SECTION 1:. TITLE This franchise agreement shall be known and may be cited as The. Cable Television Franchise between the ~nhabitants of the Town of

Transcription

1 FABLE.TaEVISION FRANCHISE AGREEVENT SECTION 1:. TITLE This franchise agreement shall be known and may be cited as The Cable Television Franchise between the ~nhabitants of the Town of Waldoboro, a Municipal corporation, in the County of Lincoln and State of Maine, and Xcel Cablesystems Corp., a corporation Organized and existing under the laws of the State of Connecticut and authorized to do business in the State of Maine- &ECTION 2 : PREAMBLE This agreement is entered into by the Town of Waldoboro after a full, open, and public hearing upon prior legal notice and the opportunity for all interested persons to be heard, and after due and careful consideration of Xcel Cablesystens Corp.'s qualifications, including but not limited to character, financial, technical, the adequacy and feasibility of construction arrangements and the adequacy and desirability of service proposed. SECTION 3; DEFINITIONS For the purpose of this agreement words used herein, when not incorporated with the context, shall include the present and future tense; the plural shall include the singular and vice versa. he word "shall" is mandatory. Captions supplied herein for each section are for convenience only and shall have no legal effect. The following terms and phrases, as used herein, shall be given the meaning set forth below: (A) "Municipality", "city", "town" means the Town of Waldoboro, a municipal corporation in the County of Lincoln and State of Maine;

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3 (1) a distance of more than 300 feet from the public right of way to the point of attachment to the television receiver; (2) underground work requiring the Grantee to dig, backfill, or install cdnduit. The placing of wire in underground conduit excavated, installed, and filled by others than the ran tee is specifically not included under this subsection; (3) masonry penetration; (4) extraordinary labor required for the concealment of wires-within a subscriber's premises; (5) extraordinary time or equipment requested by the subscriber to effect the installation- (K) The terms "contract", "contract agreement", "franchise", "franchise agreement", "agreement", when referring to this document or the rights granted by. this document, shall be synonamous without exception, meaning and- encompassing this agreement between the Inhabitants of the Town of Waldoboro and Xcel Cablesystems Corp. SECTION 4: GRANT OF AUTHORITY-BY GRANTOR There is hereby granted by the Municipality to the Grantee the non-exclusive right and privilege to construct, erect, operate, and maintain all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures, necessary for the construction, maintenance, and operation within the service area of the system either on its own, or in conjunction with any public utility maintaining the same along with all necessary and desirable

4 appliances pertaining thereto, in, on, upon, along, across, above, over or under the public streets, alleys, easements, ways, and places now laid out or dedicated and all extensions thereof or additions thereto. Without limiting the generality of the I foregoing, this grant shall include the right and privilege to install, erect, operate, or acquire the use of, by leasing, licensing, or otherwise, all lines and equipment necessary or desirable for a cable television system and the right to make connection to subscribers and to repair, replace, enlarge and extend said lines, equipment, and connections. All rights granted for the purposes herein set forth~shall not be exclusive, and the municipality reserves the right to grant similar uses of said public streets, alleys, easements, ways, and places to any other person or other cable television companies during the duration of this contract. The location of poles, wires, cables, conduits, manholes, lines, and equipment, as heretofore mentioned, in, on, under, or above public ways and places shall be subject to prior approval by the Municipal Officers- &ECTIOu: SERVICE ARE& In consideration of the rights granted herein to the Grantee to construct, operate, and maintain a cable television system within the territorial limits of the Town of Waldoboro, the Grantee agrees to construct, operate, and maintain said system within the service area and upon the terms and conditions as more fully set forth in Exhibit A to this contract, attached hereto, and made a part hereof. QN. 6:lLPjUNICIPAL O$PINANCES>ND TFFATION The Grantee shall, at all times during the term of this contract

5 and in the execution of any of the powers granted therefrom, be subject to all lawful ordinances of the Municipality. Nothing, herein shall be deemed to exempt the Grantee from the requirements of any zoning or subdivision ordinances or from real or personal property taxation- I SECTIOPI. 7: INSURANCE AND INDEMNIFICATION, I The Grantee shall at all times maintain reasonable coverage for property damage and personal injury with an insurance company or companies licensed to do business in the State and satisfactory to the Municipal Officers. The Grantee agrees to subnit to the Municipal Officers the verification certificates of liability insurance. The insurance carried by the Grantee shall insure against liability due to property damage in the amount of not less than $300,000 as to each occurrence and liability due to personal injury or death in the sun of $500,000 to any one person, and $1,000,000 as to any one occutence. The Grantee shall indemnify and save harmless the Municipality for all losses sustained by the Municipality as a result of any suit, judgment, execution, claim'or demand whatsoever against the Municipality resulting from any act or omission on the part of the Grantee, its employees, servants, or agents in construction, operation, or maintenance of its cable television system within the service area, and shall include the Municipality as an insured party on all liability insurance policies applicable to the service area- In the event of any claim or demand made against the Municipality as the result of any act or omission of the Grantee or any employees, agent, or servants thereof, the Municipality shall

6 notify the Grantee in writing of said claim within 30 days following its presentation to the Municipality. Where any such claim or demand is made against the Municipality by suit or legal action, written notice thereof shall be immediately given by the Municipality to the Grantee and the Grantee shall have the right to defend same- In no event shall said notice be given less than five days prior to the date upon which response to such legal action is required. Failure by the Municipality to notify the Grantee of any such claim, suit, or demand against the Municipality shall only release the Grantee from its obligation to indemnify the Municipality as provided herein, if the Grantee suffers actual prejudice as a result of such failure to notify. The Grantee further agrees to maintain workers compensation insurance coverage as required by law. SECTION 8 : COMPLAINTS FROM CUSTOMERS. AND G E N B PUBLIC The Grantee agrees to maintain a 24-hour toll-free telephone within the territorial area of the system for the purpose of receiving and answering inquiries and complaints from customers and the general public. The Grantee shall investigate and in good faith attempt to resolve all complaints within 48 hours of their receipt. The Grantee shall investigate and attempt to settle all claims from subscribers for damage to subscribers' property (including television sets and other appliances connected to the Grantee's system) caused by the negligence of the Grantee, its employees, servants, or agents, or a malfunction or defect in the Grantee's equipment.

7 The Grantee agrees to maintain a general office within the area of its system- The Grantee further agrees to maintain an agency or agencies, at convenient locations, for the payment of bills. such agencies shall be easily accessible to the public within the service area and remain open during general business hours. The Grantee further agrees that it w i l l provide for a full-time trained repairman, who shall be a resident within the area of the system and a subscriber thereof, and who shall be available on a regular basis for maintenance and repair. SECTI.ON. 9 : CONSTRUCTION- AND MAINTENANCE (A) of Facilities. All structures, lines, and equipment erected by Grantee within the service area shall be so located as to cause minimum interference with the rights or convenience of residents, and Grantee shall comply with all proper and lawful ordinances of the Municipality now or hereafter in force- Where the Municipality has such authority, existing poles, posts, conduits, and other such structures of electric, telephone, and other public utilities shall be made available to Grantee for leasing or licensing upon reasonable terms and rates, and shall be used to the extent practicable to minimize interferences with traffic and to avoid unnecessary duplication of facilities- The Municipality shall cooperate with the Grantee in obtaining reasonable joint pole or conduit use agreements from the owners of existing poles or conduits.. (B) pisturbance of Pavement. In case of any disturbance by Grantee on public property of pavement, sidewalk, driveway or other surfacing, Grantee shall, at its cost and expense and in a manner

8 approved by the Municipal Officers, replace and restore all surfacing so disturbed to as good a condition as before said work was commenced, (C) Relocation of Faci1i.tie.s. In the event that at any time during the period of this contract the ~unicipality shall lawfully alter or change any street, alley, easement, or other public way requiring the relocation of ran tee's facilities, then in such event Grantee, upon reasonable notice by the ~unicipality, shall remove, relay, or relocate such facilitites at its own expense- (D) Movinq of Buildinqs, ran tee shall, on the request of any person holding a building moving permit issued by the Municipality, temporarily raise, lower or relocate its lines to permit the moving of the building. The reasonable expense of such temporary relocation shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance, (El Tree Trimming, Grantee may,, with specific approval of the Municipal Officers, trim trees located within the rights of way, streets, alleys, easements, sidewalks, and public places of the Municipality as necessary to prevent the branches of such trees from coming into contact with Grantee's facilities- (F) &lptena.n~. All poles, lines, structures and other facilities of Grantee in, on, over or under the streets, sidewalks, alleys, easements and public places within the service area shall be kept by Grantee at all times in a safe and well-maintained condition- (GI C~nstrwtion Stqpdard-s. ~ll construction carried on by the Grantee shall be in a workmanlike manner and shall comply with all Federal, State and Municipal laws or standards and shall further

9 comply with all requirements and standards of public utilities existing in the service area and applicable to the cable television industry. In addition all construction and operation shall meet or exceed the Performance Specifications and the Engineering Design and System Capability provisions of the proposal submitted by the Grantee to the Town of Waldoboro dated October 27, 1981, which are incorporated herein, made a part hereof and attached hereto as Exhibit D. (H) subscriber Requlations,. 5ervice Conditions apd Procedures =Policies. The Grantee further agrees that it w i l l reasonably comply with the policies set forth in Section I11 entitled Subscriber Regulations and Service conditions and Section IV entitled Policies and Procedures of the Proposal submitted by the Grantee to the Town of Waldoboro dated October 27, 1981, which are incorporated herein, made a part hereof and attached hereto as Exhibit E. (I) ~onstruction Time, Grantee shall proceed expeditiously to commence construction of the system provided for herein immediately upon execution of this agreement; Grantee shall, upon request of the Municipal Officers, report progress on construction to the Municipal Officers at least twice monthly. If in the judgment of the Municipal Officers the Grantee is not making reasonable progress in completing construction in accord with the time schedule provided herein, the Board may declare the contract in default and invoke the termination of contract provisions of Section IS- (a) Time Schedule. At least 70% of the construction necessary for Grantee to provide the cable television service

10 Contemplated under this contract shall be completed and be fully activated within twelve (12) months of the effective date of this contract- The Grantee shall complete the remainder of the construction within eighteen (18) months of the effective date of this contract. (I) s - Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in Electronics ~ndustries Association's ~.s.-22a specifications and amendments thereto. No tower shall be constructed without prior approval of the Municipal Officers, and compliance with all applicable land use ordinances. LECTION LO: PATES Monthly rates for installation and regular subscriber services shall be as set forth in Exhibit B. ~ T I O : ~ PATEJNCREASES > No increase in rates charged for standard installation or regular subscriber services, as more specifically set forth in Exhibit B, shall become effective until authorized by the Municipal Officers. (A) Erocedures for Rate. Increase. Requests. 1- Grantee shall give written notice to the Municipal Officers of its request for a proposed rate increase, accompanied by such documentation and information as it deems necessary, to justify sa'id increase. 2. The Municipal Officers shall give appropriate public notice of the rate increase request.

11 3. The Municipal Officers shall, after appropriate public notice, schedule and hold a full and open public hearing granting the opportunity for all interested parties to be heard, 4. The Municipal Officers shall, within ninety (90) days after receipt of the notice of a request for the rate increase, either approve or deny, in whole or in part, the ' proposed rate increase; provided, however, failure of the Municipal Officers to act upon the proposed rate increase within the period of ninety (90) days, unless extended by mutual agreement of the parties, shall constitute an approval of said increase which shall become effective on the ninetieth (90th) day following the receipt of the notice of the rate increase request- 5. Approval or disapproval, in whole or in part, by the Municipal Officers of any rate increase requested by the Grantee may be expressed by a simple resolution entered upon the municipal records, and this contract need not be amended for that purpose. 6. In the event the Municipal Officers deny, in whole or in part, a proposed rate increase, the parties to this contract agree that the reasonableness of the ~unicipal Officers' action may be submitted to arbitration in accordance with the rules of the ~merican ~rbitration Association, and that the arbitrator's decision shall be binding upon the parties-

12 (B) Standards to be Applied for Rate Increase. Requests. The Municipal Officers, in granting or denying, in whole or in part, a request for a rate increase, shall take into consideration the following: 1- Rates for standard installation and regular subscriber service shall be designed to bear a fair and reasonable portion of the cost bf construction and maintenance of the Grantee's facilitiss and the costs of operating the same on a "fully allocatedn basis, along with such other services which are not subject to direct rate regulation by the Municipality whi'=h the Grantee may, from time to time, provide utilizing the facilities of the system. 2. Rates and charges for services other than standard installation and regular subscriber. service shall not be subject to direct regulation by the Municipal Officers. However, the Municipal Officers may take into consideration the reasonableness of the charges for such other services and their contribution to the overall costs and return by the Grantee in determining the reasonableness of the standard installation and regular subscriber service rates approved. 3. The Municipal Officers or their designated representatives shall, for the purpos'es of determining the reasonableness of the requested rate increase, have the right to inspect, at all reasonable times, any and all books and records of the Grantee, and shall be entitled to request and receive from the Grantee all reasonable

13 information relating to the Grantee, its financial condition, its method of operations, and such other information as may be relevant in order to enable the Municipal Officers to act under or enforce this contract agreement. (L'j E4.t.e~ for Services other than. Standard. Ins tallation and pesular,&jbscribe~ices. Rates for services other than standard installation or regular subscriber services shall be established, filed in the Municipal offices, and published by the Grantee pursuant to the rules of the Federal Communications Commission. LECTION 12: SCOPE. OF- CABLE TELEVISJON. SERVICE The Grantee agrees to provide as a minimum the regular subscriber service set forth in Exhibit C, and two ancillary or auxilliary premium movie services plus ten FM radio stations. The Grantee agrees to construct the cable system with the capabilities as described in Section IV of the Proposal submitted by the Grantee to the Town of Waldoboro dated October 27, 1981, which are incorporated herein, made a part hereof and attached hereto as Exhibit D. The Grantee agrees to donate sixty (60) hours annually of qualified training in video production skills to the faculty and/or students attending educational institutions within the service area. The Grantee, upon request, w i l l make available to the Municipality portable color video tape equipment and channel s2ace for use by educational and other designated organizations- To identify local origination program alternatives, the Municipal

14 Officers may appoint a three (3) person advisory committee which will meet with the management of the Grantee at least quarterly. The Grantee agrees to cooperate with the Municipality and public agencies within the service area to provide local origination cable casting to the extent that such activity is not prohibited by federal regulations. The Grantee agrees to provide the capability for an emergency announcement whereby a designee of the Municipal Officers, in times of emergency, may introduce an audio message on at least one channel throughout the service area- The Grantee further agrees that, at the request of the Municipal Officers, it will incorporate into its facilities the capability of an emergency override audio alert whereby a designee of the Municipal Officers, in time of emergency, may introduce an audio message on all channels; provided, however, that should the Municipal Officers request the capability of an emergency override audio alert on all channels, the Municipality agrees to reimburse to the Grantee its actual cost for the installation of such capability, and the Grantee w i l l provide, in a' location to be designated by the Municipal Officers all equipment necessary for the use of the emergency alert sys tern. ECTION- 13 : MODERNIZFTION. OF SERVICES The Grantee agrees that it will throughout the term of this agreement modernize its systen by making available additional services to its subscribers provided such additional services are supported by significant subscriber demand, are econonicall~ feasible and are reasonably consistent with services provided by similarly situated cable television systems.

15 SECTION J4: APPLICABILITY OF. FCC RULES This contract is governed by and subject to all applicable laws or rules and regulations of the United States Government including, but not limited to, the Federal Conmunications Commission, and by the laws and the rules and regulations of the State of Maine. ~n the event there are modifications made to the provisions of Section of the rules and regulations of the Federal Communications Commission which must be incorporated into this contract, the parties to this contract agree that this contract shall be amended to incorporate the required provisions within ninety (90) days after the effective date of the FCC'S adoption of the modification and written notification of said change to the Municipal Officers. All records and test results required to be maintained by F-C.C. rules and regulations shall be available for inspection by the Municipal Officers at the general offices of the Grantee within the area of the cable television system. SECTION 1.5: BONDS (A) &nstruction,bond. The Grantee agrees that it w i l l obtain and maintain during the term of construction of the cable television system provided for herein, a performance bond running to the benefit of the Municipality with a corporate surety licensed to do business in the State of Maine and approved by the Municipal Officers, conditioned upon the construction and faithful completion of the cable television system proposed by the Grantee in accordance with the term of this contract. In the event that the Grantee fails to construct or complete said cable television system in accordance with the terms hereof and to the satisfaction of the Municipal

16 Officers, there may be recovered jointly and severally from the principal and surety of the bond, any damages or loss suffered by the ~unicipality as a result of such failure, including the full amount of any compensation, indemnification, costs of completion, costs of removal of any property of the Grantee in addition to reasonable attorney's fees and costs. The penal sum of the construction bond shall be $100,000 and it shall remain in effect until the Municipal Officers accept the construction of the system as completed. (B) Eerformance.Bond, The Grantee agrees that it w i l l obtain and maintain throughout the term of this contract a performance bond running to the benefit of the Municipality with a corporate surety licensed to do business in the State of Maine and approved by the Municipal Officers, conditioned upon the faithful performance by the Grantee of all the terms and conditions of this cqntract and the Grantee's compliance with all laws, ordinances, or regulations governing the Grantee and this contract. In the event that the Grantee fails to perform all the terms and conditions of this contract or fails to comply with'any law, ordinance, or regulation governing the Grantee or this contract, there may be recovered by the Municipality, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the Municipality as a result of such failure, including the full amount of any compensation, indemnification, costs of maintenance and repair, and costs of removal of any abandoned property of the Grantee, in addition to reasonable attorney fees and costs. The requirements of this subparagraph (B) may be waived by the ~unicipal Officers if and

17 in the event the Municipal Officers determine that the Grantee has adequate financial capability to afford the ~unicipality reasonable security for its continuing obligations to the Grantee hereunder- The penal sun of the performance bond shall be $50,000, and it shall remain in effect for the term of this contract. (C) Bonds Filed&.with the. Munic.ipalit~. The construction bond and performance bond provided for by paragraphs (A) and (B) of this section shall be noncancellable without thirty (30) days written notice to the Municipality. The original bonds, or certified copies thereof, and written evidence of the payment of premium shall be filed and maintained in the Municipal offices during the term of this contract, SECTXON 16 :. TERMINATION OF CONTRACT (A) 2ermi.nation of Contract. If the Grantee violates any of the terms, conditions, or provisions of this contract, or if the Grantee fails to comply with, after thirty (30) days' written notice from the Municipality, any Federal, State or Municipal law or ordinance, this contract shall be deemed to have been breached and all rights and privileges granted hereunder may be terminated. Termination of this contract shall be declared by written decision of the Municipal Officers only after a public hearing,affording the Grantee the opportunity to be heard and respond to any allegations of violation. (Bl p~~raisal of Systeq-' In the event this contract 1s terminated, the cable television system shall be appraised to ascertain its then fair market value. The fair market value shall be determined by three qualified and independent appraisers

18 experienced in valuing cable television systems- One appraiser shall be chosen by the Municipal Officers, one by the Grantee,. and the third by the first two. The three appraisers shall meet, deliberate, and within sixty (60) days of the appointment of the third appraiser, render a decision as to the then fair market value of the system. In determining the fair market value, the appraisers shall have access to all records of the Grantee-and the Municipality which pertain to the system or its valuation; provided, however, that no value for this contract nor rights or privileges derived thereunder, or for facilities paid for and owned by the Municipality, shall be considered in determining fair market value. (C) Dis~ositiop of SsAtems, After the. fair market value of the system has been determined, the Grantee shall publicly offer its system for sale at a price not to exceed that value. If the Grantee is unable to sell its system within 180 days of the contract termination, to a person acceptable to the Municipality, the Municipality may require the Grantee to remove from public property its plant, facilities, structures and equipment. In the event of such removal, the Grantee shall restore all public ways and places to a condition equal to that prior to the removal. Restoration shall be made to the satisfaction of the Municipal Officers and liability insurance and performance bonds shal.1 remain in full force and effect until the Municipal Officers shall certify that the removal of the system is complete and the public ways and places have been restored,

19 SECTION 17; SUBSCRIBERS.' PRIVACY (A) Dbta fr.omsubscribers. The Grantee shall not procure any information or data from subscribers' terminals without prior written authorization. (8) conf identi~litv &subscriber Lists. All lists containing the names and addresses of subscribers shall be confidential and shall not be used for any purpose other than directly related to the operation, financing or rate setting of the system. 2ECTION 18: TRANSFERg (A) ~ o n s e n ~ i to. o r TrapSfer of Contract. This contract is deemed a privilege held by the Grantee for the benefit of the inhabitants.of the Municipality and it may not be sold, transferred, leased, assigned or disposed of, in whole or in part, by forced or voluntary sale, merger, consolidation, or other means without the prior approval of the Municipal Officers. Such approval may be on such terms as the Municipal Officers.may establish and shall not be unreasonably withheld. ~othing in this section shall be deemed to prohibit, subject or. subordinate to the rights of the Municipality, the mortgage or pledge of the system or any parts thereof. (B) Chanse of-.control of-. Approval of the Municipal Officers shall be required for any transfer of the controlling stock ownership of the Grantee. SJCTION 19: FRAHCBISE FEE t In consideration for the granting of this franchise, the Grantee agrees to pay the Municipality a fee equal to 3% of the gross.. revenues derived by it for the regular subscriber service within the

20 service area, said fee to be paid annually within thirty days of the closing of the Grantee's fiscal year. The Grantee further agrees to pay to the Municipality as an additional franchise fee a sum equal to 3% of the net revenues derived by it from ancillary or auxilliary services within the service area- For the purpose of this section, net revenues shall mean the gross revenues derived from ancillary or auxilliary services less the fees required to be paid by the Grantee to the program supplier for the reception of ancillary or auxilliary services - 9ECTION 20:. TELEVISION. R FCEIVm The Grantee shall not sell, rent or repair television receivers owned by its subscribers; provided, however, this section shall not apply to converters, decoders, home interactive terminals, or other devices used in furnishing programming or service via the Grantee's system. SECTION. 2A: SUBSCRIBERS ' AGREEVENT FOP SERVT-CES Use or acceptance of service shall constitute an agreement between the subscriber and the Grantee that the subscriber will pay at applicable rates for the services rendered, and w i l l abide by all reasonable rules and regulations of the Grantee. Rules and regulations of the Grantee shall become effective upon filing with the Municipal Clerk- SECTION 22; SEVERABILITX If any portion of this contract is for any reason held invalid by a court or agency of competent jurisdiction, including the FCC, such portion shall be deemed a separate, distinct, and severable

21 provision; and such holding shall not affect the validity of the remaining parts of this contract. EECTION- 23 : EFFECTIVE DATE his contract shall become effective upon signature. $ECTION 24 TERM- OF antract his contract shall take effect and be full force from and after the date hereof, and the same shall continue for a term of fifteen (15) years, beginning with the date hereof. IN WITNESS WHEREOF, the parties have set their hands and seals the day and year set forth below. Dated: fi/m<ff 9. Inhabitants of the Town of Waldoboro, in the County of Lincoln and State of Maine Xcel Cablesystems Corp. A By: // 1 President