Township of Buchanan, MI Chapter A315 Cable Television Franchise

[HISTORY: Adopted by the Township Board of the Township of Buchanan 12-4-1995 by Ord. No. 28. Amendments noted where applicable.]

§ A315-1 Definitions.

As used in this ordinance, the following terms shall have the meanings indicated:

ADDITIONAL INSUREDS

Shall have the meaning defined in § A315-6.

AUTHORIZED AREA

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.

CABLE SERVICES

Only:

A. The one-way transmission to all subscribers of (i) video programming or (ii) other programming services, such as digital audio; and

B. 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.

CABLE TELEVISION BUSINESS

The provision by the Company of Cable Services solely by means of the Cable Television System.

CABLE TELEVISION SYSTEM or 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. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

B. 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;

C. 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.

COMPANY

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)]

EVENT OF DEFAULT

Shall have the meaning defined in § A315-11.

FCC

Federal Communications Commission.

FRANCHISE

This Ordinance, and "franchise fee," shall mean the fee set forth in § A315-7.

GROSS REVENUES

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.

A. 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.

B. 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.

PEG CHANNELS

Shall have the meaning set forth in § A315-5.

PUBLIC WAYS

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.

SYSTEM

Shall have the same meaning as Cable Television System.

TOWNSHIP

The Township of Buchanan.

UNCURED EVENT OF DEFAULT

Shall have the meaning defined § 315-11.

§ A315-2 Grant of rights.

A. 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) 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. 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) 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. 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. 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. 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. 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. 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. 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. 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.

§ A315-3 Public ways.

A. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

§ A315-4 Service.

A. 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. 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) "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. 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. 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) 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. 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. 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. Pay per view. Subscribers shall be given the option of not having pay per view or per program service available at all.

H. 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. 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) Products and services offered.

(2) 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) Installation and service maintenance policies.

(4) Instruction on how to use the Cable Service including procedures and options for pay per view and premium channels.

(5) Channel positions of programming carried on the Cable Television System.

(6) Billing and complaint procedures, including the address and phone number of the person or position at the Township responsible for cable matters.

(7) Applicable privacy requirements as set forth in this Franchise or otherwise provided for by law.

J. 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. 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) 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. 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. 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. 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:

(1) Caused by subscriber negligence, or

(2) Caused by malicious destruction of cable equipment, or

(3) A problem previously established as having been noncable in origin.

O. 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. 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) 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. 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. 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. 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. FCC technical standards. The Company shall meet or exceed the FCC's technical standards that may be adopted from time to time.

(1) 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) 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) 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. 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. 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. Bond.

(1) 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) 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) 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) 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.

§ A315-5 Channels made available.

A. 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. 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. 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) 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:

§ A315-6 Indemnity and insurance.

A. 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. 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) 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. 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. 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. 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) 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) 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) 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) Workers' compensation. Workers' Compensation coverage which meets all requirements of applicable Michigan workers' compensation laws.

F. 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. 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. 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.

§ A315-7 Fees and payments.

A. 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) 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) 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. 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. 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. Prior fees. By March 31, 1996, Company shall pay all franchise fees due under the prior franchise between Company and Township.

§ A315-8 Rates and regulation.

A. 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. 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. 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.

§ A315-9 Term.

A. Initial term. The term of this franchise shall be from January 1, 1996 until December 31, 2001.

B. 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. Reopeners. Township or Company at its option may reopen this Franchise as follows:

(1) 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).

§ A315-10 Transfers ownership and control.

A. 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. 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) 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) 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. 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. 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.

§ A315-11 Defaults.

A. 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) The failure of Company to pay the Franchise fee on or before the due dates specified herein.

(2) 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) 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) 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) The dissolution or termination, as a matter of law, of Company or any general partner of Company.

(6) 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. 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.

(1) If any event of default is not cured within the time period allowed for curing the event of default, as provided for herein, such event of default shall, without notice, become an uncured event of default, which shall entitle Township to exercise the remedies provided for in § A315-12A and B.

§ A315-12 Remedies.

A. 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) 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) The commencement of an action against Company at law for monetary damages.

(3) 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. 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. 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) 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) 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.

(3) Any violation of §§ A315-2A, B, D, E, F, A315-3B, D, E, F, I, J, A315-4A, C, F, G, H, J, K, L, N, O, S, A315-5A, A315-6F, A315-10A, and A315-13D of this Agreement which is not corrected within 30 days' of written notice of violation, $100 per day.

(4) The foregoing liquidated damages shall be in addition to, and not a limitation upon, any other remedies or provisions of this Agreement, including revocation.

§ A315-13 Provision of information.

A. 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. 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. 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. 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.

§ A315-14 General.

A. 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. Notices.

(1) 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:

(a) If to Township:

Township Supervisor

Township of Buchanan

15235 Main Street

Buchanan, MI 49107

(b) If to Company:

TCI Cablevision of Michigan

P.O. Box 23

St. Joseph, MI 49085

WestMarc Development Joint Venture

111 Pfingston Road

Deerfield, IL 60015

(2) 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. 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. Governing law. This Franchise shall be construed pursuant to the laws of the State of Michigan and the United States of America.

E. 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) 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. 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. 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. 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. 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. 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. Captions. All captions are for convenience of use and have no substantive effect, except for those captions in § A315-1 of this chapter.

L. 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.