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CITY OF OSHKOSH, WISCONSIN
CABLE TELEVISION FRANCHISE ORDINANCE
Date: January 16, 1987 Prepared by:
Herbst & Thue, Ltd.
2030 Northwestern Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
{612? 835-2434
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TABLE OF CONTENTS
Section 1. STATEMENT OF INTENT AND PURPOSE.
1.01 Statement of Intent and Purpose
1.02 Award Fee and Franchising Costs
Section 2.
Section 3.
Section 4.
Section 5.
SHORT TITLE
DEFINITIONS
GRANT OF AUTHORITY AND GENERAL PROVISIONS
4.01 Grant of Franchise
4.02 Criteria of Selection
4.03 Authority for Use of Streets
4.04 Franchise Term
4.05 Area Covered
4.06 Police Powers
4.07 Use of Grantee Facilities
4.08 Written Notice
4.09 Franchise Non-Exclusive
DESIGN PROVISIONS
5.01 System Upgrade
5.02 System Rebuild ,
5.03 Institutional Loop
5.04 Initial Service Area
5.05 Provision of Service
5.06 Technical Standards
5.07 Special Testing
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Section 6. SERVICE PROVISIONS
6.01 Basic Service
6.02 Emergency Services
6.03 Public, Educational and Governmental Access
6.04 Local Programming Grant
6.05 Return Capability
Section 7. CONSTRUCTION PROVISIONS
7.01 Construction Timetable
7.02 Construction Delay
7.03 Rebuild Progress Beports
7.04 Construction Standards
7.05 Construction Codes and Permits
7.06 Repair of Streets and Property
7.07 Use of Existing Poles
7.08 Undergrounding of Cable
7.09 Reservation of Street Rights
7.10 Trimming of Trees
7.11 Street Vacation or Abandonment
7.12 Movement of Facilities
SECTION 8. OPERATION AND MAINTENANCE
8.01 Open Hooks and Records
8.02 Cor.imunications with Regulatory Agencies
8.03 Annual Reports
8.04 Periodic Inspection
8.05 Additional Reports
8.06 Subscriber Complaint Practices
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8.07 Subscriber Information
8.08 Subscriber Billing Practices and Refund
Policies
8.09 Notice of Rate Change
8.10 Periodic Review and Evaluation Sessions
Section 9. GENERAL FINANCIAL AND INSURANCE PROVISIONS
9.01 Payment to City
9.02 Performance Band
9.03 Security Fund
9.04 Penalties from Security Fund
9.05 Procedure for Imposition of Penalties
9.06 Damages and Defense
9.07 Liability Insurance
9.08 City's Right to Revoke
9.09 Revocation Procedures
Section 10. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT
10.01 Foreclosure
10.02 Receivership
10.03 Abandonment
Section 11. REMOVAL, TRANSFER AND PURCHASE
11.01 Removal After Revocation or Expiration
11.02 Sale or Transfer of Franchise
11.03 Purchase by City Upon Expiration or
Revocation
Section 12. MISCELLANEOUS PROVISIONS
12.01 Discriminatory Practices Prohibited
12.02 Franchise Renewal
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Section 13.
12.03
12.04
12.05
12.06
12.07
12.08
Continuity of Service Mandatory
Work Performed by Others
Compliance With Federal, State and Local Laws
Nonenforcement by City
Administration of Franchise
Cable Television Advisory Commission
12.09 Emergency Uses
12.10 Construction
12.11 Captions
12.12 Calculation of Time
12.13 Unauthorized Connections
EFFECTIVE DATE; PUBLICATION; AND TIME OF ACCEPTANCE;
13.01 Publication; Effective Date
13.02 Time of Acceptance
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ORDINANCE NO.
AN ORDINANCE GRANTING A CABLE TELEVISION FRANCKISE TO
WARNER CABLE COMMUNICATIONS, INC. TO OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF
OSHKOSH; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT
OF THE FRANCHISE; PROVIDING FOR REGULATION ?ND USE OF
THE SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION
OF ITS PROVISIONS.
THE COMMON COUNCIL OF THE CITY OF OSHKOSH DO ORDAIN AS
FOLLOWS:
SECTION 1. STATEMENT OF INTENT AND PURPOSE.
1.01 Statement of Intent and Purpose. The City intends, by
the adoption of this Franchise, to bring about the continued
development and operation of a System. Such a development can
contribute significantly to meeting the communications needs and
desires of many individuals, associations and institutions.
1.02 Award Fee and Franchising Costs. Grantee shall reim-
burse the City for all costs, including attorney's fees and
publication fees, expended in the soliciting, processing and
awarding of the Franchise; provided, however, Grantee's obliga-
tion shall not exceed Thirty-three Thousand Dollars and 00/100
($33,000.00). Payment shall be made by Grantee at the time of
acceptance of this Franchise as set forth in Section 14.02
hereof.
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SECTION 2. SHORT TITLE
This ordinance shall be known and cited as the "City of
Oshkosh Cable Television Franchise Ordinance". Within this
document it shall also be referred to as "this Franchise" or
"the Franchise".
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SECTION 3. DEFINITIONS
For the purpose of this Franchise, the following terms,
phrases, words and their derivations shall have the meaning given
herein. When not inconsistent with the context, words used in
the present tense include the future tense and words in the
future tense include the present tense, words in the plural
number include the singular number and words in the singular
number include the plural number. The words "shall" and "will"
are mandatory and "may" is permissive. Words not defined shall
be given their common and ordinary meaning.
3.01 "Basic Service" means that level of service regularly
provided to all subscribers including the retransmission of local
tele'vision broadcast signals and the access channels required
herein.
3.02 "Cable Mile" means a mile of cable bearing strand.
3.03 "Channel" means a six (6) Megahertz (MHz) frequency
band, which is capable of carrying either one standard video
signal, a number of audio, digital or other non-video signals, or
some combination of such signals.
3.04 "CitY" means the City of Oshkosh, Wisconsin, a
municipal corporation in the State of Wisconsin or its delega-
tions. The City Council is the authority of the City.
3.05 "Completion of the System Rebuild" means that the
System has been rebuilt and activated in accordance with
Section 5.02 hereof. Specifically, all strand has been put up
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and all necessary cable lashed or buried; trenches refilled and
landscaping replaced; amplifiers and power supplies installed and
grounded; and all other necessary construction completed so that
the System, as rebuilt, is capable of distributing a signal to
any subscriber and ready for testing by the City pursuant to
Section 7.01(D) hereof.
3.06 "Converter" means an electronic device which converts
signals to a frequency not susceptible to interference within the
television receiver of a subscriber and by an appropriate channel
selector also permits a subscriber to view all signals included
in the Basic Service delivered at designated converter dial loca-
tions.
3.07 "Drop" means the cable that connects the subscriber ter-
minal at a point in the subscriber's home, designated by the
subscriber, to the nearest feeder cable of the System.
3.08 "Dwelling Unit" means any building, structure, or por-
tion thereof which is occupied as, or designed or intended for
occupancy as a residence by one or more individuals or families.
The term Dwelling Unit is not limited to units occupied by per-
sons as their usual place of residence and includes houses rented
periodically or used only as seasonal homes.
3.09 "FCC" means the Federal Communications Commission or a
designated representative.
3.10 "Grantiee" means Warner Cable Communications, Inc., its
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agents, employees, lawful successors, transferees or assignees.
3.11 "Gross Revenues" means the annual gross revenues of
Grantee from all sources of operations of the System within the
City including, but not limited to, Basic Service monthly fees,
pay television fees, installation and reconnection fees. This
term does not include any sales, excise or other taxes collected
by Grantee on behalf of the state, city, or other governmental
unit, or any local advertising revenues. Revenues generated from
per-program audio-visual signals shall not be included in the
definition of Gross Revenues until the two (2) year anniversary
of the first per-program audio-visual signal in the City.
3.12 "Installation" means the act of connecting the System
from the feeder cable to the subscriber terminal so that cable
service may be received by the subscriber.
3.13 "Pay Television" means the delivery over the System of
per-channel or per-program audio-visual signals to subscribers
for a fee or charge, in addition to the charge for Basic Service.
3.14 "Person" means any corporation, partnership,
proprietorship or organization authorized to do business in the
State of Wisconsin, or any natural person.
3.15 "Public Property" means any real property other than a
Street owned by any governmental unit.
3.16 "Street" means the surface of and the space above and
below any public street, public road, public highway, public
freeway, public lane, public path, public way, public alley,
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public court, public sidewalk, public boulevard, public parkway,
public drive or any public easement or right-of-way now or
hereafter held by the City which shall, within its proper use and
meaning in the sole opinion of the City, entitle Grantee to the
use thereof for the purpose of installing or transmitting over
poles, wires, cables, conductors, ducts, conduits, vaults, manho-
les, amplifiers, appliances, attachments and other property as
may be ordinarily necessary and pertinent to a System.
3.17 "Subscriber" means any person or entity who subscribes
to a service provided by Grantee by means .of or in connection
with the System whether or not a fee is paid for such service.
3.18 "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception
and control equipment that is designed to provide cable televi-
sion service which includes video programming and which is pro-
vided to multiple subscribers within the City, but such term does
not include (A) a facility that serves only to retransmit the
television signals of one (1) or more television broadcast sta-
tions; (B) a facility that serves only subscribers in one (1) or
more multiple unit dwellings under common ownership, control or
management, unless such facility or facilities uses any public
right-of-way; (C) a facility of a common carrier which is sub-
ject, in whole or in part, to the provisions of title II of the
Cable Communications Policy Act of 1984, except that such faci-
lity shall be considered a System to the extent such facility is
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used in the transmission of video programming directly to
subscribers; or (D) any facilities of any electric utility used
solely for operating its electric utility systems.
3.19 "System Rebuild" means that process to commence in
March, 1989 and to be completed in September, 1990 and more fully
described in Section 5.02 hereof by which Grantee will undertake
certain steps to provide a System with fifty-four (54) channel
capacity an3 an upper bandwidth of 400 MHz.
3.20 "System Upgrade" means that process to commence upon
acceptance of this Franchise by which Grantee will make certain
physical improvements to the System, more fully described in
Section 5.01 hereof, by September 30, 1987, and expand the
programming on Basic Service by November 15, 1987.
3.21 "Tapping" means monitoring communications signals, where
the monitor is not an authorized monitor of the communications,
whether the communications is monitored by visual or electronic
means, for any purpose whatsoever.
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SECTION 4. GRANT OF AUTHORITY AND GENERAL PROVISIONS.
4.01 Grant of Franchise. This Franchise is granted pursuant
to the terms and conditions contained herein. Such terms and
conditions shall be subordinate to all applicable provisions of
state and federal laws, rules and regulations.
4.02 Criteria of Selection. The Grantee's technical ability,
financial condition and legal qualifications were considered and
approved by the City in full public proceedings and affording
reasonable notice and a reasonable opportunity to be heard.
4.03 Authority for Use of Streets.
A. For the purpose of operating and maintaining a
System in the City, Grantee may erect, install, construct,
repair, replace, relocate, reconstruct and retain in, on,
over, under, upon, across and along the Streets within the
City such lines, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and
other property and equipment as are necessary and appurtenant
to the operation of the System; provided, however, that all
applicable permits are applied for and granted, all fees paid
and all other City codes and ordinances are otherwise
complied with.
B. Grantee shall construct and maintain the System
so as not to interfere with other uses of Streets. Grantee
shall make use of existing poles and other facilities
available to Grantee. Grantee shall provide reasonable
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public notice to residents affected by proposed work; pro-
vided, however, Grantee shall make a good faith effort to
individually notify affected residents where the proposed
work is not on public property prior to commencement of that
work.
C. Notwithstanding the above grant to use Streets,
no Street shall be used by Grantee if the City, in its sole
opinion, determines that such use is inconsistent with the
terms, conditions or provisions by which such Street was
created or dedicated, or presently used.
4.04 Franchise Term. This Franchise shall commence upon
March 15, 1987 and shall expire on December 31, 2000 unless
renewed, revoked or terminated sooner as herein provided.
4.05 Area Covered. This Franchise is granted for the terri-
torial boundary �f the City. In the event of annexation by the City,
any new territory shall become part of the area covered.
4.06 Police Powers. Grantee's rights are subject to the
police powers of the City to adopt and enforce ordinances
necessary to the health, safety and welfare of the public.
Grantee shall comply with all applicable general laws and ordi-
nances enacted by the City pursuant to that power.
4.07 Use of Grantee Facilities. The City shall have the
right to install and maintain, free of charge, upon the poles and
within the underground pipes and conduits of Grantee, any wires
and fixtures desired by the City to the extent that installation
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and maintenance does not interfere with existing and future
operations of Grantee.
4.08 Written Notice. All notices, reports or demands
required to be given in writing under this Franchise shall be
deemed to be given when delivered personally to the person
designated below, or when five (5) days have elapsed after it is
deposited in the United States mail in a sealed envelope, with
registered or certified mail postage prepaid thereon, or on the
next addressed business day if sent by express mail or overnight
air courier to the party to which notice is being given, as
follows:
If to the City:
City of Oshkosh
215 Church Avenue
P.O. Box 1130
Oshkosh, Wisconsin 54902
Attn: City Attorney
If to Grantee: Warner Cable Communications, Inc.
304 High Avenue
P.O. Box 240
Oshkosh, Wisconsin 54901
Attn: General Manager
Such addresses may be changed by either party upon notice to
the other party given as provided in this section.
4.09 Franchise Non-Exclusive. The Franchise granted herein
is non-exclusive. The City specifically reserves the right to
grant, at any time, additional franchises for a System in accor-
dance with state and federal law and on the same material terms
and conditions as contained in this Franchise.
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SECTION 5. DESIGN PROVISIONS.
5.01 System Upgrade. Grantee shall immediately undertake an
upgrading of the System in order to insure the capability of the
System to deliver thirty-five (35) channels to the subscriber.
The System Upgrade shall, at a minimum, include the following:
A. A complete rideout and inspection of the System
allowing Grantee to conduct a visual inspection and electro-
nic monitoring in order to identify areas and specific loca-
tions of defective cable, connectors, drops, traps and
passive devices which may cause signal leakage.
B. Upon identification of problems in accordance with
paragraph A above, Grantee shall correct the deficiencies.
Corrective measures will include, but not be limited to,
repair or replacement of all defective cable, replacement of
defective connectors with state-of-the-art integral man3ral-
type connectors, and replacement of all defective drops,
traps and passive devices.
C. A second complete rideout of the System using
electronic monitoring equipment to insure that all deficien-
cies have been corrected.
D. The rewiring of the head-end replacing all existing
RG-59 and RG-6 cable with a specialized quad shield head-
end cable and the appropriate connectors.
E. Reception of Green Bay stations A1LUK (channel 11)
and WPNE (Channel 38) shall be moved to the System head-end
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allowing for reception directly off-air.
F. The processing individually at the System
head-end each signal received via microwave so as to provide
stable pilot levels leaving the head-end.
G. The elimination of audio-video programming on cable
channels nineteen (19) and twenty (20) until Grantee has
substantially minimized existing external interference on
these channels.
H. The securing of all Pay Television services by
scrambling, thereby eliminating the need for negative traps.
I. On or before November 15, 1987, Grantee will
complete the distribution of converCers to all subscribers
needing a converter to receive the Basic Service described at
Section 6.01 hereof.
5.02 Svstem Rebuild. Grantee shall commence a rebuild of
the SyStem (pre-engineering) in March, 1989 and ComQletion of
the System Rebuild shall take place by October 1, 1990.
A. Minimum general design specifications shall be as
follows:
1. The System will include all necessary electro-
nic equipment, power supplies, connectors, and other
parts, components and equipment necessary to provide a
complete and operational System with the frequency
range of 50 to 4�� MHz.
2. The System will be rated for continuous 24 hour
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service in an environment of up to 100� humidity and of
temperature extremes typical of the City.
3. The System will be designed not to interfere
with radio and/or television reception of
non-subscribers.
4. All active circuitry in the equipment used
shall be solid state and shall be equipped with
electronic components �or lightning and surge protection.
5. Lightning arrestors will be installed on 110
VAC lines of AC power suppliers along with surge
arrestors and time delay relays on the 60 volt
secondary.
6. Remote power supply for powering of electronic
equipment will be so regulated that AC output voltage
does not vary by more than +2� with an input voltage
range of 90 to 130 volts AC. The power location will
not generate transients when energized that may prove
harmful to the System equipment and components.
7. All outdoor equipment shall be housed in pro-
tective housings which offer full protection against
local environmental conditions.
8. All equipment will be equipped with coaxial
cable fittings of positive moisture protection and
effective electrical connection. Trunk line ampli-
fiers, bridging amplifiers and line extender amplifiers
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will be contained in a weatherproof housing capable of
strand mounting.
9. The head-end shall be equipped with stand-by
emergency generation capability.
B. Minimum specifications for the transportation
system shall be as follows:
1. The transportation system shall be single
trunk, single feeder cable type.
2. The transportation system shall be capable of
transmittinq a minimum of 54 channels plus the complete
FM band in the forward direction in the frequency band
of 50-400 MHz.
3. All amplifiers shall be solid state equipment
and designed to plug in 5-30 MHz reverse modules and
filters.
4. All passive equipment shall have a passband
from 5-400 MHz.
C. Minimum specifications for the subscriber system
shall be as follows:
1. There shall be no active equipment in
underground vaults or apartment lock boxes unless con-
ditions warrant and no other alternatives are feasible
2. There shall be no more than two line extenders
in a cascade as a general design practice.
D. Minimum specifications for subscriber installations
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are as follows:
1. All subscriber taps will be of the directional
coupler type with either 1, 2, 4 or 8 outputs.
2. In the forward distribution system, at balanced
temperature, a minimum level of +4 dBmv shall be main-
tained at the back of the subscriber's television set
or at the input of the subscriber's converter.
3. Plant shall be designed for dedicated facili-
ties to cause a tap to be located for each possible
subscriber shown on subscriber maps at the time of
System design. Additional taps will be handled on a
field change work order following design approval.
4. Terminating resistors and weather proofing will
be provided on all outputs of each subseriber tap.
5. The System will be designed to allow a direc-
tional coupler to be located at a point capable of
supplying a signal to apartments, hospitals, institu-
tions, multiple dwellings and nonstandard residential
subscribers at +4 dBmv minimum at the back of the
subscriber's television set or at the input of the
subscriber's converter.
E. The coaxial cable used in the System will be the
latest field-proven type suitable for local environmental
conditions.
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5.03 Institutional Loop.
A. Grantee shall continue to provide for control and
use by the City a separate twelve channel broadband closed
circuit transmission loop. The loop shall both originate and
terminate at the present location and shall continu� to
interconnect the following:
1. University of Wisconsin, Oshkosh.
2. City Council Chambers.
3. All four (4) public junior high schools.
4. All public senior high schools.
5. All private senior high schools.
6. All public and�private elementary schools
located within the City and designated by the City.
7. The main branch of the Winnebago County
Courthouse.
8. The main office of the Board of Education.
9. Grantee's head-end.
10. Oregon Street Library.
11. Oshkosh Public Library.
B. As a part of the System Rebuild Grantee shall
upgrade the institutional loop to a 300 MHz mid-split, bi-
directional system.
5.04 Initial Service Area.
A. Grantee shall continue to serve those areas of the
City currently served as of March 15, 1987.
B. Grantee shall extend the System to unserved areas,
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within a reasonable period of time, when such areas achieve a
density equivalent to forty (40) Dwelling Units per aerial
cable mile or eighty (80) Dwelling Units per underground
cable mile as measured from the nearest point of existing
useable cable trunk.
C. Subscribers requiring a drop of 150 feet or less
shall be provided service upon payment of a standard
installation fee. Installations requiring underground drops
or aerial drops in excess of 150 feet shall be considered
non-standard installations to be charged at the actual cost
of installation.
D. Service will be provided to any other residential
or non-residential unit upon agreement of the property owner
to pay the actual cost of the required extension and/or
installation.
5.05 Provision of Service.
A. After service has been established by activating
trunk and distribution cable for any area, Grantee shall pro-
vide service to any requesting subscriber within that area
thirty (30) days from the date of request.
B. Grantee shall, upon request of a subscriber,
install at a reasonable charge, a switching device so as to
permit a subscriber to continue to utilize that subscriber's
own television antenna as the subscriber so determines.
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5.06 Technical Standards.
A. Specifications for System performance after the
System Rebuild at the furthest subscriber and including the
converter shall be as followsa
Minimum Carrier to Noise
Minimum Composite Triple Beat (CW)
54 Channel Load
Minimum Cross Mod Synchronous
54 Channel Load
Signal level at the back of the
subscriber's television set or at
converter input
43.5 dB
51.5 dB
SI.S dB
+4 dBmv (minimum)
B. In the event special testing after the System
Rebuild reports that Grantee is not meeting the technical
parameters set Eorth in paragraph A above, Grantee shall
report in writing to the City what corrective measures are
being taken or why corrective measures are not necessary.
C. In no event shall the failure to meet the technical
parameters set forth in paragraph A above be grounds for the
imposition oE penalties or the revocation of this Franchise
unless so allowed under state or federal law.
5.07 S�ecial Testinq.
A. At any time after commencement of service to
subscribers, the City may reqvire or may retain an indepen-
dent third-party to perform reasonable additional tests, full
or partial repeat tests, different test procedures, or tests
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involving a specific subscriber's drop. Such additional
tests will be made on the basis of complaints received or
other evidence indicating an unresolved controversy or signi-
ficant noncompliance, and such tests will be limited to the
particular matter in controversy.
B. The City shall endeavor to so arrange its requests
for such special tests so as to minimize hardship or incon-
venience to Grantee or to the subscriber.
C. Grantee shall bear all expenses incurred by the
City as a result of special testing if such testing after the
System Rebuild is completed finds the System not to be in
compliance with those standards set forth in Section 5.06
unless the independent third-party reports that such non-
compliance is due to reasons beyond the control of Grantee.
D. If such testing finds the System to be in
compliance with those standards set forth in Section 5.06
after the System Rebuild is completed, or the noncompliance
is due to reasons beyond the control of Grantee, then the
City shall bear all expenses incurred by the City as a result
of special testing.
E. Any special testing ordered by the City prior to the
Completion of the System Rebuild shall be borne by the City
unless the independent third-party reports ongoing fault on
the part of Grantee, in which case Grantee shall bear the
cost of the special testing.
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SECTZON 6. SERVICE PROVISIONS.
6.01 Basic Service. On or before November 15, 1987, Grantee
shall initially offer the following Basic Service:
ACCESS - UWO
MTV
WBAY - Green Bay
USA NETWORK
ENTERTAINMENT & SPORTS PROGRAMMING NETWORK (ESPN)
WFRV - Green Bay
WPNE (PBS) - Green Bay
WGN
CHRISTIAN BROADCAST NETWORK (CBN)
DISCOVERY
NICKELODEON
WLUK - Green Bay
C-SPAN
ARTS & ENTERTAINMENT NETWORK
THE WEATHER CHANNEL
WTMJ - Milwaukee
WVTV - t4ilwaukee
WISN - Milwaukee
WGSA - Green Bay
WXG2 - Appleton
THE NASHVILLE NETWORK
PINANCIAL NEWS NETWORK
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LIFETIME NETWORK
CABLE NE4dS NETWORK — HEADLINE NEWS (CNN II)
CABLE NEWS NETWORK (CNN)
CABLE VALUE NETWORK (CVN)
ACCESS — EDUCATIONAL, GOVERNMENTAL & PUBLZC
Except as provided in Section 6.03(C), all programming deci-
sions shall be that of Grantee; provided, however, Grantee shall
maintain a Basic Service consisting of the same mix and quality
throughout the term of this Franchise.
6.02 Emergencv Services. Grantee shall provide the City
with an emergency alert override system, accessible via telephone
and security code. Grantee shall, at its own expense, install,
maintain and make the system fully operational. This system
shall be capable of overriding the audio on all channels of the
subscriber System in order that the City may deliver emergency
messages.
6.03 Public, Educational and Governmental Access.
A. Grantee shall provide to each of its subscribers
who receive some or all of the services offered on the System
reception on at least one specially designated public, educa-
tional and governmental (PEG) access channel and one spe-
cially designated access channel for the University of
Wisconsin - Oshkosh. The specially designated PEG access
channel may be used by the public on a first-come, first-
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served, nondiscriminatory basis.
B. Whenever the specially designated PEG access chan-
nel or the specially designated University of Wisconsin -
Oshkosh access channel is in use following completion of the
System Rebuild for non-automated locally originated
(non-duplicated) programming eight (8) hours per day Monday
through Friday, for nine consecutive weeks, and there is a
demand for use of an additional channel, Grantee shall have
six months in which to provide a new specially designated
access channel for the same purpose.
C. Grantee and City jointly shall establish rules for
the administration of the specially designated PEG access
channel. Notwithstanding anything to the contrary, however,
Grantee shall r.ot exercise any editorial control over any
access channel.
D. The City shall prescribe:
1. Rules and procedures under which Grantee is
permitted to use the designated access channels for the
provision of other services if the designated channels
are not being used for the purposes designated; and
2e Rules and procedures under which such permitted
use shall cease.
6.04 Local Pro4ramming Grant
A. Grantee shall, within forty-five (45) days of a
request from the City, provide a one-time grant in the amount
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of Forty-five Thousand Dollars ($45,000.00) to the City. The
monies so granted shall be used by the City primarily for the
purchase, acquisition, maintenance and repair of local
programming equipment as determined by the City or its
designee.
B. It is expressly recognized and understood by the
City and Grantee that this grant is for capital costs to be
incurred in the support of public, educational and governmen-
tal programming and is incidental to and not to be a part of
any payment required under Section 9.01 hereof.
6.05 Return Capability.
A. Zn order to cablecast meetings of the City, Grantee
shall provide, upon request of the City, a return line or
return capability between the City Hall and the System head-
end. Grantee will provide and maintain for the City, at no
cost, the modulator required for originating the signal as
well as the head-end equipment necessary for processing the
signal for retransmission to the subscribers.
B. Grantee shall continue to maintain the return capa-
bilities in order that programming can be originated at the
following sites:
Lincoln Elementary School
North High School
West High School
University of Wisconsin - Oshkosh
-27-
SECTION 7. CONSTRUCTION PROVISIONS.
7.01 Construction Timetable.
A. The System Upgrade, as described in Section 5.01
shall be accomplished by September 30, 1987, and the expan-
sion of Basic Service by November 15, 1987. The ��mpletion
cf the System Rebuild shall be accomplished by October 1,
1990.
B. Grantee shall give notice to the City at such time
as Grantee has completed the System Upgrade, including the
expansion of Basic Service, and again upon @ompletion of the
System Rebuild. The notice that the System Upgrade is
completed shall include a description in reasonable detail of
those improvements made as a result of the System Upgrade.
The notice of c�ompletion of the System Rebuild shall include
results of tests performed by an independent third-party
retained by Grantee using those tests described in (D)(2)
below and a brief narrative of those results.
C. Upon receipt of notice and any test results pur-
suant to paragraph B, the City may accept the notice and deem
the upgrading or reb�ilding complete or determine, at its
sole discretion, to pursue additional independent testing at
the City's expense and by an independent third-party selected
by the City. If the City pursues additional testing, it
shall have sixty (60) days from receipt of Grantee's notice
to receive a written report from an independent third-party;
��
provided, however, if the City fails to receive such a writ-
ten report within the sixty (60) days the System upgrading or
rebuilding shall be deemed completed, unless the failure to
receive such a report is due to unforeseen events, acts of
God, or events beyond the reasonable control of the City.
D. The completion of the System Upgrade or the
completion of the System Rebuild shall be deemed to have
taken place on (1) the date specified in Grantee's notice of
actual completion, subject to positive confirmation in the
independent third-party's report ar; (2) if such report is
not positive, on the date on which the independent third-
party reports positive confirmation, whichever is later. In
rendering such a report, the independent third-party shall
report on the following:
1. All improvements contemplated by the System
Upgrade or the System Rebuild have been made or other-
wise satisfactorily resolved;
2. Test results at up to ten (10) widely
separated subscriber drops and using the following
tests:
a. Signal level
b. Hum
c. Bandpass response of the System
d. Carrier to noise of the System
e. TASO picture quality of 2 or better
3. Compliance with all applicable codes and
standards.
-29-
4. Carriage of the Basic Service, as available,
set forth at Section 6.01. (System Upgrade only)
E. The cost of any independent third-party so retained
by the City shall be the responsibility of the City if such
testing finds the System is in compliance with those stan-
dards set forth in Section 5.06; provided, however, if such
testing finds the System not to be in compliance with Section
5.06, then the costs of the City's independent third-party
shall be the responsibility of Grantee unless the independent
third-party reports that such noncompliance is due to reasons
beyond the control of Grantee.
7.02 Construction Delay. Grantee shall notify the City of
any delay in the completion of the System Upgrade or the System
Rebuild. The City may extend the scheduled completion date for
delays which result from occurrence of unforeseen events or acts
of God.
7.03 Rebuild Progress Reports. Grantee shall furnish the
City, upon request of the City, written reports, detailing the
progress of the System Rebuild. Grantee shall provide any reaso-
nable additional information which the City may desire as a part
of such progress reports.
7.04 Construction Standards.
A. All construction practices shall be in accordance
with all applicable sections of the Occupational Safety and
Health Act of 1970 and any amendments thereto as well as all
-30-
state and local codes where applicable.
B. All installation of electronic equipment shall be
of a permanent nature, durable and installed in accordance
with the provisions of the National Electrical and Safety
Code and National Electrical Code as amended.
C. Antenna supporting structures (towers) shall be
designed for the proper loading as specified in Electronics
Industry Association's R.S. 3-22A Specifications.
D. Antenna supporting structures (towers) shall be
painted, lighted, erected and maintained in accordance with
all applicable rules and regulations of the Federal Aviation
Administration and all other applicable state or local codes
and regulations.
E. All of Grantee's plant and equipment, including but
not limited to the antenna site, headend and distribution
system, towers, house connections, structures, poles, wire,
cable, coaxial cable, fixtures and appurtenances shall be
installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained and operated in
accordance with good engineering practices, performed by
experienced maintenance and construction personnel so as not
to endanger or interfere with improvements the City may deem
appropriate to make, or to interfere in any manner with the
rights of any property owner, or to unnecessarily hinder or
obstruct pedestrian or vehicular traffic.
-31-
F. Grantee shall at all times employ ordinary care and
shall install and maintain in use commonly accepted methods
and devices preventing failures and accidents which are
likely to cause damage, injury or nuisance to the public.
7.05 Construction Codes and Permits.
A. Grantee shall obtain all necessary permits from the
City before commencing any upgrading or rebuilding of the
System, including the opening or disturbance of any Street,
or private or public property within the City. Grantee shall
strictly adhere to all building and zoning codes curr2ntly or
hereafter applicable to construction, operation or main-
tenance of the System in the City.
B. The City shall have the right to inspect all
construction or installation work performed pursuant to the
provisions of this Franchise and to make such tests as it
shall find necessary to ensure compliance with the terms of
the Franchise and applicable provisions of local, state and
federal law.
7006 Re�air of Streets and Property. Any and all Streets or
public property or private property which are disturbed or
damaged during the construction, repair, replacement, relocation,
operation, maintenance or reconstruction of the System shall be
promptly repaired by Grantee, at its expense, and to a condition
as good as that prevailing prior to Grantee's construction.
7.07 Use of Existing Poles. Grantee shall not erect, for any
-32-
reason, any pole on or along any Street in an existing aerial
utility system without the advance written approval of the City,
which approval shall not be unreasonably withheld.
7.08 Underqrounding of Cable. Cable shall be installed
underground at Grantee's expense where both the existing
telephone and electrical utilities are already underground.
Previously installed aerial cable shall be placed underground in
concert with other utilities when both the telephone and electri-
cal utilities convert from aerial to underground construction.
Grantee shall place cable underground in newly platted areas in
concert with both the telephone and electrical utilities, unless
this requirement is waived by the City.
7.09 Reservation of Street Rights.
A. Nothing in this Franchise shall be construed to
prevent the City from constructing, maintaining, repairing or
relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any Street; constructing, laying
down, repairing, maintaining or relocating any water mains;
or constructing, maintaining, relocating, or repairing any
sidewalk or other public work.
B. All such work shall be done, insofar as practicable
in such manner as not to obstruct, injure or prevent the free
use and operation of the poles, wires, conduits, conductors,
pipes or appurtenances of Grantee.
C. If any such property of Grantee shall interfere
-33-
with the construction or relocation, maintenance or repair of
any Street or public improvement, whether it be construction,
repair, maintenance, removal or relocation oi a sewer, public
sidewalk, or water main, Street or any other public improve-
ment, thirty (30) days notice shall be given to Grantee by
the City and all such poles, wires, conduits or other
appliances and facilities shall be removed or replaced by
Grantee in such manner as shall be directed by the City so
Chat the same shall not interfere with the said public work
of the City, as determined by the City; and such removal or
replacement shall be at the expense of Grantee herein.
D. Nothing contained in this Franchise shall relieve
any person from liability arising out of the failure to exer-
cise reasonable care to avoid injuring Grantee's facilities
while performing any work connected with grading, regrading,
or changing the line of any Street or public place or with
the construction or reconstruction of any sewer or water
system.
7.10 Trimming of Trees. Grantee shall have the authority to
trim trees on public property and within utility easements at its
own expense as it may be necessary tp protect its wires and faci-
lities, consistent with all ordinances of the City. Trimming of
trees on private property shall require prior affirmative consent
of the property owner.
7.11 Street Vacation or Abandonment. In the event any Street
-34-
or portion thereof used by Grantee shall be vacated by the City or
the use thereof discontinued by Grantee, during the term of this
Franchise, Grantee shall, at Grantee's expense, forthwith remove
its facilities therefrom unless specifically permitted by the
City to continue the same, and on the removal thereof restore,
repair or reconstruct the Street area where such removal has
occurred, and place the Street area where such removal has
occurred to a condition similar to that existing before such
removal took place. In the event of failure, neglect or refusal
of Grantee, after thirty (30) days notice by the City to remove
the facilities or to repair, restore, reconstruct, improve or
maintain such Street portion, the City may do such work or cause
it to be done, and the cost thereof as found and declared by the
City shall be paid by Grantee as directed by the City and collec-
tion may be made by any available remedy.
7.12 Movement of Facilities. In the event it is necessary
temporarily to move or remove any of Grantee's wires, cables,
poles, or other facilities placed pursuant to this Franchise, in
order to lawfully move a large object, vehicle, building or other
structure over any Street of the City, upon two (2) weeks notice
by the City to Grantee, Grantee shall move, at the expense of the
person requesting the temporary removal, such of his facilities as
may be required to facilitate such movements. Any service
disruption provisions of this Franchise shall not apply in the
event that the removal of Grantee's wires, cables, poles or other
facilities results in temporary service disruptions.
-35-
SECTION 8. OPERATION AND MAINTENANCE.
8.01 Open Books and Records. The City shall have the right
to inspect or audit, upon twenty-four (24) hours written notice,
at any time during normal business hours, all books, records,
maps, plans, financial statements, service complaint records,
performance test results, record of requests for service and
other like materials of Grantee which are reasonably necessary
for the administration or enforcement of this Franchise. Such
notice shall state the purpose of the inspection or audit and
contain a description, to the best of the City's ability, of the
books, records and documents the City wants to inspect or audit.
8.02 Communications with Regulatory Agencies. Copies of all
petitions, applications, communications and reports submitted for
the System by Grantee or on behalf of or relating to Grantee to
the FCC, Securities and Exchange Commission or any other federal
or state regulatory commission or agency having jurisdiction in
respect to the System authorized pursuant to this Franchise shall
also be submitted upon request to the City. Copies of responses
from the regulatory agencies to Grantee shall likewise be fur-
nished to the City, upon request, in an expeditious manner.
8.03 Annual Reports. Within one hundred twenty (120) days of
the end of its fiscal year, including the year in which the
Franchise becomes effective, Grantee shall file with the City a
legible copy of the following information regarding the System.
A. A financial statement including a statement of
-36-
income, operating expenses, balance sheets with a schedule of
property, plant and equipment, and a statement of sources and
uses of funds prepared in accordance with generally accepted
accounting principles and certified by a financial officer of
Grantee.
B. A summary of the previous year's activities in the
development of the System, including, but not limited to,
construction and services began or discontinued during the
reported year.
C. A current copy of its subscriber service agreement.
D. A summary of service repair complaints compiled
from service work orders.
8.04 Periodic Inspection. Upon request of the City, the City
and Grantee shall undertake an inspection of the System to ascer-
tain the System performance at subscriber drops randomly selected
by the City. In the absence of any City action taken to further
exercise this right, the City and Grantee shall be subject to at
least the procedures set forth below.
A. The City sha11 give written notice to Grantee of the
City's intention to undertake an inspection of the System and
the name of that person who will participate for the City.
The person so designated need not be trained in cable televi-
sion technology.
B. Grantee shall, within ten (10) days of receipt of
the City notice, select one person who will participate for
-37-
Grantee and so notify the City. The person so designated
need not be.trained in cable television technology.
C. The representatives of the City and Grantee shall,
within ten (10) days of the selection of the Grantee repre-
sentative, select a third representative who need not be
trained in cable television technology.
D. Within fifteen (15) days after the appointment of
all representatives, the representatives shall commence an
inspection of the System in accordance with the following
procedures:
1. The representatives shall commence the inspec-
tion of the System at the head-end by viewing all
programmed channels and, by a decision of the majority,
assign a rating of one (1) to five (5) for each channel
of programming.
2. The representatives shall then view the System
performance at ten (10) subscriber drops selected at
random by the City. At least five (5) of these loca-
tions shall be at the far end of the System. The repre-
sentatives shall view all or a representative portion of
the programmed channels at each location and, by a deci-
sion of the majority, assign a rating of one (1) to five
(5) for each channel of programming so viewed.
3. In assigning a rating for each channel of
programming so viewed, the representatives shall use the
�
following scale:
1- Excellent picture, no visible impairment
2- Very good picture, small amount of impair-
ment noticeable
3- Good picture, degradation noticeable
4- Fair, degradation a problem
5 - Poor picture, unuseable
E. The representatives shall prepare and submit to the
City and Grantee a written report of its findings and any
appropriate recommendation.
F. Upon request oi the City, Grantee shall report to
the City, at a regular or specially scheduled meeting of the
City, what steps are being taken to correct deficiencies
noted in the report or why corrective measure are not
necessary. Notwithstanding anything to the contrary, the
City may use the report submitted by the reQresentatives as a
basis for ordering special testing of the System pursuant to
Section 5.07 hereof.
8.05 Additional Reports. Grantee shall prepare and furnish
to the City, at the times and in the form prescribed, such addi-
tional reports with respect to its operation, affairs, transac-
tions or property, which are reasonably necessary for the
administration and enforcement of this Franchise.
8.06 Subscriber Complaint Practices.
A. Grantee shall maintain an office within the City
-39-
which shall be open during all usual business hours. Grantee
shall have a publicly listed toll-free telephone number and
be so operated as to receive subscriber complaints and
requests on a twenty-four (24) hour-a-day, seven (7) days-a-
week basis.
B. Grantee shall render efficient service, make
repairs promptly and interrupt service only for good cause
and for the shortest time possible. Such interruptions,
insofar as possible, shall be preceded by notice and shall
occur during periods of minimum use of the System. A written
log available for public inspection shall be maintained for
all service interruptions, except for those interruptions
related to routine repair and maintenance activities.
C. Subscriber requests for maintenance or repairs
received prior to 12:00 (noon), Monday through Friday, shall
be performed the same day.
D. Subscriber requests for maintenance or repairs
received after 12:00 (noon) shall be performed within twenty-
four (24) hours of the request or by the end of the next
business day unless the request involves an outage subject to
paragraph (E).
E. Grantee shall respond within twenty-four (24)
hours seven (7) days a week to any subscriber complaint
reporting a complete outage of all channels on Basic Service,
an outage of any Pay Television channel or the outage of one
�
or more channels System wide. Grantee shall exercise its
best efforts to respond to any such outage within the same
day.
F. Maintenance personnel shall be on duty eight (8)
hours a day, Monday through Friday. Maintenance �ersonnel
shall be on-call to respond to System outages, as described
in paragraph E above, which may occur outside normal business
hours.
G. If Grantee fails to correct an outage of Basic
Service or any Pay Television channel within twenty-four (24)
hours, Grantee shall, upon request of the subscriber, credit
1/30th of the monthly charge to the subscriber for each
twenty-four (24) hours or fraction thereof during which the
subscriber was without service, except to the extent that
restoration of service is prevented by strike, injunction or
other cause beyond the control of Grantee.
H. Requests for maintenance or repair of Grantee
equipment shall be performed at no charge to the subscriber.
If such maintenance or repair is required as a result of
damage caused by the subscriber, Grantee may charge the
subscriber according to its actual cost for time and
material.
8.07 Subscriber Information. Grantee shall provide in plain
language and in an easily readable format written comprehensive
information to all subscribers. The information to be provided
-41-
shall include, but not be limited to, the following:
A. The procedure for investigation and resolution of
subscriber service complaints;
B. Programming services and rates for such services;
C. Billing practices;
D. Service termination procedures;
E. Converter/subscriber terminal equipment policy; and
F. Refund policy.
Grantee shall provide a copy of any proposed subscriber
information packet to the City for review and comment prior to
the use of such an information packet.
8.08 Subscriber Billing Practices and Refund Policies.
A. Grantee shall notify each of its subscribers, in
writing, of its billing practices. The notice shall describe
Grantee's billing practices including, but not limited to,
the following: frequency of billing, time periods upon which
billing is based, advance billing practices, security deposit
requirements, charges for late �ayments or returned checks,
payments required in order to avoid account delinquency,
availability of credits for service outages, procedures to be
followed to request for service deletions including the
notice period a subscriber must give to avoid liability for
such services and procedures to be followed in the event of a
billing dispute.
B. Prior to changing one of its billing practices,
-42-
Grantee shall notify all affected subscribers of the change
and include a description of the changed practice.
C. The Subscriber bill shall contain the following
information presented in plain language and format:
1. Name of Grantee and telephone number;
2. The period of time over which each chargeable
service is billed including prorated periods as a result of
establishment and termination of service;
3. The date on which individually chargeable ser-
vices were rendered;
4. Each rate or charge levied;
5. The amount of the bill for the current billing
period, separate from any balance due;
6. Any applicable credits on the date which they
were applied.
7. The balance due.
8. The date on which payment is due from the
subscriber.
D. The account of a subscriber shall not be considered
delinquent until at least five (5) days have elapsed from the
due date of the bill, which shall be a date certain and in no
event a statement that the bill is due upon receipt, and
payment has not been received by Grantee. Notwithstanding
anything to the contrary, the account of a subscriber being
billed bi-monthly shall not be considered delinquent if one-
-43-
half (�) of the balance due is paid by the stated due date
and the subscriber shall be billed for the second month of
that period.
E. There shall be no charge for termination or discon-
nection of any service. if any subscriber fails to pay a
properly due monthly subscriber fee, or any other properly
due fee or charge, Grantee may terminate the subscriber's
service, provided, however, that such termination shall not
be effectuated until after the later of (i) thirty (30) days
after the due date of said delinquent fee or charge or (ii)
ten (10) days after delivery to subscriber of written notice
of the intent to terminate. If a subscriber pays the
delinquent fee or charge before expiration of the later of
(i) or (ii), Grantee shall not terminate. After termination,
upon payment in full of the delinquent fee or charge and the
payment of a reconnection charge, Grantee shall reinstate the
subscriber's service.
F. Refunds to subscribers shall be made or determined
in the following manner:
1. If Grantee fails, upon written request by a
subscriber, to provide any service then being offered by
Grantee, Grantee shall refund within thirty (30) days of
a written request for refund by the subscriber, all
deposits or advance charges paid for such service by
said subscriber. This provision does not alter
-44-
Grantee's responsibility to subscribers under any
separate contractual agreement or relieve Grantee oE any
other liability.
2. If any subscriber terminates any monthly ser-
vice because of the failure of Grantee to render the
service in accordance with this Franchise, Grantee shall
refund within thirty (30) days to such subscriber the
pro rata share of the charges paid by the subscriber for
the services not received. This provision does not
relieve Grantee of liability established in other provi-
sions of this Franchise.
G. If any subscriber terminates, for any reason not set
forth above, any monthiy service prior to the end of a pre-
paid period longer than one month, a prorated .portion of any
prepaid subscriber service fee over one month using the
number of unexpired prepaid days as a basis, shall be
refunded to the subscriber within thirty (30) days by
Grantee.
8.09 Notice of Rate Chanqe. Prior to implementing any rate
increase for Basic Service, Grantee shall give the following
notice:
A. At least thirty (30) days advance written notice to
the City; and
B. At least thirty (30) days advance written notice to
subscribers of Basic Service.
-45-
0
Y
8.10 Periodic Reviea and Evaluation Sessions. The field of
cable communications is a relatively new and rapidly changing one
which may see many regulatory, technical, financial, marketing
and legal changes during the term of this Franchise. Therefore,
in order to provide for a maximum degree of flexibility in this
Franchise, and to help achieve a continued advanced and modern
System, the following evaluation provisions will apply:
A. The City reserves the right to adopt rules and
regulations controlling the procedures as set forth below and
subjects for review and evaluation sessions. In the absence
of any City action taken to exercise these rights, Grantee
shall be subject to at least the procedures and subjects
described in this section.
B. The City may require, at its sole discretion,
review and evaluation sessions within thirty (30) days of the
fourth, sixth, ninth and twelfth anniversary dates of the
acceptance of this Franchise.
C. Topics which may be discussed at any review and
evaluation session include, but are not limited to, channel
capacity, System performance, programming, local programming,
municipal uses of cable, subscriber complaints, judicial
rulings, FCC rulings and any other topics the City or Grantee
deems relevant.
D. During a review and evaluation session, Grantee
shall fully cooperate with the City and shall provide without
-46-
0
cost such reasonable information and documents as the City
may request.
E. If at any time before or during such a session, the
City determines that reasonable evidence exists of inadequate
System performance, the City may require Grantee or an inde-
pendent third-party to perform tests and analysis directed
toward such suspected inadequacies. The cost of any indepen-
dent third-party so used shall be borne by the parties in
accordance with Section 5.07. Grantee shall fully cooperate
with the City in performing such testing and any report pre-
pared by Grantee shall include at least:
1. A description of the problem in the System
performance which precipitated the special tests.
2. What System component was tested.
3. The equipment used and procedures employed in
testing.
4. The method, if any, by which such the System
performance problem was resolved.
5. Any other information pertinent to said tests
and analysis which may be required by the City, or
determined when the test is performed.
F. Upon request of City, Grantee shall, no earlier
than ninety (90) days and no later than thirty (30) days
prior to a review and evaluation session conduct a written
survey of subscribers. Each questionnaire shall be prepared
-47-
0
and conducted in good faith so as to provide measurements
of subscriber preferences and satisfaction for:
1. Programming offered by Grantee at the time the
survey is conducted;
2. Programming generally available to cable
subscribers nationally but not offered by Grantee at the
time the survey is conducted; and
3. Maintenance and subscriber complaint prac-
tices.
The survey documents shall be prepared and conducted in
accordance with such requirements, including supervision and
review of returned surveys, as the City may prescribe. As a
part of the review and evaluation session, Grantee shall
report in writing what steps Grantee may be taking to imple-
ment the findings of the survey.
G. As a result of a review and evaluation session, the
City or Grantee may determine that a change in the terms of
the Franchise may be required, that the System or Franchise
requirements should be updated, changed or that additional
services should be provided. If the change is consistent
with the needs of the City and existing state-of-the-art (or
due to regulatory, technical, financial, marketing, inflation
or legal requirements) and implementation of a change would
not unreasonably add to the cost of providing cable televi-
sion service, Grantee and the City will, in good faith, nego-
��
tiate the terms of the change and any required amendment to
this Franchise. Upon adoption of such a Franchise amendment,
if one is agreed to, the change will become effective and
Grantee shall accept same.
-49-
ION 9. GENERAL FINANCIAL AND INSURANCE PROSIVIONS.
9.01 Payment to the CitY.
A. Grantee shall pay to the City an annual amount
equal to five percent (58) of its Gross Revenues. The
foregoing payment shall be compensation for use of
streets and other public property.
B. In the event Grantee is prohibited by state or
federal law from paying a fee based on gross revenues or
the City is prohibited by state or federal law from
collecting such a fee, then Grantee shall pay to the
City, as a rental for use of streets and other public
property, an amount equal to Six Hundred Ten and no/100
Dollars ($610.00) per cable mile of the System,
including trunk and distribution cable, then installed,
to be increased annually by an amount equal to the per-
centage increase in the U.S. Consumer Price Index - all
items, issued by the Bureau of Labor Statistics of the
U.S. Department of Labor, or its equivalent, for the
greater metropolitan Milwaukee area, as determined by
the City. Any amount so collected shall not exceed any
maximum payment then allowed under federal or state law.
C. Payments due the City under this Section shall
be computed at the end of each quarter year for that
quarter year. Payments shall be due and payable for
each quarter or a portion of a quarter year forty-five
-50-
(45) days after the close of that quarter or a portion
of a quarter year. Each payment shall be certified as
true and correct by a financial officer of Grantee and
accompanied by a brief report showing the basis for the
computation together with such other relevant facts as
may be required by the City.
D. No acceptance of any payment shall be
construed as an accord that the amount paid is in fact
the correct amount, nor sha11 such acceptance of payment
be construed as a release of any claim the City may have
for further or additional sums payable under the provi-
sions of this Franchise. All amounts paid shall be sub-
ject to audit and recomputation by the City.
E. In the event any payment is not made on the
due date, interest on the amount due shall accrue from
such date at the lowest prime commercial lending rate
established by any bank in the City at the time the
delinquency occurs.
9°02 Performance Bond.
A. On or before March 15, 1987, Grantee shall
furnish and file with the City a performance and payment
bond, or a performance and payment bond together with
such other security as is approved by the City. The
bond shall run to the City in the penal sum of One
Hundred and Fifty Thousand Dollars ($150,000.00). The
-51-
bond shall be conditioned upon the faithful performance
of Grantee of all terms and conditions of the System
upgrading.
B. Upon completion of the System Upgrade as deter-
mined by the City in accordance with Section 7.01(D),
the requirement to maintain said bond referred to in (A)
above shall be extinguished.
C. On or before March 1, 1989, Grantee shall fur-
nish and file with the City a performance and payment
bond, or a performance and payment bond together with
such other security as is approved by the City. The
bond shall run to the City in the penal sum of Five
Hundred Thousand Dollars (5500,000.00). The bond shall
be conditioned upon the faithful performance of Grantee
of all terms and conditions of the System Rebuild.
D. Following the completion of the System
Rebuild as determined by the City in accordance with
Section 7.01(D), the bond referred to in (C) above shall
be extinguished.
�. The rights reserved by the City with respect to
-52-
any bond are in addition to all other rights the City
may have under the Franchise or any other law.
F. Each bond shall be subject to the approval of
the City and shall contain the following endorsement:
'°It is hereby understood and agreed that this bond
may not be cancelled withhout the consent of the
City until sixty (60) days after receipt by the
City by registered mail, return receipt requested,
of a written notice of intent to cancel or not to
renew."
9.03 Security Fund.
A. At the time this Franchise is accepted, Grantee
shall deposit into a bank account, established by the City,
and maintain on deposit through the term of this Franchise,
the sum of Ten Thousand Dollars (510,000.00) as a common
security fund for the faithful performance by it oE all the
provisions of this Franchise and compliance with a11 orders,
permits and directions of the City and the payment by Grantee
of any claim, liens and taxes due the City which arise by
reason of the construction, operation or maintenance of the
System. Interest accrued on this deposit shall be paid to
Grantee on an annual basis provided that all requirements oE
this Franchise have been complied with by Grantee.
B. Provision shall be made to permit the City to
withdraw funds from the security fund. Grantee shall not use
the security fund for other purposes and shall not assign,
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pledge or otherwise use this security fund as security for
any purpose.
C. Within ten (10) days after notice to it that any
amount has been withdrawn by the City from the security fund,
Grantee shall deposit a sum of money sufficient to restore
such security fund to the required amount.
D. If Grantee fails to pay to the City any taxes due
and unpaid; or, fails to repay to the City, any damages,
costs or expenses which the City shall be compelled to pay by
reason of any act or default of the Grantee in connection
with this Franchise; or fails, after twenty (20) days' notice
of such failure by the City to comply with any provision of
the Franchise which the City reasonably determines can be'
remedied by an expenditure of the security, the City may then
withdraw such funds from the security fund in accordance with
those procedures set forth in Section 9.05 hereof.
9.04 Penalties from Security Fund. In addition to any other
remedies provided herein, penalties for violations of this
Franchise are set forth below. As a result of any acts or
omissions by Grantee pursuant to the Franchise, the City may
charge to and collect from the security fund the following
penalties:
A. For failure to complete the System Upgrade or
Rebuild in accordance with this Francnise unless the
City approves the delay, the penalty shall be 'Itvo Hundred
-54-
Dollars ($200.00) per day for each day, or part thereof, such
failure occurs or continues.
B. For failure to provide data, documents, reports or
information required by this Franchise or reasonably
requested by the City, the penalty shall be One Hundred
Dollars (5100.00) per day.
C. For failure to comply with any provision of this
Franchise, for which a penalty is not otherwise specifically
provided, the penalty shall be One Hundred Dollars (5100.00)
per day.
9.05 Procedure for Imposition of Penalties.
A. Whenever the City finds that Grantee has violated
one (1) or more terms, conditions or provisions of this
Franchise, a writCen notice shall be given to Grantee
informing it of such violation or liability. The written
notice shall describe in reasonable detail the specific
violation so as to afford Grantee an opportunity to remedy
the violation. Grantee shall have twenty (20) days sub-
sequent to receipt of the notice in which to correct the
violation before the City may resort to the security fund.
Grantee may, within ten (10) days of receipt of notice,
notify the City that there is a dispute as to whether a
violation or failure has, in fact, occurred. Such notice by
Grantee to the City shall specify with particularity the mat-
ters disputed by Grantee.
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0
1. The City shall hear Grantee's dispute at its
next regularly or specially scheduled meeting. The City
shall supplement the decision with written findings of
fact.
2. If after hearing the dispute the claim is
upheld by the City, Grantee shall have twenty (20) days
from such a determination to remedy the violation or
failure. At any time after that twenty (20) day period,
the City may draw against the security fund all
penalties due it.
B. The security fund deposited pursuant to this Sec-
tion shall become the property of the City in the event that
the Franchise is cancelled by reason of the default of
Grantee or revoked for cause. Grantee, however, shall be
entitled to the return of such security fund, or portion
theteof, as remains on deposit at the expiration of the term
of the Franchise.
C. The rights reserved to the City with respect to the
security fund are in addition to all other rights of the City
whether reserved by this Franchise or authorized by law, and
no action, proceeding or exercise of a right with respect to
such security fund shall affect any other right the City may
have.
9.06 Damages and Defense.
A. Grantee shall indemnify and hold harmless the City
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for all damages and penalties, at all times during the term
of this Franchise, as a result of Grantee's exercise of this
Franchise. These damages and penalties shall include, but
shall not be limited to, damages arising out of personal
injury, property damage, copyright infringement, defamation,
antitrust, errors and omission, theft, fire, and all other
damages arising out of Grantee's exercise of this Franchise,
whether or not any act or omission comglained of is
authorized, allowed or prohibited by this Franchise.
B. In order for the City to assert its rights to be
indemnified and held harmless, the City must:
1. Promptly notify Grantee of any claim or legal
proceeding which gives rise to such right;
2. Afford Grantee the opportunity to participate
in and fully control any compromise, settlement or other
resolution or disposition of such claim or proceeding
unless the City shall have reasonably concluded, after
consultation with Grantee, that Grantee cannot properly
represent the City's interest because of the availabi-
lity of different or additional legal defenses to the
City, then the City shall have the right to select
separate counsel to participate in the defense of such
action on its behalf, at the expense of Grantee.
3. Fully cooperate in the defense of such claim
and make available to Grantee all pertinent information
under its control relating thereto but shall be entitled
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to be reimbursed for all costs and expenses incurred by
the City.
C. All notices reguired under this Section 9.06 shall
be given prior to the time by which the interests of the
party to be notified will be materially prejudiced as a
result of the failure to have received such notice. The
failure to give such notice shall not relieve any party of
any liability which it may have.
9.07 Liability Insurance.
A. Grantee shall maintain, throughout the term of the
Franchise, liability insurance insuring Grantee and naming as
a co—insured the City, its officers, boards, commissioners,
agents, and employees, with regar3 to all damages mentioned
in paragraph A of Section 9.06 hereof, in the minimum amounts
of:
1. Three Hundred Thousand Dollars ($300,000.00)
for bodily injury or death to any one (1) person;
2. One Million Dollars ($1,000,000.00) for bodily
injury or death resulting from any one accident;
3. One Million Dollars ($1,000,000.00) for all
other types of liability.
B. At time of acceptance, Grantee shall furnish to the
City satisfactory evidence that an insurance policy has been
obtained. The insurance policy shall require that the City
�
0
be notified thirty (30) days prior to any expiration or can-
cellation.
9.08 Citv's Riqht to Revoke. In addition to all other
rights which the City has pursuant to law or equity, the City
reserves the right to revoke, terminate or cancel this Franchise,
and all rights and privileges pertaining thereto, in the event
that:
A. Grarrtee violates any material provision of this
Franchise; or
B. Grantee practices any fraud upon the City or
subscriber; or
C. Grantee becomes insolvent, unable or unwilling to
pay its debts, or is adjudged bankrupt; or
D. Grantee misrepresents a material fa¢t in the appli-
cation for or negotiation of, or renegotiation of, or renewal
of, the Franchise.
9.09 Revocation Procedures.
A. The City shall provide Grantee with a written
notice of the cause for termination and its intention to ter-
minate or revoke the Franchise and shall allow Grantee a
minimum of thirty (30) days after service of the notice in
which to correct the violation.
B. Grantee shall be provided with an opportunity to be
heard at a public hearing before the City prior to the ter-
mination of the Franchise. The City shall hear any persons
-59-
interested therein, and shall determine, in its discretion,
whether or not any failure, refusal or neglect by Grantee has
occurred.
C. Any revocation of this Franchise shall be by formal
action of the City.
���
SECTION 10. FORECLOSURE, RECEIVERSHIP AND AB�NDONMENT.
10.01 Foreclosure. Upon the foreclosure or other judicial
sale of the System, Grantee shall notify the City of such fact
and such notification shall be treated as a notification that a
change in control of Grantee has taken place, and the provisions
of this Franchise governing the consent to transfer or change in
ownership shall apply without regard to how such transFer or
change in ownership occurred.
10.02 Receivership. The City shall have the right to cancel
this Franchise subject to any applicable provisions of Wisconsin
law, including the Bankruptcy Act, one hundred and twenty (120)
days after the appointment of a receiver or trustee to take over
and conduct the business of Grantee, whether in receivership,
reorganization, bankruptcy or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to
the expiration of said one hundred and twenty (120) days, or
unless:
A. Within one hundred and twenty (120) days after his
election or appointment, such receiver or trustee shall have
fUlly complied with all the provisions of this Franchise and
remedied all defaults thereunder; and,
B. Such receiver or trustee, within said one hundred
and twenty (120) days, shall have executed an agreement, duly
approved by the Court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be
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bound by each and every provision of this Franchise.
10.03 Abandonment. Grantee may not abandon the System or any
portion thereof without having first given three (3) months writ-
ten notice to the City. Grantee may not abandon the System or
any portion thereof without compensating the City for damages
resulting from the abandonment.
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SECTION 11. REMOVAL, TRANSFER AND PURCHASE.
11.01 Removal After Revocation or Expiration.
A. At the expiration of the term for which the Franchise
is granted, or upon its revocation, as provided for, the City
shall have the right to require Grantee to remove, at
Grantee's expense, a11 or any portion of the System from all
Streets and public property within the City. In so removing
the System, Grantee shall refill and compact at its own
expense, any excavation that shall be made and shall leave
all Streets, public property and private property in as good
a condition as that prevailing prior to Grantee's removal of
the System, and without affecting, altering or disturbing in
any way electric, telephone or utility, cables wir2s or
attachments. The City shall have the right to inspect and
approve the condition of such Streets and public prooerty
after removal. The security fund, insurance, indemnity and
penalty provision of the Franchise shall remain in full force
and effect during the entire term of removal.
B. If, in the sole discretion of the City, Grantee has
failed to commence removal of the System, or such part
thereof as was designated, within thirty (30) days after
written notice of the City's demand for removal is given, or
if Grantee has failed to complete such removal within one (1)
year after written notice of the City's demand for removal is
given, the City shall have the right to exercise one of the
-63-
following options:
1) Declare all right, title and interest to the
System to be in the City with all rights of ownership
including, but not limited to, the right to operate the
System or transfer the System to another for operation
by it; or
2) Declare the System abandoned and cause the
System, or such part thereof as the City shall
designate, to be removed at no cost to the City. The
cost of said removal shall be recoverable from the
security fund, indemnity and penalty section provided
for in the Franchise, or from Grantee directly.
11.02 Sale or Transfer of Franchise.
A. This Franchise or the System hereunder shall not be
sold, assigned or transferred, either in whole or in part, or
leased or sublet in any manner, nor shall title thereto,
either legal or equitable, or any right, interest or property
therein, pass to or vest in any person without full
compliance witn the procedure set forth in this Section.
B. The provisions of this Section shall apply to
the sale or transfer of all or a majority of Grantee's
assets, merger (including any parent and its subsidiary
corporation), consolidation, creation of a subsidiary cor-
poration or sale or transfer of stock in Grantee so as to
create a new controlling interest in the System. The term
_�
"controlling interest" as used herein is not limited to
majority stock ownership, but includes actual working control
in whatever manner exercised.
1. The parties to the sale or transfer shall make
a written request to the City for its approval of a sale
or transfer.
2. The City shall reply in writing within thirty
(30) days of the request and shall indicate approval of
the request or its determination that a public hearing
is necessary due to potential adverse effect on
Grantee's subscribers.
3. If a public hearing is deemed necessary pur-
suant to (2) above, such hearing shall be commenced
within thirty (30) days of such determination and notice
of any such hearing shall be given fourteen (14) days
prior to the hearing by publishing notice thereof. The
notice shall contain the date, time and place of the
hearing and shall briefly state the substance of the
action to be considered by the City.
4. Within thirty (30) days after the closing of
the public hearing, the City shall approve or deny in
writing the sale or transfer request. Such approval
shall not be unreasonably withheld.
5. The parties to the transfer shall, within ten
(10) days of the transfer, file with the City an affida-
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vit advising the City of the actual transfer of
ownership or control certified and sworn to as correct
by the parties.
C. in reviewing a request for sale or transfer pur-
suant to paragraph (A) above, the City may inquire into the
technical, legal and financial qualifications of the prospec-
tive controlling party, and Grantee shall assist the City in
so inquiring. The City may condition said transfer upon such
reasonable terms and conditions as it deems appropriate. In
no event shal2 a transfer or assiqnment of ownership or
control be approved without the transferee becoming a signa-
tor to this Franchise.
D. Notwithstanding anything to the contrary, without
the consent of the City, Grantee may se11, assign, or
transfer the System, either in whole or in part, to an entity
controlled by or under common ownership with Grantee or its
parent; provided, however, that Grantee sha1Z coatinue to be
bound by the terms, conditions and covenants of this
Franchise.
11.03 Purchase By the City Upon Expiration or Revocation.
At the expiration or revocation of this Franchise, the City may,
in a lawful manner end upon the payment of fair market value,
determined on the basis of the System valued as a going concern
exclusive of any value attributable to the Franchise itself,
lawfuily obtain, purchase, condemn, acquire, take over and and
hold the System of Grantee.
��
SECTION 12. MISCELLANEOUS PROVISIONS.
12.01 Discriminatory Practices Prohibited. Grantee shall not
deny service, deny access, or otherwise discriminate against
subscribers, programmers or general citizens on the basis of
race, color, religion, national origin, sex or age. Grantee
shall comply at all times with all other applicable, federal,
state and the City laws, and all executive and administrative
orders relating to non-discrimination.
12.02 Franchise Renewal. This Franchise may be renewed in
accordance with applicable state and federal law.
12.03 Continuity of Service Mandatory. Upon expiration or
the termination of this Franchise, the City may require Grantee
to continue to operate the System for an extended period of time,
not to exceed six (6) months. Grantee shall, as trustee for its
successor in interest, continue to operate the System under the
terms and conditions of this Franchise. In the event Grantee
does not so operate the System, the City may take such steps as
it, in its sole discretion, deems necessary to assure continued
service to subscribers.
12.04 Work Performed by Others.
A. Grantee shall, upon request of the City, provide
the City with the names and addresses of any other entity,
other than Grantee, which performs services pursuant to this
Franchise, provided, however, that all provisions of this
Franchise shall remain the responsibility of Grantee, and
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Grant2e shall be responsible for and hold the City harmless
for any claims or liability arising out of work performed by
persons other than Grantee.
B. All provisions of this Franchise shall apply to any
subcontractor or others performing any work or services pur-
suant to the provisions of this Franchise.
12.05 Compliance with Federal, State and Local Laws.
A. If any federal or state law or regulation shall
require or permit Grantee to perform any service or act or
shall prohibit Grantee from performing any service or act
which may be in conflict with the terms of this Franchise,
then as soon as possible following knowledge thereof, Grantee
shall notify City of the point of conflict believed to exist
between such law or regulation.
B. If any term, condition or provision of this
Franchise or the application thereof to any person or cir-
cumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of
such term, condition or provision to persons or circumstances
other than those as to whom it shall be held invalid or unen-
forceable shall not be affected thereby, and this Franchise
and all the terms, provisions and conditions hereof shall, in
all other respects, continue to be e€fective and to be
complied with. In the event that such law, rule or regula-
tion is subsequently repealed, rescinded, amended or other-
�
wise changed so that the provision which had been held
invalid or modified is no longer in conflict with the law,
rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter
be binding on Grantee and the City.
12.06 Nonenforcement by the City. Grantee shall not be
relieved of its obligation to comply with any of the provisions
of this Franchise by reason of any failure of the City to enforce
prompt compliance.
12.07 Administration of Franchise.
A. The City shall have continuing regulatory jurisdic-
tion and supervision over the System and the Grantee's opera-
tion under the Franchise.
B. Grantee shall construct, operate and maintain the
System subject to the supervision of all the authorities of
the City who have jurisdiction in such matters and in strict
compliance with all laws, ordinances, departmental rules and
regulations affecting the System.
C. The System and all parts thereof shall be subject
to the right of periodic inspection by the City provided that
such inspection shall not interfere with the operation of the
System and such inspections take place during normal business
hours.
12.08 Cable Television Advisory Commission. The City shall
provide for an ongoing cable television advisory commission. The
."C.�'L'
specific nature and composition of the commission shall be deter-
mined by the City.
12.09 Emergency Use. In the case of any emergency or
disaster, Grantee shall, upon request of the City, make available
its System and related facilities to the City for emergency use
during the emergency or disaster period.
12.10 Construction. This Franchise shall be construed and
enforced in accordance with the substantive laws of the State of
Wisconsin and without reference to its principals of conflicts of
law.
12.11 Captions. The paragraph captions and headings in this
Franchise are for convenience and reference purposes only and
shall not affect in any way the meaning or interpretation of this
Franchise.
12.12 Calculation of Time. Where the performance or doing oE
any act, duty, matter, payment or thing is required hereunder and
the period of time or duration for the performance or during
thereof is prescribed and fixed herein, the time shall be com-
puted so as to exclude the first and include the last day of the
prescribed or fixed period or duration of time. When the last
day of the period falls on Saturday, Sunday or a legal holiday,
that day shali be omitted from the computation.
12.13 Unauthorized Connections.
A. It shall be unlawful for any person without the
expressed consent of Grantee to make any connection, exten-
-70-
sion, or division whether physically, accoustically, induc-
tively, electronically or otherwise with or to any segment of
the System for any purpose whatsoever.
B. It shall be unlawful for any person to willfully
interfere, tamper, remove, obstruct or damage any part,
segment or content of the System for any purpose whatsoever.
This paragraph shall in no way impair or infringe upon rights
presently enjoyed by utilities in the City.
C. Any person who shall violate any of the provisions of
this Section shall, upon conviction thereof, be punished by a
forfeiture of not less than $50.00 nor more than $500.00,
together with the costs of prosecution and in default of payment
thereof, by imprisonment in the County Jail for a period not to
exceed sixty (60) days. Each day of violation sha11 constitute
a separate offense.
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r
t
SECTION 13. EFFECTIVE DATE; PUBLICATION; AND TIME OF ACCEPTANCE.
13.01 Publication; Effective Date. This Franchise shall be
signed by the Mayor or acting Mayor and attested by the City
Clerk. The Franchise shall be published in accordance with the
requirements of the City and shall take effect upon March 15,
1987.
13.02 Time of Acceotance
A. Grantee shall accept this Franchise in form and
substance accentable to the City on or before March I5, I967.
In the event acceptance does not take place on or before
March 15, 1987 or at such other time as the City might allow,
this Franchise shall be null and voido
B. The Acceptance shall be executed by at least two (2)
authorized officers of Grantee.
C. Upon acceptance of this Franchise, Grantee shall be
bound by aII the terms and conditions contained herein.
Grantee shall provide all services and offerings specifically
set forth herein to provide cable television services within
the City.
D, With its acceptance, Grantee shall also pay all
costs and expenses incurred by the City in connection with
the renewal process; provided, however, Grantee's obligation
shall not exceed Thirty-three Thousand Dollars and 00/100
(533,000.00)•
E. On or before March 15, 1987, Grantee shall also
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r
Cl
deliver any security deposit, insurance certificates and per-
formance bond required herein. This Franchise sha11 be null
and void if Grantee fails to provide any security deposit,
insurance certificates or performance bond on or before such
date unless the time is extended by the City.
Passed and adopted this
ATTEST:
By
City Clerk of
day of
By
Mayor of
-73-
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, 1987.
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