HomeMy WebLinkAbout2002-05-20-Ordinance 2372_Cable Television FranchiseORDINANCE NO.2372 ,AN ORDINANCE TO AMEND CHAPTER 700,WAUKEE MUNICIPAL CODE,
FRANCHISE ORDINANCES OF THE CITY OF WAUKEE,lOW A,BY
DELETING SECTIONS 701 AND 702 AND INSERTING THEREIN SECTION
701 RENEWING THE CABLE FRANCHISE LAWFULLY HELD BY MCC
IOWA,LLC,ITS SUCCESSORS OR ASSIGNS,THE NON-EXCLUSIVE
RIGHTS,PRIVILEGES AND AUTHORITY TO CONSTRUCT,OPERATE,
MAINTAIN,REPAIR,REPLACE,RECONSTRUCT AND REMOVE A CABLE
TELEVISION SYSTEM ACROSS THE PUBLIC WAY IN THE CITY LIMITS OF
WAUKEE FOR A TERM OF FIFTEEN (15)YEARS.
BE IT ORDAINED by the City Council of the City of Waukee,Iowa that the
following agreement shall replace Ordinance No.8101 and Ordinance No.102 in their
entirety upon the effective date as established herein:
FRANCHISE AGREEMENT
This Franchise Agreement ("Franchise")is between the City of Waukee,
hereinafter referred to as "the Franchising Authority"and MCC Iowa LLC,a limited
liability company duly organized and validly existing under the laws of the State of
Delaware,hereinafter referred to as "the Grantee."J
The Franchising Authority hereby acknowledges that the Grantee has substantially
complied with the material terms of the current Franchise under applicable law,and 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,and having afforded the public adequate notice and opportunity for comment,
desires to enter into this Franchise with the Grantee for the construction and operation of
a cable system on the terms set forth herein.
SECTION 1
Definition of Terms
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:I
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A."Basic Cable"is the lowest priced tier of Cable Service that includes the
retransmission oflocal broadcast television signals.
B."Cable Act"means Title VI of the Commnnications Act of 1934,as
amended.
C."Cable Services"shall mean (1)the one-way transmission to Subscribers
of (a)video programming,or (b)other progrannning service,and (2)
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 the Grantee's 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 the Service Area.
E."FCC"means Federal Communications Commission,or successor
governmental entity thereto.
F."Franchising Authority"means the City of Waukee.
G."Grantee"means MCC Iowa LLC,or the lawful successor,transferee,or
assignee thereof.
H."Gross Revenue"means any revenues from the operation of the Cable
System to provide Cable Services in the Service Area received by Grantee
from Subscribers,provided,however,that Gross Revenues shall not
include franchise fees,the FCC User Fee or any tax,fee or assessment of
general applicability collected by the Grantee from Subscribers for pass-
through to a government agency.
1."Person"means an individual,partnership,association,joint stock
company,trust,corporation,or governmental entity.
J."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 now
or hereafter held by the Franchising Authority in the Service Area which
shall entitle the Grantee to the use thereof for the purpose of installing,
operating,repairing,and maintaining the Cable System.
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K."Service Area"means the present boundaries of the Franchising Authority,
and shall include any additions thereto by annexation or other legal means,
subj ect to the exceptions in subsection 3.9.
L."Standard Installation"is defined as 125 feet from the nearest tap to the
Subscriber's terminal,
M."Subscriber"means a Person who lawfully receives Cable Service of the
Cable System with the Grantee's express permission.
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SECTION 2
Grant of Franchise
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 such facilities and equipment as may be necessary or appurtenant to the
Cable System for the transmission and distribution of Cable Services,data services,
information and other communications services or for any other lawful purposes.
2.2 Other Ordinances.The Grantee agrees to comply with the terms of any lawfully
adopted generally applicable local ordinance,to the extent that the provisions of the
ordinance do not have the effect of limiting the benefits or expanding the obligations of
the Grantee that are granted by this Franchise.Neither party may unilaterally alter the
material rights and obligations set forth in this Franchise.In the event of a conflict
between any ordinance and this Franchise,the Franchise shall control.
2.3 Other Authorizations.The Franchising Authority shall not permit any person to
provide services similar to those provided by the Grantee in the Service Area without first
having secured a non-exclusive franchise from the Franchising Authority.The
Franchising Authority agrees that any grant of additional franchises or other
authorizations including OVS authorizations by the Franchising Authority to provide
services similar to those provided by the Grantee pursuant to this Agreement to any other
entity shall cover the entire Service Area and shall not be on terms and conditions more
favorable or less burdensome to the grantee of any such additional franchise or other
authorization than those which are set forth herein.In any renewal of this Franchise,the
Franchising Authority,should it seek to impose increased obligations upon the Grantee,
must take into account any additional franchisee s)or authorizations previously granted
and find that the proposed increased obligations in the renewal,are not more burdensome
and/or less favorable than those contained in any such additional franchisees)or
authorizations.
2.4 Term.The Franchise granted hereunder shall be for an initial term of 15 years
commencing on the effective date of the Franchise as set forth in subsection 8.6,unless
otherwise lawfully terminated in accordance with the terms of this Franchise.
SECTION 3
Standards of Service
3.1 Conditions of Occupancy.The Cable System installed by the Grantee pursuant
to the terms hereof shall be located so as to cause a minimum of interference with the
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proper use of Public Ways aud with the rights aud reasonable convenience of property
owners who own property that adjoins auy of such Public Ways.
3.2 Restoration of Public Ways.If during the course of the Grautee's construction,
operation,or maintenance of the Cable System there occurs a disturbauce of any Public
Way by the Grautee,Grantee shall replace and restore such Public Way to a condition
reasonably comparable to the condition of the Public Way existing immediately prior to
such disturbauce.
C)
3.3 Relocation for the Franchising Authority.Upon its receipt of reasonable
advauce written notice,to be not less thau ten (10)business days,the Grantee shall
protect,support,raise,lower,temporarily disconnect,relocate in or remove from the
Public Way,any property of the Grautee when lawfully required by the Frauchising
Authority by reason of traffic conditions,public safety,street abaudonment,freeway aud
street construction,chauge or establishment of street grade,installation of sewers,drains,
gas or water pipes,or auy other type of public structures or improvements which are not
used to compete with the Grautee's services.The Grautee shall in all cases have the right
of abandonment of its property.
3.4 Relocation for a Third Party.The Grantee shall,on the request of any Person
holding a lawful permit issued by the Frauchising Authority,protect,support,raise,
10weT,temporarily disconnect,relocate in or remove from the Public Way as necessary
any property of the Grantee,provided:(A)the expense of such is paid by said Person
benefiting from the relocation,including,if required by the Grautee,making such
payment in advance;and (B)the Grantee is given reasonable advauce written notice to
prepare for such chauges.For purposes of this subsection,"reasonable advauce written
notice"shall be no less than thirty (30)business days in the event of a temporary
relocation,aud no less thau one hundred twenty (120)days for a pennauent relocation.
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3.5 Trimmiug of Trees and Shrubbery.The Grautee shall have the authority to trim
trees or other natural growth in order to access aud maintain the Cable System.
3.6 Safety Requirements.Construction,operation,and maintenance of the Cable
System shall be performed in an orderly and workmanlike manner,All such work shall
be performed in substantial accordauce with generally applicable federal,state,and local
regulations aud the National Electric Safety Code.
3.7 Underground Construction.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 its Cable System underground.Nothing contained in this
subsection shall require the Grantee to construct,operate,aud maintain underground any
ground-mounted appurtenauces.I
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3.8 Access to Open Trenches.The Franchising Authority agrees to include the
Grantee in the platting process for any new subdivision.At a minimum,the Franchising
Authority agrees to require as a condition of issuing a permit for open trenching to any
utility or developer that (A)the utility or developer give the Grantee at least ten (10)days
advance written notice of the availability of the open trench,and (B)that the utility or
developer provide the Grantee with reasonable access to the open trench.
Notwithstanding the foregoing,the Grantee shall not be required to utilize any open
trench.
3.9 Required Extensions of the Cable System.Grantee agrees to provide Cable
Service to all residences in the Service Area subject to the density requirements specified
in this subsection.Whenever the Grantee receives a request for Cable Service from a
potential Subscriber in an unserved area contiguous to Grantee's to existing distribution
facilities where there are at least lO residences within 1320 cable-bearing strand feet
(one-quarter cable mile)from the portion of the Grantee's trunk or distribution cable
which is to be extended,it shall extend its Cable System to such Subscribers at no cost to
said Subscribers for the Cable System extension,other than the published Standard/non-
Standard Installation fees charged to all Subscribers.Notwithstanding the foregoing,the
Grantee shall have the right,but not the obligation,to extend the Cable System into any
portion of the Service Area where another operator is providing Cable Service,into any
annexed area which is not contiguous to the present Service Area of the Grantee,or into
any area which is fmancially or technically infeasible due to extraordinary circumstances,
such as a runway or freeway crossing.
3.10 Subscriber Charges for Extensions of the Cable System.No Subscriber shall
be refused service arbitrarily.However,if an area does not meet the density requirements
of subsection 3.9 above,the Grantee shall only be required to extend the Cable System to
Subscriber(s)in that area if the Subscriber(s)are willing to share the capital costs of
extending the Cable System.Specifically,the Grantee shall contribute a capital amount
equal to the construction cost per mile,multiplied by a fraction whose numerator equals
the actual number of residences per 1320 cable-bearing strand feet from the Grantee's
trunk or distribution cable,and whose denominator equals lO.Subscribers who request
service hereunder shall bear the remaining cost to extend the Cable System on a pro rata
basis.The Grantee may require that payment of the capital contribution in aid of
construction borne by such potential Subscribers be paid in advance.Subscribers shall
also be responsible for any Standard/non-Standard Installation charges to extend the
Cable System from the tap to the residence.
3.11 Cable Service to Public Buildings.The Grantee,upon request,shall provide
without charge,a Standard Installation and one outlet of Basic Cable to those
administrative buildings owned and occupied by the Franchising Authority,fire station(s),
police station(s),and K-12 public school(s)that are passed by its Cable System.The
Cable Service provided shall not be distributed beyond the originally installed outlet
without authorization from the Grantee.The Cable Service provided shall not be used for
commercial purposes,and such outlets shall not be located in areas open to the public.
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The Franchising Authority shall take reasonable precautions to prevent any inappropriate
use of the Grantee's Cable System or any loss or damage to Grantee's Cable System.The
Franchising Authority shall hold the Grantee harmless from any and all liability or claims
arising out of the provision and use of Cable Service required by this subsection.The
Grantee shall not be required to provide an outlet to such buildings where a non-Standard
Installation is required,unless the Franchising Authority or building owner/occupant
agrees to pay the incremental cost of any necessary Cable System extension and/or non-
Standard Installation.If additional outlets of Basic Cable are provided to such buildings,
the building owner/occupant shall pay the usual installation and service fees associated
therewith.
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3.12 Emergency Use.If the Grantee provides an Emergency Alert System
("EAS")such EAS shall be operated in accordance with FCC regulations.The
Franchising Authority shall permit only appropriately trained and authorized Persons to
operate the EAS equipment and shall take reasonable precautions to prevent any use of
the Grantee's Cable System in any manner that results in inappropriate use thereof,or any
loss or damage to the Cable System.Except to the extent expressly prohibited by law,the
Franchising Authority shall hold the Grantee,its employees,officers and assigns harmless
from any claims arising out of use of the EAS,including,but not limited to,reasonable
attorneys'fees and costs.
3.13 Reimbursement of Costs.If funds are available to any Person using the Public
Way for the purpose of defraying the cost of any of the foregoing,the Franchising
Authority shall reimburse the Grantee in the same manner in which other Persons affected
by the requirement are reimbursed.If the funds are controlled by another governmental
entity,the Franchising Authority shall make application for such funds on behalf of the
Grantee.
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3.14 Public,Education and Government Access.Grantee shall provide the
Franchising Authority with one (1)Access channel on the Cable System designated for
Public,Education or Government access purposes.The Grantee shall make the Cable
System capable of originating progrannning from Waukee City Hall located at 230
Highway 6,Waukee,IA 50263 no later than one hundred twenty days following the
commencement of the Agreement.
The access channel is made available to the Franchising Authority by the Grantee for the
purpose of cablecasting non-commercial programming by City residents,City
administration and educational institutions.The City agrees not to use the access
channels to provide commercial or revenue-generating services or services that may
compete,directly or indirectly,with services provided by the Company,provided,
however,that the City may cablecast acknowledgments of funding sources and the
underwriting of programming costs.
The Grantee will provide the Franchising Authority with equipment selected by the
Franchising Authority from AVI Systems in the amount of $59,350.00 as necessary to I
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originate cablecast programming from the Waukee City Hall.The Franchising Authority
shall retain ownership and shall be responsible for maintenance of all equipment
purchased by Grantee pursuant to this section.The equipment purchase amount shall be
considered a prepayment of franchise fees as referenced in Section 4.1 of this Agreement.
The Grantee shall collect and retain franchise fees from Subscribers until the $59,350.00
payment has been recouped.The Grantee shall provide the Franchising Authority with a
statement of franchise fees collected to recoup the amount of prepayment annually as
required in Section 4.1(A).The Grantee shall pay all franchise fees to the Franchise
Authority following reimbursement for the PEG access equipment for the remaining term
of the agreement.
SECTION 4
Regulation by the Franchising Authority
4.1 Franchise Fee.
A.The Grantee shall pay to the Franchising Authority a franchise fee of five
percent (5%)of annual Gross Revenues (as defined in subsection 1.1 of this Franchise).
In accordance with the Cable Act,the twelve (12)month period applicable under the
Franchise for the computation of the franchise fee shall be a calendar year.The franchise
fee payment shall be due annually and payable within 90 days after the close of the
preceding calendar year.Each payment shall be accompanied by a briefreport prepared
by a representative of the Grantee showing the basis for the computation.
B.Limitation on Franchise Fee Actions.The period of limitation for
recovery by the Franchising Authority of any franchise fee payable hereunder shall be
three (3)years from the date on which payment by the Grantee is due to the Franchising
Authority.
4.2 Rates and Charges.The Franchising Authority may regulate rates for the
provision of Basic Cable and equipment as expressly permitted by federal or state law.
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 renewal provisions of federal law.
B.In addition to the procedures set forth in the Cable Act,the Franchising
Authority agrees to notify the Grantee of all of its assessments regarding the identity of
future cable-related community needs and interests,as well as the past performance of the
Grantee under the then current Franchise term.The Franchising Authority further agrees
that such assessments shall be provided to the Grantee promptly so that the Grantee has
adequate time to submit a proposal pursuant to the Cable Act and complete renewal of the
Franchise prior to expiration of its term.
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C.Notwithstanding anything to the contrary set forth in this subsection 4.3,
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
conunent in accordance with the provisions of federal law the Franchising Authority and
the Grantee may agree to undertake and fmalize informal negotiations regarding renewal
of the then current Franchise and the Franchising Authority may grant a renewal thereof.
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D.The Grantee and the Franchising Authority consider the terms set forth in
this subsection 4.3 to be consistent with the express renewal provisions ofthe Cable Act.
4.4 Conditions of Sale.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.
The Grantee and the Franchising Authority agree that in the case of a fmal
determination of a lawful revocation of the Franchise,the Grantee shall be given at least
twelve (12)months to effectuate a transfer of its Cable System to a qualified third party.
Furthermore,the Grantee shall be authorized to continue to operate pursuant to the terms
of its prior Franchise during this period.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 is further agreed that the Grantee's continued operation of the Cable System
during the twelve (12)month period shall not be deemed to be a waiver,nor an
extinguishment of,any rights of either the Franchising Authority or the Grantee.
4.S 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 conunon control with the Grantee,without prior
written notice to the Franchising Authority.No such notice 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.
SECTIONS
Books and Records
The Grantee agrees that the Franchising Authority,upon thirty (30)days written notice to
the Grantee and no more than once annually may review such of its books and records at
the Grantee's business office,during normal business hours and on a nondisruptive basis,
as is reasonably necessary to ensure compliance with the tenus of this Franchise.Such )
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notice shall specifically reference the subsection of the Franchise which is under review,
so that the Grantee may organize the necessary books and records for easy access by the
Franchising Authority.Alternatively,if the books and records are not easily accessible at
the local office of the Grantee,the Grantee may,at its sole option,choose to pay the
reasonable travel costs of the Franchising Authority's representative to view the books
and records at the appropriate location.The Grantee shall not be required to maintain any
books and records for Franchise compliance purposes longer than three (3)years.
Notwithstanding anything to the contrary set forth herein,the Grantee shall not be
required to disclose information which it reasonably deems to be proprietary or
confidential in nature,nor disclose books and records of any affiliate which is not
providing Cable Service in the Service Area.The Franchising Authority agrees to treat
any information disclosed by the Grantee as confidential and only to disclose it to
employees,representatives,and agents thereof that have a need to know,or in order to
enforce the provisions hereof.The Grantee shall not be required to provide Subscriber
information in violation of Section 631 ofthe Cable Act.
SECTION 6
Insurance and Indemnification
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 thirty (30)days prior written notice
to the Franchising Authority.Upon written request,the Grantee shall provide a
Certificate of Insurance showing evidence of the coverage required by this subsection.
6.2 Indemnification.The Grantee agrees to indemnify,save and hold harmless,and
defend the Franchising Authority,its officers,boards and employees,from and against
any liability for damages and for any liability or claims resulting from property damage or
bodily injury (including accidental death),which arise out of the Grantee's construction,
operation,or maintenance of its Cable System in the Service Area provided that the
Franchising Authority shall give the Grantee written notice of its obligation to indemnify
the Franchising Authority within ten (10)days of receipt of a claim or action pursuant to
this subsection.Notwithstanding the foregoing,the Grantee shall not indemnify the
Franchising Authority for any damages,liability or claims resulting from the willful
misconduct or negligence ofthe Franchising Authority.
SECTION 7
Enforcement and Termination of Franchise
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
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informally discuss the matter with Grantee.If these discussions do not lead to resolution
of the problem,the Franchising Authority shall notify the Grantee in writing of the exact
nature of the alleged noncompliance.I
7.2 The Grantee's Right to Cure or Respond.The Grantee shall have thirty (30)
days from receipt of the notice described in subsection 7.1:(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 thirty (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.
7.3 Public Hearing.In the event that the Grantee fails to respond to the notice
described in subsection 7.1 pursuant to the procedures set forth in subsection 7.2,or in
the event that the alleged default is not remedied within thirty (30)days or the date
projected pursuant to 7.2(C)above,if it intends to continue its investigation into the
default,then the Franchising Authority shall schedule a public hearing.The Franchising
Authority shall provide the Grantee at least ten (10)days prior written notice of such
hearing,which specifies the time,place and purpose of such hearing,and provide the
Grantee the opportunity to be heard.
7.4 Enforcement.Subject to applicable federal and state law,in the event the
Franchising Authority,after the hearing set forth in subsection 7.3,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;or
B.Conunence 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,
seek to revoke the Franchise in accordance with subsection 7.5.
7.5 Revocation.Should the Franchising Authority seek to revoke the Franchise
after following the procedures set forth in subsections 7.1-7.4 above,the Franchising
Authority shall give written notice to the Grantee of its intent.The notice shall set forth
the exact nature of the noncompliance.The Grantee shall have ninety (90)days from
such notice to object in writing and to state its reasons for such objection.In the event
the Franchising Authority has not received a satisfactory response from the Grantee,it
may then seek termination of the Franchise at a public hearing.The Franchising
Authority shall cause to be served upon the Grantee,at least thirty (30)days prior to such
public hearing,a written notice specifying the time and place of such hearing and stating
its intent to revoke the Franchise.
At the designated hearing,Grantee shall be provided a fair opportunity for full
participation,including the right to be represented by legal counsel,to introduce relevant
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evidence,to require the production of evidence,to compel the relevant testimony of the
officials,agents,employees or consultants of the Franchising Authority,to compel the
testimony of other persons as permitted by law,and to question witnesses.A complete
verbatim record and transcript shall be made of such hearing.
Following the hearing,the Franchising Authority shall determine whether or not
the Franchise shall be revoked.If the Franchising Authority determines that the
Franchise shall be revoked,the Franchising Authority shall promptly provide Grantee
with its decision in writing.The Grantee may appeal such determination of the
Franchising Authority to an appropriate court which shall have the power to review the
decision of the Franchising Authority de novo.Grantee shall be entitled to such relief as
the court finds appropriate.Such appeal must be taken within sixty (60)days of
Grantee's receipt of the determination of the Franchising Authority.
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 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,where such noncompliance or alleged
defaults occurred or were caused by circumstances reasonably beyond the ability of the
Grantee to anticipate and control.This provision includes work delays caused by waiting
for utility providers to service or monitor their utility poles to which the Grantee's Cable
System is attached,as well as unavailability of materials and/or qualified labor to perform
the work necessary.
Furthermore,the parties hereby agree that it is not the Franchising Authority's
intention to subject the Grantee to penalties,fmes,forfeitures or revocation of the
Franchise for violations of the Franchise where the violation was a good faith error that
resulted in no or minimal negative impact on the Subscribers within the Service Area,or
where strict performance would result in practical difficulties and hardship to the Grantee
which outweigh the benefit to be derived by the Franchising Authority and/or
Subscribers.
SECTION 8
Miscellaneous Provisions
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.
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8.2 Entire Agreement.This Franchise constitutes the entire agreement between the
Grantee and the Franchising Authority and supersedes all other prior understandings and
agreements oral or written.Any amendments to this Franchise shall be mutually agreed to
in writing by the parties.
8.3 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 when placed in a properly sealed and correctly addressed envelope:a)upon receipt
when hand delivered with receipt/acknowledgment,b)upon receipt when sent certified,
registered mail,c)within five (5)business days after having been posted in the regular
mail or d)or the next business day if sent by express mail or overnight air courier.
The notices or responses to the Franchising Authority shall be addressed as follows:
City Administrator
City of Waukee
230 Highway 6
Waukee,IA 50263
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The notices or responses to the Grantee shall be addressed as follows:
Mediacom
Attn:Director of Government Relations
6300 Council Street NE
Cedar Rapids,IA 52402
with a copy to:
Regional Vice President
Mediacom
2205 lngersoll Avenue
Des Moines,IA 50312-5289
The Franchising Authority and the Grantee may designate such other address or addresses
from time to time by giving notice to the other in the manner provided for in this
subsection.
8.4 Descrilltive Headlnzs.The captions to Sections and subsections contained
herein are intended solely to facilitate the reading thereof.Such captions shall not affect
the meaning or interpretation of the text herein.
8.5 Severability.If any Section,subsection,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,subsection,
sentence,paragraph,term or provision hereof,all of which will remain in full force and
effect for the term of the Franchise.
8.6 Effective Date.The effective date of this Franchise is June 15,2002,pursuant to
the provisions of applicable law.This Franchise shall expire on June 15,2017,unless
extended by the mutual agreement of the parties.
Considered and approved this 20th day of May 2002.
CITY OF WAUKEE
Signature:,Lttuta·fr;4;
Name/Title:Mark D.Leslie,Mayor of Waukee
er
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Accepted this __day of -----',2002,subject to applicable federal,
state and local law.
MCCIOWALLC 'I
Signature:_
Name/Title:_
]
)
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