Resolution 5597 - Bresnan Franchise AgreementRESOLUTION NO.5597
A RESOLUTION TO AUTHORIZE THE CITY MANAGER TO EXECUTE THE
CABLE FRANCHISE AGREEMENT WITH BRESNAN COMMUNICATIONS, LLC AS
PROPOSED
WHEREAS, the City of Kalispell has the general powers to enter into nonexclusive franchise
agreements with any utility requiring the use of the City right-of-ways; and
WHEREAS, Bresnan Communications is a cable communications company utilizing the City
right-of-ways; and
WHEREAS, the proposed agreement negotiated with Bresnan Communications, LLC includes
a 4.4% franchise fee to be paid to the City providing funds to purchase
communications equipment and to compensate trained staff to run the equipment
as well as assuring a definitive level of public access; and
WHEREAS, it is in the best interests of the citizens of Kalispell that the City have a franchise
agreement with Bresnan Communications, LLC to secure the public, educational,
and government access channel and provide the necessary funding to run such
communication outlet.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. The City Manager is authorized to execute the attached franchise
agreement with Bresnan Communications, LLC on behalf of the City of
Kalispell.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 3RD DAY OF DECEMBER, 2012.
�—� - . Z ii
Kari S. Gabriel
Council President
ATTEST:
Theresa White
City Clerk
CABLE FRANCHISE AGREEMENT
BY AND BETWEEN
THE CITY OF KALISPELL, MONTANA
AND
BRESNAN C®MMUNICATIONS, LLC
City of Kalispell, Montana
TABLE OF CONTENTS
1.
DEFINITIONS ...................................................................................................................
1
2.
GRANT OF AUTHORITY: LIMITS AND RESERVATIONS
...................................4
3.
PROVISION OF CABLE SERVICE ...............................................................................
5
4.
SYSTEM FACILITIES ............................ ........................................................................
7
S.
PEG SERVICES ......................................................................... ......................................
8
6.
FRANCHISE FEES ........................ . .................. ...........................................................
9
7.
REPORTS AND RECORDS ............................................................................................
9
8.
INSURANCE AND INDEMNIFICATION.. .................................................................
10
9.
TRANSFER OF FRANCHISE ..................................................................
10
10.
RENEWAL OF FRANCHISE_ .....................................................................................
I I
11.
ENFORCEMENT AND TERMINATION OF FRANCHISE.. ...................................
11
12.
MISCELLANEOUS PROVISIONS ................................... ....... ...
.......... ................. 122
EXHIBITS
EXHIBIT A: MUNICIPAL/SCHOOL BUILDINGS TO BE PROVIDED FREE CABLE
SERVICE
City of Kalispell, Montana
THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered
by and between the City of Kalispell, a validly organized and existing political subdivision of the
State of Montana (the "Local Franchising Authority" or "LFA") and Bresnan Communications,
LLC, a limited liability company duly authorized to conduct business in the State of Montana
(the "Franchisee").
WHEREAS, the LFA wishes to grant Franchisee a renewal of its nonexclusive franchise
to construct, install, maintain, extend and operate a Cable System in the Franchise Area as
designated in this Franchise;
WHEREAS, the LFA is a "franchising authority" in accordance with Title VI of the
Communications Act, (see 47 U.S.C. §522(10)) and is authorized to grant one or more
nonexclusive cable franchises pursuant to applicable law;
WHEREAS, the franchisee's Cable System will occupy the Public Rights -of -Way within
the Franchise Area, and Franchisee desires to use portions of the Cable System to provide Cable
Services and other services in the Franchise Area;
WHEREAS, the LFA has identified the past performance of the Franchisee and the future
cable -related needs and interests of the LFA and its community, has considered and approved the
financial, technical and legal qualifications of Franchisee, and has determined that Franchisee is
in material compliance with its existing franchise and applicable law and that its Cable System is
adequate and feasible in a full public proceeding affording due process to all parties;
WHEREAS, the LFA has found Franchisee to be financially, technically and legally
qualified to continue to operate the Cable System;
WHEREAS, the LFA has determined that the grant of this nonexclusive franchise to
Franchisee is consistent with the public interest;
WHEREAS, the LFA and Franchisee have reached agreement on the terms and
conditions set forth herein and the parties have agreed to be bound by those terms and
conditions; and,
NOW, THEREFORE, in consideration of the LFA's grant of a renewal franchise to
Franchisee, Franchisee's promise to provide Cable Service to residents of the Franchise Area of
the LFA pursuant to and consistent with the Cable Act, pursuant to the terns and conditions set
forth herein, the promises and undertakings herein, and other good and valuable consideration,
the receipt and the adequacy of which are hereby acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
1. DE1FINITIONS
Except as otherwise provided herein, the definitions and word usages set forth in the
Cable Act are incorporated herein and shall apply in this Agreement. In addition, the following
definitions shall apply:
City oj'Kalispell, Montana
1.1 Access Channel: A video channel, which Franchisee shall make available to the
LFA without charge for Public, Educational, or Governmental noncommercial use for the
transmission of video programming as directed by the LFA.
1.2 Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or
controlled by, or is under common ownership or control with, the Franchisee.
1.3 Basic Service: Any tier of Cable Service which includes, at a minimum, the
retransmission of primary local television broadcast signals provided to any Subscriber, and, to
the extent required by applicable law, any Access Channel required by this Franchise, which may
also include any additional Video Programming signals as determined by Franchisee.
1.4 Brindled Service: The offering of Cable Services with any Non -Cable Service
offering for a single aggregate price.
1.5 Cable Act: Shall mean the Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-611), as amended.
1.6 Cable Service or Cable Services: Shall be defined herein as it is defined under
Section 602 of the Cable Act, 47 U.S.C. § 522(6), as amended.
1.7 Cable System or System: Shall be defined herein as the facility consisting of
antennae, wire, coaxial cable, amplifiers, towers, microwave links, wave guide, optical fibers,
optical transmitters and receivers, satellite receive/transmit antennae, and/or other equipment
designed and constructed for the purpose of producing, receiving, amplifying, storing,
processing, or distributing analog and/or digital audio, video, data or other forms of electronic,
electromechanical, optical, or electrical. signals.
1.8 Control: The ability to exercise de facto or de jure control over day-to-day
policies and operations or the management of Franchisee's affairs.
L9 FCC: The United States Federal Communications Commission, or successor
governmental entity thereto.
1.10 Force Majeure: An event or events reasonably beyond the ability of Franchisee
to anticipate and control that directly or indirectly results in Franchisee's non-compliance with,
or delay in the performance of., any obligation hereunder. This may include, but is not limited to,
severe or unusual weather conditions, strikes, labor disturbances and disputes, war or act of war
(whether an actual declaration of war is made or not), insurrection, riots, act of public enemy,
incidences of terrorism, acts of vandalism, actions or inactions of any government
instrumentality or public utility including condemnation, accidents for which the Franchisee is
not primarily responsible, fire, flood, or other acts of God, or work delays resulting from
unaffiliated utility providers failure to service, monitor or maintain utility poles to which
Franchisee's fiber network is attached, and unavailability of materials and/or qualified labor to
perform the work necessary.
1,11 Franchise Area: The entire existing territorial limits of the LFA and such
additional areas as may be annexed or acquired, during the term of this Franchise.
City of Kalispell, Montana
1.12 Franchisee: Bresnan Communications, LLC and its lawful and permitted
successors, assigns and transferees.
1.13 Gross Revenue: Revenue, as determined in accordance with generally accepted
accounting principles, received by the Franchisee from the provision of Cable Service over the
Cable System in the Service Area, provided however that such phrase shall not include: (1) any
tax, fee or assessment of general applicability collected by the Franchisee from Subscribers for
pass -through to a government agency, including the FCC User Fee; and (2) unrecovered bad
debt.
1.14 hffiormatiort Services: Shall be defined herein as it is defined under Section 3 of
the Communications Act, 47 U.S.C. § 153(20), as amended.
1.15 Local Franchise Authority (LFA): The City of Kalispell, Montana, or the lawful
successor, transferee, or assignee thereof.
1.16 Non -Cable Services: Any service that does not constitute Video Programming
pursuant to this Franchise including, but not limited to, Information Services and
Telecommunications Services.
1.17 PEG: Public, Educational, and Governmental.
1.18 Person: An individual, partnership, association, joint stock company, trust,
corporation, or governmental entity.
1.14 Public Rights-qf--Way: The surface and the area across, in, over, along, upon and
below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways, alleys, and
boulevards, including, public utility easements and public lands and waterways used as Public
Rights -of -Way, as the same now or may thereafter exist, which are under the jurisdiction or
control of the LFA. Public Rights -of -Way do not include the airwaves above a right-of-way with
regard to cellular or other nonwire communications or broadcast services.
1.20 Standard Installation: Any service installation that can be completed using an
aerial drop of one hundred fifty (150) feet or less.
1.21 Subscriber: A Person who lawfully receives Cable Service over the Cable System
with Franchisee's express permission.
1.22 Telecommunication Services: Shall be defined herein as it is defined under
Section 3 of the Communications Act, 47 U.S.C. § 153(46), as amended.
1.23 Transfer of the Franchise:
1.23.1 Any transaction in which:
1.23.1.1 a fifty percent ownership or greater interest in Franchisee is
transferred, directly or indirectly, from one Person or group of Persons to another Person or
group of Persons, so that Control of Franchisee is transferred; or
Q1, oj'Kahspell, Montana
3
1.23.1.2 the .rights held by Franchisee under the Franchise are transferred
or assigned to another Person or group of Persons_
1.23.1.3 However, notwithstanding Sub -subsections 1.23.1.1 and
1.23.1.2 above, a Transfer of the Franchise shall. not include transfer of an ownership or other
interest in Franchisee to the parent of Franchisee or to another Affiliate of Franchisee; transfer of
an interest in the Franchise or the rights held by the Franchisee under the Franchise to the parent
of Franchisee or to another Affiliate of Franchisee; any action which is the result of a merger of
the parent of the Franchisee; or any action which is the result of a merger of another Affiliate of
the Franchisee.
1.24 Video Programming: Shall be defined herein as it is defined under Section 602 of
the Communications Act, 47 U.S.C. § 522(20), as amended.
2. GRANT OF AI=TTNORITY: LIMITS AND RESERVATIONS
2.1 Grant of Authority: Subject to the terms and conditions of this Agreement, the
LFA hereby grants the Franchisee the right to own, construct, operate and maintain a Cable
System or such other facility along the Public Rights -of -Way within the Franchise Area, in order
to provide Cable Service and such other services that may be lawfully provided over the Cable
System.
2.2 Effective Date and Tenn: This Franchise shall become effective on the date that
the LFA passes and adopts this Franchise (the "Effective Date"). The term of this Franchise
shall be ten (10) years from the Effective Date unless the Franchise is earlier revoked or
terminated as provided herein (the "Term"). Upon the expiration of the Term, this Franchise
shall continue to survive unless and until: (a) the parties mutually agree upon and execute a new
or renewed franchise agreement; (b) Franchisee terminates this Franchise, upon ninety (90) days
written notice to the LFA; or (c) the LFA revokes the Franchise pursuant to Article I of this
Agreement. Nothing herein shall be deemed to constitute a waiver of either party's rights under
applicable law, rule or regulation, including 47 U.S.C. 546.
2.3 Grant Not Exclusive: The Franchise and the rights granted herein to use and
occupy the Public Rights -of -Way to provide Cable Services shall be non-exclusive, and the LFA
has granted and reserves the right to grant other franchises for similar uses or for other uses of
the Public Rights -of -Way, or any portions thereof, to any Person, or to snake any such use itself,
at any time during the term of this Franchise, subject to Section 12.16. Any such rights which
are granted shall not adversely impact the authority as granted under this Franchise and shall not
interfere, except as permitted by applicable law, with existing facilities of the Cable System.
2.4 Franchise Subject to Applicable Lain: Notwithstanding any provision to the
contrary herein, this Franchise, the LFA and Franchisee are subject to and shall be governed by
all applicable provisions of federal law and state law, as amended from to time, including but not
limited to the Cable Act.
2.5 No Waiver: The failure of the LFA or the Franchisee on one or more occasions to
exercise a right under this Franchise, the Cable Act or other applicable state or federal law, or to
require compliance or performance under this Franchise, shall not be deemed to constitute a
City of Kalispell, Montana
4
waiver of such right or a waiver of compliance or performance of this Agreement, nor shall it
excuse Franchisee from compliance or performance, unless such right or such compliance or
performance has been specifically waived in writing.
2.6 Construction of'Agreement:
2.6.1 Nothing herein shall be construed to limit the scope or applicability of
Section 625 of the Cable Act, 47 U.S.C. § 545, as amended.
2.6.2 Should any change to state or federal law, rules or regulations have the
lawful effect of materially altering the terms and conditions of this Franchise, then the parties
shall negotiate modifications to this Franchise to the mutual satisfaction of both parties, or
Franchisee may terminate this Franchise if the parties camiot reach agreement on the above -
.referenced modification to the Franchise. If the change to state or federal law, rules or
regulations provides that Franchisee may offer Cable Service pursuant to an alternate form of
grant of authority other than this Franchise, then Franchisee may terminate this franchise upon
agreeing to the terms and conditions of said alternate form of grant of authority.
3. PROVISION OF CABLE SERVICE
3.1 Availability of Cable Sep -vice:
3.1.1 Availability of Cable Service Generally: Franchisee shall make Cable
Service available to all residential dwelling units within the Franchise Area where: (1) the
average density is equal to or greater than thirty-five (35) occupied residential dwelling units per
linear mile pleasured from the nearest active cable plant: and (2) such dwelling units are within
one thousand three hundred twenty (1,320) cable -bearing strand feet (one quarter cable mile) of
its active trunk or feeder line. If, as a result of new construction, an area within the Franchise
Area meets the requirements in this Section 3.1.1, Franchisee shall provide Cable Service to such
area within twelve (12) months of receiving notice from the LFA that such requirements have
been met. Franchisee at its discretion may make Cable Service available to businesses within the
Franchise Area in conformance with Section 3.1. Service offered to subscribers pursuant to this
agreement shall be conditioned upon Franchisee having legal access to any such subscriber's
dwelling unit or other units wherein such service is provided. Nothing herein shall require
Franchisee to provide service to any person who fails to abide by Franchisee's terms and
conditions of service. Nothing herein shall be construed to limit the Franchisee's ability to offer
or provide bulk rate discounts or promotions where applicable, to the extent permitted under
Federal and State Law. For underground installations, Franchisee shall charge the Subscriber no
more than Franchisee's actual cost. Such costs shall be submitted to said Subscriber in writing
before installation is begun.
3.1.2 Where Franchisee is serving the area, but the premises to be connected
with a Standard Installation is located more than one hundred, fifty (150) feet from the nearest
trunk or feeder cable, the cost of the aerial cable installation beyond one hundred fifty (150) feet
will be paid by the recipient. For underground installations, Franchisee shall charge the recipient
its actual cost. Such cost estimates shall be submitted to said recipient, in writing, before
installation is begun.
CitygfKahspell, Montana
3.1.3 1Vo Discrimination in the Availability of'Cable Service: Franchisee shall
not deny access to Cable Service to any group of potential residential Subscribers because of the
income of the residents of the local area in which such group resides.
3.2 Municipal and School Ser-vice: Upon written request from the LFA, Franchisee
shall provide the following:
3.2.1 Franchisee shall, without charge, provide one (1) Standard Installation, for
Basic Service, as provided below, into the internal R.F. distribution system of each: municipal
office building, library and each school within the LFA (hereinafter singly or collectively
referred to as the "premises"). Franchisee shall make a connection at one outlet in each such
premise for the purpose of enabling the said premises to distribute the Basic Service. Where
such premises consist of more than one building, only one tie-in and connection shall be
provided by Franchisee. The premises that Franchisee shall provide such service to are
designated at Exhibit A of this Agreement.
3.2.2 As used in this Franchise, the terms:
3.2.2.1 "School" shall mean those public elementary, middle/junior, and
high school educational institutions within the Franchise Area; and
3.2.2.2 "Library" shall mean a library established for free public
purposes by official action of a municipality, district, or the legislature, where the whole interest
belongs to the public, provided, however, that the term shall not include a professional, technical
or public school library; and
3.22.3 "Municipal office buildings" shall mean the LFA's
Town/Village/City hall, its police, fire or ambulance corps buildings but shall not include County
and State office buildings.
3.2.3 Franchisee shall make such tie-in and connection at the location
designated by the appropriate official as the location of the internal R.F. distribution system of
the premises. The responsibility of Franchisee shall terminate when the tie-in and connection to
the internal R.F. distribution system are completed, and the responsibility for performance of the
internal R.F. distribution system, and for distribution of the transmissions throughout such
system shall be solely that of the administrator of the premises. Franchisee makes no
representation or warranty as to the ability of such distribution system to carry the programs
transmitted over its Cable System.
3.2.4 Where Franchisee is serving the area, but the premises to be connected
with a Standard Installation is located more than one hundred, fifty (150) feet from the nearest
trunk or feeder cable, the cost of the aerial cable installation beyond one hundred fifty (150) feet
will be paid by the recipient. For underground installations, Franchisee shall charge the recipient
its actual cost. Such cost estimates shall be submitted to said recipient, in writing, before
installation is begun.
City of Kalispell, Montana
6
4. SYSTEM FACILITIES
4.1 Design and Construction Requirements:
4.1.1 To the extent commercially practicable, all structures, lines and equipment
erected by Franchisee within the Franchise Area shall be so located as to cause minimum
interference with the proper use of streets, alleys, easements and other public ways and places,
and to cause minimum interference with rights or reasonable convenience of property owners
who adjoin any of the said streets, alleys or other public ways and places. Existing poles, posts
and other structures of the electric power company or any telephone company or any other public
utility that may be available to Franchisee shall be used to the extent commercially practicable in
order to minimize interference with travel. Where both power and telephone utilities are placed
underground, and to the extent commercially practicable, Franchisee's cable also shall be placed
underground.
4.2 Restoration of Municipal Property: Any municipal property damaged or
destroyed shall be promptly repaired or replaced by the Franchisee and restored to pre-existing
condition at Franchisee's expense.
4.3 Restoration of Subscriber PreJnises: The Franchisee shall. ensure, at Franchisee's
expense, that Subscriber's premises are restored to pre-existing condition if damaged by the
Franchisee's employees or agents in any respect in connection with the installation, repair, or
disconnection of Cable Service.
4.4 Relocation of System at Request of LFA: Nothing in this Agreement shall hinder
the right of the .Municipality, under Municipal Law, or any governmental authority to perform or
carry on, directly or indirectly, any public works or public improvements of any description.
Should the System in any way materially interfere with the construction, maintenance, or repair
of such public works or public improvements, Franchisee shall, at its own cost and expense,
protect or relocate its System, or part thereof, as reasonably directed by the Municipality and
provided Municipality provides at least thirty (30) days' written notice to Franchisee.
4.5 Relocation of System at Request of Third Parties: Upon notice and payment as set
forth herein by a person holding a building or moving permit issued by the Municipality,
Franchisee shall temporarily raise or lower its wires or other property or relocate the same
temporarily so as to permit the moving or erection of buildings to the extent practicable. The
expenses of any such temporary removal, raising or lowering of wires or other property shall be
paid in advance to Franchisee by the person requesting same_ In such cases, Franchisee shall be
given not fewer than ten (10) working days prior written notice in order to arrange for the
changes required.
4.6 Tree Trimming: Franchisee shall have the authority to trim trees or other natural
growth in order to access and maintain system.
4.7 Technical Standards: Franchisee shall comply with all applicable FCC rules and
regulations applicable to the Cable System, including without limitation FCC Rules and
Regulations, Part 76, Subpart K (Technical Standards), as may be amended from time to time.
City of Kalispell, Montana
4.8 Emergency Alert System: Franchisee shall comply with the Emergency Alert
System ("EAS") requirements of the FCC and applicable state law; in order that emergency
messages may be distributed over the System.
5. PEG SERVICES
5.1 Franchisee shall comply with applicable law, rules, and regulations pertaining to
non-commercial PEG access to the System.
5.2 Franchisee shall provide the LFA and the residents of the Franchise Area with
equitable access to all non-commercial. PEG access services provided by Franchisee as part of its
PEG access policies, rules, and procedures.
5.3 Franchisee shall make available one (1) chamnel to be used for public, educational
and governmental cablecast programming by the LFA (the "PEG Channel"). The PEG Channel
provided by the Franchisee may be offered in any format using any transmission method
consistent with FCC regulations. The PEG Channel shall be provided on Franchisee's basic tier
until the third (P) anniversary of the Effective Date; provided that, thereafter, such PEG
Channel shall continue to be provided on Franchisee's basic tier if required by applicable law.
The Franchisee reserves the right to program the PEG Channel during the hours not used by the
LFA. If programming time is not used by the LFA and is available for sharing, the PEG Channel
may be shared with other municipalities receiving programming from the common headend
receive site location.
5.3,1. Franchisee shall give the LFA thirty (30) days prior written notice of any
change of PEG channel assignments. If the Franchisee changes PEG Channel assignments
during the term of this Agreement, it shall reimburse the LFA's reasonable costs incurred for any
logo changes necessitated by channel designation and public education of new channel numbers;
provided, however, that the Franchisee shall not be required to reimburse the LFA for any costs
in excess of Two Thousand Five Hundred Dollars ($2,500) for any single change in the PEG
Channel assignment.
5.4 177deinnity for PEG: The LFA shall require all local producers and users of any of
the PEG facilities or Channels to agree in writing to authorize Franchisee to transmit
programming consistent with this Agreement and to defend and hold harmless Franchisee and
the LFA from and against any and all liability or other injury, including the reasonable cost of
defending claims or litigation, arising from or in connection with claims for failure to comply
with applicable federal laws, rules, regulations or other requirements of state or federal
authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law
or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for
breach of contractual or other obligations owing to third parties by the producer or user; and for
any other injury or damage in law or equity, which result from the use of a PEG facility or
Channel. The LFA shall establish rules and regulations for use of PEG facilities, consistent with,
and as required by, 47 U.S.C. §531.
5.5 Recovery of Costs: To the extent permitted by federal law, the Franchisee shall be
allowed to recover the costs of the PEG Grant or any other costs arising from the provision of
City of Kalispell, Montana
PEG services from Subscribers and to include such costs as a separately billed line item on each
Subscriber's bill. Without limiting the forgoing, if allowed under state and federal laws,
Franchisee may externalize, line -item, or otherwise pass -through interconnection and any
franchise -related costs to Subscribers.
6. FRANCHISE FEES
6.1 Payment to LFA: Beginning sixty (60) days after the Effective Date of this
Agreement, Franchisee shall pay to the LFA a Franchise Fee of four and four tenths percent
(4.4%) of annual Gross Revenue (the "Franchise Fee"). The twelve (12) month period applicable
under the Franchise for the computation of the Franchise Fee shall be a calendar year. Such
payments shall be made no later than forty-five (45) days following the end of each calendar
quarter. Franchisee shall be allowed to submit or correct any payments that were incorrectly
omitted, and shall be refunded any payments that were incorrectly submitted, in connection with
the quarterly Franchise Fee remittances within ninety (90) days following the close of the
calendar year for which such payments were applicable.
6.1.1 The LFA shall impose an equivalent franchise fee obligation to the
obligations contained in this Section 6.1 on all new and renewed providers of Cable Service in
the Franchise Area. In any event, if any new or renewed franchise agreement contains franchise
fee obligations that are lesser in amount than the obligations imposed in this Section 6.1,
Franchisee's obligations under Section 6.1 shall thereafter be automatically reduced to an
equivalent amount.
6.2 Limitation on Franchise Fee Actions: The parties agree that the period of
limitation for recovery of any Franchise Fee payable hereunder shall be three (3) years from the
date on which payment by Franchisee is due.
6.3 Bundled Services: If Franchisee provides a Bundled Service to Subscribers, the
Franchise Fee shall be applied only to the value of the Cable Services, as reflected on the books
and records of Franchisee in accordance with FCC rules, regulations, standards or orders.
7. REPORTS AND RECORDS
7.1 Open Books and Records: Upon reasonable written notice to the Franchisee and
with no less than thirty (30) business days written notice to the Franchisee, the LFA shall have
the right to inspect the Franchisee's records kept in the ordinary course of business, and
reasonably necessary for the LFA to enforce this Franchise, during Franchisee's regular business
hours on a nondisruptive basis. Such notice shall specifically reference the Section or subsection
of the Franchise which is under review, so that Franchisee may organize the necessary books and
records for appropriate access by the LFA. Franchisee shall not be required to maintain any
books and records for Franchise compliance purposes longer than three (3) years.
Notwithstanding anything to the contrary set forth herein, Franchisee shall not be required to
disclose information that it reasonably deems to be proprietary or confidential in nature, nor
disclose any of its or an Affiliate's books and records not relating to the provision. of Cable
Service in the Franchise Area. Franchisee shall not be required to provide Subscriber information
in violation of Section 631 of the Cable Act, 47 U_S.C. §551.
City of'Kalispell, Montava
9
8. INSURANCE AND INDEMNIFICATION
8.1 Insurance:
8.1.1 Franchisee shall maintain in full force and effect, at its oval cost and
expense, during the Franchise Term, the following insurance coverage:
8.1.1.1 Commercial General Liability Insurance in the amount of one
million five hundred dollars ($1,500,000) combined single limit for property damage and bodily
injury.
8.1.1.2 Workers' Compensation Insurance in conformity with all legal
requirements of the State of Montana.
The LFA shall be designated as an additional insured. Upon request, the
Franchisee agrees to provide a copy of a revised Certificate of Insurance to the LFA as soon as
practicable thereafter.
8.2 Indemnification:
8.2.1 Franchisee shall indemnify and hold harmless the LFA, its officers,
employees, and authorized agents from and against all losses and claims, demands, payments,
suits, actions, recoveries, and judgments resulting from property damage or personal injury,
arising from actions taken pursuant to this Agreement by Franchisee, its officers, employees, and
authorized agents in the construction, operation, maintenance, service or repair of the Cable
System or any portion thereof, or by reason of any suit or claim for royalties, license fees, or
infringement of patent rights arising from Franchisee's performance under this Agreement other
than the provision of PEG facilities and PEG channels. The LFA shall promptly notify
Franchisee of any claim for which it seeks indemnification and shall make available to
Franchisee all relevant information under LFA's control regarding such claim. Upon .notification
of a claim, Franchisee shall fully control the defense of such claim and any compromise,
settlement resolution or other disposition of such claim, including selection of counsel; provided
however, that, the LFA shall have the right to participate in the defense of any litigation by
retaining its own counsel at its own cost and expense and Franchisee shall not agree to any
settlement or compromise that includes the release of the LFA without the consent of the LFA to
the terms of such settlement or compromise, such consent not to be unreasonably withheld.
Notwithstanding any provision contained herein and to the contrary, Franchisee shall have no
obligation to indemnify or defend the LFA with respect to any programming provided by the
LFA. The LFA shall be responsible for its own acts and the acts of its officers, employees, and
agents that constitute willful misconduct, negligence, or willful breach; subject to any and all
defenses and limitations of liability provided by law, The Franchisee shall not be required to
indemnify the LFA for acts solely committed on the part of the LFA which constitute willful
misconduct or negligence on the part of the LFA, its officers, employees, agents, attorneys,
consultants, independent contractors or third parties acting in their official capacity on behalf of
the LFA.
9. TRANSFER OF FRANCHISE
Cin, of Kalispell, Montana
10
9.1 LFA Consent Required: Subject to Section 617 of the Cable Act, 47 U.S.C. §
537, as amended, no Transfer of the Franchise shall occur without the prior consent of the LFA,
provided that such consent shall not be unreasonably withheld, delayed or conditioned. In
considering an application for the Transfer of the Franchise, the LFA may consider the
applicant's: (i) technical ability; (ii) financial ability; (iii) good character; and (iv) other
qualifications necessary to continue to operate the Cable System consistent with the terms of the
Franchise.
9.2 LFA Consent Not Requiredfor Certain Transactions: No prior consent of the
LFA shall be required for a transfer in trust, by mortgage, by other hypothecation, by assignment
of any rights, title, or interest of the Franchisee in the Franchise or Cable System in order to
secure indebtedness, or for transactions otherwise excluded under Section 1.23 above.
10. RENEWAL OF FRANCHISE
10.1 Governing Law: The LFA and Franchisee agree that any proceedings undertaken
by the LFA that relate to the renewal of this Franchise shall be governed by and comply with the
provisions of Section 12.12 below and Section 626 of the Communications Act, 47 U.S.C. § 546,
as amended.
10.2 Consistent Terms: Franchisee and the LFA consider the terms set forth in this
Article 10 to be consistent with the express provisions of 47 U.S.C. § 546.
11. ENFORCEMENT AND TERMINATION OF FRANCHISE
11.1 Subject to the other terms and conditions of this Franchise, including, but not
limited to the provisions of Sections 11.1.6 and 11.3, the LFA may revoke this Franchise and all
rights of Franchisee hereunder for any of the reasons set forth in Sections 11.1.1 through 11.1.5
below (each a "Noncompliance Claim"):
11. L I Franchisee fails to comply or to take reasonable steps to comply with a
material provision or material provisions of this Agreement. Notwithstanding the above, when
Franchisee is once again in compliance, the right to revoke this Agreement shall no longer
remain with respect to the condition that precipitated the notice;
11.1.2 Franchisee attempts or does practice a material fraud or deceit in its
securing of this Franchise;
11.1..3 Franchisee practices material fraud or displays repeated negligence in the
accurate reporting of information to the LFA, including but not limited to information pertaining
to Franchisee's calculation of the LFA's Franchise Fee; or
11.1.4 Franchisee fails to pay any legally owed taxes or fees due the LFA, unless
the amount of such payment is part of a good faith dispute or the failure to pay is caused by
inadvertent error;
11.1.5 Franchisee fails to maintain adequate insurance as specified in Section 8
of this Franchise.
City of Kafispell, ;Montana
11
11.1.6 Notwithstanding anything to the contrary in the foregoing, the LFA shall
provide Franchisee with sixty days (60) prior written notice of any Noncompliance Claim, so as
to provide Franchisee the opportunity to: (1) respond to the LFA, if Franchisee contests (in
whole or in part) the assertion of a Noncompliance Claim; or (2) cure such Noncompliance
Claim, to the extent such Noncompliance Claim may be cured.
11.2 Material Terms: For purposes of this Agreement the term "material provision" or
"material provisions" shall mean the following sections of this Franchise (including any
referenced definitions in Section 1): Section 1.13 (Gross Revenue), Section 1.19 (Public Rights -
of -Way), Article 4 (System Facilities), Article 5 (PEG), Article 6 (Franchise Fees), and Article 8
(Insurance & Indemnification).
11.3 Process: Notwithstanding the above, no default, revocation or termination shall
be effective unI.ess and until the City Council of the LFA shall have adopted an ordinance or
resolution setting forth the cause and reason for the revocation and the effective date thereof. The
procedures for adoption of such an ordinance or resolution shall be as follows: LFA shall provide
sixty (60) days prior written notice to Franchisee of a claim of violation and reasons therefore in
sufficient detail for Franchisee to address the particulars of the claim; during said sixty (60) day
period LFA shall cooperate with Franchisee and provide Franchisee an opportunity for
Franchisee to cure the alleged violation, or provide a cure plan that reasonably satisfies the LFA.
If Franchisee has failed to cure after the expiration of said sixty (60) day period or fails to
provide a cure plan that reasonably satisfies the LFA, the LFA shall promptly schedule a public
hearing no sooner than fourteen (14) days after written notice to the Franchisee. Franchisee shall
be provided an opportunity to offer evidence and be fully and fairly heard at said public hearing
held on the proposed adoption of such ordinance or resolution. The LFA shall obtain and make
available to Franchisee, at a reasonable expense to Franchisee, a transcript of said hearing.
Franchisee shall have the right to appeal any such administrative decision to a court of competent
jurisdiction as Franchisee inay choose, and revocation of the Franchise shall not become
effective until any such appeal has become final or the time for taking such appeal shall have
expired.
11.4 Removal of System: Upon expiration, termination or revocation of this Franchise,
Franchisee, at its sole cost and expense and upon written direction of the LFA, shall remove the
cables and appurtenant devices constructed or maintained in the public right-of-way in
connection with the services authorized herein and provided to subscribers within the LFA,
unless Franchisee, its affiliated entities or assignees should, within six (6) months after such
expiration, termination or revocation obtain certification from the FCC to operate an Open Video
System or any other Federal or State certification to provide service over the System or provided
events beyond Franchisee's reasonable control make removal impracticable.
12. 11SCELLANEOUS PROVISIONS
I2.1 Binding Acceptance: This Agreement shall bind and benefit the parties hereto and
their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and
assigns, and the promises and obligations herein shall survive the expiration date hereof
City oj'Kalispell, Montana
12
12.2 Preemption: In the event that federal or state law, rules, or regulations preempt a
provision or limit the enforceability of a provision of this Agreement, the provision shall be read
to be preempted to the extent, and for the time, but only to the extent and for the time, required
by law, except that such provision shall survive such preemption and shall remain in effect for
the term of this Agreement to the extent permitted by law. In the event such federal or state law,
rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the
provision hereof that had been preempted is no longer preempted, such provision shall thereupon
return to full force and effect, and shall thereafter be binding on the parties hereto, without the
requirement of further action on the part of the LFA.
12.3 Force Majeure: Franchisee 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 occun-ed or
were caused by a Force Majeure.
12.4 Notices: Unless otherwise expressly stated herein, notices required under the
Franchise shall be mailed first class, postage prepaid, to the addressees below. Each party may
change its designee by providing written notice to the other party.
12.4.1 Notices to Franchisee shall be mailed to:
Bresnan Communications, LLC
I I I I Stewart Avenue
Bethpage, NY 11714
Attention: Vice President, Government Affairs
12.4.2 With a copy to:
Cablevision Systems Corporation
I l l l Stewart Avenue
Bethpage, NY 11714
Attention: Legal Department
12.4.3 Notices to the LFA shall be mailed to:
City Manager
City of Kalispell
201 First Avenue East
Kalispell, MT 59901
12.5 Entire Agreement: This Franchise and the Exhibits hereto constitute the entire
agreement between Franchisee and the LFA and they supersede all prior or contemporaneous
agreements, representations or understandings (whether written or oral) of the parties regarding
the subject matter hereof. The LFA acknowledges and agrees that all the elements of its local
ordinances, rules, and regulations with respect to the provision of Cable Service over
Franchisee's Cable System are fully reflected by the terms and conditions of this Agreement and
are satisfied by the Franchisee's compliance with the terms and conditions of this Agreement,
City of Kalispell, Montana
13
and in the event of a material conflict between a provision of this Agreement and a provision of
such local ordinance, rules, and regulations, this Agreement shall be controlling.
12.6 Onendinents and Modifications: Amendments and/or modifications to this
Agreement shall be mutually agreed to in writing by the parties.
12.7 Captions: The captions and headings of articles and sections throughout this
Agreement are intended solely to facilitate reading and reference to the articles, sections and
provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this
Agreement.
12.8 Severability: If any section, subsection, sub -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, sub -
subsection, sentence, paragraph, term or provision .hereof, all of which will remain in full force
and effect for the term. of the Franchise.
12.9 Recitals: The recitals set forth in this Agreement are incorporated into the body
of this Agreement as if they had been originally set forth herein.
12.10 Enzployn7ent Practices: Franchisee will not refuse to hire, nor will it bar or
discharge from employment, nor discriminate against any person in compensation or in terns,
conditions, or privileges of employment because of age, race, creed, color, national origin, or sex
or any protected category of persons under federal or state law.
12.11 Custoiner Service: Franchisee shall comply with the consumer protection and
customer service standards set forth in applicable federal and state law.
12.12 No Third Party Beneficiaries: Except as expressly provided in this Agreement,
this Agreement is not intended to, and does not create any rights or benefits on behalf of any
Person other than the parties to this Agreement.
12.13 LFA Official: The City Manager of the LFA is the LFA official that is
responsible for the continuing administration of this Agreement.
12.14 No Waiver of Parties' Rights: Notwithstanding anything to the contrary in this
Agreement, no provision of this Agreement shall be construed as a waiver of either the LFA's or
the Franchisee's rights under applicable federal and state law.
12.15 Level Playing Field:
12,15.1 Any future Cable Service Franchise(s) or other similar
authorization granted by the LFA shall only authorize or permit any Person providing Cable
Service or any other Video Programming service to enter into the Public Rights -of -Way on the
same terms or conditions as those contained in this Franchise. If the LFA grants a franchise (or
franchises), or permits access to the Public Rights -of -Way to a non -franchised provider of Cable
Service, that contain provisions imposing lesser obligations or more favorable terms on the
City oj'Kalispell, Montana
14
company(s) thereof than are imposed by the provisions of this Franchisee, then, upon written
notice to the LFA by Franchisee, this Franchise shall upon notice to the LFA by Franchisee be
deemed modified and construed to include all such less burdensome and more favorable terms
identified by Franchisee.
12.15.2 Nothing in this Section 12.17 shall be deemed a waiver of any
remedies available to Franchisee under Federal, State or Municipal Law, including but not
limited to Section 625 of the Cable Act, 47 U.S.C. Section 545.
AGREED TO THIS DAY OF
THE CITE' OF KALISPELL, MONTANA
By:
Name:
Title:
EXHIBTI'S
, 2012.
BRESNAN COMMUNICATIONS, LLC
0
Name:
Title:
Exhibit A: Municipal Buildings to be Provided Free Cable Service
City of Kalispell, Montana
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EXHIBIT A
MUNICIPAL/SCHC®L BUILDINGS TO BE PROVIDED FREE CABLE SERVICE
Russell School Cornelius Hedges School
622 2❑d Avenue NW 800 4'h Avenue E
Kalispell, MT 59901 Kalispell, MT 59901
Trinity Lutheran Elementary School Flathead County Library
493 5`' Avenue West N 247 1"Avenue E
Kalispell, MT 59901 Kalispell, MT 59901
Kalispell Junior High School Edgerton School
205 North West Lane 1400 Whitefish Stage Road
Kalispell, MT 59901 Kalispell, MT 59901
Laser School Glacier High School
285 51h Avenue East N 375 Wolfpack Way
Kalispell, MT 59901 Kalispell, MT 59901
Peterson School City Hall
1119 2❑d Street W 201 1"Avenue E
Kalispell, MT 59901 Kalispell, MT 59901
Linderman School Fire Department
124 P Avenue E 312 1"Avenue E
Kalispell, MT 59901 Kalispell, MT 59901
Kalispell Montessori Police Department
5 Parkhill Road 312 1" Avenue E
Kalispell, MT 59901 Kalispell, MT 59901
Elrod School Senior Citizens Center
412 3rd Avenue W 403 2nd Avenue W
Kalispell, MT 59901 Kalispell, MT 59901
St. Matthew School
602 S. Main Street
Kalispell, MT 59901
Flathead High School
644 4`h Avenue W
Kalispell, MT 59901
City of Kalispell, Montana
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