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Bright House Networks
FRANCHISE AGREEMENT BETWEEN
CONSOLIDATED CITY OF INDIANAPOLIS, INDIANA,
AND
TIME WARNER ENTERTAINMENT -
ADVANCE/NEWHOUSE PARTNERSHIP
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS
Section 1.01. Statutory Definitions.
Act
cable channel or channel
Cable Service
Cable System
FCC or Commission
interactive on-demand service
other programming service
Public, Educational or Governmental Access Facilities
video programming
Section 1.02. Code Definitions.
Affiliate
Board
Entity
Franchise
Gross Revenues
Person
Subscriber
Section 1.03. Defined Terms.
Applicable Franchise Territory
Basic Service Tier
Cable Programming Service Tier
Code
Downtown Mile Square
Effective Date
Migrated Product Tier
Operator's Cable System
Public Rights-of-Way
System Design Plan
System Rebuild
Time Warner Social Contract
ARTICLE TWO - FRANCHISE GRANTED
Section 2.01. Grant of Franchise.
Section 2.02. Rights-of-Way Usage
Section 2.03. Applicable Franchise Territory.
Section 2.04. Cable Franchise Fee.
Section 2.05. Franchise Term.
ARTICLE THREE - SYSTEM REQUIREMENTS
Section 3.01. General Requirements.
Section 3.02. Technical Requirements for System Generally.
Section 3.03. Service Requirements Generally.
Section 3.04. Interconnection.
Section 3.05. Cable Service to Public Institutions.
Section 3.06. Equipment Servicing.
Section 3.07. Costs.
ARTICLE FOUR - SYSTEM TECHNICAL REQUIREMENTS
Section 4.01. System Design and Capacity.
Section 4.02. State of the Art Review
Section 4.03. Mapping Data.
ARTICLE FIVE - INSTITUTIONAL NETWORK
Section 5.01. Network defined.
Section 5.02. Educational and Governmental Access Programming Transmission
Section 5.03. Video Services
Section 5.04. Data Communication Services
Section 5.05. Connections and Charges.
Section 5.06. Network Availability.
Section 5.07. Network Monitoring.
Section 5.08. Network Maintenance.
Section 5.09. Network Termination.
ARTICLE SIX -
Section 6.01. Channel Capacity.
Section 6.02. Allocation of PEG Facilities.
Section 6.03. Educational Access Channels.
Section 6.04. Governmental Access Channels.
Section 6.05. Additional PEG Facilities and Support.
Section 6.06. Additional PEG Capacity
ARTICLE SEVEN - SERVICE REQUIREMENTS
Section 7.01. Universal Service Requirement.
Section 7.02. Service Minimums.
Section 7.03. Local Community Interest Programming.
Section 7.04. Local Professional Sports Programming.
ARTICLE EIGHT - CONSTRUCTION STANDARDS
Section 8.01. Design Review.
Section 8.02. System Rebuild Schedule.
Section 8.03. Security Fund.
Section 8.04. Inspections During Construction.
ARTICLE NINE. REMEDIES, DEFAULT, BREACH, TERMINATION OR EXPIRATION.
Section 9.01. Election of Contractual Remedies.
Section 9.02. Notice of breach and demand for performance
Section 9.03. Forfeiture and termination.
Section 9.04. City's right to purchase system.
Section 9.05. Impossibility of Performance.
Section 9.06. Indemnification.
ARTICLE TEN - GENERAL PROVISIONS
Section 10.01. Conflict of Interest.
Section 10.02. Non-Discrimination.
Section 10.03. Titles and Headings for Convenience Only.
Section 10.04. Integration.
Section 10.05. Coordination of Provisions with Chapter 851 of the Code.
Section 10.06. Reservation of Powers.
Section 10.07. Changes in Law.
Section 10.08. Transfers of Franchises.
Section 10.09. Amendment of Agreement.
Section 10.10. Governing Law.
Section 10.11. Notice.
Section 10.12. Effective Date.
THE FRANCHISE AGREEMENT
THIS AGREEMENT, made and entered into this ______ day of August, 1996, by and between the Consolidated City of Indianapolis, Indiana (City), through the Indianapolis-Marion County Cable Franchise Board (the Board), and Time Warner Entertainment-Advance/Newhouse Partnership, d.b.a. American Cablevision of Indianapolis, a New York general partnership with its principal place of business at 300 First Stamford Place, Stamford, Connecticut 06902-6732, (Operator);
WITNESSETH THAT:
WHEREAS, the City-County Council (Council) of City has adopted Chapter 851 of the Revised Code of the Consolidated City and County which regulates the grant of cable franchises, including the construction, operation and maintenance of cable systems in Marion County, Indiana; and
WHEREAS, on March 16, 1993, Operator duly filed a notice requesting commencement of formal franchise renewal proceeding under Section 626 of the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, amendment to the Communications Act of 1934 (47 U.S.C. Sec. 521 et seq.); and
WHEREAS, on July 12, 1993, City commenced proceedings under Section 626 of the Act and conducted public hearings and mail surveys, and engaged consultants to perform studies to identify future cable-related community needs and interests and to review performance of Operator under the franchise during the current franchise term; and
WHEREAS, Council pursuant to the Code and the recommendations of Council's Rules and Policy Committee, has determined that Operator's Franchise should be renewed on the terms and conditions of this Agreement which were informally negotiated by the parties and which meet the future cable-related community needs; and
WHEREAS, this Agreement was approved and confirmed by City-County Special Ordinance No. 12, 1996, passed August 5, 1996, by the Council and signed by the Mayor of the City on August , 1996, all in accordance with the requirements and provisions of law, and the Board and the Mayor have been directed to execute this Agreement; and
NOW THEREFORE, in consideration of the mutual agreements hereinafter set forth, City and Operator do hereby agree as follow:
ARTICLE ONE - DEFINITIONS
Section 1.01. Statutory Definitions.
In this Agreement, the terms listed in this section will have the meanings set forth in Federal law, as follows:
(1) The term Act means the Communications Act of 1934 including the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996.
(2) The term cable channel or channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation).
(3) The term Cable Service means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
(4) The term Cable System means a facility, consisting 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 Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c) of the Act) 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 Act; or (E) any facilities of any electric utility used solely for operating its electric utility systems.
(5) The term FCC or Commission means the Federal Communications Commission.
(6) The term interactive on-demand services means a service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.
(7) The term other programming service means information that a cable operator makes available to all subscribers generally.
(8) The term Public, Educational or Governmental Access Facilities means (A) channel capacity designated for public, educational, or governmental use; and (B) facilities and equipment for the use of such channel capacity.
(9) The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
Section 1.02. Code Definitions.
In this Agreement, the terms listed in this section have the meanings as set forth in the Code, as follows:
(1) The term Affiliate, when used in relation to any person or entity, means another person or entity who owns or controls, is owned or controlled by, or is under common ownership or control with, such person or entity.
(2) The term Board means the Cable Franchise Board of City, created by Sec. 285-111 of the Revised Code of the Consolidated City and County and its successors.
(3) The term Entity means any corporation, partnership, limited liability company, association, joint stock company, joint venture, trust, or governmental or business entity.
(4) The term Franchise means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 626 of the Act (47 U.S.C. section 546)), issued by City whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction and operation of a Cable System.
(5) The term Gross Revenues means any and all revenues derived from the operations of Operator's Cable System to provide cable services.
(6) The term Person means an individual.
(7) The term Subscriber means any person or entity who contracts or agrees to purchase the regular subscriber service, pay television, or any other service provided by a cable system, and includes anyone actually using such service with Operator's authorization whether or not that person or entity pays for it.
Section 1.03. Defined terms.
In this agreement, the following terms have the following meanings:
(1) The term Applicable Franchise Territory means such area as determined under Section 2.03.
(2) The term Basic Service Tier means the cable service level which includes the signals of any local television broadcast stations and any public, educational or governmental access channel required by the relevant franchise to be carried on the Basic Service Tier as of the Effective Date.
(3) The term Cable Programming Service Tier means any tier of video programming service, but shall not include (i) video programming carried on Basic Service Tier; (ii) video programming when offered on a per channel, multiplexed, a la carte or per program basis; (iii) any Migrated Product Tier; or (iv) any New Product Tier ("NPT") as defined by the Going Forward Rules and 47 C.F.R. Sec. 76.987 as of the Effective Date.
(4) The term Code means the Revised Code of the Consolidated City and County; provided that, unless clearly indicated otherwise by the context, references to Code shall include those provisions of the "Code of Indianapolis and of Marion County" which have not been from time to time repealed or superseded by the Revised Code.
(5) The term Downtown Mile Square means that area of City bounded by North Street, East Street, South Street, and West Street.
(6) The term Effective Date means the date this Agreement becomes binding on all parties pursuant to Section 10.12.
(7) The term Migrated Product Tier means (a) a tier consisting of up to four services moved from a system's existing Basic Service Tier or Cable Programming Service Tier as described in Section III.D.5. of the Time Warner Social Contract or (b) any Superstation Tier or any tier consisting of those services remaining on a Preferred Tier, as defined in Section III.D.1.of the Time Warner Social Contract, after any excess channels have been shifted to Cable Programming Service Tier as described in Section III.D.3 of the Time Warner Social Contract.
(8) The term Operator's Cable System means the facilities and equipment in whole or in part used by Operator to provide Cable Services to Operator's subscribers within the Applicable Franchise Territory, including any facilities or equipment used in whole or in part to provide institutional network services.
(9) The term Public Rights-of-Way means any real estate or interest in real estate which is held by City or any of its agencies for the purposes of vehicular or pedestrian traffic or for construction or maintenance of utilities and includes easements publicly dedicated for utility purposes, including the unoccupied and unrestricted area above such real property interests.
(10) The term System Design Plan means the written plan required by Section 8.01.
(11) The term System Rebuild shall mean that process of expanding the bandwidth of the System to a minimum of 750 MHZ as specified in Article Four through the upgrading of Cable System equipment and, where necessary and appropriate, the replacement of equipment.
(12) The term Time Warner Social Contract means the "Social Contract for Time Warner Cable" approved by the Federal Communications Commission on November 30, 1995, as its Docket No. FCC 95-478.
ARTICLE TWO - FRANCHISE GRANTED
Section 2.01. Grant of Franchise.
In consideration of Operator's performance of this Agreement, including the payment of franchise fees specified herein, City hereby awards and grants to Operator a nonexclusive Franchise to provide Cable Service, subject to the conditions, limitations and reservations of this Agreement. City expressly reserves and does not waive any legal right or authority to require additional authorization or compensation if Operator provides services other than Cable Services for which a franchise is required under Title VI of the Act. Operator expressly reserves and does not waive any rights it may otherwise lawfully have or acquire to use Operator's Cable System for the provision of other services.
Section 2.02. Rights-of-Way Usage
In return for its compliance with all provisions herein, including the exclusions in Section 2.01, City grants to Operator a nonexclusive right to use Public Rights-of-way for purposes of constructing and operating a Cable System to provide Cable Services in the Applicable Franchise Territory, as effective from time to time.
Section 2.03. Applicable Franchise Territory.
(a) The Applicable Franchise Territory, upon the Effective Date, shall be the same geographic area as the franchise territory of Operator's Franchise in effect immediately prior to the Effective Date.
(b) Upon completion of the System Rebuild to Operator's Cable System to comply with the requirements of Section 4.01, Operator may extend Operator's Cable System to any area that is contiguous to its existing Cable System and in which the Council has the jurisdiction to grant a cable franchise pursuant to Chapter 851 of the Code. Upon any such extension, the Applicable Franchise Territory shall include all areas of Marion County, Indiana, to which Operator has expanded Cable Services beyond the franchise territory served on the Effective Date.
Section 2.04. Cable Franchise Fee.
(a) Operator shall pay to City a franchise fee on Operator's Gross Revenues computed and paid as prescribed by Sec. 851-601 of the Code.
(b) City agrees to conduct no more than one audit for any fiscal year to determine Operator's compliance with this section.
Section 2.05. Franchise Term.
This Agreement shall take effect and be in force from and after the Effective Date for a term of twelve (12) years upon the conditions set forth in the Code and in this Agreement.
ARTICLE THREE - SYSTEM REQUIREMENTS
Section 3.01. General Requirements.
In consideration of City's grant of this Franchise, Operator agrees to provide Cable Services within City as set forth in this Agreement.
Section 3.02. Technical Requirements for System Generally.
(a) Operator agrees to maintain uninterrupted its Cable System to provide Cable Services to its Subscribers, including the current equipment, facilities, support, and services for the Institutional Network, and the current Public, Educational or Governmental Access Facilities until the improved Public, Educational or Governmental Access Facilities, contemplated by this Agreement are available to such Subscribers.
(b) Operator agrees to rebuild its Cable System to comply with the System Technical Requirements in Article Four.
(c) Operator agrees to provide the Institutional Network as required by Article Five.
(d) Operator agrees to provide additional Public, Educational, or Governmental Access Facilities as required by Article Six.
Section 3.03. Service Requirements Generally.
No later than completion of the System Rebuild required by Section 3.02(b), Operator agrees to comply with the service requirements in Article Seven.
Section 3.04. Interconnection.
(a) Operator agrees to continue to share the costs of maintaining the existing interconnection. When new interconnections of two Cable Systems are required by this Agreement or the Code, Operator shall file with the Board, within sixty (60) days of the happening of the event requiring an interconnection, a System Design Plan which complies with Section 8.01 for accomplishing the interconnection, such that the transmission of signals between the two Cable Systems does not result in any significant deterioration in the signal quality.
(b) The costs of programming provided for public, educational or governmental access channels shall be allocated as provided in Sec. 851-403(c) of the Code.
(c) Whenever Operator is required to interconnect to a Cable System first franchised after the Effective Date, Operator shall be entitled to reimbursement of all its costs of interconnection from the operator of the connecting Cable System.
Section 3.05. Cable Service to Public Institutions.
Operator shall install one outlet and maintain current outlets to provide Basic Service Tier and Cable Programming Service Tier service to all local governmental and educational institutions in Operator's Applicable Franchise Territory that request service, including but not limited to public schools, libraries, City, County and township governmental offices. Such installation and service shall be provided without charge. Provided, if a location in the Downtown Mile Square is more than one hundred twenty-five (125) feet from Operator's Cable System, the institution seeking connection shall pay that proportion of the installation costs determined by the ratio of the distance in excess of one hundred twenty-five (125) feet to the total distance. Nothing in this section waives or reduces any rights or benefits to which City may be entitled under the Time Warner Social Contract.
Section 3.06. Equipment Servicing.
(a) Operator shall provide service personnel qualified to identify whether a Subscriber's service failure is caused by Operator's facilities or equipment or by the Subscriber's equipment failure. If the failure is not caused by Operator's facilities or equipment, Operator's service personnel shall provide Subscriber a written statement attesting to such fact.
(b) If such determination is wrong and Subscriber incurs additional unnecessary charges for diagnosis or repairs, Subscriber shall be entitled to recover such reasonable charges from Operator.
Section 3.07. Costs.
Unless otherwise expressly provided in this Agreement, all costs of compliance with this Agreement shall be the responsibility of Operator. Provided, however, Operator reserves the right to pass through such costs to Subscribers to the extent permitted by law.
ARTICLE FOUR - SYSTEM TECHNICAL REQUIREMENTS
Section 4.01. System Design and Capacity.
No later than December 31, 1999, Operator shall have rebuilt its Cable System to the following minimum capacities and technical standards:
(1) Operator's Cable System when rebuilt as provided in this Agreement shall consist of a state-of-the-art hybrid fiber optic coaxial network with a total capacity of 750 MHz using components of high quality and reliability, 550 MHz of such capacity to be activated upon completion of the System Rebuild and shall be designed to include multiple self-healing fiber optic transport rings with automatic switching. Operator shall engineer its headend and install all equipment required to transmit at least 77 channels (standard NTSC, VSB/AM television signals) downstream at between 54 MHz and 550 MHz.
(2) Such Cable System shall be designed to utilize fiber-to-the-node architecture. Each node shall serve an average of six hundred (600) single family homes with the maximum node size being one thousand (1,000) units when a substantial portion of the units are multiple dwelling units.
(3) Operator shall use equipment and components generally used in high quality, reliable, modern Cable Systems of similar design and which are capable of passing through the signals received at the headend with a minimum of alteration or deterioration. Operator shall install equipment to retransmit in BTSC stereo signals all government access, satellite and local broadcast channels delivered in stereo. Operator shall comply with the rules of the FCC concerning the compatibility of its equipment with consumer electronic equipment.
(4) The headend, all hubs, and all nodes will have standby power as follows:
(A) Operator shall provide permanent standby power for headend which shall fully power all channels to all trunk legs and fiber nodes for a minimum of eight hours in the event of a loss of commercial power. This standby power system shall be automatically switched online in the event of a power loss. Backup generators shall be tested regularly and test results shall be recorded in a log which shall be available for inspection by City upon request.
(B) Operator shall provide permanent standby power for all hubs which shall fully power all channels to all trunk legs and fiber nodes for a minimum of four hours in the event of a loss of commercial power. This standby power system shall be automatically switched online in the event of a power loss. Backup generators shall be tested regularly and test results shall be recorded in a log which shall be available for inspection by City upon request.
(C) If standby power is not permanently installed in the fiber nodes, Operator shall provide portable generators to power the nodes no later than three hours following loss of commercial power, unless prevented by circumstances not within the control of Operator. The generator shall remain on site and operating until commercial power is restored.
(5) Operator's Cable System shall have the capability of providing two-way interactive communication with 35 MHz of return bandwidth and shall have the capability to transmit compressed digital video signals and to be converted to digital technology for digital services.
(6) Operator's Cable System shall be designed to allow flexibility to further System Rebuild to include, but not be limited to, fiber to the home (FTH) architecture when such architecture becomes economically and technically feasible.
(7) If any of the facilities or equipment to be used for the provision of the Institutional Network required by this Agreement are used to provide Cable Service, such facilities and equipment shall be designed to interconnect with the facilities of any other franchise of City which is required to provide such network services.
Section 4.02. State of the Art Review
(a) Subject to the provisions of this section, City may amend this Agreement so as to require Operator to upgrade Operator's Cable System to incorporate the State of The Art technology (the "State of the Art Option").
(b) City may not initiate the State of the Art Option, or issue any order, at a time when Operator is subject to effective competition as defined from time to time by federal law.
(c) In order to initiate the State of the Art Option, City shall first commence a review of Operator's Cable System. There shall not be more than one (1) such review every two (2) calendar years. A review may not commence prior to the seventh (7th) or after the ninth (9th) anniversary of the Effective Date.
(1) The review described in this subsection (c) shall, at a minimum, take into account the following:
(A) characteristics of the existing Operator's Cable System;
(B) the State of the Art;
(C) the additional benefits provided to customers by the State of the Art;
(D) the marketplace demand for the State of the Art taking into account any associated rate increase; and
(E) any additional factors deemed relevant by City or Operator.
(2) If, after conducting such a review, City determines that the exercise of the State of the Art Option may be warranted, City shall hold at least two (2) public hearings to enable the general public and Operator to comment and present additional evidence.
(d) If, following such hearings, City determines that the exercise of the State of the Art Option is warranted, it may order the State of the Art be implemented ("the Order"). The Order shall be in writing and shall set forth the basis for City's decision, including a reasonable period of time for Operator to implement the State of the Art, which implementation shall not be required prior to the 9th anniversary of the Effective Date. Upon agreement, the parties may amend this Agreement accordingly. If, however, Operator is not willing to comply with such Order, Operator may, within sixty (60) days after City's Order:
(1) Appeal City's Order to any court of competent jurisdiction in Marion County, Indiana which will stay the Order pending final decision of the court; or
(2) Notify City pursuant to Section 626 of the Act that Operator wishes to commence proceedings to renew its Franchise. Such notice shall be deemed to shorten the term of its Franchise such that this Agreement will expire thirty-six (36) months from the date of Operator's notice. Operator shall not be deemed to be in violation of the Order or of this Agreement if such renewal proceedings are commenced.
(e) If the court finds that Operator has demonstrated City's Order is not supported by a preponderance of the evidence based on the record of the proceedings from (c) above, the court shall grant appropriate relief.
(f) The term "State of the Art" as used in this section means equipment and/or facilities that:
(1) are readily available with reasonable delivery schedules from two (2) or more sources of supply;
(2) have the capability to perform the intended functions demonstrated within systems with similar characteristics (including, but not necessarily limited to population, density, subscriber penetration, etc.) under actual operating conditions for purposes other than test or experimentation; and
(3) can be implemented by Operator in an economically feasible manner taking into account economic waste (i.e. early retirement of assets).
(g) The term "State of the Art" does not include equipment and/or facilities for public, educational or governmental access.
Section 4.03. Mapping Data.
The mapping data required to be furnished under Sec. 851-703 of the Code shall be filed no later than December 31, 1997.
ARTICLE FIVE - INSTITUTIONAL NETWORK
Section 5.01. Network defined.
(a) The Institutional Network means the channel capacity, equipment, facilities, systems or portions of systems provided by Operator for the following services:
(1) governmental and educational video transmissions of governmental and educational access programming between the origination locations and Operator's headend described in Section 5.02, and
(2) institutional transmissions utilizing three analog video channels described in Section 5.03,
(3) bi-directional data communications transmissions utilizing four analog channels described in Section 5.04,
including any such channel capacity, equipment, facilities, and systems provided by other cable systems interconnected as provided in Section 3.04.
(b) City shall allocate the capacity provided by Operator for the Institutional Network and such capacity shall be used only for non-commercial governmental and public educational purposes.
(c) Operator shall continue to own and maintain the existing Institutional Network so long as it is used by City.
Section 5.02. Educational and Governmental Access Programming Transmission
After the Effective Date, Operator shall continue to provide facilities and equipment so that the analog video transmission capacity for governmental and educational access programming continues to be transmitted from the governmental and educational access origination studios to Operator's headend without significant deterioration of signal quality.
Section 5.03. Video Services
(a) After the Effective Date, Operator shall continue to provide institutional transmissions utilizing three (3) analog video channels to the locations served under Operator's current cable Franchise and listed on Attachment 5.03(a).
(b) No later than twenty-four (24) months after the Effective Date, Operator shall extend to all locations listed in Attachment 5.03(b) one-way transmission of up to three (3) analog video channels with facilities and equipment to provide transmission quality at least equal to the FCC technical standards applicable to Cable Systems. If the FCC technical standards no longer exist, Operator shall provide such channels with transmission quality at least equal to that generally provided Subscribers on Operator's Cable System.
(c) Operator shall interconnect the channels providing the video services described in Section 5.03(b) with the channels of other operators required to provide similar services as an Institutional Network under a franchise granted by City, such that the transmission of signals between the two systems does not result in any significant deterioration in signal quality. Interconnection required by this subsection shall occur promptly after the Effective Date. The connecting operator shall pay the costs of interconnection. Operator agrees to cooperate with connecting operators required to provide similar services under a Franchise with City in order to effect interconnection efficiently, expeditiously and with minimal effect on Subscribers.
(d) Upon activation of facilities and equipment for the purpose of transmitting programming using digitally compressed technology on Operator's Cable System, Operator shall, at City's option, relocate the channels described in Section 5.03 to Operator's Cable System and shall scramble these channels, with City's consent to the scrambling technology, so that such channels are available only to the locations listed as receiving video services on Attachments 5.03(a) and 5.03(b). If City requests relocation and/or scrambling of the channels, City shall pay the equipment costs for relocation and scrambling of the channels; if Operator requests the relocation, Operator shall pay those costs.
Section 5.04. Data Communication Services.
(a) After the Effective Date, Operator shall continue to provide bi-directional data communication transmission utilizing four (4) analog channels to the locations served under Operator's current cable Franchise and listed on Attachment 5.03(a).
(b) After the Effective Date, the existing Institutional Network shall meet, at a minimum, the following calculated system specifications, when such network is tested on an end-to-end basis on an adjacent analog channel using NCTA recommended practices found in CED: Technical Standards Supplement, dated July 1993, at pages 10A-16A, 19A-21A, and 24A-29A (attached to this Agreement as Attachment 5.04(b)):
Nominal Impedance 750ohms
Return Path Outlet-to-outlet Variation <6dB
Amplitude Flatness +1 dB
Group Delay +10 nsec
Carrier to Hum Ratio >32.0 dB
Carrier to Noise Ratio >43.9 dB
Carrier to Second Order Beat >54.4 dB
Carrier to Third Order Beat >52.8 dB
Carrier to Adjacent Channel Interference >50.8 dB
(c) The existing Institutional Network described in 5.04(a) shall meet the following specifications for the normal operating environment of City's single channel translation devices (TransMaster), which are currently located in the interconnected hubs of the existing Institutional Network and are used for data transmission:
- Operating Temperature: 10 to +40 Centigrade
- Humidity: 20% to 80%, noncondensing
and shall support the following minimum specifications for City's single channel translation devices (TransMaster) used for data transmission:
- Input Frequency Range 8.75 to 550 MHz
- Output Frequency Range 51 to 550 MHz
- Frequency Step 250 KHz
- Frequency Stability/Accuracy +750 Hz, 00 C
- Gain 30 to 50 dB (adjustable)
- Bandwidth -3dB @ >5.2 MHz
- -40 dB @ >7 MHz
- Spurious Products >60 dB below max output level
(d) Operator shall continue to provide data services described in this Section until City has migrated its data transmissions to another network provider. Operator shall work with the new provider to develop a plan for the transition so that City continues to receive data services without interruption or adverse effect and has an orderly transfer of the data services to the new provider. City expects this migration to be completed no later than thirty-six (36) months after the Effective Date.
Section 5.05. Connections and Charges.
(a) Without charge, Operator, has provided, or shall provide service connections to the Institutional Network for all governmental buildings listed on Attachments 5.03(a) and 5.03(b) and shall provide connections to other City, Marion County, and township government locations not listed on Attachments 5.03(a) and 5.03(b) upon written notice. Operator shall provide connections to other government locations in the Applicable Franchise Territory upon the connecting institution's payment of Operator's cost of connection. Such connections shall be completed within forty-five (45) days after Operator receives City's notice if no pole attachments are involved in providing the connection. If a pole attachment is involved, Operator agrees to engineer and apply for a pole attachment within thirty (30) days after Operator receives City's notice and to complete connection no later than forty-five (45) days after Operator receives approval for the pole attachment.
(b) No access or usage charges for facilities, equipment, or support shall be made to Marion County, township or City governmental users of the Institutional Network or for transmission of educational or governmental access programming either upstream or downstream.
Section 5.06. Network Availability.
(a) The Institutional Network shall be available for use, exclusive of maintenance periods, seven (7) days a week, twenty-four(24) hours per day.
(b) On and after the Effective Date and under normal operating conditions, between 7:00 a.m. and 7:00 p.m., the Institutional Network shall have point to point availability for data services of 97.3%. City will not count routine maintenance and other scheduled downtimes in determining Operator's attainment of the point to point availability percentage.
(c) Operator shall respond to problems within two (2) hours of notification and shall fix problems within its control within four (4) hours of response. Operator shall respond to City's Help Desk when providing periodic updates for problem diagnosis and repair, and notification of problem resolution. City shall provide Operator with telephone numbers for the Help Desk, and City and Operator shall develop and mutually agree upon a Help Desk procedure that Operator will follow.
Section 5.07. Network Monitoring.
Operator shall monitor the Institutional Network, so that amplifiers, power supplies and their critical components are monitored for possible failure before they occur. City, at its option, may make available to Operator monitoring tools to monitor the Institutional Network. If City does so, Operator shall provide a work station or other equipment necessary to use City's monitoring tools.
Section 5.08. Network Maintenance.
(a) Operator and City shall meet at least quarterly to discuss and resolve Institutional Network operational issues (Operational Meetings), including network availability and maintenance problems.
(b) Maintenance periods shall be at designated times, established by City and agreeable with Operator, that the Institutional Network can be taken off-line to do routine maintenance. The maintenance periods shall be established in the Operational Meetings and shall be no less than twice a month and no more than a once a week. The down-time associated with these maintenance periods shall be no less than two (2) hours and no more than (4) hours per maintenance period. These will always be scheduled at the same time to avoid confusion. Each maintenance period will be on a specific segment or segments as will be designated by City and in conjunction with Operator's maintenance requirements.
(c) From time to time, routine maintenance on certain segments may require a period of time greater than that which the maintenance period described in subsection (b) provides. Operator shall provide ten (10) business days advance notice, and City will attempt to schedule that additional needed time with the users affected.
(d) Unless notified by City to the contrary, Operator may expect that scheduled maintenance will be performed on schedule.
Section 5.09. Network Termination.
If Operator believes it is no longer permitted to provide an Institutional Network because of applicable state or federal law, Operator shall give notice of such contention to City. Unless City initiates legal proceeding to contest such contention within sixty (60) days of such notice, City and Operator shall develop a plan to provide facilities, equipment, and support to Institutional Network users in an alternative manner no later than six-months after such notice. During the development of such a plan, Operator shall continue temporarily to operate the existing network or allow City to do so, so that Institutional Network users are not denied necessary facilities, equipment, and support. Until there is an agreement, City shall pay Operator its incremental costs of continuing to operate the Institutional Network. If Operator is prohibited by a direct order issued by a court or agency of competent jurisdiction from continuing to operate the existing network, then Operator shall cooperate with City to provide facilities, equipment and support to assure the continuous delivery, to the extent possible, of services required by this Agreement.
ARTICLE SIX - PUBLIC, EDUCATIONAL OR GOVERNMENTAL ACCESS FACILITIES
Section 6.01. Channel Capacity.
To meet the needs of City with respect to this renewal of Operator's Cable System Franchise, Operator agrees to provide the following channel capacity designated for educational or governmental use:
(1) Operator shall continue to provide the three (3) existing analog channels,
(2) Upon completion of the System Rebuild of Operator's Cable System to comply with Article Four, Operator shall provide one additional analog channel for educational or governmental uses, and
(3) Upon activation of digital services to Subscribers on Operator's Cable System, Operator shall provide two (2) additional analog channels (of 6 Mhz each in the bandwidth between 50 Mhz and 550 Mhz) for educational or governmental use, which shall allow City, at its option, to relocate any or all of the video services described in Section 5.01 or to use such bandwidth for educational or governmental use. The second of these two channels shall be made available only after the first channel is substantially full. For purposes of this paragraph, "substantially full" shall mean that non-duplicative original audio/video (non-alphanumeric) programming is provided at least ninety percent (90%) of the hours between 7:00 a.m. and 10:00 p.m., except Sundays, using either analog or digital technology similar to that used by Operator for services to its Subscribers. For purposes of this subsection, the first rebroadcast of programming originally broadcast in real time shall not be considered a duplication of programming.
Section 6.02. Allocation of PEG Facilities.
(a) The facilities, equipment and channel capacity provided pursuant to Section 6.01 shall be allocated among educational or governmental users by City.
(b) When Operator notifies City that the capacity specified in Section 6.01(3) has become available, City shall have three (3) years to begin using such capacity. If at the end of such three year period the analog channel specified in Section 6.01(2) is not being utilized, Operator may notify the Board that unless the channel is being utilized within six months, Operator will resume use of such channel. For purposes of this subsection, the channel shall be deemed to be utilized if used for non-duplicative original audio-video (non-alphanumeric) programming at least 75% of the applicable primary programming hours; if for educational access the hours of 7 a.m. to 9 p.m. daily, or if for governmental access the hours of 9 a.m. to 11 p.m. daily. For purposes of this subsection, the first rebroadcast of programming originally broadcast in real time shall not be considered a duplication of programming.
Section 6.03. Educational Access Channels.
The educational channels shall be specifically designated channels for non-commercial use by local public and private school authorities, and shall be managed, scheduled, and programmed by the entities or entities designated from time to time by City.
Section 6.04. Governmental Access Channels.
The governmental access channels shall be specifically designated channels for local governmental use and shall be managed, scheduled, and programmed exclusively by City or its designee.
Section 6.05. Additional PEG Facilities and Support.
(a) On the Effective Date, Operator agrees to transfer to City title to the equipment listed on Attachment 6.05(a) and currently provided by Operator for use by City's governmental access channel.
(b) To provide for the capital costs of Public, Educational or Governmental Access Facilities, Operator shall pay to City five (5) equal annual payments of $60,000 commencing on or before January 2, 1997, and on the same date each succeeding year thereafter. If City demonstrates a need for further capital for such purposes, such annual payments shall continue for two (2) additional years. If on any anniversary of the Effective Date, the number of Basic Service Subscribers is less than 95% of the number of Basic Service Subscribers on the previous anniversary date, the obligation of this Section shall cease.
Section 6.06. Additional PEG Capacity.
At such time as Operator activates upstream capacity for widespread, non-experimental use of such capacity for upstream video programming, then upon request of City, Operator shall meet with City and use reasonable efforts to provide upstream capability to City for educational or governmental uses. Nothing herein shall preclude the imposition of a reasonable charge for the use of such capability but in no event shall any such charge exceed that charged to Operator's most preferred customer.
ARTICLE SEVEN - SERVICE REQUIREMENTS
Section 7.01. Universal Service Requirement.
(a) Upon completion of the System Rebuild to comply with Section 4.01 of this Agreement, Operator shall provide service, upon request, to any residential dwelling unit in the Applicable Franchise Territory; except that within the Downtown Mile Square where the residential density is less than 10 residential dwelling units per mile, the person requesting service in the Downtown Mile Square must agree to other arrangements which cover Operator's connection costs.
(b) Whenever Operator expands its Cable System beyond its franchise territory as of the Effective Date, Operator shall provide Cable Services to any customer requesting it if the location to which service is requested is within one-half mile of a node site of Operator's Cable System; however, whenever Operator's extension of cable service extends to 50% or more of the geographic area served by another Operator on July 1, 1995, Cable Services must be expanded upon City's request to the entire Consolidated City.
(c) Notwithstanding anything to the contrary, Operator shall be under no obligation to provide Cable Services to any resident of a multiple dwelling unit or of a single family home who has been convicted of theft of service, or where Operator has documented vandalism or other damage to Operator's system.
Section 7.02. Service Minimums.
(a) Operator shall provide Basic Service Tier programming to all Subscribers, which shall, at minimum include programming in, but not necessarily be limited to, the following programs categories:
(1) All video programming provided on the channel capacity required for educational or governmental access by Article Six of this Agreement,
(2) All broadcast television stations which Operator is required to carry pursuant to Federal law, if Federal law requires any such carriage, and
(3) Local Community Interest Programming described in Section 7.03 of this Agreement.
(b) In addition, Operator shall offer to its Subscribers programming in the following categories:
(1) local news,
(2) weather,
(3) local sports,
(4) programming for the hearing impaired,
(5) music, and
(6) children.
(c) Operator shall make all programming decisions; provided, however, the mix, quality, and level of programming services provided by Operator on the Effective Date shall be continued unless the same shall not be reasonably available to Operator.
Section 7.03. Local Community Interest Programming.
(a) Operator agrees to continue during the term of this Franchise to allocate one analog channel on its Cable System for local origination programming.
(b) On and after the Effective Date, Operator agrees to offer local community organizations having religious, charitable, literary, cultural or public health purposes an opportunity to present programming educating or informing the public of their purposes or activities (Local Community Interest Programming) for a minimum of fifteen hours per week between the hours of 9:00 a.m. and 4:00 p.m. and ten hours per week between the hours of 6:00 p.m. and 11:00 p.m.
(c) Operator agrees to make available in the City, either on its own or by contracting with one or more video producers, adequate facilities, equipment and personnel to produce Local Community Interest Programming. Production costs for Local Community Interest Programming will be at or below competitive market rates.
(d) Operator shall have exclusive control of the local origination channel and the Local Community Interest Programming presented thereon.
(e) Operator agrees to appoint a representative to a Local Community Interest Program Advisory Committee which consists of (1) one representative from each operator that carries the community programming and (2) three representatives from established non-profit community organizations. This committee shall meet at least semi-annually to discuss and resolve programming and operational issues related to the presentation of Local Community Interest Programming.
Section 7.04. Local Professional Sports Programming.
(a) Operator shall continue its commitment to local professional sports programming.
(b) In addition to any financial support Operator is providing on the Effective Date, Operator shall pay quarterly to the Capital Improvements Board of Marion County, a sum equal to 50 cents per Basic Service Subscriber per month, such payments to be a credit against franchise fees due under Section 2.04. Such payments shall be made for five years after the Effective Date, and thereafter if the continuation of such payments are approved by the Council.
ARTICLE EIGHT - CONSTRUCTION STANDARDS
Section 8.01. Design Review.
(a) Within sixty (60) days of the Effective Date and before beginning any construction or reconstruction of Operator's Cable System as required by this Agreement and at least thirty (30) days before interconnecting Operator's Cable System as required by this Agreement with any other Cable System franchised by City, Operator shall file with Board a written System Design Plan for the proposed construction or interconnection, which shall include, at a minimum, the following information:
(1) A description of the changes that will be made to Operator's Cable System, including those to the distribution system cable, fiber and equipment;
(2) Nature of any additional uses of Public Rights-of-Way;
(3) Engineering plans for Operator's Cable System showing the capacities and capabilities of Operator's Cable System with sufficient specificity that, upon completion of the proposed construction or interconnection, City may verify that Operator's Cable System meets those capacities and capabilities; and
(4) A plan for notifying subscribers of any upgrades (or changeouts resulting from the upgrade) that, at a minimum, satisfies requirements of applicable laws and regulations and the customer service requirements set forth in the Code.
(b) In addition to the System Design Plan, Operator shall maintain the following information:
(1) Trunk and feeder design and number and location of Cable System technical facilities including fiber nodes, headends, hub sites, towers, microwave dishes, and antenna;
(2) Design maps for any relocations of Operator's Cable System; which shall be available for inspection by City officers, employees, or agents authorized by the Board.
(c) Within thirty (30) days of the receipt of an Operator's System Design Plan, the Board shall advise Operator of deficiencies in such plan and of any respects in which the Board believes the System Design Plan does not comply with this Agreement, the Code or applicable law. Operator shall follow the System Design Plan (including any amendments or revisions submitted either in response to any comments by the Board or because of design changes) and except for such minor variations as may be typical to avoid violation of applicable laws and regulations and which do not adversely affect the quality of Operator's Cable System.
(d) City acknowledges that it may be furnished with, receive or otherwise have access to information of or concerning Operator, which Operator considers to be confidential, proprietary, a trade secret, or otherwise restricted. Such information furnished or made available, directly or indirectly by Operator shall be marked confidential and filed separately in a sealed envelope marked "confidential." Operator can not designate information as "confidential" after providing it to City. After Operator designates information as confidential, City will observe the following procedures:
(1) City shall use no less than a reasonable degree of care to prevent disclosing such information to third parties; provided, however, that City may disclose such information to persons or entities performing services for City related to this Agreement:
(A) where use of such person or entity is authorized under this Agreement;
(B) such disclosure is necessary for the person or entity to perform services for City; and
(C) the person or entity agrees in writing to assume the obligations of this subsection (d).
(2) If City does not otherwise have a right under this Agreement or under Indiana law to retain possession of information submitted as confidential by Operator upon expiration or termination of this Agreement, then, as requested by Operator, City shall return or destroy all materials in any medium that contains, refers to, or relates to such information and not retain copies.
(3) City shall take reasonable steps to insure that its employees comply with these provisions.
(4) If City receives a request for information submitted as confidential by Operator, City will notify Operator of the request and will treat the information as public unless Operator agrees to defend and indemnify City from any and all losses, liabilities, claims, judgments, liens, including costs and expenses, arising out of or resulting from City's denial of a request for the information under Indiana's public information and public records law.
(5) In the event of any disclosure or loss of, or inability to account for, any information submitted as confidential, City shall promptly notify Operator upon becoming aware thereof.
(e) Operator shall promptly advise the Board of completion of construction as specified in the System Design Plan, and furnish the Board with an affidavit of completion by Operator's officer responsible for such construction that the System Rebuild substantially complies with the System Design Plan. If the Board has reasonable basis to believe that Operator's Cable System does not operate in accordance with Operator's System Design Plan, the Code, and all applicable technical standards, the Board may commission an independent engineering study to determine compliance. Copies of such engineering report shall be provided to the Board and to Operator and shall specify those items, if any, which do not meet applicable requirements. If the report establishes substantial non-compliance, Operator shall reimburse City for the reasonable costs of such engineering study.
Section 8.02. System Rebuild Schedule.
Subject to any extensions granted by Council, Operator shall commence to rebuild Operator's Cable System described in its System Design Plan submitted to the Board and thereafter continue to rebuild Operator's Cable System without interruption.
Section 8.03. Security Fund.
As required by Sec. 851-602 of the Code, Operator shall obtain and deposit as the security fund instruments in the aggregate amount of Two Hundred Fifty Thousand Dollars.
Section 8.04. Inspections During Construction.
City may conduct inspections of construction areas and Subscriber installations, including an assessment of Operator's compliance with construction standards in this Agreement, the Code, and Operator's System Design Plan. City shall notify Operator of any violations found during the course of any such inspection. Operator shall bring violations into compliance within thirty (30) days of the date notice of the violation is given, unless corrective action cannot be completed within thirty (30) days with the exercise of all due speed and diligence, in which case Operator shall have a reasonable extension of time within which to correct the violation. Operator must submit a response in writing to City describing the steps taken to bring itself into compliance. Inspection does not relieve Operator of its obligations to rebuild Operator's Cable System in the Applicable Franchise Territory in compliance with the provisions of this Agreement.
ARTICLE NINE. REMEDIES, DEFAULT, BREACH, TERMINATION OR EXPIRATION.
Section 9.01. Election of Contractual Remedies.
The rights, obligations duties, liabilities and remedies provided in this Agreement are contractual and in addition to any remedies generally available at law or in equity for enforcement or breach of contracts. City's exercise of any of its contractual rights or remedies does not affect any other right or remedy City may have to enforce the provisions of this Agreement, and City may exercise its rights simultaneously or serially, at City's sole option. City's delay or inaction in pursuing its remedies as set forth in this Agreement shall not operate as a waiver of any other of City's rights or remedies.
Section 9.02. Notice of breach and demand for performance.
It is agreed between the parties that no claim can be made for breach of this Agreement unless written notice of the breach, and demand for performance, is made to the other party. Notice of breach under this provision must specify the details of the claimed breach. Demand for performance under this provision must specify the details specific to the demanded performance.
Section 9.03. Forfeiture and termination.
(a) In addition to all other rights and powers retained by City under this Agreement or otherwise, City reserves the right to forfeit and terminate the franchise and all rights and privileges under this Agreement in the event of a substantial breach of its terms and conditions. A substantial breach by Operator shall include, but shall not be limited to the following:
(1) Violation of any material provision of the franchise or any material rule, order, regulation, or determination of City made pursuant to the franchise;
(2) A judicial determination that Operator has practiced any fraud or deceit upon its Subscribers or upon the government of City;
(3) Failure to complete System Rebuild or system extension;
(4) Failure to provide the services, facilities and equipment promised in this Agreement;
(b) City may make a written demand that Operator comply with any such provision, rule, order, or determination under or pursuant to this Agreement. If the violation by Operator continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, City may consider the issue of terminating the cable system franchise, provided that City shall cause to be served upon Operator, at least ten (10) days prior to the date City is to consider the issue of termination, a written notice of intent to request termination and the time and place of the meeting. Public notice pursuant to IC 5-3-1 shall be given of the meeting and the issue that City is to consider.
(c) Council or its duly-designated representative shall hear and consider the issue and shall hear any person interested in the matter. Council shall determine in its discretion whether or not any violation by Operator has occurred.
(d) If Council shall determine the violation by Operator was the fault of Operator and within its control, Council may, by resolution, declare that Operator's franchise shall be forfeited and terminated unless there is compliance within such period as Council may fix, the period being not less than thirty (30) days, provided that no opportunity for compliance need be granted for fraud or misrepresentation.
(e) The issue of forfeiture and termination shall automatically be placed upon Council's agenda at the expiration of the time set for it for compliance. Council then may terminate the franchise upon finding that Operator has failed to achieve compliance or may further extend the period at its discretion.
Section 9.04. City's right to purchase system.
(a) Upon expiration of the term of this Franchise and denial of any renewal of the Franchise, or upon any other termination of the Franchise, as provided for in this Agreement or by law, City, at its election, shall have the option to purchase Operator's Cable System. Upon the occurrence of an event giving rise to city's option, City shall notify Operator within sixty (60) days of its exercise of the Option.
(b) If the option is exercised upon denial of a renewal franchise, the option price shall be the fair market value of Operator's system, valued as a going concern, but with no value allocated to the franchise itself, and net of any liens or encumbrances upon any of the assets of the system which would not be released or discharged upon transfer of Operator's Cable System to City.
(c) If the option is exercised under any circumstance except that specified in subsection (b), the option price shall be an equitable price determined by the fair market value of the assets and equipment of which Operator's Cable System consists, without any payment for the valuation of goodwill or any right or privilege pertaining to the franchise and net of any liens or encumbrances which are not released or discharged on transfer of Operator's Cable System to City.
(d) The option price specified in subsection (b) or (c) shall be determined by three appraisers. One shall be appointed by City within thirty (30) days of notice of the exercise of the option; one shall be appointed by Operator within thirty (30) days of City's appointment; and the two so appointed shall appoint a third within thirty (30) days of the appointment by Operator. The appraisers shall report this value within sixty (60) days of the appointment of the third appraiser. If the three appraisers are unable to agree upon a price, the price shall be the average of the three appraisals; provided that if any appraisal is more than twenty percent (20%) higher or lower than the next closest appraisal, such appraisal shall be disregarded and the price shall be the average of the other two.
(e) Within sixty (60) days after receipt of the final appraisal, City shall pay the purchase price and Operator shall immediately transfer to City possession of and title to all facilities and property, real and personal, of the system, free from any and all liens and encumbrances not agreed to be assumed by City. Operator shall execute such warranty deeds or other instruments of conveyance to City as shall be necessary for this purpose.
(f) Operator warrants that upon transfer of Operator's Cable System under this section, Operator will take all appropriate action to release and discharge all liens upon Operator's Cable System that are not assumed by City.
Section 9.05. Impossibility of Performance.
Operator shall not be deemed in default or noncompliance with the provisions of this Agreement where performance is delayed or rendered impossible by war or riots, civil disturbance, loss of utility service or faciities, judicial or governmental order, hurricanes, tornadoes, wind, floods or other natural catastrophes or other events beyond Operator's control; and this Agreement shall not be revoked or Operator penalized for such noncompliance, provided Operator takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible with this Agreement under the circumstances without endangering the health, safety and integrity of the public, public streets, public property or private property.
Section 9.06. Indemnification.
(a) If either City or Operator is made a party to any claim or legal proceeding arising out of or resulting from either (i) the acts or omissions of a third party with whom City or Operator has contracted to perform any obligation of such party under this Agreement or (ii) programming presented upon channels under the control of the other party, then the party contracting with such third party or having control of the programming shall indemnify and hold harmless the other party for all expenses and costs, including attorneys fees and other out-of-pocket expenses, involved in defending such claim or legal proceeding.
(b) In order for a party to assert its rights to be indemnified, defended, and held harmless under subsection (a), the party seeking indemnification shall:
(1) timely notify the indemnifying party of any claim or legal proceeding which gives rise to such claim,
(2) afford the indemnifying party the opportunity to participate in any compromise, settlement, or other resolution or disposition of such claim or proceeding and to fully control the financial terms of any payments to be made in such final disposition, and
(3) fully cooperate with the reasonable requests of the indemnifying party in its defense and disposition of such claim or proceeding.
Operator and City shall act reasonably under all circumstances so as to mutually refrain from compromising the rights of each other. The party entitled to indemnification under this section shall inform the indemnifying party of any offers to compromise, settle or otherwise resolve or dispose of the claim or proceeding. If the indemnifying party is willing to accept such offer and make all payments required by its terms, but the party entitled to indemnification refuses to agree to such offer within fifteen (15) days of notice from the indemnifying party, the obligation of the indemnifying party for indemnification shall be limited to the amount which would have been due if the offer had been accepted.
ARTICLE TEN - GENERAL PROVISIONS
Section 10.01. Conflict of Interest.
Operator certifies and warrants to City that as of the Effective Date (i) neither Operator nor any of its agents, representatives or employees who will participate in the performance of this Agreement has, or to its knowledge will have, any conflict of interest, direct or indirect, with City; and (ii) no City official or employee having official responsibility for the process by which this Agreement was negotiated or awarded (A) presently has any financial or ownership interest in Operator or any Affiliate thereof and there are no existing agreement or understandings of any kind with respect to any such financial or ownership interest; and (B) will receive or is intended to receive an ascertainable increase in their income or net worth as a result of this Agreement.
Section 10.02. Non-Discrimination.
Operator represents and warrants that Operator shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges or employment, or any other matter directly or indirectly related to employment, because of race, sex, religion, color, national origin, ancestry, age, handicapped, disabled veteran status, and Vietnam-era veteran status.
Section 10.03. Titles and Headings for Convenience Only.
The titles of the several articles and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement.
Section 10.04. Integration.
This Agreement and any additional or supplementary exhibits or schedules incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind any of the parties thereto.
Section 10.05. Coordination of Provisions with Chapter 851 of the Code.
(a) This Agreement is entered into pursuant to the powers and limitations set forth in Chapter 851 of the Code.
(b) Whenever any provision of the Code is incorporated in this Agreement by specific reference to the Code provision, the remedy for enforcement of such provision shall be the contractual remedies under this Agreement.
(c) Whenever a contractual provision of this Agreement conflicts with requirements of the Code, the provisions in this Agreement shall control.
(d) Whenever Operator's actions, or failure to act, are subject both to remedies under this Agreement and penalties for violation of the Code, City may elect to proceed under this Agreement or under the Code. If City elects to proceed under the Code, City may not pursue separate remedies under this Agreement for the same acts or omissions.
Section 10.06. Reservation of Powers.
(a) All rights and privileges granted by this Agreement are subject to City's powers under applicable laws, ordinances and regulations:
(1) to regulate Operator and the construction, operation, or maintenance of Operator's Cable System;
(2) to adopt and enforce additional regulations to manage the Public Rights-of-Way and require fair and reasonable compensation for their use;
(3) to adopt and enforce applicable zoning, building, permitting and safety codes; and
(4) to adopt ordinances and regulations relating to equal employment opportunities.
(b) City expressly reserves its authority under the Act, including but not limited to requiring fair and reasonable compensation from telecommunication providers, on a competitively neutral and non-discriminating basis, for use of Public Rights-of-Way, by adopting ordinances which publicly disclose the required compensation.
(c) City reserves the right to grant one or more additional franchises under Title VI of the Act to provide Cable Services within City. Provided, however, if such franchise is (i) granted to a person or entity which does not have a franchise to provide Cable Service in City on the Effective Date and (ii) authorizes the provision of Cable Service in competition with Operator and if Operator contends that such franchise is more favorable or less burdensome than this Agreement with respect to:
(1) Franchise fees;
(2) Insurance, performance bonds and similar instruments;
(3) Public, educational, and governmental access channels and support;
(4) Customer service requirements;
(5) Reports and related record keeping;
(6) Liquidated damages and other sanctions; and
(7) Institutional Network Services;
Operator may request, and City shall agree, either (i) to amend this Agreement to conform to that franchise or (ii) initiate proceedings for a renewal franchise under the Act.
Section 10.07. Changes in Law.
In the event that any federal or state law, rule or regulation adopted after the Effective Date preempts a provision or limits the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent and for the time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of City.
Section 10.08. Transfers of Franchises.
(a) Notwithstanding anything to the contrary in the Code, no such prior consent of City shall be required for any transfer or assignment of this Agreement to any entity controlled by Time Warner Inc; provided, however, (i) Operator shall give prior written notice to City of any such transfer or assignment and (ii) the transferee or assignee shall file with City its written acceptance of this Agreement within thirty (30) days of the transfer or assignment.
(b) Notwithstanding anything to the contrary in the Code, no prior approval of City shall be required for any changes in the ownership of Operator provided Time Warner Inc., continues to own or control a majority interest in Operator. However, Operator shall promptly notify City of any changes in ownership of Operator whereby any person or entity acquires more than a twenty percent (20%) voting interest in Operator.
(c) For the purposes of this Section 10.08, the term "control" (including "controlled by") means the power or authority to direct the management or operations of the entity.
Section 10.09. Amendment of Agreement.
All amendments to this Agreement shall be in writing and approved by both Council and a duly authorized officer of Operator. Amendments are subject to the provisions of Chapters 285 and 851 of the Code.
Section 10.10. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Indiana.
Section 10.11. Notice.
Unless otherwise expressed herein, notice as required under this Agreement shall be deemed delivered when (i) mailed by first class registered mail, postage prepaid; or (ii) delivered by national courier service to the address delivered below. Each party may change its designee by providing written notice to the other party, but each party may only designate one entity to receive notice.
(a) Notice to Operator shall be sent to:
Division President
American Cablevision
3030 Roosevelt Avenue
Indianapolis, Indiana 46218
with a copy to:
Vice-President of Public Affairs
and Programming
American Cablevision
3030 Roosevelt Avenue
Indianapolis, Indiana 46218
(b) Notice to City shall be sent to:
Mayor
Consolidated City of Indianapolis
2501 City-County Building
200 East Washington Street
Indianapolis, Indiana 46204
with a copy to:
Corporation Counsel
Consolidated City of Indianapolis
1601 City-County Building
200 East Washington Street
Indianapolis, Indiana 46204
Section 10.12. Effective Date.
This Agreement and the franchise shall be in effect from and after the date of this Agreement, which shall be the date the last of the required signatures is affixed. Provided, however, the franchise fee increase to 5% shall apply to subscriber revenues billed on or after October 1, 1996 and on other revenues from Cable Services earned after October, 1, 1996.
IN WITNESS WHEREOF, the parties have caused this Franchise Agreement to be executed by their duly authorized officers as of the date first written above.
| CONSOLIDATED CITY OF INDIANAPOLIS,INDIANA |
TIME WARNER ENTERTAINMENT - ADVANCE/NEWHOUSE PARTNERSHIP: |
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By: ___________________________
Printed: _______________________
Title: __________________________
Date: _________________________
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By: ________________________
Printed: _____________________
Title: _______________________
Date: _______________________
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APPROVED BY THE MAYOR OF
THE CONSOLIDATED CITY
OF INDIANAPOLIS:
_____________________________
Stephen Goldsmith
Date: ________________________
APPROVED AS TO LEGAL FORM:
SUE A. BEESLEY
CORPORATION COUNSEL
By:___________________________
Margaret E. Piety
Assistant Corporation Counsel
Date:_________________________
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