Legislation # 07-0153 Enactment Number none
Type Ordinance - Non-Coded Effective Date none
Introduction Date 3/28/2007
Title An Ordinance Cable Franchise Granting a Cable Service Franchise to Cavalier IP, TV, LLC
 
Legislation History 07-0153
DateNotice Of ActionDescription
4/11/2007 Adopted on First and Final Reading
4/11/2007 Moved to waive the second reading.
3/28/2007 Deferred (4/11/2007)
3/14/2007 Received By Clerk's Office
 
View Attachments 07-0153
FileTypeSizeDescription
CAVALIER-SUMMARY OF THE ORDINANCE CABLE FRANCHISE.doc Exhibit 48K Summary of Cavalier Cable Franchise
Ordinance Cable Franchise-Cavalier (redline)(3-26-07).doc Other 313K Red-lined version of ordinance
 
Legislation Text 07-0153

 

City of Hampton, Virginia

Ordinance - Non-Coded

22 Lincoln Street

Hampton, VA 23669

www.hampton.gov

 

File Number: 07-0153

 

Enactment Number: -

 

An Ordinance Cable Franchise Granting a Cable Service Franchise to Cavalier IP, TV, LLC

 

 

ORDINANCE CABLE FRANCHISE GRANTING A

CABLE SERVICE FRANCHISE BY THE

CITY OF HAMPTON, VIRGINIA TO

CAVALIER IP, TV, LLC


TABLE OF CONTENTS

 

1. DEFINITIONS 7

(a) Act 1

(b) Affiliate 1

(c) Applicable Law 2

(d) Application 2

(e) Basic Service Tier 2

(f) Cable Operator 2

(g) Cable Service or Service 2

(h) Cable System or Cable Television System or System 2

(i) Certificated Provider of Telecommunications Services 3

(j) City or Locality 3

(k) Confidential Information or Confidentiality 3

(l) Force Majeure 3

(m) Franchise 4

(n) Franchise Area 4

(o) Gross Revenue 4

(p) Interactive On Demand Services 5

(q) Ordinance Cable Franchise or Ordinance 5

(r) PEG Access Channels 5

(s) PEG Capital Fee 5

(t) PEG Capital Grant Surcharge Fee 5

(u) Public Rights-of-Way 5

(v) Subscriber 6

(w) Transfer 6

(x) Video Programming 6

(y) Virginia Act 7

2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 7

(a) Grant of Authority 7

(b) Area Served 7

(c) Term 7

(d) Grant Not Exclusive 8

(e) Compliance with Applicable Law 8

(f) Effect of Acceptance 8

(g) No Waiver 8

(h) No Recourse 9

3. TRANSFERS 9

4. PROVISION OF CABLE SERVICE 9

(a) Availability of Cable Service 9

(b) Extension of Service Requirements 10

 

5. CONSTRUCTION AND MAINTENANCE 12

(a) System Tests and Inspections 12

(b) Publicizing Proposed Construction Work 12

 

6. SYSTEM FACILITIES, EQUIPMENT AND SERVICES 13

(a) System Characteristics 13

(b) Closed Captioning and Descriptive Audio Service 13

(c) Parental Control Devices 13

(d) Technical Standards 13

(e) Leased Access Channels 14

(f) Emergency Alert System 14

(g) Use of Poles and Conduits 14

 

7. SERVICES AND PROGRAMMING 14

(a) Programming 14

(1) Broad Programming Categories 14

(b) Special Programming 15

(c) Deletion or Reduction of Programming Categories 15

 

8. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND

GOVERNMENTAL USE 16

(a) PEG Access Channels and Programming 16

(1) PEG Channels 16

(2) Additional PEG Channels 16

(3) Interconnection 17

(b) Service to Certain Facilities 18

(c) PEG Capital Grant Surcharge 18

(d) Payments Not Franchise Fees 19

(e) Payment Schedule 19

 

9. PERIODIC REVIEW 19

(a) Periodic Evaluation, Review and Modification 19

 

10. FRANCHISE FEE 21

(a) Payment to Locality 21

(b) Supporting Information 22

(c) Late Payments 22

(d) Audit 22

(e) No Limitation on Taxing Authority 23

 

11. CUSTOMER SERVICE 24

12. INSURANCE AND INDEMNIFICATION 24

(a) Indemnification Against Liability 24

(b) Duty to Defend 25

(c) No Liability Against Locality 25

(d) General Comprehensive Liability Insurance Policy 25

(e) Workers Compensation Insurance 26

(f) Additional Insured, Primary Coverage and Defense 26

(g) Notice 26

(h) Filing of Certified Copy with Locality 27

(i) Increase in Policy Limits 27

(j) Subrogation 28

(k) Third Parties 28

 

13. PERFORMANCE GUARANTEES AND REMEDIES 28

(a) Bond 28

(b) Remedies 29

(c) Liquidated Damages 30

(d) Revocation or Termination of Franchise 31

(e) Rights Cumulative 32

 

14. OPERATIONS AND REPORTING PROVISIONS 32

(a) Open Books and Records 32

(b) Communications with Regulatory Agencies 33

(c) Annual Report 33

(d) Additional Reports 34

(e) Maps 35

 

15. MISCELLANEOUS PROVISIONS 35

(a) Binding Acceptance 35

(b) Severability 35

(c) Compliance with Federal and State Laws 35

(d) Each Party Bears Its Own Costs 35

(e) Force Majeure 36

(f) Third Party Beneficiaries 36

(g) No Evasion 36

(h) Governing Law 36

(i) Notices 36

(j) Time of Essence 37

(k) Captions and References 37

(l) Understanding and Consent 37

 

16. ACCEPTANCE 38

(a) Effective Date 38

(b) Time of Acceptance 38

 

EXHIBIT A. INITIAL SERVICE AREAS 40

EXHIBIT B. FRANCHISE FEE WORKSHEET 41

EXHIBIT C. CUSTOMER SERVICE STANDARDS 42


ORDINANCE NO. ________

 

 

AN ORDINANCE CABLE FRANCHISE ADOPTED PURSUANT TO VIRGINIA AND OTHER APPLICABLE LAW CREATING A FRANCHISE APPLICABLE TO THE CONSTRUCTION, OPERATION AND MAINTENANCE OF A CABLE SYSTEM BY CAVALIER IP TV, LLC IN THE CITY OF HAMPTON, VIRGINIA AND PROVIDING FOR FEES, SERVICES, AND ENFORCEMENT BY CITY FOR A TERM OF FIFTEEN YEARS

 

 

It is ordained as follows:

 

PREAMBLE

 

The City Council of the City of Hampton, Virginia adopts this Ordinance to comply with Applicable Law based on a request received by City on December 15, 2006, from Cable Operator for an Ordinance Cable Franchise.

 

1. DEFINITIONS.

 

As used in this Ordinance Cable Franchise, the following terms, phrases, words, and 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 always mandatory and not merely directory. Words not defined shall be given their common and ordinary meaning.

(a) Act means the federal Communications Act of 1934, as amended.

(b) Affiliate means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.

(c) Applicable Law means the Act, the Virginia Act, the Master Cable Ordinance of the City of Hampton, and such state and federal laws and rules and City ordinances as may govern the construction, operation, and maintenance of a Cable System.

(d) Application means the application based upon the requirements of the Citys Master Cable Ordinance, and identified in the Hampton City Code at Chapter 9.1.

(e) Basic Service Tier means the service tier that includes (i) the retransmission of local television broadcast channels and (ii) public, educational, and governmental channels required to be carried in the basic tier.

(f) Cable Operator means Cavalier IP TV, LLC.

(g) Cable Service or Service means the one-way transmission to Subscribers of (i) video programming or (ii) other programming service, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Cable Service does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. 332(d).

(h) Cable System or Cable Television System or System means any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service that includes video programming and that is provided to multiple Subscribers within a community, except that such definition shall not include (i) a system that serves fewer than twenty (20) Subscribers; (ii) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (iii) a facility that serves only Subscribers without using any public right-of-way; (iv) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. 201 et seq., except that such facility shall be considered a Cable System to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (v) any facilities of any electric utility used solely for operating its electric systems; (vi) any portion of a system that serves fewer than fifty (50) Subscribers in any locality, where such portion is a part of a larger system franchised in an adjacent locality; or (vii) an open video system that complies with 653 of Title VI of the Communications Act of 1934, as amended, 47 U.S.C. 573.

(i) Certificated Provider of Telecommunications Services means a person holding a certificate issued by the State Corporation Commission to provide local exchange telephone service.

(j) City or Locality means the City of Hampton, Virginia.

(k) Confidential Information or Confidentiality means such information or disclosures made to City by Cable Operator where pursuant to applicable open records and Data Practices law in the Virginia Code Ann., included in Section 2.2-3705.6 may be disclosed, when requested by Cable Operator will not be publicly disclosed.

(l) Force Majeure means an event or events reasonably beyond the ability of the Cable Operator to anticipate and control. Force Majeure includes, but is not limited to, acts of God, incidences of terrorism, war or riots, labor strikes or civil disturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes, tornadoes, governmental actions and restrictions, work delays caused by waiting for utility providers to service or monitor or provide access to utility poles to which the Cable Operator's facilities are attached or to be attached or conduits in which the Cable Operator's facilities are located or to be located, and unavailability of materials or qualified labor to perform the work necessary.

(m) Franchise means an initial authorization, or renewal thereof, issued by the Locality, that authorizes the construction, operation, and maintenance of a Cable System.

(n) Franchise Area means throughout the whole area of the City of Hampton, Virginia.

(o) Gross Revenue means all revenue, as determined in accordance with generally accepted accounting principles, that is actually received by the Cable Operator and derived from the operation of the Cable System to provide Cable Services in the Franchise Area. The term shall not include: (i) refunds or rebates made to Subscribers or other third parties; (ii) any revenue which is received from the sale of merchandise over home shopping channels carried on the Cable System, but not including revenue received from home shopping channels for the use of the Cable Service to sell merchandise; (iii) any tax, fee, or charge collected by the Cable Operator and remitted to a governmental entity or its agent or designee, including without limitation a local public access or education group; (iv) program launch fees; (v) directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement, and electronic publishing; (vi) a sale of Cable Service for resale or for use as a component part of or for the integration into Cable Services to be resold in the ordinary course of business, when the reseller is required to pay or collect franchise fees or similar fees on the resale of the Cable Service; (vii) revenues received by any Affiliate or any other person in exchange for supplying goods or services used by the Cable Operator to provide Cable Service; and (viii) revenue derived from services classified as non-cable services under federal law, including, without limitation, revenue derived from telecommunications services and information services, and any other revenues attributed by the Cable Operator to non-cable services in accordance with rules, regulations, standards, or orders of the Federal Communications Commission.

(p) Interactive On-Demand Services means a service providing video programming to Subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.

(q) Ordinance Cable Franchise or Ordinance means this Ordinance granting a Franchise to the Cable Operator pursuant to Applicable Law.

(r) PEG Access Channels means the availability of capacity on a Cable System for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the Locality and its designated access providers, to acquire, create, and distribute programming not under a Cable Operators editorial control.

(s) PEG Capital Fee means a recurring fee paid by a Cable Operator to support the capital costs of PEG Access Facilities, including institutional networks.

(t) PEG Capital Grant Surcharge Fee means a fee paid by a new Cable Operator equal to the lower of (i) one and one‑half percent (1.5%) of the new Cable Operator's Gross Revenues derived from the operation of its Cable System in the Franchise Area or (ii) the lowest amount of capital contribution paid or provided in-kind, as shown on the books of the existing Cable Operator in the Franchise Area (a) when such capital contribution is amortized over the term of the existing Cable Operator's franchise and (b) divided by the number of Subscribers or annual Gross Revenue of the existing Cable Operator as shown on its most recent report to the Locality, depending on recovery methodology chosen by the Locality.

(u) Public Rights-of-Way means the surface, the airspace above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, or drive, including public utility easements or rights-of-way, and any temporary or permanent fixtures or improvements located thereon, now or hereafter held by the Locality which shall entitle the Locality and a Cable Operator to the use thereof for the purpose of installing and maintaining a cable System.

(v) Subscriber means the Locality or any person who is lawfully receiving, for any purpose or reason, any Cable Service via the Cable Operators Cable System, whether or not a fee is paid for such Service.

(w) Transfer means any transaction in which (i) an ownership or other interest in the Cable Operator is transferred, directly or indirectly, from one (1) person or group of persons to another person or group of persons, so that majority control of the Cable Operator is transferred; or (ii) the rights and obligations held by the Cable Operator under the Cable Franchise granted under this Ordinance are transferred or assigned to another person or group of persons. However, notwithstanding clauses (i) and (ii) of the preceding sentence, a transfer of the Cable Franchise shall not include (a) transfer of an ownership or other interest in the Cable Operator to the parent of the Cable Operator or to another Affiliate of the Cable Operator; (b) transfer of an interest in the Cable Franchise granted under this Ordinance or the rights held by the Cable Operator under the Cable Franchise granted under this Ordinance to the parent of the Cable Operator or to another Affiliate of the Cable Operator; (c) any action that is the result of a merger of the parent of the Cable Operator; (d) any action that is the result of a merger of another Affiliate of the Cable Operator; or (e) a transfer in trust, by mortgage, or by assignment of any rights, title, or interest of the Cable Operator in the cable franchise or the system used to provide cable in order to secure indebtedness.

(x) Video Programming means programming provided by, or generally considered comparable to, programming provided by a television broadcast station.

(y) Virginia Act means Va. Code Ann.  15.2‑2108.9, et seq. as amended.

 

2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS

(a) Grant of Authority: After review of the Application and adoption of this Ordinance and further by operation of Applicable Law, including the Virginia Act  15.2‑2108.21, and upon acceptance by Cable Operator as provided for in this Ordinance, this Ordinance and the Franchise granted to Cable Operator is deemed to be effective as of December 15, 2006. The Franchise granted to the Cable Operator by this Ordinance is for construction and operation of its System subject to the applicable terms and conditions of this Ordinance, and all Applicable Law. The Cable Operator has the right to construct, reconstruct, operate and maintain its System within the Public Rights-of-Way as set forth below. This Franchise Cable Ordinance neither authorizes the Cable Operator to use the Public Rights‑of‑Way for purposes of providing any service other than the Service, nor prohibits the Cable Operator from doing so. The Cable Operators authority to provide non-cable service shall be subject to Applicable Law. No privilege or power of eminent domain is bestowed by this Ordinance.

(b) Area Served: The Franchise granted hereunder is for the Initial Service Area identified by the Cable Operator and depicted in maps associated hereto in Appendix A, extension of the Cable System to other portions of the Franchise Area shall be in accordance with this Ordinance as set forth below.

(c) Term: This Franchise shall extend for a term of fifteen (15) years, commencing on effective date set forth above, unless it is earlier revoked as provided herein or other Applicable Law.

(d) Grant Not Exclusive: This Ordinance and the Franchise and the right it grants to Cable Operator to use and occupy the Public Rights‑of‑Way shall not be exclusive, and the Locality reserves the right to grant other franchises for similar uses or for other uses of the Public Rights-of-Way, or any portions thereof, to any person, or to make any such use itself, at any time, in accordance with Applicable Law.

(e) Compliance with Applicable Law: The Cable Operator shall comply with this Ordinance and all Applicable Law subject to exercise of City police powers its rights under Applicable Law to exercise its governmental powers to their full extent.

(f) Effect of Acceptance: By Accepting the Franchise the Cable Operator:

(1) Accepts and agrees to comply with this Ordinance and all Applicable Laws;

(2) Agrees that this Ordinance was adopted pursuant to processes and procedures consistent with Applicable Law; that no provision, condition or term of this Ordinance at the time of the acceptance of the Franchise granted by this Ordinance was unlawful, unreasonable or arbitrary, void or unenforceable.

(g) No Waiver:

(1) The failure of the Locality on one (1) or more occasions to exercise a right or to require compliance or performance under this Ordinance or any other Applicable Law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the Locality, nor to excuse the Cable Operator from complying or performing, unless such right or such compliance or performance has been specifically waived in writing.

(2) No waiver by the Locality of any breach or violation of any provision of this Ordinance shall be deemed to be a waiver or a continuing waiver by the Locality of any subsequent breach or violation of the same or any other provision. Neither the granting of this Ordinance, nor any provision herein, nor any action by the Locality hereunder shall constitute a waiver of or a bar to the exercise of any governmental right or power of the Locality, including without limitation the right of eminent domain.

(h) No Recourse: Without limiting such immunities as the Locality or other persons may have under Applicable Law, the Cable Operator shall have no monetary recourse against the Locality or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of (i) the construction, operation or repair of its System; or (ii) the acts or omissions of the Locality or any other entity using the Public Rights‑of‑Way or other property under the Localitys control, except acts and omissions of the Locality that involve gross negligence or intentional or criminal misconduct by the Locality.

 

3. TRANSFERS

 

The Cable Operator shall not Transfer the Franchise granted herein without the prior written consent of the Locality, provided that such consent shall not be unreasonably withheld, delayed, or conditioned. No Transfer shall be made to a person, group of persons or Affiliate that is not legally, technically, and financially qualified to operate the Cable System and satisfy the Franchise obligations.

 

4. PROVISION OF CABLE SERVICE

(a) Availability of Cable Service: The Cable Operator shall make Service available (i) up to all of the occupied residential dwelling units in the Initial Service Areas as depicted/described in Exhibit A within three (3) years from the date of the Franchise, subject to the limitations set forth in 4(b)(1), below and (ii) no less than sixty-five percent (65%) of the residential dwelling units in the area in the Locality in which the Cable Operator has its telephone facilities, within no less than seven (7) years from the date of the Franchise. The Locality shall have the right to monitor and inspect the deployment of Cable Services and the Cable Operator shall submit semiannual progress reports detailing the current provision of Cable Services in accordance with the deployment schedule and its new service area plans for the next six months. The reports shall include visual (graphic, mapping) or written descriptions of actual geographic boundaries of the service areas identified in this section.

(b) Extension of Service Requirements:

(1) The Cable Operator shall not be required to make the Service available: (a) for periods of Force Majeure; (b) for periods of delay caused by the Locality; (c) for periods of delay resulting from the Cable Operators inability to obtain authority to access rights-of-way in the service area; (d) in areas where developments or buildings are subject to claimed exclusive arrangements; (e) in developments or buildings that the Cable Operator cannot access under industry standard terms and conditions after good faith negotiation; (f) in developments or buildings that the Cable Operator is unable to provide the Service for technical reasons or that require facilities that are not available or cannot be deployed on a commercially reasonable basis; (g) in areas where it is not technically feasible to provide the Service due to the technology used by the Cable Operator to provide the Service; (h) in areas where the average occupied residential household density is less than thirty (30) occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the Cable Operators active System; and (i) when the Cable Operators prior service, payment, or theft of service history with a Subscriber or potential Subscriber has been unfavorable.

(2) Should, through new construction, an area within the Cable Operators Service Area meet the density requirement, the Cable Operator shall, subject to the exclusions in this Section 4(b), provide Service to such area within six (6) months of receiving notice that the density requirements have been met.

(3) The Locality shall not require Cable Operator to use its telephone facilities to provide Cable Service outside of the area in the Locality in which the Cable Operator has its telephone facilities.

(4) During the twelve (12) month period commencing after the seventh (7th) year anniversary date of the grant of this Franchise Ordinance, the Locality may, by ordinance adopted after a public hearing in which the Locality specifically finds that such a requirement is necessary to promote competition in Cable Services within the Locality, require the Cable Operator to make Service available to eighty percent (80%) of the residential dwelling units in the area in the Locality in which the Cable Operator has its telephone facilities within no less than ten (10) years of the date of the grant of the Franchise, subject to the exclusions in clauses (a) through (i) of Section 4(b) above. If the Cable Operator notifies the Locality that it is unwilling to accept this additional service availability requirement, the Locality may, after notice and public hearing, terminate this Ordinance Cable Franchise.

(5) The Cable Operator shall file a certificate with the Locality at its third (3rd) and seventh (7th), and if applicable, tenth (10th), anniversary dates certifying its compliance with the foregoing service requirements.

(c) If within three (3) years after the grant of this Ordinance the Cable Operator notifies the Locality that its provision of Cable Services within the Locality is no longer economically feasible, it may surrender this Franchise for the entire Locality without liability. If the Cable Operator surrenders this Franchise, it shall not be eligible to obtain a new Cable Service Franchise within the Locality until after the normal expiration date of this Ordinance.

 

5. CONSTRUCTION AND MAINTENANCE

 

(a) System Tests and Inspections:

(1) The Cable Operator shall conduct tests upon the Localitys request to ensure that its System is functioning in compliance with Applicable Laws and regulations, including Federal Communications Commission signal leakage requirements, and make the results of such tests available to the Locality to verify such compliance. Such results shall be held proprietary and confidential. If any such test indicates that any part or component of the System fails to meet applicable requirements, the Cable Operator, without requirement of additional notice or request from Locality, shall take corrective action, retest the locations and advise the Locality of the action taken and results achieved.

(2) The Locality may conduct inspections of construction areas and Subscriber installations, including but not limited to inspections to assess compliance with the Cable Operator's construction and installation requirements, this Agreement and Applicable Law generally. Inspection does not relieve the Cable Operator of its obligation to build in compliance with all provisions of the Franchise.

(b) Publicizing Proposed Construction Work: The Cable Operator shall notify the public prior to commencing any proposed construction that will significantly disturb or disrupt public property or have the potential to present a danger or affect the safety of the public generally. The Cable Operator shall publicize proposed construction work at least one (1) week prior to commencement of that work by causing written notice of such construction work to be delivered to the Localitys public works department and by notifying those Persons most likely to be affected by the work in at least two (2) of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, or by publication in local newspapers.

 

6. SYSTEM FACILITIES, EQUIPMENT AND SERVICES

 

(a) System Characteristics: The Cable Operator's System shall, at all times during the Franchise term, meet or exceed the following requirements:

(1) The Cable Operator shall comply with all Applicable Law and regulations concerning System compatibility with Subscribers' television receivers and/or electronic recording devices.

(2) The Cable Operator shall comply with all FCC regulations regarding scrambling or other encryption of signals.

(3) The System shall function so that there is no significant deterioration in the quality of PEG Access signals or leased access signals, either upstream or downstream, as compared with any other channel on the System.

(b) Closed Captioning and Descriptive Audio Service. The Cable Operator shall make audio descriptive service and closed captioning capabilities available to the extent required by Applicable Law.

(c) Parental Control Devices. The Cable Operator shall make available parental control devices as required by Applicable Law.

(d) Technical Standards: The System shall meet or exceed the applicable technical standards set forth in 47 C.F.R.  76.601 and any other applicable technical standards.

(e) Leased Access Channels: The Cable Operator shall provide leased access channels as required by Applicable Law.

(f) Emergency Alert System:

(1) The Cable Operator shall install and maintain for use by the Locality an Emergency Alert System (EAS) meeting all applicable requirements of federal law.

(2) In the event of an emergency situation that requires notification to Locality citizens, in addition to other methods of notification, the Locality, in accordance with established Emergency Alert System (EAS) procedures, will notify the Cable Operator of the emergency and present it with an emergency message. The Cable Operator shall broadcast the emergency message on all analog and digital channels, or shall force tune viewers to a designated EAS alert channel, except for those off-air channels with which the Cable Operator has agreed not to override during an emergency message. The emergency message will advise the citizens of the emergency and direct them to turn to the Localitys emergency alert channel for further information.

(g) Use of Poles and Conduits: This Ordinance does not authorize Cable Operator to erect poles in the Public Rights‑of‑Way. Cable Operator shall be responsible for obtaining all necessary pole attachment agreements for use of existing poles.

 

SECTION 7. SERVICES AND PROGRAMMING

(a) Programming.

(1) Broad Programming Categories. Cable Operator shall use its best efforts to provide or enable the provision of at least the following Initial broad categories of Programming to the extent programming within these broad categories exist and is made available to the Cable Operator on terms and conditions acceptable to the Cable Operator, unless otherwise required by Applicable Law:

(A) Educational programming;

(B) News & information;

(C) Sports;

(D) General entertainment (including movies);

(E) Children/family-oriented;

(F) Arts; culture and performing arts;

(G) Science/documentary;

(H) Weather information;

(I) National, state and local government affairs;

(J) Local Origination Programming, Leased Access;

(K) PEG Access programming channels as provided in this Ordinance.

(b) Special Programming. Cable Operator has agreed to offer to all Subscribers of its Basic Service Tier the NASA channel and the Military channel.

(c) Deletion or Reduction of Programming Categories.

(1) Cable Operator reserves the right to delete, add, or change the mix, level, or quality of programming services subject to Applicable Law.

(2) Cable Operator will make its best effort to maintain the mix of programming and number of channels as well as the Special Programming available to Subscribers throughout the term of this Ordinance and to periodically upgrade, improve, and add programs and services to meet community needs.

 

8. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL USE

 

(a) PEG Access Channels and Programming:

(1) PEG Channels. Cable Operator shall make available to all Subscribers on the System three (3) video channels for public, educational and governmental use that is equal to the number of PEG channels provided by the existing Cable Operator. The locality or its designee shall assume responsibility for management, operation, and programming of such channels.

(2) Additional PEG Channels.

In addition to the channels specified in Section 8(a), if the Locality substantially utilizes its existing public, educational, and governmental access channels, it may by ordinance, after a public hearing, require up to three (3) additional public, educational, and governmental access channels. For purposes of this subdivision, a public, educational, and governmental access channel shall be considered to be substantially utilized when twelve (12) hours are programmed on that channel each calendar day; in addition, at least thirty‑three percent (33%) of the twelve (12) hours of programming for each business day on average over each calendar quarter must be non-repeat programming. For purposes of this subdivision, non-repeat programming shall include the first three (3) videocastings of a program and shall include programming on other public, educational, and governmental access channels in that locality. Programming for purposes of determining substantial utilization shall not include an alphanumeric scroll, except that for purposes of requiring one (1) or more additional public, educational, and governmental access channels, an alphanumeric scroll shall be included as programming on not more than one (1) channel. Any such ordinance must apply equally to all providers of Cable Service within the Franchise Area.

Any additional public, educational, and governmental access channel provided pursuant to such an ordinance that is not utilized by the Locality for at least eight (8) hours a day shall no longer be made available to the Locality, but may be programmed at the Cable Operator's discretion. At such time as the Locality can certify to the Cable Operator a schedule for at least eight (8) hours of daily programming for a period of three (3) months, the Cable Operator shall restore the previously re-allocated channel. In addition to the channels specified in subsection (A).

(3) Interconnection.

(A) Cable Operator shall use reasonable efforts to interconnect its System with all existing and future Cable Service franchisees or, at its option, directly with the PEG programming provider. Cable Operator shall negotiate in good faith with such franchisees respecting reasonable, mutually convenient, cost-effective, and technically viable interconnection points, methods, terms and conditions. The Cable Operator and such other franchisees shall negotiate the precise terms and conditions of an interconnection agreement.

(B) If the Cable Operator and such other franchisees are unable to reach an interconnection agreement, the Locality may, by ordinance adopted after a public hearing, require the Cable Operator to interconnect with any other such franchisees to ensure the carriage of required PEG Access Channels.

(C) If the Cable Operator and all existing Cable Operators cannot agree to an interconnection agreement within one hundred eight (180) days of a request to interconnect by the Cable Operator, then the Locality is authorized to determine an interconnection point. Both Cable Operator and such other franchisees shall use commercially reasonable efforts to complete interconnection as soon as practicable after the Locality promulgates the ordinance designating an interconnection point.

(b) Service to Certain Facilities:

(1) Upon the request of the Locality, and subject to the conditions in this Section 8(b), the Cable Operator shall provide, without charge, one (1) service outlet activated for Basic Cable Service to each fire station, public school, police station, public library, and any other local government building, within the Cable Operators Franchise Area.

(2) The Cable Operator shall be required to make one (1) standard installation at one (1) point reasonably convenient to use at each site specified by the Locality pursuant to this Section 8(b) and shall not be required to wire the entire facility or to provide more than one (1) outlet at no cost.

(c) PEG Capital Grant Surcharge.

(1) Cable Operator shall pay Locality a quarterly recurring PEG Capital Grant Surcharge fee as specified in Section 10(f).

(2) The PEG Capital Grant Surcharge will be used to support the capital costs of PEG Access Channel facilities, including institutional networks.

(3) The PEG Capital Grant Surcharge Fee shall be paid to the Locality on a quarterly basis for the remainder of the current franchise term of the existing Cable Service franchisee in the Locality.

(4) At the expiration of the current term of the existing Cable Operator agrees to negotiate in good faith with the Locality and all other Cable Service franchisees to set a new, recurring fee to support the reasonable and necessary capital costs of PEG Access Channel facilities, including institutional networks, that shall be imposed on all Cable Operator and all of the Cable Service franchisees such that the fee applies equally to all of the customers of all Cable Operator and other Cable Service franchisees in the Locality.

(5) If the Cable Operator and all of the Cable Service franchisees and the Locality cannot agree on such a recurring capital cost fee, the Locality, by ordinance adopted after a public hearing, may impose a recurring fee, calculated on a per subscriber or percentage of gross revenue basis, to support the reasonable and necessary capital costs of PEG Access Channel facilities, including institutional networks.

(d) Payments Not Franchise Fees. Any costs to the Cable Operator associated with the provision of support for PEG Access pursuant to this Section and any payments made to the Locality pursuant to Section 10(f) of this Ordinance do not constitute and are not part of a franchise fee, and fall within one or more of the exceptions to 47 U.S.C.  542.

(e) Payment Schedule. All fees paid under this subdivision shall be paid by the Cable Operator to the Locality on the same schedule as Franchise Fees are paid under Section 10 below.

 

9. PERIODIC REVIEW

 

(a) Periodic Evaluation, Review and Modification. The field of cable communications is a relatively new and rapidly changing one which may see many regulatory, technical, financial, marketing, and legal changes during the term of this Ordinance. Therefore, in order to provide for a maximum degree of flexibility in this Ordinance, and to help achieve a continued advanced and modern System, the following evaluation provision will apply.

(1) The City reserves the right to adopt rules and regulations controlling the procedures as set forth below and the subjects for Evaluation and Renegotiation Sessions. In the absence of any City action taken to exercise these rights, Cable Operator shall be subject to at least the procedures and subjects described in this Section.

(2) The City may require, at its sole discretion, evaluation sessions at any time during the term of this Ordinance, provided, however, there shall not be more than one (1) evaluation session during ay one (1) calendar year.

(3) Topics which may be discussed at any evaluation and renegotiation session include, but are not limited to rates, Channel capacity, the System performance, programming, access, municipal uses of cable, Subscriber Complaints, judicial rulings, FCC rules, and any other topics the City or Cable Operator deem relevant.

(4) During an evaluation session, Cable Operator shall fully cooperate with the City and shall provide the reports required herein to enable the City to perform the evaluation without cost to City. To the extent such information or documents contain confidential information as defined in paragraph 1 K of this Ordinance, such confidential information may not be disclosed.

(5) If at any time during this evaluation, the City determines that reasonable evidence exists of System performance which fails to meet the requirements of this Ordinance, the City may require Cable Operator to perform tests and analysis directed toward such suspected inadequacies. Cable Operator shall fully cooperate with the City in performing such testing and any report prepared by Cable Operator shall include at least:

(A) A description of the problem in the System performance which precipitated the special tests.

(B) The System component tested.

(C) The equipment used and procedures employed in testing.

(D) The method, if any, by which the System performance problem was resolved.

(E) Any other information pertinent to said tests and analyses which may be required by the City, or determined when the test is performed. If after receiving Cable Operators report the City determines that reasonable evidence still exists of inadequate System performance, the City may enlist an independent engineer to perform tests and analyses directed toward such suspected failures to meet the requirements of this Ordinance. Cable Operator shall cooperate and permit said testing.

(6) As a result of an Evaluation and Renegotiation Session, the City or Cable Operator may determine that a change in the terms of this Ordinance should be required to meet the needs of the community as determined by City, that the System or Ordinance requirements should be updated, changed, revised, or that additional services should be provided and that to provide same would be economically feasible. If the change is consistent with the terms of this Ordinance, the needs of the City, and is economically feasible as determined following an evaluation of Cable Operators financial condition, length of term remaining on the Ordinance, economic waste, if any, that would occur should the terms be changed, and rate of return on the investment within the community, the parties will in good faith, review and negotiation the terms of the change and any amendment to this Ordinance. Based on this review, and upon adoption of such a change or new requirement through a mutually acceptable Ordinance, the change will become effective.

 

10. FRANCHISE FEE

 

(a) Payment to Locality: Each year during the Franchise term, as part of the compensation due to the Locality for use of the Public Rights-of-Way pursuant to this Franchise Ordinance, the Cable Operator shall pay to the Locality, on a quarterly basis, a Franchise Fee of five percent (5%) of its Gross Revenue. Such payments shall be made no later than thirty (30) days following the end of each calendar quarter. In calculating the Franchise Fee, any discounts resulting from purchasing Cable Services as part of a bundle shall be reasonably allocated between the respective services that constitute the bundled transaction.

(b) Supporting Information: Each Franchise Fee payment shall be certified by the Cable Operator as correct, and shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the Locality, including the completion of a Franchise Fee Payment Worksheet attached hereto as Exhibit B. At the request of Locality, payments will be made electronically.

(c) Late Payments: In the event any Franchise Fee payment or recomputation amount is not made on or before the required date, the Cable Operator shall pay liquidated damages as specified in Section 13(c) for failure to render payments, plus interest charges computed from such due date, at an annual rate equal to the commercial prime interest rate of the Locality's primary depository bank during the period such unpaid amount is owed, in addition to the Franchise Fee amount originally owed.

(d) Audit:

(1) The Locality shall have the right to inspect and copy records and the rights to audit and to recompute any amounts determined to be payable under this Agreement, whether the records are held by the Cable Operator, an Affiliate, or any other entity that collects or receives funds related to the Cable Operator's operation in the Locality, including, by way of illustration and not limitation, any entity that sells advertising on the Cable Operator's behalf.

(2) The Cable Operator shall be responsible for providing to the Locality all records necessary to confirm the accurate payment of Franchise fees, without regard to by whom they are held. The Cable Operator shall maintain such records for a period of three (3) years from the date of such payment.

(3) The Locality's audit expenses shall be borne by the Locality unless the audit discloses an underpayment equal to more than five percent (5%) of the amount due, in which case the costs of the audit shall be borne by the Cable Operator as a cost incidental to the enforcement of the Franchise. Any additional amounts due to the Locality as a result of the audit shall be paid within thirty (30) days following written notice to the Cable Operator by the Locality of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid to the Locality, such amount shall be subject to interest as specified above.

(e) No Limitation on Taxing Authority:

(1) Nothing in this Franchise Ordinance shall be construed to limit any authority of the Locality to impose any tax, fee, or assessment of general applicability. By way of illustration and not limitation, to the extent permitted by Applicable Law, the Locality may impose a tax, fee, or other assessment on any Person (other than the Cable Operator) with respect to Cable Service or other communications service provided by such Person over a Cable System for which charges are assessed to Subscribers but not received by the Cable Operator.

(2) The Franchise Fee payments required by this section shall be in addition to any and all taxes, fees or charges which the Cable Operator shall be required to pay to the Locality or to any state or federal agency or authority, except to the extent that such taxes, fees or charges must be considered Franchise Fees pursuant to 47 U.S.C.  542(g).

(f) Franchisee shall pay Locality a PEG Capital Grant surcharge of one and one‑half percent (1.5%) of Franchises Gross Revenue, per annum, payable quarterly with the Franchise Fee as described in this Section.

 

11. CUSTOMER SERVICE

Cable Operator shall comply with the Customer Service Standards set forth in Exhibit C.

 

12. INSURANCE AND INDEMNIFICATION

 

(a) Indemnification Against Liability: The Cable Operator shall indemnify and save free and harmless, and by the acceptance of the Franchise granted under this Ordinance, agrees to indemnify and save free and harmless the Locality, the Locality Council, each member thereof, all officers, agents, employees and members of boards and commissions of the Locality from and against any and all liability by reason of or arising out of any and all claims, demands, causes of action or proceedings which may be asserted, prosecuted or established against them or any of them, for damage to persons or property of whatever nature arising out of the use by the Cable Operator of the Public Rights‑of‑Way, or of any other operations or activities of the Cable Operator pursuant to this Franchise Ordinance and the operation of its Cable System, whether such damage shall be caused by negligence or otherwise (including but not limited to any liability for damages for defamation and damages by reason of or arising out of any failure by the Cable Operator to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the Cable Operators Cable System or vehicle operations) and irrespective of the amount of the liability insurance policies required hereunder, but excepting there from liability airings out of any claim, demand, cause of action or proceeding resulting from the negligence or willful misconduct of the Locality, the Locality Council, each member thereof, or officers, agents, employees or members of boards and commissions of the Locality, or resulting from the negligence or willful misconduct of persons distributing programs via the access channels over which persons and programming the Cable Operator cannot legally and does not exercise control.

(b) Duty to Defend: The Cable Operator shall defend, and by the acceptance of this Franchise Ordinance, agrees to defend at its own cost and expense the Locality, the Locality Council each member thereof, all officers, agents, employees and members of board and commissions of the Locality against any and all claims, demands, actions or proceedings brought against them or any of them, in respect to the matters embraced by the indemnity set forth above in paragraph (a)

(c) No Liability Against Locality: The Cable Operator shall have no recourse whatsoever against the Locality, the Locality Council, any member thereof, or any officer, agent, employee or member of a board or commission of the Locality for any loss, cost, expense or damage occasioned by any requirement or duty imposed on Cable Operator by this Franchise or because of the enforcement of any such requirement or duty.

(d) General Comprehensive Liability Insurance Policy: Concurrently with the filing of the acceptance of this Franchise Ordinance, the Cable Operator shall furnish to the Locality and at all times during the existence of the Franchise granted hereunder, shall maintain in full force and effect, at its own cost and expense, a Commercial General Liability Insurance Policy and in a form satisfactory to the Locality. Said policy shall include, but shall not be limited to, personal injury, broad form property damage, blanket contractual, completed operations, underground hazard, explosion and collapse hazard, independent contractors, vaults and products liability insurance. Said policy shall insure the Cable Operator, the Locality, the Locality Council, each member thereof, all officers, agents, employees and members of board or commissions of the Locality against liability for all matters embraced in paragraph 9.1, with minimum combined single liability limit of two million dollars ($2,000,000).

(e) Workers Compensation Insurance: The Cable Operator will obtain and maintain workers compensation insurance for all Cable Operators employees, and in case any work is sublet, Cable Operator will require any subcontractor similarly to provide workers compensation insurance for all subcontractors employees, in compliance with state laws, and to fully protect the Locality from any and all claims arising out of work-related occurrences. Cable Operator hereby indemnifies Locality for any damage resulting to it from failure of either Cable Operator or any subcontractor to obtain and maintain such insurance. Cable Operator will provide the Locality with a certificate of insurance indicating workers compensation insurance prior to operations under this Franchise and the commencement of any construction, System Upgrade, reconstruction, or maintenance of the System. The certificate of insurance should confirm that the required endorsements are in effect.

(f) Additional Insured, Primary Coverage and Defense: The policies of insurance shall contain an additional insured clause providing that Locality, the Locality Council, each member thereof, all officers, agents, employees and members of boards and commissions of the Locality shall be named as an additional insured under said policy. Each such policy required above shall provide that it is to be considered primary insurance in the event a demand is made on the Locality. Each policy required above shall contain a provision by the insurer to perform the covenant for defense set forth in paragraph (b).

(g) Notice: Each of the above‑listed policies of insurance shall contain a provision that a written notice of cancellation or reduction in coverage shall be delivered to the Locality Recorder thirty (30) days in advance of the effective date thereof. If such insurance is provided by a policy which also covers any other entity or person other than those above‑named, then such policy shall contain the standard cross‑liability enforcement. The Cable Operator agrees that it will not cancel or reduce said insurance coverage without the Locality having been given thirty (30) days prior written notice thereof by Cable Operator.

(h) Filing of Certified Copy with Locality: A certificate of insurance coverage shall be filed in the office of the Locality concurrently upon the acceptance of the award of this Franchise. A certified copy of all amendments to said policies and all replacement and renewal policies shall be filed in the office of the Locality Recorder prior to their effective date.

(i) Increase in Policy Limits: If the Locality determines that the type of insurance and minimum limits of insurance required herein becomes inadequate for such purposes during the term of this Franchise, then beginning January 1, 2008, the coverage as specified in this Section may be increased in direct proportion to the increase in the Consumer Price Index or its equivalent as reported and published by the United States Government and measured from the period January 1, 2004 through January 1, 2007. This shall be a one‑time increase and the amount as calculated at that point shall remain the required amounts of coverage for the balance of the term of the Franchise. Provided further, however, that if during any calendar year in the term of this Franchise the Consumer Price Index shall rise by more than ten percent (10%), such an occurrence may trigger an increase in the insurance requirements of this Section so as to bring the insurance coverage in line with the proportionate increase in the Consumer Price Index as measured from January 1, 2004 through the close of the year in which the Consumer Price Index increased by more than ten percent (10%). The Locality shall provide the Cable Operator with thirty (30) days written notice of any proposed changes in the insurance limits and Cable Operator shall then make the changes and file with the Locality a Certificate of Insurance within forty‑five (45) days thereafter.

(j) Subrogation: Any insurance policies procured by the Cable Operator hereunder shall provide that the insurance carrier waives all rights of subrogation against the Locality.

(k) Third Parties: Cable Operator shall be liable for the acts of its third parties (contractors and subcontractors) and ensure that before commencement of work regarding construction, operation, and maintenance of the Cable System, any such third parties have provided insurance in compliance with this Section.

 

13. PERFORMANCE GUARANTEES AND REMEDIES

(a) Bond:

(1) The Cable Operator shall obtain and maintain during the entire term of the Franchise granted hereunder, and any renewal or extensions thereof, an irrevocable bond from a financial institution licensed to do business in Virginia in the amount of fifty thousand dollars ($50,000), to ensure the Cable Operator's faithful performance of its obligations.

(2) The Cable Operator shall obtain the reasonable approval of the Locality for the language of the bond before it is obtained. The Cable Operator shall file with the Locality a complete copy of the bond (including all terms and conditions applying to the bond or to draws upon it) prior to its effective date, and keep such copy current with respect to any changes over the life of the Franchise.

(3) The bond shall not contain language requiring that in the event of any default a notice to the surety must be given within a specified period of time.

(4) Prior to taking any action under the bond the Locality shall give the Cable Operator written notice of the default in its performance. If within thirty (30) calendar days following such written notice from the Locality to the Cable Operator the Cable Operator has not taken corrective action to the satisfaction of the Locality, or provided a written notice of its proposed cure, the Locality may give written notice to the Cable Operator of its intent to draw down upon the bond.

(5) The bond shall contain language ensuring that it cannot be canceled, or allowed to lapse, until sixty (60) days after receipt by the Locality, by certified mail, return receipt requested, of a written notice from the issuer of intent to cancel or not to renew.

(6) No later than thirty (30) days after mailing of notification to the Cable Operator by certified mail, return receipt requested, of a withdrawal from the bond, the Cable Operator shall restore the bond to the total amount specified herein.

(b) Remedies: In addition to any other remedies available at law or equity, the Locality may apply any one or a combination of the following remedies in the event the Cable Operator violates this Franchise Ordinance or applicable state or federal law:

(1) Apply any remedy provided for in this Ordinance.

(2) Revoke the Franchise pursuant to the procedures specified in this Ordinance.

(3) Impose penalties available under applicable state and local laws for violation of Locality ordinances.

(4) In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.

(5) Any action, proceeding or exercise of a right by the Locality under this section does not constitute an election of remedies or a waiver of any other right the Locality may have, including the right to seek specific performance of a Franchise obligation, except that the Localitys election of liquidated damages shall take the place of any right to obtain actual damages over and above the payment of any amounts otherwise due.

(c) Liquidated Damages:

Because the Cable Operator's failure to comply with provisions of the Franchise Ordinance will result in injury to the Locality, and because it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance, by accepting the Franchise granted herein the Cable Operator agree to the following liquidated damages for the following violations of the Franchise Ordinance.

Breach

Liquidated Damages

(A) Failure to render Franchise Fee payments due to the Locality

The legal rate of interest set forth at 6.1-330.53 of the Code of Virginia (currently, six percent (6%) per annum).

(B) Failure to supply information, reports, or filings lawfully required

$100 for each violation for each day the violation continues (after Cable Operator is afforded a ten (10) business day opportunity notice to cure).

 

(1) For consumer protection standards with which compliance is measured on a quarterly basis, liquidated damages shall be assessed as follows:

(A) Quarterly measuring periods shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31.

(B) If the Cable Operator does not meet the prescribed standard in a given quarterly measuring period, the Cable Operator shall be liable for liquidated damages in the following amounts: five hundred dollars ($500) for each quarter in which such standards were not met if the failure was by less than five percent (5%); $1,000 for each quarter in which such standards were not met if the failure was by five percent (5%) or more but less than fifteen (15%); and two hundred dollars ($2,000) for each quarter in which such standards were not met if the failure was by fifteen (15%) or more.

(2) Payment by the Cable Operator of liquidated damages shall be due thirty (30) days after the date of the Localitys notice assessing such damages pursuant to Applicable Law. If the Cable Operator does not make payment within that period, the Locality may withdraw from the Cable Operators bond the amount assessed, pursuant to Applicable Law.

(d) Revocation or Termination of Franchise:

(1) Upon completion of the term of the Franchise, if a new, extended, or renewed Franchise is not granted to the Cable Operator by the Locality, the Cable Operator's right to occupy the Public Rights-of-Way shall terminate, subject to applicable federal or state law.

(2) The Locality shall have the right to revoke the Franchise for any material breach of this Ordinance.

(3) To revoke the Franchise granted herein, the Locality shall give the Cable Operator written notice of the default in its performance. If within thirty (30) calendar days following such written notice from the Locality to the Cable Operator the Cable Operator has not taken corrective action to the satisfaction of the Locality, the Locality may give written notice to the Cable Operator of its intent to revoke the Franchise, stating its reasons; provided that no opportunity to cure shall be provided where the Cable Operator is shown to have defrauded or attempted to defraud the Locality or its Subscribers.

(4) Prior to revoking the Franchise, the Locality shall hold a public hearing, on thirty (30) calendar days' notice, at which time the Cable Operator and the public shall be given an opportunity to be heard. Following the public hearing, the Locality may determine whether to revoke the Franchise based on the information presented at the hearing, and other information of record, or, where applicable, grant additional time to the Cable Operator to affect any cure. If the Locality determines to revoke the Franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the Cable Operator.

(5) If the Locality revokes the Franchise, or if for any other reason the Franchise terminates, the following procedures and rights are effective: The Locality may require the former Cable Operator to remove its facilities and equipment at the former Cable Operator's expense and restore affected sites as required by Applicable Law, or permit the former Cable Operator to abandon such facilities in place, unless the Cable Operator sells its facilities and equipment to an entity that is granted a franchise by the Locality. If the former Cable Operator fails to remove its facilities within a reasonable period of time, the Locality may have the removal done at the former Cable Operator's and/or surety's expense.

(e) Rights Cumulative: The rights reserved to the Locality herein are in addition to all other rights of the Locality, whether reserved herein or authorized by Applicable Law. No action, proceeding, or exercise of a right with respect to the letter of credit will affect any other right the Locality may have. Neither the bond, nor the receipt of any damages recovered by the Locality thereunder, shall be construed to excuse faithful performance by the Cable Operator or limit the liability of the Cable Operator under the terms of its Franchise for damages, either to the full amount of the bond or otherwise.

 

14. OPERATIONS AND REPORTING PROVISIONS

(a) Open Books and Records: The City shall have the right to inspect, upon twenty‑four (24) hours written notice, at any time during normal business hours at the Cable Operators office in City all books, records, maps, plans, financial statements, service Complaint logs, performance test results, record of requests for service, and other like materials of Cable Operator where related to compliance with the terms of this Ordinance. Where such records are maintained at another office of Cable Operator outside the City, Cable Operator shall promptly obtain such records and make them available at its office in the City for inspection. Upon proper request by Cable Operator, information obtained during such an inspection shall be treated as confidential, making it available only to those persons who must have access to perform their duties on behalf of the City, including but not limited to the Department of Finance, the Legal Department and Council members, if it is proprietary in nature or within the definitions of closed records contained within the Virginia Open Meetings Act, 2.1‑340, et seq. of the Code of Virginia, 1950, as amended. To the extent any federal requirements for privacy applies to the information to be submitted, said law shall control.

(b) Communications with Regulatory Agencies: Copies of all petitions, applications, communications and reports submitted by Cable Operator or on behalf of or relating to Cable Operator to the FCC, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the System authorized pursuant to this Franchise shall also be submitted upon request to the City. Copies of responses from the regulatory agencies to Cable Operator shall likewise be furnished to the City upon request.

(c) Annual Report: On or before April 1 of each year during the term of this Ordinance, excluding the year in which the Ordinance becomes effective, Cable Operator shall file with the City a copy of its most recent operation and system performance. The following information regarding the System shall at least be provided:

(1) A current gross revenue statement for the immediately preceding fiscal year certified by a financial officer or Cable Operator.

(2) The most recent S.E.C. Form 10‑K, filed by the Cable Operator if such filing is required to be made by Cable Operator.

(3) A description of all tiers or levels of service being offered together with a description of any changes made in any service during the reporting year.

(4) A compilation setting for the results of any Subscriber survey.

(5) A current copy of the Subscriber service information.

(6) A current list of names and addresses of each principal. For the purposes of this requirement, the term principal means any person, firm, corporation, partnership or joint venture, other entity who or which owns or controls one percent (1%) or more of the voting stock (or any equivalent interest of a partnership or joint venture of Cable Operator), regardless of the ownership of same.

(7) A compilation summarizing the Complaints received during the reported year, by category, number of each category, and a discussion of any unresolved Complaints.

(8) A description of how pay‑per‑view programming is made available to Basic Service only Subscribers.

(d) Additional Reports: Cable Operator shall prepare and furnish to the City, at the times and in the form prescribed, such additional reports with respect to its operations, affairs, transactions or property, which are reasonably necessary for the administration and enforcement of this Ordinance.

(e) Maps: Cable Operator shall maintain on file with the City at all times a current map or set of maps to scale showing the System and all equipment installed or in place in streets and other public places. The maps shall be updated on a semi‑annual basis if changes have been made.

 

15. MISCELLANEOUS PROVISIONS

(a) Binding Acceptance: Upon acceptance this Ordinance shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, and the promises and obligations herein shall survive the expiration date hereof.

(b) Severability:

(1) If any term, condition, or provision of this Ordinance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in Applicable Law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the Locality and shall thereafter be binding on the Cable Operator and the Locality.

(2) If the Cable Operator believes that the terms of this Ordinance or any Locality law or regulation conflict with any state or federal law or regulation, the Cable Operator shall notify the Locality Manager immediately upon learning of the conflict.

(c) Compliance with Federal and State Laws: The Cable Operator shall comply with all applicable federal, state, and local laws and regulations.

(d) Each Party Bears Its Own Costs: Unless otherwise expressly provided in this Ordinance, all acts that the Cable Operator is required to perform must be performed at the Cable Operators own expense. Unless otherwise expressly provided in this Ordinance, all acts that the Locality is required to perform must be performed at the Localitys own expense.

(e) Force Majeure: The Cable Operator shall not be deemed in default of provisions of this Ordinance or Applicable Law where such default is due to Force Majeure, provided that the Cable Operator takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with the Franchise without unduly endangering the health, safety, and integrity of the Cable Operator's employees or property, or the health, safety, and integrity of the public, Public Rights-of-Way, public property, or private property.

(f) Third Party Beneficiaries: The Locality and the Cable Operator acknowledge and agree that no one is a third-party beneficiary of the Franchise granted under this Ordinance.

(g) No Evasion: The Cable Operator shall not take any action to evade any provision of this Ordinance. This provision shall be read to prohibit, among other things, the Cable Operator from requiring any Subscriber to waive any right (including without limitation privacy rights) as a condition of obtaining service.

(h) Governing Law: This Franchise Ordinance shall be governed in all respects by the law of the Commonwealth of Virginia.

(i) Notices: Unless otherwise expressly stated herein, notices required under this Franchise Ordinance shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party.

(1) Notices to the Cable Operator shall be mailed to:

Cavalier IP TV, LLC

2134 W. Laburnum Avenue

Richmond, VA 23227

Attn.: Brad Evans, CEO

 

with a copy to:

Cavalier IP TV, LLC

2134 W. Laburnum Avenue

Richmond, VA 23227

Attn.: General Counsel

 

Notices to the Locality shall be mailed to:

City of Hampton

Law Department

22 Lincoln Street

Hampton, VA 23669

Attn: City Attorney

(2) The Cable Operator shall at all times keep the Locality advised as to which individual(s) are authorized to act on behalf of the Cable Operator and whose acts will be considered to bind the Cable Operator.

(j) Time of Essence: In determining whether the Cable Operator has substantially complied with this Ordinance, the parties agree that time is of the essence.

(k) Captions and References: The captions and headings of sections throughout this Ordinance are intended solely to facilitate reading and reference to the sections and provisions of this Ordinance. Such captions shall not affect the meaning or interpretation of this Ordinance.

(l) Understanding and Consent: The grant of this Ordinance and Cable Operators acceptance thereof is freely and voluntarily given by each of the parties, without any duress or coercion, and after each party has consulted with its counsel. Each party and its counsel have participated fully in the review and revision of this Ordinance, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Ordinance. Each party hereto has carefully and completely read all of the terms and provisions of this Ordinance, and acknowledges that, to the best of its knowledge, each provision is lawful and enforceable.

 

16. ACCEPTANCE

(a) Effective Date: This Ordinance shall be signed by the Mayor or acting Mayor and attested by the City Clerk. The Ordinance shall be published in accordance with the requirements of the City and Applicable Law and shall take effect retroactively to December 15, 2006, unless within thirty (30) days after adoption by City, Cable Operator has failed to provide its written acceptance to the City or has notified City that it is withdrawing its request for an Ordinance Cable Franchise and it has not commenced construction or the offering of its Cable Service in City.

(b) Time of Acceptance:

(1) In the event Cable Operator has not furnished City with its written acceptance within or has notified City of its request to withdraws the request it made for an Ordinance Cable Franchise as required for acceptance described in Section 16(a), this Ordinance and all of the rights, duties, and responsibilities of City and the Franchise granted by this Ordinance shall be null and void.

(2) Cable Operator shall be bound by all the terms and conditions herein. Cable Operator shall provide all services and offerings specifically set forth herein to provide Cable Operator Services within the City.

(3) Cable Operator shall deliver to the City a certified resolution evidencing its power and authority to comply with this Ordinance with its written acceptance as required in Section 16(a). Additionally, at this same time, Cable Operator shall deliver to City all payments required by its Application and such bonds and insurance certificates as may also be required by this Ordinance. Such documents shall also describe the officers authorized to act on behalf of Cable Operator.

 

Adopted by the City Council of the City of Hampton, Virginia at a regular

 

meeting held on , 2007.

 

 

Mayor

 

ATTEST:

 

_

Clerk

 

 

 

 


EXHIBIT A

 

 

INITIAL SERVICE AREAS

 

 

 

(NOTE: ATTACH MAP PROVIDED BY CAVALIER)

 


EXHIBIT B

FRANCHISE FEE WORKSHEET

 

SUMMARY OF GROSS REVENUES SUBJECT TO FRANCHISE FEE

 

FOR: HAMPTON, VIRGINIA FOR YEAR: ________

 

REVENUE

SOURCE

FIRST QUARTER

SECOND QUARTER

THIRD QUARTER

FOURTH QUARTER

 

TOTAL

Basic Cable Service

 

 

 

 

 

Installation Charge

 

 

 

 

 

 

 

 

 

 

 

Expanded Basic Service

 

 

 

 

 

Premium Services

 

 

 

 

 

Pay Service

 

 

 

 

 

Pay Per View

 

 

 

 

 

Guide Revenue

 

 

 

 

 

Net Advertising Revenue

 

 

 

 

 

Home Shopping Commissions

 

 

 

 

 

On Demand

 

 

 

 

 

Digital Video

 

 

 

 

 

Digital Video Recorder

 

 

 

 

 

 

 

 

 

 

 

Other Revenue

 

 

 

 

 

Equipment Rental

 

 

 

 

 

 

 

 

 

 

 

Bad Debt Allowance

 

 

 

 

 

REVENUE

 

 

 

 

 

Fee Calculated

 

 

 

 

 

FEE

 

 

 

 

 

 

This Exhibit shall be annually changed to reflect current services subject to Franchise Fees and as permitted to the maximum extent permissible by valid Applicable Law and the Franchise Ordinance.


EXHIBIT C

CUSTOMER SERVICE STANDARDS

 

1. Customer Service Generally.

 

(a) These standards sets forth minimum customer service standards that a Cable Operator must satisfy. In addition, the Cable Operator shall at all times satisfy any additions or stricter requirements established by FCC regulations, or other applicable federal, state, or local law or regulation, as the same may be adopted or amended from time to time.

 

(b) Each Cable Operator shall maintain an office at a convenient location that shall be open during normal business hours to allow subscribers to request service, pay bills, and conduct other business. Normal business hours means those hours during which most similar businesses in the community are open to serve customers, i.e., Monday through Friday, 9:00 a.m. to 5:00 p.m. In all cases, normal business hours must include some evening hours, at least one (1) night per week, and some weekend hours.

 

2. Telephone Answering.

 

(a) Trained company representatives shall be available to respond to customer telephone inquiries during normal business hours.

 

(b) At least one (1) person in responsible charge of a Cable Operators operations shall be available by local telephone during such hours as the business office is closed, and the telephone number of such person shall be supplied in advance to the Localitys designated administrator and to the Localitys police and fire divisions. Further, an access line will be available twenty‑four (24) hours per day, seven (7) days per week with after‑hour connection for messages to be responded to by a trained representative the next business day.

 

(c) A Cable Operator shall use its best efforts to comply with the following standards. A Cable Operator shall not be subject to liquidated damages for noncompliance with these standards if, under normal operating conditions, the standards are met at least ninety percent (90%) of the time, measured quarterly. For purposes of this calculation and all pertinent reports, a Cable Operator may not omit data for conditions other then normal operating conditions unless the Cable Operator has explained to the Locality the time period and the conditions involved, and the Locality has approved that classification.

 

(1) Telephone answering time shall not exceed thirty (30) seconds, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds.

 

(2) A customer will receive a busy signal less than three percent (3%) of the time.

 

(d) A Cable Operator shall obtain and maintain sufficient telephone lines and staffing to meet the requirements of this article. A Cable Operator shall not block incoming calls or otherwise use equipment or procedures that would result in an inaccurate account of all calls made to the Cable Operator; any such practice shall constitute fraud and shall be an independent violation of the customer service standards.

 

3. Installations and Service Calls.

 

(a) A Cable Operator shall respond to service calls and complaints promptly. A Cable Operator shall use its best efforts to comply with the following standards. A Cable Operator shall not be subject to liquidated damages for noncompliance with these standards if, under normal operating conditions, the standards are met at least ninety-five percent (95%) of the time, measured quarterly.

 

(1) A Cable Operator shall commence repairs for service interruptions affecting more than one hundred (100) subscribers within two (2) hours after the Cable Operator becomes aware of the interruption, including Saturdays, Sundays, and legal holidays.

 

(2) A Cable Operator shall commence repairs for all other service interruptions within twenty-four (24) hours after the Cable Operator becomes aware of the interruption, including Saturdays, Sundays, and legal holidays.

 

(3) A Cable Operator shall commence work on all requests for service other than service interruptions by the next business day after it receives the request for service or otherwise becomes aware of the need for service.

 

(b) All service for which a completion time is not otherwise specified must be completed within three (3) days from the date of the initial request, unless, for reasons beyond the Cable Operator's control, the work could not be completed in those time periods even with the exercise of all due diligence, in which case the Cable Operator shall complete the work in the shortest time possible. The failure of a Cable Operator to hire sufficient staff or to properly train its staff shall not justify a Cable Operator's failure to comply with this provision.

 

(c) The Cable Operator shall investigate subscriber complaints referred by the Locality within five (5) business days. The Cable Operator shall notify the Locality of those matters that necessitate an excess of five (5) business days to resolve, but those matters must be resolved within fifteen (15) days of the initial complaint. The Locality may require reasonable documentation to be provided by the Cable Operator to substantiate the request for additional time to resolve the problem. For purposes of this Section, resolve means that the Cable Operator shall perform those actions, which, in the normal course of business, are necessary to investigate the Customers complaint and advise the Customer of the results of that investigation.

 

(d) Appropriate records shall be made of service calls, showing when and what corrective action was completed. Such records shall be available to the Locality during normal business hours and retained for not less than three (3) years.

 

(e) A Cable Operator shall perform service calls, installations, and disconnects at least from 8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 5:00 p.m. Saturday. In addition, maintenance service capability enabling the prompt location and correction of major system malfunctions shall be available seven (7) days a week, twenty-four (24) hours a day, including Saturdays, Sundays, and holidays.

 

(f) The appointment window for installations, service calls, and other installation activities shall be either a specific time or, at maximum, a four (4) hour time block during the time from 8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 5:00 p.m. Saturday. Where a subscriber is unable to arrange for a service call or installation during that period, a Cable Operator shall also schedule service and installation calls at reasonable times outside that period.

 

(g) A Cable Operator may not cancel an appointment with a subscriber after 6:00 p.m. on the business day preceding the appointment, unless the appointment is for a Monday, in which case the Cable Operator may not cancel after 5:00 p.m. on Saturday. If a Cable Operator's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber will be contacted, and the appointment rescheduled, as necessary, at a time which is reasonably convenient for the subscriber.

 

(h) A Cable Operator shall afford subscribers a three (3)-day right of rescission for ordering service over the cable system, except that such right of rescission shall end upon initiation of installation, whether physically or electronically, on the subscribers premises or upon provision of service to the subscriber.

 

(i) Under normal operating conditions, billing inquiries and requests for service, repair, and maintenance not involving service interruptions must be acknowledged by a trained customer service representative within twenty-four (24) hours, or prior to the end of the next business day, whichever is earlier. A Cable Operator shall respond to all other inquiries within five (5) business days of the inquiry.

 

(j) Except as federal law may specifically require, no charge shall be made to the subscriber for repairs or maintenance of Cable Operator-owned equipment or facilities, except for the cost of repairs to the Cable Operator's equipment or facilities where it can be shown that the equipment or facility was damaged by a subscriber.

 

(k) With regard to mobility-limited subscribers, upon subscriber request, a Cable Operator shall arrange for pickup and/or replacement of converters or other Cable Operator equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).

 

(l) All personnel, agents and representatives of a Cable Operator, including subcontractors that have occasion to deal directly with subscribers in the field shall carry photo identification badges, to be displayed upon request, when acting on behalf of the Cable Operator.

 

(m) A Cable Operator shall provide advance notice, in light of the circumstances, prior to entry whenever desiring to enter any private property within the Locality. Work performed in easements and rights-of-way during system outage periods is exempted.

 

 

 

 

4. Notice.

(a) When a subscriber is connected or reconnected to a cable system, and at any time upon request, the Cable Operator shall provide each subscriber with written information concerning the following. Copies of all such materials provided to subscribers shall also be provided to the Locality.

 

(1) A written description of products and services offered, including a schedule of rates and charges, a list of channel positions, and a description of programming services, options, and conditions;

 

(2) A written description of the Cable Operator's installation and service maintenance policies, delinquent subscriber disconnect and reconnect procedures, and any other of its policies applicable to its subscribers;

 

(3) Notice regarding subscribers' privacy rights pursuant to 47 U.S.C.  551;

 

(4) Notice regarding subscribers rights relating to home wiring.

 

(b) The Cable Operator shall provide to all subscribers and to the Locality at least thirty (30) days' written notice before the implementation of any change in rates, services, channel positions, business hours, or legal holidays. Such notice shall state the precise amount of any rate change and briefly explain in accurate and readily understandable fashion the cause of the rate change (e.g., inflation, changes 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.

 

(c) All Cable Operator promotional materials, announcements, and advertising of residential cable service to subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms and in the case of telephone orders, a Cable Operator shall take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers before the order is accepted.

 

5. Billing.

(a) Bills shall be clear, concise, and understandable, and shall not be such as to mislead a reasonable subscriber as to any matter reflected on the bill. Bills must be fully itemized with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall clearly delineate all activity during the billing period, including optional charges, rebates, and credits.

 

(b) Refund checks or credits to subscribers shall be issued promptly, but no later than the later of

 

(1) The subscriber's next billing cycle, or thirty (30) days, following resolution of the refund request, whichever is earlier; or

 

(2) The return of all equipment supplied by the Cable Operator, if service is terminated.

 

(c) A Cable Operator's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.

 

(d) Credits

 

(1) The account of any subscriber shall be credited a prorated share of the monthly charge for service, upon the subscriber's reasonably prompt request, whenever:

 

(A) The subscriber is without service for a period that exceeds twelve (12) hours during any twenty-four (24) -hour period; or

 

(B) Service is substantially impaired for any reason for a period that exceeds twelve (12) hours during any twenty-four (24) -hour period.

 

(2) The credits required under subsection (d)(1) shall not apply if:

 

(A) It can be documented that a subscriber seeks a refund for an outage or impairment that the subscriber caused; or

 

(B) A planned outage occurred between the hours of 12:00 midnight and 6:00 a.m.

(3) Credits for service shall be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.

 

(e) No charge may be made for any service or product that the subscriber has not affirmatively indicated it wishes to receive. Payment of the regular monthly bill does not in and of itself constitute such an affirmative indication.

 

6. Disconnection.

(a) Any security deposit and/or other funds due the subscriber shall be refunded on disconnected accounts after any customer premises equipment provided by the Cable Operator has been recovered by the Cable Operator. The refund must be made within thirty (30) days or by the end of the next billing cycle, whichever is earlier, from the date disconnection was requested (or, if later, the date on which any customer premises equipment provided by the Cable Operator is returned).

 

(b) A Cable Operator shall provide at least three (3) days written notice prior to discontinuance of service due to nonpayment and shall not terminate for nonpayment where the payment relates to service not yet provided. Where a Cable Operator has improperly discontinued service, it shall provide free reconnection.

 

(c) A Cable Operator may immediately disconnect a subscriber if the subscriber is damaging or destroying the Cable Operator's cable system or equipment. After disconnection, the Cable Operator shall restore service after the subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and amounts owed the Cable Operator for damage to its cable system or equipment.

 

(d) A Cable Operator may also disconnect a subscriber that causes signal leakage in excess of federal limits. Disconnection may be effected after five (5) days' written notice to the subscriber, if the subscriber fails to take steps to correct the problem. Alternatively, a Cable Operator may disconnect a subscriber without notice where signal leakage is detected originating from the subscriber's premises in excess of federal limits, provided that the Cable Operator shall immediately notify the subscriber of the problem and, once the problem is corrected, reconnect the subscriber.

 

7. Customer Service Other.

A Cable Operator shall keep such records as are necessary to show compliance with these customer service standards and FCC customer service standards.

 

For purposes of these customer service standards the phrase normal operating conditions means those Cable Services or conditions that are within the control of Cable Operator. Those conditions, which are ordinarily within the control of 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 System. Those conditions that are not within the control of Cable Operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, vandalism, public works projects for which no advanced notice is given, and severe or unusual weather conditions.

 

Adopted at the regular meeting of the City Council of the City of Hampton, Virginia held on April 11, 2007.

 

 

 

Signed by ____________________________ Date _________________

Ross A. Kearney, II, Mayor

 

 

 

 

Attested by ____________________________ Date _________________

Katherine K. Glass

Clerk of the Council