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HomeMy WebLinkAboutOrdinance No. 19359ORDINANCE NO. 19359 AN ORDINANCE GRANTING TO GROUP W CABLE, INC. A NON- ExCLUSIUE FRANCHISE FOR THE OPERATION OF A CABLE COMMUNI- CATIONS SYSTEM; AND AMENDING ORDINANCE NOS. 1884 AND 18936. THE CITY OF EUGENE DOES ORDAIN As FOLLOWS: Ordinance Na. 1854 as amended by Ordinance No. 18936 is further amended to provide: section 1. Pur ose. Anon-exclusive franchise is hereby granted to Group W Cable, Inc., hereinafter referred to as "Grantee", to install, con- struct, operate, maintain, reconstruct, and expand a cable communications system within the public streets, ways, alleys, public utility easements, and places of the City of Eugene, hereinafter referred to as "Grantor". This franchise shall constitute both a right and an obligation to provide the ser- vice of a cable communications system as required by the provisions of this ordinance. Amended by Ordinance No. 19359, 10/14/85.} Section 2, Short Title, This ordinance shall be known as the "Metro politan Cable TIC Franchise Ordinance." Amended by Ordinance Nob 19359, 10/14185. Section 3. Definitions. For the purpose of this ardi Hance, the fol 1 ow- ing terms have the meaning given herein: "Access Center" means the studio, facilities, and equipment pro- vided for cablecasting non-commercial public, educational, and local govern- ment programming. Amended by Ordinance No. 18936, 3/$/$Z; Ordinance No. 19359, 10/14/85.} "Access Channels" means those channels required by this ordinance to be kept available by the Grantee for partial or total dedication to public access, educational access, and local government access. Amended by Ordi- nance No. 19359, 10114185,} Ordinance - 1 "Basic Service" means those services described in subsection 5~2~ provided by the Grantee for standard installation charge and a regular month- ly charge paid by al l subscribers . "Cable Communications System" or "system" means a system of antennas, cable, amplifiers, towers, microwave links, waveguides, laser beams, satellites, earth stations, or any other conductors, converters, equipment, or facilities, designed and constructed for the purpose of producing, receiv- ing, amplifying, storing, processing or distributing audio, video, digital, or other forms of electronic or electrical signals, "Commission" means the Metropolitan Cable Television Commission established by Lane County, the City of Eugene, and the City of Springfield. Amended by Ordinance No. X9359, ~0/~4/85.} "Cam arable systems'' means those systems with similar facilities, equipment, channel capacity, age of franchise and system, number of subscrib- ers and population served and competitive market. Added by Ordinance No. X9359, ~0/~4/85.} "Federal Act" means the Cable Communications Policy Act of X984, Public Law 98-549, October 30, X984. Added by Ordinance No. X9359, 10/~4/85.~ "Franchise Territory" Eugene-Springfield means the area within the legal boundaries of the Grantor, including any areas annexed during the term of the franchise . "Franchise Territory" Lane County} means the unincorporated aria of the Grantor within the urban growth boundary existing at the date of the franchise as those boundaries are designated by the Metropolitan Area General Plan adopted by Lane County, the City of Eugene, and the City of Springfield; and any other areas mutually agreed to by the Grantee and the commission. Amended by Ordinance No. 18936, 3/8/$2; Ordinance No. X9359, 10/~4/85.~ Ordinance - Z r, r ~ I i !: ~ 1. "Gross Annual Revenues" means any and all compensation in whatever form, grant, subsidy, exchange, or otherwise, directly ar indirectly received by Grantee for services provided to subscribers within the franchise~terri- tory but excludes taxes grantee is required to separately state and collect from subscribers. Amended by Ordinance No. 19359, 1Q/14/85.~ "Monitoring" means observing a one-way communications signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, where the signal is observed by visual ar electronic means for any purpose whatsoever. "Premium Pro rammin Service. Any programming service other than basic service. Added by Qrdinance No. 19359, la/14/85. "Rate Schedule" means the charges for all subscriber services. Amended by Grdinance No. 19359, 1G/14/85.~ "standard installation Char e" means the cost to the subscriber far connection tv the cable communication system in the amount specified in the current rate schedule. "streets" means the surface of and the space above and below any public street, sidewalk] alley, easement, or other dedicated public way of any type whatsoever, now or hereafter existing as such within the jurisdic- tion of the Grantor. "Subscriber" means any person, firm, corporation, or other entity legally receiving electronic signals by means of the Grantee`s cable communi- cations system. Amended by Grdinance No. 19359, 10114185.) "Plan Submitted by Grantee" means the ,service development plan sub- mitted by Grantee to Grantor as part of the negotiations between Grantor and Grantee which preceded the adoption of the ordinance and the plans submitted in compliance with Sections 7 and 13 of this ordinance. Amended by Ordi- nance 19359, 1Q/14/S5.} Ordinance - 3 Section 4. Commissian Authority. The Commission shall represent the Grantor i n admi ~i strati on of the franchise, and advise the Grantor i n accord- ance with the agreement between Lane County, City of Eugene, and City of Springfield which established the commission. Upon enactment of this ordi- nance, Grantors Lane County, City of Eugene, and City of Springfield shall continue the life of the commission for the duration of the franchise. The form, organization, and powers of the commission shall be determined jointly by Lane County, City of Eugene, and City of Springfield, but the commission shall have at least those powers referred to in this ordinance. Amended by Ordinance No. X9359, 1C/~4/85.~ Section 5. Services Provided. ~~~ Channel Ca acity. The cable communication system operated by Grantee at the time this franchise was adapted provided ~D channels and was increased tv a 35-channel capacity in accordance with the plan submitted by Grantee. Before Grantee further increases the channel capacity of its cable system, it shall submit to the commission reports containing relevant infor- mation identified in Section ~3 of this ordinance no later than 60 days be- fore undertaking installation of equipment to allow the commission to review and comment on the proposal. The obligations of the Grantee and the commis- sion as provided in Section 13 of this ordinance sha11 apply to these re-° ports and the Grantee's submissions under Section 13 of this ordinance may be in lieu of this requirement if submitted more than 60 days before Grantee undertakes installation of equipment. Amended by Qrdinance No. 18936, 3/8/82; Ordinance No. X9359, 1C/14185.} ~2} Basic Service. ~a~ Basic service shall include 2~ channels of cable capacity which shall have video program signals and services assign- ed to each channel. idea programming shall not be encoded and shall include al l of the fallowing categories: Ordinance - 4 ~i} All signals mandated by the Federal Communications Commission which includes among others a public broadcasting signal originating in the Willamette lfalley}, iii} News programming, viii} Sports programming, ~ i v} Cultural and performing arts programming, (v} Hideo-music programming, Zvi} Public, educational, and government access program- ming; ~ vi i } Religious programming, and viii} tither imported programming. If any channel allocated for basic service is technically incapable of carry- ing a reasonable quality of video programming signal, it may be programmed with other programming services. Tt is recognized that some television re- ceivers lack the capability of receiving all 2~ channels of programming des- cribed in this subsection. Grantee is under no obligation to provide convert- ers which make it possible for such television receivers to receive all Z~ channels. However, not withstanding paragraph 5~~}~d}, Grantee may provide converters far such television receivers on whatever basis it deems reason- able, fib} With approval of the commission, Grantee may modify the categories described in paragraph 5~Z}~a} upon a demonstration that the mix, quality, and level of service required in this subsection will be maintained after such modification. ~c} As provided in this paragraph, if for two consecutive months the subscriber penetration level within the urban growth boundary has dropped below 5~ percent of the occupied dwelling units where cable services are available, Grantee may establish for rate-setting purposes, tiers of video programming within the basic service, Before Grantee implements such 0~^dinance - 5 tiers, Grantee shall file with the commission Grantee's written determination of the subscriber penetration level and any supporting evidence. The commis- sion shall have up to 45 days to review Grantee's determination. After the 45 days or earlier with the commission's concurrence, Grantee may proceed with the tiering unless within the 45 days the commission finds upon a pre- ponderance of evidence that the subscriber penetration level is higher than the percentage stated in this paragraph. The commission's action adopting the findings shall be final. Such action shall not prevent Grantee from mak- ing another determination under this paragraph at anytime. If new video programming signals become available which Grantee believes will be mare marketable, or, if Grantee is unable to continue to pro- vide existing video programming signals because of circumstances reasonably beyond its control , equivalent, superior, or required signals may be substi ~- tuted, upon 30 days prior written notice to the commission. ~d} In no event shall subscribers be required to subscribe to any other service as a condition for obtaining basic service. Subsection (~} amended by Ordinance No. 18936, 3/8/82; Ordinance No. 19359, 10/14185.} (3} Cantral Devices. Subscribers to any premium programming ser- vice shall, upon request, be supplied with control devices at a reasonable monthly charge to 1 imi t viewing of the premium programming servi ce~ on i ndi ~- vidual television receivers. Amended by Ordinance No. 19359, 1D/14/85.} ~4} Service to Institutions. Upon request, the Grantee shall make single installations of its cable communication system facilities to each fire and police station, public school, City Hall, County Courthouse, and al 1 publ i c 1 i brari es within the franchise territory on the terms provided i n Section l~2} of this ordinance except no standard installation fee shall be imposed for such installations. No monthly service charge shall be made for distribution of the services described in this section to these locations. Amended by Ordinance No, 18936, 3/8/82; Ordinance No. 19359, 10114/85.} Ordinance - 6 ~5} Access Facilities and E ui ment. Commission may equip, main- tain, and operate an access center on premises within Grantee's service area selected by the commission. Grantee shall provide at its expense and upon reasonable notice the necessary connections~s~ between its cable cammunica~ tions system and the access center or other public facilities to allow the simu1taneaus cablecast of programs on the access channels. The commission`s operation of the access center shall not damage grantee`s cable communicate tions system. Amended by Ordinance No. 19359, 1x/14/$5.} ~6} Access Channels. ~a~ Grantee shall provide three channels dedicated far public, educational, and local government access programming within the basic service. For television receivers incapable of receiving all 21 channels, one of the access channels shall be capable of being viewed on channel 4 with a special device. There sha11 be no monthly charges or rental for the special device which Grantee shall sell to subscribers at Grantee's cost. Grantee`s charge far installation of the device shall be reasonable, within 1Za days of written notice to the Grantee by the commis lion, Grantee shall provide a fourth access channel within basic service when the other three channels are scheduled with new programming SO percent of prime time daily 6 p.m. to 11 p.m.~ and the balance of the cablecast da y daily $ a.m. to 6 p.m.} is scheduled 6D percent of the time. The percent ages will be measured over a 90-day period. Amended by ordinance No. 1$936, 3I$/8~; Ordinance No. 19359, 10/14/$5. ~b~ When local programming is not scheduled on the access channels, at the commission's request Grantee shall provide such programming as may be available through use of Grantee's facilities at no cost to the commission or Grantee. Grantee shall not be responsible for providing any local programming. Added by ordinance No. 19359, 10/14/$5. ~~} Emergency Use. Tn the case of any. emergency or disaster, the Ordinance - 7 Grantee shall, upon request of the Grantor, make available its facilities for emergency use during the emergency or disaster period at no cost to the Grantor. The system shall be designed so that viewers an all channels can receive immediate notice of the emergency cablecast. Renumbered by Ordi- nance No. 19359, 10/14/85. Section 6. Rates for Installation and services. ~1~ schedule of Rates. Grantor and the commission shall not regu- late Grantee`s rates and charges. However, Grantee sha11 keep on file with the commission a current schedule of subscriber rates and charges. Amended by Ordinance Na. 19359, 1D/14/85.~ ~Z} Advance Char es. Grantee may require subscribers to pay for each month of basic service in advance at the beginning of each month. ~3} Prohibition of Discriminatory or Preferential Practices. The Grantee shall not, in its rates or charges, ar in making available the ser- vices or facilities of its system, or in its rules or regulations, or in any other respect, make or grant discriminatory preference or advantages to any subscriber or potential subscriber to the system, ar to any user or poten- tial user of the system; and shall not subject any such persons to any pre- judice or disadvantage; provided nothing herein sha11 prevent Grantee from establishing different rates for uniform classes of subscribers or adjusting rates for marketing purposes. Amended by Ordinance No. 19359, 10/14/85.} ~4~ Disconnections, Failure to Pay, There shall be no charge for disconnection from the system. Tf a subscriber has failed to pay a properly due monthly subscriber fee within 15 days after the due date of the fee, Grantee may cause disconnection of the subscriber's cable installation after 10 days of prior written notice; however, upon payment in full of the delin- quent monthly subscriber fee, and the reconnection charge, the Grantee shall promptly reinstate the subscriber's service. ordinance - 8 ~5} Subscriber Refunds. If any subscriber terminates, for personal reasons, Grantee shall refund to subscriber the prepayments that are for the periods} beyond the billing month in which service is terminated. Amended by Ordinance No. I9359, IO/14/85.} Section 1. Extension of Service. ~1} Service Availability and Re uest Record. The Grantee shall provide cable communications service throughout the franchise territory pur- suant to provisions of this section and shall keep a record for at least three years of all requests for service received by the Grantee. This record shat 1 be available for inspection by the commission ar its designee at the local office of the Grantee during regular office hours. ~~} Service to Individual Subscribers from Existin System. Where a subscriber can be served from the Grantees existing system, without exten- si on of the trunk distribution cable, the Grantee shall serve the potential subscriber upon request on the following terms and conditions: ~a} The dwelling unit shall be connected to cable at the standard installation charge if the connection can be made with an aerial drop and does not exceed I50 feet. fib} If the aerial connection drop exceeds I50 feet, the potential subscriber may be charged the actual cost for the distance exceeding I50 feet plus standard installation charge, and Grantee may request advance payment far such installation. ~c} If the requested installation is to be placed underground, the potential subscriber must pay far furnishing open trench, as specified by the Grantee, backfilling and restoring to original conditions and Grantee may request advance payment for such work. (d) The potential subscriber shall arrange for all necessary easements over or under private property. Ordinance - 9 ~3} Plan for Extension and Reconstruction of the Cable System. ~a} Attached to this franchise Appendix A} is a map of the franchise territory clearly delineating 1} the areas within the terri tvey where the cable communications system is now available to subscribers, and 2} the areas within the territory where the system is not presently avail- able, together with a plan far extensian which will show when each residen- tial area will have access to the system. Amended by Ordinance No. 19359, 1DI14I85.} fib} Tf there are areas within the franchise territory where extension of the cable communications system cannot reasonably be extended be- cause of lack of planned development, or other reasons, then the areas, and the reasons for not serving them, must be clearly identified in the lan re- p port and on the map. All reports and maps shall be made available for public inspection at Eugene City Hall, Springfield City Hall, Lane County Courthouse, and the main local office of Grantee. Amended by Ordinance No. 19359, 10/14/85.} ~c} The plan far extension shall be reviewed at the meetings authorized in Section 152} or modified if necessary as agreed by the Grantee and commission. ~ihenever changes are made as provided in this section, copies of the revised plan report and map shat 1 be made available for publ i c inspection as provided in this section far the original plan report and map. Amended by Ordinance No. 19359, 1O~14/85.} ~d} Nothing in this section shall prevent the Grantee ex- tending the system earlier than planned. However, any postponement of system extensian beyond the times specified in the plan report timetable shall require consent of the commission, which shall not be unreasonably withheld. The commission may require a performance bond not to exceed $450,00 to ensure compliance with this section. Ordinance - 10 ~4} Additional Extension of System. Extension of the system into any areas not specifically treated in the plan submitted pursuant to sub- paragraph ~3} herein shall be as required by subparagraphs ~5} and ~6} herein. Zn areas not meeting the requirements for mandatary extension of service, Grantee sha11 provide, upon request of five ar more potential subscribers desiring service, an estimate of costs required to extend service to said subscribers, and the amount by which said costs exceed what would be the cast of mandatory extension under this section. Grantee shall extend service to any such dwelling units upon advance payment far assurance of payment satisfactory to the Grantee} of the additional cost. Such payments sha11 be nonrefundable, and in the event the area subsequently reaches the density required for mandatary extension, such payments shall be treated in full or in part as consideration far early extension of service. ~5} Underr~round Ex_tension.., of ,System -~ - - • ~a} installation of System. ~n cases of new construction or property development where utilities are to be placed underground, the devel- oper or property owner shall give Grantee reasonable notice of such construc- tion or development, including a copy of any final plat, and of the parti- cul ar date on which open trenching wi l l be available for Grantee ` s install a- n on of conduit, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching, fib} Costs of trenching and easements required to bring ser- vice to the development shall be borne by the developer yr property owner, except that if Grantee fails to install its conduit, pedestals and/ar vaults, and laterals within ~ working days of the date the trenches are available, as designated on the notice given by the developer ar property owner, then should the trenches be closed after the two-day period, the cost of new trenching is to be borne by Grantee. Grdinance - 1~ ~c} Activation of Service. Grantee shall promptly provide service upon request at the standard installation rate where the potential subscriber can be served by extension of distribution cable past occupied dwelling units equivalent to a density of 25 dwelling units per quarter mile of cable contiguous to the already activated system. Such density shall be computed on the basis of dwelling units which can be served on either side of the cable. (Amended by Ordinance No. 19359, 10/14/85.) ~5~ Aerial Extension of System. 1n any area where utility lines are permitted above ground, Grantee shall extend its system and provide ser- vice upon request pursuant to Section 1~2~ herein, where the potential sub- scriber can be served by extension of distribution cable past occupied dwelling units equivalent to a density of 25 dwelling units per quarter mile of cable contiguous to the activated system. Such density shall be computed on the basis of dwelling units which can be served an either side of the cable. Amended by Ordinance No. 19359, 10/14/85. ~7~ Extension of Service by A reement. Nothing herein shall be construed to prevent Grantee from serving areas not covered under this sec- tion upon agreement with developers, property owners, or residents. Any such agreement shall be in writing and filed with the commission. Section 8. Com liance with Construction and Technical Standards. Grantee shall construct, install, operate, and maintain its system in a manner consistent with applicable local construction standards, governmental requirements, FCC technical standards, and detailed standards submitted by Grantee and approved by the commission prior to acceptance of this franchise, which standards are attached to this ordinance as Appendix B and incorpor- ated by reference herein. In addition, Grantee shall provide the commis- si an with a wri tten summary of the results of Grantee's annual proof of per~- fiormance tests conducted pursuant to FCC standards and requirements. Grantee Ordinance - 12 shall provide to the commission a complete copy of the annual proof of per- formance tests upon request by the commission. Amended by ordinance No. X9359, ~O/I4185,~ Section 9. Use of Public days. ~1} Street apenin~s or Gb.struc,tions. Any opening or obstruction in or disturbance of the streets made by Grantee in the exercise of its rights under this f ranchise agreement shall be lane in compliance with the standard specifications of the Grantor and all other applicable Federal, State, and local laws, ordinances, traffic manuals, and regulations. No hard surface pavement shall be cut or street broken by the Grantee without first obtain- ing a permit from the Grantor, which requires a plan submittal and approval before installation begins. ~Z~ Undergroundi,nc~,and Pole Use. The cable communications system cables, wires, and associated equipment or facilities shall be placed under- ground in areas of the franchise territory where telephone and electric util- ity lines are underground. At no time shall the cable system be the only aerial facility. Undergrounding of Grantee's equipment and facilities shall be done in compliance with code provisions of the Grantor, and in coopera- tion with the telephone company and electric utility board operating in the area. In all matters relating to undergrounding, Grantor shall not discri- minate against Grantee with respect to any requirements imposed or benefits conferred upon telephone or electric utilities, except as such benefits to telephone or electric utilities are required by State law and the same bene- fits to Grantee are not required by State law. Arrangements shall be made by the Grantee with the telephone company or utility board for the use of existing poles in areas where the utilities are above ground, and no poles shall be erected by the Grantee without prior approval of the Grantor. Be- fore placing equipment or facilities underground, or above ground, it sha11 Drdinance - 13 be the responsibility ofi Grantee to determine whether necessary easements exist, and except as otherwise provided in this ordinance, to secure ease- ments, if needed, and to show said easements on each plan submitted far pro- posed construction. ~3} Restoration ,and _,Re~ai r of Streets. Whenever the Grantee di s- turbs any of the streets, it shall restore them according to the adapted standard specifications of the Grantor. The Grantor shall have the right to fi x a reasonable time within which such restorati an and repair of streets shall be completed, and upon failure of Grantee to make the restoration and repair within the alloted time, the Grantor may cause such restoration and repair to be made at the expense of Grantee. Amended by Grdinance No. X9359, ~a/14/85.} ~4~ Grantor`s Use of Streets. Nothing in this franchise shall be construed in any way to prevent the proper authorities of the Grantor from severing, grading, planking, rocking, paving, repairing, altering, or improv- ing any of the streets, alleys, easements, avenues, thoroughfares, and public ways within the franchise territory in or upon which the poles, wires, or other equipment of said Grantee shall be placed. All such work ar improve- ments shall be lane, if possible, so as not to obstruct or prevent the free use of said poles, wires, conduits, or other equipment. ~5~ Tree Trimming. Where tree trimming is necessary on public streets for the operation of the lines, wires, cables, and antennas or other appurtenances of the Grantee, the trimmings shall be done by competent em- ployees, agents, or contractors of the Grantee after application far and granting of a written permit by the Grantor, and it shall be done without cost or expense to the Grantor. ~6~ Grantor's Use of Poles. Grantor reserves to itself the right at any time to use the poles and other installations of Grantee erected or installed under the authority granted in this ordinance for any Grantor-owned Grdinance - 14 facilities of whatsoever nature, but it is agreed that such use shall not interfere or compete with Grantee's use thereof. Grantor shall hold Grantee harmless from any and all liability which may arise as a result of its use of Grantee's poles or other installation. ~7~ E ui ment Maintenance. Grantee shall at all times keep and maintain al 1 of its poles, fixtures , conduits, wires, and i is entire system i n a good state of repair and shall indemnify and save harmless the Grantar of and from any and all damages of any kind or character growing out of or aris- ing by reason of Grantee's failure to so maintain the cable communications system i n the franchise terri nary. ~ 8~ Tem arary Removal of Faci 1 i ti es . ~a~ Grantee shall at its expense protect, support, temporarily disconnect, or relocate any of its equipment when required to do so by Grantor by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, paver lines, signal lines, and tracks, or any other type of structures or improvements by the Grantor or such duly estab- lished utility boards as the Eugene mater & Electric Board or the Springfield Utility Baard. ~b~ Grantee shall, within ? days of written request of any person holding an appropriate permit issued by the Grantar, temporarily raise or lower its lines or other equipment to permit the moving of any building ar ather structure, machinery, or object, and the actual expense of the same shall be paid by the person making the request. The person making the re- quest will indemnify and save harmless said Grantee of any and all damages or claims of whatsover kind or nature caused directly or indirectly from such temporary rearrangement of the equipment of the Grantee and, if required by Grantee, shall provide a cash deposit or a goad and sufficient bond to pay any and all such costs as estimated by Grantee. Grdinance ~ 15 ~c~ All installations, rearrangements, removals, and lowering or raising of aerial cables or wiring or other apparatus shall be done in con- formance with the requirements of the National Electric Safety Code, and the laws of the State of Oregon and the ordinances of the Grantor. ~9~ Maws and Rec,ards. The Grantee shall file with the Grantor a system "as-built" map drawn to accurate scale, and shall amend the map annu- ally or as often as necessary to keep the Grantor informed as to the location of all foci 1 i ti es installed i n the franchise territory. The map shat 1 cl ear- ly indicate location of trunks, distribution of lines, and amplifiers within the public rights-of~way. Location of subscriber service drops in a speci- fied area shall be provided promptly by Grantee upon Grantor's request in connection with activities set forth i n Subsections ~4~ and ~S} of this sec- tion. ~~0} Emer ency Removal of Facilities. If at any time, i~ case of f ire or disaster i n the franchise territory, i t shat 1 become necessary i n the reasonable judgment of the Grantor to cut ar move any of the wires, cables, amplifiers, or other appurtenances to the system of the Grantee, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by the Grantee, at its sole expense, provided that such repairs are not necessitated by a negligent act of the Grantor, in which case costs far re- pairs shall be borne by the Grantor. ~~1~ Alternate Boutin of Facilities, ~n the event the public interest requires continued use of a street be denied to the Grantee by Grantor, the Grantee shall provide service to affected subscribers aver such alternate routes as shall be determined by Grantee within a reasonable period of time. Amended by Ordinance No. X9359, ~0/~4/85.) Section 10. Payment to Grantor. ~1} Franchise Fee. As compensation for the permit granted herein Ordinance - ~6 and in consideration of permission to use the streets and public ways of the Grantor in the franchise territory far the construction, operation, mainten- ance, and reconstruction of a cabl a common i cati an s system within the franchise territory, the Grantee shall pay to the Grantor an annual amount equal to five percent ~5%~ of the Grantee's gross annual revenues as defined in sec- tion 3 herein. Amended by Ordinance Na. 19359, 10/14/85. ~2} Payment Schedule. Payments due Grantor under this provision shall be computed quarterly, for the preceding quarter, as of March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than 60 days after the dates listed in the previous sentence. ~3~ Late Penalty. The Grantee shall furnish to Grantor, with each payment of compensation required by this section, a written statement under oath, executed by an authorized agent of the Grantee, showing the amount of gross annual revenues of the Grantee within the franchise territory for the period covered by the payment computed on the basis set out in Subsection ~1} of this section. The compensation far the period covered by the statement shall be computed on the basis of the grass annual revenues so reported. If the Grantee fails to pay the entire amount of compensation due the Grantor, through error or otherwise, within the times allated for payment in Subsec- tion ~2} above, the amount of the fee due for that quarter and not timely paid shall be subject to a late penalty of an additional ten percent ~10%~ plus interest of one percent ~1%~ per month on the amount of fee due and un- paid from the date due until it is paid together with the late penalty. ~4~ verification of Amount Due. Na acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the Grantor may have for further or additional sums payable under the provi- sions of this franchise. All amounts paid shall be subject to audit and re- computation by the Grantor and all retards required. to conduct such an audit Ordinance - 1~ shall be made available to Grantor at the expense of the Grantee. ~5~ Com ensation Nat a Credit A ainst Certain Taxes and Fees. Nothing contained in this franchise shall give the Grantee any credit against any nondiscriminatory business tax, or ad valorem property tax, now or here- after levied against real or personal property within the city, or against any local improvement assessment imposed on Grantee, ar against any permit fees ar inspection fees required by the construction codes ar other ordi- nances of the Grantor which are or may hereafter be adopted. Section 1~. Perfarmance Bond and Liability insurance. ~1~ Perfarmance Band. Upon being granted a f ranchise, and upon the filing of the acceptance required under Section 15~~~ hereof, Grantee shall file with Grantor and shall thereafter, annually, during the entire term of such f ranchise, maintain in full farce and effect a corporate surety bond or other adequate surety agreement in the amount of $~5,oaa. The bond or agree- ment shall be so conditioned that in the event that Grantee shall fail to materially comply with any one or mare of the provisions of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the Grantor as a result thereof, including attorneys' fees and costs of any action or pro- ceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property, or other costs .which may be in default, up to the full principal amount of such bond. Such condition shall be a continuing obligation during the entire term of such franchise and thereafter unti l Grantee shal 1 have satisfied i n f ul 1 any and al 1 obligation s to the Grantor which arise out of or pertain to said franchise. In lieu of the band agreement, Grantee may deposit cash with the Grantor or in a Federal or State of aregon bank or savings and loan association on terms and condi- tions approved by the Grantor and the Grantee. Neither the provisions of Grdinance - 1$ this section, and any bond accepted by the Grantor pursuant thereto, nor any damages recovered by Grantor thereunder, nar any withdrawal from any cash deposit shall be construed to excuse faithful performance by Grantee or to limit the liability of Grantee under this ordinance for damages, either to the full amount of the band or otherwise. ~~} Proof of Performance Band, Upon the effective date of this franchise, Grantee shall furnish to Grantor proof of a cash deposit as pro- vided in Subsection ~~), or shall furnish a bond, as required in Subsection ~~), containing the following endorsement; ~t is hereby understood and agreed that this bond may not be cancelled nar the intention not to renew be submitted until 30 days after receipt by the Finance Director of the City of Eugene by registered mail of a written notice of such intent to cancel or not renew. ~3) Public Liability insurance. Grantee shall indemnify and save the Grantor free and harmless from any and all liability, loss, cost, damage, or expense from accident ar damage, either to itself or to persons or prap- 6 erty of others which may occur by reason of the exercise of the rights and privileges herein granted; and shall, for the purpose of carrying out the provisions of this section, and prior to commencing canstructi on of any kind, have in full force and effect, and file evidence thereof with the Grantor, a good and sufficient policy for policies) covering $500,000 personal injury each person, $x,000,000 personal Injury each accident, and $~D0,000 property damage with policy for policies) to be executed by an insurance company for companies) authorized and qualified to do business in the state of Oregon and conditioned to indemnify and save harmless the Grantor from and against any and all claims, actions, suits, liability loss, cost, expense, ar damage of any kind or description which may accrue to or be suffered by the Grantor or by anyone by reason of the erection, construction, reconstruction, relocation, replacing, readjustment, repair, maintenance, or operation of the coaxial Ordinance - ~9 cable and appurtenances thereto, or by reason of anything that has been done or may be done by the Grantee hereunder which may in any way cause liability by reason thereof. ~4} Reimbursement of Costs. The Grantee shall pay all reasonable expenses incurred by the Grantor in defending itself with regard to all dam- ages and penalties mentioned in Subsection ~3} above. These expenses shall include all out-of~pocket expenses, such as consultant or attorney fees. Amended by Ordinance No. 19359, 1D/14185.} ~5} Notice of Cancellation ar Reduction in Covera e. The insurance policies mentioned above sha11 contain an endorsement stating that the poli- cies are extended to caner the liability assumed by the Grantee under the terms of this ordinance and shall contain the following endorsement; ~t is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced until 30 days after receipt by the Finance Director of the City of Eugene by registered mai 1 of a written notice of such intent to cancel or reduce the coverage. (6~ Evidence of Insurance Filed with Grantor. A11 policies of in~ surance or certified copies thereof and written evidence of payment of re- quired premiums shall be filed and maintained with the Grantor during the term of the franchise. ~7~ Na Waiver of Performance Bond. Neither the provisions of this franchise nor any insurance accepted by the Grantor pursuant hereto, nor any damages recovered by the Grantor thereunder, shall be construed to excuse faithful performance by the Grantee or limit the liability of Grantee under the franchise for damages, either to the full amount of the bond ar otherwise. Nor shall maintenance of insurance pursuant to this section be construed to impose liability to third parties on Grantee for loss expense or damages atherwi se al 1 ocated under provisions of this ordinance. Ordinance - ~0 Section 12. Responsi bi 1 ~ti es,,,..~to Pu,b~ i c. ~~} R_,e~ air. any damage caused to the property of building owners or users or any other .person, by the Grantee? shall be repaired fully and promptly by the Grantee. ~Z} Removal of Facilities U on Re uest. Upon termination of ser- vices to any subscriber, the Grantee shall remove promptly all its above ground eternal facilities and equipment from the premises of the subscriber at the owner's written request. ~3} Complaint Procedures and_1nqu,~,,ri es. ~a} Grantee shall maintain an office in the city of Eugene, which shall be open during ali the usual business hours with its telephone listed in directories of the telephone company serving the franchise terri- tory, and be so operated that complaints and requests for repairs or adjust- ments may be received at any time, day or night, seven days a week. The phone number and address of this office shall be furnished to each subscriber by the Grantee. ~b~ Except as provided in paragraph ~c~ of this subsection, original records including service records pertaining to complaints received by the Grantee, and of the office procedures followed to satisfy those com- plaints shall be maintained by the Grantee for a period of~not less than 3 years in Lane County, Dregon, and made available for inspection by the com- mission vn reasonable notice to the Grantee. This record shall be considered by the commission in evaluating Grantee's system. Amended by Grdinance No. 19359, 1Q/14/85.} ~c} Grantee may annually summarize complaints received re- garding programming and then destroy the original records regarding these complaints if it files a written copy of the summary with the commission. Added by Ordinance No. 19359, 1Q/14/85.~ Grdinance - ~1 ~4} Maintenance of Service. ~a} Grantee shall maintain a repair and troubleshooting force capable of responding to subscriber camp1 ai nts wi thi n ~ working days after receipt of the complaint, other than as may be due to circumstances beyond the reasonable control of the Grantee. No charge shall be made to the subscriber for maintenance of Grantee`s system unless the subscriber has negligently or intentionally caused the damage. Amended by Ordinance No, X9359, ~0/~4/S5.} fib} Grantee shall put, keep, and maintain all parts of the cable communications system in good condition throughout the entire period of this permit. ~c} The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, i nsofar as possible, shat l be preceded by notice and shall occur during periods of minimum use of the system. ~d} In the event that a subscriber complaint is not resolved to the mutual satisfaction of the subscriber and the Grantee, either the sub- scriber or the Grantee may request that the matter be presented to the com- missi on for final resolution by the commission or its designee. fie} 4~hen there have been similar complaints made or where there exists other evidence, which in the judgment of the commission casts doubt on the reliability or quality of cable service, the commission shall have the right and authority to compel the Grantee to test, analyze, and re- port on the performance of the system. Such test or tests shall be made, and the reports of such test or tests shall be delivered to the commission, within ~4 days after the same have been requested by the commission. Such reports} shall include the following information; the nature of the com- plaint s} which precipitated the special tests, the system components} test- ed and the equipment used and procedures employed in said testing, the re- sults of such tests, and the method in which such complaints were resolved. Ordinance - Z2 Any other information pertinent to the special tests} shall be recorded and reported. At the commission's option, said tests and analyses shall be supervised at the Grantee's expense by a professional engineer not on the permanent staff of the Grantee. The aforesaid engineer shall sign all .records of special tests and forward the same to the commission within the time pre- scribed, with a report interpreting the results of the tests and recommending actions to be taken by the commission and/ar Grantee. The commission`s right under this provision shall be limited to requiring tests, analyses, and reports covering specific subjects and characteristics based on complaints or other evidence which afford reasonable grounds to believe substandard cable service is being provided. ~f} ~n addition to testing under ~~~4}fie}, the commission may at any time employ at its own expense a registered qualified engineer to test, analyze, and report on the performance of the system. Grantee agrees to make all of its testing equipment available at no charge or cast to the engineer selected by the commission to perform these tests. (5} Monitoring and Cable Tapping Prevention. Grantee shall not monitor or tap any subscriber terminals unless such procedures are authorized by federal or state law, or unless prior written authorization from the sub- scribers affected is first obtained. Amended by Ordinance Na. X9359, ~0/14/~5.} ~6} Sale of Subscriber ~i sts Prohibited. ~i thout the consent of the subscriber Grantee shall not sell, or otherwise make available a sub- criber's name or address, or any list which identifies a subscriber`s view- ing habits by name or address, to any person, agency, or entity, except as needed to maintain current services or implement new services to subscribers in connection with Grantee's service. (Amended by Ordinance No. X9359, 10/4/85.} Ordinance - Z3 ~7} Grantee Rules and Re ulations. The Grantee shall have the authority, consistent with applicable laws and FCC rules and regulations, to promulgate such rules, regulations, terms, and conditions governing the con- duct of its business with subscribers as shall be reasonable and necessary to enable the Grantee to exercise its rights and perform its ob1 i gati on s under this franchise, Two ~2} copies of all rules, regulations, terms, and condi- tions, including subscriber agreements promulgated under this section, to- gether with any amendments, additions, or deletions thereto, shall be kept current on file with the commission. An additional copy thereof shall be maintained for public inspection during normal business hours at Grantee's office in the city of Eugene and no such rules, regulations, terms, condi- tions, or amendments, additions, or deletions thereto shall take effect unless and until so filed. ~8} E ual Em loyment Re uirements. Grantee shall adhere strictly to the equal employment opportunity requirements of the Federal Act and the regulations of the Federal Communications Commission, as expressed in Section 76.13~a}~S} and 76.3~~ of Chapter ~ of Title 47 of the Code of Federal Regu- lations. Grantee shall comply at all times with all other valid and appli- e cable Federal , State, City and County laws ref ati ng to nondiscrimination . Section 13. Re orts and Records. ~1} Annually, within ~5a days after the close of the fiscal year for which the financial records of the Grantee are maintained, Grantee shall file with the commission the following reports: ~a} Total number of subscribers at the end of the fiscal year. fib} Number of subscribers added during the year. ~c} Number of subscribers lost during the year, ~d} Number of miles of cable added to the system during the year. Ordinance - 24 (e) Number of miles of cable equipment rebuilt or replaced during the year. ~f} Summary of other additions to the system in terms of increased channel capacity or technological improvements made during the year. fig} Outline of plans far expansion and improvement of the system in the next fiscal year. ~h} The financial status of the cable communications system, using the format agreed upon by Grantee and the commission, or such uniform format as may be provided by the FCC. Financial information shall include, but not be limited to, the following reports. balance sheet, income state- ment, cash flow statement, statement of sources and applications of funds, statements of current and projected subscribers, and penetration in the franchise territory, all such reports to reflect the operation of the Eugenel Springfield/Lane County system. This report shal 1 be signed by an authorized agent of the corporation and an accountant who participated in its prepara- tion ar review. Amended by Ordinance No. 19359, 10114/85.} ~2} Co ies of Re orts. Copies of all petitions, applications, and communications submitted by the Grantee to the Federal Communications Commis- sion or any other Federal or State regulator, commission, or agency having jurisdiction in respect to any matters relating specifically to operation of the cable communications system authorized pursuant to this franchise and having a significant impact thereon shall also be submitted simultaneously to the commission or Grantor. Amended by Ordinance No. 19359, 10/14185.} ~3} Cost of Reports. The cost of preparing and furnishing to the commission the records and reports required by this section shall be borne by the Grantee. ~4} Documentation. Qocumentation far the financial report required Subsection ~1}~h} above shall be made available far inspection by Grantor without delay and at Grantee's expense. Amended by Ordinance Na. 19359, Ordinance - Z5 10/14/85.) Section 14. Solicitation by Grantee . Grantee may solicit subscribers for any of Grantee`s services through house-ta-house or place-ta-place solici- tation without the necessity of obtaining a license, permit, or other form of approval from the Grantor, provided Grantee shall maintain an up-to-date list of solicitors on file with the commission and local law enforcement agencies. Section 15. Resol uti.on a.f Disputes, ~~} intent. 1t is the intent of the Grantor to provide for orderly resolution of disputes arising out of the enforcement or interpretation of provisions of this franchise, or any rule, regui ati on, or procedure relating to cable communications matters. To this end, the procedures set forth in Subparagraphs (2) and (3) below may be implemented upon the election of either the Grantee or Grantor where agreement has not been reached after a reasonable time and goad faith negotiation. ~n addition, any controversy or dispute may be submitted to binding arbitration as set forth i n Subparagraph ~ 4~ below, but only upon agreement of both Grantee and Grantor. As further incentive to use these informal procedures for resolution of disputes, the fees and expen- ses of fact-finding, mediation, and arbitration sunless otherwise determined by the arbitration panel} shall be borne equally by the Grantee and Grantor, but the costs and expenses of any court action arising from a dispute be- tween Grantor and Grantee shall be borne by the nonprevailing party, pursu- ant to Section 18 herein. Amended by Grdinance No. 19359, 1G/14/85.) ~2} Fact-Findin Any controversy or dispute, upon the election of either the Grantee or Grantor, shall be submitted to an expert individual acceptable to bath parties for an investigation of the facts and a report thereof. Such fact-finding shall be for the purpose of developing better information for the use of both parties and shall not be binding on either party. Grdinance - ~5 . q. ~' G i f. •' • ~' 1 ~ 1 ~3~ Mediation. Any controversy or dispute, upon the election of either the Grantee or Grantor, shall be submitted to an expert individual acceptable to both parties far the purpose of facilitating discussion and receiving new perspectives on the issues and new proposals for compromise. Such mediation shall not be binding on either party. ~4} Arbitration, Upon agreement of Grantee and Grantor, any con- troversy or dispute may be submitted far arbitration to a single expert indi- vidual if both parties agree, or to a three-member expert panel. Arbitration shall be binding on both parties and shall be held to have been finally ad- judicated and settled in accordance with ORS 33.Z~D-33.346. ~5} Selection Procedures. ~a~ ~n the case of fact-finding or mediation, both parties shall present a maximum total of three names each for possible service as experts. ~f there is no agreement on any of the names, the presiding judge of the Circuit Court of the State of Oregon, for the County of Lane, or his/ her designee shall select a person to fulfill the function of expert. fib} ~n the case of arbitration, if both parties agree, one person may serve as arbitrator. ~n the absence of agreement, there shall be an arbitration panel of three members. If a single-member panel is agreed upon, the selection procedures established far fact-finding and mediation shall be used to select the single arbitrator. If a three-member panel is to be used, one person shall be named by the Grantee, one person shall be named by the Grantor and a third person shall be named by agreement between the Grantee and the Grantor. The third person shall serve as the presiding offi- cer of the panel. If there is no agreement an the single arbitrator or the presiding officer of a three-member panel, the selection shall be made by the presiding judge of the Circuit Gourt of the State of Gregon, for the County of Lane, or his/her designee. Ordinance - 27 Section 16. Quratian, Renewal, and Rene otiation, ~ ~ } Duration and Renewal . This franchise and the rights and pri vi - leges granted herein shall take effect 30 days after the date this ordinance is passed by the Grantor and remain in effect for 15 years from that date unless terminated sooner under provisions of Subsection ~4} of this section; provided, however, that the terms of the franchise must be unconditionally accepted by the Grantee in writing, signed by an officer of the corporation within 30 days after the date this ordinance is passed by the Grantor. Amended by Ordinance No. 18935, 3/8/8; Ordinance No. 19359, 10/14/85. } ~Z} Franchise Review. ~a} As need arises, and at least at the end of the third, sixth, ninth, and twelfth years of the term of the franchise, the commission shall meet to review the franchise performance, generally, and in particular, the following matters: ~i} Use of channel space, including public access channels and programming, and the need far additional channels; (ii} Service extension policies set forth in Section 7, including, but nat limited to, changes in urban service boundaries affecting areas to be served by Grantee; viii} Technical adequacy of the system, including, but not limited to, picture quality, two-way transmission capacity, and compliance with standards set forth in Section 8; Div} New technological, regulatory, or legal developments affecting the franchise, Grantee's operation, or Grantor`s regulatory author- ity hereunder, and including changes in FCC authority, rules, or regulations; ~v} The f ranchise fee set forth in Section 10 and finan- cial support for public, education, and governmental access; Zvi} Cable services and programming available in comparable systems to Grantee's; and Ordinance - 28 vii} The franchise term extension. Amended by Ordinance No. 18936, 3/8/82; Ordinance No. 19359, 10/14/85.} fib} Any additions to or modifications of services, ar system design, shall be canditianed upon their technical practicality and commercial feasibility. 1t is agreed that any franchise modifications made as a result of the franchise review under this subsection will not have an adverse impact upon Grantee's reasonable rate of return on investment during the term of the franchise based upon current standards among comparable systems to Grantee's. Added by Ordinance No. 19359, 10/14/85.) ~c} The Grantee shall be represented at these meetings by a representative of the corporation authorized to speak on behalf of the head office of the corporation on questions of corporate practice, policy, plans, or other matters concerning the cable communications system in the franchise territory. ~Relettered by Ordinance Na. 19359, 10/14/85.} ~d} Any matters within the cote oriel enumerated in Subsec- 9 tion 2~a~ above, on which agreement is not reached after good faith negoti- ation in the course of these review proceedings, shall be submitted to binding arbitration pursuant to Section 15 herein, without need of further agreement to arbitrate, as otherwise required in Section 154}. Upon deci- sion of the arbitrators}, this ordinance shall be amended to the extent necessary to implement said decision. ~Relettered, Ordinance No. 19359, 10/14/85.} fie} As part of the franchise review scheduled far the twelfth year of the term of the f ranchise, commencing no later than flctaber 31, 1990, the franchise shall be automatically renewed for an additional ten year term, provided that Grantee can reasonably demonstrate that it is in substantial compliance with the material terms of the franchise as amended pursuant to the franchise review process. 1n the event the commission initially deter- Ordinance - 29 mines that the Grantee has not substantially complied with the material terms of the franchise, and is therefore not entitled to automatic renewal, the provisions of Section 626 of the Federal Act sha11 be immediately triggered. when proceeding under Section 626 of the Federal Act, a decision by the com- mission to deny Grantee`s proposal shall be the final decision of the fran~ chi sing authority. Added by Ordinance No. X9359, ~0/~4/85.~ ~3~ Additional, ,Propos,al s. In the event that this franchise i s ter- minated, or the Grantor and the Grantee are unable to reach an accord an the terms of renewal or extension of this franchise, the Grantor may elect to invite proposals from other prospective operators for the operation of the entire system as it exists on the date of termination or expiration, ~4~ Termination. ~a~ The Grantor reserves the right to terminate this fran- chise, and all rights and privileges pertaining thereto, in the event that: ~i~ The Grantee violates any material provision of this franchise, except where such violation is without fault, or occurs by reason of excusable neglect; iii} The Grantee deliberately fails to operate the system without prior approval of the commission or without just cause; or (iii} The Grantee intentionally evades any of the provi- si on s of this franchise, or i s found to have practiced any fraud ar decei t upon the Grantor. fib} Prior to any termination proceedings under this section, the Grantee shall be given 6O days of notice in writing, which notice sha11 state with particularity the grounds upon which the Grantor relies. If, at the end of the 60-~day period, the Grantee has not cured the matter which pro- vides grounds far termination, the franchise sha11 be subject to termination. ~c} Termination under this subsection shall be accomplished only by the passage of an ordinance after proceedings affording Grantee due Ordinance - 3Q process of law and a full opportunity to be heard consistent with the hearing procedures set forth in Eugene Code Sections 2.39~-~~.4GC as such procedures exist at the time this ordinance is adopted. Any such ordinance shall not take effect sooner than 30 days after passage and shall be subject to judi- cial review. Section 1~. Chan e of Dwnershi . ~~} Transfers. aid ,,Ass.~_g.,nments. ~a) This franchise shall not be assigned or transferred, either in whole or in part, ar leased, sublet, or mortgaged in any manner, nor shall title hereto, either legal or equitable, or any right, interest, or property therein, pass to or vest in any person without the prior written con- sent of the Grantor. Grantee may, however, transfer or assign the franchise to a wholly-owned subsidiary of the Grantee and such subsidiary may transfer ar assign the franchise back to the Grantee without such consent. The pro- posed assignee must show financial responsibility as determined by the Grantor and must agree to comply with ali provisions of the franchise. Grantor shall be deemed to have consented to a proposed transfer or assignment in the event its refusal to consent is not communicated in writing to Grantee within 60 days following receipt of written notice of the proposed transfer or assign- meat. ~b~ The Grantee shall promptly notify the Grantor of any actual or proposed change in, or transfer of, ar acquisition by any other party of, control of the Grantee. The ward "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. Every change, transfer, or acquisition of control of the Grantee shat l make the franchise subject to cancel 1 ati on unless and unti 1 the Grantor shall have consented thereto, which consent will not be unreason- ably withheld. For the purpose of determining whether it shall consent to Drdinance - 31 such change, transfer, or acquisition of control, the Grantor may authorize the commission to inquire into the qualifications of the prospective cantrol- 1 i ng party, and the Grantee steal 1 assist the commission i n any such inquiry. If the Grantor does not authorize an inquiry by the commission within 3D days after notice of the change or proposed change is received from the Grantee, the Grantor shall be deemed to have consented. ~2} Grantor's Ri ht to Purchase of System U an Termination. 1n the event that the Grantor terminates the franchise prior to the end of the fran- chise term, the Grantar shall have the right to purchase the cable communica- tions system at a price not to exceed the original cast of Grantee's property less accumulated depreciation. This value shall be determined by the Grantor in accordance with generally accepted appraisal and accounting principles. Under no circumstances shall any valuation be made for "good will" or any right or pri vi 1 ege granted by this permit. ~3} Continuity of Service Mandatory. ~a} 1t steal 1 be the right of al 1 subscribers to continue re- ceiving service insofar as their financial and other obligations to the Grantee are honored. 1n the event that the Grantee elects to overbuild, re- build, modify, or sell the system, or the Grantor gives notice of intent to terminate this franchise, ar if this franchise is not renewed, the Grantee shall do everything in its power to ensure that all subscribers receive con- tinuous, uninterrupted service regardless of the circumstances. 1n the event of a change of Grantee, or in the event a new operator acquires the system, the current Grantee shall cooperate with the Grantor in maintaining continuity of service to al i subscribers, and steal 1 be entitled to the reve~ Hues for any period during which Grantee operates the system. Amended by Grdinance No. 19359, 1D/14/85.} fib} In the event the Grantee fails to operate the system for 7 consecutive days without prior approval of the commission or without just Grdinance - 3~ cause, the commission shall operate the system until such time as a new oper- ator i s selected. If the commission i s required to ful f i 11 this obligation for the Grantee, the Grantee shall reimburse the commission for any costs or damages that are the result of the Grantee`s failure to perform. ~4} Farecl osure. Upon the foreclosure or other ~ udici al sale of all or a substantial part of the system, or upon the termination of any lease covering all or a substantial part of the equipment comprising the system, the Grantor shall have the right, at its discretion, to terminate the franchise, which termination shall be final and binding upon both parties; such option shall be exercised not 1 ater than 60 days fallowing foreclosure, other j udi cial sale or termination of such lease, or Grantor shall be deemed to approve of such successor in interest to Grantee. ~5} Receivershi The Grantor shall have the right to terminate this franchise 1Z0 days after the appointment of a receiver, or trustee, to take over and conduct the business of the Grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such re ceivership or trusteeship shall have been vacated prior to the expiration of said ~~0 days, or unless: ~a~ ~lithin 120 days after his/her election or appointment, such receiver ar trustee shall have fully complied with all the provisions of this franchise and remedied all defaults thereunder; and ~b~ Such receiver or trustee, within said I20 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this franchise. ~6} Grantor Purchase of System U on Expiration. The Grantor shall have the right to purchase the cable communications system upon expiration of this franchise. 5hou1 d the Grantor decide to purchase the system, i t shat 1 do so at a price not to exceed its then fair market value. ~n determining the Ordinance - 33 ~_ fair value of the system, the original cost of all tangible and intangible property, as we11 as the salvage value, the book value, the replacement costs, cash flow, and other factors may be considered. ~ 7} Di s osi ti an of Faci 1 i ti es . ~a} Upon expiration or termination of the franchise, the Grantee, upon request of the Grantor, shall promptly remove all of its equip- ment above ground in the public right-of-~way. fib} In removing its equipment, the Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee`s removal of its equipment and appliances, without affecting the electric or telephone cables, wires, or attachments. Such restoration of property shall not be considered completed until the Grantor has inspected and approved the condition of the public ways and places. The liability in- surance and indemnity as provided under Section lI herein sha11 continue in fu11 force and effect during the period of removal. (c~ In the event of a failure by the Grantee to complete any work required by Subsection ~a} above or any work required by law ar ordi- nance within the time as may be established by the Grantor or to the satis- faction of the Grantor, the Grantor may cause such work to be done and the Grantee sha11 reimburse the Grantor the casts thereof within 3D days after receipt of an itemised list of such costs, or the Grantor may recover such costs as provided in Section 11. Section 18. Payment,,,,, of Litigation ,Costs. The nanprevailing party in any litigation sha11 reimburse to the other all costs including filing fees, costs of depositions, discovery, expert witnesses, al 1 other expenses of suit, and reasonable attorney fees. Grdinance - 34 Section 19. Penalties. Subject to the requirement of prior notice as set forth in ~d~ below, for violations of this ordinance occurring without just cause or excusable neglect, Grantor may, at its di screti an, assess pen- al ti es against Grantee as fol 1 aws ~a} For failure to adhere to material representations made in the map and plan referred to in Section 7~3~, $200 per day for each represen- tation not fulfilled. Amended by Qrdinance No. 19359, 14114/85.} ~b~ Far failure to provide information or reports as required by terms of the ordinance, $50 per day for each failure to perform a spe- cific requirement. ~c~ For failure to make a good faith effort to correct a sub- scriber service problem after notice from the commission, $50 per day for each such failure, except that should the penalty amount to more than $1,000 for any continuous period during which a penalty~ies~ under this sec- tion is being applied, Section 15 procedures may be invoked by either Grantor or Grantee regarding any continuing penalties over $1,000 and the arbitra- tion procedure of Section 15 shall apply without agreement of both Grantee and Grantor, but upon the request of either one. Should the arbitrator~s~ determine that Grantee`s effort was in good faith, Grantee shall be refund- ed the penalty amount previously paid. Amended by ordinance No. 19359, 10114185. ~ ~d~ Asa condition precedent to imposition of a penalty, Grantor shall give Grantee written notice specifying the nature of Grantee's violation of this ordinance with reasonabl e particularity. Nati ce shal 1 be by certified United States mail with a return receipt requested, and shall be deemed given when actually delivered ar as of 5 p.m. on the fifth day follow- ing the date actually mailed. Grantee shall be subject to a penalty if the violation of the ordinance is not cured within l0 days after notice is given or in the event the violation cannot be cured far reasons beyond the control Qrdinance - 35 of Grantee within 10 days, it shall be sufficient if Grantee initiates all reasonable measures to cure the violation within ~D days and continues there- after with all reasonable dispatch to cure the violation; provided, in any event the violation must be cured not later than 60 days after notice is given. Notice shall be directed to the general manager of Grantee's Eugene office. Amended by Ordinance No. X9359, 1d/~4/85.~ Section ~0. Remedies Not Exclusive. All remedies and penalties under this ordinance, including termination of the franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enf~rce- ment of any other such remedy ar penalty. The remedies and penalties captain- ed in this ordinance, including termination of the franchise, are not exclu- sive, and the Grantor reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies avail- able at law or in equity. Failure to enforce shall not be construed as a waiver of any term, condition, or obligation imposed upon the Grantee pursu- ant to this ordinance. A specific waiver of a particular term, condition, or obligation imposed upon Grantee by or pursuant to this ordinance shall not be a waiver of any other or subsequent ar future breach of the same ar of any other term, condition or obligation itself . section 2~. New Developments. The Grantor may amend this franchise whenever necessary to enable the Grantee to take advantage of any developments i n the f i el d of transmission of communication signals which wi 11 afford i t an opportunity to serve more effectively, efficiently, or economically its cus- tomers; provided, however, that this section shall not be construed to require the Grantor to make any such amendment. For such an amendment to be effec- tive, its terms must be unconditionally accepted by the Grantee in writing, signed by an officer of the corporation within 30 days after the date the amending ordinance is passed by Grantor. Amended by Ordinance No. X9359, Ordinance - 36 10/14/85.} Section Z2. Force Majeure. 1n the event that the Grantee's perfor~- ance of any of the terms, conditions, obligations or requirements of this franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a re- sult thereof for the period of time Grantee's performance is so prevented or impaired. Amended by Ordinance No. 19359, 14/14/85. Section 23. Access Pro rammin The commission may operate and control the access center and the four access channels as provided in Section 5 of this ordinance when used for noncommercial purposes. The commission's use of the access channels shall have priority over other uses except upon prior approval by the commission. The commission shall adopt rules and regulations for the operation and control of the access center and use of the access channels, none of which shall be contrary to Grantee's obligations under the law. The rules and regulations sha11 a~ prohibit the presentation of any advertising material designed to promote the sale of commercial products or services ~i nc1 udi ng advertising by ~or on behal f of poi i ti cal candidates for affice~, lottery information, and obscene or indecent matter; b~ require nondiscriminatory access and rates; c} require the maintenance of records regarding request far and use of the access center and access channels; and d} provide for public inspection of the records and further provide Grantee with copies thereof weekly. Amended by Ordinance No. 18936, 3/8/8Z; Ordi~ Hance No. 19359, 14I14/85.~ Section ~4. Seyerabi1ity. Tf any section, subsection, sentence, clause ar phrase of this ordinance is far any reason held illegal, invalid, or uncon- sti tuti oval by the decision of any court of competent jurisdiction, such deci ~- Ordinance - 37 Sion sha11 not affect the validity of the remaining portions hereof. The Grantor hereby declares that it would have passed this ordinance and each sec- tion, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one ar more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this ordinance sha11 not abate, reduce, or otherwise affect any other consideration or obligation required by the Grantee. section 25. Effective Date. Upon receipt of Grantee's unconditional acceptance provided in Section Z1, these amendments shall be effective July 1, 1955. Passed by the City Council this 14th day of October, 1955 R ~~,Pwrt~ ~~5 City Recorder Ordinance - 38 Approved by the Mayor thi s