all streets, alleys, and other public ways and places, and to cause minimum interfereace with the rights and reasonable convenience of property ~'Wners who adjoin any of the streets, alleys, or other public ways or places. (b) RESTORATION. In case of any disturbance of pavement, sidewalk, driveway, or other surfacing, the Company shall comply with the provisions of all then existing County ordinances, including the County Road Cut Ordinance. The Company shall, at its own cost and expense and in a manner approved by the County, replace and restore all paving, sidewalk, driveway, or surface of any street or alley disturbed to as good condition as before said work was commenced and shall maintain the restoration in an approved condition for a period of three (3) years or such time as required by County ordinance. (e) .RELOCATION. In the event that at any time during the period of this Franchise the County shall lawfully elect to alter or change the grade or width of any street, alley, or other public way, the Company, upon reasonable notice by the County, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other system fixtures at its own expense. (d) TEMPORARY REMOVAL OF WIRE FOR BUILDING MOVING. The Company shall, upon the request of any person holding a building moving permit issued by the County, temporarily raise or lower its wires to permit the moving of buildings. The expense of such tempora~ removal, raising, or lowering of wires shall be paid by the person requesting the same and the Company shall have the authority to requixe such payment in advance. The Company shall be given not less than one hundred twenty (120) hours advance notice to arrange for such temporary wire changes. (e) TRIMMING OF TREES. The Company shah have the authority to trim trees upon and overhanging any street, alley, or other public way so as to prevent the branches of such trees from coming in contact with its wires, cables, or other equipment. 4 Section 9. POLE USE (a) The Company shall whenever possible and practicable use the poles owned and maintained by the County and/or the utility company(ies) which serve the County. When the use of such poles is not practicable or satisfactory and rental agreements cannot be entered into with said parties, the Company shall bury the cable, wires and other like facilities as set out in Section 9 (b) below. The Company may erect and maintain its own poles within the County right-of-way only upon the approval of the Board of Commissioners of the County upon a showing that there are no poles of other utility companies available and that it is not feasible to bury the cable. (b) In all sections of the County where cables, wires, or other like facilities of public utilities are presently placed underground or are required to be so placed underground at any time in the future, the Company shall place its cables, wires, or other like facilities underground to the maximum extent technology reasonably permits the Company to do so. The depth and exact locations of newly installed underground cable shall be approved by the Board of Commissioners of the County or its designee, which approval shall not be unreasonably withheld. ~'ection 10. REGULATION (a) The Company shall, while operating under thi.q Franchise, maintain efficient cable television service in the County. However, the Company shall not be liable for loss, damage, or failure to meet any deadline imposed herein caused by interruption or failure of service due to accident or breakdown to lines or equipment, strike, riot, act of God, or the public enemy, or such other causes beyond its control, or due to shutdowns for reasonable periods to make repairs to equipment, but the Company shall in such cases exercise proper diligence in repairing such equipment and resume operation of same without nnnecessary delay. (b) The Company has adopted and the Commissioners approve the procedures for the investigation and resolution of complaints regarding its cable television operations which are attached to this Franchise Grant. The Company may amend those procedures f~om time to time in conformance with the regulations of the FCC and copies of such changes shall be filed with the County Auditor. Notice of the procedures for reporting and resolving complaints shall be given to each subscriber at the time of initial subscription to the cable television system operated by the Company. Further, the Company shall have a local business office or agent in the County for the purpose of receiving notice of investigating and seeing that proper steps are taken to effect the resolution of any problems relating to service or other aspects of its cable television operations. The name, address, and telephone number of the office or agent shall be filed by the Company in the office of the County Auditor. The local manager shall have primary responsibility for the continuing administration of this Franchise and for the implementation of the procedures of this subsection. (c) The County shall have access at all reasonable business hours to all of the Company's plans, contracts, and engineering, accounting, financial, statistical, customer, and service records relating to the property and operation of the Franchise, and to all other records required to be kept hereunder when necessary to ascertain the Company's compliance with this Franchise. The Company shall promptly comply with all requests for all financial data requested by the County in connection with the County's lawful review of the rates charged by the Company. (d) A copy of any and all rules, regulations, terms, and conditions adopted by the Company for conduct ii'ks business shall be filed with the County Auditor, and a copy shall also be available for public inspection at the office of the Company. (e) The parties acknowledge that the terms of this Franchise may be amended or superseded by acts of the Congress of the United States, the General Assembly of the State oflndlana, and/or any number of federal or state agencies. The parties agree that in such event, this Franchise shall be amended in conformance with those laws or regulations. In the event any such law or regulation prevents either party from compliance with this Franchise or makes compliance economically impossible or not economically feasible, the parries agree to amend the Franchise to conform with the laws, regulations, or economic :~'lrenmntances dictated by those changes. Section 11. EMPLOYMENT PRACTICES Equal opportanity in employment shall be afforded all qualified persons by the Company and no person shall be discriminated against because of race, color, religion, national origin, or sex. An equal opportunity notice will be posted in the office of the Company which states as follows: "Equal Oppommity Employer - discrimination because of sex, race, color, religion, national origin is prohibited and you may notify the Equal Oppommity Conmfi~don or the Federal Comm~mications Commission if you believe you have been discriminated against." Those in positions to hire for the Company will be specifically instructed to eY,mlne all hiring policies to make certain that the same comply with the foregoing declarations. Section 12. SERVICE TO COUNTY BUILDINGS AND SCHOOLS The Company agrees to and shall furnish, without installation charge or monthly service fee, one (1) free basic connection to any County building or buildings designated by the Commissioners, and to all public, parochial, elementary, and secondary schools located within the County. If the building is within 300 feet of the Company's cable television system, there shall be no costs of installation to the public buildings. If the Company's cable television system is in excess of 300 feet from any such designated building, the cost to extend the cable or wire more than 300 feet to the designated building shall be paid by the owner of the designated building if they desire service. 6 Section 13. RATES The rates or charges which the Company assesses its subscribers for cable television services shall be at all times fair and reasonable and covered by the provisions of the Cable Consumer Protection Act of 1992 (PL 102-385) codified vdthin 47 USC, as well as any amendments and regulations issued supplemental thereto. Section 14. PAYMENT TO THE COUNTY (a) The Company shall pay no franchise fee to the County, as of the July, 1997, billing cycle of the Company. All franchise fees collected for 1997 shall be paid to the County Treasurer by September 30th of 1997. The County may revise the fees annually, but under no condition shah the fee exceed the maximum rate of five percent (5%) during the term of this Franchise Grant or any extensions thereto. If the County establlnhes a franchise fee alter 1997 during the period of this Franchise, the fees so collected shall be paid to the County Treasurer by January 31st for the collections in the preceding calendar year. The Commissioners reserve the right to periodically review and i~crease or decrease the annual franchiso fee establi~ed by the preceding paragraph to a :]~aaximum of five percent (5%) of Company's monthly basic gross subscn'ber revenues derived from its cable television operations in the nnlneorporated areas of the County. (b) In the event of revocation or termination of this Franchise, the final annual fee payment shall be prorated from the immediately preceding January 1 to the date of termination of service. Section 15. ASSIGNMENT, TRANSFER, LEASE OK MEKGEK (a) ~ This Franchise shall not be assigned without the prior written approval of the Commissioners, Which approval shall not be unreasonably withheld, provided however, no such consent shall be required for any transfer or assignment to any person controlling, controlled by or under the same control as the grantee. (b) Nothing in thin Franchise shall be deemed to prohibit the mortgage or the pledge of any property of the Company, real or personal, including the system or any part thereof and the Franchise granted herein, or a leasing by Company from another person of said property or part thereof for financing purposes or otherwise. Section 16. FORFEITURE OF FRANCH/SE (a) The County may declare a forfeiture of this Franchise and revoke the same in the event the Company: (1) Substantially violates any provision of this Franchise, where such violation remains uncured for a period of thirty (30) days subsequent to receipt by the Company of a written notice of such violation, except where such violation is not the fault of the Company or is due to excusable neglect; or 7 (2) Practices any fraud or deceit upon the County. (b) Such forfeiture shall be declared by any resolution of the Commissioners duly adopted after thirty (30) days notice to the Company, and shall in no way affect any of the County's fights under this Franchise or any provision of law; provided however, that before the Franchise may be terminated and canceled under tiffs section, except for non-payment of monies due to the County from Company, the Company shall be provided with an opportunity to be heard at a public hearing before the Commissioners upon ten (10) days' written notice to the Company of the time and place of the public hearing; provided that said notice shall affirmatively cite the reasons alleged to constitute a cause for revocation; and provided further that notice of said public hearing shall be published in a local newspaper of general circulation at least five (5) days before the hearing. Section 17. MISCELL&NEOUS Failure to enforce or insist upon compliance with any of the terms or conditions of thi~ Franchise shall not constitute a general waiver or relinq, i~hment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. Section 18. SEVERAB]J~ITY If any section, subsection, sentence, clause, phrase, or portion oft/ds Franchise is for any reason held invalid or unconstitutional by any court or other government authority of competent jurisdiction, such section shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof Section 19. WRITTEN ACCEPTANCE The Company shall, within thirty (3~days after this Franchise becomes effective, file in the Office of the County. Amtitnc_i~tten accet0iange.ofthis Franchise. Failure on the part of the Company to file such written acceptance within such time shall be deemed an abandonment and rejection of the rights conferred hereby and this Franchise shall thereupon be null and void. Said acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions, and restrictions contained in this Franchise. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the respective officers and representatives heretofore duly authorized this ;3-/~ day of ~/~r; / , 1997. BOARD OF COMMISSIONERS OF HAMILTON COUNTY :~TTEST: J 4V .'O e, ,&ditor Sharon~,lark Steven C. Dilllnger StevLh(K gioy - _ The undersigned grantee of a Franchise for a cable television system for Hamilton County, Indiana, does hereby accept the grant of said t~anchise and agrees to be bound by the terms and conditions 6ontained therein. / TIME WARNER ENTERT MENT- ADVANCE/NEWHOUSE PARTNERSHIP dba Time Warner Cable 9