[Adopted 3-23-1993 by Ord. No. 1031
(Art. II of Ch. A380 of the 1984 Code)]
A.
The grantor hereby grants to the grantee a renewal of
its cable television franchise subject to the provisions of Ordinance No.
791, as amended,[1] this agreement, the grantee's renewal proposal, the Cable
Communications Policy Act of 1984 and the Cable Television Consumer Protection
and Competition Act of 1992. To the extent of any conflict or overlap between
the provisions of Ordinance No. 791, as amended, and this agreement and the
grantee's renewal proposal, this agreement and the grantee's renewal
proposal shall prevail subject to federal and state law. This renewal further
amends the term of the original franchise and extends the franchise, authority,
right and privilege to construct, reconstruct, operate and maintain a cable
television system within the streets and public ways in the City of Roseville
as it is now or may in the future be constituted.
B.
This amendment and renewal shall become effective upon
approval by resolution or ordinance by the grantor at its regularly scheduled
public meeting, provided that the same occurs on or before February 28, 1993.
This agreement is further contingent upon payment by the grantee to the grantor
of all moneys and grants required hereunder in a timely manner.
C.
The term of the renewal shall be 15 years commencing
on the expiration date of the current agreement and thereafter shall expire
and be of no force and effect unless renewed. Renewal shall be in accordance
with applicable law at that time.
D.
This franchise shall not be construed as any limitation
upon the right of the grantor, through its proper offices, and in accordance
with applicable law, to grant to other persons or corporations rights, privileges
or authority similar to or different from the rights, privileges and authority
herein set forth, in the same or other streets and public ways or public places
or other places the grantee is entitled to occupy by franchise, permit or
otherwise; provided, however, that such additional grants shall not operate
to materially modify or diminish, revoke or terminate any rights granted to
the grantee herein and shall include at a minimum similar terms and conditions
as required by Ordinance No. 791, as amended, and this agreement, and further,
shall be in accord with the provisions of all City of Roseville regulatory
ordinances.
E.
The provisions of the City of Roseville Cable Television
Regulatory Ordinance No. 791, as amended, the Cable Communications Policy
Act of 1984, the Cable Television Consumer Protection and Competition Act
of 1992 and Continental Cablevision of Michigan, Inc.'s renewal proposal
are hereby incorporated herein by reference as if set forth in full.
A.
The grantee shall pay to the grantor an annual franchise
fee commencing May 7, 1994, based upon the gross annual revenues of the grantee
from any and all operations of its cable system and business in the City of
Roseville. The fee shall be payable quarterly by April 30, July 31, October
31 and January 31 for the preceding calendar quarter. The rate of said fee
over the term of this agreement shall be as follows:
B.
In the event that the grantee substantially reduces the
size of its facilities in the City of Roseville and/or relocates its offices
to another locality, this agreement shall be opened for renegotiations on
the issue of franchise fee rates. It being understood that the rate structure
agreed upon herein by the grantor is based in part upon projected revenues
to be derived from property taxes assessed on the grantee's facilities.
If the grantor is permitted under federal and/or state law to regulate
the rates charged by the grantee to subscribers, and if the grantor elects
to so regulate, the grantor shall establish reasonable procedures consistent
with due process and follow those procedures before so regulating subscriber
rates.
A.
The grantee shall make a ten-thousand-dollar programming
grant to the City of Roseville. This grant shall be paid in two installments
of $5,000 each, the first installment being within 30 days of the ordinance
and/or resolution approving this agreement, and the second payment in January
of 1994. This grant is for the sole purpose of stimulating senior citizens
to use cable television as a source to share the many senior citizens activities
with the rest of the community via cable television. Senior programs, once
created, may be cable casted on the city access channel or be provided to
the grantee to be replayed on the grantor's public access channel. Additionally,
the grantee will grant to the grantor for its recreation center one television
set and video cassette recorder (VCR) for the grantor's senior citizens
to use at the Recreation Center. Throughout the term of this renewal, senior
citizens shall be afforded free installation of cable service by Continental
Cablevision, its assigns or successors.
B.
Additionally, the grantee will provide, at no cost to
the senior citizens, an orientation program and workshop for the purpose of
educating senior citizens and the development of senior citizen programming
for local broadcasting. Also, the grantee shall, for as long as it published
its Roseville Cable Guide, make the same available to senior citizen package
customers for pickup at its Roseville Office and the Roseville Recreation
Center, at no charge, its Roseville Cable Guide.
In further consideration of the terms and conditions of this agreement
and the grantor's early renewal of this franchise agreement, the grantee
shall make a lump sum grant of $96,000 to the grantor within 30 days of the
resolution and/or ordinance approving this agreement.
Upon the request of the grantor that the grantee interconnect its system
with that of another cable operator in an adjacent municipality, the grantee
shall contact said cable operator and attempt to negotiate reasonable terms
and conditions for the interconnection of the two cable systems. Should the
grantee be unable to reach terms and conditions with another cable operator,
it shall so inform the grantor in writing. Where the grantee is able to reach
an agreement with the other cable operator, it shall advise the city of the
costs of such an interconnection. The grantee agrees to pay as a one-time
grant up to a maximum of $25,000 for said interconnection expenses. Additionally,
in such interconnection, the grantee will dedicate up to six MHz video channels
for the use of public entities serving the city to use for noncommercial purpose
only.
The grantee shall not assign the franchise to a party not controlled
by, controlling or under common control with the grantee, nor transfer 51%
or greater ultimate voting control of the grantee, without written approval
by the city; provided that such approval will not be unreasonably withheld
if the assignee or transferee has filed with the appropriate officials of
the city an instrument duly executed, reciting the fact of such assignment
or transfer, accepting the terms of this ordinance and agreeing to perform
all conditions thereof; and that the assignee or transferee shall reimburse
the grantor for all reasonable out-of-pocket costs incurred by the grantor's
review and processing of the assignment or transfer. Any such costs shall
not be charged against any franchise fees due to the grantor during the term
of this franchise.
A.
Upon the effective date of renewal, the grantee shall,
at its sole expense, increase and/or maintain during the life of this agreement
public liability insurance that shall protect the grantee, the grantor, its
officials, officers, directors, employees and agents from claims which may
arise from operations under this agreement, whether such operations be by
the grantee, its officials, officers, directors, employees and agents or any
subcontractors of the grantee. This liability insurance shall include but
shall not be limited to protection against claims arising from bodily and
personal injury and damage to property resulting from the grantee's automobiles,
products and completed operations. The amounts of insurance shall not be less
than existing coverage currently held by the grantee, as presented by Exhibit
A.[1]
[1]
Editor's Note: Exhibit A is on file in the city offices.
B.
Except as otherwise provided herein, the grantee shall
indemnify, hold harmless, release and defend the grantor, its officers, employees
and agents from and against any and all actions, claims, demands, damages,
disability, losses, expenses, including attorney's fees, and other defense
costs or liabilities of any nature that may be asserted by any person or entity,
including the grantee, from any cause whatsoever arising out of or in any
way connected with the aforesaid operations, the exercise or enjoyment of
the franchise renewed pursuant to this agreement and/or the activities of
the grantee, its subcontractors, employees and agents hereunder. The grantee
shall be solely responsible and save the grantor harmless from all matters
relative to payment of the grantee's employees, including compliance
with social security, withholding, etc.
C.
This indemnification obligation is not limited in any
way by a limitation on the amount or type of damages or compensation payable
by or for the grantee under worker's compensation, disability or other
employee benefit acts, acceptance of insurance certificates required under
this agreement or the terms, applicability or limitations of any insurance
held by the grantee.
D.
The grantor does not, and shall not, waive any rights
against the grantee which it may have by reason of this indemnification because
of the acceptance by the grantor or the deposit with the grantor by the grantee
of any of the insurance policies described in this section.
E.
This indemnification by the grantee shall apply to all
damages and claims for damages of any kind suffered by reason of any of the
aforesaid operations referred to in this section, regardless of whether or
not such insurance policies shall have been determined to be applicable to
any of such damages or claims for damages.
F.
The grantee shall not be required to indemnify the grantor
for negligence or misconduct on the part of the grantor or its officials,
boards, commissions, agents or employees (hereinafter "such acts"). The grantor
shall hold the grantee harmless from any damage resulting from any such acts
of the grantor or its officials, boards, commissions, agents or employees
in utilizing any PEG access channels, equipment or facilities and for any
such acts committed by the grantor in connection with work performed by the
grantor and permitted by this agreement on or adjacent to the cable system.
G.
The grantee shall not commence any system reconstruction
work or permit any subcontractor to commence work until both shall have obtained
or cause to be obtained all insurance required by the grantor for such construction.
Said insurance shall be maintained in full force and effect until the completion
of reconstruction and approval thereof by the grantor.
H.
The grantee shall obtain and maintain workers' compensation
insurance for all the grantee's employees, and in case any work is sublet,
the grantee shall require any subcontractor similarly to provide workers'
compensation insurance for all subcontractor's employees, all in compliance
with state laws, and to fully protect the grantor from any and all claims
arising out of occurrences on the work. The grantee hereby indemnifies the
grantor for any damage resulting to it from failure of either the grantee
or any subcontractor to take out and maintain such insurance. The grantee
shall provide the grantor with a certificate of insurance indicating workers'
compensation coverage prior to commencing reconstruction of the system.
The grantee, as a term and conditions of this franchise agreement, shall
maintain a minimum standard of customer service consistent with the guidelines
of the NCTA. These guidelines, a copy of which are attached hereto as Exhibit
B, are incorporated herein by reference. In the event that the FCC dictates
standards of customer service, said standards shall supersede the NCTA standards.
In the event that the grantee shall fail to abide by its time schedule
set forth in its written renewal proposal of May 14, 1992, for technological
upgrading, the grantor may demand of the grantee and the grantee shall forthwith
establish and provide to the grantor a security fund, as security for the
faithful performance by the grantee of all material provisions of this agreement
and the grantee's renewal proposal concerning technological upgrading.
This security fund shall consist of a performance bond acceptable to the grantor
in the amount of $500,000 until the system upgrade and/or rebuild provided
for in the grantee's renewal proposal is completed, at which time the
bond shall be released, provided that there are then no outstanding material
violations of this agreement.
A.
In addition to any procedure and remedy allowed either
party hereto by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection Act of 1992 and regulations enacted in support of said
acts, together with other applicable state and/or federal law, the following
procedures and remedies shall apply. Upon violation of this agreement by the
grantee, the grantor, by action of the City Manager or a delegate, shall first
notify the grantee of the violation, in writing, by personal delivery or registered
or certified mail, and demand correction within a reasonable time, which shall
not be less than five days in the case of the failure of the grantee to pay
any sum or other amount due the grantor under this agreement and 30 days in
all other cases. If the grantee fails to correct the violation within the
time prescribed or if the grantee fails to commence corrective action within
the time prescribed and diligently remedy such violation thereafter, the grantee
shall then be given a written notice of not less than 20 days of a public
hearing to be held before the Council. Said notice shall specify the violations
alleged to have occurred. At the public hearing, the Council shall hear and
consider all relevant evidence and thereafter render findings and its decision.
B.
In the event that the Council finds that the grantee
has corrected the violation or has diligently commenced correction of such
violation after notice thereof from the grantor and is diligently proceeding
to fully remedy such violation, or that no material violation has occurred,
the proceeding shall terminate, and no penalty or other sanction shall be
imposed. In determining whether a violation is material, the grantor shall
take into consideration the standards of the industry, the reliability of
the evidence of the violation, the nature of the violation and the damage,
if any, caused to the grantor thereby, whether the violation was chronic,
and any justifying or mitigating circumstances and such other matters as the
grantor may deem appropriate.
C.
In the event that the Council finds that a material violation
exists and that the grantee has not corrected the same in a satisfactory manner
or has not diligently commenced correction of such violation, the Council
may impose liquidated damages of up to $1,000 per day or per incident for
unexcused violation of the system upgrade and/or rebuild completion schedule
and up to $100 per day or per incident for all other material violation, provided
that all violations of a similar nature occurring at the same time shall be
considered one incident.
In addition to the grantee's representation set forth in its written
renewal proposal and terms and conditions set forth above, the grantee agrees
that:
A.
Within 90 days of the execution of this agreement, the
grantee will make available as part of its basic programming a religious channel.
B.
Within a reasonable time after regulations pursuant to
the Cable Act of 1992 have been issued, the grantee will amend its current
billing practice as the same concerns charges for additional outlets in the
same dwelling, converter boxes and remote controls to assure that charges,
if any, for said services shall not be in excess of the rates allowed by the
FCC under the Cable Consumer Protection Act of 1992. Notwithstanding, the
grantee may not prohibit or restrict any subscribers from purchasing and/or
renting converter boxes and/or remote controls from any other source, except
to prevent theft of service by a subscriber.
C.
The terms and conditions and fees incurred by the grantee
pursuant to this agreement will not, in and of themselves, be the cause of
or basis for any increase of rates to subscribers in 1993, unless required
by federal law.
D.
If at any time the grantee, its successors or assigns
is granted and/or operates a franchise in another municipality in the State
of Michigan which contains terms and conditions for the provision of service,
technology and/or franchise fees which are substantially better terms and
conditions for the franchiser than those contained in this franchise agreement,
then the grantee shall inform the grantor of such fact and provide a copy
of such ordinance or agreement to the grantor. Should the grantor wish to
include any such terms and conditions of said other ordinance and/or agreement,
it shall have 90 days after receipt of said information to request that inclusion.
Upon such request, the grantee shall negotiate in good faith to reasonably
comply with the grantor's request, it being the intent of the parties
that the grantor receive no less than equal value with any other similarly
sized municipalities served by the grantee, its successors or assigns. In
determining reasonable compliance, the grantee and the grantor shall take
into consideration all the other terms and conditions of such other ordinance
and/or agreement, including the terms and expiration dates of said agreements,
the natural evolution of technology at the time of any other such grants,
the rates and penetration levels in such other municipalities, potential additional
capital and operating expenditure and any other appropriate factors to assure
that the grantor receives equal value in services, technology and franchise
fees with such other municipalities.
F.
The number of sets of portable equipment commonly referred
to as "studio suitcases" granted to the city shall be three.
