1987 AccuCable Agreement-, 39
,. ?iract? bolo. ?
AGREEMENT.
THIS AGREEMENT, made. and entered into this - day of 1;?EcdMbe2,
1987, by and between THE CITY OF CARMEL, an Indiana municipal corporation,
having its principal office located at 40 East Main Street, Carmel, Indiana
(hereinafter referred to as the "City"), and ACCUCABLE CO., a partnership
(hereinafter referred to as "AccuCable").
RECITALS
A. AccuCable and the previous operators of the cable television system
have provided continuous cable television services to the citizens of the City
of Carmel since 1967 pursuant to franchise granted by The City of Carmel, and
amended from time to time; and
B. The City and AccuCable wish to amend and completely restate said
franchise;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the City hereby consents to AccuCable's continued operation
of its cable television system through access with the public utilities which
are using the City's streets and right-of-ways upon the following conditions
and terms:
SECTION 1. TITLE
This Agreement may be referred to as "The City of Carmel Cable
Communications Franchise Agreement."
SECTION 2. DEFINITIONS
1. "Access Channel" means any of the access channels provided for
herein or any portion thereof, to be used for cablecasting on a first come,
first served, non-discriminatory basis, such channels to be transferable from
one purpose to another by the City.
t
2. "Agreement" means this Agreement and any amendments or renewals
thereof.
3. ".Basic Service" means those off-air channels and satellite
network channels for which no premium is charged and which are presently
carried by AccuCable together with the access channels and local origination
channel, if any, provided for in this Agreement.
4.. "Broadcast Signal" means a television or radio signal that is
transmitted over the air by any broadcast station licensed under Title III of
the Communication Act and is received by a Cable System off-the-air, by
microwave, CARS System, common carrier satellites, direct connection to a
broadcasting system or other means.
5. "Cablecast Signal" means a signal, other than a broadcast
signal, transmitted by a Cable System.
6. "Cable System" means a system of antennae, coaxial cables,
wires, wave guides, or other conductors, equipment and facilities designed,
constructed or used for the production of radio, television, optical or other
signals, audio, video or other form of electronic or electric interception and
receipt of television. or radio signals directly or indirectly received off the
air, and the distribution or transmission to subscribers of such signals by
means of cable, wire, converters. optical fibers or other similar devices.
7. "Channel" means a 6 MHz band of frequency in the electromagnetic
spectrum, or any other means of transmission (including but not limited to
optical fibers) which is capable of carrying one video television signal.
8. "City" means The City of Carmel. The City may appoint a
designee for any purpose under. this Agreement and shall notify AccuCable of
the identity and authority of such designee.
-2-
9. "Converter" means an electronic device which converts the
frequency of, descrambles, or otherwise processes signal carriers for display
on a cathode ray tube.
10. "Educational Access Channel" means any channel on which certain
schools, as defined herein, may cablecast educational programs on a first
come, first served, non-discriminatory basis.
11. "FCC" means the Federal Communications Commission and any
legally appointed designee, agent or successor.
12. "Government Access Channel" means any channel on which the City
may cablecast.
13. "Gross Annual Receipts" means all revenue collected directly or
indirectly by AccuCable from subscribers within the City for Basic Service and
one-half (1/2) of all revenue collected directly or indirectly by AccuCable
from subscribers within the City for Premium Service, exclusive of advertising,
installation, maintenance fees, franchise fees and any taxes on services
furnished by AccuCable herein imposed directly upon any subscriber or user. by
the Federal, State, City or other governmental unit and collected by AccuCable
on behalf of a governmental unit.
14. "Head-end" means any location which houses the electronic
equipment that transmits the necessary signals and services for the Cable
System.
15. "Local Origination" means that form of cablecasting wherein
programming is under the control of AccuCable.
16. "Locally Produced Programming" means programming which is
substantially created, taped, filmed or otherwise produced within the City;
provided, however, that locally produced programming may include a reasonable
-3-
n C
amount of materials produced outside of the City which are an integral part of
such programming.
17. "May" is permissive.
18. "Mayor" means the present chief executive officer of the City,
his/her designee, or any successor to the executive powers of the present
Mayor.
19. "Person" means any individual, association, firm, corporation or
other entity whether for-profit or not-..for-profit.
20. "Premium Service" means those satellite channels for which,
premium is charged over the fee charged for Basic Service.
21. "Programmer" means any person, firm, corporation or entity who
or which produces or otherwise provides program material for transmission to
subscribers by video, digital or other signals, either in. real time or from
recordings, by means of the Cable System.
22. "Public Access Channel" means any channel on which any resident
of the City may cablecast, without charge, on a first come, first served, non-
discriminatory basis.
23. "Resident" means any natural person who has resided in the City
for thirty (30) days of more, or as otherwise defined by applicable law.
24. "Residential Subscriber" means a subscriber who receives service
in an individual dwelling unit or multiple dwelling, where the service is not
to be utilized in connection with a business, trade or profession.
25. "School" means any public, parochial or private non-profit
non-vocational school within the City.
26. "Section means any section, subsection or provision of this
Agreement.
27. "Shall" and "will" are mandatory, not merely directive.
-4-
28. "Signal" means any transmission of radio frequency energy or of
optical information.
29. "Street" means the surface of as well as the space above and
below any public street, road, highway, freeway, lane, path, public way or
place, alley, court, sidewalk, boulevard, parkway, drive or other easement, or
any extension thereof, now or hereafter held by the City for any public
purpose and shall include such other easements or right-of-ways or extensions
thereof as shall be now held or hereafter held by the City which shall within
their proper use and meaning entitle the City to the use thereof for the
purpose of installing or transmitting cable transmissions over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes. amplifiers, appliances,
attachments and other property as may be ordinarily necessary and pertinent to
a cable system.
30. "Subscriber" means any person or entity receiving for any
purpose any Cable System service of AccuCable.
SECTION 3. SCOPE OF AUTHORITY
The City hereby consents that AccuCable shall have, for a period of
twenty (20) years from and after the date of this Agreement, the right and
privilege- to use utility poles, conduits and related facilities; to have,
acquire, construct, reconstruct, use, operate, and maintain a Cable. System for
the entire area of the City,- subject to the conditions and restrictions as
hereinafter provided. No privilege or power of eminent domain is bestowed by
this Agreement.
SECTION 4. FRANCHISE AGREEMENT
A. The City may amend the scope of this Agreement from time to
time, at AccuCable-s request or where required by law, to allow AccuCable to
innovate and implement new services and developments or to impose any terms
-5-
required by law. This Agreement-is a bilateral contract between AccuCable and
the City and may be modified or supplemented by mutual consent.
B. In furtherance of the general policy that the services provided
be innovative and modern, AccuCable will actively pursue a continuous policy
of incorporating new technical developments into the AccuCable system to
reflect proven technical advances in the industry which are marketable in the
City and which are financially feasible in the sole discretion of AccuCable.
C. The Cable System shall serve all residences within the City as
of the date hereof and all future residences within the City provided a
density of forty (40) homes per mile of cable plant exists as to each future
residence on a case by case basis. Nothing herein shall prevent AccuCable
from charging real estate developers or individuals for extending cable
television service to those areas not meeting the housing density requirement
stated herein.
D. This Agreement shall be non-exclusive; provided, however, that
the operation of any other cable system within the City shall be governed, at
a minimum, by substantially the same terms and conditions of this Agreement,
and AccuCable shall have the right, at its option, to elect to substitute the
entire contents of such agreement for this Agreement; it being the intent of
the City that for so long as this Agreement shall remain in effect, the terms
and conditions herein shall provide the minimum standards for installation and
operation of cable television systems within the City.
SECTION 5. POLE USE AGREEMENTS
A. AccuCable shall first obtain the written approval of the City
Engineer with respect to constructing its Cable System on utility poles and
conduits in places where there is no existing cable system equipment and which
are in, above, over, under, across, through or in any way connected with the
-6-
streets, public ways or public places in the City, which approval shall not be
unreasonably withheld. AccuCable shall apply for said written approval to the
City Engineer no less than five (5) working days before commencement of said
work.
B. AccuCable hereby agrees to enter into agreements for the use of
utility poles with all utility companies whose poles shall be used in or
affected by the construction of the Cable System.
C. It shall be unlawful for AccuCable or any other person acting on
its behalf to open or otherwise disturb the surface of any street, sidewalk,
driveway, public way or other public place in connection with utility poles
and conduits for any purpose whatsoever without first obtaining a written
pavement opening permit from the City Engineer. AccuCable shall apply for
said pavement opening permit no less than five (5) working days before the
planned commencement of said work. In the event of an emergency, the City
Engineer may waive the notice requirement in his or her sole discretion.
D. AccuCable shall restore any street it has disturbed, and shall,
at its own cost and expense, restore and replace any other property disturbed,
damaged or in any way injured by or on account of its activities to as good
condition as said property was in immediately prior to the disturbance, damage
or injury.
E. AccuCable shall, at its own cost and expense, protect, support,
temporarily disconnect, relocate in the same street or other public place, or
remove from said street or other public place, any of its property when
required to do so by the City because of: street or other public excavation;
construction; installation of sewers, drains, or water pipes; City-owned power
of signal lines; tracks; vacation or relocation of streets or any other type
-7-
of structure or improvement of a public agency; or. any other type of
improvement necessary for the public health, safety or welfare.
F. AccuCable shall maintain all wires, conduits, cables and other
real and personal property and facilities in good condition, order and repair.
G. AccuCable shall keep accurate, complete and current maps and
records of that portion of its system and facilities which are located
underground, to be updated as of the last of each year of operation during the
continuation of this Agreement. Said maps and records shall be available for
inspection and reproduction by the City during normal business hours at the
local office of AccuCable.
H. AccuCable shall not place, or cause to be placed., poles or other
equipment on private property outside the City or other utility easement
without securing written approval in advance from such property owner in a
form that may be recorded with the Hamilton County Recorder.
1. AccuCable shall comply with any and all FCC and State rules and
regulations, as well as generally accepted industry standards, governing the
construction, operation and installation of cable communications systems. In
addition:
(1) All cables and wires shall be installed parallel with
existing telephone and electric utility wires whenever possible;
and
(2) Multiple configurations shall be in parallel arrangement
and bundled in accordance with engineering and safety
considerations; and
(3) All installations of new cable shall be underground in
those areas of the City where both telephone and electric
utilities' facilities are underground.
-8-
J. The City Engineer shall give AccuCable not less than fifteen
(15) working days' notice of street improvements where paving, regrading,
grading or resurfacing of a permanent nature is involved.
(1) Said notice shall describe the nature and character of said
improvements, the Streets upon which they shall be made, the
extent of the improvements and the work schedule for the project.
(2) The City shall allow AccuCable a reasonable time to make
such additions, alterations, or repairs to its facilities as
AccuCable deems necessary in advance of the City's commencement
of said improvements so as to permit AccuCable to maintain
continuity of service.
(3) Notice shall be given as provided in Section 11.
K. AccuCable shall, at the request of any person holding a permit
to move a building, temporarily raise or lower its wires to permit the moving
of said building.
(1) Such temporary removal, raising or lowering of wires shall.
be at the sole cost and expense of the person requesting the
same, and AccuCable shall have the authority to request
reasonable payment for the same in advance before complying with
such request.
(2) Any person making such a request from AccuCable shall give
not less than ten (10) working days' notice of the contemplated
move.
L. The City shall have the right during the life of this Agreement
to install and maintain free of charge upon the poles of AccuCable any wire
and pole fixtures that do not unreasonably interfere with the Cable System
operations of AccuCable.
-9-
SECTION. 6. PREVIOUS RIGHTS ABANDONED
This Agreement is in lieu of any and all other legal or equitable
rights, privileges, powers, immunities, and authorities owned, possessed,
controlled, or exercisable by AccuCable or any successor pertaining to the
construction, operation, modification or maintenance of a Cable System in the
City. The acceptance of this Agreement shall operate, as between AccuCable
and the City only, as an abandonment of any and all such legal or equitable
rights, privileges, powers, immunities, and authorities within the City. All
construction, operation, modification and maintenance by AccuCable of any
Cable System in the City shall be under this Agreement and not under any other
right, privilege, power, immunity, authority, license or franchise granted by
the City.
SECTION 7. CLEAR ACCESS-WAYS
A. AccuCable may trim trees or other vegetation owned by the City
to prevent their branches of leaves from touching or otherwise interfering
with its wires, cables or other-structures.
(1) All trimming or pruning provided for herein shall be done
only with the prior approval (which approval shall not be
unreasonably withheld) and in accordance with the reasonable
instructions of the City Engineer.
(2) All trimming or pruning shall be at the sole cost of
AccuCable.
(3) AccuCable may contract for said trimming or pruning
services with any person approved by the City prior to the
rendering of said services,
B. AccuCable shall comply with. all provisions of the City Code and
all ordinances and resolutions concerning City property.
-10-
SECTION 8. TAXES
Nothing contained in this Agreement- shall be construed to exempt
AccuCable from any tax, levy or assessment which is or may be hereafter
authorized by law.
SECTION 9. TRANSFER OF RIGHTS
A. The rights granted to AccuCable by this Agreement may be
exercised by any successor or successors, assignee or assignees of AccuCable,
but such successor or successors, assignee or assignees shall be subject to
and bound by all of the provisions, terms, conditions and limitations
prescribed in this Agreement.
B. if during the term of this Agreement, AccuCable shall sell,
transfer, exchange or release, or voluntarily permit the sale, transfer,
exchange or release of more than twenty-five (258) per cent of the ownership
of AccuCable to any person (except to employees of AccuCable or any present
partner of AccuCable) without the prior written authorization of the City,
which authorization shall not be unreasonably withheld, then the City may at
its option terminate this Agreement.
C. In seeking said prior written authorization under B above,
AccuCable shall have the responsibility:
(1) To provide such relevant and material information
concerning the proposed transferee as the City may reasonably
request; and
(2) To demonstrate that the financial standing of the proposed
transferee is such as shall enable it to maintain and operate
the Cable System for the remaining term of this Agreement.
D. Any proposed transferee shall execute an agreement, in a form
and containing the. conditions approved by the City, that it will assume and be
-11-
bound by all of the provisions, terms and conditions of this Agreement and all
applicable Federal, State and local laws; and further that the transferee
shall fulfill all legal obligations set forth under this Agreement without,
however, relieving AccuCable of its obligations as accrued up to the date of
transfer.
E. Nothing in any approval by the City or execution by the Mayor or
Clerk-Treasurer of an authorization of any transfer or assignment of any
ownership interest pursuant to this Section shall be construed to waive or
release any of the City's police powers, or as an exercise of eminent domain.
F. The occurrence of any event which constitutes either an act of
bankruptcy by AccuCable as defined in the Federal Bankruptcy Act, or placement
of AccuCable into receivership or the entry of any final judgment which
materially impairs AccuCable's credit or AccuCable's failure to meet its
financial obligations on a continuing basis shall be deemed an unauthorized
transfer and assignment under the provision of this Section. The provisions
of this Subsection shall not apply until the City shall have given AccuCable
not less than one hundred twenty (120)- days prior notice of such material
breach and default to allow AccuCable an opportunity to correct such breach
and default or to make an approved transfer of its franchise pursuant to this
Agreement.
SECTION 10. INDEMNITY AND INSURANCE
A. Except for liability arising solely from acts of omissions of
the City, its officers, officials, employees and agents, AccuCable shall
indemnify, hold harmless and defend the City, its officers, officials,
employees and agents during the term of this Agreement for all damages,
penalties and claims which they may legally be required to pay as a result of
damages, penalties and claims arising out of the installation, operation or
-12-
maintenance of the Cable System authorized by this Agreement. AccuCable
specifically agrees that it will pay all reasonable expenses incurred by the
City, its officers, officials, employees and agents in connection with any
damages, penalties and claims for which they are indemnified hereunder. Such
expenses shall include reasonable attorney fees and the reasonable value of
any service rendered by any officer or employee of the City. Further, in the
event that a court of competent jurisdiction should determine that this
Agreement is invalid for any reason, then, in that event, AccuCable shall make
no claim against the City, its agents, officers, officials and employees, as a
result of said invalidity or for having entered into this Agreement.
B. AccuCable shall obtain, effective from the date of execution of
this Agreement, and shall keep in force and effect during the entire term of
this Agreement and any renewal or extension thereof, a policy of comprehensive
general liability insurance, providing the following minimum coverages for. the
benefit of the City, its officers, officials, employees and agents as an
additional insured:
(1) Bodily injury, including death:
$500,000/person each occurrence
$3,000,000/occurrence
(2) Property damage:
$500,000/claimant each occurrence
$1,000,000/occurrence
C. With respect to each policy of insurance required to be obtained
and kept in force by AccuCable and described in this Section, AccuCable shall
be solely responsible for the payment of premiums due for the insurance
thereunder.
-13-
D. Each policy of insurance required under the provisions of this.
Section shall provide for at least thirty (30) days' prior written notice to
the City of the insurer's intention not to renew said policy, or to cancel,
replace, or materially alter or change the same, such notice to be given as
provided in Section 11 hereof, and shall be non-cancellable except upon giving
such notice to the City.
E. No policy of insurance required under the provisions of this
Section shall be cancelled unless replaced or materially changed in any way or
be permitted to expire unless. replaced except upon express written
authorization of the City. The unauthorized cancellation, material change of
expiration of any policy of insurance required under this Section shall be
deemed a material breach of this Agreement.
F. Each policy of insurance required under the provisions of this
Section shall be issued by a responsible and non-assessable insurance company
authorized to do business in the State of Indiana.
G. AccuCable shall deliver to the City a copy of each insurance
policy required under the provision of this Section, or a certificate of
insurance evidencing the effectiveness of such policy, no later than the date
upon which such policy is required hereby to be. effective. AccuCable shall
thereafter at all times, continuously throughout the term of this Agreement
and any renewal or extension thereof, maintain on deposit with the City copies
of such policies or certificates of insurance evidencing that all required
insurance ds in effect and expressly stating the City's interest thereunder.
H. None of. the provisions of this Agreement or of any insurance
policy required by the City hereunder, not the receipt of any proceeds
recovered by the City under any such policy, nor any term or condition of this
Agreement shall be construed to excuse AccuCable from the faithful performance
-14-
of its obligations or limit its liability under any of the provisions of this
Agreement.
SECTION 11. SERVICE OF NOTICE
A. All notices required to be given to the City under any
provisions of this Agreement shall be in writing and shall be deemed served
when mailed to the Mayor or Clerk-Treasurer and to any other person designated
by the City herein to receive such notice.
B. All notices required to be given to AccuCable under any
provision of this Agreement shall be in writing and shall be deemed served
when mailed to Michael S. Maurer, one of its general partners, and/or any
other person designated in writing by AccuCable to receive such notice on
behalf of AccuCable.
C. AccuCable shall maintain within the City, throughout the term of
this Agreement, an address for service of notices by mail.
SECTION 12. REPORTS
A. On or before March 31,. 1988, and on the same day of each year
thereafter, AccuCable shall have at its offices made available to the City for
inspection and reproduction, an annual plant survey report which shall be a
complete survey of AccuCable's plant and a full report thereon. Said report
shall include, but not be limited to, an appropriate engineering evaluation
including suitable electronic measurements and shall be conducted in
conformity with such requirements, including supervision, as the City may
prescribe. Said report shall be in sufficient detail to enable the City to
ascertain that the technical standards of the FCC and/or the City are achieved
and maintained.
B. AccuCable shall have at its office and make available to the
City for inspection and reproduction, commencing July 1, 1987, copies of all
-15-
pleadings, applications, reports, communications and documents of any kind
required-to be maintained by AccuCable in its Cable System's public inspection
file, as required by the FCC as well as such portion of its FCC Form 326 as is
necessary-to show Gross Annual Receipts of the Cable System.
C. AccuCable shall provide to the City such other information or
reports as the City may from time to time request which are reasonable and
necessary to enable the City to verify or confirm the performance of the
rights, duties and obligations of the parties under the terms of this
Agreement.
D. AccuCable shall allow the City to make reasonable inspections of
any of AccuCable's facilities and equipment at any time upon one (1) day's
prior notice, or, in case of emergency, upon demand without prior notice.
E. AccuCable shall maintain an office within the City. The city
shall have the right to inspect at any time during normal business hours the
information provided for above including maps, service complaint logs and
performance test results which relate to the operation of the Cable System.
Access to the aforementioned records shall not be denied. by AccuCable on the
basis that said records contain "proprietary" information.
F. All reports and records required under this or any other section
shall be furnished at the sole expense of AccuCable.
SECTION 13. TERMINATION
A. The City may terminate this Agreement in the event of any
material breach of any provision hereof, or of any rule or regulation
promulgated pursuant hereto, or of any applicable Federal, State or local law;
or the material breach or other material failure, refusal or neglect by
AccuCable to perform its obligations under the terms and conditions of this
Agreement in accordance herewith; provided, however, AccuCable shall be given
-16-
written notice and ten (10) days to correct any such breach, and except when
such violation, breach, failure, refusal or neglect is caused by acts of God;
strikes; riots; emergencies declared by the President of the United States of
America, the Governor of Indiana, or the Mayor; or any other cause beyond the
reasonable control of .AccuCable..
B. If this Agreement is terminated for material breach, the City
may pursue remedy, legal or equitable, available to the City.
C. In the event that AccuCable dismantles or terminates the Cable
System, AccuCable shall, at the City's direction, restore any property, public
or private, to the condition in which it existed prior to the erection or
construction of the Cable System including any improvements made to such
property subsequent to the construction of the Cable System. Restoration of
City property shall be in accordance with the directions and specifications of
all affected agencies of the City and all applicable laws. AccuCable, at the
option and direction of the City, shall restore the same at its own expense.
SECTION 14. COMPLIANCE WITH STATE. AND FEDERAL LAWS; SEPARABILITY
A. Notwithstanding any other provisions of this Agreement to the
contrary, AccuCable shall at all times comply with all laws and regulations of
the State and Federal governments or any administrative agency thereof;
provided, however, if any- such State or Federal law or regulation shall
require AccuCable to perform any service, or shall permit AccuCable to perform
any service, or shall prohibit AccuCable from performing any service, in
conflict with the terms of this Agreement or of any law or regulation of the
City, then as soon as possible following knowledge thereof, AccuCable shall
notify the City of the point of conflict believed to exist between such
regulation or law and the laws or regulations of the City or this Agreement.
-17-
H. if any provision of this Agreement is held by any -court or
Federal or State agency of competent jurisdiction to be invalid as conflicting
with any Federal or State law, rule or regulation now or hereafter in effect,
or is held by such court or agency to be modified in any way in order to
conform to the requirements of any such law, rule or regulation, said
provision shall be considered a separate, distinct and independent part of
this Agreement, and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event that such law,
rule or regulation is subsequently repealed, rescinded, amended or otherwise
changed, so that the provision hereof which had been held invalid or modified
is no longer in conflict with the law, rules and regulations then in effect,
said provision shall thereupon return to full force and effect and shall
thereafter be binding on the parties hereto; provided that the City shall give
AccuCable ninety (90) days' written notice of such change before -requiring
compliance with said provision.
C. if any provision of this Agreement is rendered void or is
substantially impaired or if either party's performance is frustrated by
action of a court or action of the State or Federal government; or is
frustrated by failure to secure future contractural arrangements for pole
attachments or conduits, the City and AccuCable agree to use best efforts to
modify any of the provisions herein to such reasonable extent as may be
necessary to carry out the full intent and purpose.of this Agreement.
SECTION 15. CONTINUITY OF SERVICE
in the event that interruption of service is required by AccuCable
for rebuilding, overbuilding, modification, repairs or the like, the
interruption shall be as brief as possible and at times when the viewing
audience is at a minimum. Records of such interruption shall be kept.
-18-
SECTION 16. DESIGN OF CABLE SYSTEM
A. AccuCable shall maintain a Cable System with sufficient bandwidth
that, when used in conjunction with an appropriate device at the subscriber's
receiver, shall enable the reception of a minimum of thirty-five (35) video
channels or approximately three hundred (300) megahertz.
B. AccuCable shall continue to carry a diverse offering of
broadcast television signals. The Cable System, when used with an appropriate
converter, parental guidance key, or other device at the subscriber's
receiver, shall enable the subscriber to receive only Basic Service; provided
that AccuCable shall be under no obligation to offer such device on a
selective or per-channel basis. AccuCable shall make available to all
subscribers a diverse selection of FM radio signals at a stated monthly or
one-time charge.
C. Subject to any restrictions imposed by any Federal or State
regulatory agencies having jurisdiction, should AccuCable elect to furnish
subscribers with local origination cablecast transmissions, and should
AccuCable receive any money, service or other valuable consideration, directly
or indirectly, in return for cablecasting any of the above programming,
AccuCable shall make an announcement within each such program as to the
identity of the source of the consideration.
D. Alphanumeric origination cablecasting of informational nature
shall be provided on the Cable System. Such cablecasting shall include, but
not be limited to, a community calendar of events and system program guide as
to all activated channels, to be determined in the sole and unreviewable
discretion of AccuCable.
E. One (1) access channel shall be provided for educational
cablecast transmissions and for government, public and leased cablecast
-19-
transmissions. AccuCable agrees to maintain the access channel at the
technical level of the entire Cable System. In the event that demand for
locally produced, non-duplicative, non-automated programming on a bona fide
continuous basis for at least six (6) consecutive weeks for the access channel
exceeds seventy-five (758) per cent of prime time (7:00 P.M. to 11:00 P.M.)
viewing hours or fifty (508) per cent of all hours from 10:00 A.M. to 10:00
P.M., AccuCable shall activate a new access channel within thirty (30) days
after notice by the City up to the relevant channel capacity specified in
Subsection A hereof. In the event that AccuCable is required to activate a
new access channel as provided herein, then at the end of a one-year period
after such activation AccuCable shall have the opportunity to show
affirmatively to the City that at no time during the previous one-year period
was the aforementioned test met with regard to the original access channel.
If AccuCable is able to make such a showing, the new access channel will
revert to AccuCable's sole use and no new access channel shall be required to
be activated hereunder until the City once again demonstrates that the
aforementioned test has been met.
F. AccuCable shall make available at a reasonable charge to any
subscriber so requesting, a "parental guidance" or "lock-out" device which
shall permit the subscriber, at his or her option, to eliminate comprehensible
reception of a channel furnishing pay programming.
G. To the extent not otherwise in use by the City, AccuCable may
use any of the above access channels, facilities or equipment for its own
purposes or may allocate such to any other governmental units which it serves
within Hamilton County; provided, however, that this Subsection G shall in no
way pre-empt the City's right to use such access channels, facilities or
equipment, as provided herein.
-20-
H. AccuCable shall maintain in constant readiness equipment capable
of providing standby power for the head-end and trunk amplifiers for a minimum
of four (4) hours. AccuCable shall comply with all utility and other safety
regulations to prevent a standby generator from powering the "dead" utility
line.
I. AccuCable shall promulgate and adhere to a preventive maintenance
policy directed toward maximizing the realiability (meantime-between-
malfunctions) and maintainability (meantime-to-repair) of the Cable System
with respect to its delivery of service to subscribers at or above the
performance standards set forth herein.
J. AccuCable shall maintain a repair department comprising
qualified technicians, service vehicles and equipment to provide prompt and
efficient repair service within the parameters set forth below:
(1) Whenever it is necessary to interrupt service for more than
one (1) hour for the purpose of making repairs, adjustments or
installations, AccuCable shall do so at such time as will cause
the least inconvenience to the subscribers and, unless such
interruption is unforeseen and immediately necessary, it shall
give reasonable notice thereof to its subscribers.
(2) AccuCable shall have a local, listed telephone or answering
service so operated that requests for repairs or adjustments can
be received at any time, twenty-four (24) hours per day, seven
(7) days per week; and, insofar as possible, AccuCable's
response to such requests shall be on a same-day basis, but in
no event later than the next business day after. AccuCable's
receipt of such a request.
-21-
SECTION 17. -RATES
A. AccuCable shall set forth in writing, the availability of and
regulations governing its access channels, its billing practices and policies
and shall furnish a copy thereof to each new subscriber requesting same.
(1) Nothing herein shall prohibit AccuCable from requiring
advance payment for installation and/or service.
(2) In the event a subscriber's Basic Service is terminated,
monthly charges for service shall be pro-rated on a daily basis
and, where advance payment has been made by a subscriber, the
appropriate refund shall be made by AccuCable to the subscriber
within thirty (30) days of such termination.
(3) Subject to provisions of applicable laws, nothing herein
shall prohibit AccuCable from levying a charge for late payment
of a subscritier's account or terminating service for non-payment.
SECTION 18. CHARGES AND RULES FOR ACCESS USE
A. No charge shall be made for use of. the government, public or
educational access channels, or portion of any channel dedicated to such use.
B. AccuCable and the City shall agree upon reasonable rules and
regulation which control and encourage the responsible use of the access
channels described above. These rules and regulations and any amendments
thereto shall be placed on file with the City and shall be made available to
the public by AccuCable. In the event the City designates a body to
administer the access channels in any way, AccuCable will cooperate with and
consult with such body in connection with matters relating to the use of the
public access channels. In the event the body shall make recommendations for
rules or regulations relating to public access, AccuCable shall not
-22-
unreasonably withhold implementation thereof; provided, however, that any
proposed policy, rule, regulation or use, including but not limited to,
program or programming material, which in a specific written opinion of
attorneys for AccuCable or the City Attorney would expose it or them to
unreasonable risk of liability may either by rejected or, after receiving
satisfactory assurances of indemnification, accepted.
SECTION 19. MUNICIPAL AND SCHOOL SERVICE
A. AccuCable shall provide, without monthly service charge, Basic
Service to one (1) location in each designated City building, including the
Public Library.
B. AccuCable shall provide, without monthly charge, Basic Service
to one (1) location in each school within the City for educational purposes
solely.
C. It is understood that in the case of service drops to
governmental buildings, these shall be used for governmental purposes only and
that in the case of service drops to the schools, these shall be used for
classroom type educational purposes only. If AccuCable provides a free
standard service drop which is in excess of one hundred fifty (1501) feet from
existing cable, then-AccuCable may charge a reasonable construction charge and
reasonable periodic maintenance fee for that construction required in excess
of one hundred fifty (150') feet from existing cable.
SECTION 20. SUBSCRIBER COMPLAINTS
A. AccuCable shall promulgate a written complaint procedure for
reporting and resolving subscriber complaints and shall furnish a copy thereof
to each new subscriber upon request and to all subscribers upon request at
such time as there is a change in policy'.
-23-
r? •1
r1
B. AccuCable shall receive all subscriber complaints at its
business office serving the City and shall handle all such complaints promptly.
C. AccuCable shall retain all written complaints and a log of all
verbal complaints for a period of three (3) years after receipt thereof.
D. At the request of the City but no more often than annually,
AccuCable shall endeavor to ascertain the opinion of its subscribers on matters
reasonably agreed to by the City and AccuCable such as quality of service,
local access channels and complaint procedures.
SECTION 21. FEES
A. As compensation for the City's consent to AccuCable's use of
utility poles and conduits in the City's streets and right-of-ways for the
construction, operation, maintenance, modification and reconstruction of its
Cable System, and for the City's costs of maintenance, improvement and
supervision thereof, and for the City's costs of establishing and conducting
the regulatory activities required by virtue of the Franchise Agreement
granted hereby, AccuCable shall pay to the City, an annual amount commencing
from the date of execution of this Agreement equal to five percent (5%) of
AccuCable's Gross Annual Receipts less AccuCable's cost of any equipment of
service provided to the City at the request of the City in addition to the
requirement of this Franchise.
B. Payments due the City under this provision shall be computed
semi-annually for the preceding six (6) months, as of March 31 and
September 30. Each payment shall be due and payable no later than sixty (60)
days after the above dates. Each payment shall be accompanied by a brief
written report showing the basis for the computation and such other relevant
facts as may be required by the City. A copy of the report and the franchise
fee check shall be mailed to the Carmel Cable TV Advisory Committee.
-24-
C. No acceptance of any payment shall be construed as an accord
that the amount paid is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the City may have for
further or additional sums payable under the provisions of this Agreement.
All amounts paid shall be subject to audit and recomputation by the City.
D. Upon the termination for any reason of this Agreement, AccuCable
shall immediately submit to the City a detailed financial statement showing
the Gross Annual Receipts of AccuCable for the time elapsed since the last
period for which AccuCable has paid the required fee; and AccuCable shall pay
to the City, not later than thirty (30) days following the termination, the
appropriate fee due. For verification purposes, AccuCable shall furnish such
records as are necessary to verify computation of the fee.
SECTION 22. SERVICE TO CUSTOMERS
A. The Cable System shall be in operation twenty-four (24) hours
per day and shall endure service interruptions only for good cause and for a
reasonable time as determined by the City. Interruption of service shall be
for the shortest possible time.
B. AccuCable shall conform to the Civil Rights Standards of the
State of Indiana and of the Federal government with respect, to subscribers and
employees. This provision shall not be deemed to prohibit promotional
campaigns to stimulate subscriptions to the Cable System or other legitimate
uses thereof, nor. shall it be deemed to prohibit the establishment of a
graduated scale of charges and classified rate schedules to which any customer
coming within such classifications shall be entitled.
SECTION 23. CONTEST OF VALIDITY
AccuCable agrees, by its execution of this Agreement, that it will
not at any time set up against the City in any claim or proceeding any
-25-
condition or term of this Agreement as unreasonable, arbitrary or void, or
that -the City had no power of autihority to make such term :or_ Condition, but
shall.-be required to accept the validity of the terms and conditions of this
Agreement in their entirety`.
SECTION'. 24.. APPLICABLE LAW
This Agreement shall be govetned 'in all respects by the laws, of the
State of Indiana.
IN WITNESS WHEREOF, t'he+ partieS hereto have caused this Agreement to
be. executed by their duly authorized representatives as of the day; and year
first-above written.
DATED Y/
ACCUCABLE CO.
Attest•
JBVVt'[i?ancoak, Clei - zeasuc2z
`-7nSrw 4+•u6??3
-26-
By
dichael S. •Ma&urer, Gen. Partner