CCR2000206COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #206-2000
Approval of Cable Television Franchise Agreement
With Digital Access of Wisconsin, Inc.
BE IT RESOLVED That the Common Council of the City of Muskego, upon the
recommendation of the Public Services Committee, does hereby approve the attached
Agreement between the City of Muskego and Digital Access of Wisconsin, Inc.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to
execute the Agreement in the name of the City
DATED THIS - DAY OF 2001
SPONSORED BY:
PUBLIC SERVICES COMMITTEE
Ald. Patrick Patterson
Ald. William Le Doux
Ald. Chuck Wichgers
Deferred: 10/10/00, 10/24/00, 11/14/00,
11/28/00, 12/12/00, 1/9/01
1/23/01, 2/13/01
Table: 2/27/01
This is to certify that this is a true and accurate copy of Resolution #206-2000 which
was adopted by the Common Council of the City of Muskego.
Clerk-Treasurer
1012000jmb
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CITY OF MUSKEG0
CABLE TELEVISION FRANCHISE AGREEMENT
WITH
0 DIGITAL ACCESS OF WISCONSIN, INC.
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TABLE OF CONTENTS
SECTION 1 . GRANT OF FRANCHISE ...................................................................... 3
SECTION 2 . SYSTEM-CONSTRUCTION .................................................................. 3
SECTION 3 . SERVICE TO SCHOOLS AND MUNICIPAL BUILDINGS ..................... 4
SECTION 4 . INTERNET SERVICE TO SCHOOLS ................................................... 4
SECTION 5 . PUBLIC. EDUCATIONAL AND GOVERNMENTAL ACCESS .............. 5
SECTION 6 . CAPITAL CONTRIBUTION ................................................................... 5
SECTION 7 . INSTITUTIONAL NETWORK ................................................................ 5
SECTION 8 . CUSTOMER SERVICE STANDARDS .................................................. 6
SECTION 9 . TRANSFER OF OWNERSHIP AND CONTROL ................................... 6
SECTION IO . PERFORMANCE BOND ...................................................................... 6
SECTION I1 . CONSTRUCTION BOND ..................................................................... 6
SECTION 12 . FRANCHISE FEE ................................................................................ 7
SECTION 13 . SEPARABlLl TY ................................................................................... 8
SECTION 14 . EQUAL TREATMENT ......................................................................... 8
SECTION15 . ENTIRE AGREEMENT ......................................................................... 8
SECTION 16 . NO RECOURSE ................................................................................... 9
SECTION 17 . EFFECTIVE DATElACCEPTANCE BY GRANTEE ............................ 9
SECTION 18 . NOTICE ............................................................................................... 9
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CITY of MUSKEG0
CABLE TELEVISION FRANCHlSE AGREEMENT
This Agreement is made and executed by and between the City of Muskego. Wisconsin
(City) and Digital Access Corporation of Wisconsin, Inc. (Grantee).
Whereas, the City adopted a Cable Television Ordinance on November 9. 1999
(Ordinance), as amended on , 2000 which authorizes the City to issue a Franchise
to operate a Cable System in the City; and
Whereas, the Grantee has requested that the City issue a franchise to it, and
Whereas, the City has held a public hearing, and has ascertained that it is in its best
interests to enter into a franchise agreement;
In consideration of the faithfd performance and strict observance by the Grantee of all the
terms hereinafter set forth or provided for, and also provided for in the Ordinance, pursuant to
which this Agreement is executed, and in consideration of the grant to the Grantee of the
Franchise by the City. the parties agree as follows:
SECTION 1. GRANT OF FRANCHISE
A. The City hereby grants to the Grantee a non-exclusive Franchise to construct,
operate, and maintain a Cable System within the public ways of the City in accordance with the
terms and conditions ofthis Agreement and the Ordinance. The Franchise shall become effective
on the date of acceptance by the Grantee in compliance with this Agreement and with the
Ordinance, for a period of fifieen (1 5) years expiring on
B. The Grantee hereby accepts the Franchise and agrees, to abide by all the
provisions of this Agreement, the Ordinance, and other relevant regulations of the City which are
hereby incorporated by reference as though set forth at length.
C. The Grantee hereby agrees that it has negotiated this Franchise in good faith
and with due knowledge of its rights and responsibilities under relevant local, state, and federal
laws.
SECTION 2. SYSTEM-CONSTRUCTION
A. Within two (2) years from the date of the commencement of construction
of its System for the delivery of cable television service within the City, Grantee must make cable
television service available to every dwelling unit within the initial service area; provided,
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obtaining this Franchise.
however, that Grantee must commence construction within the City within two (2) years after
(1) The Grantee must make cable television service available television
service available to at least twenty percent (2OYo) of the dwelling units
within the initial service area within six (6) months from the date of the
commencement of construction.
(2) The Grantee must make cable television service available to at least
fifty percent (50%) of the dwelling units within the initial service area
within one (1) year from the date of the commencement of
construction.
B. The System shall have a minimum bandwidth capacity of 750 MHz (forward
bandwidth 54 to 750 MHz; reverse bandwidth 5 to 40 MHz) with 55O.h.M~ initially activated and
a minimum of 79 NTSC analog or equivalent downstream video channels initially activated. All
system passives, taps, and connectors shall be capable of passing 1 GHz bandwidth. The City
reserves the right to have an independent engineer or equivalent audit the system to verify
completion.
SECTION 3. SERVICE TO SCHOOLS AND MUNICIPAL BUILDINGS
Grantee shall offer free of charge two (2) outlets of Basic Service and Standard
Tier Service to all public and private (Grade K-12) schools located within two hundred (200) feet
of the System and one (1) outlet to each municipal building located within two hundred (200) feet
of the System. For initial connections to schools, both free outlets must be scheduled and
installed simultaneously. Service will be made free of charge and as promptly as possible to all
such schools and municipal buildings requesting connections. If any internal wiring installation is
requested to serve additional outlets in such schools and municipal buildings, it shall be provided
at Grantee’s cost of materials and labor at the applicable Hourly Service Charge at City ’s request;
provided, however, that such internal wiring will be provided without charge if Grantee is able to
coordinate with other comparable electrical wiring installation in cases of new construction or
substantial rehabilitation of existing schools or municipal buildings. Basic and standard services
will be provided to each outlet in such schools and municipal buildings free of any charge.
SECTION 4. INTERNET SERVICE TO SCHOOLS
As the Grantee’s System is built and service provided, the Grantee shall provide all
schools and libraries within the initial service area with a connection to its on-line high-speed
internet service, including one free cable modem. Such service will be limited to the foregoing,
and no school or library may use this service to create or install a system serving more than one
computer
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0 SECTION 5. PUBLIC. EDUCATIONAL AND GOVERNMENTAL ACCESS
A. The Grantee hereby agrees to provide at least three channels, one each for
public, educational and governmental cable casting pursuant to Ordinance Section 33 (c) (1-3).
Each channel shall be at least 6 Mhz NTSC analog or digital equivalent, be carried on the basic
service, and be available to the entire subscriber system serving the City. Designation of use shall
be by the City.
B. Grantee is required to design and construct its System to interconnect with the
appropriate location and Entity currently providing the cable casting of the public, educational and
government channels.
C. Grantee shall cooperate with any other Entity providing cable television service
within the City so that the public, educational and government channels provided to the City are
carried on the same channel number on each System.
SECTION 6. CAPITAL CONTRIBUTION
A. The Grantee agrees to provide the City with capital support for public,
educational, and governmental access equipment and facilities in the amount of fifteen cents
(Is. 15) per customer per month as set forth below. The City agrees that all amounts paid by the
Grantee as the “Capital Contribution” may be added to the price of basic cable service and
collected from Grantee’s subscribers as “external costs,” as such term is used in 47 C.F.R. 76.922
as it may from time to time be amended. In addition, all amounts paid as the Capital Contribution
may, at the Grantee’s discretion, be separately stated on subscribers’ bills as permitted in 47
C.F.R. 76.985 as it may from time to time be amended.
B. The Capital Contribution will be paid quarterly, simultaneous with the
franchise fee payment by the Grantee to the City upon request after (a) the approval by the City
of the charges, if required pursuant to 47 C.F.R. 76.933; and(b) notice is sent to subscribers of the
adjustment.
SECTION 7. INSTITUTIONAL NETWORK
A. At the City ’s request, the Grantee will design and hrnish to the City an
Institutional Network (“the Network) providing 45 Mbps of bandwidth to the City for use for
its own purposes. The Network shall connect the public buildings in the City set forth on
Schedule A attached hereto and made a part hereof. TheNetwork also shall be connected to the
Networks provided to other municipalities by Grantee so that those municipalities which choose
to do so can share in the advantages of the Network.
B. The Network shall be constructed by the Grantee at no cost to the City
unless access to a particular building is more than 200 feet from the Grantee’s System. There will
be no reoccurring monthly charges for the use of the Network. The City or any of the-users
designated by the City will be responsible for purchase, repair, maintenance, operation and
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replacement of all terminal and other customer premises equipment at each location on the 0 Network. Grantee will provide maintenance support to all users within the City at Grantee’s cost.
C. Grantee will maintain and operate the Network in compliance with FCC
and other operating standards and/or technical specifications.
D. As the Grantee is maintaining and operating the Network on its System and
as the Network is intended as a private network to connect municipally designated public sites,
therefore, the Network shall not be used to compete with any services provided by the Grantee or
without the Grantee’s permission. This provision does not exclude connection to the Internet to
private and public schools.
SECTION 8. CUSTOMER SERVICE STANDARDS
The Grantee shall maintain qualified representatives available via a local, toll-free
telephone access line which will be available for @ Subscribers’ inquiries 24 hours a day and
seven days a week.
SECTION 9. TRANSFER OF OWNERSHIP AND CONTROL
A. In no event shall an assignment of the Franchise be approved without the
e assignee becoming a signatory to this Franchise Agreement.
B. Grantee shall have the right to mortgage or place a lien on the System for
the purpose of obtaining financing for the construction and operation of the System.
C. The ten percent (l0Y0) limitation in Section 28(b) of the Ordinance shall be
modified to be twenty-five percent 25% for the purposes of this Agreement. Further, the
provisions of Section 28(b) of the Ordinance shall not apply to any public offering of either the
common stock of Grantee or of its ultimate parent company.
SECTION 10. PERFORMANCE BOND
I At least six (6) months prior to the commencement of construction of its System , within the City, the Grantee shall deliver the Security, but only in the amount of $25,000, required I I under Section 13 of the Ordinance to secure its performance under this Agreement.
SECTION 11. CONSTRUCTION BOND
A. Sixty (60) days prior to the commencement of construction of the System
within the City. Grantee shall file with the City a construction bond in the amount of Five
Hundred Thousand Dollars ($500,000). This bond shall be maintained until one (1) year after
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construction of the System within the City, Grantee shall not be obligated to provide any other 0 bond except that for the one required in Section 10 hereof,
B. In addition to the construction bond required under Section 1 IA, during
the period of construction of the System within the City, the City shall be the beneficiary of a
construction bond maintained by Grantee in the amount of Five Million Dollars ($5,000,000).
This bond will be shared with no more than nine other municipalities in which the Grantee may be
building its System concurrently and will be released ninety (90) days after completion of
construction within the City. Grantee shall tile a certificate of completion with the City and with
the entity providing the bond within forty-five (45) days after completion of construction of the
System. Unless the City files a written objection prior to end of the aforementioned ninety (90)
day period, the bond shall automatically be released with respect to the City
SECTION 12. FRANCHISE FEE
A. Notwithstanding the definition of Gross Revenues in Section 2 of the
Ordinance, for the purpose of this Agreement, Gross Revenues shall be defined as follows:
All revenue collected directly or indirectly by the Grantee,
from the provision of cable service within the City including
but not limited to, basic subscriber service monthly fees, pay
cable fees, installation and reconnection fees, franchise fees,
leased channel fees, converter rentals, program guides, studio
rental, production equipment rental fees, revenue from advertising
sales and late fees; provided, however, that this shall not include
any taxes on services furnished by the Grantee herein
imposed directly upon any subscriber or user by the state,
local or other governmental unit and collected by the Grantee
on behalf of the governmental unit. Revenues derived
from the provision of high-speed internet access service
shall be considered Gross Revenues unless federal or state
regulations or a court of competent jurisdiction decide
that internet access service is not a “cable service” under
the Communications Act of 1934, as amended.
B. Grantor acknowledges that the Cable System to be constructed by Grantee
will be used for the delivery of cable television services; high-speed Internet access service; and
telephone service. Grantor also acknowledges that Grantee will be delivering these services to
Subscribers on either an ala carte basis or a bundled basis. Grantee agrees that if its services are
purchased by a Subscriber on a bundled basis, Grantee will make a fair allocation to Gross
Revenues from the total revenue received from a Subscriber for the purpose of paying Grantor the
franchise fee required by Section 27 of the Ordinance. Grantee shall be permitted, however, to
offer such discounts, and promotions of its services as are necessary in its sole judgment to hrther a its business.
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SECTION 13. SEPARABILITY
Should any portion of this Agreement be declared invalid by a Court of competent
jurisdiction, such adjudication shall not affect the remaining sections or provisions which shall
remain in full force and effect.
SECTION 14. EQUAL TREATMENT
The Grantor agrees that in the event the Grantor enters into a Franchise, permit,
license, authorization, or other Agreement of any kind with any other person or entity other than
Grantee to enter into the Grantor's streets and public ways for the purpose of constructing or
operating a Cable System or providing Cable Service to any part of the service area, the
provisions thereof shall not be on more favorable or less burdensome terms or conditions, in order
that one operator not be granted an unfair competitive advantage over another, and to provide all
parties equal protection under the law. If the City does grant a Franchise on more favorable or
less burdensome terms or conditions the Grantor shall inform the Grantee in writing of such fact
and provide upon request a copy of such Franchise. This Agreement shall be deemed to be
amended to incorporate the more favorable or less burdensome term or condition, if the Grantee
does not object in writing within ninety (90) days of the Grantor's notice.
In the event that the Grantee accepts (excluding acquisitions) from any
municipality in the Counties ofDodge, Jefferson, Kenosha, Manitowoc, Milwaukee, Ozaukee,
Racine, Sheboygan, Walworth, Washington or Waukesha a cable television regulatory ordinance
or agreement or amendments to a cable television regulatory ordinance or franchise agreement
containing terms, conditions or provisions materially different from those contained in this
Agreement and the Ordinance, or if any other arrangement is at any time made with any
municipality in the counties of Dodge, Jefferson, Kenosha, Manitowoc, Milwaukee, Ozaukee,
Racine, Sheboygan, Walworth, Washington or Waukesha, the Grantee shall inform the City in
writing of such fact and provide upon request a copy of such ordinance or other Agreement to the
City If within ninety (90) days of such notice, the City adopts such other cable television
regulatory ordinance provisions or Franchise Agreement provisions or other arrangement of such
other municipality including any applicable terms and conditions, of such other franchise which
were negotiated in connection with the more favorable requirement, the Grantee agrees it will
accept such ordinance or agreement or other arrangement. The City shall be deemed to have
declined, waived, or otherwise rejected those differing terms, conditions. or provisions if the City
does not act within ninety (90) days of the Grantee's notice.
SECTION1 5. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes any and all previous Agreements between the parties with respect to the
subject matter This Franchise Agreement shall not be changed, amended or supplemented except
by an agreement in writing signed by both parties. In the event of a conflict between this 0 Franchise Agreement and the Ordinance or any other enabling ordinance, including any right-of-
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way ordinance, law or regulation in effect at the time of this Agreement or thereafter, the terms 0 and conditions of this Franchise Agreement shall be controlling. lfthe Franchise Agreement is
silent, the Ordinance and any applicable federal, state or local statutes shall govern. The City may
from time to time, amend the Ordinance pursuant to its lawful police powers; provided, however,
such amendments shall not serve to impair the rights nor increase the obligations of the Grantee
pursuant to this Franchise.
SECTION 16. NO RECOURSE
A. Except for action seeking equitable relief, Grantee shall have no recourse
whatsoever against the City for any loss, cost, expense, or damage arising out of any provisions or
requirements of this Agreement or because of the enforcement thereof by the City , or for the
failure of the City to have authority to grant all or part of the franchise.
B. Grantee expressly acknowledges that in accepting a Franchise it does so relying
on its own investigation and understanding of the power and authority of the City to grant the
Franchise.
C. By accepting a Franchise, Grantee acknowledges that it has not been induced
to enter into the franchise by any understanding or promise or other statement, whether verbal or
written, by or on behalf of the City or by any other third person concerning any term or condition
of the Franchise not expressed herein.
SECTION 17. EFFECTIVE DATE/ACCEPTANCE BY GRANTEE
The Grantee shall have sixty (60) days from the date of adoption of this Franchise
Agreement to accept this Franchise. Such acceptance by Grantee shall be deemed the grant of
this Franchise for all purposes, and the effective date of the Franchise shall be the acceptance date.
The Franchise shall expire fifteen (1 5) years from the acceptance date. In the event acceptance
does not take place within sixty (60) days or such other time as the City might allow, this
Franchise shall be null and void.
SECTION 18. NOTICE
All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), or (c)
when received by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested and charges pre-paid), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a party may
designate by notice to the other parties).
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The notices or responses to the Grantor shall be addressed as follows:
Mayor’s Ofice
City of Muskego
Post Office Box 749
Muskego. WI 53150-0749
Phone No. (262) 679-5675 Fax No. (262) 679-5630
The notices or responses to the Grantee shall be addressed as follows:
C/O Digital Access, Inc.
Digital Access Corporation of Wisconsin, Inc
Three Bala Plaza East, Suite 605
Bala Cynwyd. PA 19004-3481
Fax Number. 610.660.8417
Attn: General Counsel
In Witness Thereof, the parties have signed this Agreement on
, 2000, which shall be the effective date of this Agreement.
e City of Muskego
Signature: David L. De Angelis
Title: Mayor
Date
Attest Date
Digital Access Corporation of Wisconsin, Inc.
By:
Title: Vice President
Samuel W Morris, Jr Date
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