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3. Bresnan Communications Franchise AgreementCi*ty Kalispell Post Of fic c Box 1997 -Kalispell, Montana 5990 3- 1997 - Telephone (406) 758-7{)0() Fax - (406) 75S-7758 TO: Mayor and City Council FROM: James H. Patrick, City Manager SUBJECT: Bresnan Franchise Agreement MEETING BATE: August 27, 2007 BACKGROUND: The City and Bresnan have been working on the enclosed Franchise Agreement for the last year. As Council requested, the Franchise fee reflects a 4.4%. This Franchise Agreement will allow and fund the City's continued broadcast of Council Meetings on Channel 9. This franchise is nonexclusive and primarily serves as the City's granting a right to use the City Right of ways. The term of the contract is for five years. Respectfully submitted, ames�iH[. Pa 'rick City Manager FRANCHISE AGREEMENT This Franchise Agreement (""Franchise") is between City of Kalispell, hereinafter referred to as "(.the Grantor" and Bresnan Communications, LLC, hereinafter referred to as "the Grantee." SECTION 1. Definition of Terms 1.1 Terms. For the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and wards in the singular number include the plural number. A. `Basic Cable Service" means any service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. § 543(b)(7) (1993). B. "Cable Act" means Title VI of the Communications Act of 1934, as amended. C. "Cable Programming _ Service" means any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than: (a) Video programming carried on the Basic Service Tier; (b) Video programming offered on apay-per-channel or pay -per -program basis; or (c) A combination of multiple channels of pay -per -channel or pay -per -program video programming offered on a multiplexed or time -shifted basis so long, as the combined service: (1) consists of commonly -identified video programming; and (2) is not bundled with any regulated tier of service. Cable Programming Service as defined herein shall not be inconsistent with the definition as set forth in 47 U.S.C. § 543(1}(2) (1993) and 47 C.F.R. 76.901(b) (1993). D. "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. E. "Cable System" shall mean a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video Programming and which is provided to multiple Subscribers within the Service Area, but such term does not include: (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves subscribers without using any public right-of- way; (c) a facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. §§ 201 et seq., except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. § 541 (c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on -demand services; (d) an open video system that complies with 47 U.S.C. § 653. (e) any facilities of any electric utility used solely for operating its electric utility systems. F. "Converter" means an electronic device which converts signals to a frequency acceptable to a television receiver of a Subscriber and by an appropriate selector permits a Subscriber to view all Subscriber signals included in the service. G. `Drop" means the cable that connects the ground block on the Subscriber's residence to the nearest feeder cable of the System. H. I'f.FCC" means the Federal Communications Commission, or successor governmental entity thereto. 1. ``Franchise" means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to 47 U.S.C. § 546) issued by a Grantor, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate., agreement, or otherwise, which authorizes the construction or operation of a cable system. J. `grantor" means the City of Kalispell or any lawful successor. K. ``Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a Franchisee or its Cable Subscribers, or both, solely because of their status as such, pursuant to this Ordinance. The term "Franchise Fee" does not include: (1) any tax, fee, or assessment of general applicability (including any such 2. tax, fee, or assessment imposed on both utilities and Cable operators or their Cable Services but not including a tax, fee, or assessment that is unduly discriminatory against Franchisees or Cable Subscribers); (ii) Capital Costs that are required by a Franchise to be incurred by a Franchisee for public, educational or governmental ("PEG") Access facilities; (111) requirements or charges incidental to the award or enforcement of a Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (iv) any fee imposed under Title 17 of the united States Code. L. "Grantee" means Bresnan Communications, LLC, or the lawful successor, 1 transferee, or assignee thereof. M. "Gross Revenue" means revenue received by the Grantee from the provision of Cable Services 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 Grantee from Subscribers for pass -through to a government agency, including the FCC user Fee; and (2) unrecovered bad debt. N. "open Video Services or oVS" means any video programming Services provided to any person by a Franchisee certified by the FCC to operate an open Video System pursuant to Section 47 U.S.C. 573, as may be amended, regardless of the Facilities used. o. "Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. P. ".Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights -of way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Grantor in the Service Area which shall entitle the Grantor and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System. Public Way shall also mean any easement now or hereafter held by the Grantor within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or fights -of -way as shall within their proper use and meaning entitle the Grantor and the Grantee to the use thereof for the purposes of installing and operating the Grantee's Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System. Q. "Service Area" means the present boundaries of the Grantor, and shall include any additions thereto by annexation or other legal means, subject to the exceptions in subsection 3.9. R. `"Standard Installation" is defined as any service installation that can be completed using a Drop of one hundred twenty five (125) feet or less. S. "Subscriber" means any Person who lawfully receives Cable Service of the Cable System with the Grantee's express permission. T. ``Video Programming" means any programming provided by, or generally considered comparable to programming provided by a television broadcast station. SECTION 2. Grant of Franchise 2.1 Franchise Required. It shall be unlawful for any Person to construct, operate or maintain a Cable System or to provide Cable Service or other competing multichannel video services, including OV S, in the City without a Franchise in the form of a Franchise Agreement authorizing the same, unless applicable federal or State law prohibits the City's enforcement of such a requirement. 2.2 Grant. The Grantor hereby grants to the Grantee a nonexclusive Franchise which authorizes the Grantee to construct and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way such facilities and equipment as may be necessary or appurtenant to the Cable System. 2.3 Other ordinances. The Grantee agrees to comply with the terms of any lawfully adopted generally applicable local ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the Grantee that are granted by this Franchise. Neither party may unilaterally alter the material rights and obligations set forth in this Franchise. In the event of a conflict between any ordinance and this Franchise, the Franchise shall control, provided however that the Grantee agrees that it is subject to the lawful exercise of the police power of the Grantor. 2.4 Level Playing,Field. Any Franchises granted by the Grantor shall only authorize or permit any Person providing Video Programming to eater into the Grantor's Public Ways on the same terms or conditions as those contained in this Franchise Agreement in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. 2.5 Term_. The Franchise granted hereunder shall be for an initial term of five (5) years commencing on the effective date of the Franchise as set forth in subsection 8.6, unless otherwise lawfully terminated in accordance with the terms of this Franchise. 4. SECTION 3. Standards of Service 3.1 Conditions of Occu anc . 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. 3.2 Restoration of Public Ways. (a) In the event of disturbance of any street or private r�rrirrr��irr^i i i i i i i i i ii i i i ii ni�i.r rrrwrr--��w.r property by the Grantee, it shall, at its own expense and in a manner approved by the City and the owner, replace and restore such street/ROW or private property in as good a condition as before the work. (b) If the Grantee fails to perform such replacement or restoration, the City or the owner shall have the right to do so at the sole expense of the grantee. Payment to the City or owner for such replacement or restoration shall be immediate, upon demand, by the Grantee. All requests for replacement or restoring of such ROW or private property as may have been disturbed must be in writing to the Grantee. If during the course of the Grantee's construction} operation, or maintenance of the Cable System there occurs a disturbance of any Public Way by the Grantee, Grantee shall replace and restore such Public Way to a condition comparable to the condition of the Public Way existing immediately prior to such disturbance. 3.3 Relocation for the Grantor. Upon its receipt of reasonable advance written notice, to be not less than five (5) 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 Grantor by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of public structures or improvements Which are not used to compete with the Grantee's services. The Grantee shall in all cases have the right of abandonment of its property. 3.4 Relocation for a Third Party. The Grantee shall, on the request of any Person holding a lawful permit issued by the Grantor, protect, support, raise, lower, temporarily disconnect, relocate in or remove from the Public Way as necessary any property of the Grantee, provided. (A) the expense of such is paid by said Person benefiting from the relocation, including, if required by the 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 ten (10) business days in the event of a temporary relocation, and no less than one hundred twenty (120) days for a permanent relocation. 3.5 Trimming of Trees and Shrubbery_. (a) The Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee. (b) The Grantee may contract for such services; however, any firm or individual so retained shall receive City approval prior to commencing such activity. 5. (c) Required tree trimming on private property not affecting public property must be negotiated between the grantee and the owner of the private property. The Grantee shall have the authority to trim trees or other natural growth in order to access and maintain the Cable System. 3.6 SafetyRequirements. 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. The Cable System shall not endanger or unreasonably interfere with the safety of Persons or property in the Service Area. 3.7 UndeMround 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 Section shall require the Grantee to construct, operate, and maintain underground any ground -mounted appurtenances. 3.8 Access to open Trenches. The Grantor agrees to include the Grantee in the platting -n...m.r-.iiiiw.. u. niirrrnr- - rw..iwwiir■-- --..w.r process for any new subdivision. At a minimum, the Grantor agrees to require as a condition of issuing a permit for open trenching to any utility or developer that (A) the utility or developer give the Grantee at least ten (10) days advance written notice of the availability of the open trench, and (B.) that the utility or developer provide the Grantee with reasonable access to the open trench. 3.9 Required Extensions of the Cable System. whenever the Grantee receives a request for Cable Service from a Subscriber in a contiguous unserved area where there are at least ten (10) residences within 1320 cable -bearing strand feet (one -quarter cable mile) from the portion of the grantee's trunk or distribution cable which is to be extended, it shall extend its Cable System to such Subscribers at no cost to said Subscribers for the Cable System extension, other than the published Standard./non-Standard installation fees charged to all Subscribers. 3.10 Subscriber Char es for Extensions of the Fable System. No Subscriber shall be refused service arbitrarily. However, if an area does not meet the density requirements of subsection 3.9 above, the Grantee shall only be required to extend the Cable System to Subscriber(s) in that area if the Subscriber(s) are willing to share the capital costs of extending the Cable System. Specifically, the Grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per 134 0coble-bearing strand feet from the Grantee's trunk or distribution cable, and whose denominator equals ten (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 non --Standard Installation charges to extend the Fable System from the tap to the residence. 31 MI Cable Service to Public Build in s. The Grantee, upon request, shall provide without charge, a Standard Installation and one outlet of Basic Cable to those adi,n i n i si r,U t i % C lit l 1 d ins ., owned and occupied by the Grantor, fire station(s), police stations), and K-12 public school(s) that are within one hundred fifty feet of its Cable System. The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from the Grantee. The Cable Service provided shall not be used for commercial purposes, and such outlets shall not be located in areas open to the public. The Grantor shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System. The Grantor shall hold the Grantee harmless from any and all liability or claims arising out of the provision and use of Cable Service required by this subsection. The Grantee shall not be required to provide an outlet to such buildings where a non -Standard Installation is required, unless the Grantor or building owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and/or non -Standard Installation. If additional outlets of Basic Cable are provided to such buildings, the building owner/occupant shall pay. the usual installation and service fees associated therewith. 3.12 Emer envy use. If the Grantee provides an Emergency Alert System ("EAS"), then the Grantor shall permit only appropriately trained and authorized Persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the Cable System. Except to the extent expressly prohibited by taw, the Grantor shall hold the Grantee, its employees, officers and assignees harmless from any claims arising out of use of the EAS, including, but not limited to, reasonable attorneys' fees and costs. 3.13 Reimbursement of Costs. If funds are available to any Person using the Public Way for the purpose of defraying the cost of any of the foregoing, the Grantor shall reimburse the Grantee in the same manner in which other Persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the Grantor shall make application for such funds on behalf of the Grantee. 3.1.4 ,kccess t(� Public. E clticational, and Governmental (:'hannel, The CO'rantee sluall make ,Available hle nc l channel to he tiscd for ublic educatlon:�l and t�ov e�����nentai ��k�l�l��c�ast rotivramniin": The Grantee also reserves the rioht to pro{=rein the desi =tiated. chatmel :lu in the hours not cised by. the (�rantor. ifpro_tra niinin� tine is not used hN tlle rantoi 'InO is available for sharin �s the channel rnav lac; shared v ith other Mullici .:-slit-ies r��ceI inc, rc.)oraninjino from the common. headend receive site location. The t.:'U.:111tor shell acyree to indetnnifv, sa%.-e .ind. hold harmless the ('aiitee from and against alix, liability res��lti���� from thy} tis-e of the t1fore -mentioned ch�innel bN, the Grantor, exec t for liahilit'._ res114tin 1'ronj proorain tinle shared NN tth other rum ic' a ities. ..1 Otie--dine ley( Ali pmetit Purchase Reimbursement. 'Flie, ���-L�x�t��� .��.�r��}� ��.� ��r-o , le 01C (ii-Lind:or �,v'drl ZI .ji .` I- I'=.1 i� 'i ' �t Of' Lit! to r ,J.00 t i k f. '. i:r i k 't ' 'C i ti t�hc Eii� ie! 4A [: ? i :" '` 7. SECTION 4. Repulation by the Grantor ..� P.�i�YYYY.Y.Y�l�l.l.. PI I I.�PI..I.� ■ � � I�rrrrrrrrlr.........�.I�� � �•nn� � � r�rW.YrrrrlMr 4.1 Franchise Fee. A. The Grantee shall pay to the Grantor an annual franchise fee of four paint four percent (4.4%) of annual Gross Revenue (as defined in subsection 1.1 of this Franchise). In accordance with the Cable Act, the twelve (1.2-) month period applicable under the Franchise for the computation of the franchise fee shall be a calendar year. The franchise fee payment shall be due quarterly and payable within _ninety (90) days after the close of the preceding quarter of the calendar year. Each payment shall be accompanied by a brief report prepared by a representative of the Grantee showing the basis for the computation. B. Limitation on Franchise Fee Actions. The period of limitation for recovery of any franchise fee payable hereunder shall be three years from the date on which payment by the Grantee is due. 4.2 Rates and Char es. The Grantor may regulate rates for the provision of Basic Cable and equipment as expressly permitted by federal or state law. 4.3 Renewal of Franchise. A. The Grantor and the Grantee agree that any proceedings undertaken by the Granter that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act. B. In addition to the procedures set forth in said Section f,26(a), the Grantor agrees to notify the Grantee of all of its assessments regarding the identity of future cable -related community needs and interests, as well as the past performance of the Grantee under the then current Franchise term. The Grantor further agrees that such assessments shall be Provided to the Grantee promptly so that the Grantee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the Franchise prier to expiration of its term. C. Notwithstanding anything to the contrary set forth in this subsection 4.3, the Grantee and the Granter agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, the Grantor and the Grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current Franchise and the Grantor may grant a renewal thereof. D. The Grantee and the Grantor consider the terms set forth in this subsection 4.3 to be consistent with the express provisions of Section 626 of the Cable Act. 4.4 Conditions of Sale. 8. The Grantee and the Grantor agree that in the case of a final determination of a lawful revocation of the Franchise, the Grantee shall be given at least twelve (12 ) months to effectuate a transfer of its Cable System to a qualified third party. Furthermore, the Grantee shall be authorized to continue to operate pursuant to the terms of its prior Franchise during this period. If, at the end of that time, the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Grantor, the Grantee and the Grantor may avail themselves of any rights they may have pursuant to federal or state law. It is further agreed that the Grantee's continued operation of the Cable System during the twelve (12) month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the Grantor or the Grantee. 4.5 Transfer of Franchise. The Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling, controlled by, or under common control with the Grantee, without the prior consent of the Grantor, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assitmment of any rights, title, or interest of the Grantee in the Franchise or Fable System in order to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the Grantor shall notify the Grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the Grantor has not taken action on the Grantee's request for transfer within one hundred twenty (120) days after receiving such request, consent by the Grantor shall be deemed given. SECTION S. Books and Records The Grantee agrees that the Grantor, upon thirty (30) days written notice to the Grantee, may review such of its books and records at the Grantee's business office, during normal business hours and on a nondisruptive basis, as is reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the Section of the Franchise which is under review, so that the Grantee may organize the necessary books and records for easy access by the Grantor. The Grantee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Notwithstanding anything to the contrary set forth herein, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature, nor disclose books and records of any affiliate which is not providing Cable Service in the Service Area. The Grantor 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. SECTION 6. Insurance and Indemnification 6.1 Insurance Reg„ui_rem, ,e,nts. The Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Commercial General Liability Insurance in the amount of $1.000,000 combined single limit for bodily injury and property damage. The 9. Grantor shall be designated as an additional insured. Such insurance shall be noncancellable except upon thirty (30) days prior written notice to the Grantor. Upon written request, the Grantee shall provide a Certificate of Insurance showing evidence of the coverage required by this subsection. 6.2 In.denmification. The Grantee agrees to indemnify, save and hold harmless, and defend the Grantor, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the Grantee's construction, operation, or maintenance of its Cable System, provided that the Grantor shall give the Grantee written notice of its obligation to indemnify the Grantor within ten (10) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the foregoing, the Grantee shall not indemnify the Grantor for any damages, liability or claims resulting from the willful misconduct or negligence of the Grantor. SECTION 7. Enforcement and Termination of Franchise 7.1 Notice of Violation. In the event that the Grantor believes that the Grantee has not complied with the terms of the Franchise, the Grantor shall informally discuss the matter with Grantee. If these discussions do not lead to resolution of the problem, the Grantor shall notify the Grantee in writing of the exact nature of the alleged noncompliance. 7.2 The Grantee's Right to Cure or Respond. The Grantee shall have thirty (30) days from receipt of the notice described in subsection 7.1: (A) to respond to the Grantor, contesting the assertion of noncompliance, or (B) to cure such default, or (C) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Grantor of the steps being taken and the projected date that they will be completed. 7.3 Public Hearin. In the event that the Grantee fails to respond to the notice described in subsection 7.1 pursuant to the procedures set forth in subsection 7.2, or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to 7.2(.C) above, if it intends to continue its investigation into the default, then the Grantor shall schedule a public hearing. The Grantor 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 Grantor, after the hearing set forth in subsection 7.3, determines that the Grantee is in default of any provision of the Franchise, the Grantor may: A. Seep specific performance of any provision, which reasonably tends itself to such remedy, as an alternative to damages: or B. Commence an action at law for monetary damages or seek other equitable relief; or 10. C. In the case of a substantial default of a material provision of the Franchise, seek to revoke the Franchise in accordance with subsection 7.5. 7.5 Revocation. Should the Grantor seek to revoke the Franchise after following the procedures set forth in subsections 7.1-7.4 above, the Grantor shall give written notice to the Grantee of its intent. The notice shall set forth the exact nature of the noncompliance. The Grantee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the Grantor has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The Grantor shall cause to be served upon the Grantee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise. At the designated hearing, the Grantor shall give the Grantee an opportunity to state its position on the matter, after which it shall determine whether or not the Franchise shall be revoked. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Grantor de novo. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Grantor. The Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Grantor's rights under the Franchise in lieu of revocation of the Franchise. 7.5 Force Ma'eure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which the Grantee's Cable, System is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. Furthermore, the parties hereby agree that it is not the Grantor's intention to subject the Grantee to penalties, tines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on the Subscribers within the Service Area., or where strict performance would result in practical difficulties and hardship to the Grantee which outweigh the benefit to be derived by the Grantor and/or Subscribers. SECTION 8. Miscellaneous Provisions 8.1 Actions of Parties. In any action by the Grantor or the Grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 8.2 Entire Attreement. This Franchise constitutes the entire agreement between the Grantee and the Grantor. Amendments to this Franchise shall be mutually agreed to in writing by the parties. 8.3 Notice. Unless expressly otherwise agreed between the parties, every notice or response required by this Franchise to be served upon the Grantor 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, or c) within five (5) business days after having been posted in the regular mail. The notices or responses to the Grantor shall be addressed as follows: City Manager City of Kalispell 31 2 1 st Avenue East Kalispell, MT 59901 The notices or responses to the Grantee shall be addressed as follows: Robert V. Bresnan Senior Vice President and General Counsel Bresnan Communications, LLC One Manhattanville Road Purchase, NY 10577 with a copy to: The Grantor and the Grantee may designate such other address or addresses from time to time by giving notice to the other in the manner provided for in this subsection. 8.4 Descriptive Headin s. The captions to Sections and subsections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein. 8.5 Severabilty. If any Sections 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, terra or provision hereof, all of which will remain in full force and effect for the term of the Franchise. 8.6 Effective Date. The effective date of this Franchise is to the provisions of applicable law. This Franchise may be extended by the mutual agreement of the parties. Considered and approved this day of Accepted this local lair. ,946os5.1 day of CITY OF IALISPELL Signature: Name/Title: 3 subject to applicable federal, state and BRESNAN COMMUNICATIONS, LLC Signature: Name/Title: 13.