Loading...
HomeMy WebLinkAboutCablevision Franchise Hear. ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS NLANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall. 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone~ (631) 765-1800 souihaldtown.nor th fork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING I~2ESOLUTION NO. 631 O1~ 2002 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON SEPTEMBER 24. 2002: RESOLVED that the Town Board of the Town of Southold hereby sets a public hearing on the adoption ora Cable Franchise Agreement with Cablevision~ such public hearing to be held at the Southold Town Hall, 53095 Main Road, Southold, New York, on Tuesday, October 8~ 2002 at 5:05 p.m. Elizabeth A. Neville Southold Town Clerk ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICEE RECORDS MANAGEMENT OFFICER ~FREEDOM OF INFORMATION OFFICEi~f Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (62 J.) 765-L800 southolcI~;owmnor thfork.ne[ OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD October 22, 2002 Joan Boccieri Gilroy Director of Franchise Management Cablevision 1600 Motor Parkway Post Office Box 6006 Hauppauge, New York 11788-9006 Dear Ms. Gilroy: Th~ Southold Town Board at their regular meeting on October 8. 2002 approved the Cable Franch/se Agreement Enclosed please find the items you requested in your letter of October 8, 2002. Should you have any questions, or need further information, please call me ar 631 765- 1800. Very truly yours, Elizabeth A. Neville Southotd Town Clerk Odtober 8, 2'002 HOn. Elizabeth Ann Neville Town Clerk Town of S~outhold 53095Main 'Road S0'u:~Oid NY 11971 Re: Franchise Renewal Agreement between C~blevision and the Town of Southold Dear Ms. Neville: After the public hearing and the vote of approval by the Town Board on the Cablevision french,se renewal, our legal department will file the franchise renewal submission with the New York State Public Service Commission (NYSPSC). There are certain documents that must be included in the submission packet. They are as follows: 1. Original copy of the notice of the public hearing 2. An affidavit of publication of the notice of public hearing 3. Copy of the resolution authorizing the Supervisor to execute the franchise renewal agreement 4. Certification of the resolution by the Town Clerk (signed and sealed) 5. Three original signed cop~es of the franchise renewal document. I will provide you with the three original documents initially by our legal departmerff for signing after the hearing. Upon return receipt of these documents, our legal department will proceed with the submission. You will receive a COpy of the complete NYSPSC submission packet and an originally executed document by both parties for your public files. If you have any questions, please fell free to call me at 631-846-5584. Sincerely, ~ Director ~f Franchise~anagement CABLEVISIO~I 1600 Motor Parkway Post Office Box 60OB Hauppaug~ New York 11788-9006 631 846-5800 SOUTHOLD TOWN BOARD PUBLIC HEARING October 8. 2002 5:05 P.M. A PUBLIC HEARING ON THE ADOPTION OF A CABLE FRANCttISE AGREEMENT WITH CABLEVISION Present: Absent: Supervisor Joshua Y. Horton Councilman William D. Moore Coanc/lman Craig A. Richter Councilman John M. Romanelh Councilman Thomas H. Wickham Town Clerk Elizabeth A. Neville Town Attorney Gregory A. Yakabosld Justice Louisa P. Evans SUPERVISOR HORTON: We are in our pubhc hearing in regard to the Cablevision Franchise conll'acL COUNCILMAN MOORE: NOTICE IS HEREBY GIVEN the Town Board of the Town of Southold will hold a public hearing on the adoption of a Cable Franchise Agreement with Cablevision, at the Southold Town Hall, 53095 Main Road, Southold, New York at 5:05 p.m, Tuesday, October 8, 2002 at which time all interested persons will be given an opportunity to be heard. This is the public oppommity to speak on the proposed franchise agreement with Cablevision. We have proof tha the legal notice was pubhshed in the Suffolk Times the official paper of the Town, for a public hearing ar 5:05 P.M. on Tuesday, October 8 at the Town Hall here in Southold. Proof of this notice was published on the Town Clerks bulletin board. We have the proposed franchise renewal agreement as well as the public education governmental access kit. There is no correspondence. SUPERVISOR HORTON: At this point I will offer the floor to the public in regard to public comment on this particular public hearing. Would anyone care to address the Town Board? COUNCILMAN MOORE: It was a pleasure to work with the folks fi:om Cablevision. I know that it is easy to want to bash....we have a hand up in the back. VAL SHELBY: I don't know too much about the Cablevision but is it going to lower the rates, the cable rates? SUPERVISOR HORTON: At the Town Board level, we don't have the abili .ty to raise or lower the rates, unless we were to charge Cablevision a greater fee, which we are not doing. COUNCILMAN MOORE: There is a provision and you are too young to qualify, VAL SHELBY: Thank-you. COUNCILMAN MOORE: You're welcome. VAL SHELBY: So we are just going to let Cablevision, no other companies come in here? COUNCILMAN MOORE: No, actually this is no[ an exclusive franchise. So ~f there is another cable company chat offers a similar wpe service, they can come negotiate an agreement. This is s~mply the. use Of the Town's right of ways. It is not exclusive. I know that they have competition from Direct TV and' other satellite providers, If in fact, somebody wants to come in a run a cable company they can go through an entire process, like this. So this ~s not exclusive to Cablevision, There are some senior reductions that we negotiated over a lengthy period of time. We had special counsel from Florida g!~e'us a ~level playing field to enable us to protect the communities interests. Wi~in the area that we af~ a/lowed tenegoffato and set rules of operation and pr0ced~re and things like that. This is a tong pro~ess and l'think we are~pretty proud of 5ow the project came ouu VAt, SHELBY: One more technical question. Are they going to bring new w/ting in? Ground wiring or overhead w/ting? SUPERVISOR HORTON: That is not addressed in this contract. Maintenance and upkeep of the system is their bailiwick, so to speak. This is exactly as Councilman Moore referred to, a right of way agreement between the Town and Cablevision. So I don't know what their long-term maintenance is. Are you planning on starting a cable company, Val? While we are in the public comment phase, poor Bill, back ira January when I took office and was making the various appointments to Town Board Standing Committees, I assigned Bill to this. He looked at me with £tre in his eyes and I know that he was saying Darn you, Josh. Because this has been a long-outstanding contract and the time has come to the table in good faith and I feel that we have negotiated through the hard work of Bill and Cabtevisio~, negotiated a very fair contract. So I am pleased with the work that you have done, Councilman Moore. Thank-you. COUNCILMAN MOORE: Thank-you. SUPERVISOR HORTON: With that being said, we will close the public hearing. Southold Town Clerk © ~",,53095 ,Main Road, STATE OF NEW YORK) )SS: ~ OF., SUFF~O~K) ~/~'x,/~/~-~/~"z~ of Mattituck, in said county, being duly sworn, says that he/she is Principal clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of SOuthold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper onc~ each week ~Or ' / week~.succes- sively, commencing on the ..~ ~daY o~t , ~-"~' 20 ~,~' . ~r'mcipal Clerk Sworn to before me this day of LAURA E. BONbARCHUK Notary Public, State of New York No 01B06067958 Qualified in Suffolk County My Commissio~ Expires Dec. 24, LEGAL NOTICE NOTICE OF PUBLIC HEARING 'NOTICE IS ~ltEREBY'GIVEN the Town Board of the Town of Southold will hold a public heating on the adoption of a Cable Franchise Agreement with Cablevision~ at the Southold Tffwn Hall, 53095 Main Road, Southold, New y~ork at 5:05 p.m, Tuesda¥~ October 8~ 2002 a,t which time all interested persons will be given an opportunity to be heard. BY ORDER OF THE SOUTHOLD TOWN BOARD OF THE TOWN OF SOUTHOLD, SEPTEMBER 24, 2002 ELIZABETH A. NEVILLE SOUTHOLD TOWN CLERK PLEASE PUBLISH ON OCTOBER 3, 2002,AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK, TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971. Copies to the following: The Suffolk Times Town Board Members Tb~ ~o~y Town Clerk's Bulletin Board STATE OF NEW YORK) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town Clerk of the Town of Southold, New York being duly sworn, says that on the ~ day of ~.-/~-~r ,2002, she affixed, a notice of which the annexed printed notice is a tree copy, in a proper and substantial manner, m a most public place in the Town of Southold, Suffolk Coumy, New York, ro wit: Town Clerk's Bulletin Board, 53095 Main Road, Southold, New York. Notice of Public Hearing: Cablevision Agreement. al,Elizabeth A. Nevi[e Southold Town Clerk Sworn before me th/~s ~ ~ dayof /~ ,2002. '~ lqot~[~y Public LYNDA M. BOHN NOTARY PUBLIC, State of New York. No. 01 BO6020932 Qualified in Suffolk County~ Term Expires March 8, 20 ~ SAMPLE RESOLUTION fire Town:catered a Ftan~tsse Agreement with CSC AcqmsltiOn - NY, ~(Cab~eVision) wtlich was. sttbsequ~ntly confirmed by New York'State, and. "Whereas",~ Cablevision has constructed, operated and maintained the cable television gystc~m pursuant to the terms of its previous franchise agreement and in accordance with the Rules arid Regulations ot' fire Federal Commtmicafions Commission and the New ~ork S~ate:Publi~ Service Commission. and ~'Wlxereas", said franchise has expired and Cablevision is operating under temporary authority from fire New York State Public Service Coraafission while renewal was being negotiated, and "WhereasY, on October 8, 2002, the Village held a public hearing afforcFmg due process to review the application and the terms of the proposed Franchise Agreement, and "Whereas", the agreement complies with the standards of the Nsw York State Public Service Commission and will be submitted to that agency for formal certification, now, There~b~e, BE IT RESOLVED, That this Board grants a non-exclusive cable television franchise to Cablevision and authorizes the Town Supervisor to execute such agreement with it as approved bythe Town Attorney, and BE IT FURTHER RESOLVED, that the Town Attorney shall coorcFmate with Cablevision to file the franchise certification application with the New York State Public Service Commission for its approval. OCT 1 200~. CAB ON September 30, 2003 Hon. Elizabeth Ann Neville Town Clerk Town Of Southold 53095 Main Road Southold; New York 11971 Re: Transmittal of Final Proposed Franchise Document between Cablevision and the Town of Southold Dear Ms. Neville: I am enclosing a copy of the Final Proposed Franchise Renewal Document between Cablevision and the Town of Southold. In accordance with New York State Public Service Commission regulations and the public notice published by the Town, this document should be made available 'between now and the Public Hearing to be held on Tuesday, October 8, to any Town resident wishing to review the proposed franchise renewal agreement. ~f you have any questions pertaining to this matter, please contact me at 631- 46-5584. Sincerely, Enclosures cc: Hon. Joshua Horton, Town Supervisor Hon. William D. Moore, Town Councilman Greg Yakaboski, Esq., Town Attorney CABLEV]SION 1600 Motor ~arkway Post Office Box 6006 Hauppauge, New York 11788-9005 631 846-5800 $out~okl Towa Cleft © TOWN OF SOUTHOLD FRANCHISE RENEWAL FRANCHISE RENEWAL AGREEMENT between the Town of Southold, Suffolk County, State of New York and CSC Acquisition - NY, Inc. Table of Contents 1.0 DEFINITION OF TERMS .......................................................................... 3 PART I - THE FRANCHISE ........................................................................................................ 8 2.0 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 GRANT OF FRANCHISE .......................................................................... 8 NON-EXCLUSiVE NATURE OF THIS FRANCHISE ........ 2 ................ 9 TERRITORIAL LIMITS ............................................................................ 9 FRANCHISE SUBJECT TO LAW AND REGULATION; ADMINISTRATION .................................................................................. 9 CONDITIONS ON USE OF STREETS AND PUBLIC GROUNDS ...... 10 SALE, ASSIGNMENT OR TRANSFER OF FRANCHISE OR CONTROIL OF FRANCHISE ...................................................................................... 13 DEFAULT, REVOCATION, TERMINATION, ABANDONMENT ...... 14 SEVERABILITY ...................................................................................... 17 EFFECTIVE DATE AND TERM ............................................................ 17 PART 1I - THE SYSTEM ............................................................................................................ 17 11.0 COMPLIANCE WITH FEDERAL AND STATE LAW AND 12.0 13.0 14.0 15.0 16.0 17.0 REGULATION ......................................................................................... 18 SYSTEM SPECIFICATIONS .................................................................. 18 SYSTEM PERFORMANCE STANDARDS ........................................... 19 TECHNOLOGICAL IMPROVEMENTS TO SYSTEM ...................... 19 GENERAL SERVICE OBLIGATION ..................................................... 19 MINIMUM MUNICIPAL AND SCHOOL SERVICES .......................... 20 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS .......... 23 PART 1V - FRANCHISEE'S OBLIGATIONS TO THE TOWN ................................................ 25 18.0 FRANCHISE FEE .................................................................................... 25 19.0 INDEMNITY AND INSURANCE ........................................................... 27 20.0 RATE AND CHARGES ........................................................................... 28 21.0 EMPLOYMENT PRACTICES ................................................................ 28 22.0 TOWN'S RIGHT TO 1NOUIPCE ABOUT AND INSPECT SYSTEM.... 28 23.0 TOWN'S RIGHT TO INSPECT FRANCHISEE'S BOOKS AND 1 SoutholdRenewal ProposallTINALdoc TOWN OF SOUTHOED FRANCHISE RENEWAL 2~0 25.0 26.0 RECORDS ................................................................................................ 30 REPORTS TO BE'FILED BY FRANCHISEE~WITH~THE'TOWN ....... 30 MANDATORY RECORD KEEPING .................................................... 31 TOWN EMERGENCIES ........................................................................ 32 PART V - FRANCHISEE'S OBLIGATIONS TO SUBSCRIBERS AND CUSTOMER SERVICE REQUIREMENTS ....................................................................................................... 32 27.0 CUSTOMER SERVICE OBLIGATIOIqS ................................................. 32 28.0 EMPLOYEE IDENTIFICATION/TRAINING ................................ 39 2~..0 1/I?I~FORMANCE BOND/VIOLATIONS, ............................................ 39 30.0 i~ERIODIC P~ORMANCE EVALUATION SESSIONS/REPORTS. 43 PART VI- GUARANTEE OF FRANCHISEE'S PERFORMANCE .......................................... 44 31.0 EFFECT OF TOWN'S FAILURE TO ENFORCE FRANCHISE PRfOVI$IDNS ........................................................................................... 44 32.0 RENEWAL OF FRANCHISE .................................................................. 44 33.0 NOTICE .................................................................................................... 45 34.0 EOUIffABLE TERMS ............................................................ 45 35.0 AP,.PI~OVAL OF THE NYSPC ................................................................. 47 SoutholdRenewal ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL Fr archi ge"P, fit~val between the Town of Southold, Suffolk County, State of New York and CSC Acquisition - NY, Inc, Wt-rEREAS, the Town of Southold (hereinafter referred to as "Town") has the requisite authority to grant Franchises permitting and regulating the use of its Streets. rights-of-way, and public grounds; and, WHEREAS, CSC Acquisition - NY, Inc. (hereinafter referred to as "Franchisee"), or, if applicable Franch[see's predecessor' in mterest, having previously secured the permission of the Town to use such Streets, rights-of-way, and public grounds under a franchise agreement that has expired, has petitioned the Town for a renewal of such Franchise; and, WHEREAS, the Town has complied with all Federal and State-mandated procedural and substantive requirements pertinent to this Franchise renewal; and to the best of the Town's knowledge, the Franchisee has done the same. WHEREAS, the Town has approved, after consideration ~n a full public proceeding affording due process, the character, ftnancial condition, and technical ability of Franchisee; and, WHEREAS, during said public hearings and proceedings, various proposals of the Franchisee for constructing, maintaining, nmproving, and operating the Cable System described herein were considered and found adequate and feasible; and, WHEREAS, this Franchise renewal, as set out below, ~s non-exclusive and complies with the Franchise standards of the New York State Public Service Commission. THEREFORE The Town and Franchisee agree as follows: 1.0 DEFINITION OF TERMS For the purpose of this Franchise. the following terms, phrases words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future words in the plural number included the singular number, and SoutholdRenewal ProposalFINALdoc TOWN OF~gOUT[arOLD FRANCHISE RENEWAL ~vords in the singular number include the plural number. The words "shall" and '%rill" are ~diit~)~'y; ii~d'"~iy' i~ permissive. Wo~ds',~ot oth¢~?tlefin~d'l'rere~'~hlfll'b~ give~' the meamng set forth in the Communications Act of 1934, as amended, 47 U.S.C § 521 et seq., and as hereinafter amended (collectively the "Communications Act"), and, if not defined therein, their common and ordinary, meaning. 1.1 "Affdiate" means any Person who owns or Controls, is owned or Controlled by, or is trader common ownership or Control with the Franchisee. 1.2 "Area Outage" means a total or partial loss of video, audio, data or other signals carried on the "Cable System" in a location affecting five or more subscribers. 1.3 "Basic Cable Service" or "Basic Service" means any service tier which includes the retransmission of tocal television broadcast signals, or as defined under applicable federal law, as may be amended during the term of the Franchise. 1.4 "Board" means the governing body of the Town of Southold, County of Suffolk, State of New York. 1.5 "Cable Service" means the one-way transmission to subscribers of (i) Video Programming, or (ii) Other Programming Service, and Subscriber interaction, if any, which is required for the selection or use of such Video Programming or Other Programming Service. 1.6 "Cable System," or "System," means the facility which is the subject of this Franchise, 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 wifich is provided to multiple Subscribers within the Town. Such term does not include (i) a facility that serves only to retransmit the television signals of one or more tele¥ision broadcast station stations; (ii) a facility that serves subscribers without using any public rights-of-way; (iii) a facility of a common camer tlmt is subject, in whole or in part, to the provisions of Title 1~ of the Communications Act 1934 47 U.S.C. § 20I et seq., except that such facility will be considered a Cable System to(he extent it is used in the transmission of Video Programming, directly to Subscribers unless the extent of such use is solely to provide interactive on demand service; (iv) and Open Video System that complies with Section 653 of the Telecommunications Act of 1996; and (v) any facilities of any electric utility used solely for operating as an electric utility system. 1.7 "Communications Act or Cable Acf' means the Communications Act of 1934, and amendments thereto including, but not limited to Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., and the Cable Television Consumer Protection and competition Act of 1992, Pub. L. No. 102-385. 106 Stat. [460. and the Telecommunications Act of 1996 as those Acts may 4 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOILD FRANCHISE RENEWAL hereinafter be amended. 1.8 "Control of a the Franchisee or Change of Control" means a change m actual working control, through o~vnership or management, the impact of which will result in the ability to directly affect the policies of the Franchisee or the operation of the Cable System. 1.9 "Educational Access Channel" means a channel or portion thereof on the Cable System designated for noncommercial use, without charge by the Franct/~see, by school districts and not-for-profit educational institution chartered or licenses by the New York Department of Educatio~ or Board of Regents. 1.10 "Fair Market Value" means the price tlmt a willing buyer would pay to a willing seller for the Cable System valued as a going concern but with no value allocated to the Franchise itsel£ 1.11 "FCC" means the Federal Communications Commission. 1.12 "Franchise Agreement" means the rights and obligations set forth in this contract between the Town and the Franchisee that sets forth the terms and conditions under which the Franchise will be exercised, and may be used interchangeably with the term "Agreement" or "Franchise". 1.13 "Franchise Fee" means the fee paid by the Franchisee to the Town in exchange for the rights granted pursuant to the Franchise. 1.14 "Franchisee" means CSC Acquisition - NY, Inc.. and its lawful successors and assignees. 1.15 "Government Access Channel" means a charmel or portion thereof on the Cable System designated for noncormmercial use. withoul charge by the Franchisee, by municipal, county and State governments, or agencies thereof 1.16 "Gross Revenue" unless prohibited by applicable law, means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by the Franchisee. or its Affiliates, from any source whatsoever arising from the operation of the Cable System within the Town to provide Cable Service. Gross Revenues include, but are not limited to, fees charged to subscribers for Basic Service; fees charged to Subscribers for any optional. premium, per- channel, or per-program service; fees charged to Subscribers for any tier of service other than Basic Service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees: late fees and administrative fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the Cable System; convener 5 SoutholdRenewal ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE REN2~WAL rentals or sales; advertising revenues, including a per capita share ef advertising revenues for ~adveft~sin~- ;carriert 'va more 'tha~' one Cable System; re, tenuous :~e~ees -az may now 'ex:is~ or hereafter develop. The mount paid as a Franchise fee shall not be deducted from Gross Revenue. Gross Revenue, however, shall no[ include ar~y bad debt (defined as unPaid subscriber or advertiser accounts); any taxes on services furnished to Franchisee and imposed directly upon any Subscriber or user by the State, Town. or other governmental unit and collected by the Franclfisee on behalf of said governmental unit; any Affil/ate revenue, such as revenue of The Wiz, derived from th~ retail sale of anv cable or communications prodacta where such products ar~ also a~ ;sC!' ~1~ for sale at other ~on-affiliated retail outlets; and, all other revenues of my Affiliate to the. extent that such re~er.u¢ has also be~en ret~orted as.revenue by th~ Cmrapany. The term "Gross ReVenue" S~all also nor mClude revenue received by_the 'Franehise. e for the pre,vision of cable ~m~eO'dem set,ce over the Cab!~e System,. The Franchisee and thc Town agree, however, that should FCC or any other applkrable S~ate or Federal agency w~tli proper jurisdiction render a fmal d~venn~ai~n ~hat cable modem service over a cable system are "cable services" as defined under applicable ~'ederal law, or should a court of competent jurisdiction make a final judicial defermi~atiOn finding the same, after the exhaustion of all appeals related thereto, and upon un~ifica~io~ to the Franchisee, the Town shall be entitled, to includ~recurring subscriber revenue from the provision of~s~ch services as "Gross Revenue" for purposes of calculating the Franchise Fee owed [o the Town. TO the extent allowable under law, the Town may request re~roactive inchision of such revenue dating back one-year prior m the effective date of such decision, and Franchisee agrees re pay such retroactive liablli~ subject to its right under applicable federal law to pass-through such amotmm to subscribers. Shenld Franchisee decide to recoup such Franchise Fee pa .yment from' Subscribers, it shall be permitted to do so over one year rather than. in one lump 1.17 "Leased Access Channel" means a Channel designated in accordance with Section 612 of the Communications Act, 47 U.S.C § 532, for commercial use by Persons unaffiliated with the Franchisee. 1.18 '2qormal Business Hours" shall have the meaning as provided in 47 C.F.R. §76.309(c)(4)(i), as ma.v be amended. 1.19 "Normal Operating Conditions" shall have the meaning as provided in 47 C.F.R. §76.309(c)(4)(ii), as may be amended. 1.20 '"2',!YSPC" means the New York Stare Public Services Commission or any successor State agency with similar responsibilities. 1.21 "Open Video System" A facility consisting of a set of transmission paths and associated sisal generation, reception and control equSpmem that is designed to provide Cable Service which includes Video Programming and which is provided to multiple Subscribers within 6 SoutholdRenewal ProposalFZNALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL a community, provided that the commmsion has certified that such a system complies with ~ap~icab~PCC-mIes~m~n.egu~a~s;~r`-~s.~t~re~ wi~ex~e~ed~mder`app~ra~h~ 1.22 "Other Programming Service" shall have the meaning as set forth in 47 USC 522(14~ of the Cable Act, as maybe amended during the term of this AgreemenT. 1.23 "Person" means any individual, corporation, partnership, association, joint venture, o[ganization or legal entity of any kind, and any lawfid laxtstee, successor; assignee, transferee or personal representative thereof, but shall not mean the Town. 1.24 "Public Access Clmnnel" means a channel on a Cable System desigI~ated for noncommercial use, without charge by the Franchisee, by the public on a first-come, first-served, nondiscriminatory basis. 1.25 "Service Interruption" means the loss of picture or sound on one or more cable Channels. t.26 "State" means the State of New York. 1.27 "Street or Streets" means the surface, the air space above the surface and the area below the surface on any public Street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bride, tunnel, park, waterway, dock. bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utilities easements dedicated for compatible uses. or any other property in which the Town holds any kind of property Interest or over wtfich the Town exercises any type of lawful control. 1.28 "Subscriber" means any individual Person or unit who lawfully receives Cable Services delivered over the Cable System. 1.29 "Subscriber Base" means the total number of residential and commercial Subscribers within the Town. For the purposes of calculating Subscribers served under bulk contracts, the Franchisee shall count each Subscriber served as one Subscriber. 1.30 "Transfer of a Franchise" or "Transfer" means any transaction where ownership or Control of the Franchisee or its Cable System is transferred from one Person or group of Persons to another Person or group of Persons so that Control o£ the Franchise is transferred; or (b) the rights and/or obligations held by Franchisee under the Franchise Agreement are transferred or assigned to another Person or group of Persons. 1.31 "Two-Way Capabilit¢)' means the incorporation into a Cable System of all SoutholdRenewal ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL appropriate design and engineering characteristics and features so that two-way transmission, ....... rind .nd/n, ~ bu~ t:aot,tim/~ ed~o~ ~d-dressabilityFo~rffre~System~:-arvbeSmp leme~d~c~. 1.32 '~Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast channel. PART I - THE FRANCHISE 2.0 GRANT OF FRANCHISE 2.1 Franchisee is hereby granted, subject to the te~ms and conditions of tiffs Agrecmaem, the non-exchisive right, privilege, and authority to construct, operate, and maintain a Cable System for the purpose of providing Cable Service, cable Interuet service, and other forms of broadband communications and telecommunications service within the Streets, alleys, and public ways of the Town. Subject to Subsection 2.3, this Franchise does not prohibit Franchisee from providing telecommunications services, or from constructing, operating or maintaining telecommunications facilities. 2.2 Franchisee may erect, install, extend, reparr, replace, and retain in, on, over, under, or upon, across and along the public Streets, alleys, and ways within the Town, such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and eqmpment as are necessary for the construction, maintenance and operation of the Cable System in conformance with the town's generally applicable laws, ordinances, rules and regulations. 2.3 This Agreement shall not preclude or limit Franchisee, or tts Affiliates from providing any communications service for which no franchise or other approval from the Town is lawfully required. Not~vithstanding the provisions o£ Section 2.1, in the event the Tmvn should hereafter enact any ordinance or regulation applicable to any telecommunications service, such ordinance or regulation shall be consistent with Federal and State law, and shall not apply unless and until such ordinance or regulation, including any compensation requirement, is non- discriminatory and applied equally to all telecommunications providers within the Town including the incumbent local exchange carrier as such term is defined under applicable Federal law. Nothing herein shall be construed as an acknowledgement by Franchisee, of the Town's authority ho enaci any ordinance or otherwise require separate authorization for the provision of any telecommunications service by Franchisee. or its Affiliates. 2.4 Nothing in this Agreement shall be deemed to waive the requirements of the 8 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL -carious generally applicable codes and ordinances of the Town regarding permits, fees to be paid - toerke TxmurforFennlt~ orvonstruct~on;,no~c~r o£ ~onstrrrctto~}. - 3.0 NON-EXCLUSIVE NATURE OF THIS FRANCHISE 3.1 The rights and privileges granted to the Franchisee pursuant to this Agreemem are non-exclusive and, except as provided in Section 34 of this Franchise, nothing in this Agreement shall be eonsmacted asany form of limitation upon the right of the Town to grant to other Persons fights, privileges, or authorities in the same or other Streets, alleys, or other public ways or public ptaces. The Town specifically reserves the right to grant at any time such additional Franchises for any lawful purpose as it deems appropriate, subjem to the terms of Section 34 of this Agreement. 4.0 TERRJTORIAL LIM1T S 4.1 The fights and privileges awarded pursuant to this Agreement shall relate to and cover the entire present territorial limits of the Town, with the exception of Plum Island and Fisher's Island and any other island portions of the Town not connected to the mainland. In the event that any area outside the territorial limits of the Town is annexed during the term of this Agreement, the Franchisee shall be authorized to serve such area and, upon request of the Town, shall be required to extend service therein under the same general terms and conditions that exits in this Agreement, including, but not limited to, any minimum density requirements relating to extension of the Cable System to serve potential subscribers as provided in Section i5 of this Franchise. 5.0 FRANCHISE SUBJECT TO LAW AND REGULATION: ADMINISTRATION 5.1 All terms and conditions of this Agreement are subject to Federal and State law and the roles and regulations of the FCC and the NYSPSC. 5.2 NYSPSC. All terms and conditions of this Agreement are subject to the approval of the 5.3 All rights and privileges granted hereby are subject to the police power of the Town to adopt and enforce laws, rules and regulations necessary for the health, safety and general welfare of the public. Expressly reserved m the Town is the right to adopt, in addition to the provisions of this Agreement and existing laws, roles, and regulations, such additional laws, rules, and regulations as it shall find necessary in the exercise of its police power; provided, however, that such additional laws, rules and regulations are reasonable, properly within the authority of the Town to enact, consistent with all federal and State laws. roles regulations and orders, and, not materially in conflict with the privileges granted in this Franchise. 9 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL ~.-4- ~~y-x60) days of-rece~p~ of~formal~tmcanon oi tlie~own ~p~ov--al~f this Franchise, Franchisee shall file a request for certification of this Franchise with the NYSPSC and shall provide the Town with evidence of such filing. 5.5 The Town Supervisor, or other Person as expressly designated by the Town Board, shall have responsibility, for the continuing administration of the rights and interest of the town under this Franch/se. Notwithstanding the foregoing, however, .any award or denial of a Franch'tse, revocation, ternfination, or assessment of penalties under the terms of the Franchise, shall require a vote by the Town Board. 6.0 CONDITIONS ON USE.OF STREETS AND PUBMC GROUNDS 6.1 Any pavements, sidewalks, curbing or other paved area taken np or any excavations made by.a Franchisee shall be done under the reasonable direction of the Town under permits issued for work by the proper official of the Town or where necessary the County, and shall be done in such manner as to not unreasonably inconvenience the inhabitants of the Town. The Franchisee shall make proper inquiry to ONE CALL for the requisite approval prior to any excavations ~n the Town. A Franchisee shall, at its own cost and expense, and in a manner approved by the Town, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done, and shall also make and keep full and complete plats, maps and records showing the exact location of its facilities located within the public Streets, ways, and easements of the Town. 6.2 Except to the extent required by apphcable law, the Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate, or remove, any of its property when required by the Town by reason of traffic conditions, public safety, Street construction, Street resurfacing or widening, change of Street grade, installation or sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of municipal or public utility improvements; provided, however, that the Franchisee shall, in all such cases, have the privilege of abandoning any property in place, 6.3 The Franchisee shall, on the request of any Person holding a building or moving permit issued by the Town. temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the Person requesting same, and the Franchisee shall have the authority to require such payment in advance, except in the case where the requesting Person is the Town, in which no such payment shall be required. The Franchisee shall be given not less than ten (10) working days advance notice to arrange for such temporary wire changes. 6.4 The Franchisee shall have the authori .ty to trim the trees or other natural growth upon and overhanging the Streets so as to prevent the branches of such trees from coming in 10 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTItOLD PTRANCHISE RENEWAL contact with the wires, cables and other equipment of the Franchisee. Such trimming shall be ---~rformert~oTe ss~onal, m ~To' '' · e c~s s aryTo*pr~ctwvtth-- the facilities of Franchisee. Notwithstanding this authority, except in the case of an emergency, Franchisee shall not remove any tree, nor engage in any widespread pruning without first providing written notice to the Town at least ten (t0) days prior to taking such action. For purposes~of this Section "widespread pruning" shall mean any planned priming by the Franchisee covering three O) or more Streets with the Town. 6.5 The Franchisee shall use, with the owner's permS~ssion, existing underground conduits or overhead utility facilities whenever reasonably feasible and commercially practical. 6.6 All wires, cable lines, and other transmission lines, equipment and structures shall be installed and located to cause minimum interference with the rights and reasonable convenience of property owners. The Town may issue such rules and reguLations of general applicabihty concerning the installation and maimenance of a Cable System installed in, on, or over the Streets, subject to the terms of this Agreement. 6.7 All safety practices requ'tred by law shall be used during construction, maintenance and repair of the Cable System. A Franchisee shall not place facilities, equipmem or fixtures where they will interfere with any gas, electric, telephone, water, sewer or other utility facilities, or obstruct or hinder in any manner the various utilities serving the resident of the Town of their use of any Street or any other public rights-or-way. 6.8 The Franchisee shall, at ali times: (a) Install and mimtain its wires, cables, fixtures and other equipment m accordance with the requirements of the County and Town Building Electrical Codes and any other applicable Buil(Fmg or Electrical Safety Code, and in such manner that they will not interfere with any installation of the Town. (b) Keep and maintain in a safe, suitable, substantial condition, and in good order and repair, all structures, lines, equipment, and connections in, over. under, and upon the Streets, sidewalks, alleys, and public ways or places of the Town, wherever situated or located. 6.9 On Streets where all electrical and telephone utility wiring is located underground, either at the time of initial construction of a Cable System or m any time thereafter, the Franchisee's cable shall also be located underground at the Franchisee's expense. Between a Street and a Subscriber's residence, the Franchisee's cable must be located underground if both electrical and telephone utility winng are located underground. If either electric or telephone 11 SoutholdRenewal ProposalFINALdoc TOWN OF $OUTHOLD FR.dNCHISE RENEWAL utility wiring is aerial, a Franchisee may install aerial cable except where a property owner or -~residenz-~requcsts~undcrgrouud.,hm~on m~d .agrees~o bear-th~ ad 'drtiorml ~o~t installation over and above the cost of aerial installatiom 6,10 In the event the use of any part of a Cable System is discontinued for any reason so as to result in Franchisee's f~fflure to provide Cable Service to any portion of its Franchise area for a continuous period of twelve (12) months, or in the event such system or property has been installed in any Street Without complying with the requirements of any Town applicable law or this Franchise Agreement, or the Franchise has been terminated, canceled or expired, the Fraanhisea, within thirty (30) days or such longer time period as may bg determined by the Town in its sole discretion after written notice by the Town, shall commence removal from the Street of all such property as the Town may require. 6.11 The Town may extend the time for the removal of Franchisee's equipment and facilities for a per/od not to exceed one hundred eighty (180) days, and thereafter such equipment and facilities may be deemed abandoned. 6.12 In the event of such removal or abandonment, the Franchisee at its own expense shall restere the area to as good a condition as prior to such removal or abandonment. 6.13 In exercising rights pursuant hereto, Franchisee shall not endanger or interfere with the lives of Persons, nor interfere with any installations of the Town or any other Person permitted to use the Streets and public grounds, nor unnecessarily hinder or obstruct the free use of the Streets and public grounds. The grant of this Franchise does not establish priority for use over other present or future permit or Agreement holders or the Town's own use of the Streets and public grounds. The Town shall at all times control the distribution of space m, over, under, or across all Streets and public ground~ that are occupied by the System. All rights granted for the construction and preparation of the System shall be subject to the continuing right of the Town to require such reconstruction, relocation, or change of the facilities and equipment used by Franchisee in the Streets, alleys, avenues, and highways of the Town, as shall be reasonable under the circumstances and necessary in the public interest. 6.14 Nothing in this Agreement shall hinder the right of the Town or any governmental authority to perform or carry nn. directly or indirectly, any public works or public improvements of any description. Should tlie System in any way interfere with the construction, maintenance, or repair of such public works or public improvemems, Franchisee shall, at its own cost and expense, protecl or relocate its System, or part thereof, as directed by the Town. If necessary the Town shall perform such work and the Franchisee shall reimburse the Town for all the Town's costs and expenses related thereto. 7.0 SALE, ASSIGNMENT OR TRANSFER OF FRANCHISE OR CONTROL OF SoutholdRenewal ProposalFlNALdoc 12 FRANCHISEE TOI~V OF $OUTHOLD FRANCHISE RENEWAL 7. I No Transfer of Control of the Franchisee, or this Franchise shall occur without the prior written consent of the Town. 7.2 At least one-hundred twenty (120) days before a proposed Transfer is scheduled to become effective, Franchisee shall file an application in writing requesting the Town's written consent to sUCh proposal. Said applicaficm shah include at min'unum that information required by FCC Form 394, or such other form as the FCC may, in the future, provide for such purpose. Applications made by Frat~chisee pursuant hereto shall be administered in accordance with 47 C.F.R. §76.502, No application shall be deemed to have been filed unless and until the Town has received complete and accurate responses to ali sections of the application. 7.3 Provided the Town continues not to receive a Franchise Fee as spec'~ed in Section 18.1 of this Franchise. Franchisee shall re'~mburse the Town for its reasonable out of pocket expenses associated with the filing and processing of an application for Transfer o£Cuntrol of the Franchise. Reasonable expenses shall include, but not be 1/mited to costs of the Town such as publishing notice of hearings dates related to such request for Transfer and administrative fees associated with processing an apphcation or conducting a public hearing. Such costs shall not include reimbursement for professional consultants such as attorneys, accountants or engineers, and shah not exceed tliree thousand dollars ($3000.00) per Transfer request. 7.4 The Town may consider the following in determining the ability of the proposed assignee or transferee to meet the obligations of the Franchise hereunder and in deciding whether to grant the Application: (a) the experience of proposed assignee or transferee; the managetial and technical qualifications of proposed assignee or transferee; (d) the financial ability and stability of the proposed assignee or transferee; (e) the plans of the proposed assignee or transferee as to operation and maintenance of the System; (f) transferee's agreement to accept all obligations and liabilities of the transferor; (g) the likely effects of the Transfer or assignment on the health, safety and welfare of the citizenry of the community relative to the operation of the 13 SoutholdRenewaI ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL System; (h) other fi:anchises held by the transferee or assignee, and the Town may make reasonable requests for copies of agreement with other local franchising aUthorities. T5 The Town may take action to grant or deny the application. Any official Town action shall be made ~ resoluti0n. I4owever a transferee must submit to the Town an executed written ~tice_Ptance of~s Agreement as a cond/tiOn precedent to the TOwn!s adoption o~ the l~esoluti0n granting the Transfer of the Franctdse: 7;6 No consent from the Town shall be required for a transfer ia trust, mortgage, or other insk~ment of hypothecation, in whole or in part, to secure an indebtedness, or for a Transfer to a corporation, partnership or other entity controlling, controlled by, or under common control with the Franchisee, including a change of ownership or Control of Franchisee or of this Franchise to Cablevision Systems Corporation or to another owned and Controlled Affiliate or subsidiary of Cablevision Systems Corporation; provided, (i) the assignee assumes all of the obligations and liabilities of the Franchisee and rema'ms otherwise bound by the terms of the Agreement,: and provides written acknowledgment and accept~ce of same, and (ii) the assignee possess the necessary legal~ fechnical, and financial qualifications to operaie the Cable System within the Town, and (iii)there exist no violations of the existing Franchise of which Franchisee is on notice of prior to the proposed Transfer. 8.0 DEFAULT, REVOCATION. TERM~,~ATION, ABANDONMENT 8.1 The Franchise may be revoked by the Town for a material violation or material breach of this Franchise Agreement. To invoke the provisio~ns of this subsection, the Town shall give the Franchisee written notice, by certified mall at the last known address, that Franchisee is in material violation or breach of the Franchise Agreement and describe the nature of the alleged violation or breach. If withha thirty (30) calendar days following receipt of such written notice from the Town to the Franchisee, the Franchisee has not cured such a violation or breach, or has not commenced corrective action and such corrective action is not being actively and expeditiot/sly pursued, the Town may give written notice to the Franchisee of its intent to revoke the Franchise, stating its reasons. 8.2 Prior to revoking the Fr~anchise under subsection 8.1 hereof, the Town Board shall hold a public hearing, upon thirty (30) calendar day notice, at which time the Franchisee and the public shall be given an opportunity to be heard. Following the public hearing the Town Board may determine whether to revoke the Franchise based on the evidence presented at the hearing, 14 SoutholdRenewal ProposalFINALdoc TOWN 0~' SOUTHOLD FRANCHISE RENEWAL and other evidence o£record. If the Town Board determines re revoke the Franchise, it shall issue a-wn~J;.. ~.-'~ i r~ masons fei 4t~dec'~5on. A cop!j Ul' ~uClq~d~lSllJlt ~llall o~ transmitted to the Franchisee. 8.3 Nora ithstanding subsections 8.1 and 8.2 hereof, the Franchise may, at the option of the Town following a pubhc hearing before the Town Board, be revoked one hundred twenty (120) calendar days after any assignment for the benefit of creditors or the appointment of a receiver or trustee m take over the business of the Franchisee, whether in receivership, reorganizations, banlcmptcy assignment for the beneftt of creditors, or other action or proceeding, unless Within that one hundred twenty (120) day period: (a) such assignment, receivership or trusteeship has been vacated; or such assignee, receiver or trustee has fully complied With the terms and condition of this Franchise Agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing m be bound by the terms and conditions of this Ordinance and the Franchise Agreement. 8.4 In the event of foreclosure or other judicial sale of any of the facilities, equipment or properly of the Franchisee, the Town may revoke the Franchise, following a public hearing before the Town Board, by serving notice upon the Franchisee and the successful bidder at the sale, in which event the Franchise and all rights and privileges of the Franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: ¢) the Town has approved the Transfer of the Franchise to the successful bidder; and (b) the successful bidder has covenanted and agreed with the Town to assume and be bound by the terms and conditions of the Franchise Agreement. 8.5 If the Town revokes a Franchise, or if for any other reason the Franchisee abandons the Cable System, term/nates or fails to operate or maintain service to its Subscribers, the following procedures and rights are effective: (a) the Town may require the fenner Franchisee to remove its facilities and equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a reasonable period of time, the Town may have the removal done at the former Franchisee's and/or surety's expense. (b) the Town, by resolution of the Town Board, if it acquires ownership of the 15 S0utholdRenewal ProposalFINALdoc TOWN OF $OUTf-fOLD FRANCf-llSE RENEWAl Cable system or effects a Transfer of the ownerskip of the Cable System to Value. (c) if the Cable System is abandoned by the Franchisee and if the Town acquires ownership, the Town may sell, assign or transfer all or part of the assets of the System. 8.6 No adverse action agamst the Franchisee may be taken by the Town pursuant to this section except ager a noticed public hearing at which the Franchisee is gtven an opportunity to participate. 8;7 It is the right of the Town for all Subscribers to receive cable television services from the Franchisee in accordance with the terms of this Agreement, as long as their financial and other obligations to the Franchisee are satisfied. In the event of a term/nation or Transfer of the Franchise for whatever reason, the Franchisee shall ensure to the Town that all Subscribers receive COntinuous uninterrupted service regardless of the circumstances. The Franchisee shall cooperate with the Town to continue to operate the System for a temporary period not to exceed one year following term/nation or Transfer as necessary to maintain continuity of service to all Subscribers. Duhng such period the Cable System shall be operated under such terms and conditions as the Town and the Franchisee may agree, or such other terms and conditions that will confinuei to the extent possible, the same level of serv/ce to Subscribers and:the same level of compensation to the cable operator. 8.8 In the event the Franchisee fails to operate the System for seven (7) consecutive days ~thout prior approval of the Town or without just cause (including any force majuere as defined in section 8.11 below), the Town may, at its option, operate the System or designate an operator until such time as the Franchisee restores service under conditions acceptable to the Town or until a permanent operator is selected. If the Town is required to fulfill this obligation for the Franchisee, the Franchisee shall reimburse the Town for all costs or damages resulting from the Franchisee's failure to perform that are in excess of the revenues bom the System received by the Town. 8;9 Upon expiration, termination or revocation of this Franchise, Franchisee, at its sole cost and expense and upon direction of the Town, shall remove the cables and appurtenant devices constructed or maintained in connection with the services authorized herein, unless Franchisee, its Affiliated entities or assignees receive approval to maintain such facilities for stated purposes pursuant to terms a~d conditions established by the Town, or receive any federal, State, or applicable local certification to provide telecommunications services or to operate an Open Video Service. SoutholdRenewal ProposalF1NALdo¢ 16 TOWN OF SOUTHOLD FRANCHISE RENEWAL 8.10 Notwithstanding anything to the contrary, in the event that Franchisee, its parent, A_ffilSatexr~subsfdiar,5~elects-to offer-t~ubsen'be;s ~5~:r~xvgtmmrmlg~r~cesqkxonglxmny means or method not included within the defmifion of a Cable System, inoluding but not limited to an "Open Video System", the Franchisee shall a) remain subject to all terms and conditions of the Cable Television Franchise granted pursuant to this Agreement and b) obtain from the Town all applicable authorizations. 8.11 In no event, and notwithstanc~mg any contrary provision in this section or elsewhere in this Agreement, shall this Agreement be subject to default, revocation or termination, or Franchisee. be liable for non-compliance with or delay in the performance of any obligation hereunder, where its failure to cm:e or to take reasonable steps to cure is directly attffbntable to formal U.S. declaration of war~ government ban on the affected obligation, U.S. government spon, sored or supported embargo, mviI commotioI1, strikei or work stoppages (except those against Franchisee and its affiliates), fires, any acts of God or of nature, or otl~er events beyond the immediate control Of Franchisee. 9.0 SEVERABILITY 9.1 Should any other provision of this Agreement be held invalid by a court of competent jurisdiction or rendered a nullity by Federal or State legislative or regulatory action, the rema'ming provisions of this Agreement shall remain in full force and effect. 10.0 EFFECTIVE DATE AND TERM 10.1 The effective date of this Agreement shall be the date this Agreement is granted a certificate or confirmation by the NYSPSC. 10.2 The term of this Agreement shall be ten (10) years from the effective date. PART 1I - THE SYSTEM 11.0 COMPLIANCE WITH FEDERAL AND STATE LAW AND REGULATION 11.1 Franchisee shall comply with all applicable federal, State, and local law and regulations pertaining to the authorization, construction, erection, installation, operation, maintenance, and/or repair of the System, including the regulations of the FCC and the NYSPSC, federal and State occupational safety and health regulations, and applicable codes including the National Electric Code, and National Electric Safety Code, all as may now exists or hereinafter amended. In addition, the System shall meet or exceed all applicable technical and performance standards of federal and State law, including those of the FCC and the NYSPSC, as now exist or hereinafter amended. 17 SoutholdRenewal ProposalFINALdoc TOWN OoF SOUTIarOIJD FRANCHISE RENEWAL 12.1 Franchisee's Cable System shall be capable of passing frequencies of 750 MHz, and have a mm/mum channel capacity of seventy-eight (78) analog video channels or the equivalent thereof; and Two-Way Capability; and otherwise have the capacity to satisfy its obligations pursuant to this Agreement and applicable federal, State, and local law. 12,2 Notwithstanding anything to the contrary, throughout the term of the Agreement, Franchisee shall maintain and make regular improvements to its Cable System to ensure that the technical capabilities of such system will not serve as the sole limiting factor on Franchisee's ability ro regularly implement new Cable Services as may be created and developed during the term of this Agreement. Notwithstanding the foregmng, this section shall not establish a requirement for Franchisee to lamach a particular technology during the term of the Agreement nor shall it establish a requkement for the offering of a particular Cable Service when the Franchisee can establish, ~o the satisfaction of the Town Board, that offering such senace would be economically or technically unfeasible. 12.3 All such construction and any subsequent maintenance, repair, or improvement of said system shall use material of good and durable quality and shall be performed in a safe, workmanlike, thorough, and reliable manner. 12.4 The System shall incorporate equipment capable of providing standby powering of the System so as to rnimmize Area Outages caused by interruption of power furnished by the utility company. The standby powering equipment shall provide for automatic cut-m upon failure o£the AC power and automatic reversion to the AC power upon resumption of AC power service. The equipment also shall be so designed as to prevent the standby power source from powering a "dead" utility line. 12.5 The System shall be so designed as to enable Franchisee to provide Cable Service throughout: the territorial limits of the Town. 13.0 SYSTEM PERFORMANCE STANDARDS 13.1 All signals carried bythe System shall be transmitted with a degree of tectmical quality not less than that prescribed by the roles and regulations of the federal and State regulatory agencies having jurisdiction. 13.2 Operation of the System shall be such that no interference will be caused to broadcast and satellite television and radio reception, telephone communication, amateur radio communication, aircraft and emergency communications, or other similar installation or 18 SoutholdReneaval ProposalFINALdoc communication witlfin the Town. TOWN OF SOUTHOLD FRANCHISE RENEWAL 14.0 TECHNOLOGrCA~L IIvlPROVEMENTS TO SYSTEM t4. l Franchisee agrees that the capabilities of the Cable System shall be maintained teclmol6gically current throughout the duration of the Franchise, as compared with other systems operated by the Franchisee of comparable size and to the extent economically reasonable and commercially practicable. Franchisee further agrees that it will exercise reasonable efforts to deploy the same or comparable Cable Services in the Town, that are provid~ed to other similarly situated communities operafed by Franchisee, or ~ar~y Affiliate of Franchisee, in Suffolk Cmmty, on other than a trial or test basis; provirled, however, this obl/gafion shall apply 0nly to compm-isons with other cable systems that ~l~ave the ~ame mchnical capabilit2es ~o offer such Cable Service~ as the Cable System operated by Franchisee in the. Town, ~cludirLg,,but not limited to the C~ble System's bandWidth capacity, physical architect~e, and network ~censtrucfion; and, further pro¥ided that this reqmrement shall be subject to Franchisee's reasonal~le right to consider the commercial practicality' of providing, such Cubic Service in the Town, including/ts ability to obtaiu ~'reasonabte rate of return on.inveStment over the remaining ~ennof the Franchise. 14.2 The Franchisee shall, upon written request, but no more frequently than on an annual basis beghming January I, 2005 and throughout the remaimng term of this Franchise, provide a report to the Town containing sufficient information to make a determination as to whether the Franchisee is in compliance with Section 14.1 herein. 15.0 GENERAL SERVICE OBLIGATION 15.1 Franchisee shall provide cable £elevision service within the Town upon the lawful request of any and all Persons within the Town, subject to'the following: (a) With the exception of customized installations, all residential structures located along public rights-of-way served by aerial plant within the territorial lhnits of the Town and situated within two hundred (200) feet of the trunk or feeder cable shall receive such service at no more than the standard installation charge. Co) Franchisee shall extend the System to service all areas of the Town along public rights-of-way which have a density of fifteen (15) homes per linear mile of cable or greater, or areas with less than fifteen (15) homes per linear rdle of cable where the Person requesting service agrees to a contribution- in-aid-of construction in accordance with the standards provided in Section 595.5 of the roles and regulation of the NYSPSC. SoutholdRenewal ProposalFINALdoc 19 C © TOWN OF 80UTHOLD FRANCHYSE RENEWAL lc) All commercial structures with/n the territorial limits of the Town shallbe ~b!e ~e recek~se~emerpre'eide44he ,~v,~r~-or-tenants .of ~ch-s~acrar~, and such structures themselves, meel the reasonable requirements and conditions of Franchisee, including any line extension charge for the provision of said service. 15.2 Franchisee shall not unlawfully discriminate against any Person as m the availability, maintenance, and pricing of cable television service. Noth/ng herein shall be consumed to limit the F~anchisee's ability to offer or pro,de bulk rate discounts. ~vhere apphcable, to the extent permitted under federal and State law or to provkte discounts to senior citizens consisfent with Section 20.3 herein. t6.0 M1NIMIJM MUNICIPAL AND SCHOOL SERVICES 16.1 Francifisee shall at minimum provide and install one (1) cable outlet at no charge and provide Basic cable television service without monthly service charge to at mm/mum, each and every Town or murficipal facility used for governmental purposes by the Town and every primary and secondary, school and municipal public library located within the Town subject to the apphcablerules and regulations of the FCC and the NYSPSC, as set forth below: Franchisee shall, without charge, make the necessary connection for Basic Service, as provided below, into the internal R.F. distribution system of each Town or municipal facility used for governmental purposes, each municipal public library, and each primary and secondary school within the Town (hereinafter singly or collectively referred to as the "premises"). FranchiSee shall make a connection at, one outlet in where such premise for the pUrPose of enabling the said premises to distribute the cable television service. Where such premises consist of more than one building, each structure shall be connected. (b) 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 is completed, and the responsibility for performance of the internal R.F. distribution system, and for distribution of the transmission throughout such system shall be solely that of the premises. Franchisee makes no representation or warranty as to the ability of such internal distribution system to carry the programs transmitted over its Cable System. Upon request, Franchisee shall provide, without charge, reasonable technical consulting services to the premises in order to make the internal system 20 SoutholdRenexval ProposalFINALdoc TOgFN OF SOUTHOLD FRANCHISE RENEWAL work effectively for the purpose intended hereim Any required internal vc~-be~rovMcd b~p~ranc~fiscc arno mom than Yranc,kiscc's actual cost, including materials and labor. (c) The procedure for making such connections skall be as follows: Connections will attempt m be made at the time when Franchisee is scheduled to service the area closest to the premises. At such time, Franchisee shall send written notification to such premises. Thereafter, upon wffitten request from the recipient[ official, F~anchisee will make the above described tie-in and connection to the internal distribution system of such premises. Where Franchisee is sermng the area but the premises to be connected with an aerial installation is located more than 500 'feet from the nearest mink or feeder cable, the cost o£ the aerial cable installation beyond 500 feet will be paid by the recipient at its actual cost. For underground installations, Franchisee shall charge the recipient its actual cost Such costs shall be submitted to sai4 recipient, in wriflug, before installation is begun. (d) As used in this Agreement, the terms: (i) "school" shall mean those educational institutions within the Town chartered by the New York State Board of Regents ptncsuant to the New York Education Law; and (ii) "librarf' shall mean a library established for free public purposes by official action of a town, 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. (iii) "Town or municipal facility" shall mean any premises part or all of which is owned or utilized for government purposes by the Town, controlled by the Town or used for a Town government or education purpose including but not limited to Town Halt, police, fire and ambulance corps building, and such other municipal buildings as designated in Exhibit A herein. 16.3 Franchisee shall also provide free of charge, one (1) high-speed cable modem and monthly Internet access servme, including a standard installation to each State accredited public and private school and municipal public library, m the Town. The cable modem provided by the Franchisee to schools and libraries may be networked to an additional twenty-four (24) computer terminals at such locations; however, the costs, including the cost of the router that would be 21 SoutholdRenewal ProposalFINALdoc TO~N OF $OUTHOLD FR.4NCHISE RENEWAL required to network these additional computers, will be borne by the Town. The romer, ff 16.4 The Franchisee shall provide to the Town, free of charge, one (1) high-speed cable modem and monthly Interact access service, including a standard installation to the Southold Senior Citizen Center locate on Pacific Street, Southold, New York ("the designated building"). The Town shall be permitted, at its own cost, to network up to three (3) additional personal comPuter ter~.~.inals at the designated building (four computors in total) to the cable modem provided by the Franchisee. In addStion, Franchisee shall purchase on behalf of the Town two (2) personal c~mputer terminals ~(ir,,chiding one. printe~)~ the purpose of which shall, be to assist the Town in esmbllsking a computer room within the Senior Citizens' Center to promote computer hlemcy anti ~temet usage among the Town's senior population. 16.5 During the term of the Agreement, if the Town shall desire to contract for high speed cable modem Internet service offered from the Franchisee. Franchisee shall provide such service to the Town at contract terms and conditions no less favorable than the most advantageous rates and conditions offered by the Franchisee to other commercial subscribers located in the Town who purchaSe "similar or identical services" from Franchisee. 16.6 Upon request of the Town Supervisor, Franchisee shall lease broadband capacity to the Town at no more than the lowest commercial rate offered by Franchisee for "similar or identical services" from Franchisee. 16.7 For purposes of Sections 16.4 and 16.5, "similar or identical services shall mean both a similarity in the type of service requested and the volume or quantity of all service provided to such commercial customers with whom such comparison is made. 17.0 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS 17.1 Franchisee shall comply with applicable federal and State law, rules, and regulations pertaining to non-commercial public, educational, and governmental (PEG) access to the System. 17.2 Public Access~ Franchisee shall designate one (I) channel on its Cable System as a Pubhc Access Channel. Franchisee shall provide the Town, and the residents of the Town w/th access to all non-commercial PEG access services provided by Franchisee in compliance with the PEG access policy attached as Exhibit B and incorporated herein, as may be amended by Franchisee, throughout the term of the Agreement. The Franchisee shall provide the Town thkty (30) days advanced written notice prior to implementing any changes in its PEG Access mles and regulations as currently constituted and provided herein as Exhibit B. Should Franchisee's said 22 SoutholdRenewal ProposalFINALdoc TOwN OF SOUTHOLD FRANCHISE RENEWAL be inconsistent with the standards estabhshed in Secfi0n 595.4 of the rules of the g0vem. 17.3 Government/Education Access. 1. Franchisee shall designate to the Town, and the schools, and school districts within the Town, for its' exclusive use at least one (t) full-time activated Government Access Channel/Educational Access Channel. The Town and the schools; and'school districB located withir~ the Town shall have exclusive control over the Government and Educational Access Channel pm~amming, In no event sl~aI1 the Town lose the designation of the initial Government/Educational Access Channel. 2. Whenever the first Government/Educational Channel so designated has been programmed on the average of at least twelve (!2) hours per day during any ninety (90) day period, Franchisee, at the request of the Tow~, shall within ninety (90) daYs designate an additional full-time activated channel for such Government/Educational access use. tn the event that this second channel is required, one channel may be designated the Government Access Channel and the other channel may be designated as the EduCational Access channel; provided, however, either channel may be used for either government or educational purposes if necessary to satisfy the demand for channel time. 3. Notwithstanding anything to the contrary to the PEG access roles provided by Franchisee in Exhibit B, the Town shah be responsible for providing the use and procedures for the Government/Educational Channels to the extent the Town does not use the Franchisee's facilities for production of such programming. 4. Notwithstanding anything contained in the Franchise to the contrary, channels designated pursuant to this Section 17.3 shall be included in the lowest level of service offered by the Franchisee on the Cable System. 5. Franchisee shall make available and maintain all necessary headend and System electric and distribution equipment so that any programming transmitted upstream on the upstream channel froTM the Town Hal/Building to the headend, may then be transmitted downstream to all Subscribers on the Government/Educational Access Channel(s), 6. Franchisee shall maintain a studio facility with sufficient production equipment and adequately trained personnel accessible to residents of the Town 23 SontholdR_enewal ProposalFINALdoc TOItZN OF $OUTHOLD FRANCHISE RENEWAL and within twenty-five (25) miles from the current Town Hall Building, at wtfich ~ To~;.'~ may ha~ acc~o-'s--for- ~ ........ a..--. ......... · government and educational pro~ramming. Franchisee shall not move such facility from [ts existing location as of the Effective Date of this Franchise, unless Franchisee provides reasonable advance written notice to the Town, and such new studio location is reasonably accessible to the Town and its residents and is not further than twenty-five (25) miles from the. current Town Hall Building. The Town acknowledges that the Franchisee's em-rent studio faciI/ty located in t(iverhead, or such other comparable future smdi~ facility of the Franchisee, loc'a~ted in Southold, Southampton or Pdverhead, or one c~f the incorporated villages located therein, shall qualify as "access~le to the restdents of the Town" for purposes of this Secfiom 7. Franchisee will publicize pro~armuing on the access channels as a part of any ordinary primed programming on the access charmels as a part of any ordinary electronic guide listings which Franclfisee prepares for the display of local programming, provided that information concerning access channel programming is provided to or becomes know to Franchisee within the time that other programmers are required to provide such information for inclusion in the electrouic program guide, which shall be no later than two (2) weeks prior to display. 17.4 Franchisee shall, throughout the term of the Franchise, be responsible for taping the Town's regularly scheduled Town Board meetings. The Town shall be responsible for providing sufficient advanced notice m Franchisee, which shall be at least fourteen (14) days prior to the date of any Town Board meeting that it wants Franchisee to cover. Franchisee and the Town both acknowledge that the Town Board regularly meets two thnes per month and therefore Franchisee's responsibility equals no more than twenty-four (24) productions on an annual basis. 17.5 Franchisee may provide these services through its own local programmmg department's staff and equipment or utihze the services of a third party agem, provided such agent has sufficient capabihties and resources to reasonably meet the Town's production and programming needs. 17.6 Notwithstanding anything to the contrary~ Franchisee hereby agrees that any equipment, facilities, or other support provided pursuant to Agreement shall not be deemed a fee or a tax or a credit against any fee or tax collected by any government entity. 17.7 When not in use, the Franchisee may use any access channel provided for herein, consistent with NYSPSC Rules and Regulations §595,4(c)(12), as may be amended. 24 SoutholdRenewal ProposalFINALdoc TOWN O.E SOUTHOLD FRANCHISE RENEWAL 17.~fi~u ~tall an~rrpstte~,, trar~raiSgiordkte at Town~lall, located aC 53095~- Main Road, Southold, New York, and maintain adequate capacity on the Cable System for the purpose Of ~e of non-commercial programming to Franchisee's subscribers in the Town on the Government Access Charmel(s). 17.9 In consideration for the rights granted in this Franchise, Franchisee shall provide, within ~inety (90). daY~ following the effective date of this Agreement, a or~e-fime capital grant to the Towa in the amoum of twelve thousand dollars ($12,000.00). The Town shall use. such grant for the pm'chase of PEG access related production eqmpment, or for such ether cable related purpose as the Town, in its discretion, may deem appropriate. PART IV - FRANCHISEE'S OBLIGATIONS TO THE TOWN 18.0 FRANCHISE FEE 18.1 Franchisee shall, beglrming 60 days alter the effective date of the Franchise, pay to the Town a Franchise Fee in the mount of three percent (3%) of the Franckisee's Gross Revenues. At any time during the term of this Agreement, upon notice to the Franchisee, the Town may choose to increase the Franchise Fee, up to a maximum of 5% of Franchisee's Gross Revenues. The Town shall not change the Franchise Fee more than once annually. In the event the Town elects to increase the Franchise Fee, it shall provide the Franchisee written notification ninety (90) days prior to the date the Town determines to implement the change. 18.2 In the evem that applicable law hereinafter changes to permit a higher percemage franchise fee to be collected, but does not prescribe a mandated amount by law, the Town and Franchisee agree to negotiate, [n good faith with respect to an appropriate change, if any, in the applicable percentage of the Franchise Fee. 18.3 Franchisee shal! pay the Franchise Fee due to the Town on a quarterly basis. Payment for each quarter shall be made to the Town no later than forty-five (45) calendar days after the end of each calendar quarter. 18~4 Franchisee shall ftle with the Town, within sixty (60) days after the expiration of each calendar year or portioa thereof during which this Franchise is in force, a ftnancial statement setting forth the computation of Gross Revenues used to calculate the Franchise fee for the preceding year or portion thereof and a detailed explanation of the method of computation. A duly authorized representative of the Franchisee who is qualified to provide such information shall certify the statement. The Franchisee will bear the cost of the preparation of such financial 25 SoutholdRenewat ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL st~emems. 18.5 Any acceptance by the Town of any Franchise fee paymants shall not be construed as an accord that the mount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the Town may have for additional sums payable. 18.6 The Franchise fee payment is not a payment in lieu of any other tax, fee or assessment; provided, however, nothing herein shall be construed as a waiver of Franchisee's rights under Section 626 0fthe New'York State Real Property Tax Law 18.7 The Town, or its representative, may from time to time but not more than once in any twelve (12) month period, and upon reasonable notice, inspect, copy (unless proprietary or confidential information), and audit any and all books and records of the Franchisee relevant to the determinatinn of Gross Revenues and the computation of Franchise fees due, and may re- compute any amounts determthed to be payable under the Franchise. The cost of the audit will be borne by the Franchisee if, as a result of the audit, the Town determines that the Franchisee has underpaid the Franchise Fees owed in an amount equal to or exceeding five percent (5%) of the Franchise fees actually paid, The Franch'rsee shall make all books and records necessary to satisfactorily perform the audit readily available to the auditors in Nassau or Suffolk County for inspection. 18.8 In the event that a Franchise Fee paymem is not received by the Town on or before the due date set forth in subsections 18.2 above, or underpaid, the Franchisee will be charged interest from the due date at an interest rate equal to me (9) percent per annum calculated from the date each portion of the payment was originally due until the date Franchisee remits the underpayment to the Towm Any interest paid by Franchisee is intended to be a charge incidental to the enforcing of a Franchise within the meardng of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the Franchise Fee imposed by this Franchise Agreement or any payments due to New York State. 18.9 When the Franchise terminates for whatever reason, the Franchisee shall file with the Town within ninety (901 calendar days of the date it ceases operations in the Town, a financial statement, audited by an independent certified public accountant or certified by the Franchisee's chief or other duly authorized financial officer, sho~ving the Gross Revenue received by the Franchisee since the end of the previous fiscal year. Adjustments will be made at that time for Franchise fees due to the date that the Franchisee's operations ceased. 19.0 INDEMNITY AND INSURANCE 19.1 Franchisee shalI purchase and maintain the following levels of general liability insurance during the term of this Agreement that will protect Franchisee and the Town from any 26 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL claims against either or both which may arise directly or indirectly as a result of Franchisee's a) Personal injury or death: $500,000 per person $500,000 per occurrence b) Property damage: $500,000 per occurrence c) Excess liability or umbrella coYerage: $1,000,000. 19.2 Franch/see shall indemnify and hold harmless the Town, its officers, employees, and agents from and against all losses and claims, demands, payments, suits, actions, recover/es, and judgments of every nature and description, resulting from bodily injury, property damage or personal injury, brought or recovered, by any act or om~ssinn of Franchisee, its agents, employees. contractors and subcontractors in the construction, operation, maintenance, service or repair of the Cable System or any portion thereof, or of any failure to comply with any law, ordinance, or regulation, or by reason of any suit or claim for royalties, license fees, or infringement ofpatem rights arising from Franchisee's performance under this Agreement. Notwithstanding any provision contained herein, Franchisee shall have no obligation to indemnify, or defend the Town with respect to any programming provided by the Town or from the Town's neghgence. 19.3 Each insurance policy shall bear the name of the Town as an additional insured. 19.4 All of Franchisee's insurance policies and certificates of insurance shall stipulate that the coverage afforded under the policies wilt not be canceled until at least thirty (30) days prior ~vfitten notice has been g/yen to the Town. If any policy is canceled, it shall be replaced forthwith with insurance that meets the requirements of this Agreement so that there is no lapse in coverage. 19.5 No later than thirty (30) days after the effective date of this Agreement, Franchisee shall furnish to the Town certificates of insurance in conformity with the requirements of this Franchise. 19.6 Franchisee shall obtain all insurance required pursuant to this Agreement from companies authorized to do business within the State of New York and approved by the Superintendent of Insurance, ~vhich Franchisee shall maintain a rating of at least Best's A+. The Town may, at any time, after reasonable notice, review Franchisee's compliance with the insurance requirements in this Section 19 of the Franchise. Should the certificates of insurance provided by Franchisee hereunder differ from accepted insurance industry forms, the Town shall 27 SoutholdRenewal ProposalFINALdoc © © TOWN OF SOUTHOLD FRANCHISE RENEWAL have the right to reasonably review and approve such certificates. 20.0 RATE AND CHARGES 20,1 Rates and charges imposed by Franchisee for cable television servace shall be subject to the approval of the Town, the NYSPSC, and the FCC to the extent consistent with applicable federal. State and local law. The Town hereby expressly reta'ms all rights and authority ro regulate rotes for cable television service to the extera permitted by federal and State law, rules and regulations. 20.2 Franchisee shall comply with all notice requirements contained in federal, State and local law, roles, and regulations pertaining to rates and charges for cable television service. 20.3 The Franchisee, in estabhshing its residential rates, sha![ off[er a discount of 15 % for eligible senior citizens that Will be applied to the expanded basic Dr equivalent level of services. Residential households wherethe head of the household is 62 years of age or older and, either: (i) owns property and currently receives real property tax exemptions pursuant to section 467 of the New York State Real Property Tax Law; (ii) receives housing subsides pursuant to Section 8 publicly subsidized housing, or (iii) receives housing subsides pursuant to Section 8,~ are eligible for this senior citizens discount~ Such households must provide the l~ranehisee with proof of eligibility upon request of the Franchisee~ The Franchisee shall aim offer tq el/gible senior citizens a discount of 15 % on a standard new installation and standard re-connection. 21.0 EMPLOYMENT PRACTICES 21.1 Franchisee will not refuse to hire, nor will it bar or discharge from employment, nor discriminate against any Person in compensation or in terms, conditions, or privileges of employment because of age, race, creed, color, national origin, or sex. 22.0 TOWN'S RIGHT TO INQUIRE ABOUT AND INSPECT SYSTEM 22~ 1 The Town, at any time, may make reasonable inquiries related to its regulatory and overseeing responsibilities concerning the operation and maintenance of the Cable System. Franchisee shall resPond to such inquiries in a timely fashion. 22.2 When Subscriber complaints cause the Town to question the reliability or technical quality of the Cable System, the Town shall have the right and authority to test or require Franchisee to test, analyze, and report on the performance of the System. Franchisee shall cooperate fully with the Town in performing such testing. Franchisee shall be solely responsible for all costs associated with such testing. 28 SoutholdRenewal ProposalFINALdoc TOWN OF 80UTHOLD FRANCHISE RENI~tVAL 'In' the event~C~'elreate-d compl'ai:uts about thc uam¢ aup~ut of S3~sreru performance, and testing requested by the Town and conducted by Franchisee fails to identify and correct the cause, the Town may require that such testing be performed or supervised by a Town designee or such other Person who is not an employee or agent of Franchisee. Franchisee shall reimburse the ro~vn for the cost of such designee. b) The Town may~request that the NYSPSC test the System at any time and Franchisee will cooperate fully in the performance of such tests. 22.3 The Town shall have the right to supervise and inspecl all construction work subject to the provistons of this Agreement and to make such tests as it shall fred necessary to ensure compliance with the terms of this Agreement and other pertinent provisions of federal. State, local and applicable codes and laws. 22.4 At all reasonable times and for the purpose of enfomc~nent of this Agreement, Franchisee shall permit examination by any duly authorized representative of the Town, of all System facilities~ together with any appurtenant property of Franchisee situated within the Town and outside.of the Town if such property is utilized in the operation of the System serving the To~vn. 23.0 TOWN'S RIGHT TO INSPECT F1LANCHISEE'S BOOKS AND RECORDS 23.1 The Town reserves the right and Franchisee hereby agrees that the Town may inspect all books, records, maps, plans, financial statements and other like material of the Franchisee in connection with operation of the System in the Town, upon reasonable notice and during Normal Business Hours, subject to the provisions of Section 25~4. 23.2 If any of such information is not kept in the Town, or upon notice Franchisee is unable to provide the records in the Town, and if the Town shall determine that an examination of such maps or records is necessary or appropriate to the performance of the Town's responsibilities under this Agreement, then ali reasonable travel costs and expenses incurred in making such examination shall be paid by the Franchisee. 24.0 REPORTS TO BE FILED BY FRANCHISEE WITH THE TOWN 24.1 Upon request, Franchisee shall make available to the To~vn a copy of any technical, operational, or financial report or any filings, or registrations Franchisee submits to the NYSPSC, the FCC, or other governmental entities that concern Franchisee's operation of the System in the 29 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL Town, subject to the provision of Section 25.4. 24.2 In the event that Franchisee shall demonstrate a repeated or persistent problem m providing prompt and satisfactory responses to Subscriber complaints, Franchisee shall, upon request, provide a sumanary of Subscriber or resident complaints, identifying the number and nature of complaints and their disposition. Where complaints involve recurrent System problems, the nature of each problem and the corrective measures taken shall be identified: Such report shall not i~clude any p.ersona!ly ident~?ab~e subscriber i,~.ormafion an~! shall b~ provided o~nly to the exterrt consistent with the subscriber privacy provisions under federal and State law. Where such request to provide.the report as required under this section is nmde~ Franchisee may:be relieved of the 0bh~gafion/~ the fature, based upon aa affmnafive showing that it is once again in compliance with the requirements under federal and State law and fibs Franchise. Upon request, the Franchise shall also provide the Town a copy of any and ail i!lfomiaiion required for submission by Section 590:64 and Section 590.70 of the New York Pnblic Service, Law. 24.3 Franchisee shall, upon request, provide any specific pleadings, petitions, applications, repons and publicly filed documents (collectively referred to as "filing,") submitted by or onbehalf of the Franchisee or an Affiliate to the FCC or any county, State or federal agency, court, regulatory agency or Town Bom-d. which filing may directly impac~ the Franchisee's operations with/n the Town or that may directly impact the Town's rights or obhgations under this Franchise Agreement, and any and all responses, if any to the above mentioned filings. 24.4 In the event Franchisee makes a filing seeking bankruptcy protection or a filing has been made to place Franchise in bankruptcy protection, Franchise shall make available such documents related thereto. 24.5 Upon request of the Town, Franchisee shall furnish m the Town such additionai information and records with respect to the operation, transactions or property of the System and the service provided to the I'own under this Agreement, as may be directly related m the performance o£any of the rights, functions, obligations or duties of the Town or the Franchisee in connection with this Agreement. 25.0 MANDATORY RECORD KEEPING 25.1 Franchisee shall comply with all record keeping requirements established by federal. State and local law, roles, and regulation. 25.2 the Franchisee shall maintain, in GIS format, a full and complete set of plans, records, and "as built" maps showing the exact location of all cable installed or in use m the Town. Such maps shall be available for inspection purposes to the Town. SoutholdRenewal ProposalFINALdoc 30 TOWN OFSOUTHOLD FRANCHYSE RENEWAL 25.3 All .records, logs, and maps maintained pursuant to this Agreement shall be made agail~v to ~ Town m its ~l¢~igaoe-dm~g thc Ftattchi~'~ rc~gulat bu~il~s, hour~ upon reasonable request, subje¢t to the provisions of Section 25.4. 25.4 If any of the records described in this Franchise are proprietary in nature and must be kept confidential under federal, State or local taw, upon written request by the Franchisee, such information shall be treated as confidential, to the extent consistent with the applicable law, such records shall be made ava~ble for, inspection proposes only to those Persons within the Town who must have access m such information in order to,perform their duties on behalf of the Town. 26.0 TOWN EMERGENCIES 26.1 Franchisee shall participate, to the extent required by law, role or regulation, m national or regional emergency alert systems. To the extent required by la,v, such facilities shall be made available to the Town on an individual basis or where an emergency effects other communities served on the System on a shared basis with such other communities. PART V - FRANCHISEE'S OBLIGATIONS TO SUBSCRIBERS AND CUSTOMER SERVICE REQUIREMENTS 27.0 CUSTOMER SERVICE OBLIGATIONS 27.1 Franchisee shall comply with all federal, State and local laws and regulations that regulate Franchisee's customer service responsibilities including but not limited to those set forth herein. 27.2 Franchisee shall maintain all parts of its System in good condition and in accordance with standards generally observed by the cable television industry. Sufficient employees shall be retained to provide safe, adequate, and prompt service for all of its customers and facilities. 27.3 Franchisee shall maintain an office and service center which the Subscr/bers may telephone without incurring added message un/ts or toll charges. This business office shall be at minimum open from 8:30 a.m. to 6:00 p.m., Monday through Friday, and 9:00 a.m. to 5:00 p.m. on Saturday and at least one evening per week. Complaints and requests for repairs or adjustments may be received by telephone twenty-four (24) hours per day, seven (7) days per week including holidays. The office shall be adequately equipped and staffed to enable Subscribers to pay bills and to pick up and return all cable television customer premises equipment during office hours. 27.4 Franchisee shall maintain a publicly listed Iocal, toll-free telephone number and 31 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL employ a sufficient number of telephone lines, personnel and answering equipment or service to afl~lu acc~S~ by Sub~u~ib~ axtd mumb~l~ uf41te-pt~bllc tO t~o~act fl~r~hi~eerolra full-time basis, twenty-four (24) hours per day, seven (7) days per week including holidays. Knowledgeable; qualified Franchisee representatives will be available to respond to customer telephone inquiries, Monday through Friday from 8:30 a.m. to 8:00 p.m.; and on Saturday from 8:30 a.m. to 5:00 p.m. With respect to those calls received during the hours which Franc~see ts not required to pr6vide qualified Franchisee representatives under this subsection,, an answering machine or service capal~Ie of ~:eceiving and recording service complakrts shall be employed. F~canehisee sholl comply w/ih ~e~ telephone answer time standards set ~forth in Subsection (d) below. 27.5 Franchisee shall answer all customer service and repair telephone calls made under normal operating conditions within thirty (30) seconds, including wait time and within and additional thirty (30) seconds to transfer call. Customers shall receive a busy ~tgnal less than three (3) percent of the time.. These standards shall be met no less than ffmety (90) percent of the time under Normal Operating Conditions, measured on a quarterly basis m accordance with the standards established by the FCC and NYSPSC, including, but not limited to, 47 C.F.R. §76.309(c)(1)(ii) and (iv), and §590.90 as it may be mended. 27.6 Franchisee shall employ and m,qmta/n sufficient qualified personnel and equipment to be available (i) to accept payments; (ii) to exchange or accept converters or other eqmpment; (iii) to initiate service installations, undertake normal repairs, and initiate action with respect to subscriber service compl,ffmts, on Monday furough Friday, from 8:30 a.m. to 6:00 p.m., and on Saturday from 9:00 a.m. to 5:00 p.m.; and (iv) to enable a service technician to respond to any service call receLved between 9:00 a.m. to 7:00 p.m., Monday through Friday, and 9:00 a.m. to 5:00 p.m. on Saturdays, bythe end of the next day, seven (7) days a week including holidays. 27.7 As provided in 47 C.F.R. §76.309 of the FCC Regulations, and §590.91 of the NYSPSC Rules and Regulations, or as such sections may be amended, Franchisee must meet each of the following standards no less than n'mety-five (95%) percent of the time under Normal Operating Conditions as measured on a quarterly basis: (a) Standard installation work shall be performed within seven (7) business days after an order has been placed except in those instances where a Subscriber specifically requests an installation date beyond the seven (7) business day period. "Standard" installations are up to two hundred (200) feet from the existing distribution system. If scheduled installation ~s neither started nor completed as scheduled, the subscriber will be telephoned by an employee of the Franchisee the same day. Evening personnel shall also attempt to call Subscribers at their home between the hours of 5:30 a.m. and 8:00 p.m. If the call to the Subscriber is not 32 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTHOLD FRANCHISE RENEWAL answered, an employee o£the Franchisee shall telephone the Subscriber the next day; (b) Excluding conditions beyond the control of Franchisee, Franchisee will respond to Service Interruptions promptly and in no event Iater than twenty- four (24) hours after the interruption becomes known. Other service problems will be responded to promptly and in no event later than forty- eight (48) hours after the problem becomes known; (e) The appoinunent window alternatives made available for installations, service calls, and other installation activities will be either a specific time, a four (4) hour time block during Normal Business Hours, or at the election and discretion of the Subzcriber. "all day"; (d) Franchisee may not cancel an appointment with a Subscriber after the close o£busincss on the business day prior to the scheduled appointment; and (e) If at any time an installer or technic/an is running more than thirty (30) minutes late for a scheduled appointment, an attempt to contact the customer will be made and the appointment rescheduled as necessary at a time which is convenient for the customer. 27.8 In accordance with §590.91, as ii may be amended, Subscribers who have experienced a missed installation or service appointment due to the fault of Franchisee shall receive installation free of charge. 27.9 Disconnection. (a) Voluntary Disconnection. A Subscriber may terminate service at any time. A Franchisee shall promptly disconnect any Subscriber who so requests from the Franchisee's Cable System. No period of notice prior te voluntary termination of service may be required of Subscribers by Franchisee. Franchisee shall comply with any federal or State law with respect to fees charged for voluntary disconnection of service, and shall not charge Subscribers for any cable television services delivered after disconnection. 3. A Subscriber may be asked, but not required, to disconnect the 33 SoutholdRenewal ProposalFINALdoc © © TOWN OF $OUTHOLD FRANCHISE RENEWAL Franchisee's equipment and return it m the business office. Any security deposit and/or other funds due the Subscribers shall be refunded on disconnected accounts after the conver~er has been recovered by the Franchisee. Refund checks shall be issued in accordance with 590.64(g) of the NYSPSC Rules and Regulations, as it may be amended (b) Involuntary Disconnection. If a Subscriber fails to pay a monthly subscriber or other fee or charge, the Franchisee may disconnect the Subscriber's service outlet; however, such disconnection slxall not be effected until forty- five (45) days after the due date of the monthly Subscriber fee or other charge, and eight (8) days advance written notice of intent to disconnect to the subscriber in question, If the Subscriber pays within forty-five (45) days of the due date and after notice of disconnection has been given, the Franchisee shall not disconnect. After disconnection, upon payment by the Subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franch/see shall promptly reinstate service. (c) Nothing herein shall be construed to prevent the Franchisee from removing /ts property from a Subscriber's premises upon the termination of service consistent with applicable law. At the Subscriber's request, Franchisee shall remove all of its facilities and eqmpment fi:om the Subscriber's premises wifdin seven (7) calendar days of the Subscriber's request. Where removal ts impractical, such as with buried cable or internal wiring, facilities and equipment may be disconnected and abandoned rather than removed, unless there ts a written agreement stating otherwise, provided, however, that such agreement must be consistent with applicable law and FCC roles 27.10 Franchisee shall intentionally interrupt ser~ce only for good cause and for the shortest time possible. Franchisee shall use its reasonable efforts to insure that such interruptions shall occur only during periods of mihimal use of the System, preferably between the hours of 12:00 a.m. to 6:00 a.m. Franchisee shall rna'retain a written log for all intentional Service Interruptions. 27.11 FranchiSee shall notify the Town Supervisor or such other Person as designated by the Town Supervisor, during normal business hours (Monday through Friday, 8:00 AM to 4:00 34 SoutholdRenewal ProposalFINALdoc © © TOWN OF SOUTHOLD FRANCHISE RENEWAL PM) of any Area Outage that lasts for a time period greater than four (4) hours, 27.12 Franchisee shall develop written procedures for the investigation and resolution of all Subscribers or Town resident complaints, including, but not limited to, those regarding the quality of service and equipment malfunction, which procedures, upon request, shall be provided to the Town Supervisor. A Subscriber or Town resident who has not been satisfied by following the Franchisee's procedures may file a written complaint with the Town Supervisor, who will investiga~9 the matmr and, i~, consultation with the Franchisee as appropriate, auempt m resolve the mr. A Franahiaee's good faith ~ lack thereof in attempting to resolve Subscriber and resident comp ,l~int in a fair and equitable manner ~lll be considered in connection with the Franchisee's rertewal appl~cat~o,n. Franchisee shall ma'mtain a co, pieCe list of ail complaints not resolved witl~m ~even. (?) days of receipt and the measures taken to resolve.them, Fnmchisee shall also maintain a ~st of all co~plaints received with respect to the Town, wtiieh list will be available to the ~own Sktperv[sor, upon request. 27.13 Franchisee shall permit the Town Supervisor or a designee to inspect and test the System's technical equipmem and facilities upon reasonable notice. Any notice of not less th,an twenty-four (24) hours shall be considered reasonable. 27.I4 (a) Franchisee shall abide by the following requirements governing communication in each of the following areas at the time of installation, at least once annually, and at any future time upon request by the Subscriber: 1. How to use the Cable Service; 2. . Installation and service maintenance policies; 3. The products and services offered; Prices and service options; including the available senior citizen discounts; 5. Channel positions of programming carried on the system; The Franchisee's procedures for the receipt and resolution of customer complaints, the Franchisee's address and telephone number to which complaints may be reported, and the hours of operation; 7. The telephone number and address of the office designated to handle cable television complaints and inquiries in the State; 35 Southold,Renewal ProposalFINALdoc TOWN OF $OUTHOLD F~CHISE RENEWAL (b) The Franchise's information collection and disclosure pohcies for the protection ora Subscriber's privacy. In addition, Franchisee shall provide written notice in its monthly billing or m the official newspaper of the Town (minimttm one-half page advertisemem), or such other notice as approved by the Town Supervisor, at the refiues~ of the Tbwn Supervisor, of may Town meeting regarding request or applications by the Franchisee for renewal~ transfer or substantial modification of this Franchise. Said notices shalI be made at Franchisee's expense and said c~cpense shall not be considered parr of the Frarrehise Fee maposed pursuant to the Agreement and shall not be regarded as a Franchise Fee~ as the term is defined in Section 622 of the Communications Act, 47 U.S.C. Section 542 or as a credit against any fee or tax payable to New York State. (c) Franchisee's bill will be clear, concise and understandable. Refund checks will be issued promptly, but no later than the earlier of thirty (30) days or the customer's next hilling cycle following the resolution of a refund request, or the rettrm of the equipment supplied by the Franchisee if service is terminated, or as otherwise provided for under applicable federal or State law or regulations. (e) Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted, or as otherwise provided for under applicable federal or State law or regulations. Franchisee shall provide Subscribers, and the Town Supervisor with notice of any changes in rates, pro~:amrmng services, or Channel lineup, offered over the Cable System in accordance with 47 C.F.R. §76.309 and NYSPSC Rules and Regulations §590.80. as it maybe amended. 27.15 Credit for service outage shall be provided in accordance with NYSPSC Rules and Regulations §590.65, as it may be amended. 27.16 Billing: (a) Franchisee's first SoutholdRenewal ProposalFINALdoc billing statement after a new installation or service 36 TOWN OF $OUTHOLD FRANCHISE RENEWAL change shall be pro-rated as appropriate and shall reflect any security deposit. Co) In accordance with 47 C.F.R. §76.309(c)(3)(ii)(A), as it may be amended. Franchisee's billing statement 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. (c) Franchisee's billing statement must skow specific payment due date not earlier than fifteen (15) days after the date the statement is mailed. Any balance nol received by the due date may be assessed a late charge consistent with applicable law. The late charge will appear on the following month's billing statement. Subscribers shall not be charged a late fee or otherwise penalized for any failure by the Franchisee, its employees, or contractors, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made. (d) Franchisee must notify the Subscriber that he or she can remit payment in Person at the Franchisee's local area business office or payment center within twenty five (25) miles of Town, and inform the Subscriber of the address of that office. 27.17 Alteration of Service ¢) Franchisee shall comply with Article 11 §224(a) of the New York Public Service Law and applicable federal and State roles and regulations, as may be amended, pertaining to program or network changes and re-tiering of cable television services. Co) Franchisee shall comply with §595.3 of the NYSPSC Rules and Regulations pertairfing to negative option promotional practices. 27.18 Franchisee shall ensure that the Subscriber's premises are restored to their pre- existing condition if damage by Franchisee's employees or agents in any respect in connection ~vith the installation, repair, or discormection of cable service. The Franchisee shall be liable for any breach of provisions of this Agreement by its contractors, subcontractors or agents. 27.19 To the extent cable modem or Intemet access service is considered a Cable 37 SontholdRenewal ProposalFINALdoc C © TOWN OF SOUTHOLD FRANCHISE RENEW/L~ Service, the Town hereby reserves the right to implement and enforce customer service standards this Franchise. 27.20 The Town shall have the right to promulgate new, revised or additional consumer protection standards, and penalties for Franchisee's failure to comply therewith, consistent with applicable federal and State law. 28.0 EMPLOYEE IDENTIFICATION/TRAINING 28.1 Each employee of Franchisee entering upon private property, including employees of contractors and subcontractors employed by Franchisee, shall provide picture identification that clearly identifies the Person as a representative of Franchisee. 28.2 Franchisee shalI provide proper training for employees and shah institme policies and procedures that foster courteous and professional conduct. 29.0 PERFORMANCE BOND/VIOLATIONS 29.1 No later than thirty (30) days after the effective date of this Franchise, the Franchisee shall establish and maintain, at its sole cost and expense, a performance bond in the mount of Fifty Thousand Dollars ($50,000.00) (the "Performance Bond"). Such Perfommnce Bond shall be use to ensure the faithful performance by the Franchisee of the provisions of this Franchise, incind'mg compliance with al! orders, permits and directions of any agency of the Town having jurisdiction over its acts and defaults under this Franchise and the payment by the Franchisee of any claims, liens or taxes due to the Town which arise by reason of the construction, operation, maintenarme or repair of the Cable System. Failure to timely establish the Performance Bond shall constitute a material violation of this Franchise. 29.2 If the Franchisee fails to make timely payment to the Town or its designee of any amount due as a result of this Franchise; or fails to make timely payment to the Town of any penalty due under this Franchise; or fails to repay the Town within ten (10) days of written notification that such repayment is due, any damages, costs or expenses which the Town shall be compelled to pay by reason of any act or default of the Franckdsee in connection with this Franchise; or fa'zls after th'my (30) days notice of such failure fi.om the Town to comply with any provision of this Franchise, the Town, in accordance with the provisions of this Section, may withdraw the amount thereof, with interest and any penalties, from the Performance Bond, and utilize the same for any of the aforesaid purposes, subject to the terms of this Agreement, 29.3 Except as provided elsewhere, the Franchise shah pay the full amount of any penalty to the Town within ten (10) days after the receipt of a notice of the adoption of a 38 SoutholdRenewal ProposalFINALdoc TOWN OF 80UTHO£D FK~CltlSE RENEWAL remlution by~e Town assessing penalties ag~st the Franchise; Upon failure of the Franchise to : mak~ timely payments o£ an assessed penalty th~ Tt, w~ m~ty wilh~aw ttt~ amum~t u£ ~uCh pe~ fi-om the Performance Bond. At [east ten (10)days bef0re the Withdrawal from the Performance Bo~xd, the Town ur its designees shall maiI written notification of the mount, date and purpose of such withdrawal to the Franchisee. 29.4 If at the time of a withdrawal from the Performance Bond by the Town, the mount of the Performance Bond is i~asufficient to provide the tot~ payment toward which the withdrawal is directed, the balance o~ such payment shall continue as an obligation o~the Franchisee to the Town; until paid; Fraz!chise~,hereby agrees te remit such._paymen.ts to the Town within thirty (30) d~ys Of ~e~e~ ~ o~ notiC~ fi:om the Town Provided ~ere is no good faith dispute between the FranchiSee and the T°~vcm Faii~ to do so s~! be a materi_al vi0!afion of this Franchise. 29.5 Within thirty (30) days after receipt of notice from the Town that any mount has been withdrawn from the performance Bond, Franchisee shall p~ace an equivalent amount in a~ escrow accou~ ~ ~e Franchisee's name until: such time as the dispute fs resolved: If it is determ~ed that said wkth&awal bY the Town was w~ted, then Franchisee shall restore the Perforce BOnd to; the, 0ri~al amount from the aforementioned escrow account but keep all interest earned. 29.6 Upon termination of this Franchise under conditions other than those stipulating forfeiture of the Performance Bond, the Franchisee's obligation to maintain said Performance Bond shall cease with/n six (6) months of such termination, provided that there is then no outstanding default on the part of the Franchisee. 29.7 The rights of the Town with respect to any other Section hereof are in addition to all other rights of the Town whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such articles shall effect any other rights the Town may have. 29.8 The Town may, to the extent permitted by~ the law, designate a municipal agency, or agency designated by the Town in conjunction with similar designation from other municipalities, to perform the functions and powers designated in this Franchise belonging to the Town, except that any award or denial of a Franchise, revocation, termination or final notice of default and/or assessment of a penalty shall require vote of the Town Board: 29.9 Notwithstanding anything herein to the contrary, no assessment of penalties under this Section shall be effective unless and until the Town has first provided thirty (30) day written notice to the Franchisee of default, by certified mail, and the Franchisee has an oppommity to cure the alleged violation or, in the event that by nature of the default such default cannot be cured within such thirty (30) day period, the Franchisee takes reasonable steps to cure said default and 39 SoutholdRenewal ProposalFlNALdoc © TOWN OF SOUTHOLD FRANCHISE RENEWAL diligently cont'mues such efforts until said default is cured. If the Franchisee fails to respond to requ'nced thirty (30} day period, the Town shall promptly schedule a pubhc hearing no sooner than fourteen (14) days after the written notice, by certified mail, to the Franchisee. The Franchisee shall be provided reasonable oppommity to offer evidence and be heard at such public hearing. In the event that the Town, after such hearings, determines that the Franchisee is in default, the Town may, after the adoption ora resolution, assess a penalty against the Franchisee. 29.10 In addition to any otb_er remedy available to the Town for the violations enumerated below, the following Yxquidated damages, shall apply and liabihty therefore shall accrue beginning at the end of the thirty (30) chy?ure period.afforded to the Franchisee, end contirme for each day or part thereof such violation confinu~es or at the completion of such additional time as th~. Town may grant to the Franchisee to cure such violation pursuant to the Franch/!see's cure plan. In assessing the mount,oF the penalties against the Franchisee for violation of this Agreement, the Town shall be governed by the schedule set out below: (a) Malerial failure to operate and maintain the system pursuant to Sections 12.0 and 14.0 at $150/day or part thereof until paid. Material failure to provide service pursuant to Sections 15.0 and 16~0 at $150/day or part thereof until paid. (c) Failure to provide access channels, facihties equipment and support pursuant to Section 17.0 at $150/day or part thereof until paid. (d) Failure to maintain insurance pursuant to Section 19.0 at $250/day or part thereof until tiled. (e) Failure to allow the Town to inspect System pursuant to Section 22.0 at $100/day or part thereof until paid. (f) Failure to allow the Town to Lnspect books and records pursuant to Section 23.0 at $100/day or part thereof until paid. (g) Failure to provide customer service pursuant to Section 27.0 at $100/day or part thereof until paid. In instances where customer service standards are measured on a quarterly basis, such measuring periods shall be for the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31, and penalties shall be $2000 per quarter of non-compliance measured as follows: 40 SoutholdRenewal ProposalFINALdoc TOWN OF SOUTFIOLD FRANCHISE RENEWAL initial forty-five (45) days of the quarter, Franchisee shall have the remainder of such quarter ro come into compliance, and penalties, if any, shall accrue begirming ar the end o1' such quarmr ofnon~compliancel or (!i) Where the Town provides notice at any point after the initial forty-five (45) days of the quarter (but before the start of the nex~ querter!y period), Franchisee shall have the remainder of suc~ quarter ang the entire following quarter to come into complianqe, and penalfies~ if any, shall not accrue until th~ end o~the J~rst ~ quarter ot'n°n'compliance. (h) Failure ro establish the Performance Bond with the Town within the specified thirty (30) days pursuant To Section 29.0 at $100/day or part thereof until paid. (i) Failure to restore an amount ~vithdrawn from the Performance Bond within the specified thirty (30) days pursuant to Section 29.0 at $100/day or part thereof until paid. d) Failure, to comply with Periodic Performance Evaluation Session/Reports pursuant to Section 30.0 at $100/day or part thereof until paid. 29.11 Except as provided elsewhere, the Franchisee shall pay the full amount of any penalty to the Town within ten (10) days afier the receipt of a notice of the adoption of a resolution by the Town assessing penalties against the Franchisee. 29.12 Upon failure of the Franchisee to make timely payments of an assessed penalty, the Town may withdraw the amount of such penalty from the Performance Bond. 29.13 In the event that the Town elects to terminate this Franchise for cause as a consequence of any act, or pattern of acts by the Franchise for which withdrawals may be made from the Performance Bond then, as of the date upon which the Town adopts a resolution to terminate this Franchise, the Town may no longer make any sUCh withdrawals as a consequence of said act or pattern of acts. Where that specific act or specific pattern of acts is the subject o£ any legal challenge by the Franchisee,~ whether in an administrative proceeding or a l~wsuit, the Town may not make any further withdrawals based upon said alleged act or pattern of acts until Franchisee shall have an exhausted all available legal or equitable remedies, including all rights to 41 SoutheldRenewal ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL appellate court review of any prior proceedings or u, util Franchisee's time to oppose or appeal any d~cksiun afCec£ing ~th~ all~gatim~s ~hall haw ~xpitcd tf-the-Frnnchi~¢ ~ttc~~ in court the propriety of said recourse and/or termination, then as of the date upon which said recourse and/or termination is declared~ invalid or otherwise vacated, the Town may again commence making withdrawal~ from the Performance Bond as a consequence of the aforementioned act or pattern Of acts, unless it is determined by the court in connection with said clialleng~that the previous withdrawals w~re improper. 29.14 Amounts received by the Town as penalties assessed against the Franchisee, whether direetly paid by the Franchisee to the Town or withdrawn from the Performance Bond by the Town. may (but shall not be required to) following reasonable notice to the Franchisee, 'be used by the Town for any purpose it deems fit. 29.15 In addition to the foregoing liquidated damages, upon the refusal, neglect, or failure of the Franchisee to cause any work or other act required by law or by this Franchise to be properly completed in, on, over or under any Street within any t/me prescribes, the To~vn may (but shall not be required to), cause such work or other act to performed or completed in whole or in part, and upon so doing shall submit to the Franchisee an itemized statements of the costs thereof. The Franclfisee shall, within thirty (30) days after receipt of such statements, pay to the Town the entire amount thereof; prox/~ded such amount is reasonable and constitutes the customary amount for such charge. 30.0 PERIODIC PERFORMANCE EVALUATION SESSIONS/REPORTS 30.1 Upon sLxty (60) day notification by the Town, Franchisee shall be prepared to participate in a meeting or series of meetings evaluating the performance of Franchisee under this Agreement. The timing of such performance evaluation sessions shall be solely in the discretion of the Town; however, each such session shall not be initiated sooner than one year after the close of a previously conducted performance evaluation session. All performance evaluation meetings shall be open to the public. 30.2 Topics which may be discussed at any performance evaluation session may include, but not limited to~ System performance, compliance with this Agreement and applicable law, customer service and complaint response, services provided, rates, fees described in this Agreement, free services, applications of new technologies, services and technologies offered in other communities, compliance with reporfmg requirement herein, public, education and government support, and judicial, federal or State filings related to the operation of the Cable System in the Town. Not less than forty-five (45) days prior to such performance evaluation session, the Town shall furnish to Franchisee a list of the issues that it seeks to consider at such meeting. SoutholdRenewal ProposalFINALdoc 42 TOWN OF SOUTHOLD FRANCHISE RENEWAL 30.3 During review and evaluation, Franchisee shall fully cooperate with the Town and its review. Within s/xty (60) days after a written request for additional information relevant to the performance evaluation session and the operation of the Cable System in the. Town, Franchisee shall provide such information to the Town in order for it to compIete its review. 30.4 Each performance evaluation session shall be c[eemed to have been completed as of the date the Town issues a final report on its findings. Such report shalIbe completed with'm one hundred and twenty (120) days following completion of the heating and: receipt of all information reqttestedpursuant to Section 30.3. PART VI -GUARANTEE OF FRANCHISEE'S PERFORMANCE 31.0 EFFECT OF TOWN'S FAILURE TO ENFORCE FRANCHISE PROVISIONS 31.1 Franchisee shall comply with any and all provisions of this Agreement and applicable local, State and federal law and regulation. Once the breach of a provision or provisions is identified by the Town and Franchisee is £mally adjudged to have breached a provision or provisions as provided in this Agreement, the revocation provisions of this Agreement shall?ertain as applicable. 31.2 Except as otherwise provided in this Franchise, any claims arising out of any actual breach of this Agreement shall be effective from the date such breach is found to have commenced. Franchisee's responsibility to cure any such breach shall not be diminished by the failure of the Town to enforce any provision of this Agreement. 32.0 RENEWAL OF FRANCHISE 32.1 Renewal of the Franchise granted herein shall be conducted in a manner consistent with Section 626 of the Commun/cations Act, 47 U.S.C. 546. 32.2 Upon completion of the review and evaluation process set forth in Section 626(a)(1)&(2) of the Communications Act, 47 U.S.C. 546, should that process be invoked, the Town shall notifY the Franchisee that it may file a renewal application. The notice shall specify the information to be included in the renewal application and the deadline for filing the application, which shall be no earlier than twenty-one (21) calendar days following the date of the notice. 32.3 If renewal of the Franchise is denied and the Town acquires ownership of the 43 SoutholdRenewal ProposalFINALdoc TOWN OF $OUTHOLD FRANCHISE RENEWAL Cable System or effects a Transfer of ownership of the Cable System to another Person, any such valued as a going concern but with no value allocated to the Franchise itself and consistent with Section 627(a) (t) and (2)of the Commumcations Act, 47 U.S.C. 547. 32.4 If renewal of a Franchise is la~vfully denied and the Town does not purchase the Cable System or approve or affect a transfer of the Cable System to another Person, the Town may require be former Franchisee to remove it~ facilities and equipment at the former Fran~ c!4~e~ e~ens~,~ ~,the t~orm.er Fran~see fail to do So wi~ a reasonable period o£ time, the T0~ may have the removal done at the former Franchisee's eXPense or wi~draw all cost from the Performance'Bond. 33.0 NOTICE 33.1 All notices required to be given under tins Francinse shall be in writing and mailed via certified letter, return receipt requested, or hand delivered to the parties as follows (or such future locations as may be designated by either party to receive service): Town of Southold Town Hall 53095 Main Road Southold, Ne~v York CSC Acquisition - NY, INC. 1111 Stewart Avenue Bethpage, NY 11714 with a copy to: Leibowitz and Associates, P.A. SunTrust International Center One Southeast Third Avenue Suite 1450 Miami, Florida 33131-1715 34.0 EQUITABLE TERMS 34.1 In the event that the Town grants one (1) or more cable franchises(s), or similar authorization(s), for the construction, operation and maintenance of any Cable System or communication facility which shall offer Cable Services, it shall not make the grant on materially more favorable or less burdensome terms, and if the Francinse finds that the agreement(s) granting said other franchise(s) contain provisions imposing materially more favorable or lesser obligations on the franchisee(s) thereof than are imposed by the provisions of this Agreement, then the Franchisee may petition To;vn for a modification of this Agreement. The Franchisee shall be SoutholdRenewal ProposalFlNALdoc TOWN OF SOUTHOLD FR/tNCHISE RENEWAL entitled, with respect to such modification(s) of this Agreement as may be determined to be reasonably necessary'to insure fair and equal treatment as it relateSTcrth~ Franchis~ m~d~id-oth~r agreement(s). 34.2 In the event that a non-franchised multi-channel video programmer provides service to residents of the community, and the Franchisee believes that as a result of such service it has suffered severe economic harm from such competition because such multi-channel video progr~mm.er operates on terms that, on balance, are mamrially more advantageous to the competitor than the benefits or burdens imposed by tiffs Franchise, the Franchisee shall have a right, to request Franoh~e amendments that relieve the Franchisee of regulatory, burdens that cream a competit£ve rt.isadvantage to the Franchisee. In requesting amendments, the.Franchisee shall file a petition seekicg to amend the Franchise. Such petition shall: 1.) specify the identity o£ any non- frano~se~ coml~e~ti~orS, 2) precisely idenCfy the manner in Whic~ ~h~ non,franchised competitor is impact~g the F~;anq.bi.'se m as to create severe ecm~omic harm, 3) provide financial data showing that Franchisee has been-placed in severe economic harm, 4) identify the specific provisions of this Agrcemen~t- ~v~mt~ it ~amended, would ehminate the alleged seviere economic harm, and, 5) pr6~de the spe.c'~c m0d[tleafions tc t~he Franchise soughi, It shallbe the obligation of Franchisee to ensure the accuracy c~f~l factual information prohded i¢ such petition. Upon'receipt of a pe~titkm, ~e.To~ shall provide the Fra~¢l~see wi!h, ag~ opl~o~ty, to be hear& Franchisee must pro~e the ctaimS Set forth in the petition by clear and convincing evidence. 34.3 Franchisee represents and acknowledges that as of the effective date of this Franchise, competition within the Town has not y~ risen to the level of creating a significant competitive disadvantage sufficient to enable Franclsisee to seek relief under tiffs Section. 35.0 APPROVAL OF THE NYSPC 35.1 The terms of'this Agreement, and any subsequent amendments hereto, are subject to applicable federal, State and local taw, the Rules and Regulations of the FCC, the NYSPSC, or its successor agency, and any other applicable regulatory body with appropriate jurisdiction. SoutholdRenewal ProposalFINALdoc 45 TOWN OF SOUTHOLD FR/INCHISE RENEW~iL 1N WITNESS WHEREOF, the parties hereto have hereunto executed this Agreement as of the date written below. TOWN OF SOUTHOLD /~ .~J o shua-l:'/o r t o n~ Supervisor CSC ACQUISITION - NY, INC. By: Dodie P. Tschirch, '"x, Vice President, Public Affairs,~ x ~uvmoo~, SoutholdRenewal ProposalFINALdoc 46 Final Revised Renewal Document Town of Southold Appendix A Schools and Libraries: Cutchogue Elementary School West, Depot Lane Cutchogue Elementary School East. Main Road Mattituck Junior/Senior HS, Main Road Oysterpor~ds Ele;mentary School, 23405 Main Road, Orient Our Lady cfi Mercy, Main FLosd, Cutchogue SouthOId Elementary School, Oak, lawn Avenue Seutl'fold Junior/Senior High School, Oaklawn Avenue C,t~tchogue Library, 27550 Main ,Road S~u~ftOid P~blic Library, 53705 Main Road Municipal Facilities: Southold Town Hall, Main Road Southold Town Police, Main Road Southold Town Highway Building, Sixth Street and North Road Rte 48 Peconic Senior Youth Center, Peconic Lane Mattituck/Cutchogue Nutrition Center. 750 Pacific Street Ma~[tituck/Cutchogue Adult Day Care, 740 Pacific Street Mattituck Volunteer Firemans Association, Pike Street Cutchogue Fire District, 260 New Suffolk Road East Marion Fire De, partment, Main Road Orient Fire Department, 3300 Main Road Southold Fire Department, Main Road ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS NLANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall. 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone~ (631) 765-1800 souihaldtown.nor th fork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING I~2ESOLUTION NO. 631 O1~ 2002 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON SEPTEMBER 24. 2002: RESOLVED that the Town Board of the Town of Southold hereby sets a public hearing on the adoption ora Cable Franchise Agreement with Cablevision~ such public hearing to be held at the Southold Town Hall, 53095 Main Road, Southold, New York, on Tuesday, October 8~ 2002 at 5:05 p.m. Elizabeth A. Neville Southold Town Clerk OOUTItOLD ToWN BOARD PUBLIC HEARING October 8, 2002 5:05 P.M. A PUBLIC HEARING ON THE ADOPTION OF A CABLE FRANCHISE AGREEMENT WITH CABLEVISION Present: Absent: Supervisor` Joshua Y. Horton CoUncilman William D. Moore C0fincilman Craig A. Richter Corm tlman John M. Romanelli Councilman Thomas H. Wickham Tow.n, Cle ,re Elizab~thA. T'0wii Attorney Crr;g°w.' A. Yakaboski Justice Louisa Pi Evans SUPERVISOR HORTON: We are in our public hearing m regard to the Cablevision Franchise contract. COUNCILI~LAN MOORE: NOTICE IS HEREBY GIVEN the Town Board of the Town of Southold will hold a public hearing on i~.e adoption of a Cable Franchise Agreement with Cablevision~ at the Sonthold T;wn Hall. 53695 M~n Road, 8outhold, New York at 5:05 p.m., Tuesday, October 8, 2002 at which time all interested persons will be g~ven an opportuniLv to be heard. This is the public opportunity ,to speak on the proposed franchise agreement with Cablevision. We have proof that the legal notic~ !was published in the Suffolk Times the official paper of the Town, for a public heanng at 5:05 P.M. on Tuesday, October 8 at the Town Hall here m Southold. Proof of this notice was published on the Town Clerks brflletin board. We have the proposed franchise renewal agreement as well as the public edttcation governmental access !dr. There is no correspondence. SUPERVISOR HORTON: At this po/hr I will offer the floor to the public in regard to public comment on this particular public hearing. Would anyone care to address the To~vn Board? COUNCILMAN MOORE: It was a pleasure to work with the folks from Cablevision. I know that it is easy to want to bash....we have a hand up in the back. VAL SHELBY: I don't know too much about the Cablevision but is it going to lower the rares, the cable rates? © 2 © SUPERVISOR I-IORTON: A~t the ToWn Board level, we don't have the ability to raise or lower the rates, unless we were to charge Cablevision a greater fee, which we are not doing. COUNCILMAN MOORE. Tkere is a provision and you are too young to qualify. VAL SHELBY: Thank-you. COUNCILMAN MOORE: You're welcome. VAL SHEIvBY: So.we are just going to let Cablevision, no other companies come in here? · COUNCILMAN MOORE: No, actually this is not an exclusive franchise. So if there is another cable company that offers a ~im!lar type service, thgY can come: negotiate aa agreement. Th~ is simply the use of the Town's right of ways It is not exclusive. I know that they have Competition from Direct TV and other satellite providers. If in fact, somebo~dy wants to come in a nm a cable company tlley can go through an enlire process, like this. So this is not exclusive to Cablevision. There are some senior reduelions thru we negotiated over' a bii~th.y period' of ~.{irae. We had special counsel from Florida give as a l~vel phying field to ~?~able Us.to protec~ the c6~a'mfinities interests. Within the area that we ~e allowed to n ,egotiate and set ~.of operation:and.l~rocedur¢ and things like that. This is a long process and I think we are pretly proud 6f h&v thee pr0jbct-came out. VAL SHELBY: One more technical question. Are they going to bring new w~ring in? Ground wiring or overhead wiring? SUPERVISOR HORTON: That is not addressed in this contract. Maintenance and upkeep of the system is their bailiwick, so to speak This is exactly as Councilman Moore referred to, a right of way agreement between the Town and Cablevismn. So [ don't know what their long-term mamtenance is. Are you plaranug on starting a cable company, Val? Whil~ we are m the public comment phase, poor B~ll, back in January when ][ took office and was making the various appointments to Town Board Standing Committees, I assigned Bill to this. He looked at me with fire in his eyes and I know ttmt he was saying Darn you, Josh. Because this has been a long-ottt§tanding comract and the time has come to the table in good faith and I feel that we have negotiated through the hard work of Bill and Cablevisi0n, negotiated a very fair contract. So' I am pleased with the work that you have done, Councilman Moore. Thank-you. COUNCILMAN MOORE: Thank-yon. SUPERVISOR HORTON: With that being said, we will close the public hearing. Elizabeth A. Neville Southold Town Clerk