ࡱ> M ibjbj==  WWYlBBBBBBB"""(#t4$mNv%%^r%r%r%r%r%r%MMMMMMM$O RTNBr%r%r%r%r%N.BBr%r%'N...r%Br%Br%M.r%M..06F\BBMr%% 2ݺ"x&fLM=N0mNLWR-(WRM.BBBBORDINANCE NO.___________ AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO TCA CABLE PARTNERS D/B/A COX COMMUNICATIONS FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A COMMUNITY ANTENNAE AND CLOSED CIRCUIT ELECTRONIC SYSTEM WITHIN THE CITY OF FAYETTEVILLE, ARKANSAS, AND ENVIRONS THEREOF, AND TO USE AND OCCUPY THE STREETS AND OTHER PUBLIC PLACES OF THE CITY OF FAYETTEVILLE, ARKANSAS, FOR SUCH COMMUNITY ANTENNAE AND CLOSED CIRCUIT ELECTRONIC SYSTEM, AND REPEALING PAST ORDINANCES IN CONFLICT. BE IT ORDAINED AND ENACTED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS, THAT: This Franchise Agreement (this "Franchise") is between the City of Fayetteville, Arkansas, hereinafter referred to as "Franchising Authority," and TCA Cable Partners, d/b/a Cox Communications, hereinafter referred to as "Grantee." The Franchising Authority, having determined that the financial, legal, and technical ability of the Grantee is reasonably sufficient to provide services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Franchise Agreement with the Grantee for the construction and operation of a Cable System on the terms set forth herein. SECTION 1 Definition of Terms SECTION 1 Definition of Termstc \l8 "SECTION 1 Definition of Terms 1.1 Terms1.1 Termstc \l2 "1.1 Terms. For the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: a. "Basic Cable" is the lowest priced tier of service that includes the retransmission of local broadcast television signals. b. "Cable Act" collectively means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996. c. Cable Services shall mean (a) the one-way transmission to Subscribers of (i) video programming, or (ii) other programming service, and (b) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. d. "Cable System" shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves Subscribers without using any Public Way;(c) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Cable Act, except that such facility shall be considered a Cable System (other than for purposes of Section 621(c)) to the extent such facility is used in transmission of video programming directly to Subscribers unless the extent of such use is solely to provide interactive on-demand services; (d) an open video system that complies with Section 653 of title VI of the Cable Act; or (e) any facilities of any electric utility used solely for operating its electric utility system. e. "FCC" means the Federal Communications Commission, or successor governmental entity thereto. f. "Franchise" shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Cable System. g. "Franchising Authority" means the City of Fort Smith, Arkansas, or the lawful successor, transferee, or assignee thereof. h. "Grantee" means TCA Cable Partners, or the lawful successor, transferee, or assignee thereof. i. "Gross Revenues" mean any revenues received by the Grantee from the operation of the Cable System to provide Cable Services in the Service Area, provided, however, that Gross Revenues shall not include: (i) any fees or taxes which are imposed directly or indirectly on any Subscriber thereof by any governmental unit or agency and which are collected by the Grantee on behalf of such governmental unit or agency; (ii) any tax, fee, or assessment of any kind imposed by the Franchising Authority or other governmental entity on a cable operator, or Subscriber, or both, solely because of their status as such; (iii) any tax, fee or assessment of general applicability which is unduly discriminatory against cable operators or Subscribers (including any such tax, fee, or assessment imposed, both on utilities and cable operators and their services); (iv) any other special tax, assessment, or fee such as a business, occupation, and entertainment tax; (v) any fee for the recovery of costs incurred to collect late payments for Cable Services; and (vi) net un-recovered bad debt. j. "Person" means an individual, partnership, association, joint stock company, trust, corporation, limited liability company or governmental entity. k. "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, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Service Area which shall entitle the Franchising Authority and the Grantee 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 Franchising Authority within the Service 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 Franchising Authority and the Grantee to the use thereof for the purposes of installing and operating the Grantee's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, power supplies, network reliability units and other property as may be ordinarily necessary or pertinent to the Cable System. l. "Service Area" means the present municipal boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means. m. "Subscriber" means a Person who lawfully receives services of the Cable System with the Grantee's express permission. SECTION 2 Grant of Franchise SECTION 2 Grant of Franchisetc \l8 "SECTION 2 Grant of Franchise 2.1 Grant2.1 Grant. 2.1 Grant tc \l8 "2.1 Grant2.1 Grant. 2.1 Grant The Franchising Authority hereby grants to the Grantee a nonexclusive Franchise which authorizes the Grantee to construct and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service 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, power supplies, network reliability units and other related property or equipment as may be necessary or appurtenant to the Cable System. Both Parties recognize that this Franchise Agreement is subject to controlling federal law and regulations and the Franchise Authority and Grantee reserve all rights allowed to local franchise authorities and Grantee, under federal law or regulation enacted or determined subsequent to the effective date of this agreement. 2.2 Other Ordinances. The Grantee agrees to comply with the terms of any lawfully adopted generally applicable local ordinances, to the extent that the provisions of the ordinance are enacted pursuant to the police powers of the Franchise Authority. 2.3 Term2.2 Termtc \l2 "2.2 Term. a. Initial Term.2.2 Term tc \l8 "2.2 Term  The Franchise granted hereunder shall be for an initial term of ten (10) years commencing on the effective date of the Franchise as set forth below, unless otherwise lawfully terminated during the initial term or any extended term. b. Extended Term(s). The Franchise term will extend for two (2) additional consecutive ten (10) year terms after the initial term provided the Grantee delivers written notice of its application for an additional ten (10) year term to the Franchising Authority at least thirty (30) months, but not more than thirty-six (36) months, prior to the expiration of each term. No later than ninety (90) days prior to the expiration of the initial term or first extended term, the Franchising Authority shall notify Grantee of its desire to either extend the term an additional ten (10) years or negotiate a new agreement, subject to the renewal provisions of the Cable Act codified as 47 U.S.C. Section 546, as such legislation may be subsequently amended. 2.4 Compliance. Upon (30) days advance written request by either party, the Grantee and the Franchising Authority shall meet to discuss the compliance of the parties with the terms and conditions of this agreement. Customer comments may be allowed as part of this meeting. The meetings shall occur no more than twice in any one calendar year. Nothing herein shall prevent the parties from meeting at any mutually agreeable time for the purpose of discussing any aspect of this agreement. Such informal meeting may occur upon request of either party whether or not in writing. SECTION 3 Standards of Service SECTION 3 Standards of Servicetc \l8 "SECTION 3 Standards of Service 3.1 Conditions of Street Occupancy3.1 Conditions of Street Occupancytc \l2 "3.1 Conditions of Street Occupancy. All transmission and distribution structures, poles, other lines, and equipment installed or erected by the Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of such Public Ways. 3.2 Restoration of Public Ways3.2 Restoration of Public Waystc \l2 "3.2 Restoration of Public Ways. If during the course of the Grantee's construction, operation, or maintenance of the Cable System there occurs a disturbance of any Public Way by the Grantee, it shall, at its expense, replace and restore such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance. In the specific case of street cuts, such repairs will meet the standards as formulated by the Grantee for all such repairs 3.3 Relocation at Request of the Franchising Authority3.3 Relocation at Request of the Franchising Authoritytc \l2 "3.3 Relocation at Request of the Franchising Authority. Upon its receipt of reasonable advance notice, which except for emergency situations, shall not to be less than five (5) business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of the Grantee when lawfully required by the Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, the Grantee shall in all cases have the right of abandonment of its property. 3.4 Relocation at Request of Third Party3.4 Relocation at Request of Third Partytc \l2 "3.4 Relocation at Request of Third Party. The Grantee shall, on the request of any Person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by said Person, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given not less than seven (7) business days advance written notice to arrange for such temporary wire changes. 3.5 Trimming of Trees and Shrubbery3.5 Trimming of Trees and Shrubberytc \l2 "3.5 Trimming of Trees and Shrubbery. Within Public Ways, the Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Service Area so as to prevent branches from coming in contact with the Grantee's wires, cables, or other equipment. All such trimming shall be coordinated with the city through the office of the Mayor. 3.6 Safety Requirements3.6 Safety Requirementstc \l2 "3.6 Safety Requirements. Construction, installation, and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations and the National Electric Safety Code. The Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Service Area. 3.7 Aerial and Underground Construction3.7 Aerial and Underground Constructiontc \l2 "3.7 Aerial and Underground Construction. a. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving the Grantee's cable and other equipment without technical degradation of the Cable System's signal quality. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone communications, and electric services are both aerial and underground, the Grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this Section shall require the Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as Subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, network reliability units, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this Section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this Franchise, the Grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time that such are placed underground. b. If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including that of the Grantee which are then located overhead, the Grantee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place them underground in conformity with the requirements of the Franchising Authority. The Grantee may include its costs of relocating facilities associated with the under grounding project in said local improvement district if allowed under applicable law. 3.8 Extensions of Service3.8 Required Extensions of Servicetc \l2 "3.8 Required Extensions of Service. a. The Cable System, as constructed as of the date of the passage and final adoption of this Franchise, substantially complies with the material provisions hereof. b. The Franchisee is hereby authorized to extend the existing system within the Franchise area to the extent that such is or may become economically feasible. The Franchisee acknowledges the City from time to time may add additional land to the city limits by annexation to which Franchisee is obligated to serve under this Franchise, said obligation shall occur whenever the Franchisee shall receive requests for service from at least fifteen (15) subscribers within 2,250 cable feet of its aerial trunk cable and said connection shall be solely for the usual connection and service fees for all subscribers, provided that such extension is technically feasible. The 2,250 feet shall be measured in extension length of Franchisees cable required for service located within the public way or easement and shall not include length of necessary service drop to the subscribers home. No person in the Franchisees service area shall be arbitrarily refused service; but in recognition of the capital costs involved in unusual circumstances, including, without limitation, when the distance from distribution cable to connection of service to subscribers is more than 150 feet or when a subscriber density exists less than the density specified above, service shall be made available on the basis of costs of materials, labor, and easements, plus 15%, in order to prevent inequitable burdens on potential cable subscribers in more densely populated areas. ADD LANGUAGE HERE SETTING UP A MECHANISM FOR PAY BACK FOR INSTALLATION INTO A FUND CREATED BY THE FRANCHISING AUTHOIRITY. 3.9 Service to Public Buildings3.10 Service to Public Buildingstc \l2 "3.10 Service to Public Buildings. The Grantee shall, upon request, provide without charge, one standard installation and one outlet of Basic Cable to those Franchising Authority administrative buildings, fire station(s), police station(s), that are passed by its Cable System. The outlets of Basic Cable shall not be used to distribute or sell services in or throughout such buildings, nor shall such outlets be located in areas open to the public. The Franchising Authority shall take reasonable precautions to prevent any use of the Grantees Cable System, provided in the above identified public buildings, in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System. The Franchising Authority shall hold the Grantee harmless from any and all liability or claims arising out of the authorized or unauthorized use of outlets provided in the above identified public buildings, including but not limited to, those arising from copyright liability. The Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of 150 cable feet. If additional outlets of Basic Cable are provided to such buildings, the building owner shall pay the usual installation and service fees associated therewith, including, but not limited to, labor and materials. 3.10 FCC Rules and Regulations. The Grantee shall comply with all applicable rules and regulation of the FCC, including, without limitation, any applicable rules and regulations governing emergency alert systems, technical standards and customer service standards. 3.11 Periodic Testing and Compliance with FCC Standards. a. The Grantee shall construct and operate the Cable System to comply with the FCC technical standards as contained in 47 U.S.C. 76, Subpart K of the Commissions rules and regulations, as updated and amended from time to time. b. The Grantee shall perform all tests necessary to determine compliance with the FCC technical standards. Tests shall include, at minimum, proof-of-performance tests required by FCC Rule Section 76.601 (47 U.S.C. 76.601) as updated and amended from time to time. c. Written records of test results shall be maintained at the Grantees local office and made available for inspection by the City or other designated agent of the City, upon request of the City. 3.12 Customer Service Standards. The Grantee shall be subject to the following customer service standards consistent with 47 U.S.C. 76.309: a. Grantee will maintain a local, toll-free, or collect telephone access line, which will be available to its Subscribers 24 hours a day, seven days a week. (1) Trained Grantee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. (2) After Normal Business Hours, the access line may be answered by a service or automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business day. b. Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90 percent of the time under Normal Operating Conditions as measured on a quarterly basis. c. Under Normal Operating Conditions, the customer will receive a busy signal less than three (3) percent of the time. d. Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the following three (3) standards will be met no less than 95 percent of the time as measured on a quarterly basis. (1) Standard installations will be performed within seven business days after an order has been placed. Standard Installations are those that are within 125 feet of the existing distribution system. (2) Excluding conditions beyond the control of the Grantee, the Grantee will begin working on Service Interruptions promptly and in no event later than 24 hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. (3) The appointment window alternatives for Installations, Service Calls and other Installation activities will either be at a specific time or, at maximum, a four-hour time block during Normal Business Hours. A Grantee may schedule Service Calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer. e. Customer Complaints. The Grantee shall maintain a record of all customer service complaints received from the Franchise Authority as well as the subsequent resolution of each. The Franchising Authority shall send the City of Fort Smith TV Cable Complaint Form (Exhibit A), to the Grantee immediately upon receiving such complaint, or no later than three (3) business days of receiving the complaint. Upon receipt of such complaint by the Grantee, the Franchisee must respond to the customer complaint within three (3) business days after receiving the complaint form. The Grantee shall provide the complaint resolution to the city immediately, or no later than five (5) business days from the date of resolution f. Franchise reporting. On an annual basis, Grantee shall provide a report to the Franchise Authority for each of the items addressed in this section 3.12. The report shall be provided no later than 30 days after the end of each calendar year. g. Communications between a Grantee and Subscribers. Notification to Subscribers. The Grantee shall provide written information on each of the following areas at the time of Installation of service, or at least annually to all Subscribers, and at any time upon request: a. Products and services offered. b. Prices and options for programming services and conditions of subscription to programming and other services. (2) Customers will be notified of any changes in rates, programming services or Channel positions as soon as possible. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Cable Operator. (3) Nothing in this agreement shall prohibit the Grantee from establishing an e-mail address for customer inquiries. Grantee shall maintain a web site, which allows a means for customers to comment on services. 3.13 PEG Access Channels. Grantee agrees to make available to the City, three (3) channels for access programming, as follows: Government Access, Educational Access, and Public Access. The City shall regulate the use of said channels. 3.14 Local Office. During the term of this Franchise, Grantee shall maintain a local office within Fayetteville, Arkansas, which shall remain open during normal business hours. SECTION 4 Regulation by the Franchising Authority SECTION 4 Regulation by the Franchising Authoritytc \l8 "SECTION 4 Regulation by the Franchising Authority 4.1 Franchise Fee4.1 Franchise Feetc \l2 "4.1 Franchise Fee. a. The Grantee shall pay to the Franchising Authority a franchise fee equal to five percent (5%) of Gross Revenues (as defined in Section 1.1 of this Franchise) received by the Grantee from the operation of the Cable System to provide Cable Services. All payments of franchise fees shall be made on a quarterly basis, not later than 45 days after the last day of each March, June, September and December. Each payment shall be accompanied by a brief report from a representative of the Grantee showing the basis for the computation, and a certification that the calculation of the payment is in accordance with the terms of the Franchise Agreement and is believed to be accurate. b. The period of limitation for recovery of any franchise fee payable hereunder shall be five (5) years, or, the time from the most recent audit of franchise fee payments conducted by the City, whichever is less from the date on which payment by the Grantee is due. Unless the Franchising Authority initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, within five (5) years from and after such payment due date, such recovery shall be barred and the Franchising Authority shall be estopped from asserting any claims whatsoever against the Grantee relating to any such alleged deficiencies. 4.2 Rates and Charges4.2 Rates and Chargestc \l2 "4.2 Rates and Charges. a. The Franchising Authority may regulate rates for the provision of Basic Cable and equipment as expressly permitted by applicable law. b. The Grantee may charge a fee for the recovery of costs incurred to collect late payments for Cable Services if the following conditions have been met: (1) The Subscribers bill sets forth when the fee will be assessed; (2) The fee is not assessed any earlier than the tenth (10th) day after the due date as reflected on the Subscribers bill; and (3) The bill sets forth the amount of the fee. Any fee imposed by the Grantee that does not exceed $5.00 in 2004 dollars (as adjusted annually for inflation based on the Consumer Price Index) shall be presumed reasonable to cover the costs associated with the delinquent payment. The assessment of a fee pursuant to this Section shall not be construed as a limitation on the Grantees right to charge any other lawful fees or charges. 4.3 Renewal of Franchise4.3 Renewal of Franchisetc \l2 "4.3 Renewal of Franchise. a. The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. b. Notwithstanding anything to the contrary set forth in this Section, the Grantee and the Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and the Grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof. c. The Grantee and the Franchising Authority consider the terms set forth in this Section to be consistent with the express provisions of Section 626 of the Cable Act. 4.4 Conditions of Sale4.4 Conditions of Saletc \l2 "4.4 Conditions of Sale. a. If a renewal or extension of the Grantee's Franchise is denied or the Franchise is lawfully terminated, and the Franchising Authority either lawfully acquires ownership of the Cable System or by its actions lawfully effects a transfer of ownership of the Cable System to another party, any such acquisition or transfer shall be at the price determined pursuant to the provisions set forth in Section 627 of the Cable Act. b. The Grantee and the Franchising Authority agree that in the case of a final determination of a lawful revocation of the Franchise, at the Grantee's request, which shall be made in its sole discretion, the Grantee shall be given a reasonable opportunity, which shall be at least 12 months, to effectuate a transfer of its Cable System to a qualified third party. The Franchising Authority further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior Franchise. If, at the end of that time, the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Franchising Authority, the Grantee and the Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that the Grantee's continued operation of its Cable System during such period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the Franchising Authority or the Grantee. 4.5 Transfer of Franchise4.5 Transfer of Franchisetc \l2 "4.5 Transfer of Franchise. The Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling, controlled by, or under common control with the Grantee, without the prior consent of the Franchising Authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or Cable System in order to secure indebtedness. Within 30 days of receiving the request for transfer, the Franchising Authority shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. If the Franchising Authority has not taken action on the Grantee's request for transfer within 120 days after receiving such request, consent by the Franchising Authority shall be deemed given. SECTION 5 Compliance and Monitoring SECTION 5 Compliance and Monitoringtc \l8 "SECTION 5 Compliance and Monitoring5.1 Books and Records5.1 Books and Recordstc \l2 "5.1 Books and Records. The Grantee agrees that the Franchising Authority upon reasonable notice to the Grantee may review such of its books and records at the Grantee's local business office, during normal business hours and on a non disruptive basis, as is reasonably necessary to ensure compliance with the terms hereof. Such notice shall specifically reference the Section of the Franchise, which is under review, so that the Grantee may organize the necessary books and records for access by the Franchising Authority. The Grantee shall not be required to maintain any books and records for Franchise compliance purposes longer than five (5) years. Notwithstanding anything to the contrary set forth herein, if the Grantee deems any books and records sought for review by the Franchising Authority to be proprietary or confidential in nature, the Grantee shall so designate and mark the subject books and records prior to review by the representatives of the Franchising Authority. With reference to books and records marked and designated as confidential or proprietary, the representatives of the Franchising Authority shall conduct their review without making copies. Any information accumulated in the review of books and records so designated will be disclosed only to Franchising Authority employees, representatives and agents who have a need to know in order to enforce the provisions hereof. The Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act. 5.2 Performance Evaluation Sessions. Following the third anniversary of this Agreement, Grantee and Franchising Authority shall jointly meet, if requested by either party, to discuss revisiting certain provisions of the Franchise Agreement and discuss potential changes to the Franchise Agreement due to changes in technology, law or regulation, and the changing cable-related needs and interests of the community. Based on the outcome of such meeting(s) and discussion(s), the parties may amend this Agreement to incorporate changes, which have been mutually agreed upon by the Franchising Authority and the Grantee. The Franchising Authority and the Grantee may, at their discretion, jointly agree to meet at more frequent intervals than those indicated above if so warranted. Both parties may, at their discretion, agree to meet at more frequent intervals than indicated about if so warranted. Either party shall have the ability to request a meeting with the understanding that such a meeting will be limited to the discussion of a particular issue or issues as identified in the meeting request. SECTION 6 Insurance and Indemnification SECTION 6 Insurance and Indemnificationtc \l8 "SECTION 6 Insurance and Indemnification 6.1 Insurance Requirements6.1 Insurance Requirementstc \l2 "6.1 Insurance Requirements. The Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Commercial General Liability Insurance in the amount of $1,000,000 combined single limit for bodily injury, and property damage. The Franchising Authority shall be designated as an additional insured. Such insurance shall be noncancellable except upon 30 days prior written notice to the Franchising Authority. Upon request, the Grantee shall provide a certificate of insurance showing evidence of the coverage required by this Section. 6.2 Indemnification6.2 Indemnificationtc \l2 "6.2 Indemnification. a. The Grantee agrees to indemnify, save and hold harmless, and defend the Franchising Authority, its officers, boards and employees, from and against (i) any liability for damages that arise out of the Grantee's construction, operation, or maintenance of its Cable System and (ii) any liability or claims resulting from property damage or bodily injury (including accidental death) that arise out of the Grantee's construction, operation, or maintenance of its Cable System, including, but not limited to, reasonable attorneys' fees and costs, provided that the Franchising Authority shall give the Grantee written notice of its obligation to indemnify the Franchising Authority within 10 days of receipt of a claim or action pursuant to this Section. Failure to provide said notice which does not create jeopardy for the Grantee shall not be a basis for avoiding this indemnification. The Grantee shall have the right to participate in or assume control of the defense of any such claim or action, including without limitation the right to select counsel. If the Franchising Authority determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the Franchising Authority. b. The Franchising Authority agrees to indemnify, save and hold harmless, and defend the Grantee, its officers, boards and employees, from and against any liability for damages and any liability or claims that arise out of any of the following: (i) the use of the Cable System or the EAS equipment by the City, its employees, authorized representatives, or designees, and (ii) the transmission or content of programming carried on the Government Access Channel. Additionally, the City shall indemnify, save and hold harmless Grantee against damage, loss or inappropriate use of the Emergency Alert System equipment and shall agree to use due care and to take reasonable precautions against such damage, loss or in appropriate use of the Emergency Alert System equipment or other Cable System equipment which may be used during a declared emergency. SECTION 7 Enforcement and Termination of Franchise SECTION 7 Enforcement and Termination of Franchisetc \l8 "SECTION 7 Enforcement and Termination of Franchise 7.1 Enforcement. Subject to applicable federal and state law, in the event the Franchising Authority, after following the procedures of this Section, determines that the Grantee is in default of any provision of the Franchise, the Franchising Authority may: a. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; b. Commence an action at law for monetary damages or seek other equitable relief; or, c. In the case of a substantial default of a material provision of the Franchise, declare the Franchise to be revoked in accordance with Section 7.5. 7.2 Notice of Violation7.1 Notice of Violationtc \l2 "7.1 Notice of Violation. In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, the Franchising Authority shall notify the Grantee in writing of the nature of the alleged noncompliance with sufficient specificity to allow Grantee to proceed under the Section. 7.3 The Grantee's Right to Cure or Respond7.2 The Grantee's Right to Cure or Respondtc \l2 "7.2 The Grantee's Right to Cure or Respond. The Grantee shall have 30 days from receipt of the notice described in Section 7.2: (a) to respond to the Franchising Authority, contesting the assertion of noncompliance, or (b) to cure such default, or (c) in the event that, by the nature of default, such default cannot be cured within the 30-day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed. 7.4 Public Hearing7.3 Public Hearingtc \l2 "7.3 Public Hearing. In the event that the Grantee fails to respond to the notice required pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied within thirty (30) days from receipt of the notice,, or in the event the Franchising Authority does not consider Grantee's response submitted pursuant to Section 7.3(c) to be reasonable to address the alleged non-compliance, the Franchising Authority shall schedule a public hearing to investigate the default. Such public hearing shall be conducted by the Mayor or his or her designee of the Franchising Authority at a date, time and place noticed to Grantee at least five (5) business days in advance. Grantee shall be provided a full and fair opportunity to be heard at the public hearing. The record of the public hearing and all findings of the Mayor or his or her designee shall be placed in writing and shall be submitted to the governing body of the Franchising Authority for acceptance, rejection or amendment. 7.5 Revocation. a. Should the Franchising Authority seek to revoke the Franchise based on the record prepared at the public hearing and the findings of the City Administrator, the Franchising Authority shall give written notice to the Grantee of its intention to consider revocation of the Franchise. The notice shall specify one or more instances of substantial default of a material provision of the Franchise that the Franchising Authority gave notice of to the Grantee and that the Grantee did not respond, did not cure or did not provide a reasonable response. The notice shall give to the Grantee a period of ten (10) working days in which to submit additional evidence (together with additional evidence submitted by the Franchising Authority) to the Mayor or his or her designee, which additional evidence shall be considered a part of the record of the public hearing conducted pursuant to Section 7.4. Thereafter, the amended record of the public hearing and the amended findings of the Mayor or his or her designee shall be submitted to the Franchising Authority at a public meeting held at least fifteen (15) days subsequent to the notice issued pursuant to this sub-section A. b. At the designated meeting, the governing body of the Franchising Authority shall give the Grantee a full and fair opportunity to state its position on the matter. Thereafter, the Franchising Authority shall make its decision regarding the findings of the City Administrator at the public hearing, determine which enforcement action, if any, the Franchising Authority shall pursue and, if the Franchise is revoked, state the date as to which the revocation shall be effective. The Grantee may appeal any revocation decision made by the Franchising Authority to any court having jurisdiction. c. The Franchising Authority may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Franchising Authority's rights under the Franchise in lieu of revocation of the Franchise. 7.6 Technical Violations7.5 Technical Violationstc \l2 "7.5 Technical Violations. The parties hereby agree that it is not the Franchising Authoritys intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called technical breach(es) or violation(s) of the Franchise or local cable ordinance, which shall include the following: a. in instances or for matters where a violation or a breach by the Grantee of the Franchise or local cable ordinance was good faith error that resulted in no or minimal negative impact on the customers within the Service Area; or b. where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise or local cable ordinance, or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise or local cable ordinance. SECTION 8 Miscellaneous Provisions SECTION 8 Miscellaneous Provisionstc \l8 "SECTION 8 Miscellaneous Provisions 8.1 Actions of Parties8.1 Actions of Partiestc \l2 "8.1 Actions of Parties. In any action by the Franchising Authority or the Grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 8.2 Force Majeure8.2 Force Majeuretc \l2 "8.2 Force Majeure. The Grantee 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 strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantees ability to anticipate and control. This provision also covers reasonable work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantees cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. 8.3 Equal Protection8.3 Equal Protectiontc \l2 "8.3 Equal Protection. In the event the Franchising Authority enters into a Franchise, permit, license, authorization, or other agreement of any kind with any other Person or entity other than the Grantee to enter into the Franchising Authority's Public Ways for the purpose of constructing or operating a Cable System or providing Cable Service to any part of the Service Area, the material provisions thereof shall be reasonably comparable to those contained herein, and the obligations imposed on the grantee thereunder shall be no less burdensome nor more favorable than the obligations imposed upon the Grantee hereunder, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. 8.4 Notice8.4 Noticetc \l2 "8.4 Notice. Unless expressly otherwise agreed between the parties, every notice or response required by this Franchise to be served upon the Franchising Authority or the Grantee shall be in writing, and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered mail, postage prepaid. The notices or responses to the Franchising Authority shall be addressed as follows: City of Fayetteville 113 West Mountain Fayetteville, Arkansas 72701 Attention: Mayor The notices or responses to the Grantee shall be addressed as follows: TCA Cable Partners, d/b/a Cox Communications 4900 South Zero Street Fort Smith, Arkansas 72903 Attention: Director of Government Affairs with a copy to: Cox Communications, Inc. 1400 Lake Hearn Drive Atlanta, Georgia 30319 Attention: Legal Department The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other in accordance with the provisions hereof. 8.5 Interpretation and Enforcement. Any dispute involving this Franchise Agreement shall be adjudicated where federal jurisdiction is established. 8.6 Descriptive Headings8.5 Descriptive Headingstc \l2 "8.5 Descriptive Headings. The captions to Sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein. 8.7 Severability8.6 Severabilitytc \l2 "8.6 Severability. If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof. 8.8 Effective Date8.7 Effective Datetc \l2 "8.7 Effective Date. The effective date of this Franchise is ______________, 200__, pursuant to the provisions of applicable law. This Franchise shall expire on ______________, 200__, unless extended by the mutual agreement of the parties. Passed, adopted and effective this __________ day of _______________, 200__, subject to applicable federal, state and local law. IN WITNESS WHEREOF, the parties hereto have entered into this Franchise Agreement on ____________________, 200__. FRANCHISING AUTHORITY: CITY OF FAYETTEVILLE, ARKANSAS By: ___________________________________ Ray Baker, Mayor Mayor Attest:_________________________ City Clerk GRANTEE: TCA CABLE PARTNERS, a Delaware general partnership By: TCA Holdings, L.P., a general partner By: TCA Interests, LLC, its general partner By: _________________________ Name: ______________________ Title: _______________________ Attest: _________________________ Secretary PAGE  PAGE 1 ADVANCE \d24 PAGE 14 ADVANCE \d24 PAGE 15 Y  3 4 5 8 9 > I J R ] ^ % ySopʸ؃rfXrO؏ʸOJQJ^JaJ<CJOJQJ^JaJCJOJQJ^JaJ jCJOJQJU^JaJ<CJOJQJ^JaJ>*CJOJQJ^JaJ<>*CJOJQJ^JaJ>*CJOJQJ^JaJ#j>*CJOJQJU^JaJ<>*CJOJQJ^JaJ5>*CJOJQJ\^JaJCJOJQJ^JaJ5CJOJQJ\^JaJZ[BC5 s ) p@ P !$ ) p@ P !a$ $ ,0p@ P !`a$$ ,0p@ P !a$$^a$ $]^a$$a$ h5 B C   $ % yz  1$`$ ,0p@ P !a$ $ ,0p@ P !`a$$ ) p@ P !a$23/0RS]p ) p@ P !$ ) p@ P !a$ $ ,0p@ P !`a$$ ,0p@ P !a$  ,$/$0$@$(%+%,%0%:%;%C%M%N%c%l%m%u%~%%])^)_)b)c)m)++++ɽɽɽyk<>*CJOJQJ^JaJ>*CJOJQJ^JaJ6CJOJQJ]^JaJ5CJOJQJ\^JaJ<CJOJQJ^JaJ>*CJOJQJ^JaJCJOJQJ^JaJ jCJOJQJU^JaJ<CJOJQJ^JaJ5>*CJOJQJ\^JaJCJOJQJ^JaJ)+$,$'%(%R%S%k&l&^)_)++++$ ) p@ P !a$ $ ,0p@ P !`a$$ ,0p@ P !a$$ ) p@ P !a$+++ , , ,,,/,S,T,\,,,--- .*.+.3.S.T./(0*0-0ĶqeWqE#>*B*CJOJQJX^JaJph<CJOJQJ^JaJCJOJQJ^JaJ jCJOJQJU^JaJ<CJOJQJ^JaJ<>*CJOJQJ^JaJ5>*CJOJQJ\^JaJCJOJQJ^JaJ5CJOJQJ\^JaJ>*CJOJQJ^JaJ<>*CJOJQJ^JaJ>*CJOJQJ^JaJ#j>*CJOJQJU^JaJ+ ,--)0*033667799h:i:aA$ ) p@ P !`a$$ ) p@ P !a$ ) p@ P !-0.0`0000003333334*4+46"6#6B6g6h6p666777778 8!8)8B8C8999:1:2:::c:d:CCCCCCD*D+DKKK Kɽɽɽɽɽɽ>*CJOJQJ^JaJ5CJOJQJ\^JaJ<CJOJQJ^JaJCJOJQJ^JaJ jCJOJQJU^JaJ<CJOJQJ^JaJ5>*CJOJQJ\^JaJCJOJQJ^JaJ:aAbACC/D0DDDDKKQQ(R)RbRcR ) p@ P !$ ) p@ P !`a$$ ) p@ P !a$ $ ,0p@ P !`a$ KAKBKJKkKlKQ#Q*CJOJQJ^JaJ5>*CJOJQJ\^JaJ5CJOJQJ\^JaJCJOJQJ^JaJ<CJOJQJ^JaJCJOJQJ^JaJ jCJOJQJU^JaJ<CJOJQJ^JaJ6cRMSNS_T`T+U,UUUv`v & 8 xHX (# & 8 xHX (#8^8! 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