[HISTORY: Adopted by the Township Board of the Township of
Buchanan 12-4-1995 by Ord. No.
28. Amendments noted where applicable.]
As used in this ordinance, the following terms shall have the
meanings indicated:
Shall have the meaning defined in § A315-6.
The entire area from time to time within the corporate limits
of the Township of Buchanan excluding, however, all areas that are
within such limits solely due to agreements executed under the authority
of Michigan Act 425 of 1984, MCLA § 124.21 et seq., unless
the agreement expressly so provides.
Only:
The one-way transmission to all subscribers of (i) video programming
or (ii) other programming services, such as digital audio; and
Subscriber interaction, if any, which is required for the selection
of such video programming or other programming service, where "video
programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
The provision by the Company of Cable Services solely by
means of the Cable Television System.
A facility consisting of a set of closed transmission paths
and associated signal generation reception and control equipment that
is designed and used solely to provide Cable Services to subscribers
within the Authorized Area, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves only subscribers in one or more multiple
unit dwellings under common ownership, control, or management, unless
such facility uses any public right-of-way;
A facility of a common or private carrier which is subject in
whole or in part to the provisions of Title II of the Communications
Act of 1934, as amended, except that such a facility shall be considered
a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers.
Westmarc Development Joint Venture L.P., a Colorado limited
partnership, currently doing business as Comcast.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Shall have the meaning defined in § A315-11.
Federal Communications Commission.
This Ordinance, and "franchise fee," shall mean the fee set forth in § A315-7.
All amounts earned or accrued by Company, or any entity in
any way affiliated with Company, in whatever form and from all sources
which are in connection with or attributable to the operation of the
Cable Television System within Township or Company's provision
within Township of Cable Services.
Gross Revenues shall include without limitation all subscriber
and customer revenues earned or accrued net of bad debts, including
revenues for basic cable services; additional tiers; premium services;
pay per view; program guides; installation disconnection or service
call fees; fees for the provision, sale, rental, or lease of converters,
remote controls, additional outlets and other customer premises equipment,
revenues from the use of leased access channels, and advertising revenues
from the System.
Advertising revenues and other revenues whose source cannot
be identified with a specific subscriber shall be allocated to the
Township of Buchanan based upon the percentage of subscribers in Township
compared to that served from the head-end serving Township.
Shall have the meaning set forth in § A315-5.
All dedicated public rights-of-way, streets, highways, and
alleys. "Public ways" shall not include property of Township which
is not a dedicated public right-of-way, street, highway, or alley.
Shall have the same meaning as Cable Television System.
The Township of Buchanan.
Shall have the meaning defined § 315-11.
A.Â
Permission/franchise. Subject to all the terms and conditions contained
in this Franchise, the Township Charter and Township ordinances as
from time to time in effect, Township hereby grants Company permission
to erect, construct, install, and maintain a Cable Television System
in the Authorized Area and to transact a Cable Television Business
in such area.
(1)Â
This Franchise does not include leasing or subleasing wires, poles, conduits or space or spectrum on or in same or allowing wires or other facilities which are not part of the Cable Television System as defined in § A315-1 above to be overlashed, affixed or attached to any portion of the Cable Television System. The preceding sentence shall not apply to the use of channel Township by third parties under Section 612 of the Cable Act Communications Policy Act of 1984, as amended (47 U.S.C. § 532).
B.Â
Nonexclusive. This Franchise and all rights granted thereunder are
nonexclusive. Township reserves the right to grant such other and
future franchises as it deems appropriate. This Franchise does not
establish any priority for the use of the public rights-of-way by
Company or by any present or future franchisees or other permit holders.
In the event of any dispute as to the priority of use of the public
rights-of-way the first priority shall be to the public generally,
the second priority to Township in the performance of its various
functions, and thereafter, as between franchisees and other permit
holders, as determined by Township in the exercise of its powers,
including the police power and other powers reserved to and conferred
on it by the State of Michigan.
(1)Â
If during the term of this Franchise Township grants a franchise or other permission ("other franchise") to any other person or entity allowing them to provide Cable Services to a substantial portion of the residents of Township, then Company shall have the option on 30 days' written notice to Township to adopt and comply with the all the terms of such other franchise, except those terms of such other franchise corresponding to §§ A315-8, A315-9 and A315-14 of this Franchise, which three parts alone of this Franchise shall continue to be binding on Company and Township.
C.Â
Universal service. Company shall provide Cable Services to any and
all persons requesting same at any location within the Authorized
Area. No line extension charge shall be imposed for the extension
of service for 150 feet or less or where the extension of the Cable
Television System passes seven occupied dwelling units per 1,320 feet
of distribution or trunk cable (excluding drops to the dwelling unit).
D.Â
Channels; programming. Company shall continue to provide a minimum
of 36 channels to subscribers in the Township. Company shall continue
to provide to subscribers in the Township the following categories
of programming: sports, news, entertainment, music, religion, health/lifestyle,
cultural/arts, children's, minority, family, weather, and distant
television broadcast.
E.Â
Emergencies. Township may remove or damage the Cable Television System
in the case of fire, disaster, or other emergencies threatening life
or property, as determined by the Township Supervisor, Fire Chief,
or Police Chief. In such event neither the Township nor any agent,
contractor or employee thereof shall be liable to the Company for
any damages caused to the Company or the Cable Television System,
such as for, or in connection with, protecting, breaking through,
moving, removal, altering, tearing down, or relocating any part of
the Cable Television System.
F.Â
Alert system. The Cable Television System shall maintain an emergency
alert system as prescribed by the FCC and the Cable Act of 1992. Township
and Company will agree on the procedures for Township to follow to
expeditiously use such facility in the event of an emergency.
G.Â
Compliance with applicable law. In constructing maintaining and operating
the Cable Television System, Company will act in a good and workmanlike
manner, observing high standards of engineering and workmanship and
using materials of good and durable quality. Company shall comply
in all respects with the National Electrical Safety Code (latest edition)
and National Electric Code (latest edition); all standards, practices,
procedures and the like of the National Cable Television Association;
the requirements of other utilities whose poles and conduits it uses,
and all applicable federal, state, and local laws.
H.Â
Maintenance and repair. Company will keep and maintain a proper and
adequate inventory of maintenance and repair parts for the Cable Television
System and a workforce of skilled technicians for its repair and maintenance.
I.Â
Other permits. This Franchise does not relieve Company of the obligation
to obtain permits licenses and other approvals from Township necessary
for the construction repair or maintenance of the Cable Television
System or provision of Cable Services or compliance with Township
ordinances such as compliance with right-of-way permits, building
permits and the like.
A.Â
Use of public ways. Subject to the terms set forth herein Company
is granted the right and the obligation during the term of this Franchise
to erect, construct, install and maintain its Cable Television System
in, over, under, along and across the Public Ways.
B.Â
No burden on public ways. Company shall not erect, install, construct,
repair, replace or maintain its Cable Television System in such a
fashion as to unduly burden the present or future use of the Public
Ways. If Township in its reasonable judgment determines that any portion
of the Cable Television System is an undue burden, Company at its
expense shall modify its system or take such other actions as Township
may determine are in the public interest to remove or alleviate the
burden, and Company shall do so within the time period established
by Township.
C.Â
Minimum interference. The Cable Television System shall be erected
and maintained by Company so as to cause the minimum interference
with the use of the Public Ways and with the rights or reasonable
convenience of property owners who adjoin any of the Public Ways.
D.Â
Restoration of property. Company shall immediately restore at its
sole cost and expense, in a manner approved by Township, any portion
of the Public Ways that is in any way disturbed by the construction,
operation, maintenance or removal of the Cable Television System to
(at Company's option) as good or better condition than that which
existed prior to the disturbance, and shall at its sole cost and expense
immediately restore and replace any other property, real or personal,
disturbed, damaged or in any way injured by or on account of Company
or by its acts or omissions, to as good or better condition as such
property was in immediately prior to the disturbance, damage or injury.
Such a restoration shall start promptly but no more than 15 days from
Company becoming aware of the problem in question.
E.Â
Tree trimming. Company may trim trees upon and overhanging the Public
Ways so as to prevent the branches of such trees from coming into
contact with the Cable Television System. No trimming shall be performed
in the Public Ways without previously informing Township. All trimming
of trees, except in an emergency, on public property shall have the
approval of Township and except in an emergency all trimming of trees
on private property shall require the consent of the property owner.
F.Â
Relocation of facilities. Company shall at its own cost and expense,
protect, support, disconnect or remove from the Public Ways any portion
of the Cable Television System when required to do so by Township
due to street or other public excavation, construction, repair, grading,
regrading, traffic conditions; the installation of sewers, drains,
water pipes, or municipally-owned facilities of any kind; or the vacation,
construction or relocation of streets or any other type of structure
or improvement of a public agency or any other type of improvement
necessary for the public health, safety or welfare.
G.Â
Joint use. Company shall permit the joint use of its poles, conduits
and facilities located in the Public Ways by utilities and by the
Township or other governmental entities to the extent reasonably practicable
and upon payment of a reasonable fee.
H.Â
Private property. Company shall be subject to all laws, ordinances
or regulations regarding private property in the course of constructing,
installing, operating or maintaining the Cable Television System in
Township. Company shall comply with all zoning and land use restrictions
as may exist or may hereafter be amended.
I.Â
Underground facilities. If Township in the future may require that,
in a specific area of Township, public utilities shall place their
cables, wires, or other equipment underground then Company also shall
place its existing and its future cables, wires, or other equipment
underground within a reasonable period of time, not to exceed six
months, of notification by Township without expense or liability therefore
to Township.
J.Â
Temporary relocation. Upon 15 business days' notice Company
shall temporarily raise or lower its wires or other equipment upon
the request of any person including without limitation, a person holding
a building moving permit issued by Township. Company may charge a
reasonable rate for this service not to exceed its actual direct costs.
K.Â
Vacation. If a Public Way is vacated eliminated discontinued or closed,
all rights of Company under this Franchise to use same shall terminate
and Company at its expense shall immediately remove the Cable Television
System from such Public Way.
L.Â
Discontinuance and removal of the cable television system. Upon the revocation termination or expiration of this Agreement, unless an extension is granted, Company shall immediately (subject to the notice provision of § A315-9B) discontinue the provision of Cable Services and all rights of Company to use the Public Ways shall cease. Company, at the direction of Township, shall remove its Cable Television System, including all supporting structures, poles, transmission and distribution system and other appurtenances fixtures or property from the Public Ways, in, over, under, along, or through which they are installed within six months of the revocation, termination, or expiration. Company shall also restore any property, public or private, to the condition in which it existed prior to the installation, erection or construction of its Cable Television System, including any improvements made to such property subsequent to the construction of its Cable Television System. Restoration of Township property including but not limited to the Public Ways shall be in accordance with the directions and specifications of Township, and all applicable laws, ordinances and regulations, at Company's sole expense. If such removal and restoration is not completed within six months after the revocation, termination, or expiration, all of Company's property remaining in the affected Public Rights-of-Way shall, at the option of Township, be deemed abandoned and shall, at the option of Township, become its property or Township may obtain a court order compelling Company to remove same. In the event Company fails or refuses to remove its Cable Television System or to satisfactorily restore all areas to the condition in which they existed prior to the original construction of the Cable Television System Township, at its option, may perform such work and collect the costs thereof from Company. No surety on any performance bond nor any letter of credit shall be discharged until Township has certified to Company in writing that the Cable Television System has been dismantled, removed, and all other property restored, to the satisfaction of Township.
A.Â
Negative options. Company will not engage in the practice of "negative
option" marketing, and will not charge a subscriber for any optional,
a la carte or premium service or equipment which the subscriber has
not affirmatively requested.
B.Â
Customer standards. Company will comply with the more stringent of
the customer service and consumer protection provisions of this Franchise;
those from time to time adopted by the Company; those from time to
time adopted by the FCC; or the service and consumer protection standards
from time to time adopted by the National Cable Television Association.
(1)Â
"Normal business hours" for the purpose of such FCC customer service
rules as in effect on the effective date of this Franchise shall mean
9:00 a.m. to 5:00 p.m., Monday through Friday and two evenings per
week until 7:00 p.m., and 9:00 to noon on Saturday, excluding holidays,
or such other hours as Township and Company shall from time to time
agree.
C.Â
Reservation. Township reserves the right by ordinance to alter or
amend the customer service and consumer protection matters set forth
in this section, including adopting ordinances stricter than or covering
items not presently set forth in this section. Township agrees to
meet with Company on the matters in question prior to taking such
action, and to provide Company with at least two months' notice
of such action.
D.Â
Free service. Company will provide without any installation charge
or monthly charge one free outlet at all existing Township buildings.
If requested, Company will add additional outlets at the preceding
facilities (such as to some or all classrooms and auditoriums, but
not to dormitories) and will do so at its hourly service charge and
Township and the schools will not add additional outlets themselves
and such outlets shall be used only for cable TV purposes. None of
the preceding shall be charged any fee during the term of this Franchise
for those channels comprising basic service or any expanded basic
service and such channels may not be resold.
(1)Â
For the preceding facilities, if the drop to the facility is more
than 150 feet the owner of the facility will be charged only the incremental
cost for drops or line extensions beyond 150 feet. Drops or installations
of less than 150 feet shall be free.
E.Â
Access to service. Company shall not deny service, deny access, or
otherwise discriminate on the availability or rates, terms or conditions
of Cable Services provided to subscribers on the basis of race, color,
creed, religion, ancestry, national origin, sex, disability, age,
marital status, location within Township, or status with regard to
public assistance. Company shall comply at all times with all applicable
federal, state and local laws and regulations relating to nondiscrimination.
Company shall not deny or discriminate against any group of actual
or potential subscribers in Township on access to or the rates, terms
and conditions of Cable Services because of the income level or other
demographics of the local area in which such group may be located.
F.Â
Programming/lockout. Company shall provide all subscribers with the
option of obtaining a device by which the subscriber can prohibit
viewing of a particular cable service during periods selected by the
subscriber.
G.Â
Pay per view. Subscribers shall be given the option of not having
pay per view or per program service available at all.
H.Â
Blocking. Upon request by a subscriber, for a fee Company shall use
a notch filter or equivalent to block such subscriber from receiving
the video or both the audio and video portion (even though this may
create problems on adjacent channels) of a channel on which programming
is provided on a per program or pay per view basis.
I.Â
Notification. Company will provide written information on at least
each of the following areas at the time of installation of service,
at least annually to all subscribers, and at any time upon request.
(1)Â
Products and services offered.
(2)Â
Prices (rates) and options for Cable Services and conditions of subscription
to Cable Service. Prices shall include those for programming, equipment
rental, program guides, installation, disconnection, late fees and
other fees charged by Company.
(3)Â
Installation and service maintenance policies.
(4)Â
Instruction on how to use the Cable Service including procedures
and options for pay per view and premium channels.
(5)Â
Channel positions of programming carried on the Cable Television
System.
(6)Â
Billing and complaint procedures, including the address and phone
number of the person or position at the Township responsible for cable
matters.
(7)Â
Applicable privacy requirements as set forth in this Franchise or
otherwise provided for by law.
J.Â
Seasonal contracts. For Subscribers desiring only seasonal service,
Company shall either offer seasonal service at a reduction from its
standard rates or shall offer a reduced prescheduled seasonal installation
and disconnection charge.
K.Â
Office/phone. Company shall maintain an office to serve the purpose
of paying bills; receiving and responding to requests for service;
receiving and resolving customer complaints regarding Cable Service,
equipment malfunctions, billing and collection disputes; and similar
matters. Such office shall be 1930 Buchanan-Buchanan Road or such
other locations as Township and Company shall from time to time agree.
Company shall have a local telephone number and toll-free telephone
number for use by subscribers toll-free 24 hours per day, seven days
per week. The local office of the Company shall be open to receive
inquiries or complaints in person or by telephone during normal business
hours Monday through Friday including the noon lunch hour, excluding
legal holidays observed by the Company.
(1)Â
Company shall provide reports to Township quarterly (monthly if Township
shall request same) showing on a consistent basis, fairly applied,
the number of telephone calls received by Company and in addition
measuring Company's compliance with the standards of FCC Rule
76.309(c)(2)(i), (ii), (iii), and (iv) (a copy of the Rule is attached).
Such report shall show Company's performance excluding periods
of abnormal operating conditions, and if Company contends any such
conditions occurred during the period in question, it shall also describe
the nature and extent of such conditions and show Company's performance
including the time periods such conditions were in effect.
L.Â
Continuity of service. Company shall interrupt service only with
good cause and for the shortest time possible except in emergency
situations and as required by the FCC. Services may be interrupted
between 1:00 a.m. and 5:00 a.m. for routine testing, maintenance and
repair, without notification. In the event of a System Upgrade, Company
shall both minimize any interruptions in service caused by the upgrade,
and shall meet with Township in advance to advise Township of the
nature, geographic extent and duration of any interruptions and obtain
and where possible respond to Township's comments on same. Any
test required by the FCC will not require prior notice.
M.Â
Log of complaints. Company shall maintain a written log of all subscriber
complaints or an equivalent stored in computer memory and capable
of access and reproduction in printed form of all subscriber complaints.
Such log shall list the date and time of such complaints, identifying
the subscribers and describing the nature of the complaints and when
and what actions were taken by Company in response thereto. Such log
shall be kept at Company's local office reflecting the operations
to date for a period of at least three years, and shall be available
for Township's inspection during regular business hours.
N.Â
Service call charges. Unless otherwise provided by the FCC, no charge
shall be made to the subscriber for any service call unless the problem
giving rise to the service request can be demonstrated by Company
to have been:
O.Â
Identification. All service personnel of Company or its contractors
or subcontractors who have as part of their normal duties contact
with the general public shall wear on their clothing a clearly visible
identification card bearing their name and photograph. Company shall
account for all identification cards at all times. Every service vehicle
of Company shall be clearly identifiable by the public.
P.Â
Disconnection. Company may only disconnect a subscriber if at least
45 days have elapsed after the due date for payment of the subscriber's
bill and Company has provided at least 10 days' written notice
(such as in a bill) to the subscriber prior to disconnection, specifying
the effective date after which cable services are subject to disconnection;
provided, however, notwithstanding the foregoing Company may disconnect
a subscriber at any time if Company in good faith and on reasonable
grounds determines that the subscriber has tampered with or abused
Company's equipment; or is or may be engaged in the theft of
Cable Services; or that the subscriber premises wiring violates applicable
FCC standards. Company may not disconnect a subscriber for failure
to pay amounts due to a dispute as to the correct amount of the subscriber's
bill.
(1)Â
Company shall promptly disconnect any subscriber who so requests
disconnection. No period of notice prior to requested termination
of service may be required to subscribers by Company. No charge may
be imposed upon the subscriber for any cable service delivered after
the effective date of the disconnect request. If the subscriber fails
to specify an effective date for disconnection the effective date
shall be deemed to be the day following the date the disconnect request
is received by Company, except that if the subscriber is receiving
pay services (pay channels or pay per view) the effective date shall
be when the subscriber stops receiving such services.
Q.Â
Late payment. Late payment charges imposed by Company upon subscribers
shall be fair and shall be reasonably related to Company's cost
of administering delinquent accounts.
R.Â
Privacy and monitoring. Neither Company and its agents nor Township
and its agents shall tap or monitor, or arrange for the tapping or
monitoring, or permit any other person to tape or monitor, any cable,
line, signal, input device, or subscriber facility for any purpose,
without the written authorization of the affected subscriber. Such
authorization shall be revocable at any time by the subscriber without
penalty by delivering a written notice of revocation to Company; provided,
however, that Company may conduct system-wide or individually addressed
"sweeps" solely for the purpose of verifying system integrity, checking
for illegal taps or billing.
S.Â
Subscriber information. Company shall not record or retain any information
as to the programming actually watched by a subscriber. Company shall
destroy all subscriber information of a personally identifiable nature
after a reasonable period of time except as authorized not to do so
by the affected subscriber. Company shall not sell or otherwise provide
to other persons, without the specific written authorization of the
subscriber involved, or otherwise make available to any person or
entity, lists of the names and addresses of subscribers.
T.Â
FCC technical standards. The Company shall meet or exceed the FCC's
technical standards that may be adopted from time to time.
(1)Â
Upon request Company shall provide Township with a report of such
testing. Such report shall state, in pertinent part, that the person
doing the testing has the rules and regulations of the FCC; the FCC
order(s) adopting such rules and regulations and all industry standards
and other materials referenced therein; and that such testing when
done fairly, in full compliance with the FCC rules and regulations
shows full compliance with such rules and regulations; or in the alternative
setting forth with specific Township and in detail all areas of non-compliance,
their actual or likely scope and causes and their professional recommendation
of the best corrective measures to immediately and permanently correct
the noncompliance.
(2)Â
Company shall establish the following procedure for resolving complaints
from subscribers about the quality of the television signal delivered
to them: All complaints shall go initially to a customer service representative
and then to the manager of Company's local office. If not resolved
at that level, they shall be referred to the Township and then to
the FCC.
(3)Â
Township at its expense and with notice to Company may test the Cable
Television System in cooperation with the Company for compliance with
the FCC technical standards once per year and more often if there
are a significant number of subscriber complaints. Company will reimburse
Township for the expense of any test (not to exceed $5,000 per calendar
year for tests) which shows a non-compliance with such standards.
U.Â
Backup power. Company shall maintain backup or standby electric power
(such as from batteries or from electric generators) at all locations
on Company's Cable Television System where the loss of electric
power might disrupt the provision of service within Township such
that the System and each portion of it will operate for at least four
hours even if electric service from conventional utility lines is
interrupted.
V.Â
Undergrounding. If a subscriber requests underground cable service,
Company may charge any subscriber the differential between the cost
of aerial and underground installation of the drop to the subscriber.
This provision shall not apply where undergrounding is required by
Township ordinance or policy.
W.Â
Bond.
(1)Â
Company shall provide Township no later than 30 days after the acceptance
of this Franchise Agreement, a performance bond from a Security Company in
the amount of $20,000, in form reasonably acceptable to Township as
security for the faithful performance by Company of the provisions
of this Agreement, and compliance with all orders, permits and directions
of any agency of the Township having jurisdiction over its acts or
defaults under this Agreement, and the payment of Company of any claims,
liens or taxes due the Township which arise by reason of the construction,
operation, maintenance or repair of the Cable Television System or
provision of Cable Services.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(2)Â
The condition of such bond should be that if Company fails to make
timely payment to the Township or its designee of any amount under
this Franchise or fails to make timely payment to the Township of
any penalty due under this Franchise; or fails to make timely payment
to the Township of any taxes due; or fails to repay to the Township
within 10 days' of written notification that such repayment is
due, any damages, costs or expenses which the Township shall be compelled
to pay by reason of any act or default of Grantee in connection with
this Agreement; or fails, after 30 days' notice of such failure
from the Township, to comply with any provisions of this Franchise
which the Township reasonably determines can be remedied by an expenditure
of the money (including, without limitation, the assessment of liquidated
damages), then Township may demand and receive payment under such
bond.
(3)Â
In lieu of providing a bond, Company may provide a guarantee of TCI,
its publicly traded parent substantially in the form set forth in
Exhibit C.
(4)Â
The rights reserved by the Township with respect to this section,
are in addition to all other rights of the Township whether reserved
by this Franchise Agreement or authorized by law, and no action, proceeding
or exercise of a right with respect to such articles shall affect
any other rights the Township may have.
A.Â
Channels made available. The Company shall provide on the Cable Television
System, in the Basic tier of service, one PEG channel, administered
by the Township of Buchanan or its designee.
B.Â
Company use. Township may from time to time adopt and revise rules
and procedures as to when and how Company may use the PEG channel
for the provision of video programming when the PEG channel is not
being used for its respective purposes. Company will use the PEG educational
channel solely in accordance with such rules and procedures and otherwise
shall have no responsibility or control with respect to the operation
of such channel except as provided by law.
C.Â
Lines and facilities. The Company shall provide and maintain at its
expense all lines and facilities necessary for the distribution of
programming originating from Buchanan High School on the PEG channel
on the Cable Television System.
(1)Â
In addition the Company shall provide and maintain at its expense
return lines, return channels and associated equipment such that programming
can be originated for live distribution on the PEG channel from any
of the following locations:
A.Â
Disclaimer of liability. Township shall not at any time be liable
for injury or damage occurring to any person or property from any
cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of Company's Cable Television
System or Company's provision of Cable Service.
B.Â
Indemnification. Company shall at its sole cost and expense indemnify
and hold harmless Township and all associated, affiliated, allied
and subsidiary entities of Township, now existing or hereinafter created,
and their respective officers, boards, commissions, attorneys, agents,
and employees (hereinafter referred to as "Indemnities"), from and
against:
(1)Â
Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys) which may be imposed upon,
incurred by or be asserted against the Indemnities by reason of any
act or omission of Company, its personnel, employees, agents, or contractors
resulting in personal injury, bodily injury, sickness, disease or
death to any person or damage to, loss of or destruction of tangible
or intangible property, libel, slander, invasion of privacy and unauthorized
use of any trademark, tradename, copyright, patent service mark or
any other right of any person, firm or corporation, which may arise
out of or be in any way connected with the construction, installation,
operation, maintenance or condition of the Cable Television System
(including those arising from any matter contained in or resulting
from the transmission of programming over the System and including
any claim or lien arising out of work, labor, materials or supplies
provided or supplied to Company, its contractors or subcontractors),
the provision of Cable Services or the Company's failure to comply
with any federal, state or local statute, ordinance or regulation.
C.Â
Assumption of risk. Company undertakes and assumes for its officers,
agents, contractors and subcontractors and employees, all risk of
dangerous conditions, if any, on or about any Township-owned or controlled
property, including Public Ways, and Company hereby agrees to indemnify
and hold harmless the Indemnities against and from any claim asserted
or liability imposed upon the Indemnities for personal injury or property
damage to any person arising out of the installation, operation, maintenance
or condition of the Cable Television System or Company's failure
to comply with any federal, state or local statute, ordinance or regulation.
D.Â
Defense of indemnities. In the event any action or proceeding shall
be brought against the Indemnities by reason of any matter for which
the Indemnities are indemnified hereunder Company shall upon notice
from any of the Indemnities, at Company's sole cost and expense,
resist and defend the same with legal counsel selected by Township;
provided further, however, that Company shall not admit liability
in any such matter on behalf of the Indemnities without the written
consent of Township.
E.Â
Insurance. At all times during the term of this Franchise including
any time for removal of facilities or management, Company shall obtain,
maintain, and pay all premiums for all insurance policies described
in this section. Within 30 days from the effective date of this Franchise,
Company shall file with Township certificates of insurance evidencing
coverage. Failure to obtain and maintain any insurance policy required
by this section shall be deemed a material breach of this Franchise
and may be grounds for termination pursuant of this Franchise.
(1)Â
Property damage liability. One hundred thousand dollars per occurrence
with a $10,000,000 umbrella policy. The property damage insurance
required by this section shall indemnify, defend and hold harmless
Company and Township and the respective officers boards commissions,
agents, and employees of each from and against all claims made by
any person for property damage caused by the operation of Company
under the Franchise herein granted or alleged to have been so caused
or alleged to have occurred.
(2)Â
Comprehensive public liability. One million dollars per occurrence
with a $10,000,000 umbrella policy. The comprehensive public liability
insurance required by this section shall indemnify, defend, and hold
harmless Company and Township and the respective officers, boards,
commissions, agents, and employees of each from any and all claims
made by any person on account of injury to, or death of a person or
persons caused by the operations of Company under this Franchise,
alleged to have been so caused or alleged to have occurred.
(3)Â
Comprehensive automobile liability. One million dollars per occurrence
with a $10,000,000 umbrella policy. The comprehensive automobile liability
insurance required by this section shall indemnify, defend and hold
harmless Company and Township and the respective officers, boards,
commissions, employees and agents of each from any and all claims
made by any person on account of collision, personal injury or property
damage caused by use of any owned, hired, or non-owned motor vehicles
used in conjunction with the rights herein granted or alleged to have
been so caused or alleged to have occurred.
(4)Â
Workers' compensation. Workers' Compensation coverage which
meets all requirements of applicable Michigan workers' compensation
laws.
F.Â
The insurance policies called for herein shall require 30 calendar
days' written notice to Township and the Company of any cancellation
or change in the amount of coverage. Company shall in the event of
any cancellation notice, obtain, maintain, pay all premiums for, and
file with Township written evidence of payments or premiums for an
appropriate replacement insurance policies so canceled within 30 calendar
days following receipt by Township or Company of notice of cancellation.
G.Â
No recovery by Township of any sum by reason of any insurance policy
required by this Franchise shall be any limitation upon the liability
of Company to Township or to other persons.
H.Â
All insurance shall be effected under valid and enforceable policies
insured by insurance carriers licensed to do business by the State
of Michigan or by surplus line carriers on the Michigan Insurance
Commissioner's approved list of companies qualified to do business
in Michigan.
A.Â
Franchise fee. Company shall pay Township throughout the term of
this Franchise an amount equal to 5% of Company's Gross Revenues.
Such payments shall be made semiannually, by March 31 based upon Gross
Revenues in the preceding July-December, and by September 30 based
upon Gross Revenues in the preceding January-June.
(1)Â
Each payment shall be accompanied by a written report to Township,
verified by an officer of Company containing an accurate statement
in summarized form of Company's Gross Revenues and the computation
of the payment amount.
(2)Â
Township may audit Company to verify the accuracy of franchise fees
paid Township. Any additional amount due Township shall be paid within
30 days of Township's submitting an invoice for such sum, and
if such sum shall exceed 5% of the total franchise fee which the audit
determines should have been paid for any calendar year, Company shall
pay Township's cost of auditing that calendar year as well.
B.Â
Other payments. The preceding fees and payments are in addition to
all sums which may be due Township for property taxes (real and personal),
income taxes, license fees, permit fees or other fees, taxes or charges
which Township may from time to time impose.
C.Â
Interest. All sums not paid when due shall bear interest at a rate of 10% per annum computed monthly and if so paid with interest shall not constitute an event of default under § A315-11.
D.Â
Prior fees. By March 31, 1996, Company shall pay all franchise fees
due under the prior franchise between Company and Township.
A.Â
Rates. Company's rates and charges for the provision of Cable
Service (and for related services, such as equipment rental, deposits,
and downgrade fees) shall be subject to regulation by Township as
expressly permitted by federal law.
B.Â
Regulation. Township reserves the right to regulate Company the Cable
Television System, and the provision of Cable Service as expressly
permitted by federal law.
C.Â
Notice of certain costs. Company shall notify Municipality in writing
at least annually of the identity of all costs which Company claims
are external costs potentially entitled to pass through to subscribers
under the FCC Rules or successor rules with a similar effect. Such
notice shall state the approximate amount of such costs may be on
subscriber's monthly bills and set forth the computation of such
amount. Such notice shall be provided on a date set by Municipality,
and unless changed by Municipality, on each annual anniversary thereof.
A.Â
Initial term. The term of this franchise shall be from January 1,
1996 until December 31, 2001.
B.Â
Termination. This Franchise and all rights of Company thereunder
shall automatically terminate on the expiration of the term of this
franchise, unless an extension is granted. Township will give Company
60 days' notice prior to taking action to enforce such termination.
C.Â
Reopeners. Township or Company at its option may reopen this Franchise
as follows:
(1)Â
Within six months of the adoption of federal or state legislation
or FCC regulations if such regulations affect Township's ability
to (a) regulate rates or (b) act to protect subscribers (such as on
customer service matters, customer service standards or consumer protection
matters). Such reopener shall be limited to the matters described
in (a) and (b).
A.Â
Management of the cable television system. Company shall personally
manage the Cable Television System and the provision of Cable Services
within Township. It shall not directly or indirectly contract for,
subcontract or assign in whole or in part, the management of the Cable
Television System or the provision of Cable Services.
B.Â
Consent required. This franchise agreement and the Cable Television
System shall not be sold, transferred, assigned, or otherwise encumbered,
without the prior consent of the Township, such consent not to be
unreasonably withheld. Such consent shall not be required, for a transfer
in order to secure indebtedness such as a transfer in trust, by mortgage,
by other hypothecation, or by assignment of any rights, title, or
interest of Company in the franchise or cable system.
(1)Â
The preceding prohibition shall not apply to the replacement
or sale of components of the Cable Television System in the course
of ordinary maintenance or day-to-day operation.
(2)Â
The preceding prohibition shall not apply to a transfer to an
affiliate, which shall mean an entity controlling, controlled by,
or under common control with Company.
C.Â
Transfer or Transferred shall mean any form of sale, conveyance,
assignment, lease, sublease, merger, pledge, deed, grant, mortgage,
transfer in trust, encumbrance or hypothecation in whole or in part,
whether voluntary or involuntary of any right, title or interest of
Company in or to this Franchise or to the Cable Television System.
D.Â
Applications for consent. If Company seeks to obtain the consent of Township to any transactions or matters otherwise prohibited by this § A315-10, Company shall submit an application for such consent in the form required by Township and shall submit or caused to be submitted to Township all such documents and information as Township may request.
A.Â
Events of default. The occurrence at any time during the term of
the Franchise, of any one or more of the following events, shall constitute
an event of default by the Company under this Franchise.
(1)Â
The failure of Company to pay the Franchise fee on or before
the due dates specified herein.
(2)Â
Company's material breach or violation of any of the terms,
covenants, representations or warranties contained herein or the Company's
failure to perform any obligation contained herein.
(3)Â
Company's failure to pay or cause to be paid any governmentally
imposed taxes of any kind whatsoever, including but not limited to
real estate taxes income taxes, and personal property taxes on or
before the due date for same; provided, however, Company shall not
be in default hereunder with respect to the nonpayment of taxes which
are being disputed in good faith in accordance with applicable law.
(4)Â
The entry of any judgment against Company in excess of $500,
which remains unpaid and is not stayed pending rehearing or appeal,
for 45 or more days following entry thereof which may significantly
impair Company's provision of cable service in Township.
(5)Â
The dissolution or termination, as a matter of law, of Company
or any general partner of Company.
(6)Â
If Company files a voluntary petition in bankruptcy; is adjudicated
insolvent; obtains an order for relief under Section 301 of the Bankruptcy
Code (11 U.S.C. § 301); files any petition or fails to contest
any petition filed against it seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
for itself under any laws relating to bankruptcy, insolvency or other
relief for debtors; seeks or consents to or acquiesces in the appointment
of any trustee, receiver, master, custodian or liquidator of Company,
or any of Company's property and/or Franchise and/or of any and
all of the revenues, issues, earnings, profits or income thereof;
makes an assignment for the benefit of creditors; or fails to pay
Company's debts generally as they become due.
B.Â
Uncured events of default. Township shall give Company written notice
of any event of default and Company shall have the following reasonable
time period to give same: For an event of default which can be cured
by the immediate payment of money to Township or a third party, the
Company shall cure such default within 30 days of the date such sum
of money was due and payable; for an event of default by Company which
cannot be cured by the immediate payment of money to Township or a
third party, Company shall have 90 days from written notice from Township
to Company of an occurrence of such event of default.
A.Â
Remedies. Upon the occurrence of any uncured event of default as described in § A315-11, Township shall be entitled to exercise any and all of the following cumulative remedies:
(1)Â
Township shall have the right to forfeit and terminate the Franchise
and upon the forfeiture and termination thereof this Franchise shall
be automatically deemed null and void and have no force or effect,
Company shall remove the Cable Television System from Township as
and when requested by Township and Township shall retain any portion
of the Franchise Fee and other fees or payments paid to it, or which
are due and payable to it, to the date of the forfeiture and termination.
Township's right to forfeit and terminate the grant of the Franchise
pursuant to this section is not a limitation on Township's right
of revocation.
(2)Â
The commencement of an action against Company at law for monetary
damages.
(3)Â
The commencement of an action in equity seeking injunctive relief
or the specific performance of any of the provisions which, as a matter
of equity, are specifically enforceable.
B.Â
Remedies not exclusive. The rights and remedies of Township set forth
in this Franchise shall be in addition to and not in limitation of,
any other rights and remedies provided by law or in equity. Township
and Company understand and intend that such remedies shall be cumulative
to the maximum extent permitted by law and the exercise by Township
of any one or more of such remedies shall not preclude the exercise
by Township, at the same or different times, of any other such remedies
for the same uncured event of default.
C.Â
Liquidated damages. Notwithstanding any other provision of this Franchise (including, without limitation, § A315-11A and B, and § A315-12A and B), and the Township may assess liquidated damages for any violation of the Agreement [whether or not it is an uncured event of default as defined in § A315-11B(1)] as set forth herein. Recognizing the difficulty in calculating the actual monetary damages which would be sustained by the Township in the event of a violation by the Company of certain provisions of this Agreement, the Township and the Company agree that the following shall constitute the liquidated damage amounts to be assessed against the Company:
(1)Â
Failure of the Company to pay the franchise fee or to pay any
other monetary amounts on or before the due date specified in this
Agreement within 10 days' written notice of such failure, $200 per
day.
(2)Â
Any violations of §§ A315-2C, A315-4B, C, F through L, P, R, T through W which occur four times in any six-month period or six times in any twelve-month period, $50 per occurrence beginning with the fourth or sixth violation, and $100 per occurrence after 10 occurrences within any twelve-month period.
(4)Â
The foregoing liquidated damages shall be in addition to, and
not a limitation upon, any other remedies or provisions of this Agreement,
including revocation.
A.Â
Financial reports. Company will provide Township on or before April
15 of each calendar year audited financial statements of its parent,
publicly held company, for the prior calendar year certified by a
national accounting firm.
B.Â
Lawsuits. Company will provide Township with copies of all pleadings
in all lawsuits pertaining to the granting of this franchise and the
operation of the cable system to which it is a party with five days
of Company's receipt of same.
C.Â
Filings. Company will provide copies of all documents which Company
sends to the FCC or Michigan Public Service Commission and all records
required by Company to be maintained under Section 76 of the
FCC regulations (47 CFR § 76) or successor sections upon
request of the Township.
D.Â
Books and records. The Township may review such of the Company's
books and records during normal business hours and on a nondisruptive
basis, as are reasonably necessary to monitor compliance with the
terms hereof. Such records shall include, but shall not be limited
to, records required to be kept by the Company pursuant to the rules
and regulations of the FCC, and financial information underlying the
summary report pertaining to the Company Fee. Notwithstanding anything
to the contrary set forth herein, the Company is not required to disclose
personally identifiable subscriber information without the subscriber's
consent in recognition of Section 631 of the Cable Act, 47 U.S.C.
§ 551, regarding the protection of subscriber privacy; nor
shall the Company be required to disclose its income tax returns or
information underlying the preparation of any such returns. To the
extent permitted by law, the Township agrees to treat on a confidential
basis any information disclosed by the Company to it under this section.
In so according confidential treatment, to the extent permitted by
law, disclosure of Company's records by the Township shall be
limited to only those of its employees, representatives and agents
that have a need to know, and that are in a confidential relationship
with the Township.
A.Â
Entire agreement. This Franchise, including the Exhibits attached
hereto, contain the entire agreement between the parties and all prior
franchises, negotiations and agreements are merged herein and hereby
superseded.
B.Â
Notices.
(1)Â
Except as otherwise specified herein, all notices consents approvals,
requests and other communications (herein collectively "Notices")
required or permitted under this Franchise shall be given in writing
and mailed by registered or certified first-class mail, return receipt
requested addressed as follows:
(2)Â
All Notices shall be deemed given on the day of mailing. Either
party to this Franchise may change its address for the receipt of
Notices at any time by giving notice thereof to the other as provided
in this section. Any notice given by a party hereunder must be signed
by an authorized representative of such party.
C.Â
Conferences. The parties hereby agree to meet at reasonable times
on reasonable notice to discuss any aspect of this Franchise, the
provision of Cable Services or the Cable Television System during
the term of this Franchise.
D.Â
Governing law. This Franchise shall be construed pursuant to the
laws of the State of Michigan and the United States of America.
E.Â
Waiver of compliance. No failure by either party to insist upon the
strict performance of any covenant, agreement, term or condition of
this Franchise, or to exercise any right, term or remedy consequent
upon a breach thereof shall constitute a waiver of any such breach
or such covenant, agreement, term or condition. No waiver of any breach
shall affect or alter this Franchise, but each and every covenant,
agreement, term or condition of this Franchise shall continue in full
force and effect with respect to any other then existing or subsequent
breach thereof.
(1)Â
Township may waive any obligation of Company under this Franchise,
in whole or in part, at any time. This includes but it not limited
to instances of a claim or showing by Company that the costs associated
with the provision being waived would increase the rates Company is
legally allowed to charge subscribers, such as a claim that such costs
are an "external cost" which allow Company to increase its rates under
the FCC rules.
F.Â
Independent contractor relationship. The relationship of Company
to Township is and shall continue to be an independent contractual
relationship, and no liability or benefits, such as worker's
compensation, pension rights or liabilities, insurance rights or liabilities
or other provisions or liabilities, arising out of or related to a
contract for hire or employer/employee relationship, shall arise or
accrue to either party or either party's agents or employees
as a result of the performance of this Franchise, unless expressly
stated in this Franchise.
G.Â
Severability. If any section, paragraph, or provision of this Franchise
shall be held to be invalid or unenforceable for any reason, the invalidity
or unenforceability of such section, paragraph, or provision shall
not affect any of the remaining provisions of this Franchise.
H.Â
Effective date, acceptance. This Ordinance and the Franchise granted
herein shall be effective as of January 1, 1995. The prior franchise
shall terminate as of midnight on December 31, 1994.
I.Â
FCC rules. A copy of FCC Rule 76.309 as in effect on the date of
this ordinance is attached hereto as Exhibit A.
J.Â
Acceptance. This Ordinance will without further action be revoked,
null and void and of no effect after 30 days from its adoption unless
within such period Company accepts same in writing by filing with
the Township Clerk the acceptance attached hereto as Exhibit B. By
such acceptance, Company agrees to all the provisions, terms, and
conditions contained in this Ordinance.
K.Â
Captions. All captions are for convenience of use and have no substantive effect, except for those captions in § A315-1 of this chapter.
L.Â
Conflicts/repealer. In the event of a conflict between this Ordinance
and the provisions of any prior ordinance or any franchise, permit,
consent agreement or other agreement with a cable operator, then the
provisions of this Ordinance shall control. Ordinance number _____________,
being a grant of a cable television franchise to ______________________,
is hereby repealed as to the effective date of this Ordinance.
