[HISTORY: Adopted by the Town Board of the Town of Maine 12-11-2001. Amendments
noted where applicable.]
This agreement made this 11th day of December, 2001 between
the Town of Maine ("Town"), a New York municipal corporation with
offices and principal place of business at Maine Town Hall, 12 Lewis
Street, PO Box 336, Maine, NY 13802, and TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE
PARTNERSHIP ("Time Warner"), a partnership organized and existing
under the laws of the State of New York, doing business at 120 Plaza
Drive, Suite D, Vestal, New York 13850.
WHEREAS, Time Warner currently provides cable television service
within the Town under authority of a franchise granted by the Town
pursuant to a franchise agreement dated September 16, 1991, originally
entered into between Town and NewChannels Corporation, and subsequently
assigned to Time Warner.
WHEREAS, the Town and Time Warner desire to renew the aforesaid
franchise and any amendments thereto, and to restate the terms and
conditions of Time Warner's franchise to provide cable television
service within the Town;
WHEREAS, the technical ability, financial condition and character
of Time Warner and its principals have been considered and approved
by the Town Board ("Town Board") of the Town, following a public hearing
which was duly advertised and conducted in full public proceedings
affording due process; and
WHEREAS, this franchise agreement is subject to and complies
with all applicable federal and state laws and regulations, including
without limitation, the rules of the New York State Public Service
Commission ("PSC") concerning franchise standards.
Witnesseth that in consideration of the mutual covenants of
the parties hereto hereinafter expressed, it is hereby mutually agreed
between the parties hereto as follows:
Pursuant to, and in accordance with, the provisions of subdivision
7 of Section 64 of the Town Law of the State of New York and other
applicable provisions of law, the Town hereby grants to Time Warner
the nonexclusive right and privilege to erect, place in the Town and
to construct, maintain and operate in, over and under the present
and future streets, sidewalks, alleys, public land and places and
highways in or of the Town, towers, poles, lines, cables, necessary
wiring and other apparatus for the purpose of transmitting, receiving,
amplifying and distributing telephone, telegraph, television and radio
signals and other video and aural programming and other communication
services within the Town and to the inhabitants thereof. The Town
reserves the right to award subsequent franchises to other parties,
provided that any grant of subsequent franchise shall be on terms
and conditions which are not more favorable or less burdensome that
those imposed on Time Warner hereunder.
The term of this agreement and the franchise granted hereunder
shall be for a period of 10 years, commencing on December 11, 2001
and expiring on December 11, 2011.
The franchise rights and obligations set forth in this agreement
shall be applicable to the Town. The area to be served shall include
those areas as indicated by the map attached hereto as Attachment
A, and herein referred to as the Primary Service Area.
(1)Â
Primary service area shall include each of the following within the
franchised area;
(a)Â
Those areas where cable television plant has been built without a
contribution in aid of construction by subscribers;
(b)Â
Those areas, if any, where Time Warner is obligated by the terms
of its franchise to provide cable television service without a contribution
in aid of construction by subscribers;
(c)Â
Any area adjoining an area described in subparagraph "a" or "b" of
this paragraph which contains dwelling units at minimum rate of 20
dwelling units per linear mile of aerial cable;
(d)Â
If the average number of dwelling unites per linear mile of aerial
cable in areas described in subparagraphs "a" and "b" of this paragraph
(the average is to be determined by dividing the sum of the dwelling
units in areas described in subparagraphs "a" and "b" of this paragraph
by the number of linear miles of cable in the same areas) is less
than 20, then any area adjoining an area described in subparagraphs
"a" and "b" of this paragraph and which contains at least the same
number of dwelling units per linear mile of aerial cable in areas
described in subparagraphs "a" and "b" of this paragraph.
(2)Â
Line extension area shall be any area within the franchised area
which is not the primary service area.
(a)Â
Within one year after receipt of all necessary operating authorizations,
cable television service will be offered throughout the authorized
area to all subscribers requesting service in any primary service
area;
(b)Â
Cable television service will not be denied to potential subscribers
located in line extension areas who are willing to contribute to the
cost of construction in accordance with the following formula:
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C
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(-)
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CA
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=
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SC
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LE
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P
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"C" equals the cost of construction of new plant, "CA" equals
the average cost of construction per mile in the primary service area.
"P" equals the lower of 20 or the average number of dwelling units
per linear mile of "a" and "b" of paragraph 1 of this section. "LE"
equals the number of dwelling units requesting service in the line
extension area. "SC" equals subscriber contribution in the line extension
area.
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(3)Â
Whenever, subsequent to the date which the company is obligated to
provide service throughout the primary service area, a potential subscriber
located in a line extension area requests service, Time Warner will,
within 30 days of the request, conduct a survey to determine the number
of potential subscribers located in the line extension area and shall
inform each of the potential subscribers of the contribution in aid
of construction that may be charged. Time Warner shall apply for pole
attachment agreements within 30 days of its receipt of contribution
in aid of construction. Cable television services must be made available
to those who made a contribution in aid within 90 days from the receipt
of pole attachments by the company.
(4)Â
The contribution aid of construction shall be in addition to the
installation rate set forth in this franchise in Attachment B.
(5)Â
During a ten-year period commencing at the completion of a particular
line extension, a pro-rate refund shall be paid to previous subscribers
as new subscribers are added to the particular line extension; the
amount of the refund, if any, shall be determined by application of
the formula annually. The refunds shall be paid annually to subscribers,
or former subscribers, entitled to receive them. The company shall
not be required to provide refunds to any previous subscriber otherwise
entitled to a refund who is no longer at the same address and who
has not informed the company of the subscriber's new address.
(6)Â
Cable television service will be provided to any subscriber who demands
service and who is located within 300 feet of aerial feeder cable,
and that the charge for the installation for any subscriber so situated
will not be in excess of the installation charge specified in the
franchise in Attachment B.
(7)Â
The company shall review line extensions in May of each year to reflect
the number of subscribers per mile so that adjustments or rebates
for line extension contribution in aid of construction may be established.
(a)Â
Time Warner shall construct, continue to operate and maintain acceptable
service in a safe and reliable manner. Throughout the term of this
franchise, Time Warner's cable television system shall have a minimum
capacity of 750 MHZ. Time Warner shall exercise efforts, in good faith,
to maximize the number of energized channels available to subscribers.
Time Warner shall provide a minimum of 72 channels on the standard
level of service and shall have a minimum capability of 100 channels
downstream. High-speed Internet access will be available in all areas
served.
(b)Â
Time Warner shall construct its cable system using materials of good
and durable quality, and all work involved in construction, installation,
maintenance and repair of the cable system shall be performed in a
safe, thorough and reliable manner.
(c)Â
Time Warner shall comply with all applicable United States, New York
State, Broome County and Town statutes, laws, local laws, ordinances,
codes, rules and regulations.
(d)Â
Before commencing any tree or brush trimming, cutting or clearing
on private property, Time Warner shall first obtain the written permission
of the affected property owner.
(e)Â
All technical specifications and the operation of the cable system
by Time Warner shall at all times conform to the applicable specifications
established by the United States Federal Communications Commission
("FCC") and the PSC. Time Warner will adhere to all state and federal
signal quality standards.
(f)Â
Time Warner shall: use facilities capable of distributing color television
signals; produce a picture of good quality that is undistorted, free
from ghost images and accompanied by proper sound on typical television
receivers in good repair, all as good as the state of the art from
time to time allows; transmit signals of adequate strength to produce
good pictures and sound at all outlets without cross-modulation in
the cables and without interfering with other electrical or electronic
systems; limit failure to a minimum by locating and correcting malfunctions
promptly, but in no event more than 48 hours after notice; render
efficient service, making repairs promptly, and interrupt service
only for good cause and for the briefest possible period, preceded,
if possible, by notice and to occur, if possible, during period of
minimum system use.
The rates and charges imposed by Time Warner for cable television
services shall be subject to the approval of the Town and the PSC
to the extent consistent with applicable state and federal law. The
rates for any cable television service for which such approval is
required shall be deemed part of the franchise. A required approval
of a change in rates in accordance with the appropriate procedures
for such approval shall be deemed to amend the franchise with the
respect to rates, any other requirements with respect to amendments
to the franchise to the contrary notwithstanding.
(a)Â
Time Warner shall maintain an office and toll-free number for the
purpose of receiving and responding to cable television subscriber
complaints. In addition, a maintenance service staff will be available
at this location.
(b)Â
All subscriber complaints or trouble calls shall receive investigative
action on the same day such complaint or call is received at the local
office, if possible, but in no case later than the following business
day. Time Warner shall give credit for any service outage in excess
of four continuous hours. Subscriber complaints and trouble calls
shall be processed in compliance with the standards set forth, and
in compliance with, the rules and regulations of the PSC.
(c)Â
Time Warner shall provide notice to its subscribers of its billing
practices, subscriber information, availability of parental control
devices, and the procedure for reporting and resolving subscriber
billing and technical complaints and equipment compatibility. Such
notice may be written or by such other means as the FCC or the PSC
may, from time to time, approve. Notice shall be given in writing
to each subscriber at the time of initial subscription, reconnection,
semi-annually or annually, and as required by the rules and regulations
of the PSC. Time Warner shall provide Subscriber Privacy Notices in
accordance with the Federal Cable Communications Policy Act of 1984,
as amended (47U.S.C.551).
(d)Â
Time Warner shall comply with the rules and regulations of the PSC
regarding Customer Service Consumer Protective Standards parts 590
and 596.
Time Warner shall continue to provide cable service to all subscribers
who meet their obligations to Time Warner with respect to such service.
Time Warner shall not abandon its cable television system or any portion
thereof without the written consent of the Town and the PSC.
(a)Â
Time Warner shall defend, indemnify and hold harmless the Town and
all of its officers, employees and boards of and from all liability,
actions, causes of action, suits, damages, losses, costs, and expenses
arising from claims of injury to persons or damage to property occasioned
by reason of any conduct of Time Warner, its officers, employees or
agents undertaken pursuant to this franchise or this agreement. The
Town shall promptly notify Time Warner of any claim for which it seeks
indemnification; afford Time Warner the opportunity to fully control
the defense of such claim and any compromise, settlement, resolution
or other disposition of such claim; and fully cooperate with Time
Warner in the defense of such claim, including making available to
Time Warner, all relevant information under its control.
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For this purpose. Time Warner shall obtain and carry a general
comprehensive liability policy naming the Town and its officers, employees
and boards as additional named insured parties, written by an insurance
company or companies qualified to so business in the State of New
York. The amounts of such insurance shall not be less than $1,000,000
for liability due to damage to property, not less than $2,000,000
for liability due to bodily injury or death of any person, and not
less than $4,000,000 for liability due to any one occurrence. The
Town shall notify Time Warner with 30 days after the presentation
of any claim or demand either by suit or otherwise made against the
Town on account of any negligence or other conduct on the part of
Time Warner.
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(b)Â
A certificate evidencing the insurance coverage required by paragraph
"a" above shall be delivered by Time Warner to the Town Clerk within
60 days of the date of this franchise. Such certificate shall state
that the Town be given at least 30 days prior written notice of any
cancellation or material change in coverage.
Time Warner shall promptly repair or replace any Town real property
or personal property which is damaged or destroyed by Time Warner
and shall restore such damaged property to serviceable conditions.
Time Warner shall not assign, sell or transfer this franchise
or this agreement without the express prior approval by resolution
of the Town Board of the Town, except that Time Warner may transfer
this franchise to an entity under common control of franchisee upon
notice to the Town if the following conditions are met: (a) the insurance,
defense, indemnity and hold harmless requirements set forth in Section
9(a) shall continue to be binding upon Time Warner for any claims
arising prior to the effective date of any such assignment, sale or
transfer, and (b) any entity to which Time Warner proposes to assign,
sell or transfer this franchise must first execute and file with the
Town Clerk of the Town a document by which such entity agrees to be
bound by and to fully comply with all of the provisions of this agreement.
As required by law, Time Warner shall not refuse to hire or
employ nor bar or discharge from employment, nor discriminate against
any person in compensation or in terms, conditions, or privileges
or employment because of age, race, creed, color, national origin,
sex, or handicap.
The Supervisor of the Town shall be responsible for the continuing
administration of this franchise.
The Town reserves the right to adopt, in addition to the provisions
of this franchise and existing applicable ordinances, such additional
regulations as it shall find necessary in the exercise of its police
power; provided, however, that such regulations are and not materially
in conflict with the privileges granted in this franchise.
Should any provision of this franchise or this agreement be
held invalid by a court or regulatory agency of competent jurisdiction,
the remaining provisions of this franchise and this agreement, as
the case may be, shall remain in full force and effect.
The terms and provisions of this franchise are subject to the
approval of the PSC.
The Town, upon notice and during normal business hours, shall
have the right to inspect all books, records, maps, plans, financial
statements and other like materials of Time Warner which are pertinent
to Time Warner's compliance with the terms and conditions of this
franchise and this agreement.
The Town and Time Warner agree that Time Warner's obligations
hereunder are subject to any applicable law, including laws regarding
the privacy of information regarding subscribers.
The Town shall maintain the confidentiality of any information
obtained pursuant to this provision to the extent permitted by law,
provided Time Warner has advised the Town of the confidential nature
of the information.
In the event that the Town receives a request for disclosure
of such information with it, in good faith, believes it must under
law comply, the Town will give Time Warner notice of such request
as soon as possible prior to disclosure in order to allow Time Warner
to take such steps as it may deem appropriate to seek judicial or
other remedies to protect the confidentiality of such information.
(a)Â
Time Warner shall locate its facilities underground in areas of the
Town where all electric and telephone utilities are so located. In
the event that it is not feasible for Time Warner to locate its facilities
underground, it may petition the Town for permission to locate such
facilities above ground.
(b)Â
For the purpose of providing for the future growth and development
of cable television and to afford future residents the comfort and
convenience of cable television service, the Town Planning Board shall,
to the extent authorized by law, require all future subdividers to
grant Time Warner access to, and necessary easements in, new subdivisions
for the purpose of installing cable television lines. Such access
and easements shall be similar to those granted public utilities such
as telephone and power companies.
Time Warner shall provide one outlet of basic and standard cable
service, at no charge, to each elementary, secondary, public, parochial,
and private school in the Town, as such term school is defined by
and receives funding pursuant to Title 1 of the Elementary and Secondary
Education Act of 1965, 20 U.S.C. § 24 la et seq.
Time Warner shall install and provide (for the duration of this
franchise) one outlet of basic and standard cable service, at no charge,
to any building owned or sponsored by the Town, situated in areas
served and located within 300 feet of existing cable.
Time Warner shall install (at no expense to the Town or to any
of the following entities) and provide free Road Runner service (a)
to the Town Hall for the purpose of connecting the Town's internal
network to high-speed Internet access, (b) to the Senior Citizens
Center, (c) the Town Highway Department Garage, (d) and the fire stations
of Maine Fire District, Glen Aubrey Fire Company, Union Center Fire
Company, Inc. and East Maine Fire Company. The Town shall supply its
own hub and internal network, and the Town may, at no additional charge,
install and operate within the Town Hall hubs, routers and other devices
so that there may be multiple uses of the Road Runner service within
the Town Hall. Time Warner shall provide the Town with liaison and
other assistance in remedying any Town problems relating to such hubs,
routers and other devices. It is understood that Time Warner shall
work with the Town's consultants to be sure there is compatibility
and to solve hub and router problems, but Time Warner shall have no
obligation to repair the Town's hubs or routers. Time Warner shall
not block such hubs, routers or other devices, or interfere with their
use by the Town.
Time Warner shall provide free web site hosting to the Town
for a Town web site and shall furnish typical support services customarily
provided by a web hosting service provider as long as Time Warner
operates Road Runner service within Broome County, provided, however,
that the Town shall be responsible for furnishing the content of such
web site.
Time Warner shall provide public, educational and governmental
access channels according to the rules and regulations of the PSC
and/or FCC.
All previous franchises shall no longer be of any force and
effect as of the effective date of this franchise as set forth in
Section 2 above. Any obligations of Time Warner to insure or defend,
indemnify or hold harmless shall survive any termination of such previous
franchise agreements or franchises.
Time Warner shall pay to the Town of Maine an annual franchise
fee of 4% of gross revenues received directly from subscribers within
the Town for any cable television services purchased on a regular,
recurring monthly basis.
According, "gross revenues" shall include revenues received
for the provision of basic and expanded cable tiers, Pay-TV services,
Road Runner, digital services and monthly equipment rental fees to
subscribers within the Town, but shall not include any installation
fees, advertising revenues, late fees, Pay-Per-View or other revenues
not received on a recurring monthly basis.
The foregoing payments to the Town shall be made on a quarterly
basis and within 60 days of the end of each calendar quarter.
The effective date of the franchise fee calculations under this
agreement shall be August 1, 2001.
Time Warner shall file requests for any necessary operating
authorization with the PSC and the FCC within 60 days from the date
the franchise is awarded by the Town.
Time Warner shall comply with the Customer Service Standards
as set forth in the Customer Service and Consumer Protection Standards
of the New York Public Service Law.
In the event that Time Warner enters into an agreement, conferring
additional benefits to any other municipality located in Broome County,
Tioga County or Chenango County, or containing a definition of "gross
revenues" substantially different from the definition of that term
as set forth in this agreement,, Time Warner shall notify the Town
of such additional benefits or such definition and shall offer the
Town the opportunity to amend this agreement to incorporate the same
into this agreement.
This agreement shall be construed in accordance with the laws
of the State of New York.
Any notices or payments required to be given or sent pursuant
to this agreement shall be directed to the addresses set forth on
page 1 of this agreement or to such other address as may hereafter
be designated in writing sent by one party to the other party hereto.
This agreement constitutes the complete understanding and agreement
of the parties with respect to the subject matter hereof and may not
be amended or modified without the express written consent of each
of the parties hereto.
