HomeMy WebLinkAboutO-1758ORDINANCE NO. 1758
AN ORDINANCE AUTHORJZING AND GRANTING TO
MEDIACOM SOUTHEAST LLC ("MEDIACOM") THE RIGHT TO USE THE
RIGHTS-OF-WAY OF THE CITY OFF AIRHOPE, ALABAMA (THE "CITY") TO
PROVIDE CABLE SERVICES TO THE CITIZENS OF THE CITY UNDER THE
TERMS OF A CABLE TELEVISION SYSTEM FRANCHISE AGREEMENT
WHEREAS , Alabama Code § 11-43-62 authorizes and empowers the City to regulate the
use of the streets for the erection of all systems of wires and conduits and generally to
control and regulate the use of the streets for any and all purposes , and to grant franchises
for such as the City deems advisable ; and
WHEREAS , Mediacom 's franchise agreement granted pursuant to Ordinance 1671 ,
adopted January 13 , 2020, will expire on January 1, 2025 , and Mediacom now desires to
enter into a new franchise agreement with the City; and
WHEREAS , the Cable Television System Franchise Agreement attached hereto and
incorporated herein by this reference (hereinafter the "Agreement") sets forth the terms and
conditions pursuant to which Mediacom shall operate its cable television system , including
the fees that shall be paid to the City with respect to same .
NOW THEREFORE, BE IT ORDAINED by the City Council (the "Council") of the City
of Fairhope , Alabama as follows:
The Mayor is hereby authorized to execute the Agreement for and on behalf of the City . A
copy of the Franchise Agreement is on file in the office of the City Clerk.
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance (including
the Cable Television System Franchise Agreement attached hereto) is for any reason held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and such holding shall not a ffect the
validity of the remaining portions hereof. If any of the terms or provisions set forth in the
Agreement are inconsistent or otherwise in conflict with any of the terms or provisions in
Ordinance Number 1284 (Cable Television), then the terms and provisions set forth in the
Agreement shall prevail with respect to the Agreement.
This Ordinance shall take effect immediately upon its due adoption and publication as
required by law .
APPROVED AND ADOPTED by the Council this 12th day of September, 2022
ATTEST:
~&U-
City Clerk
APPROVED AND ADOPTED by the Council this 12th day of September, 2022
FRANCHISE AGREEMENT
This AGREEMENT is effective as of the Ll_ day of 5epit,,,,~tr , 2022 (the "Effective
Date"), and is between the City of Fairhope, Alabama (the "Franchising Authority" or the
"City"), and Mediacom Southeast, LLC (the "Company").
The Franchising Authority hereby acknowledges that the financial, legal, and technical
ability of the Grantee is reasonably sufficient to provide services, facilities, and equipment
necessa1y to meet the future cable-related needs of the community, and having afforded the
public adequate notice and opportunity fo r comment, Franchising Authority desires to enter into
this Franchise with the Grantee for the constrnction and operation of a cable system on the tenns
set fo1th herein.
SECTION 1
Terms
1.1 Terms. For the purpose of this Franchise, the following tenns, phrases, words ,
and abbreviations shall have the meanings ascribed to them below. When not consistent 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 th e singular number include the plural number:
A. "Basic Cable Service" is the lowest priced tier of Cable Service that includes the
retransmission of local broadcast television signals.
B. "Cable Act" means Title VI of the Cable Act of 1934, as amended.
C . "Cable Services" shall mean (1) the one-way transmission to Subscribers of (a) video
programming, or (b) other programming service, and (2) Subscriber interaction, if any ,
which is required for the selection or use of such video programming or other
programming service.
D. 11 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 . 11 Franchise Authority" means Franchise Authority of Fairhope, a municipal corporation,
in the State of Alabama, acting by and through its City Council, or it's lawfully appointed
designee .
F. "Franchise Authority Code 11 means all local ordinances, laws and regulations of the
Franchise Authority.
G . "FCC11 means Federal Communications Commission or successor governmental entity
thereto.
H. "Franchising Authority" means Fairhope, Alabama .
I. "Grantee" means Mediacom Southeast, LLC or the lawful success transferee, or assignee
thereof.
J . "Gross Revenues" means all revenue derived from the provision and operation of the
Cable System and services within the municipal boundaries of the Franchise Authority
including, but not limited to, all Cable Service fees, Franchise/video service fees ,
equipment rental, premium services, pay-per-view, home wire maintenance service
revenue, late fees, home shopping commissions, installation, disconnection and
connection fees, advertising revenue, equipment revenue and related income sources. If
Grantee offers voice, video and data services for one bulk fee, the Franchising Authority
will still receive a five percent franchise fee on the amount of the bulk fee attributable to
the video service. The term Gross Revenue shall not include any taxes on services
furnished by Grantee imposed by any municipality, state, or other governmental unit and
collected by Grantee for such governmental unit.
K. "Person" means an individual, pa1tnership, association , joint stock company, trust,
corporation, or governmental entity.
L. "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
M . "Service Area" means the present boundaries of the Franchising Authority and shall
include any additions thereto by annexation or other legal means, subject to the
exceptions in subsection 3 .16.
N . "Standard Installation" is defined as 125 feet from the nearest tap to the Subscriber's
terminal.
0 . "Subscriber" means a Person who lawfully receives Cable Service of the Cable System
with the Grantee's express permission.
SECTION2
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 the Public Ways within
the Service Area, and for that purpose to erect, install , constrnct, repair, replace, reconstruct,
maintain, or retain in any Public Way such facilities and equipment as may be necessa1y or
appurtenant to the Cable System for the transmission and distribution of Cable Services.
Notwithstanding the above grant to use Public Ways, no Public Ways shall be used by Grantee
if Franchising Authority determines that such use is inconsistent with the te1ms, conditions, or
provisions by which such Public Way was created or dedicated, or with the present use of the
Public Way. Any use by Grantee of the Public Ways shall be subject to all local Franchise
Authority Code requirements governing the Public Ways ,
2.2 Lease or Assignment Prohibited. No Person may lease Grantee's System for the
purpose of providing Cable Service until and unless such Person shall have first obtained and
shall currently hold a valid franchise or other lawful authorization from the Franchise Authority
containing substantially similar burdens and obligations to this Franchise . Any assignment of
rights under this Franchise shall be subject to and in accordance with the requirements of
Section 4.5 of this Franchise. This provision shall not prevent Grantee from complying with any
commercial leased access requirements or any other provisions of Applicable Law.
2.3 . Other Ordinances. The Grantee agrees to comply with the tenns of the Franchise
Authority Code. Neither party may unilaterally alter the material rights nor obligations set fo1th
in this Franchise . In the event of a conflict between the Franchise Authority Code and this
Franchise, this Franchise shall control.
2.4 Other Authorizations. The Grantee acknowledges and agrees that the Franchising
Authority reserves the right to grant one (l) or more additional franchises or other similar lawful
authorization to provide Cable Services within the Franchising Authority; provided, however,
that no such franchise or similar lawful authorization shall contain material tenns or conditions
which, when considered as a whole, are substantially more favorable or less burdensome to the
competitive provider than the material terms and conditions herein. The patties agree that this
provision shall not require a word for word identical franchise or authorization for a competitive
entity so long as the overall regulatory and financial burdens on each entity are generally
equivalent.
Notwithstanding any provision to the contra1y, should any non-wireless facilities-based entity
provide Cable Service within the Franchise Area during the term of this Franchise without a
Franchise granted by the Franchising Authority and the Franchising Authority has the legal
authority under State and Federal law to impose a Franchise on such entity, then Grantee shall
have all rights which may be available to assert, at Grantee's option, that this Franchise is
rendered "commercially impracticable," and invoke the modification procedures set forth m
Section 625 of the Cable Act.
SECTION 3
Standards of Service
3.1 Registration, Permits, Construction Codes, and Cooperation.
A. Grantee shall comply with the constrnction requirements of local, state and federal laws.
B . Grantee agrees to obtain a permit as required by Franchising Authority prior to
removing, abandoning, relocating or reconstrncting, if necessary, any portion of its
facilities in the Public Way, other than for the normal routine installation of Drop(s) and
maintenance activities. Notwithstanding the foregoing, Franchising Authority
understands and acknowledges there may be instances when Grantee is required to make
significant repairs that are of an emergency nature. Pennits for emergency work, if
necessa1y, shall be applied for as soon as possible, but in no event later than (5) business
days after the emergency work has commenced.
C. The fees paid to obtain pennits are separate, and in addition to, any other fees included in
the Franchise.
D. Franchising Authority may issue reasonable policy guidelines to all users of the Public
Way to establish procedures for determining how to control issuance of construction
permits to multiple users of the same Rights-of-Way. Grantee shall cooperate with
Franchising Authority in establishing such policy and comply · with the procedures
established by the Franchise Authority to coordinate the issuance of multiple
constmction permits.
E. Upon reasonable prior written notice, Grantee shall use reasonable efforts to meet with
developers and be present at pre -constrnction meetings to ensure that Cable System
facilities are installed in new developments within the Service Area in a timely manner,
with such obligation being subject to all other requirements or limitations in this
Franchise, including the density requirements in Section 3 .16.
3.2 Use of Existin2 Poles or Conduits. Grantee shall use its best efforts to utilize existing
poles, conduits and other facilities belonging to either Grantee or other utility providers
whenever commercially reasonable and shall not constrnct or install any new, different or
additional poles, conduits or other facilities on public property without the written approval of
Franchising Authority. No location or any pole or wire-holding structure of Grantee shall be a
vested interest, and such poles or strnctures shall be removed or modified by Grantee at its own
expense whenever Franchising Authority determines that such a move is a public necessity.
3.3 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 proper use of
Public Ways and with the rights and reasonable convenience of property owners who own
property that adjoins any of such Public Ways.
3.4 Restoration of Public Ways. If during the course of the Grantees construction,
operation, or maintenance of the Cable System there occurs a disturbance of any Public Way by
the Grantee, Grantee shall replace and restore such Public Way to a condition mandated by the
Franchise Authority Code or to reasonably comparable to the condition of the Public Way
existing immediately prior to such disturbance if the Franchise Authority Code is silent on the
issue.
3.5 Relocation for the Franchising Authority. Upon its receipt of reasonable advance
written notice, to be not less than ten ( l 0) business days, the Grantee shall protect, support, raise,
lower, temporarily disconnect, relocate in or remove from the Public Way, any property of the
Grantee when lawfully required by the Franchising Authority by reason of traffic conditions,
public safety, street abandonment, freeway and sh·eet constrnction, change or establishment of
street grade, installation of sewers, drains, gas or water pipes, or any other type of public
structures or improvements which are not used to compete with the Grantee's services.
3.6 Relocation for a Third Party. The Grantee shall, on the request of any Person holding a
lawful permit issued by the Franchising Authority, protect, support, raise, lower, temporarily
disconnect, relocate in or remove from the Public Way as necessaiy 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 Grantee, making such payment in advance; and (B) the Grantee is
given reasonable advance written notice to prepare for such changes. For purposes of this
subsection, "reasonable advance written notice" shall be no less than: (1) five (5) business days
advance notice to arrange tempora1y wire alterations and thirty days to complete the raising or
lowering of such lines; (2) thirty (30) business days in the event of a temporaty relocation, and
no less than one hundred twenty (120) days for a pennanent relocation.
3.7 Emergency. Whenever, in case of fire or other emergency, it becomes necessa1y in the
judgment of the Mayor, police chief, fire chief, or their delegates, to remove or damage any of
Grantee's facilities, no charge shall be made by Grantee against Franchise Authority for
restoration, repair or damages.
3.8 Emergency Alert Capability. Grantee shall at all times comply with the Emergency
Alert System standards pursuant to Title 47, Section 11, Subpaits A-E of the Code of Federal
Regulations, as may be amended or modified from time to time .
3.9 Technical Standards. The technical standards used in the operation of the System shall
comply, at minimum, with the technical standards promulgated by the FCC relating to Cable
Systems pursuant to Title 4 7, Section 76, Subpart K of the Code of Federal Regulations, as may
be amended or modified from time to time, which regulations are expressly incorporated herein
by reference.
3.10 FCC Reports. Any rep01ts filed by Grantee with the FCC shall upon written request, be
filed with Franchise Authority or its designee within Thirty (30) days of the date when repo1t is
filed with the FCC.
3.11 Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees
or other natural in order to access and maintain the Cable System. Any trimming of trees by the
Grantee in the Public Way shall be subject to such regulation or supervision as the Mayor or
other authorized official may establish to protect the public health, safety and convenience.
3.12 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 accordance with generally applicable federal, state, and local regulations and the
National Electric Safety Code. Cable System structures, and lines, equipment and connections
in, over, under and upon the Rights-of-Way of Franchise Authority, wherever situated or
located, shall at all times be kept and maintained in good condition, order, and repair so that the
same shall not menace or endanger the health, safety or prope1ty of Franchise Authority or any
Person.
3.13 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, and maintain underground any ground-mounted
appurtenances.
3.14 Locating Facilities.
A. If during the design process for public improvements, Franchise Authority discovers a
potential conflict between Grantee's facilities and proposed construction, Grantee shall
either: (a) locate and, if necessa1y, expose its facilities in conflict or (b) use a location
service to locate or expose its facilities. Grantee is obligated to furnish the location
info1mation in a timely manner, but in no case longer than thirty (30) days after written
notice from Franchising Authority.
B. Franchise Authority reserves the prior and superior right to lay, construct, erect, install,
use, operate, repair, replace, remove, relocate, re-grade, widen, realign, or maintain any
Public Way, aerial, surface, or subsurface improvement, including but not limited to
water mains, traffic control conduits, cable and devices, sanitaty or stonn sewers,
subways, tunnels, bridges, viaducts, or any other public construction within the Public
way.
3.15 Installation Records. Grantee shall keep accurate Installation records of the location of
all facilities in the Rights-of-Way and public ways and furnish sh·and maps to Franchise
Authority upon prior written request. Grantee shall cooperate with Franchise Authority to
furnish such information in an electronic mapping format, if possible compatible with the then
current Franchise Authority electronic mapping fonnat. Upon completion of new or relocation
construction of underground facilities in the Rights-of-Way and public ways, Grantee shall
provide Franchise Authority with Installation records in an electronic fo1mat, if possible
compatible with the then-cunent Franchise Authority electronic mapping format showing the
location of the underground and above ground facilities.
3.16 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 existing distribution facilities where
there are at least 10 residences within 1320 cable-bearing strand feet (one-qua1ter cable mile)
from the po1tion 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 financially or technically
infeasible due to extraordinary circumstances, such as a runway or freeway crossing.
3.17 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 3.16 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
constrnction 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 10. 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.
3.18 Public, Educational and Governmental Programming. Grantee shall provide within
ninety (90) days of the Franchise Authority's request one (1) PEG channel for public,
educational and governmental (PEG ) programming as designated in the Franchise Authority's
sole discretion.
Any operation of the PEG access channel by Franchise Authority shall be the responsibility of
Franchise Authority, and Grantee's obligation is the transmission of such channel. The Franchise
Authority will be responsible to ensure that all transmissions, retransmissions, content, or
programming that may be requested to be transmitted over a channel or facility by Grantee in
the future, are provided or submitted to Grantee, at the Grantee's designated connection point, in
a manner or fonn that is capable of being accepted and transmitted by Grantee, without
requirement for additional alteration or change in the fonnat or content by Grantee, over the
network of Grantee, and which is compatible with the technology or protocol utilized by
Grantee to deliver its Cable Service. Grantee is responsible for providing the connectivity to
each PEG access Channel distribution point up to the first one thousand (1,000) feet.
3.19 Reimbursement of Costs . If Franchise Authority provided funds are available to any
Person using the Public Way for the purpose of defraying relocation costs, the Franchising
Authority shall provide the same proportionate cost reimbursement to Grantee .
3.20 Consumer Protection and Service Standards. Grantee shall maintain a convenient
local bill payment location in the Franchise Authority for receiving Subscriber payments.
Grantee shall also provide the necessary facilities, equipment and personnel to comply with the
following consumer protection standards under No1mal Operating Conditions:
A. Cable System office hours and telephone availability:
a. Grantee will maintain a local or toll -free telephone
access line which will be available to its Subscribers twenty-four (24) hours a day,
seven (7) days a week.
1. Trained Grantee representatives will be available to
respond to customer telephone inquiries during N01mal Business Hours .
ii. After Normal Business Hours, the access line may be
answered by a customer service representative. or an automated response
system, including an answering machine. Inquiries received after Normal
Business Hours will be responded to by a trained customer service
representative no later than the close of the next business day.
iii. Under N01mal Operating · Conditions, telephone
answer time by a customer representative, including wait t ime, shall not
exceed thirty (30) seconds when the connection is made. If the call needs
to be transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less then ninety percent (90%) of the time under
Normal Operating Conditions, measured on a qua11erly basis.
1v. The Grantee will not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering
standards above unless a historical record of complaints indicates a clear
failure to comply.
v. Under Normal Operating Conditions, the customer
will receive a busy signal less than three percent (3%) of the time.
v1. Bill payment locations will be open at least during
normal business hours.
B. Installations, Outages and Service Calls.
a. Under Normal Operating Conditions, each of the
following four (4) standards will be met no less than ninety-five percent (95%) of
the time measured on a qua1terly basis:
1. Standard Installations will be perfonned within seven
(7) business days after an order has been placed. "Standard" Installations
are those that are located up to one hundred fifty (150) feet from the
existing distribution system .
11. Excluding conditions beyond the control of Grantee,
Grantee will begin working on "Service Intenuptions 11 promptly and in no
event later than twenty-four (24) hours after the intenuption becomes
known. Grantee must begin actions to correct other Service problems the
next business day after notification of the Service problem .
iii. The "appointment window" alternatives for
Installations, Service calls, and other Installation activities will be either a
specific time or, at maximum, a four (4) hour time block during Normal
Business Hours. (Grantee may schedule Service calls and other
Installation activities outside of N01mal Business Hours for the express
convenience of the customer.)
1v. Grantee may not cancel an appointment with a
customer after the close of business on the business day prior to the
scheduled appointment.
v. If Grantee's representative is mnning late for an
appointment with a customer and will not be able to keep the appointment
as scheduled, the customer will be contacted prior to the time of the
scheduled appointment. The appointment will be rescheduled, as
necessaty, at a time which is convenient for the customer.
C. Communications between Grantee and Subscribers:
a. Notifications to subscribers:
1. Grantee shall provide written infonnation on each of
the following areas at the time of Installation of Service, at least annually
to all Subscribers, and at any time upon request:
1. Products and Services offered;
2. Prices and options for programming services and
conditions of subscription to programming and other services;
3. Installation and Service maintenance policies;
4. Instmctions on how to use the Cable Service;
5. Channel positions of the programming caiTied on the
System; and
6. Billing and complaint procedures, including the
address and telephone number of the Franchise Authority.
ii. Subscribers will be notified of any changes in rates,
programming services or Channel positions as soon as possible in writing.
Notice must be given to Subscribers a minimum of thi1ty (30) days in
advance of such changes if the changes are within the control of the
Grantee. In addition, the Grantee shall notify Subscribers thhiy (30) days
in advance of any significant changes in the other information required by
this Section 5.4(c)(i)(l ). Grantee shall not be required to provide prior
notice of any rate changes as a result of a regulat01y fee, Franchise Fee, or
other fees, tax, assessment or charge of any kind imposed by any federal
agency, state or Franchise Authority on the transaction between the
operator and the Subscriber.
b. Billing:
i. Bills will be clear, concise and understandable. Bills
must be fully itemized, with itemizations including, but not limited to,
basic and premium Service charges and equipment charges. Bills will also
clearly delineate all activity during the billing period, including optional
charges, rebates and credits.
ii. In case of a billing dispute, the Grantee must respond
to a written complaint from a Subscriber within thirty (30) days.
c. Refunds: Refund checks will be issued promptly, but
no later than either:
1. The Subscriber's next billing cycle following
resolution of the request or thiity (30) days, whichever is earlier, or
ii. Thirty (30) days from the return of the equipment
supplied by Grantee if Service is terminated .
d. Credits : Credits for Service will be issued no later
than the Subscriber's next billing cycle following the dete1mination that a credit is
warranted.
e. Grantee shall comply with the cable industry's on-time
guaranty as endorsed by the National Cable Television Association. This on-time
guaranty generally provides that if Installation is not commenced within the
"appointment window" specified by the operator, Installation shall be free for the
Subscriber. Moreover, Grantee shall provide Subscribers with a Twenty and No/
100 Dollars ($20 .00) credit for any missed service appointments.
3.21 Refund Policy.
A. If a Grantee's Cable Service is intem.1pted due to a System outage for twenty-four (24)
or more consecutive hours, Subscribers, upon request, shall be credited pro rata for such
intem1ption. Credits must be issued no later than the Subscriber's next billing cycle
following the determination that a credit is warranted. For this purpose, every month will
be assumed to have thhiy (30) days.
B. In the event a Subscriber establishes or te1minates Service and receives less than one (1)
full month of Service, Grantee shall prorate the monthly rate on the basis of the number
of days in the period for which Service was rendered to the number of days in the billing.
Refund checks will be issued promptly, but no later than thhty (30) days from the date of
return of the equipment supplied by the Grantee if Cable Service is te1minated.
3.22 Late Fees . Fees for the late payment of bills shall be assessed in accordance with
applicable law.
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 Gross Revenues (as defined in subsection 1.1 of this Franchise). The franchise fee
payment shall be due monthly and payable on the last day of the month. Each payment
shall be accompanied by a brief report prepared by a representative of the Grantee
showing the basis for the computation .
In the event that a Franchise Fee payment or other sum due is not received by the
Franchising Authority on or before the date due, or is underpaid, Grantee shall pay in
addition to the payment, or sum due, interest from the due date at annual rate equal to six
percent (6%).
B. All amounts paid shall be subject to audit and re -computation by Franchising Authority
and acceptance of any payment shall not be construed, as an accord that the amount paid
is in fact the conect amount. If any audit reveals an error by Grantee of ten percent
(10%) or more during any audit period, Grantee shall be responsible for Franchising
Authority's reasonable out of pocket costs associated with the audit.
4.2 Rates and Charges. The Franchising Authority may regulate rates for the provision of
Basic Cable Service and equipment as expressly permitted by federal law.
4.3 Renewal of Franchise. Any renewal of this Franchise shall be performed in accordance
with Section 626 of the Cable Act.
4.4 Conditions of Sale. If a renewal or extension of the Grantee's Franchise is denied or the
Franchise is lawfully te1minated, 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 dete1mined
pursuant to the provisions set f01th in Section 627 of the Cable Act.
4.5 Transfer of Franchise. Neither the Grantee nor any other Person may sell, transfer or
assign the Franchise or any of the Grantee's rights or obligations in or regarding its Cable System
or the Franchise without the prior written consent of the Franchising Authority which consent
shall not be unreasonably withheld. No change in Control of the Grantee, the Cable System or
the Franchise, including actual working control shall occur after the Effective Date, by operation
of law, or otherwise, without the prior written consent of the Franchising Authority. Such
consent shall not be unreasonably withheld. No consent shall be required, however, for (i) a
transfer in trust, by m01tgage, hypothecation, or by assignment of any rights, title or interest of
the Grantee in this Franchise or the Cable System in order to secure indebtedness, or (ii)
intercorporate reorganizations between or among entities wholly owned and wholly controlled
by the parent company of Grantee to the extent such h·ansaction does not involve a change in the
management, day to day operations, or financial condition of the Grantee; provided the
Franchising Authority shall be notified by the Grantee in the event of such intercorporate
reorganization.
Any request for consent to a transfer shall be handled by the Franchising Authority in
accordance with its rules and procedures as such are consistent with federal and state law, with
Section 617 of the Cable Act and with regulations of the FCC. Any proposed transferee must
accept in writing the Franchise rights and obligations.
SECTIONS
Books and Records
Grantee agrees that the Franchising Authorit y, upon thirty (30) days written notice to the Grantee
and no more than once annually may review 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 terms of this Franchise. Such notice shall specifically reference the
subsection of the Franchise that is under review so that the Grantee may organize the necessar y
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) yea rs .
Notwithstanding anything to the contrary set fo1th herein, the Grantee shall not be required to
disclose information that 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 of the Cable Act.
6.1 Liability Insurance,
SECTION6
Insurance and Indemnification
A. Upon the effective date, Grantee shall, at its sole expense take out and maintain during
the te1m of this Franchise public liability insurance with a company licensed to do
business in the state of Alabama with a rating by A.M. Best & Co. of not less than 11 B
plus" listing the Franchising Authority as additional insured that shall protect the
Grantee, Franchising Authority and its officials, officers , directors, employees and
agents from claims which may arise from operations under this Franchise, whether such
operations be by the Grantee, its officials, officers, directors, employees and agents or
any subcontractors of Grantee. This liability insurance shall include but shall not be
Umited to; protection against claims arising from bodily and personal injury and damage
to property, resulting from Grantee's vehicles, products and operations. The amount of
insurance for single limit coverage applying to bodily and personal injury and property
damage shall not be less than Two Million and No/ 100 Dollars ($2,000,000 .00). The
following endorsements shall be attached to the liability policy:
a. The policy shall provide coverage on an 11 occurrence11 basis.
b. The policy shall cover personal injury as well as bodily injury.
c . The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the canier's standard
endorsement as to bodily injuries , personal injuries and property damage.
d. Broad form property damage liability shall be afforded.
e. Franchising Authority shall be named as an additional insured on the policy .
f. An endorsement shall be provided which states that the coverage is primaiy
insurance and that no other insurance maintained by the Franchising Authority
will be called upon to contribute to a loss under this coverage.
g. Standard form of cross-liability shall be afforded.
h. An endorsement stating that the policy shall not be canceled without thirty (30)
day notice of such cancellation given to Franchising Authority.
B . Grantee shall submit upon request to Franchising Authority certificate of insurance
signed by the insurance agent and companies named, as well as all properly executed
endorsements.
C . Grantee shall not commence any Cable System construction work or permit any
subcontractor to commence work until all insurance required under this Franchise has
been obtained. Said insurance shall be maintained in full force and effect until the
expiration of this Franchise.
6.2 Indemnification.
A. The Grantee agrees to indemnify, save and hold hannless, and defend the Franchising
Authority, its officers, boards and employees, from and against any and all lawsuits,
claims, causes or action, actions, liabilities, demands, damages, judgments, settlements,
disability, losses, expenses (including attorney's fees and disbursements of counsel) and
cost of any nature that any of the Indemnified Parties may at any time suffer, sustain or
incur arising out of, based upon or in any way connected with the Grantee's operations,
the exercise of the Franchise, the breach of Grantee of its obligations under this
Franchise and/or the activities of Grantee, it subcontractor, employees and agents
hereunder.
B. The indemnification obligations of Grantee set fmih in this Franchise are not limited in
any way by the amount or type of damages or compensation payable by or for Grantee
under Workers' Compensation, disability or other employee benefit acts, acceptance of
insurance certificates required under this Franchise or the terms, applicability or
limitations of any insurance held by Grantee.
C . Franchising Authority does not, and shall not, waive any rights against Grantee which it
may have by reason of the indemnification provided for in this Franchise, because of the
acceptance by Franchising Authority, or the deposit with Franchising Authority by
Grantee, of any of the insurance policies described in this Franchise.
D. The indemnification of Franchising Authority by Grantee provided for in this Franchise
shall apply to all damages and claims for damages of any kind suffered by reason of any
of the Grantee's operations refened to in this Franchise, regardless of whether or not such
insurance policies shall have been determined to be applicable to any such damages or
claims for damages .
E. Grantee shall not be required to indemnify Franchising Authority for misconduct on the
pait of Franchising Authority or its officials, boards, commissions, agents, or employees .
Franchising Authority shall hold Grantee harmless, subject to the limitations in state
statutes for any damage resulting from misconduct of the Franchising Authority or its
officials, boards, commissions, agents, or employees in utilizing any access Channels,
equipment, or facilities and for any misconduct by Franchising Authority in connection
with work performed by Franchising Authority and permitted by this Agreement, on or
adjacent to the Cable System.
In order for Franchising Authority to assert is rights to be indemnified, defended, and held
hannless, Franchising Authority must with respect to each claim:
a. Promptly notify Grantee in writing within ten ( 10) business days of any claim or legal
proceeding which gives rise to such right; and
b. Afford Grantee the oppo1tunity to participate in and fully control any compromise,
settlement or other resolution or disposition of any claim or proceeding; and
c. Fully cooperate with reasonable requests of Grantee, at Grantee's expense, in its
paiticipation in, and control, compromise, settlement or resolution or other disposition of
such claim or proceeding subject to paragraph 2 above.
SECTION 7
Enforcement and Termination of Franchise
7.1 Notice of Violation. In the event that the Franchismg Authority believes that the Grantee
has not complied with the any material tenn of the Franchise, the Franchising Authority shall
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
such alleged noncompliance.
7.2 The Grantee's Right to Cure or Respond, The Grantee shall: (A) have thitty (30) days
from receipt of the notice described in subsection 7.1: to cure the default; or (B) have ten (10)
days from the receipt of the notice described in Subsection 7.1 to respond to the Franchising
Authority, contesting the asse1tion of such noncompliance. The time for Grantee to correct any
violation or liability shall be extended by Franchising Authority if the necessary action to
correct such violation or liability is of such a nature or character as to require more than thi1ty
(30) days within which to perform , provided Grantee provides written notice that it requires
more than thi1ty (30) days to correct such violations or liability, commences the corrective
action within the thi1ty (30) day period and thereafter uses reasonable diligence to correct the
violation or liability.
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 fo1ih in subsection 7 .2, or in the event that the
alleged default is not remedied within thiity (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 Authodty
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 material
default of any provision of the Franchise, the Franchising Authority may:
a. Commence an action at law for monetary damages or seek other equitable relief; or
b. In the case of repeated or ongoing substantial non-compliance with a material term or ·
terms 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 fmth in subsections 7 .1-7.4 above, the Franchising Authority shall
give written notice to the Grantee of its intent. The notice shall set f01th the exact nature of the
repeated or ongoing substantial noncompliance with a material tenn or tenns of the franchise.
The Franchising Authority shall cause to be served upon the Grantee, at least thi1ty (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 opp01tunity for full participation,
including the· right to be represented by legal counsel, to introduce relevant evidence, to require
the production of evidence, to and to introduce witnesses. A complete verbatim record and
transcript shall be made of such hearing using audio or video tape.
Following the hearing, the Franchising Authority shall detennine whether or not the Franchise
shall be revoked. If the Franchising Authority detennines 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.
Such appeal must be taken within sixty ( 60) days of Grantee's receipt of the dete1mination 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 Abandonment of Service. Grantee may not abandon the System or any p01tion thereof
without having first given three (3) months written notice to Franchise Authority. Grantee may
not abandon the System or any portion thereof without compensating Franchise Authority for all
costs incident to removal of the System.
7.7 Removal After Abandonment, Termination or Forfeiture .
a. In the event of a lawful termination or abandonment of the System, Franchise Authority
shall have the right to require Grantee to remove all or any portion of the System from all
Rights-of-Way and public property within Franchise Authority.
b . If Grantee has failed to commence removal of System, or such part thereof as was
designated by Franchise Authority, within ninety (90) days after written notice of
Franchise Authority's demand for r emoval is given, or if Grantee has failed to complete
such removal within twelve (12) months after written notice of Franchise Authority's
demand for removal is given, Franchise Author ity shall have the right to remove the
System at Grantee's expense and/or declare all right, title, and interest to the System to
be in Franchise Authority with all rights of ownership including, but not limited to, the
right to operate the System or transfer the System to another for operation by it.
7.8 Force Majeure. Neither patty 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 occmTed or were
caused by circumstances reasonably beyond the ability of the parties 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.
SECTION 8
Miscellaneous Provisions
8.1 Work Performed by Others. All applicable obligations of this Franchise shall apply to
any contractor or other s perfonning any work or services pmsuant to the provisions of this
Franchise, however, in no event shall any such contractor or others performing work obtain any
rights to maintain and operate a System or provide Cable Setvice. Upon written request by
Franchise Authority, Grantee shall provide notice to Franchise Authority of the name(s) and
address(es) of any entity, other than Grantee, which petfonns substantial services pursuant to
this Franchise.
8.2 Actions of Parties. In any action by the Franchising Authority or the Grantee that is
mandated or permitted under the terms hereof, such patty shall act in a reasonable, expeditious,
and timely manner . Fmihermore, in any in s tance where approval or consent is required under
the terms hereof, such approval or consent shall not be unreasonably withheld.
8.3 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.
8.4 Reservation of Rights. Execution of this franchise will not constitute, or be deemed to
constitute, a waiver, either expressly or impliedly, by either patty of any constitutional or legal
right which it may have or may be detem1ined to have, either by subsequent legislation or court
decisions. The patties acknowledge that each patty reserves all of its rights under applicable
Federal and State Constitutions and laws.
8.5 Notice. Unless expressly othe1wise agreed between the patties, 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 of Fairhope, Alabama
ATTN: City Clerk
161 North Section St.
Fairhope, AL 36532
The notices or responses to the Grantee shall be addressed as follows:
With a copy to:
Mediacom Southeast, LLC
Attn: Jenna Comizio, Legal Affairs
1 Mediacom Way
Mediacom Park, NY 10918
Mediacom Communications
Attn: Mitchell Brown, Government Relations
1613 Nantahala Beach Road
Gulf Breeze, Florida 32563
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.
8.6 Descriptive Headings. 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.
8.7 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, tenn or
provision hereof, all of which will remain in full force and effect for the term of the Franchise.
8.8 Term and Acceptance. This Franchise shall be for a term of ten ( 10) years from the
Effective Date of this Agreement. With execution of this Agreement, Company shall also
deliver a certified or cashier's check in the amount of Three Thousand Dollars ($3,000.00) made
payable to the City of Fairhope, Alabama, as an acceptance fee and insurance certificates as
required herein, that have not previously been delivered. The acceptance fee shall serve to
recover attorney's fees and consulting expenses incurred by the City in granting this Franchise.
Considered and approved this \3 day of 5ep~br, 2022.
Title ~
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