20211223080710599RESOLUTION NO. 2021- 45
COUNCIL MEMBER RUMP INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS, the Mayor and City Council were previously presented with the Cox
Communications and City of Blair Franchise Agreement;
WHEREAS, that Cox Communications desires to enter into a Franchise Agreement with
the City of Blair to provide cable services to the City of Blair;
WHEREAS, said Franchise Agreement is on file with the City Clerk and is acceptable to
the City of Blair.
NOW, THEREFORE, BE IT RESOLVED that the Franchise Agreement between Cox
Communications and the City of Blair, are hereby adopted and approved by the municipality and
the Mayor and City Clerk of the City of Blair are hereby authorized and directed to execute the
same on behalf of the municipality.
COUNCIL MEMBER RUMP MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH
SAID MOTION WAS SECONDED BY COUNCIL MEMBER STEWART. UPON ROLL CALL,
COUNCIL MEMBERS VOTING "AYE" SHEPARD, STEWART, RUMP, WILLIS, WOLFF, HALL
AND JENSEN. COUNCIL MEMBERS NONE VOTING "NAY", THE MAYOR DECLARED THE
FOREGOING RESOLUTION PASSED AND ADOPTED THIS 14TH DAY OF DECEMBER 2021.
CITY OF BLAIR, NEBRASKA
BY:
RICHARD HANSEN, MAYOR
ATTEST:
BRENrVi,WHEELER. CITY CLERK
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STATE OF NEBRASKA
) ss:
WASHINGTON COUNTY )
BRENDA WHEELER, hereby certifies that she is the duly appointed, qualified and acting City
Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and
adopted at a regular meeting of the Mayor and City Council of said City, held on the 14th day of
December, 2021.
BRENDA WHEELER, CITY CLERK
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Cable Franchise Agreement
Between
COX COMMUNICATIONS OMAHA, L.L.C.
And
CITY OF BLAIR, NEBRASKA
2®21
Table of Contents
Recitals.......................................................................................................................................1
ARTICLEI. General....................................................................................................................2
Section1. Definitions.......................................................................................................................2
Section 2. Grant of Franchise...........................................................................................................8
Section3. Terms...........................................................................................................................12
Section4. Renewal........................................................................................................................12
Section 5. Nonexclusive Agreement................................................................................................12
Section 6. Area to be Served..........................................................................................................12
Section 7. City Authority and Pre-emption:......................................................................................13
Section 8. Compliance with State and Federal Laws.........................................................................15
Section 9. Payment of Franchise Fee..............................................................................................15
Section10. Costs...........................................................................................................................17
Section11. Rates...................................:......................................................................................17.
Section12. Performance Bond.......................................................................................................17
Section13. Insurance....................................................................................................................19
Section 14. Indemnification............................................................................................................21
Section 15. Delays and Limitation of Liability ...................................................................................23
ARTICLEII. The Cable System.................................................................................................23
Section 1. Cable System Channels.................................................................................................. 23
Section 2. Request for Construction................................................................................................ 24
Section 3. Supervision by the City ...................................................................................................24
Section 4. Improvements and Upgrades..........................................................................................24
Section5. Line Extension............................................................................................................... 24
Section 6. Mandatory Continuity of Service.....................................................................................24
Section 7. Maintenance of Cable System.........................................................................................25
Section S. Cable System Operation................................................................................................. 25
Section 9. Customer Service Standards........................................................................................... 26
Section 10, Complimentary Service to Government Offices...............................................................26
Section 11. Public, Education and Government Access Channels.......................................................27
ARTICLE III. Administration and Enforcement.......................................................................33
Section1. Periodic Review.............................................................................................................33
Section 2. Events of Substantial Breach and Termination.................................................................34
Section3. Foreclosure...................................................................................................................36
ARTICLE IV. Rights Upon Termination....................................................................................37
Section 1. Right to Require Removal of Property .............................................................................37
Section 2. Continuity of Service Mandatory .....................................................................................37
ARTICLEV. Miscellaneous Provisions......................................................................................37
. . Section 1. Notices..........................................................................................................................37
2018000v7
Section 2. Books and Records........................................................................................................38
Section3. Relocation.....................................................................................................................39
Section 4. Administration.......................:.......................................................................................39
Section 5. Removal of Facilities......................................................................................................39
Section 6. Other Petitions and Application.......................................................................................39
Section 7. Company Rules and Regulations.....................................................................................40
Section 8. Additional Representations and Warranties......................................................................40
Section 9. Parental Control.............................................................................................................40
Section 10. Transfer of Ownership or Control..................................................................................40
Section11. Eminent Domain..........................................................................................................43
Section 12. Company to Have No Recourse.....................................................................................43
Section 13. Failure of City to Enforce this Agreement — No Waiver of the Terms Thereof ...................44
Section 14. The Essence of this Agreement.....................................................................................44
Section 15. Delays and Failure Beyond the Control of the Company...........................................:......44
Section16. Abandonment..............................................................................................................44
Section17. Non-Discrimination.......................................................................................................44
Section18. Binding Effect..............................................................................................................44
Section 19. Entire Agreement..........................................................................................................45
Section20. Modification.................................................................................................................45
Section21. Governing Law.............................................................................................................45
Section 22. Claims Under Agreement..............................................................................................45
Section23. Severability..................................................................................................................46
Section 24. Effective Date of Agreement.........................................................................................46
Section 25. E -Verify Provisions — New Employee Work Eligibility Status.............................................46
Exhibits....................................................................................................................................48
Exhibit A. FCC Customer Service Rules............................................................................................48
2018000V
THIS CABLE FRANCHISE AGREEMENT (the `Franchise" or the "Agreement', made and
entered into this day of , 2021, by and between the CITY OF BLAIR, a
Municipal Corporation (the "City', and Cox Communications Omaha L.L.C., a limited liability
company duly organized and validly existing under the laws of the State of Delaware, whose
principal place of business is located at 11505 W. Dodge Road, Omaha, Nebraska ("Cox" or
"Company" or "Franchisee'.
WHEREAS, the City is authorized to grant one or more nonexclusive cable franchises
pursuant to Article 19, Section 10 of the Municipal Code of the City of Blair, and applicable state
and federal law; and
WHEREAS, the City intends to exercise the full scope of its municipal powers to the extent
not prohibited by state and federal law, including both its police power and contracting authority,
to promote the public interest and to protect the health, safety and welfare of the citizens of the
City; and
WHEREAS, the parties wish to grant a cable franchise from the City to the Company, under
the terms of this Agreement; and
WHEREAS, the City has identified the future cable -related needs and interests of the City
and its community, has considered the financial, technical and legal qualifications of the Company,
and has determined that the Company's plans for its Cable System are adequate, in a full public
proceeding affording due process to all parties; and
WHEREAS, the City has found Company to be financially, technically and legally qualified
to operate the Cable System; and
WHEREAS, the City has determined that the grant of a nonexclusive franchise to Company
is consistent with the public interest; and
WHEREAS, the City and Company have reached agreement on the terms and conditions
set forth herein and the parties have agreed to be bound by those terms and conditions.
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NOW THEREFORE in consideration of the covenants and agreements herein contained,
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
Section 1. DEFINITI®NS. For the purpose of this Agreement, the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural number include
the singular number, and words in the singular number include the plural number. The word
"shall" is mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
(a) "Applicable Law" means the Cable Act, as defined herein, and any amendments thereto,
and other federal and state laws and regulations and local laws, ordinances and regulations governing
cable communications.
(b) "Basic Service" means the lowest tier of service which includes the lawful retransmission
of local television broadcast signals, including as a minimum, but not limited to, all must -carry signals,
and any public, educational and governmental ("PEG'S access programming channels as required by the
FCC to be carried by a cable television system. Basic Service shall also include additional television
channels including original television cablecast programming at the option of the Company.
(c) "Cable Act" means collectively the Communications Act of 1934 (47 U.S.C. §151), as
amended, the Cable Communications Policy Act of 1984 (47 U.S.C. §521), as amended by the Cable
Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as the same
may be amended from time to time.
(d) "Cable Service" or "Service" shall have the same meaning as contained in federal statutes,
47 U.S.C. §522(6) on the effective date of this Agreement.
(e) "Cable System" shall have the same meaning as contained in federal statutes, 47 U.S.C.
§522(7) on the effective date of this Agreement, and includes without limitation antenna, cable, wires, lines,
towers, wave guides, or any other conductors, convertors, equipment or facilities designed, constructed, or
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wired or the purpose of producing, receiving, amplifying, and distributing by coaxial cable audio and/or visual
radio, television, electronics or electrical signals to and from person, subscribers in the franchise area.
(f) "Channel" shall be defined herein as it is defined under 47 U.S.C. § 522(4), meaning a
portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable
of delivering a television channel, as defined by the Federal Communications Commission by regulation.
(g) `City" is the City of Blair, a Municipal Corporation, in the State of Nebraska, or, as
appropriate in the case of specific provisions of this Agreement, any board, bureau, authority, agency,
commission, department of, or any other entity specifically designated by the City to act on behalf of the
City of Blair, Nebraska, or any officer, official, employee, or agent thereof, or any successor thereto,
which is empowered by federal, state, or local law to grant a franchise.
(h) "City Council" means the governing body of the City of Blair, Nebraska.
(i) "Company" is Cox Communications Omaha, L.L.C., and its lawful and permitted
successors, assigns and transferees.
(j) "Control" or "Controlling Interest" means actual working control in whatever manner
exercised, and is not limited to majority stock ownership.
(k) "Converter" means an electronic device, which converts signals to a frequency not
susceptible to interference within the television receiver of a Subscriber, and by an appropriate Channel
selector also permits a Subscriber to view all signals included in the Basic Service delivered at designated
Converter dial locations.
(1) "Day" unless otherwise specified shall mean a calendar day.
(m) "Dedication" shall be limited to those rights-of-way for the benefit of the public and
controlled by City, the terms, conditions or limitations upon which are not inconsistent with the erection,
construction or maintenance of a Cable System, its structures or equipment.
(n) "Designated Representative" shall include anyone designated by the local governing body
responsible for the Public Building in question.
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(o) "Easement", unless the context otherwise indicates, shall mean the City's interest in land
owned by another person, consisting of the right to use the land for a specific limited purpose, the terms,
conditions or limitations upon which are not inconsistent with the erection, construction or maintenance
of a Cable System, its structures or equipment.
(p) "Effective Date" means the date upon which the City Council of the City approves and the
City Mayor signs this Franchise Agreement after it has been approved and signed by the Company.
(q) "Expanded Basic Service" refers to the next tier of service above the Basic Service tier
excluding premium or pay-per-view services.
(r) "FCC" shall mean the Federal Communications Commission and any legally appointed,
designated or elected agent or successor
(s) "Franchise Area" means the corporate limits of the City of Blair, Nebraska
(t) "Franchise Fee" includes any tax, fee, or assessment of any kind imposed by the City or
other Governmental Entity on Company or Subscriber, or both, solely because of their status as such. It
does not include any tax, fee, or assessment of general applicability (including any such tax, fee, or
assessment imposed on both utilities and cable operators or their Services but not including a tax, fee,
or assessment which is unduly discriminatory against cable operators or cable Subscribers); capital costs
which are required by the Franchise to be incurred by Company for public, educational, or governmental
access facilities; requirements or charges incidental to the awarding or enforcing of the Franchise,
including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages; or any fee imposed under Title 17. Franchise Fee as defined herein shall not be
inconsistent with the definition set forth in 47 U.S.C. § 542.
(u) "Gross Revenues" shall mean any and all revenue derived by the Company and any
affiliate, subsidiary, parent, or any Person in which the Company has a financial interest, from the
provision of Cable Service pursuant to this Agreement. "Gross Revenues" shall include, but not be limited
to:
(1) revenue derived from any tier of Cable Service;
(2) revenue derived from optional premium Cable Services;
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(3) revenue derived from Pay Television Cable Service;
(4) revenue derived from Installation, disconnection, reconnection and
changes -in-service, and maintenance fees;
(5) late fees;
(6) Franchise Fees;
(7) revenue derived from leased Channel fees for commercial leased access
programming and services;
(8) revenue derived from Converter rentals or sales, or other Cable System
equipment;
(9) studio rental, production equipment and personnel fees;
(10) advertising revenues from the provision of Cable Services over the Cable
System;
(11) revenues from program guides and electronic guides;
(12) revenues from home shopping and other revenue-sharing arrangements;
(13) revenues from cable modem services, to the extent allowed by federal law;
(14) revenues from interactive cable services;
(15) additional outlet fees;
(16) interest income associated with past due delinquent accounts;
(17) all revenues derived from any ancillary services related to the provision of
Cable Service pursuant to this Franchise (the parties agree that ancillary services
do not include "telecommunications" services or "information" services as those
terms are defined by Federal law); and revenue, received by any entity other than
the Company where necessary to prevent evasion or avoidance of the obligation
under this Franchise to pay the Franchise Fees;
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(18) "Gross Revenues" shall not include:
(i) any taxes on services furnished by the Company which are imposed
directly on any Subscriber or user by the State, City or other governmental
unit and which are collected by the Company on behalf of said
governmental unit, and which do not arise from the provision of Cable
Services under this Agreement. The Franchise Fee is not such a tax, and
Company's collection of amounts from Subscribers which are intended to
be passed on to the City as payment of Franchise Fees shall be included in
"Gross Revenues."
(ii) revenue from or fees for any services other than Cable Services or
from services that are not provided to Subscribers via the Cable System or
that may be excluded from the Franchise Fee by the Cable Act.
(19) The parties intend for the definition of Gross Revenues to be as inclusive
as possible and consistent with existing Applicable Law. If there is a change in
federal law subsequent to the Effective Date of this Franchise, such change shall
not impact this Gross Revenues definition unless the change specifically preempts
the affected portion of the definition above.
(v) "Highway" means the surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way,
drive, circle, or other public right -of way, including, but not limited to public utility easements, dedicated
utility strips, or dedicated right-of-way now or hereafter held by the City in the Service Area which shall
entitle the City and the Company to the use thereof for the purpose of installing, operating, repairing,
and maintaining the Cable System. Public Way shall also mean any easement now or hereafter held by
the City within the Service Area for the purpose of public travel, or for utility or public service use
dedicated for public uses and shall include other easements or right-of-way as shall within their proper
use and meaning entitle the City and the Company to the use thereof for the purpose of installing and
operating the Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to
the System.
(w) "Installation" shall mean the connection of the Cable System from a feeder cable to a
Subscribers' residence or place of business.
C.
(x) "Living Unit" shall mean a distinct address in the City. This includes, but is not limited to,
single family homes, multi -dwelling units (e.g., apartment buildings and condominiums) and business
locations.
(y) "Other Programming Service" means information that a cable operator makes available to
all Subscribers generally.
(z) "Pay Television" or "Pay Television Service" means the simultaneous delivery by the
Company to television receivers over the Cable System of pay -per -Channel or pay -per -program Cable
Service to Subscribers for a fee or charge, in addition to the charge for Basic Service or Other
Programming Services on a per program, per channel, or other subscription basis.
(aa) "PEG" means public, educational and governmental.
(bb) "Person" means any natural person or any association, firm, partnership, joint venture,
corporation, or other legally recognized entity, whether for-profit or not -for profit, but shall not mean the
City.
(cc) "Public Property" is any real property owned by the City other than Rights -of -Way.
(dd) "Rights -of -Way" means all public Highways, Streets, Sidewalks, Easements, and
Dedications in the City.
(ee) "Service Area" is that portion of the City that Company is able to provide Cable Service
based on Company's network construction schedule.
(ft) "Sidewalk" is that portion of a Highway, other than the roadway, set apart by curbs,
barriers, markings or other delineation for pedestrian travel, including parkways, not on private lands.
(gg) "Street" shall mean the surface of and the space above and below any public street, right
of way, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive,
communications or utility easement, now or hereafter existing as such within the franchise area.
(hh) "Subscriber" or "Customer" means any Person, public building or governmental entity
within the City that is authorized to receive Cable Service provided by Company whether or not a fee is
paid for such Cable Service, but does not include participants in technical trials; provided, however, that
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Company recognizes the right and ability of any authorized lessee or tenant of a Subscriber to request
the fulfillment of certain Customer service obligations of Company set forth herein.
(ii) "Video Programming" means programming provided by, or generally considered
comparable to programming provided by a television broadcast station.
(a) The City hereby grants to Company a nonexclusive Franchise authorizing Company to
utilize facilities erected, constructed and maintained by the Company, upon, along, across, above, over
and under the Rights -of -Way now inexistence and as may be created or established during its term,
including any poles, wires, cable, underground conduits, manholes, and other fixtures of the Company
necessary for the maintenance and operation of a Cable System for the provision of Cable Services by
Company in the City.
(b) Absent a change in Applicable Law following the Effective Date of this Franchise, the
Company: (1) acknowledges and accepts the City's legal right to issue and enforce the Franchise; (2)
accepts and agrees to comply with each and every provision of this Franchise; (3) agrees that the
Franchise was granted pursuant to processes and procedures consistent with Applicable Law, and that it
will not raise any claim to the contrary; and 4) agrees not to challenge or attempt to challenge in any
claim or proceeding any condition or term of this Agreement or otherwise contend the same to be
unreasonable, arbitrary or void or that the City was without power or authority to make such term or
condition. The Company accepts and will accept the validity of the terms and conditions of all generally
applicable, non-discriminatory local laws as they exist and may be amended from time to time throughout
the term of this Agreement in their entirety; provided, however, that any such amendments of local law
that are solely applicable to cable service franchises or cable systems and completely discretionary rather
than made to reflect changes to federal or state laws, rules or regulations, shall not conflict with the
terms of this Agreement. Nothing set forth in the foregoing provisions of this paragraph (b) of Section 2
shall prevent or prohibit the Company from receiving the benefit of rights subsequently enacted and
explicitly mandated under federal or state law which preempt any of the terms, provisions and/or
obligations hereunder. In the event that any such rights are subsequently enacted under federal or state
law, the parties agree that this Agreement,. at the option of either party, shall be subject to renegotiation.
(c) This Agreement and the Franchise granted hereunder shall constitute both a right and an
obligation to provide Cable Services as set forth herein. The Company's authority under this Agreement
is subject to and must be exercised in strict accordance with the provisions of the City Code.
(d) This Franchise does not authorize the provision of any service other than Cable Services
or in any way relieve the Company of any obligation to obtain any authorizations, licenses or franchises
to use the Rights -of -Way in the City to provide other services. The provisions of this Agreement are not
a bar to the imposition of similar, different or additional conditions with respect to the use of the Rights -
of -Way in the City in connection with the provision of services other than Cable Services, including the
execution of a Master Right of Way Agreement if needed, provided such additional conditions comply
with the Cable Act and are materially consistent with the conditions imposed on similarly situated Rights -
of -Way users other than the Omaha Public Power District and the Metropolitan Utilities. District. Nothing
herein shall be read to prevent Company from providing other non -cable services to the extent consistent
with Applicable Law.
(e) The Company promises and guarantees, as a condition of exercising the privileges granted
by this Franchise, that any Affiliate of the Company directly involved in the offering of Cable Service in
the City or directly involved in the management or operation of Cable System in the City, will also comply
with the obligations of this Franchise. However, the parties acknowledge that the Company will pull
permits and be primarily responsible for the construction and installation of the Cable System in the
public Rights -of -Way, which will be utilized by the Company to provide Cable Services, and the Company
will own, operate and maintain the Cable System. The Company's installation and maintenance of the
Cable System in the public Rights -of -Way shall be governed by Applicable Law and City regulations. To
the extent the Company constructs and installs any facilities in the public Rights -of -Way, such installation
will be subject to the terms and conditions of this Franchise. Company shall apply for permits from the
City Building and Inspection Department for the installation of new facilities at specific locations in the
Rights -of -Way, in the same non-discriminatory and generally applicable manner as other users of the
Rights -of -Way. Company shall submit plans sealed by a Nebraska -licensed professional engineer, or the
professional equivalent, produced to a scale of one inch equaling fifty feet, or as specified by City
representatives. The plans shall contain a plan and profile of the proposed route. Submitted plans shall
include renderings of above ground, equipment, carrying capacity and diameter of the cable or. other.
'facilities being installed, and engineering; traffic control and landscaping plans, if any. Such plans shall
be reviewed by the Director of Public Works or his/her designee, with respect to applicable requirements
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imposed upon all similarly situated users of the Rights -of -Way. The top of the cable installed beneath an
arterial or collector traffic street shall be placed at a minimum depth of thirty (30) inches from the top of
the pavement, and a minimum depth of twenty-four (24) inches beneath the top of the pavement of a
residential street, unless allowed otherwise in writing by the Director of Public Works . Other items
installed shallower than the said depths shall be clearly shown on the plans and as -built drawings. All
construction, excavation, maintenance and repair by the Company shall be done in a workmanlike and
expeditious manner which minimizes the inconvenience to the City and the public. Within thirty (30) days
after completion of installation or any change of installed cable, Company shall provide as -built
construction drawings to the Public Works Department. The Company shall maintain a continuously
updated map of such facilities in the Rights -of -Way, which shall be made available for viewing and review
by the City.
(f) All construction, excavation, maintenance and repair work done by the Company on City
Right -of -Way or property shall comply with all Applicable Laws. Company shall, at its sole cost and
expense, maintain the construction, excavation, maintenance and repair work areas in a neat and tidy
manner, and free and clear of all obstructions, trash, rubbish, debris and other materials. City shall have
the right to inspect all construction or excavation work to ensure compliance with this Agreement and all
applicable laws, regulations, and permits, and may order Company to perform corrective work, with
respect to which Company shall promptly comply. All property disturbed by Company's activities shall be
promptly restored by Company at its expense to the same or similar conditions existing prior to such
activities, subject to inspection by the City and compliance by Company with any non-discriminatory and
generally applicable remedial actions required by the City pursuant to the inspection. Company shall be
liable to City for the full cost of restoring any public property not promptly or adequately remedied by
Company as reasonably required by the City.
(g) The installation, maintenance, renovation and replacement of facilities by Company shall
be subject to non-discriminatory, generally applicable regulation by City through requirements including,
without limitation, City's Municipal Code, and this Agreement, with respect to matters including but not
limited to: (a) the location of facilities in or upon the streets, alleys and dedicated easements, (b) the
disturbance and reconstruction of pavement, sidewalks, and surface of streets, alleys, dedicated
easements and driveways, : (c) the,timing and scheduling of work, and (d) the temporary closure of
portions of streets and alleys. All facilities shall be designed and installed so as to cause a minimal amount
of interference with public property, water mains, sewer mains, electric and natural gas.facilities, street
10
lights, traffic signals, and all other municipal or authorized use of the Rights -of -Way. The City Engineer,
or his or her designee, may direct and require Company to locate its facilities within a defined
telecommunications corridor within any street or other Rights -of -Way or otherwise at a specific location
to minimize interference with other facilities or utilities. Company shall install and maintain its facilities in
such manner as to minimize interference with trees, natural features and vegetation.
(h) Company agrees, wherever commercially and/or economically reasonably feasible, that it
shall cooperate with City and others in placing conduit within the Rights -of -Way and in sharing or utilizing
unused space within underground conduits owned by Company or others, and upon any on or above
ground facilities owned by Company or others. At any time that City or Company intends to install new
underground conduit or replace existing underground conduit, or install or replace other facilities in City's
Rights -of -Way, such Party shall endeavor, whenever commercially and/or economically feasible, to
provide the other Party with forty-five (45) days advance written notice in order to permit the additional
contemporaneous installation of conduit and assessment of potential cooperation. If either Party desires
additional conduit installed, it will so notify the other Party. The Party providing such notice shall be
responsible for the additional incremental expense for installing such additional conduit.
(i) No Rights -of -Way shall be used by Company if the City determines that such use is
inconsistent with the terms, conditions or provisions by which such Rights -of -Way were created or
dedicated, or are presently used.
0) No rights shall pass to the Company by implication. Without limiting the foregoing,.by way
of example and not limitation, this Agreement shall not include or be a substitute for:
(1) Any other permit or authorization generally required under the City Code for
the privilege of transacting and carrying on a business within the City that may be
required by the City; or
(2) Any permits or agreements for occupying any other property of the City or
privateentities to which access is not specifically granted by this Agreement
including, without limitation, a Master Right of Way Agreement, and permits and
agreements for placing devices on or in poles, conduits, other structures, or railroad
easements, whether owned by the City or a private entity.
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(k) . Company shall be a party to the Nebraska One -Call System. Facilities shall be located (thru
One -Call), installed and maintained so that none of the Company's facilities, or activities in connection
with such facilities, endanger the lives, health or safety of persons, or interfere with any public or other
improvements the City or other governmental or private entities (including any storm water, sanitary
sewer or water utilities or enterprises) have in place or may deem proper to make, nor shall the location,
installation or maintenance of the facilities hinder or obstruct the safe and free use of the streets or other
public Rights -of -Way. All Company's facilities shall be so located as to cause minimum interference with
the rights and reasonable convenience of property owners of property which adjoins any Rights-of-way.
(a) This nonexclusive Franchise shall be in effect for a period of ten (10) years from the date
of adoption by the City (the "Effective Date'), unless sooner renewed or lawfully terminated in accordance
with the terms hereunder and Applicable Law. Upon acceptance of this Franchise by Company, this
Franchise shall supersede and replace any and all previous franchises or amendments thereto granted
by the City and held by Company.
Section 4. RENEWAL.
Subject to Section 626 of the Cable Act (47 U.S.C. §546), the City reserves the right to
grant or deny renewal of the Franchise. If deemed appropriate by mutual agreement, the parties
shall amend this Franchise in consideration of technological changes in the industry.
Section 5. NONEXCLUSIVE AGREEMENT.
The Franchise granted by this Agreement shall be nonexclusive. The City specifically
reserves the right to grant, at any time, such additional franchises for a Cable System as it
deems appropriate provided, however, such additional grants shall not operate to materially
modify, revoke, or terminate any rights previously granted to Company.
Section 6. AREA TO BE SERVED.
(a) Jurisdictional Boundaries. The Company is hereby authorized to provide .Cable Services
over a Cable System within the jurisdictional boundaries of the City, including any areas annexed by the
City during the term of this Franchise.
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(b) Competitive Market. The parties acknowledge that Company is not the only provider of
Cable Services in the City. The Company acknowledges that the City desires wireline competition
throughout the entire City so all residents may receive the benefits of competitive Cable Services.
(c) In General. Except as otherwise provided herein, Company shall provide Cable Service
within seven (7) Days of a request by any Person within the Company's Service Area within the City at
the time of the request. For purposes of this subsection, a request shall be deemed made on the date of
signing a service agreement, receipt of funds by Company, receipt of a written request by Company or
receipt by Company of a verified verbal request. Company shall provide such service at non-
discriminatory monthly rates for Residential Subscribers, consistent with Applicable Law. Company shall
not discriminate between or among any individuals in the availability of Cable Service based upon income
in accordance and consistent with 47 U.S.C. Section 541(x)(3), or based upon race or ethnicity.
(d) Within Company's Service Area, the Company shall offer the individual units of a multiple
dwelling unit all Cable Services offered to other Living Units in the Company's Set -vice Area within the
City and shall individually wire units upon request of the property owner or renter who has been given
written authorization by the owner; provided, however, that any such offering is conditioned upon the
Company having legal access to said unit. The City acknowledges that the Company cannot control the
dissemination of particular Cable Services beyond the point of demarcation at a multiple dwelling unit.
(e) The Cable System shall be interconnected with other contiguous cable systems that are
owned and operated by Company, or an Affiliate, provided that such cable systems are served by the
same headend that serves the City.
(a) Nothing in this Agreement shall (i) abrogate the right of the City, to perform any
public works or public improvements of any description, (ii) be construed as a waiver of any codes
or ordinances of the City or of the City's right to require the Company or any Person utilizing the
Cable System to secure the appropriate permits or authorizations for such use, or (iii) be construed
as a waiver or release of the rights of the City in and to the Streets.
(b) The Company acknowledges that any right or privilege hereunder is subject to the power
of the City to adopt or enforce general ordinances necessary to the health, safety and welfare of the
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public. Company, therefore, specifically agrees and covenants to comply with all applicable provisions of
the City Code.
(c) Company acknowledges that the City may modify its regulatory policies by lawful exercise
of the City's police powers throughout the term of this Agreement. Company agrees to comply with such
lawful modifications. Company reserves all rights it may have to challenge such City Code modifications
whether arising in contract or at law. The City reserves all of its rights and defenses to such challenges
whether arising in contract or at law, provided, however, that such amendments -enacted or modified
after the effective date of this Franchise shall be reasonable.
(d) In addition to the inherent powers,of the City to regulate and control a franchise, and
those powers expressly reserved by the City or agreed to and provided for herein, the right and power
is hereby reserved by the City to promulgate such additional regulations as it shall find necessary in the
exercise of its lawful powers and in furtherance of the terms and conditions of this Agreement; provided,
however, that such amendments enacted or modified after the effective date of this Franchise shall be
reasonable.
(e) Each and every term, provision or condition herein is subject to the applicable provisions
of the Municipal Code of the City, as the same may be amended from time to time throughout the term
of this Franchise, and is hereby expressly incorporated into this Franchise as if fully set out herein by this
reference. In the event of a conflict between this Agreement, the City Code or applicable regulations of
the City, the Company shall notify the City of the point of conflict believed to exist between the Agreement
and such City Code or regulation. Should the parties mutually agree that a material provision of this
Agreement is affected by any conflict with City Code or regulations of the City, the parties may agree to
modify any of the provisions of this Agreement to such reasonable extent as may be necessary to carry
out the full intent and purpose of this Agreement. In the event that an agreement to modify the
Agreement cannot be reached, the City Code or applicable regulation shall govern. Notwithstanding the
foregoing, the City may not unilaterally alter the material rights and obligations of Company under this
Agreement.
(f) The City may also adopt such regulations at the request of Company upon application.
(g) Upon the City's written notice to the Company regarding a Person holding a permit
to move any' structure with intention to do so in possible conflict with Company's wires, at least
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fourteen (14) days in advance, Company shall temporarily move Company's wires to permit the
moving of said structure. The Company may impose a reasonable charge on such Person for any
such movement of its wires and require payment of the same in advance.
(a) Notwithstanding any other provisions of this Agreement to the contrary, the Company
shall at all times comply with all laws and regulations of the state and federal government or any
administrative agencies thereof; provided, however, if any such state or federal law or regulation shall
require the Company to perform any service, or shall permit the Company to perform any service, or
shall prohibit the Company from performing any services, in conflict with the terms of this Agreement or
of any law or regulation of the City, then as soon as possible following knowledge thereof, the Company
shall notify the City of the point of conflict believed to exist between such regulation or law and the laws
or regulations of the City or this Agreement.
(b) Should the City determine that a material provision of this Agreement is affected by any
subsequent action of the state or federal government, the parties may agree to modify any of the
provisions herein to such reasonable extent as may be necessary to carry out the full intent and purpose
of this Agreement. In the event that an agreement to modify the Agreement cannot be reached, the
applicable state or federal law or regulations shall govern.
Section 9. PAYMENT OF FRANCHISE FEE.
(a) During the term of this Franchise, Company shall pay to City a Franchise Fee in an amount
equal to five percent (5%) of Company's Gross Revenues received from the operation of the Cable
System, as defined in Article I herein. Upon ninety (90) Days advance written notice from the City to
Company, City may increase or decrease the Franchise Fee to the extent permissible under Applicable
Law, and pursuant to said notice and direction, Company shall pay to City an annual Franchise Fee of up
to the maximum amount permitted by Applicable Law. At any time during the duration of this Franchise,
in the event that the City is authorized to collect an amount in excess of five percent (5%) of Gross
Revenues of Cable Services; then the City may by Resolution approved by a majority of those members
either elected or appointed to the City Council unilaterally amend this Franchise to provide that such
increased amount shall be added to the Franchise Fee payments to be paid by Company to the City
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,hereunder, provided that Company has received at least ninety (90) Days prior written notice from the
City of such amendment.
(b) The Company shall pay to City a five percent (5%) franchise fee based on the gross annual
subscriber revenue received for cable television system in the franchise area. The fee shall
be paid on a semiannual basis with payments to be made on or before August 30 and on or
before February 28 of each calendar year. No other fee, charge or consideration shall be
imposed. Sales tax or other taxes levied directly on a per subscription basis and collected by
the Company shall be deducted from the gross service revenues before computation of sums
due the City is made. The Company shall provide a semiannual detailed summary report
showing gross revenues received during the six months preceding the reporting date,
payments to the City, and all relevant financial information which shall be received'at the same
time as the semiannual payment.
(c) In the event this Agreement should be terminated or forfeited prior to the expiration of its
term, the Company shall immediately submit to the City a financial statement prepared as
would otherwise be required, showing the Gross Revenues for the time which has elapsed
since the last period for which payment was made. Payment for said period shall be due to the
City within forty-five (45) Days following the termination.
(d) In the event the Company continues to operate all or any part of the Cable System after
the term of this Agreement, then the Company shall continue to comply, for a period not to
exceed ninety (90) Days thereafter, with all applicable provisions of this Agreement, including,
without limitation, all compensation and other payment provisions of this Agreement,
throughout the period of such continued operation, provided that any such continued operation
shall in no way be construed as a renewal or extension of this Agreement of the Franchise.
(e) No acceptance by the City of any payment shall be construed as a release or an accord or
satisfaction of any claim the City may have for further or additional sums payable hereunder
or for any performance or obligation of the Company. The City shall have a right to inspect
relevant records of the Company to determine whether the Franchise Fee was paid accurately,
and the right to audit and re -compute any amounts payable thereto; provided that such audit
shall commence within sixty (60)' months following the close of each fiscal year of the
Company. In the event the City .determines that additional amounts are due, the Company
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shall pay said amount within forty-five (45) Days following written notice; provided, however,
that the Company may pay said amount under protest with the right to re -compute the same.
(f) Interest shall be charged daily from the date due for any payment or recomputed amount,
cost or penalty not made on or before the applicable date at the annual rate of twelve percent
(12%), but in no event higher than the rate specified in Neb. Rev. Stat. §45-104.
(g) For purposes of the Franchise Fee to be paid by Company under this Franchise, in the case
of Cable Service that may be bundled or integrated functionally with other services, capabilities,
or applications of Company, the fee shall be applied only to the Gross Revenues attributable
to Company's Cable Service, as reflected on the books and records of Company kept in the
regular course of business in accordance with GAAP and Applicable Law.
Accounting transactions between the Company, its parent corporation, if any, and third -
party contractors of the Cable System serving the City shall be subject to City's review to verify
the accuracy of Franchise Fee payments made under this Agreement. If there is a criminally
negligent false entry into the books and/or records of the Company made by Company of a
material or substantial fact, that shall constitute a material violation of this Agreement. Erroneous
entries shall not constitute a material violation if not made in bad faith.
Section 10. COSTS. The Company shall pay all reasonable incidental costs related to the
renewal of this Franchise incurred by the City for which reimbursement is allowed pursuant to
federal law and the FCC. Payment of said costs shall be made within thirty (30) Days following
written notice from the City to the Company.
Section 11. RATES. Company agrees to provide notices to the City and Subscribers of changes
in rates as required by Applicable Law. Company agrees that it will not discriminate among
Subscribers with regard to rates and charges made for any Cable Service based on considerations
of race, color, creed, sex, marital or economic status, national origin, or neighborhood of
residence; and shall comply with the nondiscrimination requirements of Applicable Laws.
Section 12. PERFORMANCE BON®.
(a) Within ten (10) Days after the execution of this Agreement, the Company shall deposit
with the City Clerk a performance bond from a financial institution in the amount of Fifty Thousand
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Dollars ($50,000.00). The form and content of such performance bond shall be approved by the City
Attorney. The performance bond shall be used to insure the faithful performance by. the Company of all
provisions of this Agreement; compliance with all orders, permits and directions of any agency,
commission, board, department, division, or office of the City having jurisdiction over its acts or defaults
under this Agreement; and the payment by the Company of any claims, liens and taxes owed to the City
which arise under this Franchise.
(b) The performance bond shall be maintained at Fifty Thousand Dollars ($50,000.00) during
the entire term of the Company's Franchise even if amounts have to be withdrawn pursuant to this
section, and shall remain in effect for sixty (60) Days after the conclusion or termination of this
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Agreement.
(c) If the Company fails to pay to the City any compensation within the time prescribed herein;
or fails, after ten (10) Days' written notice to pay to the City any taxes due and unpaid; or fails to repay
the City within ten (10) Days, any damages, costs or expenses which the City is compelled to pay by
reason of any act or default of the Company in connection with this Agreement or law; or fails after three
(3) Days' written notice of such failure by the City to comply with any provisions of this Agreement or
law which the City reasonably determines can be remedied by demand on the performance bond, the
City may immediately demand payment from the performance bond of the amount thereof, plus interest
as provided herein. Upon demand for payment, the City shall notify the Company of the amount and
date hereof.
(d) Any right hereunder shall not be deemed exclusive but in addition to all other rights of
the City, whether reserved by this Agreement or authorized by law, and no action, proceeding or exercise
of a right with respect to such letter of credit shall adversely affect any other right the City may have.
(e) The performance bond shall contain the following endorsement:
"It is hereby understood and agreed that this performance bond may not be cancelled by
the issuer nor the intention not to renew be stated by the issuer until thirty (30) Days
after receipt by the City, by registered mail, a written notice of such intention to cancel or
not to renew."
Section 13. INSURANCE.
(a) Throughout the term of this Franchise, the Company shall, at its sole expense take out
and maintain a general comprehensive public liability insurance policy or policies that are in a form
reasonably acceptable to the City, together with evidence reasonably acceptable to the City
demonstrating that the premiums of said policy or policies have been paid. Such policy or policies shall
be issued by a company licensed to do business in the State of Nebraska with a rating by A.M. Best &
Co. of not less than "A" that shall insure the (i) Company and (ii) City and its officials, officers, directors,
employees and agents against each and every form of liability and claim which may arise from operations
under this Franchise, whether such operations be by the Company, its officials, officers, directors,
employees and agents or any subcontractors of Company. This liability insurance shall include, but shall
not be limited to, protection against claims arising from bodily and personal injury and damage to
property, resulting from Company's vehicles, products and operations in the minimum combined amount
as outlined in the Blair City Code, Article 19, Sections 10-1917, as amended, provided, that such amounts
shall be increased to match corresponding increases in the maximum liability under section 13-926 of
the Nebraska Political Subdivisions Tort Claims Act.
(b) A certificate of insurance in compliance with this section shall be provided to the City
within ten (10) Days after the Effective Date of the Franchise and shall, if acceptable to the City Attorney,
be approved by the City Attorney. Thereafter, the Company shall immediately advise the City Attorney
of any litigation that may develop that would affect this insurance. The policy shall provide coverage on
an 'occurrence" basis and shall name the City as an additional insured. Standard form of cross -liability
shall be afforded. An endorsement shall be provided which states that the coverage is primary insurance
with respect to claims arising from Company's operations under this Franchise and that no other
insurance maintained by the City will be called upon to contribute to a loss under this coverage.
(c) Prior to the Effective Date, Company shall submit to City a certificate documenting the
required insurance, as well as any necessary properly executed endorsements. The certificate and
documents evidencing insurance shall be in a form acceptable to City. Renewal certificates shall be
provided to City prior to. the expiration date of any of the required policies. City will not be obligated,
however, to, review such endorsements or certificates or other evidence of insurance, or to advise
Company of any deficiencies in such documents and receipt thereof shall not relieve Company from, nor
be deemed a waiver of, City's right to enforce the terms of Company's obligations hereunder. City
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reserves the right to require further documentation reasonably necessary to form an opinion regarding
the adequacy of Company's insurance coverage.
(d) Neither.the provisions of this section nor any damages recovered by the City thereunder
shall be construed to limit the liability of the Company under any franchise issued hereunder or for
damages.
(e) City reserves the right to adjust the insurance limit coverage requirements of this
Franchise to correspond with any amendment to the Nebraska Political Subdivisions Tort Claims Act that
increases the City's maximum liability. Company understands that the Blair City Code Article 19, Section
10-1917 outlines the minimum insurance limits as set by the City Council and may be amended at the
City's sole discretion during the pendency of this term. If the Code is amended, City understands to notify
the Company of any amendment so Company can comply with, any increases within thirty (30) days.
(f) It is hereby understood and agreed that said insurance policy or policies shall be
maintained by the Company throughout the term of this Agreement and such other period of time during
which the Company operates or is engaged in the removal of the Cable System. Each such policy or
policies shall contain the following endorsement: "It is hereby understood and agreed that this policy
may not be cancelled nor the intention not to renew be stated until thirty (30) Days after receipt by the
City, by registered mail, of a written notice of such intention to cancel or not to renew." Within thirty
(30) Days after receipt by the City of said notice, the Company shall obtain and furnish to the City
replacement insurance policies in a form reasonably acceptable to the City.
(g) The Company shall obtain and maintain commercial automobile liability insurance with at
least $2,000,000 combined single limit for each accident for bodily injury and property damage covering
all owned, hired, and non -owned motor vehicles.
(h) The Company shall comply with the Nebraska Workers' Compensation Act and in that
regard shall secure insurance to cover its obligations with respect to workers' compensation claims, or
take other appropriate steps, which insurance and steps shall be in a form and substance reasonably
satisfactory to the City. The Company shall indemnify, defend, and hold harmless the City from any
workers' compensation claims to which the Company may become subject during the term of this
Agreement.
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(a) The Company shall indemnify, defend and hold the City, its officers, boards, commissions,
agents, employees, attorneys, consultants and independent contractors (collectively the "Indemnified
Parties') harmless from and against any and all lawsuits, claims, causes of action, actions, liabilities,
demands, damages, judgments, settlements, disability, losses, expenses (including reasonable attorney's
fees and disbursements) and costs of any nature that any of the Indemnified Parties may at any time
suffer, sustain or incur arising out of, based upon or in any way connected with the Company's
operations, the exercise of this Agreement, the breach by Company of its obligations under this
Agreement and/or the activities of Company, its subcontractors, employees and agents hereunder except
in the case of any Indemnified Parties' willful misconduct or gross negligence. In the event that suit is
brought against the City either independently or jointly with the Company on account thereof, the
Company upon notice by the City shall defend the City in any such suit at the cost of the Company. In
the event final judgment is obtained against the City either independently or jointly with the Company,
the Company shall indemnify the City for those claims or portions of claims arising out of the Company's
operations and pay such judgment with all costs and hold the City harmless therefrom.
(b) The Company specifically agrees that it will pay all reasonable expenses incurred by the
City in defending itself with regard to all damages and penalties mentioned in subsection (a) above.
These expenses shall include all reasonable out-of-pocket expenses, such as reasonable attorney fees,
and shall also include the reasonable value of any services rendered by the City Attorney or his/her
assistants, or any other employees of the City or its agents.
(c) The indemnification obligations of the Company set forth in this Agreement are not limited
in any way by the amount or type of damages or compensation payable by or for Company under workers'
compensation, disability or other employee benefit acts, acceptance of insurance certificates required
under this Agreement or the terms, applicability or limitations of any insurance held by Company. The
indemnification of the City by the Company provided for in this Agreement shall apply to all damages
and claims for damages of any kind suffered by reason of any of Company's operations referred to in
this Agreement, regardless of whether such insurance policies shall have been determined to be
applicable to any such damages or claims for damages. The City does not, and shall not, waive any rights
against Company which it may have by reason of the indemnification provided for in this Agreement
because of the acceptance by City, or the deposit with the City by the Company, of any of the insurance
policies described in this Agreement.
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(d) The foregoing indemnity is conditioned upon the following:
The City shall give Company prompt notice of the making of any claim or the commencement of .
any action, suit or other proceeding covered by the provisions of this section. No recovery by the
City of any sum by reason of the performance bond required in this Agreement shall be any
limitation upon the liability of the Company to the City under the terms of this section, except
that any sum so received by the City shall be deducted from any recovery which the City might
have against the Company under the terms of this section.
(e) Procedures and Defense. If a claim or action arises, the City or any other indemnified
party shall promptly tender the defense of the claim to Company, which defense shall be at Company's
expense. The City may participate in the defense of a claim, but if Company provides a defense at
Company's expense then Company shall not be liable for any attorneys' fees, expenses or other costs
that City may incur if it chooses to participate in the defense of a claim, unless and until separate
representation as described in Paragraph (g) below is required. In that event the provisions of Paragraph
(g) shall govern Company's responsibility for City's reasonable attorney's fees, expenses or other costs.
In any event, Company may not agree to any settlement of claims affecting the City without the City's
approval.
(f) Non -waiver. The fact that Company carries out any activities under this Franchise through
independent contractors shall not constitute an avoidance of or defense to Company's duty of defense
and indemnification under this subsection.
(g) Expenses. If separate representation to fully protect the interests of both parties is or
becomes necessary as determined by the City Attorney, such as a conflict of interest between the City
and the counsel selected by Company to represent the City, Company shall pay, from the date such
separate representation is required forward, all reasonable expenses incurred by the City in defending
itself with regard to any action, suit or proceeding indemnified by Company. Provided, however, that in
the event that such separate representation is or becomes necessary, and City desires to hire counsel or
any other outside experts or consultants and desires Company to pay those expenses, then City shall be
required to obtain Company's consent to the engagement of such counsel, experts or consultants, such
consent not to be unreasonably withheld. The City's expenses shall include all reasonable out-of-pocket
expenses, such as consultants' fees, and shall also include the reasonable value of any services rendered
by the City Attorney or his/her assistants or any employees of the City or its agents but shall not include
22
outside attorneys' fees for services that are unnecessarily duplicative of services provided to the City by
Company. Notwithstanding the foregoing, the parties agree that the City may utilize at any time, at its
own cost and expense, its own City Attorney or outside counsel with respect to any claim brought by
another franchised cable operator as described in Paragraph (e) above.
SECTION 15. DELAYS AND LIMITATION OF LIABILITY.
(a) Delays. Under no circumstances shall City ever be liable for any outage, interference
or interruption, or for any delay in restoring any service or any operational aspect, of Company's
facilities and Cable System within the Rights -of -Way which. have been subjected to an outage,
interference or interruption, whatever the cause of such outage, interference or interruption, unless
solely caused by the intentional misconduct or gross negligence of City or agent acting on behalf
of City and City would be liable under the Nebraska Political Subdivisions Tort Claims Act.
(b) Limitation of Liability. Notwithstanding any provision of this Agreement to the
contrary, in no event shall City be Liable to Company or any agent of Company for any special,
incidental, indirect, punitive, reliance or consequential damages, whether foreseeable or not, arising
out of, or in connection with transmission interruptions or problems, including but not limited to,
any special, incidental, indirect, punitive, reliance or consequential damages relating to damage or
loss of property or equipment, loss of profits or revenue, cost of capital, cost of replacement
services, or claims of Company's customers whether occasioned by any repair or maintenance
performed by, or failed to be performed by, City or agent acting on behalf of City, any Party to this
Agreement, or any other cause whatsoever, including, without limitation, breach of contract, breach
of warranty, negligence, or strict liability. All claims for damages arising out of this Agreement shall
be made within the limitations period specified by applicable Nebraska Statutes.
ARTICLE II. THE CABLE SYSTEM
Section 1. CABLE SYSTEM CHANNELS. The Company agrees to operate and maintain
Cable Services providing a minimum of the equivalent of one hundred (100) Channels of Cable
Service to Subscribers in the City in a manner consistent with all laws, ordinances, construction
standards, governmental requirements, FCC technical standards, and requirements of this
Agreement.
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Section 2. REQUEST FOR CONSTRUCTION. Upon request of the City, the Company shall
furnish the City with progress reports indicating in detail any area of construction of the Cable
System by the Company.
Section 3. SUPERVISION BY THE CITY. The Director of Public Works, or a Person
appointed by the City Council may, from time to time, issue reasonable rules and regulations
concerning the construction, operation and maintenance of the Cable System insofar as it relates
to the use of City's Rights -of -Way and Public Property, as consistent with Applicable Law and the
provisions of this Agreement
Section 4. IMPROVEMENTS & UPGRADES. The Company shall at all times during the term
of this Agreement upgrade and maintain the Cable System to provide similar technical capabilities,
capacity, performance and functionality for the provision of Cable Services as other similarly
situated cable systems operated by Company in the greater Omaha area.
Section S. LINE EXTENSION.
(a) The Company shall be capable of providing Cable Service, within the Company's Service
Area, to all Living Units within the Franchise Area provided that such Living Units are within the first
1,000 feet from the point of the Franchisee's trunk or distribution cable nearest the requestor's location
at no additional cost to the subscriber.
Section 6. MANDATORY CONTINUITY OF SERVICE.
(a) It shall be the right of all Subscribers to continue receiving Cable Service insofar as their
financial and other obligations to the Company are honored. In the event that the Company elects to
overbuild, rebuild, modify, or sell the Cable System, or the Company gives the City notice of intent to
terminate or fails to renew its Franchise, the Company shall act so as to insure that all Subscribers receive
continuous, uninterrupted Service regardless of the circumstances. In the event of a change of franchise,
or in the event a new operator acquires the' Cable System, the Company shall cooperate with the City,
new franchisee or operator in maintaining continuity of Service to all Subscribers.
(b) In the event Company fails to operate the Cable System for three (3) consecutive Days
without prior approval of the City or without just cause, the City may, at its option, operate the Cable
System or designate an operator until such time as Company restores Service under conditions acceptable
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to the City or a permanent operator is selected. If the City is required to fulfill this obligation for the
Company, the Company shall reimburse the City for all reasonable costs or damages in excess of revenues
from the Cable System received by the City that are the result of the Company's failure to perform. The
City shall also be entitled to its payment of the Franchise Fee during that period.
Section 7. MAINTENANCE OF CABLE SYSTEM. The Company shall erect and maintain all
parts of the Cable System in good condition throughout the entire Franchise term in accordance
with this Agreement and as provided by Applicable Law.
(a) The Company shall render efficient Service, make repairs promptly, and interrupt Service
only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be
preceded by notice and shall occur during period of minimum Cable System use. Complaint procedures
shall be established in accordance with the FCC regulations and the Blair City Code, Article 19, Section
10-1934.
(b) Subject to the privacy provisions of 47 U.S.C. § 521 et seq, Company shall prepare and
maintain written records of all written complaints made to them relating to the provision of Cable Service
and the resolution of such complaints, including the date of such resolution. Such written records shall
be on file at the office of Company and made available to the City upon request. The Company shall,
upon request of the City, annually furnish the City with: (i) a report showing the number of Basic Service
tier Subscribers; and (ii) a summary of how the Company resolved all written complaints forwarded to it
by the City from Subscribers concerning the operation of the Cable System. The City agrees that it shall
use its best efforts to keep any such reports generated by the Company as confidential.
(c) The Company agrees to become and remain, during the term of this Agreement, a
member in good standing of the Diggers Hotline of Nebraska or any subsequent entity in the event
Diggers Hotline changes its name or becomes another entity with similar functionality, to cooperate with
all other members thereof and to abide by all rules, procedures and by-laws.
Section 8. CABLE SYSTEM OPERATION. In addition to all other provisions of law and this
Agreement, it is agreed this Cable System shall be installed and maintained in accordance with
all applicable technical standards including, at minimum and where applicable, the technical
standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76,
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Subpart K of the Code of Federal Regulations, as may be amended or modified from time to time,
which regulations are expressly incorporated herein by reference.
Section 9. CUSTOMER SERVICE STANDARDS. The City hereby adopts the Customer
service standards set forth in FCC rules and regulations, 47 C.F.R. §§76.309 and 76.1602 as well
as the customer notice provisions of §76.1603 and billing provisions of §76.1619 of the FCC's
rules and regulations, as amended. The Company. shall comply in all respects with the Customer
service requirements established by the FCC -or those set forth herein as Exhibit A, whichever are
greater.
Section 10. COMPLIMENTARY SERVICE TO GOVERNMENT OFFICES
A. The City and Company agree that the Company's provision of any complimentary Cable
Service (currently known as Cox Business TV Essential service, or its successor) and associated
equipment, to any City facility is voluntary "Complimentary Service" without charge. Such
voluntary Complimentary Service without charge may be terminated by Company, at its sole
discretion, upon one hundred twenty days' (120) written notice to the City. The City and Company
agree to meet after said notice is provided to the City to discuss the transition of voluntary
Complimentary Services toward paid services.
B. If any Complimentary Services are provided, City may choose to continue receiving some
or all of the services, at Company's regular nondiscriminatory market rate for commercial
customers or, in the event Company is legally permitted, in accordance with Applicable Laws, to
offset the value of the Cable Service against Franchise Fees payable to the City, the Parties
reserve the rights to do so. Such offsets shall be on similar terms and conditions as exist in the
Omaha region where Company provides Cable Service and where Company is legally authorized
to impose said offset.
C. The City shall have right to discontinue receipt of all or any portion of Complimentary
Service provided by Company. In the event the City decides to continue with any Cable Services,
the City shall have the option of (1) requesting that Company apply its regular and
nondiscriminatory commercial market rate as an offset against its franchise fee payments; or (2)
paying Company directly. Company and City do not waive any rights under Applicable Law
regarding Complimentary Service.
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D. The cost of providing Cable Service to any new public building or any newly constructed
governmental or educational building(s) designated by the City and any additional inside wiring,
drops or ,outlets, including those drops or outlets in excess of those currently installed, are the
responsibility of the City, and will be assessed at Company's regular nondiscriminatory market
rate. The recipient of the service will secure any necessary right of entry.
E. The Company shall not be responsible for any violations of FCC technical standards on the
City's side of the Demarcation Point. After reasonable notice under the circumstances, the
Company may temporarily disconnect its service to a City site that does not correct such violations
of FCC technical standards until such time as such violations are corrected.
F. Notwithstanding anything to the contrary set forth in this section, Company shall not be
required to provide Complimentary Service to such newly constructed buildings unless it is
technically feasible.
G. In the event the FCC's August 1, 2019 Third Report and Order In the Matter of
Implementation of Section 621 of the Cable Act is rescinded by the FCC or reversed on appeal as
to the issue of complimentary cable services as in-kind contributions in a cable franchise and such
result becomes a final FCC decision or non -appealable court decision, within thirty (30) days of
the result becoming final Company will discontinue any charges for Complimentary Service, and
provide such services to the City free of charge. Any additional levels of cable service, outlets, or
service locations ordered by the City shall continue to be subject to regular non-discriminatory
market rates.
Section 11. PUBLIC, EDUCATION and GOVERNMENT ACCESS CHANNELS
(a) PEG Channel. During the term of this Agreement, the Company shall provide to the City
one (1) Channel on the Basic Service tier for dedicated non-commercial public, education, and
government ("PEG') access programming. The City shall determine how the Channel is
programmed for PEG purposes.
(b) Control of PEG Channels. The control and administration of the PEG Channel shall rest
with the City and the City may delegate, from time to time over the term of this Agreement, such
control and administration to various entities as determined in City's sole discretion. The City may
at any time allocate or reallocate the usage of the PEG Channel among and between different
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non-commercial uses and non-commercial users in the City's sole discretion. Prior to execution of
this Franchise and throughout the term of this Franchise, Company agrees to cooperate and
consult with City to ensure that any City equipment purchases and installations completed by the
City are compatible with the Company's Cable System, technology and reasonably foreseeable
system specifications.
(c) PEG Channel Functionality. The PEG Channel shall be capable of transmitting the primary
video stream, related audio, and accompanying program related material within the PEG Channel
video stream. "Program related material" shall mean (i) closed captioning for the hearing
impaired, (ii) one alternative language or secondary audio program feed, (iii) program ratings
information, (iv) such other material as may be essential to or necessary for the delivery or
distribution of the primary video stream in a digital form and /or video description information;
and (v) any material the FCC specifically identifies as program -related material that a cable
operator retransmitting a broadcast television signal pursuant to FCC must -carry rules is required
to retransmit as part of a broadcast television signal; provided that Company is technically capable
of passing through any such program related material; and provided, further, that program
related material shall not include any interactive element or transactional application that requires
the functionality of a two-way cable or similar plant or otherwise suggests that a return path will
be provided, including, without limitation, any feature that prompts a Customer to attempt to
utilize "triggers" or other options that are enabled by a return path. All such related audio and
other material shall be provided as part of the PEG Channel programming feed transmitted to the
Company; Company shall not be required to insert such related audio and other material onto a
PEG Channel.
(d) PEG Channel carried in High Definition. The Company shall provide the PEG Channel signal
in standard -definition (SD) format.
(e) PEG Channel Locations. Company shall make every reasonable effort to coordinate the
cablecasting of PEG access programming on the Cable System on the same Channel designation
as such programming is currently cablecast within the City. Company may move PEG Channel
locations upon thirty (30) Days written notice to the City by Company. Company agrees not to
encrypt the PEG Channel any differently than other commercial Channels available on the Cable
System.
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(g) Programming Delivery. City shall ensure the PEG Channel and signals are in compliance
with applicable FCC technical standards so the channel can be received and processed in
Company's headend and retransmitted to Subscribers. Company shall not discriminate against a
PEG Channel with respect to the functionality and signal quality from those of the local broadcast
Channels carried on the Cable System. With respect to signal quality, Company will not materially
degrade the PEG Channel signal other than what is generally accepted as a result of a display
resolution format change (from high definition (HD) to standard definition (SD)) for distribution.
Company may transmit the PEG Channel to Customers in a format of its own choosing, subject
to this Agreement. Any and all costs associated with any modification or conversion of the PEG
Channel or signals after the PEG Channel/signal leaves the City's designated playback facilities,
or any designated playback center authorized by the City, to a format different than that delivered
by the City shall be provided by Company at no cost to the City or its designees. Company shall
not cause any programming to override PEG programming on any PEG Channel, except by oral
or written permission from the City, with the exception of emergency alert signals. The City or its
designee shall ensure that the quality of the PEG Channel programming (after it leaves the City's
playback locations) is comparable with that of similarly formatted signals received by Company
from commercial providers.
(h) Navigation to PEG Channel. Company agrees that if it utilizes a visual interface under its
control on its Cable System for all Channels, the PEG Channel shall be treated in a non-
discriminatory fashion consistent with Applicable Laws so that Subscribers will have ready access
to the PEG Channel. This shall not be construed to require Company to pay any third party fees
that may result from this obligation or install or modify any standard equipment or software to
accommodate the inclusion of PEG Channel on its programming guide.
(i) Non-commercial Use of PEG. PEG Channels are for non-commercial programming to be
promoted and administered by the City as allowed under Applicable Laws. Permitted non-
commercial uses of the PEG Channel shall include by way of example and not limitation: (1) the
identification of financial supporters similar to what is provided on public broadcasting stations;
or (2) the solicitation of financial support for the provision of PEG programming by the City or
third party users for charitable, educational or governmental purposes; or (3) programming
offered by accredited, non-profit, educational institutions which may, for example, offer
telecourses over a PEG Channel.
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(j) PEG Return Lines. Upon the execution of this agreement Company shall design, and build
at Company's expense, a PEG feed, connections, distribution facilities and associated equipment
between its headend and the demarcation point of the location identified in sub -paragraph 1
below, to enable the distribution of PEG access programming to Company's Subscribers without
material degradation of signal quality. Ongoing maintenance of any return lines and any future
PEG return lines will be subject to the FCC rules, regulations and orders with regard to PEG capital
expenses, PEG fees and PEG cost reimbursement. The City shall ensure the PEG Channel and
signals leaving the playback facilities are in compliance with applicable FCC technical standards.
1. Blair City Hall, 218 S. 16th Street, Blair, NE 68008
(k) Future Fiber Return Lines for existing and future PEG channel(s). At such time that the City
determines:
1. that the City desires the capacity to allow Subscribers in the City to receive PEG
programming (video or character generated) which may originate from schools, City
facilities, other government facilities or other designated public facilities (other than those
indicated above); or
2. that the City desires to establish or change a location from which PEG programming is
originated; or
3. that the City desires to upgrade the connection to Company from an existing signal
point of origination,
then the City shall give Company written notice detailing the location of the new point of
origination or the new capability sought by the City ("Modifications'. Company shall thereafter
respond with a written cost estimate ("Estimate') of what is necessary to implement the
Modifications within a reasonable period of time. Thereafter, the City shall have the option of
either accepting the Estimate of Company, paying for and having the Modifications performed
thereby or choosing to have the Modifications completed by a third party; provided, however,
that if the City chooses a third party to perform such Modifications, said third party must agree
to follow and be bound by the Company's standard protocols and procedures applicable to
granting access to the Cable System for non -Company personnel and equipment.
(1) PEG Technical Quality.
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1. Company shall maintain its Cable System, including the hybrid fiber/coaxial cable return
lines from the PEG programming origination points, in accordance with FCC technical standards
so that PEG programming is transported and processed by Company at the same level of technical
quality and reliability as other commercial signals carried by Company. There shall be no
significant deterioration in signal from the point of origination upstream to the point of reception
downstream on the Cable System. All processing equipment used by Company for processing
PEG signals will be of similar quality to the processing equipment used for other commercial
Channels.
2. Within twenty-four (24) hours of a written request from City to the Company identifying
a technical problem with a PEG Channel and requesting assistance, Company will provide technical
assistance or diagnostic services to determine whether or not a problem with a PEG signal is the
result of matters for which Company is responsible and if so, Company will take prompt corrective
action. If the problem is caused by or the result of the City's equipment or action, the Company
may charge the City its standard rates for a commercial service call. If the problem persists and
there is a dispute about the cause, then the parties shall meet with engineering personnel from
the Company and the City in order to determine the course of action to remedy the problem.
(m) Change in Technology. In the event the Company makes any material change in the Cable
System and related equipment and facilities or in its signal delivery technology, which requires
the City to obtain new equipment in order to be compatible with such change for purposes of the
PEG Channel, Company shall, at its own expense and free of charge to City or its designated
entities, purchase such equipment as may be necessary to facilitate the cablecasting of the PEG
Channel in accordance with the requirements of the Agreement.
(n) Relocation of Company's Headend. In the event Company relocates its headend, Company
will be responsible for replacing or restoring the then -existing capability to send and receive PEG
Channel programming at all existing locations at Company's cost so that all the functions and
capacity remain available, operate reliably and satisfy all applicable technical standards and
related obligations of the Agreement free of charge to the City or its designated entities.
(o) Additional PEG Programming Channel. The Company shall make available one (1) additional
PEG Channel to the City pursuant to this Section. City shall be financially responsible for all costs
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associated with the additional PEG Channel. Company shall only be responsible for adding the
additional PEG Channel to its lineup and shall be made available if the following criteria are met:
(i) Existing Programming on the existing PEG Channel exceeds eighteen
hours per day, at least six days per week, and this level of programming is continuous for a period
of twenty-six consecutive weeks;
(ii) At least seventy percent of such PEG programming is locally produced
programming, of which at least twelve hours per week is programming other than character
generated programming.
(iii) No more than four hours per day of PEG programming during
such twenty-six week period represents repeat programming. For the purposes of this Section
"repeat" programming shall consist of programming that has already been shown at least one time
on any PEG Channel during the preceding four weeks. The additional PEG Channel shall be made
available within one hundred twenty (120) days following the written request of the City and
verification of compliance with each of foregoing conditions and any necessary construction and
payment of costs associated with activating additional PEG channel.
(iv) At such time that the City determines it will activate the additional PEG
channel then the City shall give Company written notice detailing the location of the new point of
origination or the new PEG Channel sought by the City ("Modifications'). Company shall thereafter
respond with a written cost estimate ("Estimate's of what is necessary to implement the
Modifications within a reasonable period of time. Thereafter, the City shall have the option of
either accepting the Estimate of Company, paying for and having the Modifications performed
thereby or choosing to have the Modifications completed by a third party; provided, however,
that if the City chooses a third party to perform such Modifications, said third party must agree
to follow and be bound by the Company's standard protocols and procedures applicable to
granting access to the Cable System for non -Company personnel and equipment.
(p) Use of Unused Capacity. Whenever any PEG Channel is programmed for less than eight hours
per day, six days per week for a continuous period of not less than twenty-six consecutive weeks, the
City shall permit the Company to utilize unused channel capacity on that channel; subject to such
rules and procedures as specified by City from time to time. Any request from the Company to use
any fallow capacity designated for a PEG Channel must be submitted in writing to the City. If the City
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fails to act on the Company's request within sixty days, it shall be deemed approved. After approval,
the Company may continue to utilize the unused capacity of the channel for any other purposes it so
chooses, consistent with the Franchise, until the City determines that all or a part of such channel
capacity is needed for PEG programming. The Company shall be given not less than sixty days to
relinquish use of part of the channel back to the City. This provision shall not be construed to require
the City to rearrange or reschedule any programming upon said channel.
4.6 Maximum Number of Governmental Programming Channels. The maximum number
of PEG Channels, which may be required under this Agreement, shall be two, subject to the usage
requirements in Section 4 above.
(a) City may, upon ten (10) Business Days advance written notice to Company, but not more
than twice a year, conduct an evaluation session with Company related to Company's compliance with
the requirements of this Franchise. Topics which may be discussed at such evaluation session may
include, but are not limited to, Company's compliance with the line extension requirements set forth
herein and the terms of any agreement between the Company and any property owner, for the purpose
of verifying that such agreement complies with this Agreement. During such evaluations, and those
performance evaluations set forth in this Franchise, Company shall fully cooperate with the City and shall
provide such information and documents for review by the City as the City may reasonably require in
order to perform the evaluation that are not subject to privacy laws. The Company shall cooperate with
City during any evaluation session and shall provide such non -confidential or proprietary information and
documents as City may reasonably request to perform the review, but shall not be required to generate
new documents.
(b) At the conclusion of the evaluation, the City and the Company shall discuss the results
and determine whether any amendment to this Agreement is necessary. The parties shall negotiate in
good faith to effectuate any mutually agreed-upon amendment.
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Section 2. EVENTS OF SUBSTANTIAL BREACH AND TERMINATION.
(a) In addition to all other rights and powers retained by the City under this Agreement or
authorized by Applicable Law, the City reserves the right to terminate the Franchise and all rights and
privileges of the Company hereunder in the event of a substantial breach of its terms and conditions. A
substantial breach of its terms shall include, but shall not be limited to, the following:
(1) Repeated violations of any material provision of the Franchise or any
material rule, order, regulation or determination of the City made pursuant to the
Franchise;
(2) Attempt to dispose of or transfer the Cable System without the City's prior
written approval;
(3) Repeated and intentional attempts to evade any material provision of the
Franchise or practice any fraud or deceit upon the City or its Subscribers or
Customers;
(4) Failure to provide and maintain Cable Service as provided in this Agreement;
(5) A final, non -appealable judgment finding that the Company committed fraud
or deceit directed at the City or its Subscribers or Customers.
(6) The suspension or discontinuance of business by the Company in the City.
(7) Any denial, forfeiture, revocation or termination of this Agreement or any
portion thereof by any federal, state or local governmental authority or court of
law, which materially jeopardizes the Cable System or its operation.
(8) Company's failure to pay franchise fees or any undisputed amount due
under this Agreement after written notice from the City to the Company and a
reasonable opportunity for the Company to cure and further provided that there is
no good faith dispute between the City and Company regarding the amount of
alleged unpaid franchise fees.
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(9) Company's failure to pay any taxes, due and owing to the City or Sarpy
County Nebraska, of any kind, including, but not limited to, property and income
taxes, on or before the due date for the same; provided, however, that Company
shall not be in default with respect to any taxes that have not been paid because
they are being disputed in good faith.
(10) Dissolution or termination of the Company for any reasons.
(11) Company's voluntary or involuntary filing in bankruptcy, insolvency, or
transfer of Company's assets and or business for the benefit of creditors.
(12) or any attempt to obtain protection from creditors.
(b) The foregoing shall not constitute a substantial breach if the violation occurs but it is
without fault of the Company or occurs as a result of circumstances beyond its control or Force Majeure.
Company shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its
directors, officers or employees.
(c) Upon the occurrence of a substantial breach, as set forth above, the City may take one or
more of the following actions (in addition to, and not in limitation of, any other action, right or remedy
available at law or equity):
(1) The City may make a written demand that the Company comply with any
such provision, rule, order, or determination under or pursuant to this Franchise.
(i) If the violation by the Company 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, the City may place the issue of termination of the Franchise before
the City Council. The City shall cause to be served upon Company, at least
twenty (20) Days prior to the date of such City Council meeting, a written
notice of intent to request such termination and the time and place of the
meeting. Public notice shall be given of the meeting and issue which the
City Council is to consider.
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(ii) The City Council shall hear and consider the issue and shall hear
any Person interested therein, and shall determine in its discretion, whether
or not any violation by the Company has occurred.
(iii) If the City Council shall determine the violation by the Company
was the fault of Company and within its control, the City Council may, by
resolution, declare that the Franchise of the Company and this Agreement
shall be terminated, unless there is compliance within such period as the
City Council may fix, such period not to be less than ninety (90) Days,
provided no opportunity for compliance need be granted for fraud or
misrepresentation.
(iv) The issue of termination may automatically be placed upon the City
Council agenda at the expiration of the time set by it for compliance. The
City Council then may terminate the Franchise and this Agreement
forthwith upon finding that Company has failed to achieve compliance or
may further extend the period, in its discretion.
(v) The City or Company may terminate its rights under this Agreement
if permitted under federal or state law by providing- written notice to the
other of not less than one hundred -eighty (180) Days prior to the Effective
Date of such termination or as otherwise provided for by Applicable Laws.
(d) No provision of this Franchise shall be deemed to bar the right of the City or Company to
seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder. Neither the existence of other remedies identified in
this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the City or
Company to recover monetary damages for such violations by either Parry or to seek and obtain judicial
enforcement of either Parties's obligations by means of specific performance, injunctive relief or mandate
or any other remedy at law or in equity.
Section 3. FORECLOSURE. Upon the foreclosure or other judicial sale of all or a substantial
part of the Cable System, or upon the termination of any lease covering all or a substantial part
of the Cable System, the Company shall notify the City of such fact, and such notification shall be
36
treated as a notification that a change in control of the Company has taken place, and the
provisions of this Agreement governing the consent of the City Council to such change in control
of the Company shall apply.
ARTICLE IV. RIGHTS UPON TERMINATION
Section 1. RIGHT TO REQUIRE REMOVAL OF PROPERTY. Upon termination,
cancellation as a result of receivership, or the expiration of the term for which the Franchise is
granted provided no renewal is granted, the City shall have the right to require Company to
remove at Company's own expense all or any part of the Company's Cable System from all Streets
and public ways within the City. If Company fails to do so, the City may perform the work and
collect the cost thereof from Company. The actual cost thereof, including direct and indirect
administrative costs, shall be a lien upon all plant and property of Company effective upon filing
of the lien in accordance with Applicable Laws.
Section 2. CONTINUITY OF SERVICE MANDATORY. Company shall make its best effort
to ensure that all Subscribers receive continuous uninterrupted Cable Service so long as their
financial obligations to Company are honored. In the event of any termination of this Agreement,
whether by expiration, revocation or otherwise, or by purchase, lease -purchase, acquisition, sale,
lease, or other transfer to any other Person, including any other operator of a cable
communications franchise, Company shall cooperate fully with the City to operate the Cable
System in accordance with the terms and conditions of this Agreement through the transition, to
maintain continuity of Service to all Subscribers.
ARTICLE V. MISCELLANEOUS PROVISIONS
Section 1. NOTICES. All notices, reports, or demands required to be given in writing under
this Agreement shall be deemed to be given when delivered personally to any officer of Company
or City's authorized agent forty-eight (48) hours after it is deposited in the United States mail in
a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the
party to whom notice is being given, as follows:
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To City:
City Clerk
218 S. 1611 Street
Blair, NE 68008
With a courtesy copy to:
City Attorney
218 S. 16th Street
Blair, NE 68008
To Company:
Cox Communications Omaha, L.L.C.
11505 W. Dodge Road
Omaha, NE 68154
With a copy to:
Cox Communications
Attn: Vice President of Government Affairs
6205-B Peachtree -Dunwoody Road
Atlanta, Georgia 30328
(a) Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
(b) Company shall also maintain a local point of contact with a local or toll-free telephone
number for the conduct of matters related to this Agreement during Normal Business Hours.
Section 2. BOOKS AND RECORDS.
(a) All books and records of the Company necessary to ensure compliance with this
Agreement shall be made available to the City or its representatives at a location within the Omaha
Region or as otherwise mutually agreed to by the parties. To the extent it is necessary for City to send
representatives to a location outside of the Omaha Region to inspect Company's books and records,
Company shall be responsible for all reasonable travel costs and reasonable billable staff time incurred
by City representatives. All such documents pertaining to financial matters which may be subject to an
audit by the City shall be retained by the Company for a minimum of five (5) years.
(b) Upon request by the City, the Company agrees to provide either a list of all shareholders
holding ten percent (10%) or more of the outstanding shares of Company or a chart or similar document
stating the ownership structure of the Company that includes the ultimate parent company. Upon
request, the Company shall provide the City with copies of publicly available financial reports that the
Company files with any government agency
(c) The City may conduct full compliance audit and hold public hearings at any time during
the term of the Franchise but no more than once every (12) twelve months, provided it gives the
Company written notice thirty (30) business days in advance of the commencement of such audits and
associated hearings.
(d) Throughout the term of this Agreement, the Company shall maintain, in a file available
for public inspection during normal business hours, those documents required pursuant to the FCC's rules
and regulations.
Section 3. RELOCATION. Whenever the City, County or State of Nebraska shall require the
relocation or. reinstallation of any property of the Company, it shall be the obligation of the
Company, upon written notice of at least thirty (30) Days, to immediately remove and relocate
or reinstall said property at the expense of the Company, as may be reasonably necessary to
meet the requirements of the City, County or State. Company may charge the appropriate party
for relocations made at the request of a third party.
Section 4. ADMINISTRATION. The City Administrator or his or her designee shall be
responsible for the continued administration of the Company's Franchise.
Section S. REMOVAL OF FACILITIES. Upon termination of Service to any Subscriber, at
the written request of the Subscriber the Company shall at its own expense, promptly remove all
of its facilities and equipment from the premises of such Subscriber.
Section 6. OTHER PETITIONS AND APPLICATIONS. Upon request of the City, Company
shall provide copies of public filings considered non -confidential that are submitted by the
Company to the Federal Communications Commission, Securities and Exchange Commission, or
any other federal or state regulatory commission or agency having jurisdiction in respect to any
matters affecting the Cable System or Cable Services authorized pursuant to the Franchise.
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Section 7. COMPANY RULES AND REGULATIONS. The Company shall have the authority
to promulgate such rules, regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the Company to exercise its rights and perform its
obligations, and to assure an uninterrupted Service to each and all of its Customers. Provided,
however, that such rules, regulations, terms and conditions shall not be in conflict with the
provisions hereof or Applicable Laws.
Section 8. ADDITIONAL REPRESENTATIONS AND WARRANTIES. In addition to the
representation, warranties, and covenants of the Company to the City set forth elsewhere herein,
the Company represents and warrants to the City and agrees (which representations, warranties,
covenants and agreements shall not be affected or waived by any inspection of examination made
by or on behalf of the City) that, as of the Effective Date.
(a) The Company is a limited liability company corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is duly authorized to do business in the
State of Nebraska in the Franchise Area.
(b) The Company is in substantial compliance with all laws, ordinances, decrees and
governmental rules and regulations applicable to the Cable System and has obtained all government
licenses, permits and authorizations necessary for the operation and maintenance of the Cable System.
Section 9. PARENTAL CONTROL. The Company shall provide adequate security provisions
in its Subscriber equipment to permit parental control over the use of Cable Services on the
System consistent with federal law.
Section 10. TRANSFER OF OWNERSHIP OR CONTROL.
(a) The Company agrees that its Franchise and rights and duties under this Agreement shall
not be assigned or transferred, either in whole or in part, or leased, sublet, or mortgaged in any manner,
nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest
into any Person without the prior written consent of the City. The Company will give the City notice of
such a transfer or assignment and make itself available to respond to reasonable inquiries by the City.
However, a fundamental corporate change in Company's parent corporation or any entity having a
controlling interest in Company shall constitute a transfer and subject Company to the provisions of this
Section. This provision shall not apply to sales of property or equipment in the normal course of business.
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No consent from the City shall be required for a transfer in trust, mortgage, or other instrument of
hypothecation, in whole or in part, to secure an indebtedness The prior consent of the City shall not be
required with respect to intra -corporate transfers- or reorganizations between or among wholly owned
or controlled subsidiaries of the Company, or any Persons, directly or indirectly, controlling or controlled
by, or under common control with the Company; provided, that advance written notice of such an intra -
corporate transfer or reorganization, identifying the subsidiary or affiliated companies, shall be provided
to the City; and provided further, that any such transaction that involves a change in Control of the
Company of the Franchise shall require prior consent of the City. The City will be given at least ninety
(90) days prior written notice of any such transaction, and will be provided any such information as may
be reasonably requested by the City.
(b) Any assignee must show legal, technical and financial responsibility as determined by the
City and must agree to comply with all provisions of the Franchise. No sale or transfer thereof shall be
effective until the vendee, assignee or leasee files in the office of the City Clerk a statement duly executed
reciting the facts of such sale, assignment or lease accepting the terms of the franchise certificate and
agreeing to perform all of the conditions thereof, and said assignee shall have filed all insurance policies,
letter of credit and other documentation required by City and the assignee shall assume any and all
liabilities of the assignor under this Agreement at the time of the assignment or transfer, including but
not limited to any Franchise Fees in arrears or which would come due to the City as provided in this
Agreement. No filing of insurance policies, letter of credit and other documentation shall be required in
connection with any mortgage or other equivalent transfer in trust by the Company, which has been
approved by the City, until such time as there is a foreclosure thereunder.
(c) City shall be deemed to have consented to a proposed transfer or assignment in the event
its refusal to consent is not communicated in writing to Company within one hundred and twenty (120)
Days following receipt of written notice of the proposed transfer or assignment.
(d) The following events shall be deemed to be a sale, assignment or other transfer of the
Franchise and/or Cable System requiring compliance with this section: (i) the sale, assignment or other
transfer of all or a majority of Company's assets; (ii) the sale, assignment or other transfer of capital
stock or partnership, membership, or other equity interest in Company by one or more of its existing
shareholders, partners, members or other equity owners so as to create a new controlling interest in the
Company that is not an affiliate of Company or an affiliate of the Company's parent company; (iii) the
issuance of additional capital stock or partnership, membership or other equity interest by Company so
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as to create a new controlling interest in Company; and (iv) the entry by Company into an agreement
with respect to the management or operation of the Company and/or the System.
(e) The Company shall promptly notify the City of any actual or proposed change in, or
transfer of, or acquisition by any other party of, control of the Company. Subject to the conditions in
10(a) above that do not require consent, every change, transfer or acquisition of control of the Company
shall make the Franchise and this Agreement subject to cancellation unless and until the City shall have
consented thereto, which consent will not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of control, the City may inquire into the
qualification of the prospective controlling party, and the Company shall assist the City in any such
inquiry.
(f) The consent or approval of the City to any assignment, sale, transfer, or sublet, shall not
constitute a waiver or release of any pending violations of this Franchise and Agreement, known or
unknown to the City or Company, nor any enforcement rights of the City under the City Code or this
Franchise or this Agreement.
(g) For the purpose of determining whether it shall consent to such change, transfer, or
acquisition of control, City may inquire into the legal, technical and financial qualifications of the
prospective transferee or controlling party, and Company shall assist City in any such inquiry. In seeking
City's consent to any change of ownership or control, Company shall have the responsibility of insuring
that the transferee completes an application in form of FCC Form 394. The application shall be submitted
to City not less than ninety (90) Days prior the date of transfer. The transferee shall be required to
establish that it possesses the legal, technical and financial qualifications to operate and- maintain the
System and comply with all Franchise requirements for the remainder of the term of the Franchise. If,
after considering the legal, technical, and financial qualities of the application and determined that they
are satisfactory, the City finds that such transfer is acceptable, the City shall transfer and assign the
rights and obligations of such Franchise. The consent of the City shall not be unreasonably denied.
(h) Company shall notify City in writing of any foreclosure or any other judicial sale of all or a
substantial part of the Franchise property of the Company or upon termination of any lease or interest
covering all or a substantial part of said Franchise property. Such notification shall be considered by City
as notice that a change in control of ownership or the Franchise has taken place and the provisions under
this section governing the consent of City to such change in control of ownership shall apply.
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(i) Any financial institution having a pledge of the Company or its assets for the advancement
of money for the construction and/or operation of the Franchise shall have the right to notify the City
that it or its designee satisfactory to the City shall take control of and operate the Cable Television
System, in the event of a Company default in its financial obligations. Further, said financial institution
shall also submit a plan for such operation within thirty (30) Days of assuming such control that will
insure continued service and compliance with all Franchise requirements during the term the financial
institution exercises control over the System. The Financial institution shall not exercise control over the
System for a period exceeding one (1) year unless extended by the City in its discretion and during said
period of time it shall have the right to petition the City to transfer the Franchise to another Company.
Section 11. EMINENT DOMAIN. Nothing herein shall be deemed or construed to impair or
affect, in any way to any extent, the right of the City to acquire the property of the Company
through the exercise of eminent domain, at a fair and just value, which shall not include any
amount for the Franchise itself or for any of the rights or privileges granted, or for relocation, and
nothing shall be construed to contract away or to modify or abridge, either for a term or in
perpetuity, the City's right to eminent domain.
Section 12. COMPANY TO HAVE NO RECOURSE. Except as expressly provided in this
Agreement, the Company herein shall have no recourse whatsoever against the City for any loss,
cost or expense or damage arising out of any of the provisions or requirements of this Agreement
or law or because of the enforcement thereof by the City, nor for the failure of the City to have
the authority to grant all or any part of any franchise. The Company expressly acknowledges that,
in accepting its Franchise by executing this Agreement, it did so relying upon its own investigation
and understanding of the power and authority of the City to grant a franchise. By accepting its
Franchise and becoming signatory hereto, the Company acknowledges that it has not been
induced to enter into this Agreement by any understanding or promise or other statement,
whether verbal or written, by or on behalf of the City or by any other third Person concerning any
term or condition not expressed herein. The Company further acknowledges by the acceptance
of its Franchise that it has carefully read the terms and conditions hereof, and of law, and is
willing to and does accept all of the risks of the meaning of such terms and conditions. All Parties
have participated in the drafting of this Agreement and have approved all of its terms and
provisions. Accordingly, the Parties waive the application of any rule of law to the effect that
43
ambiguous or conflicting terms or provisions shall be interpreted or construed against the Party
who prepared the executed document.
Section 13. FAILURE OF CITY TO ENFORCE THIS AGREEMENT— NO WAIVER OF THE
TERMS THEREOF. The Company shall not be excused from complying with any of the terms or
conditions of this Agreement of the law by any failure of the City upon any one or more occasions
to insist upon or to seek compliance with any such terms or conditions.
Section 14. TIME ESSENCE OF THIS AGREEMENT. Whenever this Agreement shall set
forth any time for any action to be performed by or on behalf of the Company, such time shall
be deemed of the essence and any failure of the Company to perform within the time allotted
may be sufficient grounds for the City to seek termination or other appropriate remedy.
Section 15. DELAYS AND FAILURE BEYOND THE CONTROL OF THE COMPANY.
Notwithstanding any other provision of this Agreement, the Company shall not be liable for delay
in performance of, or failure to perform, in whole or in part, its obligation pursuant to this
Agreement due to, including but not limited to, strike, war or act of war (whether any actual
declaration of war is made or not), insurrection, riot, act or public enemy, accident, fire, flood or
other act of God, health crisis, technical failure, sabotage, or other events beyond its control. In
the event that such delay in performance or failure to perform affects only part of the Company's
capacity to perform, the Company shall perform to the maximum extent it is able to do so and
shall take all such steps within its power to correct such cause(s). The Company agrees that in
correcting such cause(s), it shall take reasonable steps to do so in as expeditious a manner as
possible.
Section 16. ABANDONMENT. Any property abandoned by the Company shall become, at the
option of the City, property of the City and the Company agrees to execute and deliver an
instrument in writing, transferring its ownership interest in any such property to the City.
Section 17. NON-DISCRIMINATION. The Company shall at all times comply with all Equal
Employment Opportunity Federal, State and local laws, as may be amended from time to time.
Section 18. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted transferees and assigns. All
of the provisions of this Agreement apply to the Company, its successors and assigns.
M.
Section 19. ENTIRE AGREEMENT. This Agreement embodies the entire understanding and
agreement of the City and the Company with respect to the subject matter hereof and merges
and supersedes all prior representations, agreements, and understandings, whether oral or
written, between the City and the Company with respect to the subject matter hereof, including,
without limitation, all prior drafts of this Agreement and any and all written or oral statements or
representations by any official, employee, agent, attorney, consultant or independent contractor
of the City or the Company.
Section 20. MODIFICATION. Except as otherwise provided in this Agreement or applicable
law, no provision of this Agreement, shall be amended or otherwise modified, in whole or in part,
except by an instrument, in writing, duly executed by the City and the Company, which
amendment shall be authorized on behalf of the City through the adoption of an appropriate
resolution or order by the City, as required by applicable law. The parties recognize the right of
the City to adopt or amend local ordinances pursuant to its authority under the laws of the State
of Nebraska, and the Company agrees to abide by such ordinances, except to the extent contrary
to the Company's contractual rights under this Agreement.
Section 21. GOVERNING LAW. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Nebraska, the Cable Act, any applicable rules,
regulations and orders of the FCC and any other applicable local, State and federal laws, rules,
regulations, legislation or orders (such as now exist, are later amended or subsequently adopted)
provided, however, that such amendments enacted or modified after the effective date of this
Agreement shall be reasonable and not materially modify the terms of this Agreement.
The Parties agree that if the terms of this Agreement and Blair City Code Article 19 are in conflict,
the terms of this Agreement control unless the Blair City Code Article 19 section is specifically
referenced as to that section of this Agreement in which case the Parties agree the terms of the
Blair City Code Article 19 Section will apply.
Section 22. CLAIMS UNDER AGREEMENT. The City and the Company, agree that, except
to the extent otherwise permitted by the Cable Act, any and all claims asserted by or against the
45
City arising under this Agreement or related thereto shall be heard and determined either in a
court of the United States ("Federal Court's located in Nebraska or in a court of the State of
Nebraska of appropriate jurisdiction. To effectuate this Agreement and intent, the Company
agrees that if the City initiates any actions against the Company in Federal Court or in a Nebraska
Court, service of process may be made on the Company either in person, wherever such Company
may be found, or by registered mail addressed to the Company at its office in the Franchise Area
as required by this Agreement, or to such other address as the Company may provide to the City
in writing.
Section 23. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion
of this Agreement is for any reason held or declared invalid or unconstitutional, in whole or in
part by any court, agency, commission, or other judicial body of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and such holding shall
not affect the validity of the remaining portions thereof, which other portions shall remain in full
force and effect
Section 24. EFFECTIVE DATE OF AGREEMENT. This Agreement shall be effective from and
after execution of the same by the City. This Agreement shall remain in effect throughout the
length of the term stated above in this Agreement, unless mutually terminated by the parties
hereto, or otherwise concluded in accordance with the provisions hereof or Applicable Law.
Section 25. E -Verify Provisions - NEW EMPLOYEE WORK ELIGIBILITY STATUS. The
Company is required and hereby agrees to use a federal immigration verification system to
determine the work eligibility status of new employees physically performing service within the
State of Nebraska. A federal immigration verification system means the electronic verification of
the work authorization program authorized by the Illegal Immigration .Reform and Immigrant
Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E -Verify Program, or an equivalent
federal program designated by the United States Department of Homeland Security or other
federal agency authorized to verify the work eligibility status of a newly hired employee.
[End of Agreement]
IN WITNESS WHEREOF, the foregoing Agreement is dated this i 4l day of
DC6,— r er' , 2021.
Attest:
Brenda Wheeler, City Clerk
ATTEST:
Secretary
47
CITY OF BLAIR, NEBRASKA
I C;;_> �-I —
Richard Hansen, Mayor
Cox Communication Omaha, L.L.C.
(Ttle)
Exhibit A
FCC Customer Service rules
76.309 Customer service obligations.
(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (c) of this section against cable operators. The franchise authority must provide
affected cable operators ninety (90) days written notice of its intent to enforce the standards.
(b) Nothing in this rule should be construed to prevent or prohibit:
(1) A franchising authority and a cable operator from agreeing to customer service
requirements that exceed the standards set forth in paragraph (c) of this section;
(2) A franchising authority from enforcing, through the end of the franchise term, pre-existing
customer service requirements that exceed the standards set forth in paragraph (c) of this
section and are contained in current franchise agreements;
(3) Any State or any franchising authority from enacting or enforcing any consumer protection
law, to the extent not specifically preempted herein; or
(4) The establishment or enforcement of any State or municipal law or regulation concerning
customer service that imposes customer service requirements that exceed, or address matters
not addressed by the standards set forth in paragraph (c) of this section.
(c) Cable operators are subject to the following customer service standards:
(1) Cable system office hours and telephone availability -
(i) The cable operator will maintain a local, toll-free or collect call telephone access line
which will be available to its subscribers 24 hours a day, seven days a week.
(A) Trained company representatives will be available to respond to customer telephone
inquiries during normal business hours.
(B) After normal business hours, the access line may be answered by a service or an
automated response system, including an answering machine. Inquiries received after
normal business hours must be responded to by a trained company representative on the
next business day.
(ii) Under normal operating conditions, telephone answer time by a customer representative,
including wait time, shall not exceed thirty (30) seconds when the connection is made. If the
call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less than ninety (90) percent of the time under normal operating
conditions, measured on a quarterly basis.
(iii) The operator will not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards above unless an historical record of
complaints indicates a clear failure to comply.
(iv) Under normal operating conditions, the customer will receive a busy signal less than
three (3) percent of the time.
(v) Customer service center and bill payment locations will be open at least during normal
business hours and will be conveniently located.
(2) Installations, outages and service calls. Under normal operating conditions, each of the
following four standards will be met no less than ninety-five (95) percent of the time measured
on a quarterly basis:
(i) Standard installations will be performed within seven (7) business days after an order has
been placed. "Standard" installations are those that are located up to 125 feet from the
existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the cable operator will begin
working on "service interruptions" promptly and in no event later than 24 hours after the
interruption becomes known. The cable operator must begin actions to correct other service
problems the next business day after notification of the service problem.
(iii) The "appointment window" alternatives for installations, service calls, and other
installation activities will be either a specific time or, at maximum, a four-hour time block
during normal business hours. (The operator may schedule service calls and other installation
activities outside of normal business hours for the express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer after the close of business
on the business day prior to the scheduled appointment.
(v) If a cable operator representative is running late for an appointment with a customer and
will not be able to keep the appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which is convenient for the
customer.
(3) Communications between cable operators and cable subscribers -
(i) Refunds - Refund checks will be issued promptly, but no later than either -
(A) The customer's next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or
(B) The return of the equipment supplied by the cable operator if service is terminated.
(ii) Credits - Credits for service will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted.
(4) Definitions -
(i) Norma/ business hours - The term "normal business hours" means those hours during
which most similar businesses in the community are open to serve customers. In all cases,
"normal business hours" must include some evening hours at least one night per week
and/or some weekend hours.
(ii) Norma/ operating conditions - The term "normal operating conditions" means those
service conditions which are within the control of the cable operator. Those conditions which
are notwithin the control of the cable operator include, but are not limited to, natural
disasters, civil disturbances, power outages, telephone network outages, and severe or
unusual weather conditions. Those conditions which are ordinarily within the control of the
cable operator include, but are not limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
(iii) Service interruption - The term "service interruption" means the loss of picture or sound
on one or more cable channels.
§ 76.1602 Customer service - general information.
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(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (b) of this section against cable operators. The franchise authority must provide
affected cable operators 90 days written notice of its intent to enforce standards.
(b) The cable operator shall provide written information on each of the following areas at the
time of installation of service, at least annually to all subscribers, and at any time upon request:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of subscription to programming
and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the cable service;
(5) Channel positions of programming carried on the system; and
(6) Billing and complaint procedures, including the address and telephone number of the local
franchise authority's cable office.
(7) Effective May 1, 2011, any assessed fees for rental of navigation devices and single and
additional CableCARDs; and,
(8) Effective May 1, 2011, if such provider includes equipment in the price of a bundled offer of
one or more services, the fees reasonably allocable to:
(i) The rental of single and additional CableCARDs; and
(ii) The rental of operator -supplied navigation devices.
(c) Subscribers shall be advised of the procedures for resolution of complaints about the quality
of the television signal delivered by the cable system operator, including the address of the
responsible officer of the local franchising authority.
§ 76.1603 Customer service - rate and service changes.
(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (b) of this section against cable operators. The franchise authority must provide
affected cable operators 90 days written notice of its intent to enforce standards.
51
(b) Customers will be notified of any changes in rates, programming services or channel
positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty
(30) days in advance of such changes if the change is within the control of the cable operator.
In addition, the cable operator shall notify subscribers 30 days in advance of any significant
changes in the other information required by § 76.1602.
(c) In addition to the requirement of paragraph (b) of this section regarding advance
notification to customers of any changes in rates, programming services or channel positions,
cable systems shall give 30 day's written notice to both subscribers and local franchising
authorities before implementing any rate or service change. Such notice shall state the precise
amount of any rate change and briefly explain in readily understandable fashion the cause of
the rate change (e.g., inflation, change in external costs or the addition/deletion of channels).
When the change involves the addition or deletion of channels, each channel added or deleted
must be separately identified. For purposes of the carriage of digital broadcast signals, the
operator need only identify for subscribers, the television signal added and not whether that
signal may be multiplexed during certain dayparts.
(d) A cable operator shall provide written notice to a subscriber of any increase in the price to
be charged for the basic service tier or associated equipment at least 30 days before any
proposed increase is effective. If the equipment is provided to the consumer without charge
pursuant to § 76.630, the cable operator shall provide written notice to the subscriber no more
than 60 days before the increase is effective. The notice should include the price to be charged,
and the date that the new charge will be effective, and the name and address of the local
franchising authority.
(e) To the extent the operator is required to provide notice of service and rate changes to
subscribers, the operator may provide such notice using any reasonable written means at its
sole discretion.
(f) Notwithstanding any other provision of part 76 of this chapter, a cable operator shall not be
required to provide prior notice of any rate change that is the result of a regulatory fee,
franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal
agency, State, or franchising authority on the transaction between the operator and the
subscriber.
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§ 76.1619 Information on subscriber bills.
(a) Effective July 1, 1993, bills must be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service charges and
equipment charges. Bills will also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
(b) In case of a billing dispute, the cable operator must respond to a written complaint from a
subscriber within 30 days. The required response may be delivered by email, if the consumer
used email to make the request or complaint directly to the cable operator, or if the consumer
specifies email as the preferred delivery method in the request or complaint.
(c) A cable franchise authority may enforce the customer service standards set forth in this
section against cable operators. The franchise authority must provide affected cable operators
90 days written notice of its intent to enforce standards.
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