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Franklin County Cable Franchise Agreement
The original cable TV franchise agreement.
Click here to view the transfer agreement dated July 2007 - to JetBroadband.
PROPOSAL FOR
CABLE TELEVISION SYSTEM
FRANCHISE AGREEMENT
between
THE COUNTY OF FRANKLIN, VIRGINIA
And
INTERLINK COMMUNICATIONS PARTNERS, LLC, DOING BUSINESS AS CHARTER COMMUNICATIONS
CABLE TELEVISION SYSTEM FRANCHISE AGREEMENT
This Cable Television System Franchise Agreement ("Franchise Agreement" or "Franchise") is entered into this 1st day of October, 2002, by and between the County of Franklin, Virginia ("County"), and Interlink Communications Partners, LLC, doing business as Charter Communications ("Franchisee").
RECITALS
WHEREAS, the County is authorized to grant and renew franchises for the installation, operation and maintenance of cable television systems within the County; and
WHEREAS, the Franchisee is willing to accept this Franchise Agreement subject to the terms and conditions stated herein, and to abide by these terms and conditions; and
WHEREAS, the public has had adequate notice and opportunity to comment on the Franchisee's proposal to provide cable television service within the County; and
WHEREAS, the County hereby finds that it would serve the public interest of the citizens of the County to grant a renewal cable television franchise to the Franchisee subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, County and Franchisee do herebyagree as follows:
SECTION 1 DEFINITIONS
For purposes of this Franchise Agreement, the following terms, phrases, words and their derivations shall have the meanings given herein, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context the words used in the plural shall include the singular and vice versa. The word "shall" is always mandatory, and not merely directory.
1.1 "Access Channels" shall mean dedicated channels giving access to the cable system by government agencies, or educational institutions as referenced in Section 602 (16) of the Cable Act as it now exists or may be hereafter amended.
1.2 "Gross Revenue" shall mean monthly fees charged to Subscribers for Basic Services, any optional services, any tier optional services, any tier services other than Basic Service; pay television fees; installation, additional outlets, disconnection and reconnection and late payment or collection fees; leased channel fees; converter rentals or sales, and the sale, exchange or cable cast of any programming developed for community service channels or institutional users, from the provision of Cable Service over the Cable Systemwithin the County.
Gross Revenues shall not include revenues received from the provision of internet service over the cable system until such time as the FCC rules that such service shall be designated a cable service and included in gross revenues for the purpose of calculating franchise fees..
Gross Revenues shall not include: any amount: of (i) revenues from affiliated entities to the extent that such revenues have also been reported as revenues by the Franchisee; (ii) revenues from the sale of goods and merchandise to the extent that Franchisee does not retain the revenue collected; (iii) any amounts documented as bad debts or refunds to Subscribers; (iv) any copyright fees; (v) any taxes, fee or assessment on services furnished by Franchisee imposed on any Subscriber or user by the state, county, County or other governmental unit; (vi) any amount assessed to satisfy any requirement imposed upon Franchisee to support educational, or governmental channels or the use of such channels and; (vii) franchise fees.
1.3 "Basic Cable Subscriber Services" or "Basic Cable Service" shall mean the lowest priced tier of service, which includes the retransmission of local television broadcast signals as defined in the Cable Act.
1.4 "Cable Act" shall mean the Cable Communications Policy Act of 1984, as amended, and applicable FCC Rules and Regulations as they now exist or may be hereafter amended.
1.5 "Cable Service" shall mean: (i) the one-way transmission to Subscribers of video programming or, (ii) other programming service and (iii) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
1.6 "Cable System" shall mean any facility which consists of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, 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 subscribers without using any public right-of-way; (c) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system [other than for purposes of section 621 (c)] to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (d) an open video system that complies with section 653 of the Communications Act of 1934; or (e) any facilities of any electric utility used solely for operating its electric utility systems.
1.7 “Channel” shall mean a band of frequencies in the electromagnetic spectrum, which is capable of carrying either one (1) audio-video television signal and/or a number of non-video signals.
1.8 "Chief Administrative Officer" shall mean the existing or succeeding County Administrator of Franklin, Virginia, or such other County official as the County may designate as Chief Administrative Officer.
1.9 "County" shall mean the County of Franklin in its present unincorporated form, or in any form that may subsequently be adopted.
1.10 “County Board of Supervisors" or "Board" shall mean the present governing body of the County of Franklin or any successor to the County Board
1.11 "Day" shall mean calendar day unless specified otherwise.
1.12 "Federal Communications Commission" or "FCC" shall mean that administrative agency of the Federal government responsible for cable television regulation under the Cable Act on a national level, or its lawful successor.
1.13 "Franchise" shall mean the initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to Section 626 of the Cable Act) issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System in the County of Franklin, including this Franchise Agreement as it now exists or may hereafter be amended.
Any such authorizations, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the County as required by other ordinances and laws of the County.
1.14 "Franchise Area" shall mean all areas within the unincorporated boundaries of the County.
1.15 "Franchisee" shall mean Interlink Communications Partners, LLC, doing business as Charter Communications, the Franchisee granted a franchise under this Franchise Agreement; or the successors, transferees or assignees of such Franchisee.
1.16 "Good Cause" shall represent that set of facts and circumstances which, in an individual case, a reasonable person would adjudge to be beyond Franchisee's reasonable control and which would, therefore, represent a justifiable excuse of nonperformance. Depending on the facts and circumstances, Good Cause may include, but shall not be limited to, delays or interruptions arising from necessary utility changes, rearrangements, power outages, damage to the equipment of Franchisee by the County or a third party, the fulfillment of any Federal, state and/or local governmental or regulatory restrictions or requirements, national emergency, uncontrollable material shortages, fire, earthquakes or the elements and acts of God including force majeure.
1.17 "Person" shall mean any person, firm, partnership, association, corporation, company or organization of any kind.
1.18 "State" shall mean the State of Virginia.
1.19 "Street", "Public Right-of-Way" or "Rights-of-Way" shall mean the surface of and the space above, below and between any public street, road, highway, freeway, lane, path, public way or place, alley, court, sidewalk, boulevard, parkway, drive, and all public ways and places contiguous thereto, or other easement or any extension thereof, now or hereafter held by the County for the purpose of public travel and shall include such other easements or rights-of-way as shall be now held or hereafter held by the County which shall, within their proper use and meaning, entitle the Franchisee to the use thereof for the purpose of installing or transmitting Cable System transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and appurtenant to a Cable System.
The County in granting a Franchise to use the public rights-of-way grants only such rights as it possesses and does not guarantee the right of quiet enjoyment except from acts of the County itself that would be inconsistent with this Franchise Agreement.
1.20 "Subscriber" shall mean any person who pays a fee for Cable Service as defined in this Franchise Agreement.
1.21 “Upgrade” shall mean a Cable System improvement that usually includes replacing active components, and in some cases passive components, to expand the Cable System channel capacity
1.22 “Normal Business Hours” shall mean those hours during which most similar businesses in the community are open to serve customers. Company’s local office shall be open eight (8) hours, Monday through Friday. There shall be available to subscribers a live operator or telephone answering service twenty-four (24) hours each day, seven (7) days a week.
1.23 “Normal Operating Conditions” shall mean those service conditions, which are within control of the Franchisee. Those conditions, which are not within the control of the Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, phone network outages, Labor Disputes, and severe and unusual weather conditions
SECTION 2 FRANCHISE AGREEMENT
2.1 Franchise Term – There is hereby granted by the County of Franklin to Interlink Communications Partners, LLC, doing business as Charter Communications ("Franchisee"), its successors and assigns, the non-exclusive right, privilege and Franchise to construct, operate, maintain and upgrade a Cable System within the franchise area as herein defined, for a period of twelve (12) years commencing on October 1, 2003 (the "Effective Date") subject to the conditions and restrictions as hereinafter provided.
2.2 Educational and Governmental Access Channel (the “E & G Channels”)
2.2.1 Upon adoption of rules for usage by the County, Franchisee shall reserve two (2) video channels to be allocated for usage related to non-commercial, governmental and educational access, video programming (the “E & G Channels”) . The County shall have sole responsibility for programming, format and content of the E & G Channels. Franchisee agrees that its Cable System will have the capability to provide the E & G Channels to Subscribers. Additional E & G Channels may be negotiated in good faith by the Franchisee and the County if the parties mutually determine that such additional access programming will serve the public interest of the residents of the County. Franchisee shall program or otherwise utilize any unused time on the E & G Channels that is not being used for E & G Channel programming. Franchisee shall be given a ninety (90) day written notice from the County before the County claims any unused, dedicated E & GChannel capacity or any portion thereof.
2.2.2 Upon written request, Franchisee shall provide the County with equipment and training, as mutually agreed upon by the parties, so the County may transmit printed and graphic information to Subscribers.
2.2.3 Charter shall provide a one time grant in the amount of $50,000 for facilities and equipment for support of the County’s E&G channels. Such payment shall be made on or before 90 days after the acceptance of this Franchise Agreement by the Franchisee. The grant shall be considered a franchise related cost and can be passed on to subscribers through Franchisee’s monthly rates until the Franchisee has collected $50,000 and may be identified as a separate line item on subscribers’ monthly bills.
2.3 Local Government/Public School Service
2.3.1 Upon request, Franchisee shall provide and maintain one free cable drop and Basic Service to each public school, and to the library and County Buildings located in the area served by the Cable System. The County will provide a map, which is hereby incorporated by reference, to the Franchisee showing the location for all County buildings set forth in Exhibit A, including each Police and Fire Station and Rescue Squad.
2.3.2 In the future, if the Franchisee has facilities within two hundred (200) feet of any county government building, state-chartered school, public library, fire station, or police station, Franchisee shall connect such building or facility at no charge consistent with the provisions of Section 2.3, after receipt of written request therefore from the County.
2.4 Emergency Alert System - Franchisee shall provide emergency alert system ("EAS") capability to the County consistent with the requirements set forth in federal laws, rules and regulations as they now exist or may hereafter be amended, including but not limited to, FCC Third Report and Order, adopted December 14, 1998, FO Docket No. 91-171 and 91-301, FCC 98-329.
2.5 Cable System Upgrade/Rebuild - The Cable System, as designed and to be constructed in the County, is a hybrid fiber/coaxial Cable System which utilizes fiber optic backbone connections from headend to nodes. The Cable System shall be built for compliance with digital television technology, have a minimum bandwidth to provide no less than one hundred (100) video channel capability in the forward direction. The Cable System shall include nodes which service no more than an average of six hundred (600) dwellings. Such upgrade shall include the capability to deliver high speed Internet access to all Subscribers within the Franchise Area.
2.6 Upgrade/Rebuild Completion – The Cable System upgrade/rebuild construction and activation as specified in Section 2.6, shall be completed no later than June 30, 2003 and shall be available to all qualified residents of the County.
2.7 Network Capacity –
2.7.1 The Franchisee, upon completion of its upgrade, as described in Sections 2.5 and 2.6, and subject to the provisions of this Section, shall make available capacity, both upstream and downstream on its Cable System, sufficient to provide video, voice and data communications services (hereinafter "Network Services") to institutional and other users. Such capacity shall be known as the "Network." The County shall have access to and use of the Network provided that the Network shall at all times remain the property of Franchisee, its successors and assigns and nothing herein nor any use, however extended, shall be deemed to confer any proprietary right to the Network or any other part of Franchisee's facilities. Additionally, the County shall not be entitled to use the Network for cable television purposes or any other service in competition with the Franchisee.
2.7.2 Network Services will, upon request of the County, be made available to those County buildings as set forth in the attached Exhibit B ("Sites"). Connection and access to the Network shall be provided to the Sites after completion of the upgrade/rebuild and within ninety (90) days of the County's request. One drop per Site shall be made without charge for installation of up to 200 aerial feet. The County shall be responsible for selecting, purchasing, installing and maintaining any equipment for any individuals at the Sites to use the Institutional Network. Notwithstanding the foregoing, at the County's request, the Franchisee will attempt to assist the County in purchasing on behalf of the County the aforesaid equipment at pricing discounts. In addition to the County, Franchisee may provide Network Services to other subscribers on such terms and at such rates as Franchisee may in its discretion determine.
2.7.3 The County shall pay Franchisee reasonable access and usage fees for the County's use of the Network. Franchisee represents and warrants that all such fees shall be equal to or less than the fees for like service that Franchisee charges other commercial users in the Franchise area.
2.7.4 Franchisee's obligation to provide Network Services to the Sites hereunder shall be subject to the following conditions: Receipt of all necessary federal, state and local permits, licenses and authorizations to provide Network Services in the County and the ability for Franchisee and the County to comply with all applicable federal, state and local laws, rules and regulations.
2.7.5 System Architectural Design Review Process. At least seventy-five (75) days prior to the date of initial construction of the System Upgrade, the Franchisee shall deliver to the County a detailed architectural system level design plan to the extent such information is available, which shall include at least the following elements:
SECTION 3 FRANCHISE NONEXCLUSIVE
3.1 No cable system shall be allowed to occupy or use the streets or public right of way of the County or be allowed to operate without a cable system franchise. No Franchisee or other multichannel video programming distributor shall engage in acts that have the purpose or effect of limiting competition for the provision of cable service or services similar to cable service in the County, except for such actions as are expressly authorized by law.
3.2 In the event that another franchised multichannel video programming distributor provides service to the residents of the County, the Franchisee shall have a right to request Franchise amendments that relieve the Franchisee of regulatory burdens that create a competitive disadvantage to the Franchisee. In requesting amendments, the Franchisee shall file a petition seeking to amend the Franchise. Such petitions shall:
3.2.1. indicate the presence of a competitor(s);
3.2.2. identify the basis for Franchisee’s belief that certain provisions of the Franchise place Franchisee at a competitive disadvantage;
3.2.3 identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage.
3.2.4 The County shall not unreasonably withhold granting the Franchisee’s petition and so amending the Franchise.
SECTION 4 FRANCHISE TERRITORY
4.1 Entire County - This Franchise and the rights granted herein are for the present unincorporated territorial limits of the County of Franklin, Virginia, and for any area henceforth added thereto during the term of this Franchise. The County will notify Franchisee, in writing, within thirty (30) days of any territorial limit change.
SECTION 5 OPERATIONAL STANDARDS
5.1 Technical Operations and Line Extensions - The Cable System as contemplated herein shall be constructed, installed, operated and maintained in accordance with accepted industry standards and will meet all applicable technical and operating standards of the Federal Communications Commission including but not limited to Subpart K (Technical Standards) and Subpart H (General Operating Requirements) as they now exist or may hereafter be amended. Franchisee will extend its Cable System, after the initial rebuild, to any future developments, government offices located within commercial buildings,and multifamily dwellings of annexed areas upon request within six (6) months of the date the development of such areas reaches the density requirement of at least fifteen (15) occupied dwelling units per cable mile and provided that the residence or other building for which service is requested is within two hundred feet (200’) of Franchisee’s activated feeder cable. Franchisee will extend its Cable System to areas with a density of ten (10) occupied dwelling units per cable mile provided that each of the ten (10) units signs a two (2) year contract and each unit pays the first year in advance. Franchisee shall have the right to petition the County for relief should an extension create an economic hardship. The number of miles will be calculated starting at the closest feeder point of the activated Cable System where the extension must be connected and will continue until reaching two hundred (200) feet of the dwelling unit.
5.2 Adverse Terrain - Where adverse terrain or other factors (i.e., an area that is developed where the density requirement is met, but the area between the end of the trunk line and the development residences, dwelling unit complexes, or other buildings, does not meet the density requirement) render extension of the Cable System and the offering of services impractical or not technically feasible, the County may, upon notice by the Franchisee, either waive the extension of the Cable System into such areas or the affected Subscriber in the affected area may elect to pay for the costs of the extension and installation necessary beyond the last two hundred (200) feet to his/her residence.
5.3 Access for Franchised Cable Television System - In case of new construction or property development where utilities are to be placed underground, the developer or property owner shall give Franchisee reasonable notice of not less than thirty (30) days prior to such construction or development, and of the particular date on which open trenches will be available for Franchisee's installation of cable, conduit, pedestals and laterals at Franchisee's expense. Franchisee shall also cooperate with the developer or property owner by providing specifications as needed for the joint trench project(s). Cost of trenching and easements required to bring service to the development shall be borne by the developer or property owner.
5.4 Proof of Performance/Technical Testing - The Franchisee, at the Franchisee’s expense, shall undertake such proof of performance and technical inspections and evaluations of the Cable System during any construction and ongoing operation as shall be required by Federal law including but not limited to Subpart K (Technical Standards) and Subpart H (General Operating Requirements) as they now exist or may hereafter be amended. Records of such proof of performance testing and technical testing shall be maintained in compliance with federal requirements.
5.4.1 Testing- The Franchisee agrees that all such testing shall be performed by its technical staff or a qualified contractor. The County may, at its option, and expense, engage the services of an independent consultant chosen by the County to monitor such activities and Franchisee agrees to cooperate fully with such independent consultant.
5.5 Interconnection - Franchisee will fully cooperate with any regional interconnection authority or County, City, State or Federal Agency, which may be established or presently exists for the purpose of providing for the interconnection of Cable Systems within the County or beyond the boundaries of the County if such system is contiguous to Franchisee's Cable System. Upon request of the County, Franchisee shall negotiate in good faith to interconnect the Cable System with other systems taking into consideration the economic feasibility of and other relevant factors attributable to such project. Within three (3) months of such request by the County, Franchisee shall report, in writing, to the County the results of such negotiations.
SECTION 6 CONSTRUCTION STANDARDS
6.1 Reasonable Care - Franchisee shall, at all times, employ reasonable care and shall install and maintain devices or systems for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
6.2 Interference - Franchisee shall install and maintain its wires, cables, fixtures and other equipment so as not to interfere unreasonably with the equipment of any utility serving the residents of the County or any other entity lawfully and rightfully using the conduits, poles or other part of the right-of-way.
6.3 Construction and Maintenance Standards - Franchisee shall construct and operate the Cable System and related facilities in accordance with generally accepted related industry codes and standards and local and state ordinances, laws and regulations that are applicable now or that may hereafter become applicable.
6.4 Facilities Placement - Franchisee shall use existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits or other facilities on public property until written approval of the County is obtained. Such approval shall not be unreasonably withheld or delayed.
To the extent reasonably possible under the circumstances, all conductors, cables, towers, poles and other components of the Cable System shall be located and constructed by the Franchisee in back of the street curbs, except insofar as such components cross streets and public rights-of-way, so as to provide minimum interference with access by adjoining property owners to the streets and public ways, and no pole or other fixture of the Franchisee shall be placed in the public streets or way so as to interfere with the usual travel on such public streets or way.
SECTION 7 CONDITIONS OF STREET OCCUPANCY
7.1 Compliance - All transmission and distribution structures, lines and equipment erected by the Franchisee within the Franchise Area shall be located so as to not cause unreasonable interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of said streets, alleys or other public ways and places.
The County shall have the right to inspect the construction, operation, and maintenance of the Cable System facilities of the Franchisee to insure the proper performance and compliance with the terms and conditions of this Franchise Agreement.
7.2 Maps - Prior to commencing any new line extensions in excess of one thousand (1000) feet, Franchisee shall so notify the County in writing within sixty (60) days of commencing any such construction and shall make available to the County detailed maps for review at Franchisee's local office showingproposed construction locations. These maps shall show the proposed placement of Franchisee's cables on the County right-of-way, any poles that are to be erected by Franchisee as required for construction, and locations where Franchisee proposes to attach to existing utility poles. These maps shall be considered confidential and proprietary information. Franchisee shall cooperate with the County and any of its agents during any new construction period and throughout the full term of the Franchise in regards to construction procedures, practices and locations. All cable construction and installations located within County property or County rights-of-way shall be installed and maintained at such locations and depths so as to not interfere unreasonably with any County road or right-of-way maintenance.
The parties acknowledge that use of maps in electronic format may be required in the future. Should such requirements arise, the County and the Franchisee shall work together in good faith to determine a specific time and proper electronic format to be utilized for mapping purposes.
7.3 Relocation of Facilities - Whenever the County or State of Virginia shall require the relocation or re-installation of any property of Franchisee in any of the streets of the Franchise Area, it shall be the obligation of the Franchisee, upon notice of such requirements, to cooperate in the timely removal and relocation or reinstallation of said property so as not to cause unreasonable delay. Such relocations, removal or reinstallation by Franchisee shall be at the cost of Franchisee in all circumstances in which the relocation is necessary to accommodate work conducted by the County for a public purpose in effecting the protection and maintenance of the right-of-way in accordance with the lawful exercise by the County of its police powers or as required by applicable state or federal laws, rules, and regulations, unless other identifiedgrant funds are available to partially or wholly reimburse Franchisee.
7.4 Facilities Placement -Wherever, in any place within the Franchise Area, all of the electric and telephone utilities shall be located underground, it shall be the obligation of the Franchisee to locate or to cause its property to be located underground within such places. If the electric and telephone utilities shall be relocated underground in any place within the Franchise Area after Franchisee shall have previously installed its property, Franchisee shall, nevertheless, at the same time or in a timely manner thereafter, remove and relocate its property also underground in such places excluding circumstances involving the location of above-ground appurtenances such as pedestals. Above ground appurtenances may require proper landscaping and other similar screening as required by local zoning regulations where such appurtenances are located. Any facilities of Franchisee placed underground at the property owner's request, in an area where electric or telephone facilities are aerial, shall be installed with the additional expense being paid by the property owner requesting such underground installation.
7.5 Tree Trimming - Franchisee shall have the authority and responsibility within the guidelines and approval of the County to trim trees upon and overhanging streets of the Franchise Area so as to prevent the branches of such trees from coming into contact with Franchisee's wires and cables. Said tree trimming shall be conducted at the expense of Franchisee. By mutual agreement of the County and Franchisee, such trimming may be done by the County or under its supervision and direction at the expense of the Franchisee.
7.6 Repair of Streets - In the case of any disturbance of any street, sidewalk, alley or other public way, road, ditch or other area within the County right-of-way caused by Franchisee, Franchisee shall, at its own cost and expense and in a manner approved by the County, replace and restore such street, sidewalk, alley or other public way to as good a condition as existed before the work causing such disturbance was done, reasonable wear and tear excepted. Franchisee guarantees the repairs performed on such paved rights-of-way or streets for a period of one (1) year from the date of the completion of such repair.
7.7 Wire Raising - Franchisee shall, upon the request of any person holding a building permit issued by the County, temporarily remove, raise or lower its wires to permit the moving of such building(s). The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same, and the Franchisee shall have the authority to require such payment in advance. Franchisee shall be given not less than seven (7) business days advance notice to arrange for such temporary wire changes.
7.8 Emergency Procedures - If at any time, in case of fire or disaster in the Franchise Area, it shall become necessary in the reasonable judgment of the County Administrator to cut or move any of the cables, amplifiers, appliances or other fixtures of Franchisee, the County will use its best efforts and make every reasonable attempt to contact and so notify the Franchisee. If, after making all reasonable attempts, the County is unable to contact the Franchisee, the County shall proceed with such actions and the repairs thereby rendered necessary shall be made by Franchisee at the Franchisee's expense.
7.9 Warning Devices - Franchisee's work, while in progress, shall be properly performed at all times with suitable barricades, flags, lights, flares or other devices as are reasonably required to protect all members of the public having occasion to use the portion of the street involved or the adjacent property.
7.10 Easements - The County shall not be required to assume responsibility for the securing of rights-of-way or easements, nor shall the County be responsible for securing any permits or agreements with other persons or utilities, except where County property is involved.
SECTION 8 FRANCHISE FEES
8.1 Payment to the County – Franchisee shall pay to the County for the use of the rights-of-way of the County in the operation of the Cable System and for the County supervision thereof a sum equal to five percent (5%) of the Gross Revenues, as defined herein. Said Franchise Fees shall be paid on a quarterlybasis within thirty (30) days after the end of each calendar quarter. With such payment, the Franchisee shall file with the County Finance Director a copy of a Franchise Fee payment worksheet, in a mutually agreed upon format, signed by an authorized representative of the Franchisee detailing such quarter’s portion of the Gross Revenues received by the Franchisee and how the applicable quarter’s Franchise Fees were calculated therefrom.
8.2 Payment upon Termination - In the event this Franchise shall be terminated or forfeited prior to the end of the Franchise term, as defined herein, Franchisee shall immediately submit to the County a revenue statement approved by a certified public accountant, a manager-level accountant or the chief financial officer of Franchisee showing the Annual Gross Revenues of Franchisee for the time elapsed since the last fiscal year report. Franchisee shall pay to the County not later than thirty (30) days following the termination of this Franchise any and all sums legally due and owing the County under this Franchise Agreement.
8.3 Charge for Late Payment - In the event that any payment of Franchise Fees or Grants is not made on or before the applicable date fixed herein, Franchisee shall pay as additional compensation the following:
8.3.1 an interest charge, computed from such date, at the annual rate based on the
then prevailing prime rate per annum as stated in the Wall Street Journal and;
8.3.2 a sum of money equal to two percent (2%) of the amount due in order to
defray additional expenses and costs incurred by the County by reason of delinquent
payment.
8.3.4 No acceptance of such payment shall be construed as a release or as an accord and satisfaction of any claim the County may have for further or additional sums payable under this Franchise Agreement.
8.4 Right to Inspect Books - The County shall have the right to inspect the Franchisee's records showing the Gross Revenues from which the Franchise Fees are computed. The right of audit and computation of any and all amounts paid under this Franchise Agreement shall always be accorded to the County. Should the County notify Franchisee in writing of its desire to inspect and/or audit Franchisee's records, Franchisee shall permit the County to inspect such records at Franchisee’s business office any time within thirty (30) working days of such notification.
8.5 Right to Audit - If the County has reason to believe that the Franchise Fee or the calculation thereof is incorrect, the County retains the right to have an independent audit performed by an independent certified public accountant. Should said audit prove that (i) the Franchisee was in error in its calculation of the amount of Franchise Fees paid to the County and (ii) that the Franchisee owes the County additional Franchise Fees, such outstanding Franchise Fees shall be made to the County immediately along with any penalties due the County under this Franchise Agreement, and in the event the percentage of underpayment is greater than one point five percent (1.5%), the cost of the independent audit shall be paid by the Franchisee.
SECTION 9 CUSTOMER SERVICE STANDARDS
9.1 Office - Franchisee shall maintain an office within the boundaries of the County to provide the necessary facilities, equipment and personnel to comply with all customer service standards under Normal Operating Conditions.
9.2 Telephone Service - Franchisee will maintain a local or toll-free access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. The customer service telephone number shall be printed on all bills.
9.2.1 Trained Franchisee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. After NormalBusiness Hours, the access line may be answered by a service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Franchisee representative on the next business day.
9.2.2 Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less then ninety (90%) percent of the time under Normal Operating Conditions, measured on a quarterly basis.
9.2.3 The Franchisee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear pattern of failure to comply.
9.2.4 Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time.
9.3 Installations, Outages, and Service Calls - Under Normal Operating Conditions, each of the following four standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:
9.3.1 Standard Installations will be performed within seven (7) business days after an order has been placed. “Standard” Installations are those that are located up to one hundred twenty-five (125) feet from the existing System.
9.3.2 Excluding conditions beyond the control of Franchisee, Franchisee will begin working on “Service Interruptions” promptly and in no event later than 24 hours after the interruption becomes known. The Franchisee must begin actions to correct other service problems the next business day after notification of the service problem. Franchisee shall provide affected subscribers, upon request and after verified service interruption of 24 hours, credit on a pro-rated basis according to the number of days without service.
9.3.3 At the subscriber’s request, the “appointment window” alternatives for Installations, service calls, and other Installation activities will be within a four (4) hour time block during Normal Business Hours. The Franchisee may schedule service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer. Three time periods will be offered: 8 a.m. to Noon; Noon to 4 p.m.; and after 4 p.m.
9.3.4 Franchisee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.
9.3.5 If Franchisee’s representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time that is convenient for the customer. The Franchisee shall provide the customer with an “on time guarantee” and shall provide the customer with a $20 billing credit if the appointment must be rescheduled.
9.4 Notifications to Subscribers - Customers will be notified of any changes in rates, programming services or Channel positions as soon as possible through announcements on the Cable System and in writing. Notice must be given to Subscribers and the County a minimum of thirty (30) days in advance of such changes if the change is within the control of the Franchisee. In addition, the Franchisee shall notify Subscribers and the County thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. Franchisee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind by any Federal agency, state or franchising authority on the transaction between the Franchisee and the Subscriber. Notice to County of changes?
9.5 Billing - Bills will be clear, concise, understandable and include a due date. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. In case of a billing dispute, the Franchisee must respond to a written complaint from a Subscriber within thirty (30) days.
9.6 Refunds - Refund checks will be issued promptly, but no later than the customer’s next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or the return of the equipment supplied by the Franchisee if service is terminated.
9.7 Credits - Credits for service will be issued no later than the customer’s next billing cycle following the determination that a credit is warranted.
9.7.1 Delayed credits or refunds, within the control of the Franchisee, shall be subject to a penalty not to exceed 5% per annum.
SECTION 10 COMPLAINT PROCEDURES
10.1 Procedures and Logs - Franchisee shall establish a process for resolving subscriber complaints that is in compliance with all Federal Rules and Regulations as they now exist or may hereafter be amended, and shall maintain logs related to such complaints for a period of at least one (1) year. The logs shall list the time and date of the subscriber's written complaints, identifying the nature of the complaints and when and what action was taken by the Franchisee in response thereto. Subject to privacy laws, such logs shall be made available to the franchising authority upon request.
10.2 Subscriber Notification - Franchisee shall notify each Subscriber at the time of initial installation and all Subscribers at least once a year of the name and address of the County and shall furnish to each Subscriber a written statement that clearly sets forth the following:
10.2.1 a complete schedule of rates, fees, charges, and terms and conditions of
service currently applicable to the type of installation and service ordered by
the Subscriber;
10.2.2 a complete statement of the Subscriber's right to privacy in conformance
with Section 631 of the Cable Act;
10.2.3 information concerning the procedures for making inquiries or complaints; and,
10.2.4 the address and phone number of the Franchisee's office responsible for
handling complaints.
10.3 Notification Exemption – The County elects to remove its name and address from Franchisee’s monthly billing statements.
SECTION 11 LIABILITY INSURANCE
11.1 Maintenance of Insurance Franchisee shall obtain and maintain, and by its acceptance of this Franchise specifically agrees that it will maintain in force, throughout the term of this Franchise, liability insurance, with the County as a named insured) and Worker's Compensation Insurance covering its obligations under the Worker's Compensation Statute insuring the County and Franchisee with regard to any and all damages for the following subject to the terms hereof:
11.1.1 A general comprehensive public liability insurance policy indemnifying, defending and saving harmless the County, its officers, boards, commissions, agents or employees from any and all claims by any person or entity whatsoever on account of injury to or death of a person or persons or derivative from any injury to or death of a person or persons (i.e., including but not limited to claims for loss of services, medical and other expenses) occasioned by the operations of Franchisee under this Franchise or alleged to have been so caused with minimum liability coverage of Two Million and 00/100 Dollars ($2,000,000.00) per occurrence and aggregate.
11.1.2 Property damage insurance indemnifying, defending and saving harmless the County, its officers, boards, commissions, agents and employees from and against all claims by any person or entity whatsoever for property damage, including loss of use, occasioned by the operation of Franchisee under this Franchise or alleged to have been so caused with minimum liability coverage of Two Hundred Fifty Thousand Dollars ($250,000) for property damage to any one (1) person and Five Hundred Thousand Dollars ($500,000) for property damage to any two (2) person in any one (1) occurrence.
11.1.3 All insurance shall be kept in full force and effect by Franchisee throughout the term of this Franchise and until after the removal of all poles, wires, cables, underground conduits, manholes and other conductors and fixtures incident to the maintenance and operation of the Cable System as defined in this Franchise.
11.2 Certificate of Insurance - An insurance certificate obtained by Franchisee in compliance with this Section shall be filed and maintained with the County Contract Administrator during the term of this Franchise.
11.2.1 Endorsement - Each insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor
the intention not to renew be stated until thirty (30) days after receipt by the
County, by registered mail, of a written notice of such intent to cancel or not renew."
11.2.2 Replacement - Within thirty (30) days after receipt by the County of said notice,
and in no event later than five (5) days prior to said cancellation, the Franchisee shall obtain and furnish to the County a Certificate of Insurance evidencing a replacement insurance policy.
11.2.3 Failure to Provide Coverage(s) - In the event the Franchisee fails to provide such insurance coverage, the County may take steps to obtain the insurance coverages required and bill the Franchisee for said insurance coverage(s).
11.3 No Limitation - Neither the provision of this Section nor any damages recovered by the County hereunder shall be construed as limiting the terms, obligations or liabilities imposed under any other Section of this Franchise.
11.4 Section 635A - The County and Franchisee acknowledge that certain provisions of Section 635A of the Cable Act as it now exists limit the liability of the County as stated therein.
SECTION 12 GENERAL INDEMNIFICATION
12.1 Liability and Indemnification Procedures - The Franchisee shall indemnify and save harmless the County and all its agents, officers, employees and representatives thereof from all claims, demands, causes of action, copyright action, liability, judgments, costs and expenses or losses for injuries or death to persons or damage to property owned by and Workers Compensation claimsagainst any parties indemnified herein, arising out of, caused by, or as a result of the Franchisee's construction, erection, maintenance, use or presence of, or removal of any poles, wires, lines, cable, conduit, appurtenances thereto or equipment related to Franchisee's Cable System or Franchisee's operation of a Cable System within the County. The County shall hold Franchisee harmless from any loss, cost or damage caused by negligence of the County, its officers, employees, representatives or agents or any persons acting on behalf of the County. The County shall have and maintain all rights of immunity that may be granted to it as a County by the State of Virginia.
12.2 Notice - The County and the Franchisee shall give each other prompt, written notice of any claim, demand, action or proceeding for which indemnification shall be sought. Where appropriate, each respective party shall have the obligation, at its sole expense, to assume the defense of any such claim, demand, action, or proceeding, using counsel reasonably acceptable to the other party.
SECTION 13 SALE, TRANSFER OR ASSIGNMENT OF FRANCHISE
13.1 Consent - No sale, transfer or assignment of this Franchise shall take place, whether by forced or voluntary sale, lease, or assignment, without prior written notice to and approval by the County, which approval will not be unreasonably withheld. The notice of such sale, transfer or assignment shall include full identifying particulars of the proposed transaction and must include the transferee or assignee assuming, in writing, the obligations of the Franchisee under this Franchise Agreement. The consent of the County to any such sale, transfer or assignment shall not constitute a waiver or release of any of the rights of the County under this Franchise. This subsection does not apply (i) to a transfer or assignment of this Franchise to an affiliate of the Franchisee; (ii) to any pledge, mortgage, hypothecation, or financing of the assets of the Franchisee's Cable System, restructuring, recapitalization or refinancing which does not change the effective control of the Franchisee.
The consent of the County to any sale transfer, lease, trust, mortgage, or other instrument of hypothecation shall not constitute a waiver or release of any rights of the County under this Franchise Agreement.
Section 13.2 In determining whether the County will consent to any Transfer, the County may inquire into the legal, financial, and technical, qualifications of the prospective party. Franchisee shall assist the County in any such inquiry. Without restricting any rights the County may have under federal law to impose conditions upon a Transfer of all or part of this Franchise, the County may condition any Transfer upon such conditions as it reasonably deems appropriate to enable the County to enforce this Franchise and to assure continued performance pursuant to the terms of this Franchise.
13.3 Change of Control - In the event of a change of control of Franchisee ("change of control" shall mean a change in (i) the ownership of a majority interest in voting stock of the publicly traded parent or (ii) actual working control in whatever manner exercised, (excluding changes of control permitted under Section 13.1 hereof), the parties to the sale or transfer shall make a written request to the County for the County's approval of sale or transfer (a "Transfer Requiring Approval"). The written request shall be accompanied by information required by FCC rules and shall be presented on a form as prescribed by FCC rules.
13.4 Approval - In accordance with Federal Law (Section 617 of the Cable Act), the County shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and the franchising authority. If the County fails to act within the one hundred twenty (120) days, the request shall be deemed granted unless Franchisee and the County agree to an extension of time.
13.5 Public Hearing - During the review time described in Section 13.3 the Franchisee shall receive written notice of any public hearing, and shall be notified of the opportunity to participate fully in any such public hearing. Such notice to the Franchisee shall be sent to the Franchisee as far in advance as possible, and in no event less than fourteen (14) days before the start of the hearing.
13.6 Inquiries - The County may inquire into the technical, legal and financial qualifications of the prospective transferee or controlling party and the Franchisee shall assist the County in so inquiring.
SECTION 14 REVIEW AND RENEWAL
14.1 Renewal procedures will be conducted pursuant to Section 626 of the Cable Act.
14.2 New Laws/Possible Amendment of the Franchise: - It shall be the policy of the County and the Franchisee to consider amending this Franchise from time to time as may be required by revisions or creation of new laws and regulations and changes in technology. Such consideration of Franchise amendments shall be undertaken, upon application of the County or the Franchisee, when necessary to enable the County or the Franchisee to take advantage of changes in the law or technology which will afford them an opportunity to more effectively, efficiently or economically serve Subscribers. No such amendment shall create any new rights for any parties to the Franchise other than those specifically set out in such amendments.
14.2.1 Each party agrees to bargain in good faith with the other party upon the
initiation of any such proposed amendments.
14.2.2 The County shall not be required to amend the Franchise Agreement on the
Franchisee's request nor will the Franchisee be required to amend the Franchise
Agreement at the County's request.
14.2.3 The County shall have, in the exercise of its reasonable discretion, the right
and authority to determine whether a requested amendment is in the best interest
of the public health, safety and welfare of the County and its citizens.
14.3 Survey At the written request of the County, but no more than once every two (2) years, the Franchisee hereby agrees that it will conduct a written survey among the citizens of the County. Said survey shall include, but not be limited to, review of channel programming. The Franchisee agrees to share the results of said survey with the County and will work with the County in good faith to make recommendations concerning channel programming revisions recommended by said survey.
SECTION 15 REVOCATION OF FRANCHISE
15.1 Revocation - In addition to all other rights and powers reserved or pertaining to the County, the County reserves, as an additional and as a separate and distinct remedy, the right to revoke this Franchise and all rights and privileges of Franchisee hereunder in any of the following enumerated events or for any of the following reasons:
15.1.1 Franchisee willfully fails, refuses or neglects to construct, operate or maintain its Cable System in accordance with the material terms and conditions of this Franchise or violates a material or substantial term or condition of this Franchise and fails within sixty (60) days following written notice by the County to effect compliance; unless effecting compliance within the sixty (60) days is not reasonably practicable, in which case Franchisee fails to initiate diligent efforts to effect compliance within that sixty (60) day period;
15.1.2 Franchisee attempts to or does practice any fraud or deceit or pattern of material misrepresentation in its conduct or relations with the County under this Franchise; or
15.1.3 Franchisee becomes insolvent or unable or unwilling to pay its debts or is subject to foreclosure or receivership as stated in this Franchise Agreement.
15.2 County Action - No such revocation shall be effective unless or until the County shall have adopted an Ordinance setting forth the cause and reason for the revocation and the effective date thereof, which Ordinance shall not be adopted without thirty (30) days' prior written notice thereof to Franchisee and an opportunity for the Franchisee to be heard upon the proposed adoption of said Ordinance. Franchisee shall furnish to the County a written statement at least ten (10) days prior to the date on which County convenes to consider such proposed Ordinance setting out its position relative to the cause(s) of such revocation. In the event the proposed revocation depends upon findings of fact, such findings of fact as made by the Council shall be in writing and be made available to the Franchisee upon request.
15.2.1 If the County determines, after an appropriate hearing, that Franchisee's noncompliance was without just cause, then the County may adopt an ordinance after the above stated hearing that forthwith terminates the Franchise and instructs the Franchisee to remove, at Franchisee’s cost, its equipment and facilities from the Franchise Area unless the County and Franchisee agree to leave the Franchisee's equipment and facilities in place. Such decision by the County shall be subject to judicial review de novo.
15.2.2 Failure to Remove Facilities When Requested - In the event the Franchisee fails to remove said facilities within one hundred eighty (180) days of after a final decision has been handed down requiring the revocation of the Franchise, the County may undertake such removal and will require the Franchisee to reimburse the County for said expenses within sixty (60) days of receipt from the County of copies of all invoices for such removal. In the alternative, if Franchisee fails to remove its equipment and facilities from the Franchise Area within one hundred eighty (180) days after a final decision has been handed down requiring the revocation of the Franchise, and after being so notified by the County in writing, such equipment and facilities shall be considered as abandoned and shall become the property of the County.
15.3 Compliance with Cable Act - Notwithstanding the grounds for termination herein, no termination procedure shall be held except in compliance with applicable laws and regulations (including the Cable Act) as they now exist or may hereafter be amended.
15.4 Judicial Review - Franchisee shall not be declared in default nor be subject to any sanction under any provision of this Section in any case in which the performance of such provision is prevented for reasons of Good Cause. Any final determination on revocation shall be subject to judicial review de novo upon request of the Franchisee and written notice from the Franchisee to the County of its intent to seek such review.
15.5 Acquisition or Transfer of the Cable System to Another Person - If a renewal of a franchise held by a cable operator is denied and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be in accordance with Section 627 of the Cable Act as it now exists or may hereafter be amended.
SECTION 16 REMOVAL OF FACILITIES
16.1 Enforcement - The County Administrator or his designee is hereby authorized to enforce the provisions of this Section as hereinafter provided.
16.2 Notification - The County Administrator or his designee shall immediately notify Franchisee in writing of such revocation or non-renewal. Within one hundred eighty (180) days following termination of the Franchise and receipt of such notice, Franchisee shall, if required, remove from the streets of the County upon, over and under which its properties are located, all of said properties.
16.3 Manner of Removal - Such removal, if required, shall be performed by Franchisee, at Franchisee’s cost, and in such a manner so as to not permanently destroy, mar or damage the Franchise areas in which such removal is being conducted. The County Administrator or his designee shall make an inspection of the areas in which the removal is being or has been conducted, and should it be found that Franchisee has unreasonably destroyed, marred or damaged such areas, Franchisee shall be held responsible for the expenses of repairing such areas to the reasonable satisfaction of the County, reasonable wear and tear excepted.
SECTION 17 FORECLOSURE AND RECEIVERSHIP
17.1 Foreclosure - Upon foreclosure or other judicial sale of all or a substantial part of the Franchisee's Cable System facilities, Franchisee shall notify the County of such fact. Such notification or the occurrence of such terminating event shall be treated as a notification that a change in control of the Franchise has taken place and such change in control shall be subject to consent of the County and the provisions for same as contained in this Franchise Agreement.
17.2 Receivership - The County shall have the right to cancel this Franchise Agreement one hundred and twenty (120) days after the appointment of a receiver or trustee, to take over and conduct the business of the Franchisee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days or unless:
17.2.1 Within one hundred and twenty (120) days after the election or
appointment, such receiver or trustee shall have fully complied with all the
provisions of this Franchise Agreement and remedied the defaults thereunder;
and
17.2.2 Within one hundred and twenty (120) days, such receiver or trustee shall
have executed an agreement duly approved by the court having jurisdiction,
whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise Agreement; and
17.2.3 The County is promptly notified, in writing, with written evidence of such
appointment and an agreement of compliance is furnished to the County.
Failure to so notify the County as required shall be considered as a material breach of the provisions of this Franchise Agreement, subject to termination or revocation of this Franchise as provided for in this Franchise Agreement.
Section 18 Liquidated Damages.
18.1 Amounts of Liquidated Damages. Because the Franchisee's failure to comply with provisions of the Franchise will result in injury to the County in amounts that will be difficult to quantify with reasonable certainty, the County and the Franchisee agree to the following Liquidated Damages for the following violations. These damages represent the parties' best estimate of the damages resulting from the specified injury. The liquidated damage amounts are in _U.S. dollars and shall be increased each year by the increase in the U.S. Consumer Price Index.
18.1.1 For failure to complete the Upgrade in accordance with the Franchise: $2,500 per month for each month the violation continues;
18.1.2 For any transfer subject to the provisions of Section 13 without prior County approval: $50/day for each day the violation continues;
18.1.3 For failure to comply with the Franchise requirements for public, educational, and governmental Access Channels, and the Community Access Network, $1,000 per month;
18.1.4 For violation of applicable Subscriber service standards:
18.1.4.1 For standards requiring a percentage performance: $750 per quarter for failure to meet the required percentage performance;
18.1.4.2 For failure to maintain required Subscriber service standards: $100 per occurrence;
18.1.5 For all other violations of this Agreement: $50 per occurrence.
18.2 Procedure for Imposing Liquidated Damages.
18.2.1 Whenever the County believes that the Franchisee has violated one or more terms, conditions or provisions of this Franchise, and Liquidated Damages will be sought, a written notice shall be given to the Franchisee informing it of such alleged violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford the Franchisee an opportunity to remedy the violation. The Franchisee shall have thirty (30) days subsequent to receipt of the notice in which to correct the violation before the County may impose liquidated damages unless the violation is of such a nature so as to require more than thirty (30) days and the Franchisee proceeds diligently within thirty (30) days to correct the violation.
18.2.2 The Franchisee may, within ten (10) days of receipt of notice, notify the County that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by the Franchisee to the County shall specify with particularity the matters disputed by the Franchisee. The dispute may then be subjected to pursuant to Section 20.4.
18.3 Effect on Duty to Comply. The collection of liquidated damages by the County shall in no respect affect:
18.3.1 Compensation owed to subscribers; or
18.3.2 The Franchisee's obligation to comply with the provisions of this Franchise or applicable law;
18.3.3 Except for payments of Liquidated Damages for failure to complete the Upgrade in accordance with the Franchise, payment of liquidated damages pursuant to this Section shall be considered full and final resolution of the alleged noncompliance and shall constitute a waiver of any future claims regarding the alleged noncompliance.
18.4 Accrual. If Liquidated Damages are imposed, they shall accrue from thirty (30) days subsequent to issuance of the Notice referenced in this Section ____.
SECTION 19 RIGHTS RESERVED TO THE COUNTY
19.1 County Police Powers and Regulations - The Franchisee shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the County and to such regulation as the County shall hereafter provide, provided that such police power and regulation shall be reasonable and not in conflict with the rights granted herein. In the event there is a conflict, the terms of this Franchise Agreement shall prevail.
SECTION 20 COMPLIANCE WITH FEDERAL LAWS, RULES AND REGULATIONS
20.1 Cable Act and FCC Rules - Franchisee and County agree that each shall be subject to the Cable Act and to all applicable rules and regulations which, from time to time, may be promulgated by the Federal Communications Commission as they now exist or may hereafter be amended. If applicable laws, rules or regulations are in conflict with the rules and regulations of this Franchise, the County and Franchisee, as soon as possible following knowledge thereof, amend this Franchise to bring it into compliance with such law, rule or regulation. Provided, however, that if such law, rule or regulation does not require that this Franchise Agreement be amended, and/or said changes are not effective until renewal, then any amendments to this Franchise Agreement shall be optional.
SECTION 21 WAIVER
21.1 Waiver - Except as specifically stated elsewhere herein, the failure of the County, at any time, to require performance by Franchisee of any terms or conditions hereunder shall in no way affect the right of the County to hereafter enforce the same. Nor shall the waiver by the County of any breach of any terms or conditions hereof be taken as or held to be a waiver of any succeeding breach of such terms and conditions, or as a waiver of any of the terms and conditions themselves.
SECTION 22 INTERPRETATION
22.1 Interpretation - The County and Franchisee agree that in the event of any ambiguity with respect to the terms and conditions of this Franchise, or dispute as to their meaning, the County and Franchisee shall make a good faith effort to establish the meaning of such terms and conditions in a manner consistent with the parties' original intent of the language.
SECTION 23 FORCE MAJEURE
23.1 Delay, Preemption or Failure to Perform - Any delay, preemption, or the failure to perform caused by factors beyond the parties' reasonable control, such as an act of God, war, strikes, or government administrative or judicial order or regulation, shall not result in a default under this Franchise Agreement. Each party shall exercise reasonable efforts to cure any such delays and the cause thereof, and performance under the terms and conditions of this Franchise Agreement shall be excused for the period of time such force majeure continues. Franchisee will notify the County in writing as to the length of time that the force majeure condition existed.
SECTION 24 CONTINUITY OF SERVICE
24.1 Continuous Service - It shall be the right of all Subscribers to receive all available services in so far as their financial and other obligations to the Franchisee are honored. Subject to its rights under this Franchise Agreement and applicable law, in the event that the Franchisee elects to sell or transfer the system, or the County Council terminates or fails to renew this Franchise Agreement, the Franchisee shall make any and all reasonable efforts to ensure that all Subscribers receive continuous, uninterrupted service for a reasonable period of time following such actions regardless of the circumstances. In the event of a change of franchisee, the current Franchisee shall cooperate with the County to operate the Cable System for a temporary period in maintaining continuity of service to all Subscribers.
SECTION 25 SEVERABILITY
25.1 Validity - If any section, subsection, sentence, clause, phrase or a portion of the Franchise Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such section, subsection, sentence, clause, phrase or portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining parts hereof.
SECTION 26 TIME IS OF THE ESSENCE
26.1 Time and Performance - Whenever this Franchise Agreement sets forth any time for any act to be performed by either of the parties to this Franchise Agreement, such time shall be deemed to be of the essence.
SECTION 27 SERVICE OF NOTICES
27.1 Requirements - All notices, which are required or permitted to be given to either party by the other party under any provisions of this Franchise Agreement, shall be in writing, and shall be deemed served:
27.1.1 when delivered by hand or by Federal Express or similar service to that
party's address set forth below during normal business hours; or
27.1.2 when mailed to any person designated by that party in writing, herein to
receive such notice, via certified mail, return receipt requested; and
27.1.3 notice shall be given to the following:
If to County:
Attn: County Administrator
County of Franklin
40 East Court Street
Rocky Mount, Virginia 24151
If to Franchisee:
Charter Communications
Attn: Vice President of Operations
1427 Laurens Road, Suite A
Greenville, SC 29607
With a copy to:
Charter Communications
Attn: Legal Department
12444 Powerscourt Dr. Suite 100
St. Louis, MO 63131
SECTION 28 GOVERNING LAW
28.1 This Franchise shall be governed in all respects by the laws of the State of Virginia and applicable federal law.
SECTION 29 PRIVACY
29.1 General. Franchisee shall respect the rights of privacy of every Subscriber and shall not violate such rights through the use of any device or signal associated with the Cable System. Franchisee shall at all times comply with the privacy provisions of federal cable-related laws and all other applicable federal, state and local privacy-related laws and regulations.
29.2 Monitoring. Unless applicable law provides to the contrary, neither Franchisee nor its designee shall tap, monitor, arrange for the tapping or monitoring, or permit any person to tap or monitor, any cable, line, signal, input device, or Subscriber outlet or receiver for any purpose, without the prior written authorization of the affected Subscriber, provided, however, that the Franchisee may conduct CableSystem-wide sweeps solely for the purpose of verifying CableSystem integrity, checking for the presence of illegal taps, billing for services, or controlling return-path transmission in a manner not inconsistent with applicable law. Franchisee shall report to County and any affected parties any instances of monitoring or tapping of the Cable System, or any part thereof, of which it has knowledge, whether or not such activity has been authorized by Franchisee. Franchisee shall not record or retain any information transmitted by a Subscriber and any third party, except as it may be permitted to do so in accordance with applicable law.
29.3 Third Party Information. Except as permitted by Section 631 of the Cable Act, neither Franchisee nor its designee nor its employees shall make available to any third party information concerning the viewing habits or subscription package decisions of any individual Subscriber.
29.4 Subscriber Information. Upon request by a Subscriber, Franchisee shall make available for inspection at a reasonable time and place all personal Subscriber information that Franchisee maintains regarding that Subscriber. Franchisee shall ensure that all information relating to billing and service requests is accurate and up to date and shall promptly correct any errors upon discovery.
SECTION 30 ACCEPTANCE
30.1 Entire Agreement - This Franchise Agreement embodies the entire understanding and agreement of the County and the Franchisee with respect to the subject matter hereof and merges and supersedes all prior representations, agreements and understandings, whether oral or written, between the County and the Franchisee with respect to the subject matter hereof.
30.2 Execution - This Franchise Agreement shall, upon adoption of the Board of Supervisors of the County of Franklin and its execution by the proper municipal officials and further acceptance by the Franchisee, be and become a valid and binding contract between the County of Franklin and Interlink Communications Partners, LLC, doing business as Charter Communications its successors and assigns.
Any prior cable television ordinance or franchises, and all ordinances or parts of ordinances in conflict herewith are hereby repealed.
IN WITNESS WHEREOF, the parties hereto have caused this Franchise Agreement to be executed as of the day and year first above written.
Attest County of Franklin, Virginia
_____________________ ________________________________
Deputy Clerk of County County Administrator
ACCEPTED:
Interlink Communications Partners, LLC, doing business as Charter Communications
By:________________________________
Name:______________________________
Title:_______________________________
Date:_______________________________