HomeMy WebLinkAbout2008-08Ordinance 2008-08
Authorizing A Franchise Agreement With Comcast, LLC
• ADOPTED: May 6, 2008
EFFECTIVE: May 6, 2008
L'
F PULASKI VIRGINIA
TOWN O ,
ORDINANCE 2008-08
AUTHOR{ZING A FRANCHISE AGREEMENT WITH COMCAST, LLC
WHEREAS, the Town Council of Pulaski, Virginia has determined that it is
in the public interest and general welfare to engage in a franchise agreement
with a cable system provider; and
WHEREAS, Comcast of Connecticut /Georgia /Massachusetts /New
Hampshire /New York /North Carolina /Virginia /Vermont, LLC ("Comcast") can
provide valuable services to the citizens of the Town of Pulaski, performing the
services described in the attached Agreement labeled Exhibit A; and
BE IT ORDAINED by the Council of the Town of Pulaski, Virginia, that the
Agreement (Exhibit A) attached hereto and expressly made a part hereof as if
expressly set forth herein, authorizing the construction and operation of a cable
system on land owned by the Town of Pulaski, Virginia is hereby adopted and
the appropriate Town Officials are authorized to execute same.
• This ordinance is effective upon adoption and is hereby adopted this 6th
day of May, 2008, subject to proper execution by Comcast and is adopted by the
duly recorded vote of the Town Council of the Town of Pulaski, as follows:
Jeffrey S. Worrell -Aye
Dan Talbert, Jr. -Aye
Lane R. Penn -Aye
Joel B. Burchett, Jr. -Aye
David L. Clark -Aye
Larry G. Clevinger, II -Aye
THE TOWN OF PULASKI, VIRGINIA
By:
Charles L. Wade, Mayor
ATTEST:
J ~ •~
Patricia Cruise, Clerk of Council
CABLE FRANCHISE AGREEMENT
This Cable Franchise Agreement (hereinafter, the "Agreement" or "Franchise
Agreement") is made between the Town of Pulaski, a political subdivision of the
Commonwealth of Virginia (hereinafter, "Town") and Comcast of Connecticut /Georgia
/ Massachusetts /New Hampshire !New York 1 North Carolina (Virginia /Vermont,
LLC (hereinafter, "Comcast").
Pursuant to Sections 15.2-2108.19 through 15.2-2108.31 of the Code of Virginia,
this Agreement constitutes a negotiated franchise renewal consistent with the
requirements of the Code of Virginia as applicable.
SECTION 1 -Definition of Terms
For the purpose of this Franchise Agreement, capitalized terms, phrases, words,
and abbreviations shall have the meanings ascribed to them in the Code of Virginia,
Article 1.2, § 15.2-2108.19, and the Cable Communications Policy Act of 1984, as
amended from time to time, 47 U.S.C. §§ 521 et seq. (the "CABLE ACT"), unless
otherwise defined herein.
1.1 "Act" means the Communications Act of 1934, as amended.
1.2 "Affiliate", in relation to any Person, means another Person who owns or
controls, is owned or controlled by, or is under common ownership or control with, such
Person.
1.3 "Basic Service Tier" means the service tier that includes (i) the
retransmission of local television broadcast channels and (ii) educational and
governmental channels required to be carried in the basic tier.
1.4 "Cable Operator" means any Person or group of Persons that (A) provides
Cable Service over a Cable System and directly or through one or more affiliates owns a
significant interest in such Cable Systems or (B) otherwise controls or is responsible for,
through any arrangement, the management and operation of a Cable System. Cable
Operator does not include a provider of wireless or direct-to-home satellite transmission
service.
1.5 "Cable 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).
1.6 "Cable 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 20 Subscribers; (ii) a
facility that serves only to retransmit the television signals of one 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 USC § 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) or any portion of a System that
serves fewer than 50 Subscribers in any locality, where such portion is 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.
1.7 "Comcast" shall mean Comcast of Connecticut /Georgia /Massachusetts /
New Hampshire /New York !North Carolina /Virginia /Vermont, LLC.
1.8 "Customer" or "Subscriber" means a Person or user of the Cable System
who lawfully receives Cable Service therefrom with Comcast's express permission.
1.9 "Effective Date" means the date on which all persons necessary to sign
this Agreement in order for it to be binding on both parties have executed this Agreement
as indicated on the signature page(s), unless a specific date is otherwise provided in the
"Term" section herein..
1.10 "FCC" means the Federal Communications Commission or successor
governmental entity thereto.
1.11 "Force Majeure" means an event or events reasonably beyond the ability
of Comcast 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 Comcast's facilities are attached or to be attached
or conduits in which Comcast's facilities are located or to be located, and unavailability
of materials or qualified labor to perform the work necessary.
1.12 "Franchise" means the initial authorization, or renewal thereof, issued by
the Town, whether such authorization is designated as a franchise, agreement, permit,
license, resolution, contract, certificate, ordinance or otherwise, which authorizes the
construction and operation of the Cable System.
1.13 "Franchise Agreement" or "Agreement" shall mean this Cable Franchise
Agreement and any amendments or modifications hereto.
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1.14 "Franchise Area" means the present legal boundaries of the Town as of the
Effective Date, and shall also include any additions thereto, by annexation or other legal
means.
1.15 "Interactive On-Demand Service" 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.
1.16 "Ordinance" includes a resolution.
1.17 "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 Town.
1.18 "Public Way" shall mean the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
way, lane, public way, drive, circle or other public right-of--way, including, but not
limited to, public utility easements, dedicated utility strips, or rights-of--way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Town in the Franchise Area, which shall entitle the
Town and Comcast 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 Town within the Franchise Area for the purpose of public travel, or
for utility or public service use dedicated for compatible uses, and shall include other
easements or rights-of--way as shall within their proper use and meaning entitle the Town
and Comcast to the use thereof for the purposes of installing, operating, and maintaining
Comcast's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments, and other property as may be ordinarily
necessary and applicable to the Cable System.
1.19 "Town" means the Town or the lawful successor, transferee,
designee, or assignee thereof.
1.20 "Transfer" means any transaction in which (i) an ownership or other
interest in Comcast is transferred, directly or indirectly, from one Person or group of
Persons to another Person or group of Persons, so that majority control of Comcast is
transferred; or (ii) the rights and obligations held by Comcast under the Franchise granted
under this Franchise Agreement 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 Franchise shall not include (a) transfer of an ownership or other interest in
Comcast to the parent of Comcast or to another Affiliate of Comcast; (b) transfer of an
interest in the Franchise granted under this Franchise Agreement or the rights held by
Comcast under the Franchise granted under this Franchise Agreement to the parent of
Comcast or to another Affiliate of Comcast; (c) any action that is the result of a merger of
the parent of Comcast; (d) any action that is the result of a merger of another Affiliate of
Comcast; or (e) a transfer in trust, by mortgage, or by assignment of any rights, title, or
interest of Comcast in the Franchise or the System used to provide Cable Service in order
to secure indebtedness.
1.21 "Video Programming" means programming provided by, or generally
considered comparable to, programming provided by a television broadcast station.
SECTION 2 -Grant of Authori
2.1 The Town hereby grants to Comcast under the Code of Virginia and the
Cable Act a nonexclusive Franchise authorizing Comcast to construct and operate a
Cable System in, along, among, upon, across, above, over, under, or in any manner
connected with Public Ways and easements within the Franchise Area, and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on,
over, under, upon, across, or along any Public Way and all extensions thereof and
additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
pedestals, amplifiers, appliances, attachments, and other related property or equipment as
may be necessary or appurtenant to the Cable System. Nothing in this Franchise shall be
construed to prohibit Comcast from offering any service over its Cable System that is not
prohibited by federal or state law.
2.2 Term of Franchise. The term of the Franchise granted hereunder shall
commence on June 1, 2008 and expire on May 31, 2017, unless the Franchise is renewed
or is lawfully terminated in accordance with the terms of this Franchise Agreement and
the Code of Virginia and the Cable Act.
2.3 Renewal. Any renewal of this Franchise shall be governed by and comply
with the provisions of Article 1.2 of the Code of Virginia and Section 626 of the Cable
Act, as amended.
2.4 Reservation of Authority. Nothing in this Franchise Agreement shall be
construed as a waiver of any codes or ordinances of general applicability promulgated by
the Town.
2.5 Competitive Equity.
2.5.1 Comcast acknowledges and agrees that the Town reserves the right
to grant one or more additional franchises to provide Cable Service within the Franchise
Area; provided, however, that no such franchise agreement shall contain terms or
conditions more favorable or less burdensome to the competitive entity than the material
terms and conditions herein. If any such additional or competitive franchise is granted by
the Town which, in the reasonable opinion of Comcast, contains more favorable or less
burdensome terms or conditions than this Franchise Agreement, the Town agrees that it
shall amend this Franchise Agreement to include any more favorable or less burdensome
terms or conditions.
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2.5.2 In the event an application for a new cable television franchise is
filed with the Town proposing to serve the Franchising Area, in whole or in part, the
Town shall serve or require to be served a copy of such application upon Comcast by
registered or certified mail or via nationally recognized overnight courier service.
2.5.3 In the event that amulti-channel video programming distributor
("MVPD") provides service to the residents of the Town under a federal franchise that is
unavailable to Comcast, Comcast shall have a right to request amendments to this
Franchise Agreement that relieve Comcast of regulatory burdens that create a competitive
disadvantage to Comcast. In requesting amendments, Comcast shall file a petition
seeking to amend the Franchise Agreement. Such petition shall: (1) indicate the
presence of a competitor that has a federal franchise; (2) identify the basis for Comcast's
belief that certain provisions of the Franchise Agreement place Comcast at a competitive
disadvantage; and (3) identify the regulatory burdens to be amended or repealed in order
to eliminate the competitive disadvantage. The Town shall not unreasonably withhold
consent to Comcast's petition.
SECTION 3 -Construction and Maintenance of the Cable System
3.1 Permits and General Obli atg_ ions. Comcast shall be responsible for
obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or
authorization necessary to construct, operate, maintain or repair the Cable System, or any
part thereof, prior to the commencement of any such activity. Construction, installation,
and maintenance of the Cable System shall be performed in a safe, thorough and reliable
manner using materials of good and durable quality. All transmission and distribution
structures, poles, other lines, and equipment installed by Comcast for use in the Cable
System in accordance with the terms and conditions of this Franchise Agreement shall be
located so as to minimize the interference with the proper use of the Public Ways and the
rights and reasonable convenience of property owners who own property that adjoins any
such Public Way.
3.2 Conditions on Street Occu~ancy.
3.2.1 New Grades or Lines. If the grades or lines of any Public Way
within the Franchise Area are lawfully changed at any time during the term of this
Franchise Agreement, then Comcast shall, upon reasonable advance written notice from
the Town (which shall not be less than ten (10) business days) and at its own cost and
expense, protect or promptly alter or relocate the Cable System, or any part thereof, so as
to conform with any such new grades or lines. If public funds are available to any Person
using such street or public right-of--way for the purpose of defraying the cost of any of the
foregoing, the Town shall upon written request of Comcast make application for such
funds on behalf of Comcast.
3.2.2 Relocation at request of Third Party. Comcast shall, upon
reasonable prior written request of any Person holding a permit issued by the Town to
move any structure, temporarily move its wires to permit the moving of such structure;
provided (i) Comcast may impose a reasonable charge on any Person for the movement
of its wires, and such charge may be required to be paid in advance of the movement of
its wires; and (ii) Comcast is given not less than ten (10) business days advance written
notice to arrange for such temporary relocation.
3.2.3 Restoration of Public Ways. If in connection with the construction,
operation, maintenance, or repair of the Cable System, Comcast disturbs, alters, or
damages any Public Way, Comcast agrees that it shall at its own cost and expense replace
and restore any such Public Way to a condition reasonably comparable to the condition of
the Public Way existing immediately prior to the disturbance.
3.2.4 Safety Requirements. Comcast shall, at its own cost and expense,
undertake all necessary and appropriate efforts to maintain its work sites in a safe manner
in order to prevent failures and accidents that may cause damage, injuries or nuisances.
All work undertaken on the Cable System shall be performed in substantial accordance
with applicable FCC or other federal and state regulations. The Cable System shall not
unreasonably endanger or interfere with the safety of Persons or property in the Franchise
Area.
3.2.5 Trimming of Trees and Shrubbery. Comcast shall have the
authority to trim trees or other natural growth overhanging any of its Cable System in the
Franchise Area so as to prevent contact with Comcast's wires, cables, or other equipment.
All such trimming shall be done at Comcast's sole cost and expense. Comcast shall be
responsible for any damage caused by such trimming.
3.2.6 Aerial and Underground Construction. If all of the transmission and
distribution facilities of all of the respective public or municipal utilities in any area of
the Franchise Area are underground, Comcast shall place its Cable System's transmission
and distribution facilities underground; provided that such underground locations are
actually capable of accommodating Comcast's cable and other equipment without
technical degradation of the Cable System's signal quality. In any region(s) of the
Franchise Area where the transmission or distribution facilities of the respective public or
municipal utilities are both aerial and underground, Comcast shall have the discretion to
construct, operate, and maintain all of its transmission and distribution facilities, or any
part thereof, aerially or underground. Nothing in this Section shall be construed to
require Comcast to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive devices, amplifiers,
power supplies, pedestals, or other related equipment.
SECTION 4 -Service Obligations
4.1 General Service Obligation. Comcast shall make Cable Service available
to every residential dwelling unit within the Franchise Area where the minimum density
is at least thirty (30) dwelling units per mile when measured from the nearest as measured
from the nearest point of connection to Comcast's existing distribution cable. Subject to
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the density requirement, Comcast shall offer Cable Service to all new homes or
previously unserved homes located within 150 feet of Comcast's distribution cable.
4.1.2 Comcast may elect to provide Cable Service to areas not meeting
the above density and distance standards. Comcast may impose an additional charge in
excess of its regular installation charge for any service installation requiring a drop in or
line extension in excess of the above standards. Any such additional charge shall be
computed on a time plus materials basis to be calculated on that portion of the installation
that exceeds the standards set forth above. Such additional charge shall be paid by the
developer or landowner or customer requesting Cable Service in an area that does not
meet the density and distance standards.
4.2 New Developments. The Town shall provide Comcast with written notice
of the issuance of building or development permits for planned developments within the
Franchise Area requiring undergrounding of cable facilities. The Town agrees to require
the developer, as a condition of issuing the permit, to give Comcast access to open
trenches for deployment of cable facilities and at least ten (10) business days written
notice of the date of availability of open trenches. Developer shall be responsible for the
digging and backfilling of all trenches. Comcast shall be responsible for engineering and
deployment of labor applicable to its cable facilities.
4.3 Programming. Comcast shall offer to all Customers a diversity of video
programming services.
4.4 Educational and Governmental Access Channels
4.4.1 Comcast shall continue to designate for the use of Pulaski County,
the Town of Dublin, and the Town of Pulaski, all their educational institutions and the
New River Community College, capacity on one channel for educational andlor
governmental access video programming provided by the Town or its designee, at no cost
to the aforementioned jurisdictions. Production costs of programs shall be borne by the
jurisdiction initiating said programming. Use of channel capacity for educational and/or
governmental access shall be provided by Comcast in accordance with the Cable Act,
Section 611, and Article 1.2 of the Code of Virginia, and as further set forth below.
Comcast does not relinquish its ownership of or ultimate right of control over a channel
by designating it for Educational or Governmental use. Access users -whether an
individual, educational or governmental user -acquires no property or other interest by
virtue of the use of a channel so designated, and may not rely on the continued use of a
particular channel number, no matter how long the same channel may have been
designated for such use. Comcast shall not exercise editorial control over any
educational or governmental use of channel capacity.
4.4.2 Educational Access. An "Educational Access Channel" is a channel
designated for noncommercial use by educational institutions such as public or private
schools (but not "home schools"), community colleges, and universities.
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4.4.3 Government Access. A "Governmental Access Channel" is a
channel designated for noncommercial use by the Town for the purpose of showing the
public local government at work.
4.4.4 Additional Educational /Governmental Channel. The Town may
request an additional EG channel position, so long as a threshold use requirement is met
for the EG access channel designated above. In order to request additional EG capacity,
the existing EG Access Channel must be programmed at least eight (8) hours a day with
non-repetitive, locally-produced programming, Monday through Saturday, for a
minimum of six (6) consecutive weeks. The Town must provide Comcast with written,
detailed documentation evidencing the usage meets the threshold requirement for each
channel. Comcast shall have 120 days to provide the requested additional capacity.
Once the threshold is met and the additional capacity given, each of the initial EG
channels must maintain the threshold requirement. If any EG channels fail to meet the
threshold for four (4) consecutive months, the additional EG channel positions may be
reclaimed by Comcast upon sixty (60) calendar days written notice. Under no
circumstances shall the Town lose the right to its initial quantity of EG channel position.
4.4.5 Comcast Use of Fallow Time. Because blank or under utilized EG
channels are not in the public interest, in the event the Town or other EG access user
elects not to fully program its channel(s), a Comcast may program unused time on those
channels subject to reclamation by the Town upon no less than 60 days notice.
4.5 Local Office. Comcast shall maintain an office within the corporate limits
of the Town with normal operating hours. This office will accept customer payments,
customer applications for installations and disconnection of service and reporting of
service complaints.
4.6 No Discrimination. Neither Comcast nor any of its employees, agents,
representatives, contractors, subcontractors, or consultants, nor any other Person, shall
discriminate or permit discrimination between or among any Persons in the availability of
Cable Services provided in connection with the Cable System in the Franchise Area. It
shall be the right of all Persons to receive all available services provided on the Cable
System so long as such Person's financial or other obligations to Comcast are satisfied,
unless such Person has engaged in theft of Comcast's cable services, vandalism of its
property or harassment of its representatives. Nothing contained herein shall prohibit
Comcast from offering bulk discounts, promotional discounts, package discounts, or
other such pricing strategies as part of its business practice.
4.7 Prohibition Against Reselling Service. No Person shall resell, without the
express prior written consent of Comcast, any Cable Service, program or signal
transmitted over the Cable System by Comcast.
SECTION 5 -Customer Service Standards; Customer Bills; and Privacy Protection
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5.1 Customer Service Standards. The Town hereby adopts the customer
service standards set forth in Part 76, §76.309 of the FCC's rules and regulations, as
amended. Comcast shall comply in all respects with the customer service requirements
established by the FCC. Comcast may be required to submit quarterly reports to the
Town to allow it to monitor Comcast's compliance with quarterly customer service
standards.
5.2 Customer Bills. Customer bills shall be designed in such a way as to
present the information contained therein clearly and comprehensibly to Customers, and
in a way that (i) is not misleading and (ii) does not omit material information.
Notwithstanding anything to the contrary in Section 6.1, above, Comcast may, in its sole
discretion, consolidate costs on Customer bills as may otherwise be permitted by Section
622(c) of the Cable Act (47 U.S.C. §542(c)).
5.3 Privacy Protection. Comcast shall comply with all applicable federal and
state privacy laws, including Section 631 of the Cable Act and regulations adopted
pursuant thereto.
SECTION 6 -Oversight and Regulation by Town
6.1 Oversight of Franchise. In accordance with applicable law, the Town
shall have the right to oversee, regulate and, on reasonable prior written notice and in the
presence of Comcast's employee, periodically inspect the construction, operation and
maintenance of the Cable System in the Franchise Area, and all parts thereof, as
necessary to monitor Comcast's compliance with the provisions of this Franchise
Agreement.
6.2 Technical Standards. Comcast shall comply with all applicable technical
standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those
standards are altered, modified, or amended during the term of this Franchise, Comcast
shall comply with such altered, modified or amended standards within a reasonable
period after such standards become effective. The Town shall have, upon written request,
the right to obtain a copy of tests and records required to be performed pursuant to the
FCC's rules.
6.3 Maintenance of Books. Records, and Files.
6.3.1 Books and Records. Throughout the term of this Franchise
Agreement, Comcast agrees that the Town, upon reasonable prior written notice to
Comcast, may review such of Comcast's books and records regarding the operation of the
Cable System and the provision of Cable Service in the Franchise Area which are
reasonably necessary to monitor Comcast's compliance with the provisions of this
Franchise Agreement at Comcast's business office, during normal business hours, and
without unreasonably interfering with Comcast's business operations. Such books and
records shall include any records required to be kept in a public file by Comcast pursuant
to the rules and regulations of the FCC. All such documents pertaining to financial
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matters that may be the subject of an inspection by the Town shall be retained by
Comcast for a minimum period of three (3) years.
6.3.2 File for Public Inspection. Throughout the term of this Franchise
Agreement, Comcast shall maintain at its business office, in a file available for public
inspection during normal business hours, those documents required pursuant to the FCC's
rules and regulations.
6.3.3 Proprietary Information. Notwithstanding anything to the contrary
set forth in this Section, Comcast shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The Town agrees to treat
any information disclosed by Comcast as confidential and only to disclose it to those
employees, representatives, and agents of the Town that have a need to know in order to
enforce this Franchise Agreement and who agree to maintain the confidentiality of all
such information. Comcast shall not be required to provide Customer information in
violation of Section 631 of the Cable Act or any other applicable federal or state privacy
law. For purposes of this Section, the terms "proprietary or confidential" include, but are
not limited to, information relating to the Cable System design, customer lists, marketing
plans, financial information unrelated to the calculation of franchise fees or rates pursuant
to FCC rules, or other information that is reasonably determined by Comcast to
competitively sensitive. In the event that the Town receives a request under a state
"sunshine," public records or similar law for the disclosure of information Comcast has
designated as confidential, trade secret or proprietary, the Town shall notify Comcast of
such request and cooperate with Comcast in opposing such request.
6.4 Reporting. The Town may request that Comcast provide reasonable
reports regarding annual financial information and quarterly customer service
information.
SECTION 7 -Transfer or Chan a of Control of Cable S stem or Franchise
7.1 No transfer of this Franchise shall occur without the prior written consent
of the Town, which 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
obligations hereunder.
SECTION 8 -Insurance and Indemnity
8.1 Insurance. Throughout the term of this Franchise Agreement, Comcast
shall, at its own cost and expense, maintain Comprehensive General Liability Insurance
and provide the Town certificates of insurance designating the Town and its officers,
boards, commissions, councils, elected officials, agents and employees as additional
insureds and demonstrating that Comcast has obtained the insurance required in this
Section. Such policy or policies shall be in the minimum amount of One Million Dollars
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($1,000,000.00) for bodily injury or death to any one person, and One Million Dollars
($1,000,000.00) for bodily injury or death of any two or more persons resulting from one
occurrence, and One Million Dollars ($1,000,000.00) for property damage resulting from
any one accident. Such policy or policies shall be non-cancelable except upon thirty (30)
days prior written notice to the Town. Comcast shall provide workers' compensation
coverage in accordance with applicable law. Comcast shall indemnify and hold harmless
the Town from any workers compensation claims to which Comcast may become subject
during the term of this Franchise Agreement
8.2 Indemnification. Comcast shall indemnify, defend and hold harmless the
Town, its officers, employees, and agents from and against any liability or claims
resulting from property damage or bodily injury (including accidental death) that result
from Comcast's construction, operation, maintenance or removal of the Cable System,
including, but not limited to, reasonable attorneys' fees and costs, provided that the Town
shall give Comcast written notice of its obligation to indemnify and defend the Town
within ten (10) business days of receipt of a claim or action pursuant to this Section. If
the Town determines that it is necessary for it to employ separate counsel, the costs for
such separate counsel shall be the responsibility of the Town.
SECTION 9 - System Description and Service
9.1 stem Capacity. During the term of this Agreement, Comcast's Cable
System shall be capable of providing a minimum of 60 channels of video programming
with satisfactory reception available to its customers in the Franchise Area.
9.2 Service to School and Government Buildings. Upon receipt of a written
request by an authorized representative of the Town, Comcast shall provide free basic tier
Cable Service and free installation at one outlet to each public school, fire station, police
station, library and other local building used for non-residential government purposes
located in the Franchise Area within 150 feet of Comcast's distribution cable. The excess
cost for extending service to buildings not within 150 feet of Comcast's distribution cable
shall be paid by the entity requesting service.
SECTION 10 -Enforcement of Franchise
10.1 Non-compliance procedures. Should the Town believe that Comcast has not
complied with any of the provisions of this Franchise Agreement, it shall: (i) informally
discuss the matter with Comcast and (ii) notify Comcast in writing of the exact nature of
the alleged noncompliance if the discussions described in the foregoing clause (i) do not
lead to resolution of the alleged noncompliance. Comcast shall have fifteen (15) days
from receipt of this written notice to: (a) respond to the Town, if Comcast contests, in
whole or in part, the assertion of noncompliance; (b) cure such default; or (c) in the event
that, by the nature of default, such default cannot be cured within the 15-day period,
initiate reasonable steps to remedy such default and notify the Town of the steps being
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taken and the projected date that they will be completed. The Town shall schedule a
public hearing in the event that Comcast fails to respond to the written notice pursuant to
these procedures or in the event that the alleged default is not remedied within thirty (30)
days of the date projected above if the Town intends to continue its investigation into the
default. The Town shall provide Comcast at least thirty (30) business days prior written
notice of such hearing, which will specify the time, place, and purpose.
10.2 Liquidated Damages. Because it may be difficult to calculate the harm to
the Town in the event of a breach of this Franchise Agreement by Comcast, the parties
agree to liquidated damages as a reasonable estimation of the actual damages. To the
extent that the Town elects to assess liquidated damages as provided in this Agreement
and such liquidated damages have been paid, such damages shall be the Town's sole and
exclusive remedy. Nothing in this Section is intended to preclude the Town from
exercising any other right or remedy with respect to a breach that continues past the time
the Town stops assessing liquidated damages for such breach. Liquidated damages shall
not be assessed until the Town has completed the procedures set forth in Section 8.1
hereof, including holding a public hearing, and has notified Comcast, by certified or
registered mail, of the proposed liquidated damage, specifying the violation at issue.
Comcast shall have thirty (30) days from the date of receipt of the written notice to
submit payment. If Comcast does not make payment within that period, the Town may
obtain the amount assessed from Comcast's performance bond.
10.2.1 The first day for which liquidated damages may be assessed, if
there has been no cure after the end of the applicable cure period, shall be the day after
the end of the applicable cure period, including any extension of the cure period granted
by the Town.
10.2.2 Comcast may appeal (by pursuing judicial relief or other relief
afforded by the Town) any assessment of liquidated damages within thirty (30) days of
receiving written notice of the assessment. Comcast's obligation to pay the liquidated
damages assessed shall be stayed pending resolution of the appeal.
10.2.3 In no event may liquidated damages be assessed for a time period
exceeding one hundred twenty (120) days. If after that amount of time Comcast has not
cured or commenced to cure the alleged breach to the satisfaction of the Town, the Town
may pursue all other remedies.
10.2.4 Liquidated damages may be assessed for the following violations
of this Franchise Agreement, in the following amounts:
(A) Failure to comply with EG access requirements: $50 for each violation
for each day the violation continues;
(B) Failure to render payments due to the Town: Three-tenths of one
percent (0.3%) of the unpaid amount for each day the violation continues, in addition to
any monetary payment due.
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(C) Failure to supply information, reports, or filings lawfully required:
$50 for each violation for each day the violation continues.
(D) Failure to comply with customer service standards: $50 for each
violation for each day the violation continues, except where compliance is measured
quarterly, in which case damages shall be as specified in Section 10.2.4(E).
(E) Failure to comply with customer service standards with which
compliance is measured on a quarterly basis: $500 for each quarter in which such
standards were not met if the failure was by less than 5°l0; $1,000 for each quarter in
which such standards were not met if the failure was by 5% or more but less than 15%;
and $2,000 for each quarter in which such standards were not met if the failure was by
15% or more.
10.3 Technical Violation. The Town agrees that it is not its intention to subject
Comcast to penalties, fines, forfeitures or revocation of the Franchise for so-called
"technical" breach(es) or violation(s) of the Franchise, which shall include, but not be
limited, to the following:
10.3.1 in instances or for matters where a violation or a breach of the
Franchise by Comcast was good faith error that resulted in no or minimal negative impact
on the Customers within the Franchise Area; or
10.3.2 where there existed circumstances reasonably beyond the control
of Comcast and which precipitated a violation by Comcast of the Franchise, or which
were deemed to have prevented Comcast from complying with a term or condition of the
Franchise.
SECTION 11 -Miscellaneous Provisions
11.1 Force Majeure. Comcast shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or
penalty relating to noncompliance or default (including termination, cancellation or
revocation of the Franchise), where such noncompliance or alleged defaults occurred or
were caused by events which constitute a Force Majeure, as defined in the Agreement.
11.2 Notice. All notices shall be in writing and shall be sufficiently given and
served upon the other party by hand delivery, first class mail, registered or certified,
return receipt requested, postage prepaid, or by reputable overnight courier service and
addressed as follows:
To the Town:
TOWN OF PULASKI
Attn: Town Manager
42 First St., N.W.
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P.O. Box 660
Pulaski, VA 24301
To Comcast:
Comcast Cable
Attn: General Manager
1794 Old Gray Station Rd.
Johnson City, TN 37615
with copies to:
Comcast Cable Communications, Inc.
Attn: Vice President, Government Affairs
600 Galleria Parkway, Suite 1100
Atlanta, GA 30339
11.3 Entire Agreement. This Franchise Agreement, including all Exhibits,
embodies the entire understanding and agreement of the Town and Comcast with respect
to the subject matter hereof and supersedes all prior understandings, agreements and
communications, whether written or oral. All ordinances or parts of ordinances that are
in conflict with or otherwise impose obligations different from the provisions of this
Franchise Agreement are superseded by this Franchise Agreement.
11.4 Severability. If any section, subsection, sentence, clause, phrase, or other
portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in
part, by any court, agency, commission, legislative body, or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent portion.
Such declaration shall not affect the validity of the remaining portions hereof, which
other portions shall continue in full force and effect.
11.5 Governing Law. This Franchise Agreement shall be deemed to be
executed in the Commonwealth of Virginia, and shall be governed in all respects,
including validity, interpretation and effect, and construed in accordance with, the laws of
the Commonwealth of Virginia, as applicable to contracts entered into and performed
entirely within the Commonwealth.
11.6 Modification. No provision of this Franchise Agreement shall be
amended or otherwise modified, in whole or in part, except by an instrument, in writing,
duly executed by the Town and Comcast, which amendment shall be authorized on behalf
of the Town through the adoption of an appropriate resolution or order by the Town, as
required by applicable law.
11.7 No Third-Party Beneficiaries. Nothing in this Franchise Agreement is or
was intended to confer third-party beneficiary status on any member of the public to
enforce the terms of this Franchise Agreement.
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11.8 No Waiver of Rights. Nothing in this Franchise Agreement shall be
construed as a waiver of any rights, substantive or procedural, Comcast may have under
federal or state law unless such waiver is expressly stated herein.
IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly
authorized representatives of the parties as set forth below, as of the date set forth below:
Atte Town of Pulaski:
c, l /t uz.^,,~ By:
Name: ~?'~i?~" ..1- ~~~~~~
Title: % ~=-"~ /~~^'~yv ~
Attest: Comcast of Connecticut /Georgia /Massachusetts /
New Hampshire !New York i North Carolina /
Virginia 1 Vermont, LLC.
By:
John H. Ridall, Jr.
President, Southern Division
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E
I, Patricia Cruise, Clerk of Council, certify that the foregoing Ordinance 2008-08,
Ordinance Authorizing A Franchise Agreement With Comcast, LLC is a true and correct
copy as adopted by the Pulaski Town Council at their regular meeting on May 6, 2008.
Patricia Cruise, Clerk of Council
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tp/cJordinance/certification
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