Ordinance repealing Chapter 18 cable communications and franchise ordinance adopting a new ordinance granting a revocable cable franchise agreement.
Whereas, the Village of Stevensville has determined that it is in the public interest to repeal Chapter 18 Cable Communications, in its entirety from the Code of ordinances for the Village of Stevensville, which contains provisions for cable television service within the Village of Stevensville and said Chapter 18 of the Code of ordinances is hereby repealed in its totality by this ordinance; and
Whereas, Comcast of Indiana/Michigan/Pennsylvania, LLC (hereinafter
"grantee") has requested the grant of a nonexclusive cable television
franchise to provide cable television service in the Village of Stevensville;
and
Whereas, the Village has reviewed the performance of Comcast
under a prior cable television franchise with the Village, has identified
the future cable related needs and interest of the community, has
considered the financial, legal and technical qualifications of Comcast
to provide cable television service to the Village, and has considered
Comcast's plans for operating and maintaining its cable system
during the term of a renewed, nonexclusive franchise; and
Whereas, after affording the public adequate notice and an opportunity
for comment, the Village Council for the Village of Stevensville has
determined that it is in the public interest to renew the grant of
a nonexclusive cable television franchise to Comcast in accordance
with the terms hereunder set forth; and
Whereas, Comcast and the Village of Stevensville has reached
agreement on the franchise terms and conditions hereinafter set forth;
Now therefore, in consideration of the foregoing and the mutual
terms, conditions, promises and undertaking contained herein, the
Village of Stevensville, Berrien County, State of Michigan, hereby
ordains: that the following franchise agreement shall be incorporated
by reference into and made a part of this ordinance granting a nonexclusive
cable television franchise authorizing Comcast of Indiana/Michigan/Pennsylvania,
LLC to construct and operate a cable system within the public way
of the Village of Stevensville according to the terms and conditions
stated under said ordinance as follows:
Franchise agreement
This Franchise Agreement (hereinafter, the "agreement" or "franchise
agreement") is made between the Village of Stevensville (hereinafter,
"Village") and Comcast of Indiana/Michigan/Pennsylvania, LLC (hereinafter,
"grantee").
The Village, having determined that the financial, legal, and
technical ability of the grantee is reasonably sufficient to provide
the services, facilities, and equipment necessary to meet the future
cable-related needs of the community, desires to enter into this Franchise
Agreement with the grantee for the construction, operation and maintenance
of a cable system on the terms and conditions set forth herein.
For the purpose of this franchise agreement, capitalized terms,
phrases, words, and abbreviations shall have the meanings ascribed
to them in the Cable Communications Policy Act of 1984, as amended
from time to time, 47 U.S.C. § 521 et seq. (the "Cable Act"),
unless otherwise defined herein.
1.1.
"Customer" means a person or user of the cable system
who lawfully receives cable service therefrom with the grantee's
express permission.
1.2.
"Effective date" means November 15, 2005.
1.3.
"FCC" means the Federal Communications Commission,
or successor governmental entity thereto.
1.4.
"Franchise" means the initial authorization, or renewal
thereof, issued by the franchising authority, whether such authorization
is designated as a franchise, agreement, permit, license, resolution,
contract, certificate, ordinance or otherwise, which authorizes the
construction and operation of the cable system.
1.5.
"Franchise agreement" or "agreement" shall mean this
agreement and any amendments or modifications hereto.
1.6.
"Franchise area" means the present legal boundaries
of the Village as of the Effective Date, and shall also include any
additions thereto, by annexation or other legal means.
1.7.
"Franchising authority" means the Village of Stevensville
or the lawful successor, transferee, designee, or assignee thereof.
1.8.
"Grantee" shall mean Comcast of Indiana/Michigan/Pennsylvania,
LLC.
1.9.
"Gross revenue" means the revenue derived by the grantee
from the operation of the cable system in the franchise area to provide
cable services, calculated in accordance with generally accepted accounting
principles, including but not limited to monthly basic, premium and
pay-per-view fees, installation fees, and equipment rental fees. Gross
revenue shall not include advertising or home shopping revenue, refundable
deposits, bad debt, late fees, investment income, nor any taxes, fees
or assessments imposed or assessed by any governmental authority.
1.10.
"Person" means any natural person or any association,
firm, partnership, joint venture, corporation, or other legally recognized
entity, whether for-profit or not-for profit, but shall not mean the
Franchising authority.
1.11.
"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, 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 and any temporary or permanent fixtures
or improvements located thereon now or hereafter held by the franchising
authority in the franchise area, which shall entitle the franchising
authority and the grantee to the use thereof for the purpose of installing,
operating, repairing, and maintaining the cable system. Public way
shall also mean any easement now or hereafter held by the franchising
authority within the franchise area for the purpose of public travel,
or for utility or public service use dedicated for compatible uses,
and shall include other easements or rights-of-way as shall within
their proper use and meaning entitle the franchising authority and
the grantee to the use thereof for the purposes of installing, operating,
and maintaining the grantee's cable system over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary
and pertinent to the cable system.
2.1.
The franchising authority hereby grants to the grantee
under the cable act a nonexclusive franchise authorizing 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 and
easements within the franchise 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 and all
extensions thereof and additions thereto, such poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers,
appliances, attachments, and other related property or equipment as
may be necessary or appurtenant to the cable system. Nothing in this
franchise shall be construed to prohibit the grantee from offering
any service over its cable system that is not prohibited by federal
or state law.
2.2.
Term of franchise. The term of the franchise granted
hereunder shall be 15 years, commencing upon the effective date of
the franchise, unless the franchise is renewed or is lawfully terminated
in accordance with the terms of this franchise agreement and the cable
act.
2.3.
Renewal. Any renewal of this franchise shall be governed
by and comply with the provisions of Section 626 of the cable act,
as amended.
2.4.
Reservation of authority. Nothing in this franchise
agreement shall (A) abrogate the right of the franchising authority
to perform any public works or public improvements of any description,
(B) be construed as a waiver of any codes or ordinances of general
applicability promulgated by the franchising authority, or (C) be
construed as a waiver or release of the rights of the franchising
authority in and to the Public Ways.
2.5.
Competitive equity.
2.5.1.
The grantee acknowledges and agrees that the
franchising authority reserves the right to grant one or more additional
franchises to provide cable service within the franchise area; provided,
however, that no such franchise agreement shall contain terms or conditions
more favorable or less burdensome to the competitive entity than the
material terms and conditions herein, including, but not limited to:
franchise fees; insurance; system build-out requirements; performance
bonds or similar instruments; public, education and government access
channels and support; customer service standards; required reports
and related record keeping; and notice and opportunity to cure breaches.
If any such additional or competitive franchise is granted by the
franchising authority which contains more favorable or less burdensome
terms or conditions than this franchise agreement, the franchising
authority agrees that it shall amend this franchise agreement to include
any more favorable or less burdensome terms or conditions.
2.5.2.
In the event an application for a new cable
television franchise is filed with the franchising authority proposing
to serve the franchising area, in whole or in part, the franchising
authority shall serve or require to be served a copy of such application
upon any existing grantee or incumbent cable operator by registered
or certified mail or via nationally recognized overnight courier service.
2.5.3.
In the event that a non-franchised multichannel
video programming distributor provides service to the residents of
the Village, the grantee shall have a right to request franchise amendments
that relieve the grantee of regulatory burdens that create a competitive
disadvantage to the grantee. In requesting amendments, the grantee
shall file a petition seeking to amend the franchise. Such petitions
shall: (1) indicate the presence of a non-franchised competitor; (2)
identify the basis for grantee's belief that certain provisions
of the franchise place grantee at a competitive disadvantage; and
(3) identify the regulatory burdens to be amended or repealed in order
to eliminate the competitive disadvantage. The Franchising authority
shall not unreasonably withhold consent to the grantee's petition.
3.1.
Permits and general obligations. The grantee shall
be responsible for obtaining, at its own cost and expense, all permits,
licenses, or other forms of approval or authorization necessary to
construct, operate, maintain or repair the cable system, or any part
thereof, prior to the commencement of any such activity. Construction,
installation, and maintenance of the cable system shall be performed
in a safe, thorough and reliable manner using materials of good and
durable quality. All transmission and distribution structures, poles,
other lines, and equipment installed by the grantee for use in the
cable system in accordance with the terms and conditions of this franchise
agreement shall be located so as to minimize the interference with
the proper use of the public ways and the rights and reasonable convenience
of property owners who own property that adjoins any such public way.
3.2.
Conditions on street occupancy.
3.2.1.
New grades or lines. If the grades or lines
of any public way within the franchise area are lawfully changed at
any time during the term of this franchise agreement, then the grantee
shall, upon reasonable advance written notice from the franchising
authority (which shall not be less than 10 business days) and at its
own cost and expense, protect or promptly alter or relocate the cable
system, or any part thereof, so as to conform with any such new grades
or lines. If public funds are available to any person using such street
or public right-of-way for the purpose of defraying the cost of any
of the foregoing, the franchising authority shall upon written request
of the grantee make application for such funds on behalf of the grantee.
3.2.2.
Relocation at request of third party. The
grantee shall, upon reasonable prior written request of any person
holding a permit issued by the franchising authority to move any structure,
temporarily move its wires to permit the moving of such structure;
provided, (i) the grantee may impose a reasonable charge on any person
for the movement of its wires, and such charge may be required to
be paid in advance of the movement of its wires; and (ii) the grantee
is given not less than 10 business days advance written notice to
arrange for such temporary relocation.
3.2.3.
Restoration of public ways. If in connection
with the construction, operation, maintenance, or repair of the cable
system, the grantee disturbs, alters, or damages any public way, the
grantee agrees that it shall at its own cost and expense replace and
restore any such public way to a condition reasonably comparable to
the condition of the public way existing immediately prior to the
disturbance.
3.2.4.
Safety requirements. The grantee shall, at
its own cost and expense, undertake all necessary and appropriate
efforts to maintain its work sites in a safe manner in order to prevent
failures and accidents that may cause damage, injuries or nuisances.
All work undertaken on the cable system shall be performed in substantial
accordance with applicable FCC or other federal and state regulations.
The cable system shall not unreasonably endanger or interfere with
the safety of persons or property in the franchise area.
3.2.5.
Trimming of trees and shrubbery. The grantee
shall have the authority to trim trees or other natural growth overhanging
any of its cable system in the public way so as to prevent contact
with the grantee's wires, cables, or other equipment. The grantee
will notify the franchising authority in advance of any trimming,
except in an emergency situation that requires immediate action. All
such trimming shall be done at the grantee's sole cost and expense.
The grantee shall be responsible for any damage caused by such trimming.
3.2.6.
Aerial and underground construction. If all
of the transmission and distribution facilities of all of the respective
public or municipal utilities in a particular area of the franchise
area are underground, the grantee shall place its cable systems'
transmission and distribution facilities underground; provided, that
such underground locations are actually capable of accommodating the
grantee's cable and other equipment without technical degradation
of the cable system's signal quality. In any region(s) of the
franchise area where the transmission or distribution facilities of
the respective public or municipal utilities are both aerial and underground,
the grantee shall have the discretion to construct, operate, and maintain
all of its transmission and distribution facilities, or any part thereof,
aerially or underground. Nothing in this section shall be construed
to require the grantee to construct, operate, or maintain underground
any ground-mounted appurtenances such as customer taps, line extenders,
system passive devices, amplifiers, power supplies, pedestals, or
other related equipment.
4.1.
General service obligation. The grantee shall make
cable service available to every residential dwelling unit within
the franchise area where the minimum density is at least 30 dwelling
units per mile and is within one mile of the existing cable system.
Subject to the density requirement, grantee shall offer cable service
to all new homes or previously unserved homes located within 125 feet
of the grantee's distribution cable.
The grantee may elect to provide cable service to areas not
meeting the above density and distance standards. The grantee may
impose an additional charge in excess of its regular installation
charge for any service installation requiring a drop in or line extension
in excess of the above standards. Any such additional charge shall
be computed on a time plus materials basis to be calculated on that
portion of the installation that exceeds the standards set forth above.
4.2.
Programming. The grantee shall offer to all customers
a diversity of video programming services.
4.3.
No discrimination. Neither the grantee nor any of
its employees, agents, representatives, contractors, subcontractors,
or consultants, nor any other person, shall discriminate or permit
discrimination between or among any persons in the availability of
cable services provided in connection with the cable system in the
franchise area. It shall be the right of all persons to receive all
available services provided on the cable system so long as such person's
financial or other obligations to the grantee are satisfied. Nothing
contained herein shall prohibit the grantee from offering bulk discounts,
promotional discounts, package discounts, or other such pricing strategies
as part of its business practice.
4.4.
New developments. The franchising authority shall
provide the grantee with written notice of the issuance of building
or development permits for planned developments within the franchise
area requiring undergrounding of cable facilities. The franchising
authority agrees to require the developer, as a condition of issuing
the permit, to give the grantee access to open trenches for deployment
of cable facilities and at least 10 business days' written notice
of the date of availability of open trenches. Developer shall be responsible
for the digging and backfilling of all trenches. The grantee shall
be responsible for engineering and deployment of labor applicable
to its cable facilities.
4.5.
Prohibition against reselling service. No person shall
resell, without the express prior written consent of the grantee,
any cable service, program or signal transmitted over the cable system
by the grantee.
5.1.
All rates, fees, charges, deposits and associated
terms and conditions to be imposed by the grantee or any affiliated
person for any cable service as of the effective date shall be in
accordance with applicable FCC's rate regulations. Before any
new or modified rate, fee, or charge is imposed, the grantee shall
follow the applicable FCC notice requirements and rules and notify
affected customers, which notice may be by any means permitted under
applicable law.
6.1.
Customer service standards. The franchising authority
hereby adopts the customer service standards set forth in part 76,
§ 76.309 of the FCC's rules and regulations, as amended.
The grantee shall utilize good faith efforts to comply in all respects
with the customer service requirements established by the FCC.
6.2.
Customer bills. Customer bills shall be designed in
such a way as to present the information contained therein clearly
and comprehensibly to customers, and in a way that (A) is not misleading
and (B) does not omit material information. Notwithstanding anything
to the contrary in Section 6.1, above, the grantee may, in its sole
discretion, consolidate costs on Customer bills as may otherwise be
permitted by Section 622(c) of the cable act (47 U.S.C. § 542(c)).
6.3.
Privacy Protection. The grantee shall comply with
all applicable federal and state privacy laws, including Section 631
of the cable act and regulations adopted pursuant thereto.
7.1.
Franchise Fees. The grantee shall pay to the franchising
authority a franchise fee in an amount equal to 5% of annual gross
revenues received from the operation of the cable system to provide
cable service in the franchise area; provided, however, that grantee
shall not be compelled to pay any higher percentage of franchise fees
than any other cable operator providing service in the franchise area.
The payment of franchise fees shall be made on a quarterly basis and
shall be due 45 days after the close of each calendar quarter. Each
franchise fee payment shall be accompanied by a report prepared by
a representative of the grantee showing the basis for the computation
of the franchise fees paid during that period.
Upon 60 days' written notice, the franchising authority
may request that the franchise fee percentage be changed or eliminated
during the term of the franchise agreement; however, the requested
change shall not the exceed the 5% cap.
7.2.
Franchise fees subject to audit.
7.2.1.
Upon reasonable prior written notice, during
normal business hours, at grantee's principal business office,
the franchising authority shall have the right to inspect the grantee's
financial records used to calculate the franchising authority's
franchise fees; provided, however, that any such inspection shall
take place within two years from the date the franchising authority
receives such payment, after which period any such payment shall be
considered final.
7.2.2.
Upon the completion of any such audit by the
franchising authority, the franchising authority shall provide to
the grantee a final report setting forth the franchising authority's
findings in detail, including any and all substantiating documentation.
In the event of an alleged underpayment, the grantee shall have 30
days from the receipt of the report to provide the franchising authority
with a written response agreeing to or refuting the results of the
audit, including any substantiating documentation. Based on these
reports and responses, the parties shall agree upon a "finally settled
amount." For purposes of this section, the term "finally settled amount(s)"
shall mean the agreed upon underpayment, if any, to the franchising
authority by the grantee as a result of any such audit. If the parties
cannot agree on a "final settlement Amount," the parties shall submit
the dispute to a mutually agreed upon mediator within 60 days of reaching
an impasse. In the event an agreement is not reached at mediation,
either party may bring an action to have the disputed amount determined
by a court of law.
7.2.3.
Any "finally settled amount(s)" due to the
franchising authority as a result of such audit shall be paid to the
franchising authority by the grantee within 30 days from the date
the parties agree upon the "finally settled amount." Once the parties
agree upon a Finally Settled Amount and such amount is paid by the
grantee, the franchising authority shall have no further rights to
audit or challenge the payment for that period. The franchising authority
shall bear the expense of its audit of the grantee's books and
records. If the agreed upon conclusion of such an audit establishes
that the grantee is in arrears of more than 5%, grantee shall reimburse
the franchising authority for reasonable audit expenses.
7.3.
Oversight of franchise. In accordance with applicable
law, the franchising authority shall have the right to oversee, regulate
and, on reasonable prior written notice and in the presence of grantee's
employee, periodically inspect the construction, operation and maintenance
of the cable system in the franchise area, and all parts thereof,
as necessary to monitor grantee's compliance with the provisions
of this franchise agreement.
7.4.
Technical standards. The grantee shall comply with
all applicable technical standards of the FCC as published in subpart
K of 47 C.F.R. § 76. To the extent those standards are altered,
modified, or amended during the term of this franchise, the grantee
shall comply with such altered, modified or amended standards within
a reasonable period after such standards become effective. The franchising
authority shall have, upon written request, the right to obtain a
copy of tests and records required to be performed pursuant to the
FCC's rules.
7.5.
Maintenance of books, records, and files.
7.5.1.
Books and records. Throughout the term of
this franchise agreement, the grantee agrees that the franchising
authority, upon reasonable prior written notice to the grantee, may
review such of the grantee's books and records regarding the
operation of the cable system and the provision of cable service in
the franchise area which are reasonably necessary to monitor grantee's
compliance with the provisions of this franchise agreement at the
grantee's business office, during normal business hours, and
without unreasonably interfering with grantee's business operations.
Such books and records shall include any records required to be kept
in a public file by the grantee pursuant to the rules and regulations
of the FCC. All such documents pertaining to financial matters that
may be the subject of an inspection by the franchising authority shall
be retained by the grantee for a minimum period of three years.
7.5.2.
File for public inspection. Throughout the
term of this franchise agreement, the grantee shall maintain at its
business office, in a file available for public inspection during
normal business hours, those documents required pursuant to the FCC's
rules and regulations.
7.5.3.
Proprietary information. Notwithstanding anything
to the contrary set forth in this section, the grantee shall not be
required to disclose information that it reasonably deems to be proprietary
or confidential in nature. The franchising authority agrees to treat
any information disclosed by the grantee as confidential and only
to disclose it to those employees, representatives, and agents of
the franchising authority that have a need to know in order to enforce
this franchise agreement and who agree to maintain the confidentiality
of all such information. The grantee shall not be required to provide
customer information in violation of Section 631 of the cable act
or any other applicable federal or state privacy law. For purposes
of this section, the terms "proprietary or confidential" include,
but are not limited to, information relating to the cable system design,
customer lists, marketing plans, financial information unrelated to
the calculation of franchise fees or rates pursuant to FCC rules,
or other information that is reasonably determined by the grantee
to competitively sensitive. In the event that the franchising authority
receives a request under a state "sunshine," public records or similar
law for the disclosure of information the grantee has designated as
confidential, trade secret or proprietary, the franchising authority
shall notify grantee of such request and cooperate with grantee in
opposing such request.
8.1.
Neither the grantee nor any other person may transfer
the cable system or the franchise without the prior written consent
of the franchising authority, which consent shall not be unreasonably
withheld or delayed. No change in control of the grantee, defined
as an acquisition of 50% or greater ownership interest in grantee,
shall take place without the prior written consent of the franchising
authority, which consent shall not be unreasonably withheld or delayed.
No consent shall be required, however, for (i) a transfer in trust,
by mortgage, hypothecation, or by assignment of any rights, title,
or interest of the grantee in the franchise or in the cable system
in order to secure indebtedness, or (ii) a transfer to an entity directly
or indirectly owned or controlled by Comcast Corporation. Within 30
days of receiving a request for consent, the franchising authority
shall, in accordance with FCC rules and regulations, notify the grantee
in writing of the additional information, if any, it requires to determine
the legal, financial and technical qualifications of the transferee
or new controlling party. If the franchising authority has not taken
action on the grantee's request for consent within 120 days after
receiving such request, consent shall be deemed given.
9.1.
Insurance. Throughout the term of this franchise agreement,
the grantee shall, at its own cost and expense, maintain comprehensive
general liability insurance and provide the franchising authority
certificates of insurance designating the franchising authority and
its officers, boards, commissions, councils, elected officials, agents
and employees as additional insureds and demonstrating that the grantee
has obtained the insurance required in this section. Such policy or
policies shall be in the minimum amount of $1,000,000 for bodily injury
or death to any one person, and $1,000,000 for bodily injury or death
of any two or more persons resulting from one occurrence, and $1,000,000
for property damage resulting from any one accident. Such policy or
policies shall be non-cancelable except upon 30 days' prior written
notice to the franchising authority. The grantee shall provide workers'
compensation coverage in accordance with applicable law. The grantee
shall indemnify and hold harmless the franchising authority from any
workers compensation claims to which the grantee may become subject
during the term of this franchise agreement.
9.2.
Indemnification. The grantee shall indemnify, defend
and hold harmless the franchising authority, its officers, employees,
and agents from and against any liability or claims resulting from
property damage or bodily injury (including accidental death) that
arise out of the grantee's construction, operation, maintenance
or removal of the cable system, including, but not limited to, reasonable
attorneys' fees and costs; provided, that the franchising authority
shall give the grantee written notice of its obligation to indemnify
and defend the franchising authority within 10 business days of written
receipt of a claim or action pursuant to this section. If the franchising
authority determines that it is necessary for it to employ separate
counsel, the costs for such separate counsel shall be the responsibility
of the franchising authority.
10.1.
System capacity. During the term of this agreement
the grantee's cable system shall be capable of providing a minimum
of 85 channels of video programming with satisfactory reception available
to its customers in the franchise area.
10.2.
Service to school buildings. Provided that the building
owner/occupant holds 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 provide free "basic" and "expanded
basic" tier cable service and free installation at one outlet to each
accredited K-12 public and private school, not including "home schools,"
located in the franchise area within 125 feet of the grantee's
distribution cable. For purposes of this subsection, "expanded basic"
shall mean that tier of cable service just above the most basic level
of service offered by 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 building owner/occupant shall
take reasonable precautions to prevent any use of the grantee's
cable system in any manner that results in the inappropriate use thereof
or any loss or damage to the cable system. The grantee shall not be
required to provide an outlet to such buildings where a nonstandard
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 nonstandard installation. If additional
outlets of cable service are provided to such buildings, the building
owner/occupant shall pay the usual installation and service fees associated
therewith.
10.3.
Service to governmental and institutional facilities.
The grantee shall provide free "basic" and "expanded basic" tier cable
service and free installation at one outlet to each municipal building
located in the franchise area within 125 feet of the grantee's
distribution cable. "Municipal buildings" are those buildings owned
and occupied by the franchising authority for government administrative
purposes, and shall not include buildings such as storage facilities
at which government employees are not regularly stationed. For purposes
of this subsection, "expanded basic" shall mean that tier of cable
service just above the most basic level of service offered by 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 use of the grantee's cable system in any manner
that results in the inappropriate use thereof or any loss or damage
to the 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 nonstandard 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 nonstandard installation.
If additional outlets of cable service are provided to such buildings,
the building owner/occupant shall pay the usual installation and service
fees associated therewith.
11.1.
Notice of violation or default. In the event the
franchising authority believes that the grantee has not complied with
the material terms of the franchise, it shall notify the grantee in
writing with specific details regarding the exact nature of the alleged
noncompliance or default.
11.2.
Grantee's right to cure or respond. The grantee
shall have 45 days from the receipt of the franchising authority's
written notice: (A) to respond to the franchising authority, contesting
the assertion of noncompliance or default; or (B) to cure such default;
or (C) in the event that, by nature of the default, such default cannot
be cured within the forty-five-day period, initiate reasonable steps
to remedy such default and notify the franchising authority of the
steps being taken and the projected date that they will be completed.
11.3.
Public hearings. In the event the grantee fails to
respond to the franchising authority's notice or in the event
that the alleged default is not remedied within 45 days or the date
projected by the grantee, the franchising authority shall schedule
a public hearing to investigate the default. Such public hearing shall
be held at the next regularly scheduled or special meeting of the
franchising authority that is scheduled at a time that is no less
than 10 business days therefrom. The franchising authority shall notify
the grantee in writing of the time and place of such meeting and provide
the grantee with a reasonable opportunity to be heard.
11.4.
Enforcement. Subject to applicable federal and state
law, in the event the franchising authority, after such public hearing,
determines that the grantee is in default of any provision of the
franchise, the franchising authority may:
11.4.1.
Seek specific performance of any provision
that reasonably lends itself to such remedy as an alternative to damages,
or seek other equitable relief; or
11.4.2.
In the case of a substantial default of a
material provision of the franchise, declare the franchise agreement
to be revoked in accordance with the following:
(i)
The franchising authority shall give written
notice to the grantee of its intent to revoke the franchise on the
basis of a pattern of noncompliance by the grantee, or one or more
instances of substantial noncompliance with a material provision of
the franchise. The notice shall set forth with specificity the exact
nature of the noncompliance. The grantee shall have 90 days from the
receipt of such notice to object in writing and to state its reasons
for such objection. In the event the franchising authority has not
received a response from the grantee or upon receipt of the response
does not agree with the grantee's proposed remedy, 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 10 days
prior to such public hearing, a written notice specifying the time
and place of such hearing and stating its intent to request termination
of the franchise.
(ii)
At the designated hearing, the franchising authority
shall give the grantee an opportunity to state its position on the
matter, present evidence and question witnesses, after which the franchising
authority shall determine whether or not the franchise shall be revoked.
The public hearing shall be on the record and a written transcript
shall be made available to the grantee within 10 business days. The
decision of the franchising authority shall be in writing and shall
be delivered to the grantee by certified mail. The grantee may appeal
such determination to an appropriate court, which shall have the power
to review the decision of the franchising authority "de novo" and
to modify or reverse such decision as justice may require. Such appeal
to the appropriate court must be taken within 60 days of the issuance
of the determination of the franchising authority.
11.5.
Technical violation. The franchising authority agrees
that it is not its intention to subject the grantee to penalties,
fines, forfeitures or revocation of the franchise for so-called "technical"
breach(es) or violation(s) of the franchise, which shall include,
but not be limited, to the following:
11.5.1.
In instances or for matters where a violation
or a breach of the franchise by the grantee was good faith error that
resulted in no or minimal negative impact on the customers within
the franchise area; or
11.5.2.
Where there existed circumstances reasonably
beyond the control of the grantee and which precipitated a violation
by the grantee of the franchise, or which were deemed to have prevented
the grantee from complying with a term or condition of the franchise.
12.1.
Force majeure. The grantee shall not be held in default
under, or in noncompliance with, the provisions of the franchise,
nor suffer any enforcement or penalty relating to noncompliance or
default (including termination, cancellation or revocation of the
franchise), where such noncompliance or alleged defaults occurred
or were caused by strike, riot, war, earthquake, flood, tidal wave,
unusually severe rain or snow storm, hurricane, tornado or other catastrophic
act of nature, labor disputes, failure of utility service necessary
to operate the cable system, governmental, administrative or judicial
order or regulation or other event that is reasonably beyond the grantee's
ability to anticipate or control. This provision also covers work
delays caused by waiting for utility providers to service or monitor
their own utility poles on which the grantee's cable or equipment
is attached, as well as unavailability of materials or qualified labor
to perform the work necessary.
12.2.
Notice. All notices shall be in writing and shall
be sufficiently given and served upon the other party by hand delivery,
first class mail, registered or certified, return receipt requested,
postage prepaid, or by reputable overnight courier service and addressed
as follows:
To the franchising authority:
Village of Stevensville
Manager
5768 St Joseph Avenue
Stevensville, MI 49127
To the grantee:
Comcast of Indiana/Michigan/Pennsylvania, LLC
7720 West 98th St. Hickory Hills, IL 60457
Attn: Government Affairs
with a copy to:
Comcast Cable Communications, Inc.
1500 Market Street
Philadelphia, PA 19102
Attn.: Government Affairs Department
12.3.
Entire agreement. This franchise agreement, including
all exhibits, embodies the entire understanding and agreement of the
franchising authority and the grantee with respect to the subject
matter hereof and supersedes all prior understandings, agreements
and communications, whether written or oral. All ordinances or parts
of ordinances that are in conflict with or otherwise impose obligations
different from the provisions of this franchise agreement are superseded
by this franchise agreement.
12.4.
Severability. If any section, subsection, sentence,
clause, phrase, or other portion of this franchise agreement is, for
any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent
portion. Such declaration shall not affect the validity of the remaining
portions hereof, which other portions shall continue in full force
and effect.
12.5.
Governing law. This franchise agreement shall be
deemed to be executed in the State of Michigan, and shall be governed
in all respects, including validity, interpretation and effect, and
construed in accordance with, the laws of the State of Michigan, as
applicable to contracts entered into and performed entirely within
the state.
12.6.
Modification. No provision of this franchise agreement
shall be amended or otherwise modified, in whole or in part, except
by an instrument, in writing, duly executed by the franchising authority
and the grantee, which amendment shall be authorized on behalf of
the franchising authority through the adoption of an appropriate resolution
or order by the franchising authority, as required by applicable law.
12.7.
No third-party beneficiaries. Nothing in this franchise
agreement is or was intended to confer third-party beneficiary status
on any member of the public to enforce the terms of this franchise
agreement.
12.8.
No waiver of rights. Nothing in this franchise agreement
shall be construed as a waiver of any rights, substantive or procedural,
grantee may have under federal or state law unless such waiver is
expressly stated herein.
Dated: October 26, 2005
