[HISTORY: Adopted by the Town Council of
the Town of Dagsboro 4-22-2013.[1] This Franchise Agreement (this "Franchise") is between
the Town of Dagsboro, hereinafter referred to as "Franchising Authority"
and Mediacom of Delaware LLC, hereinafter referred to as "Grantee.
Amendments noted where applicable.]
[1]
Editor's Note: This franchise replaces the
former franchise with Mediacom of Lower Delaware/Maryland, adopted
3-9-1998.
For the purpose of this Franchise, the following terms, phrases,
words, and abbreviations shall have the meanings ascribed to them
below. When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include
the singular number, and words in the singular number include the
plural number:
A.
"Basic Cable Service" is the lowest-priced tier of Cable Service
that includes the retransmission of local broadcast television signals.
B.
"Cable Act" means Title VI of the Cable Act of 1934, as amended.
D.
"Cable System" shall mean the Grantee's facility, consisting
of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide Cable
Service which includes video programming and which is provided to
multiple Subscribers within the Service Area.
E.
"FCC" means the Federal Communications Commission or successor governmental
entity thereto.
F.
"Franchising Authority" means the Town of Dagsboro, DE.
G.
"Grantee" means Mediacom Delaware LLC, or the lawful successor, transferee,
or assignee thereof.
H.
"Gross Revenues" means revenues derived from the operation of the
Cable System received by Grantee from Subscribers for Basic Cable
Services in the Service Area; provided, however, that Gross Revenues
shall not include franchise fees, the FCC User Fee or any tax, fee
or assessment of general applicability collected by the Grantee from
Subscribers for pass-through to a government agency.
I.
"Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
J.
"Public Way" shall mean the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court,
boulevard, sidewalk, parkway, way, lane, public way, drive, circle,
or other public right-of-way, including, but not limited to, public
utility easements, dedicated utility strips, or rights-of-way dedicated
for compatible uses now or hereafter held by the Franchising Authority
in the Service Area which shall entitled the Grantee to the use thereof
for the purpose of installing, operating, repairing, and maintaining
the Cable System.
K.
"Service Area" means the present boundaries of the Franchising Authority,
and shall include any additions thereto by annexation or other legal
means, subject to the exceptions in subsection 3.9.
L.
"Standard Installation" is defined as 125 feet from the nearest tap
to the Subscriber's terminal.
M.
"Subscriber" means a Person who lawfully receives Cable Service of
the Cable System with the Grantee's express permission.
The Franchising Authority hereby grants to the Grantee a nonexclusive
Franchise which authorizes the Grantee to construct and operate a
Cable System in, along, among, upon, across, above, over, under, or
in any manner connected with Public Ways within the Service Area,
and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain, or retain in, on, over, under, upon, across,
or along any Public Way such facilities and equipment as may be necessary
or appurtenant to the Cable System for the transmission and distribution
of Cable Services, data services, information and other communications
services or for any other lawful purposes.
The Grantee agrees to comply with the terms of any lawfully
adopted generally applicable local ordinance, to the extent that the
provisions of the ordinance do not have the effect of limiting the
benefits or expanding the obligations of the Grantee that are granted
by this Franchise. Neither party may unilaterally alter the material
rights and obligations set forth in this Franchise. In the event of
a conflict between any ordinance and this Franchise, the Franchise
shall control.
The Franchising Authority shall not permit any person to provide
services similar to those provided by the Grantee in the Service Area
without first having secured a nonexclusive franchise from the Franchising
Authority. The Franchising Authority agrees that any grant of additional
franchises or other authorizations, including OVS authorizations by
the Franchising Authority to provide services similar to those provided
by the Grantee pursuant to this Agreement to any other entity, shall
cover the entire Service Area and shall not be on terms and conditions
more favorable or less burdensome to the grantee of any such additional
franchise or other authorization than those which are set forth herein.
In any renewal of this Franchise, the Franchising Authority, should
it seek to impose increased obligations upon the Grantee, must take
into account any additional franchise(s) or authorizations previously
granted and find that the proposed increased obligations in the renewal
are not more burdensome and/or less favorable than those contained
in any such additional franchise(s) or authorizations.
The Cable System installed by the Grantee pursuant to the terms
hereof shall be located so as to cause a minimum of interference with
the proper use of Public Ways and with the rights and reasonable convenience
of property owners who own property that adjoins any of such Public
Ways.
If, during the course of the Grantee's construction, operation,
or maintenance of the Cable System, there occurs a disturbance of
any Public Way by the Grantee, Grantee shall replace and restore such
Public Way to a condition reasonably comparable to the condition of
the Public Way existing immediately prior to such disturbance.
Upon its receipt of reasonable advance written notice, to be
not less than 10 business days, the Grantee shall protect, support,
raise, lower, temporarily disconnect, relocate in or remove from the
Public Way any property of the Grantee when lawfully required by the
Franchising Authority by reason of traffic conditions, public safety,
street abandonment, freeway and street construction, change or establishment
of street grade, installation of sewers, drains, gas or water pipes,
or any other type of public structures or improvements which are not
used to compete with the Grantee's services. The Grantee shall
in all cases have the right of abandonment of its property.
The Grantee shall, on the request of any Person holding a lawful
permit issued by the Franchising Authority, protect, support, raise,
lower, temporarily disconnect, relocate in or remove from the Public
Way as necessary any property of the Grantee, provided:
A.
The expense of such is paid by said Person benefiting from the relocation,
including, if required by the Grantee, making such payment in advance;
and
B.
The Grantee is given reasonable advance written notice to prepare
for such changes. For purposes of this subsection, "reasonable advance
written notice" shall be no less than 30 business days in the event
of a temporary relocation, and no less than 120 days for a permanent
relocation.
The Grantee shall have the authority to trim three or other
natural growth in order to access and maintain the Cable System.
Construction, operation, and maintenance of the Cable System
shall be performed in an orderly and workmanlike manner. All such
work shall be performed in substantial accordance with generally applicable
federal, state, and local regulations and the National Electric Safety
Code.
In those areas of the Service Area where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, the
Grantee likewise shall construct, operate, and maintain its Cable
System underground. Nothing contained in this subsection shall require
the Grantee to convert its Cable System to underground facilities
unless all other telephone and electric utilities within the Town
are converting their systems to underground facilities during the
term of this Agreement, and the cost of such conversion to Grantee
is not unreasonable or overly expensive when calculated on a per Subscriber
basis. In calculating the reasonableness of the costs related to converting
its Cable System to underground facilities, Grantee shall endeavor
to lay facilities in a joint trench with other utilities, if and when
practical.
The Franchising Authority agrees to include the Grantee in the
platting process for any new subdivision. At a minimum, the Franchising
Authority agrees to require, as a condition of issuing a permit for
open trenching to any utility or developer, that the utility or developer
give the Grantee at least 10 days' advance written notice of
the availability of the open trench, and that the utility or developer
provide the Grantee with reasonable access to open trench. Notwithstanding
the foregoing, the Grantee shall not be required to utilize any open
trench.
Grantee agrees to provide Cable Service to all residences in
the Service Area subject to the density requirements specified in
this subsection. Whenever the Grantee receives a request for Cable
Service from a potential Subscriber in an unserved area contiguous
to Grantee's existing distribution facilities where there are
at least 10 residences within 1,320 cable-bearing strand fee (one-quarter
cable mile) from the portion of the Grantee's trunk or distribution
cable which is to be extended, it shall extend its Cable System to
such Subscribers at no cost to said Subscribers for the Cable System
extension, other than the published Standard/non-Standard Installation
fees charged to all Subscribers. Notwithstanding the foregoing, the
Grantee shall have the right, but not the obligation, to extend the
Cable Service into any annexed area which is not contiguous to the
present Service Area of the Grantee, or into any area which is financially
or technically infeasible due to extraordinary circumstances, such
as a runway or freeway crossing.
No Subscriber shall be refused service arbitrarily. However, if an area does not meet the density requirements of § A281-3.9 above, the Grantee shall only be required to extend the Cable System to Subscriber(s) in that area if the Subscriber(s) are willing to share the capital costs of extending the Cable System. Specifically, the Grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per 1,320 cable-bearing strand fee from the Grantee's trunk or distribution cable, and whose denominator equals 10. Subscribers who request service hereunder shall bear the remaining cost to extend the Cable System on a pro rata basis. The Grantee may require that payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. Subscribers shall also be responsible for any Standard/non-Standard Installation charges to extend the Cable System from the tap to the residence.
The Grantee, upon request, shall provide, without charge, a
Standard Installation and one outlet of Basic Cable Service to those
administrative buildings owned and occupied by the Franchising Authority,
fire stations(s), police station(s), and K-12 public school(s) that
are passed by its Cable System. The Cable Service provided shall not
be distributed beyond the originally installed outlet without authorization
from the Grantee. The Cable Service provided shall not be used for
commercial purposes, and such outlets shall not be located in areas
open to the public. The Franchising Authority shall take reasonable
precautions to prevent any inappropriate use of the Grantee's
Cable System or any loss or damage to Grantee's Cable System.
The Franchising Authority shall hold the Grantee harmless from any
and all liability or claims arising out of the provision and use of
Cable Service required by this subsection. The Grantee shall not be
required to provide an outlet to such buildings where a non-Standard
Installation is required, unless the Franchising Authority or building
owner/occupant agrees to pay the incremental cost of any necessary
Cable System extension and/or non-Standard Installation. If additional
outlets of Basic Cable Service are provided to such buildings, the
building owner/occupant shall pay the usual installation and service
fees associated therewith.
If funds are available to any Person using the Public Way for
the purpose of defraying the cost of any of the foregoing, the Franchising
Authority shall reimburse the Grantee in the same manner in which
other Persons affected by the requirement are reimbursed. If the funds
are controlled by another governmental entity, the Franchising Authority
shall make application for such funds on behalf of the Grantee.
A.
The Grantee shall pay to the Franchising Authority a franchise fee of 5% of annual Gross Revenues (as defined in § A281-1.1 of this Franchise). In accordance with the Cable Act, the twelve-month period applicable under the Franchise for the computation of the franchise fee shall be a calendar year. The franchise fee payment shall be due annually and payable within 90 days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report prepared by a representative of the Grantee showing the basis for the computation.
B.
Limitation on franchise fee actions. The period of limitation for
recovery by the Franchising Authority of any franchise fee payable
hereunder shall be three years from the date on which payment by the
Grantee is due to the Franchising Authority.
The Franchising Authority may regulate rates for the provision
of Basic Cable Service and equipment as expressly permitted by federal
law.
A.
The Franchising Authority and the Grantee agree that any proceedings
undertaken by the Franchising Authority that relate to the renewal
of the Grantee's Franchise shall be governed by and comply with
the renewal provisions of federal law.
B.
In addition to the procedures set forth in the Cable Act, the Franchising
Authority agrees to notify the Grantee of all of its assessments regarding
the identity of future cable-related community needs and interests,
as well as the past performance of the Grantee under the then current
Franchise term. The Franchising Authority further agrees that such
assessments shall be provided to the Grantee promptly so that the
Grantee has adequate time to submit a proposal pursuant to the Cable
Act and complete renewal of the Franchise prior to expiration of its
term.
C.
Notwithstanding anything to the contrary set forth in this § A281-4.3, the Grantee and the Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment in accordance with the provisions of federal law, the Franchising Authority and the Grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof.
A.
If a renewal or extension of the Grantee's Franchise is denied
or the Franchise is lawfully terminated, and the Franchising Authority
either lawfully acquires ownership of the Cable System or by its actions
lawfully effects a transfer of ownership of the Cable System to another
party, any such acquisition or transfer shall be at the price determined
pursuant to the provisions set forth in Section 627 of the Cable Act.
B.
The Grantee and the Franchising Authority agree that in the case
of a final determination of a lawful revocation of the Franchise,
the Grantee shall be given at least 12 months to effectuate a transfer
of its Cable System to a qualified third party. Furthermore, the Grantee
shall be authorized to continue to operate pursuant to the terms of
its prior Franchise during this period. If, at the end of that time,
the Grantee is unsuccessful in procuring a qualified transferee or
assignee of its Cable System which is reasonably acceptable to the
Franchising Authority, the Grantee and the Franchising Authority may
avail themselves of any rights they may have pursuant to federal or
state law. It is further agreed that the Grantee's continued
operation of the Cable System during the twelve-month period shall
not be deemed to be a waiver, nor an extinguishment of, any rights
of either the Franchising Authority or the Grantee.
The Grantee's right, title, or interest in the Franchise
shall not be sold, transferred, assigned, or otherwise encumbered,
other than to an entity controlling, controlled by, or under common
control with the Grantee, without prior written notice to the Franchising
Authority. No such notice shall be required, however, for a transfer
in trust, by mortgage, by other hypothecation, or by assignment of
any rights, title, or interest of the Grantee in the Franchise or
Cable System in order to secure indebtedness.
The Grantee agrees that the Franchising Authority, upon 30 days'
written notice to the Grantee, and no more than once annually, may
review such of its books and records at the Grantee's business
office, during normal business hours and on a nondisruptive basis,
as is reasonably necessary to ensure compliance with the terms of
this Franchise. Such notice shall specifically reference the subsection
of the Franchise that is under review so that the Grantee may organize
the necessary books and records for easy access by the Franchising
Authority. Alternatively, if the books and records are not easily
accessible at the local office of the Grantee, the Grantee may, at
its sole option, choose to pay the reasonable travel costs of the
Franchising Authority's representative to view the books and
records at the appropriate location. The Grantee shall not be required
to maintain any books and records for Franchise compliance purposes
longer than three years. Notwithstanding anything to the contrary
set forth herein, the Grantee shall not be required to disclose information
that it reasonably deems to be proprietary or confidential in nature
or disclose books and records of any affiliate which is not providing
Cable Service in the Service Area. The Franchising Authority agrees
to treat any information disclosed by the Grantee as confidential
and only to disclose it to employees, representative, and agents thereof
that have a need to know, or in order to enforce the provisions hereof.
The Grantee shall not be required to provide Subscriber information
in violation of Section 631 of the Cable Act.
The Grantee shall maintain in full force and effect, at its
own cost and expense, during the term of the Franchise, Commercial
General Liability Insurance in the amount of $1,000,000 combined single
limit for bodily injury and property damage. The Franchising Authority
shall be designated as an additional insured, and such insurance shall
be noncancellable except upon 30 days' prior written notice to
the Franchising Authority. Upon written request, the Grantee shall
provide a Certificate of Insurance showing evidence of the coverage
required by this subsection.
The Grantee agrees to indemnify, save and hold harmless, and
defend the Franchising Authority, its officers, boards and employees,
from and against any liability for damages and for any liability or
claims resulting from property damage or bodily injury (including
accidental death), which arise out of the Grantee's construction,
operation, or maintenance of its Cable System in the Service Area,
provided that the Franchising Authority shall give the Grantee written
notice of its obligation to indemnify the Franchising Authority within
10 days of receipt of a claim or action pursuant to this subsection.
Notwithstanding the foregoing, the Grantee shall not indemnify the
Franchising Authority for any damages, liability or claims resulting
from the willful misconduct or negligence of the Franchising Authority.
In the event that the Franchising Authority believes that the
Grantee has not complied with any material term of the Franchise,
the Franchising Authority shall informally discuss the matter with
Grantee. If these discussions do not lead to resolution of the problem,
the Franchising Authority shall notify the Grantee in writing of the
exact nature of such alleged noncompliance.
The Grantee shall have 30 days from receipt of the notice described in § A281-7.1 to:
A.
Respond to the Franchising Authority, contesting the assertion of
such noncompliance; or
B.
Cure such default; or
C.
In the event that, by the nature of such default, it cannot be cured
within the thirty-day period, initiate reasonable steps to remedy
such default and notify the Franchising Authority of the steps being
taken and the projected date they will be completed.
In the event that the Grantee fails to respond to the notice described in § A281-7.1 pursuant to the procedures set forth in § A281-7.2, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to § A281-7.2C above, if it intends to continue its investigation into the default, then the Franchising Authority shall schedule a public hearing. The Franchising Authority shall provide the Grantee at least 10 days' prior written notice of such hearing, which specifies the time, place and purpose of such hearing, and provide the Grantee the opportunity to be heard.
Subject to applicable federal and state law, in the event the Franchising Authority, after the hearing set forth in § A281-7.3, determines that the Grantee is in material default of any provision of the Franchise, the Franchising Authority may:
A.
Should the Franchising Authority seek to revoke the Franchise after following the procedures set forth in §§ A281-7.1 through A281-7.4 above, the Franchising Authority shall give written notice to the Grantee of its intent. The notice shall set forth the exact nature of the repeated or ongoing substantial noncompliance with a material term or terms of the franchise. The Grantee shall have 90 days from such notice to object, in writing, and to state its reasons for such objection. In the event the Franchising Authority has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The Franchising Authority shall cause to be served upon the Grantee, at least 30 days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise.
B.
At the designated hearing, Grantee shall be provided a fair opportunity
for full participation, including the right to be represented by legal
counsel, to introduce relevant evidence, to require the production
of evidence, to compel the relevant testimony of the officials, agents,
employees or consultants of the Franchising Authority, to compel the
testimony of other persons as permitted by law, and to question witnesses.
A complete verbatim record and transcript shall be made of such hearing.
C.
Following the hearing, the Franchising Authority shall determine
whether or not the Franchise shall be revoked. If the Franchising
Authority determines that the Franchise shall be revoked, the Franchising
Authority shall promptly provide Grantee with its decision in writing.
The Grantee may appeal such determination of the Franchising Authority
to an appropriate court which shall have the power to review the decision
of the Franchising Authority de novo. Grantee shall be entitled to
such relief as the court finds appropriate. Such appeal must be taken
within 60 days of Grantee's receipt of the determination of the
Franchising Authority.
D.
The Franchising Authority may, at its sole discretion, take any lawful
action which it deems appropriate to enforce the Franchising Authority's
rights under the Franchise in lieu of revocation of the Franchise.
A.
The Grantee shall not be held in default under, or in noncompliance
with, the provisions of the Franchise or suffer any enforcement or
penalty relating to noncompliance or default, where such noncompliance
or alleged defaults occurred or were caused by circumstances reasonably
beyond the ability of the Grantee to anticipate and control. This
provision includes work delays caused by waiting for utility providers
to service or monitor their utility poles to which the Grantee's
Cable System is attached, as well as unavailability of materials and/or
qualified labor to perform the work necessary.
B.
Furthermore, the parties hereby agree that it is not the Franchising
Authority's intention to subject the Grantee to penalties, fines,
forfeitures or revocation of the Franchise for violations of the Franchise
where the violation was a good-faith error that resulted in no or
minimal negative impact on the Subscribers within the Service Area,
or where strict performance would result in practical difficulties
and hardship to the Grantee which outweigh the benefit to be derived
by the Franchising Authority and/or subscribers.
In any action by the Franchising Authority or the Grantee that
is mandated or permitted under the terms hereof, such party shall
act in reasonable, expeditious, and timely manner. Furthermore, in
any instance where approval or consent is required under the terms
hereof, such approval or consent shall not be unreasonably withheld.
This Franchise constitutes the entire agreement between the
Grantee and the Franchising Authority and supersedes all other prior
understandings and agreements oral or written. Any amendments to this
Franchise shall be mutually agree to in writing by the parties.
Acceptance of the terms and conditions of this franchise will
not constitute, or be deemed to constitute, a waiver, either expressly
or impliedly, by Grantee of any constitutional or legal right which
it may have or may be determined to have, either by subsequent legislation
or court decisions. The Franchising Authority acknowledges that Grantee
reserves all of its rights under applicable Federal and State Constitutions
and laws.
A.
Unless expressly otherwise agreed between the parties, every notice
or response required by this Franchise to be served upon the Franchising
Authority or the Grantee shall be in writing and shall be deemed to
have been duly given to the required party, when placed in a properly
sealed and correctly addressed envelope:
B.
The notices or responses to the Franchising Authority shall be addressed
as follows:
|
Town of Dagsboro
PO Box 420
Dagsboro, DE 19939
|
C.
The notices or responses to the Grantee shall be addressed as follows:
|
Mediacom Delaware LLC
Attn: Legal Department
100 Crystal Run Road
Middletown, NY 10941
|
|
With a copy to:
|
|
Mediacom Delaware LLC
Attn: Regional Vice President
1613 Nantahala Beach Road
Gulf Breeze, FL 32563
|
D.
The Franchising Authority and the Grantee may designate such other
address or addresses from time to time by giving notice to the other
in the manner provided for in this subsection.
The captions to sections and subsections contained herein are
intended solely to facilitate the reading thereof. Such captions shall
not affect the meaning or interpretation of the text herein.
If any section, subsection, sentence, paragraph, term or provision
hereof is determined to be illegal, invalid, or unconstitutional,
by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction thereof, such determination
shall have no effect on the validity of any other section, subsection,
sentence, paragraph, term or provision hereof, all of which will remain
in full force and effect for the term of the Franchise.
The Effective Date of this Franchise is the date of final adoption
by the Franchising Authority, as set forth below, subject to Grantee's
acceptance by countersigning where indicated below. This Franchise
shall be for a term of 15 years from such Effective Date and shall
expire on April 22, 2028.
