HomeMy WebLinkAbout1997 Time Warner Franchisea
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FRANCHISE GRANT cc . Fe*e4.7-,J o G
A FRANCHISE GRANTING PERMISSION TO TIME WARNER
ENTERTAINMENT-ADVANCE/NEWI-IOUSE PARTNERSI-DP, DBA TIME
WARNER CABLE, ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT,
OPERATE, AND-MAINTAIN CABLE TELEVISION SYSTEMS IN HAMILTON
COUNTY, INDIANA, AS FOLLOWS:
Section]. SHORT TITLE
This Franchise shall be ]mown and may be cited as'the `Eamilton County/Time
Warner Cable, Cable Television Franchise."
Section 2.
For the purpose of this 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 singular number include the plural
-;umber. The word "shall" is always mandatory and not merely directory.
1. "County" is Hamilton County, Indiana.
2. "Company" is Time Warner Entertainment-Advance/Newhouse
Partnership, dba Time Warner Cable, the grantee of rights under this
Franchise.
3. "Commissioner" is the Board of Commissioners, the County of Hamilton,
Indiana.
4. "Person" is any person, firm, partnership, association, corporation or
organization of any kind.
5. "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.
7. "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 from paid TV program charges,
leased channels, Pay-TV service, advertising sales, nor does it include any
sales or excise tax.
8. "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 right
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 Commissioners 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 unincorporated areas of Hamilton County, Indiana. This grant is
conditioned upon the Company's compliance under it's bond, with 47 United States Code,
Section 54) (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'grant 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 feasibility of its
construction arrangements, as part of a 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.
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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, from 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 claims 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 claims under the workmen's compensation laws in effect that may be applicable to
the Company. All insurance required by this Section shall be and remain in full force and
Effect for the entire period of this Franchise. The policies of insurance, or a certified copy
or copies thereof; 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 all 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 of fifty (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:
(1) The construction, maintenance, and use of the Company's cable television
system shall comply with the standards for materials and engineering and
all other provisions 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.
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Section 7. STREET VACATION OR-ABANDONMENT
In the event any street, alley„ public highway, or uti&ty easement, or any portion
tbereaf used by the Company shall be vacated by the County during the term of this
Franchise,-the Company shall:firtbwiih remove its facilities therefrom-unles-s specifically
permitted` to leave -them there, and npon the removal ;thereoC restore, repair, or
reconstruct the street area where such removal has occurred in the same or better
condition as tbe: street.was in prior to such removal In the event of the failure, neglect, or
refusal of the Company, after thirty (30),days:notice,by°the County Commissioners to
repair, improve, or maintain such street proportions; ther,County may do such work or
cause it to be done, and the cost tbereof'as found and declared by"the County shall be paid
by the Company,, and collection maybe by court action or otherwise,.
Section 8. CONDITIONS ON STRUT OCCUPANCY
(a) USE. All transmission and distribution structures, lines, and equipment
erected by the,Compauy 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
I cause minimum interference with the"rights and reasonable convenience of property
:'&wnerswho adjoin any ofthe-streeis, alleys, onother 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
erdsting=County ordinances„ including the County Road Cut Ordinance. The Company
shall, at-its',o?vn,cost_atd e*pepse,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 andahall maintain. the restoration, in
an approved condition for a period. of three (3) years.or such time as required by County
ordinance.
(c) . RELOCATION. In the event that aranytime:during the period of this
Franchise the County shall lawfiilly, elect to alter or change the grade or width. of any
street; alley, or other,public way, the Company, upon reasonable notice by the Cowiry,
shall remove,, relay, and relocate, its poles, wires, cables, underground conduits manholes,
and.other system fixtnres?at its own expense.
'(d) TEMPORARY REMOVAL OF WIRETORWILDING MOVING
The Company shall, upon the request of`any person holding a building moving
permitissmed by the County,.. temporarily raise or;lower.its wires.io permit the moving of
buildings. The expense of s ich temporary removal, raising,;or'lowering; of wires shall be
paid by: the person requesting the same and the Company shall -have 66 authority to
require such payment in advance. The Company shA be given not less ihan.one hundred
ttiventy(120) hours a_dvance•notice`to arrange for,such temp,orarywire changes.
(e) "I 24MIING OF TREES: The Company shall have the authority to
trim trees upon and overhanging any street,,alley, or other pubUo way sa.as to prevent the
branches of such-trees from coming in contact with imwi es, cables, or other-equipment.
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Section 9. POLE USE
(a) The Company shall wbenever 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 Commissionersof the County or its designee, which
approval shall not be unreasonably withheld.
Section 10. REGULATION
(a) The Company shall, while operating under this 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 unnecessary
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
from 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.
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(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 if its 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 of Indiana,, 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
parties agree to amend the Franchise to conform with the laws, regulations, or economic
'Eitcumstances dictated by those changes.
Section IL EMPLOYMENT PRACTICES
Equal opportunity 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 Opportunity Employer - discrimination because of sex, .race,
color, religion, national origin is prohibited and you may notify the Equal Opportunity
Commission or the Federal Communications Commission if you believe you have been
discriminated against."
Those in positions to hire for the Company will be specifically instructed to
examine.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 Aire more than 300 feet to the designated building
shall be paid by the owner of the designated building if they desire service.
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Section 13, RATES'
Tlie 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 Consamer?Protection Act of 1992 (PL.102=385) codified within 47 USC, as
well.as anyamendmeats-and?iegulationsissued 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 ofthe.Company. All franchise fees collected ?fbv 1997 shall be paid to
the County "Treasurer by September 30th of 1997. The County in6y revise the fees
annually, but under no condition shall the fee exceed the maximum rate. of five .percent
(5%a) during the-term of:this Franchise Grant'. or any extensions•thereiO. Ifthe County
establishes a franchise fee after 1997 during the period of this Franchise, the fees so
collected skall be.paid to the County Treasurer by January,31st for the colkutions in the
preceding, calendar year; The. ComuEssiouers:reserve, the-rigbt-to periodically review and
increase-or decrease the annual-franchise. fee, established. by the preceding paragraph to a
htaximum, of five percent (5%) of Company's monthly basic gross subscriber revenues
derived from its cable television operations in the unincorporated areas'ofthe`County.
(b) ln,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 OR MERGER
(a) . This Franchise shall not be assigned withounthc prior writtea approval of
the Commissioners, Which. approval shall not be unreasonably withheld, provided
however, no such consent shab,be;required 'for any transfer or assignment to any person
controlling; controlled by or under the,same control as the grantee.
(b) Nothing 'in this Franchise shall bel,deemed to prohibit.the mortgage or the
pledge.,of any,property ofthe ;Company, real or personal, inciudiug'the system or ariy part'
thereof and the Franchise granted herein, or aleasing by Company from another person of
said property or parrthereoffor financing putposes or otherwise.
Section 16. FORFEITORE OF FRANCHISE,
(a) The County may declare a forfeiuue of this- Franclise,and revoke the same
in the event the Company:
(1) Substantially violates any provision of this Franchise, where such violation
remains uncured fora period ofthitty(30) days subsequent io,receipt by
the Company ofa written notice of such violation, except where such
violationisnot the fault of the Company" orris due to excusabie,reglect, or
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(Z) Practices:any fraud of deceit upon the County:
(b) Such. forfeiture shall be declared; by any resolution of the .Commissioners
duly adopted after t" (30) -dais notice to the Company, and shall in no way affect any
of the County's rights under this Franchise or any provision. of law; provided however,
that before the' Franchise may lie terminated and canceled under this section, except for
non-payment ofmonies'due. to the County from Company, the-.Company'shall be provided
with an opportunity to be heard at a..pubhc hearing before'the Commissioners upon ten
(d0). days' written notice .to the Company of the 'time. and place of the public, bearing;
provided that said notice shall affirmatively cite.the reasons alleged to constitute a cause
for revocation; and provided further that `notice of'said public bearing shall be,published in
a local newspaper of general circulation at-least'fve,(5) days before'the,hearing.
'Section 17- ffSCELLANEOUS:
Failure;to enforce or msist'upob compliance with. any of the terms or conditions of
thisTranchise shall not constitute a general. Waiver'.or-relinquishment of any such terms or
conditions; but the,sanie shall be and remain at all'timds in full force and effect.
Section 18. SEVERABILITY
If any section; subsection, sentence; clause, pbrase, orpgrtion of this Franchise is
for any reason held iuvalid or, unconstitutional by_any court or otheirgoyerument 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 remain'
portions hereof
Section 19. WRITTEMACCEPTANCE
The Company shallwrtliiri thi'ty days after this Franchise becomes effective
hie in the O?ce;oftbe ;
wntten'acce once of this 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 aud,shall'be construed to
bean acceptance.of all the terms.. conditions, and restrictionscontained in his, Franchise.
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IN WITNESS WHEREOF, the parties have caused. this Agreement to be executed
by the respective of1icers.and representatives heretofore duly authorized this.*?S day of
?-? c I 1997.
BOARD OF CONMSSIONERS OF
HAMILTON COUNTY
Sharon lark
Steven C. Dillinger
Z?
,Stet/ , Ho t
kTTEST:
J Ogle, ditor
The undersigned grantee ofa Franchise for a=cable ,television system for Hamilton
County,: Indiana, does hereby accept the.gran[ ofsaid franchise, and, agrees to be bound by
the terms and conditions contained.therein.
DATED. 'q S 1
TIME WARNER ENTERTAINMENT
AI7.VANCEINEWHOUSE, PARTNERSETP
dba Time Warner Cable
"L. atter&ld.
Division President
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