HomeMy WebLinkAbout17902M M M M
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ORDINANCE NO.
17,902
5 AN ORDINANCE TO GRANT A FRANCHISE TO APARTMENT
6 MEDIAWORKS OF ARKANSAS, L.L.C. AS A CABLE SYSTEM
7 PROVIDER WITHIN THE CITY OF LITTLE ROCK, ARKANSAS;
8 PERMITTING USE OF CITY RIGHTS -OF -WAY AND AIRSPACE;
9 AND FOR OTHER PURPOSES
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11 WHEREAS, the City has been requested by MediaWorks of Arkansas, L.L.C.
12 ( "MediaWorks ") to grant it a franchise to use the public streets, rights -of -way and airspace
13 to construct and maintain a Cable System to connect two apartment complexes to its service;
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15 WHEREAS, the City is willing to grant MediaWorks a franchise agreement for the
16 use of the limited portion of public streets and rights -of -way
17 NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS
18 OF THE CITY OF LITTLE ROCK, ARKANSAS:
19 SECTION 1. The City approves and grants a franchise agreement to MediaWorks,
20 pursuant to the terms and conditions in substantially the form of the Franchise Agreement
21 attached as Attachment "A" to this ordinance, to use the public streets and rights -of -way
22 for purposes of constructing and maintaining a Cable System within the corporate limits of
23 the City of Little Rock, Arkansas.
24 SECTION 2. In addition to any other covenants set forth in Attachment "A ",
25 MediaWorks agrees to pay the City annually a franchise fee described in the Agreement, for
26 use of the public streets and right -of -way. These fees are to be calculated in accordance with
27 the terms and conditions set forth in the Franchise Agreement.
28 SECTION 3. The term of this Franchise Agreement shall commence on January 5,
29 1999 and shall extend for a period of twelve (12) years and, provided that MediaWorks
30 complies with all terms and conditions and obtains all necessary permits required by the City
31 necessary for such work.
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1 PASSED: De• ber 15, 1998
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5 ATTEST:
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9 ROBBIE HANCOCK
10 City Clerk
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13 APPROVED AS TO FORM:
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17 THOMAS M. CARPENTE
18 City Attorney
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APPROVED:
JI AILEV
Mayor
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FRANCHISE • REEMENT TO USE PUBLIC RIGHT-OF-WAY 5
BETWEEN THE CITY OF LITTLE ROCK, ARKANSAS
AND MEDIAWORKS OF ARKANSAS, L.L.C.
THIS AGREEMENT executed on the date written below (the "execution date "), by and
between the City of Little Rock, Arkansas (hereinafter referred to as the "Franchising Authority"),
and MediaWorks of Arkansas, L.L.C., a limited liability corporation duly organized under the laws
of the state of Delaware and authorized to do business under the laws of the state of Arkansas,
whose principal place of business is located at 1095 Old Roswell Road, Suite C -1, Roswell,
Georgia 30076 (hereinafter referred to as the "Company "). For the purposes of this Agreement
unless otherwise defined in this Agreement or unless the context clearly indicates that another
meaning is intended, the capitalized terms, phrases, words, and their derivations used in this
Agreement shall have the meaning set for in Appendix A.
WITNESSETH:
WHEREAS, MediaWorks of Arkansas, L.L.C., a Delaware limited liability company,
desires to use the Streets of the City to provide the Shadow Lake Apartments and Bowman Heights
Apartments, located within the Franchise Areas shown on Appendix B attached hereto, with Cable
Service: and
WHEREAS, the Board of Directors of the Franchising Authority determines that the
granting of a franchise to the Company under the terms and conditions stated herein is appropriate;
and
WHEREAS, the Franchising Authority intends to exercise the full scope of its municipal
powers, including both its police power and contracting authority, to promote the public interest
and to protect the health, safety and welfare of the citizens of the City of Little Rock, Arkansas.
NOW, THEREFORE, in considerations of the foregoing recitals which recitals are hereby
made a part of this Agreement, the mutual covenants and agreements contained herein and other
valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties
covenant and agree as follows.
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SECTION I
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GRANT OF AUTHORITY
1.1 Grant of Franchise. The Company is hereby granted a franchise ( the "Franchise ")
to occupy and use the Streets within the Franchise Areas in order to construct, operate, maintain,
upgrade, repair and remove the System and provide Services through the System subject to the
terms and conditions of this Agreement. Nothing herein shall be interpreted to authorize the
Company to provide Noncable Services through the Cable System. The Franchise only authorizes
the Company to provide cable service and does not authorize any other service. The Company
shall obtain a separate franchise or other authorization requirement by the Franchising Authority
to provide Noncable Services in the City through the Cable System or otherwise to the extent such
a franchise or authorization is permitted pursuant to applicable federal, state or local law,
regulation or ordinance.
1.2. Term of Franchise. The Franchise shall commence as of January 5, 1999, (the
"Effective Date ") and shall expire on January 4, 2011, unless the Franchise is renewed or extended
as permitted herein or unless such expiration date is sooner terminated pursuant to this Agreement
by (i) the revocation of the Franchise as provided in section 3.4, or (ii) an abandonment of the
Franchise by Company. Upon termination of the Franchise all rights of the Company in the
Franchise shall cease, and the rights of the Franchising Authority and the Company to the System
or any part thereof shall be determined as provided in section 6.
1.3. Renewal. Subject to Section 626 of the Cable Act (46 U.S.C. § 546) the
Franchising Authority reserves the right to grant or deny renewal of the Franchise.
1.4. Nonexclusive Franchise, The Franchise is nonexclusive. Nothing in this Agreement
shall affect the right of the Franchising Authority to grant to any Person, or itself, a franchise,
consent, or right to occupy and use the Streets, or any part thereof, for the construction, operation,
or maintenance of all or any part of a Cable System within the Franchise Areas or for any other
purpose.
1.5. Reservation of Authority. Nothing in this Agreement shall (i) abrogate the right of
the Franchising Authority to perform any public works or public improvements of any description,
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(ii) be construed as a waiver of any codes or ordinances of the Franchising Authority or of the
Franchising Authority's right to require the Company or any Person utilizing the System to secure
the appropriate permits and authorizations for such use, or (iii) be construed as a waiver or release
of the rights of the Franchising Authority in and to the Streets. In the event that all or part of the
Streets within the Franchise Areas are eliminated, discontinued or closed, the Franchise shall cease
with respect to such Streets upon the effective date of the final action of the Franchising Authority
with respect thereto.
1.6. Expansion of Cable Service - New Franchise Agreement. The Franchising
Authority previously entered into a franchise with Comcast Cablevision of Little Rock, Inc.
( "Comcast ") (the "Comcast Franchise "), for provision of Cable Service by Comcast within the
City. The Comcast Franchise is on file with the Little Rock City Clerk. If at any time in the future
the Company expands its Cable Service within the City to the point that it is deemed to provide
effective competition with Comcast or with any other cable provider, the Company shall enter into
a new franchise agreement with the Franchising Authority consistent with the terms and conditions
included in the Comcast Franchise which is attached hereto as Appendix "C ".
SECTION 2
THE SYSTEM
2.1. The System and Its Operations. The Company shall construct, operate, maintain,
and upgrade the System as provided in this Agreement. Without limiting the foregoing, the System
shall have the characteristics, shall meet the technical performance and testing requirements and
shall be constructed pursuant to the terms, schedule and sequence set forth herein.
2.2. Construction Requirements
2.2.1 General. The Company shall comply with each of the terms set forth in this
Section 2.2 in connection with all work involved in the construction, operation, maintenance,
repair, upgrade, and removal of the System, in addition to any other requirements or procedures
specified by the Franchising Authority that are related to the use of the Streets and are generally
applicable to other Persons using the Streets.
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2.2.2. Qualijy. All work involved in the construction, operation, maintenance,
repair, upgrade, and removal of the System shall be performed in a safe, thorough and reliable
manner using materials of good and durable quality. If, at any time, it is determined by the
Franchising Authority or any other agency or authority of competent jurisdiction that any part of
the System, including, without limitation, any means used to distribute signals over or within the
System, is harmful to the health or safety of any Person, then the Company shall, at its own cost
and expense, promptly correct all such conditions.
2.2.3. Conditions of Street occupancy. All transmission and distribution structures,
poles, lines and equipment installed or erected by the Company pursuant to the terms hereof shall
be so located as to cause a minimum of interference with the proper use of the Streets and with the
rights and reasonable convenience of abutting property owners.
2.3. Relocation at Request of Franchising Authority. Upon its receipt of reasonable
advance notice, not to be less than five (5) business days, the Company shall, at its own expense,
protect, support, temporarily disconnect, relocate within the Streets, or remove from the Streets,
any property of the Company when lawfully required by Franchising Authority by reason of traffic
conditions, public safety, street abandonment, street construction, change or establishment of street
grades, installation of sewers, drains, gas or water pipes, or any other type of structure or
improvements caused by the Franchising Authority; but the Company shall in all events have the
right of abandonment of its property.
2.4 No Liability to Company or Affiliated Persons. Neither the Franchising Authority
nor its officers, employees, agents, attorneys, consultants or independent contractors shall have
any liability to the Company or any Affiliated Person for any liability as a result of or in
connection with the protection, breaking through, movement, removal, alteration or relocation of
any part of the System by the Company pursuant to the request of the Franchising Authority or in
connection with any emergency, public work, public improvement, alteration of any municipal
structure, and any change in the grade or line of any Street, or the elimination, discontinuation or
closing of any Street, as provided in this Agreement.
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2.5 Interconnect. The Company shall construct, operate, maintain and upgrade the
System such that, in the event the System is connected with any other Cable System, it is capable
of transmitting and receiving signals to and from any other Cable System in the state of Arkansas.
SECTION 3
COMPENSATION AND OTHER PAYMENTS
3.1. Compensation to the Franchising Authority. As compensation for the Franchise,
the Company shall pay, or cause to be paid, to the Franchising Authority the amounts set forth in
this section 3.
3.1.1. Franchise Fees - Amount. As compensation for the Franchise, the Company
shall pay to the Franchising Authority an amount equal to five percent (5 %) of Gross Revenue
derived from the operation of the System to provide Services. Except for the payments expressly
required by section 3.1, none of the payments or contributions made by, or the Services,
equipment, facilities, support, resources, or other activities to be provided or performed by the
Company at the direction of the Franchising Authority or otherwise pursuant to this Agreement,
or otherwise in connection with the construction, operation maintenance or upgrade of the System,
are franchise fees chargeable against the compensation payments to be paid to the Franchising
Authority by the Company pursuant to section 3. 1, nor shall any of them be treated as part of the
compensation to be paid to the Franchising Authority pursuant to section 3.1. If the foregoing
sentence for any reason is held invalid, the compensation payments due from the Company to the
Franchising Authority pursuant to section 3.1 shall take precedence over all other payments,
contributions, Services, equipment, facilities, support, resources, or other activities to be paid or
supplied by the Company pursuant to this Agreement.
3.1.2. Franchise Fees - Payment. All such payments of franchise fees shall be
made on a quarterly basis and shall be remitted simultaneously with the submission of the
Company's quarterly report required pursuant to section 3.1.3.
3.1.3. Company To Submit Franchise Fee Report. The Company shall submit to
the Franchising Authority a report, in such form and containing such detail as the Franchising
Authority deems appropriate in order to determine the Company's compliance with this section,
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not later than thirty (30) d• after the last day of each March, June, September, and December
throughout the term of this Agreement setting forth the Gross Revenue for the quarter ending on
said last day.
3.1.4. Franchise Fee Payments Subject to Audit- Remedy for Underpayment.
Except as otherwise provided by law, no acceptance of any franchise fee payment by the
Franchising Authority shall be construed as an accord and satisfaction that the amount paid is in
fact the correct amount or a release of any claim that the Franchising Authority may have for
farther or additional sums payable under this Agreement, and all amounts paid shall be subject to
audit and recomputation by the Franchising Authority for a three -year period from the date of
payment after which period such payment shall be considered final.
If, as a result of such audit or any other review, the Franchising Authority determines that
the Company has underpaid its fees in any twelve (12) month period by ten percent (10 %) or more,
then, except in the case of a good faith dispute by the Company, the Company shall make full
payment of the relevant obligation and reimburse the Franchising Authority for all of the
reasonable costs associated with the audit or review.
3.1.5. Co=my To Deduct and Pgy Fee on Amounts Collected for Third Parties.
If the Company collects from Subscribers any amounts to be paid to any Person for the provision
of Services on the System that fall within the definition of Gross Revenue, the Company shall
deduct the same percentage from such amounts as to the then applicable franchise fee percentage
pursuant to section 3.1.1. and include such deducted amounts in its payment to the Franchising
Authority pursuant to this section and include such payments in its report pursuant to section 3.1.3.
3.1.6. Company To Require Third Parties To Pay on Amounts Collected from
Subscribers. If any Person other than the Company directly collects such amounts from
Subscribers that would constitute Gross Revenue if received directly by the Company, the
Company shall include in its contract, or other arrangement with such Person, a provision (which
must be approved in advance by the Franchising Authority) which provides that such Person shall
remit to the Franchising Authority on a quarterly basis an amount equal to the same percentage
of such amounts collected from Subscribers as the then - applicable franchise fee percentage
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pursuant to section 3.1 .1, and that the Franchising Authority may enforce such provision directly 665
against such Person.
3.2 ftoments Not To Be Set Off Against Taxes or Vice Versa. The parties agree that
the compensation and other payments to be made pursuant to this section 3 and any other provision
of this Agreement are not a tax and are not in the nature of tax and are in addition to any and all
taxes of general applicability or other fees or charges (including any fees or charges which may
be imposed on the Company for the use of poles, conduits or similar facilities that may be owned
or controlled by the Franchising Authority) which the Company or any Affiliated Person shall be
required to pay to the Franchising Authority or to any other governmental authority, and neither
the Company nor any Affiliated Person shall have or make any claim for any deduction or other
credit of all or any part of the amount of the compensation or other payments to be made pursuant
to this Agreement, on the one hand, from or against any Franchising Authority or other
governmental taxes of general applicability or other fees or charges with the Company or any
Affiliated Person is required to pay to the Franchising Authority or other governmental agency on
the other hand, or vice versa.
3.3. Interest on Late Payments. If any payment required by this Agreement is not
actually received by the Franchising Authority on or before the applicable date fixed in this
Agreement, the Company shall pay interest thereon, from the due date of the payment, at a rate
equal to three (3) percent interest per annum above the Federal Reserve discount rate at the time
of this Agreement, or as otherwise provided by Article 19, Section 13 of the state of Arkansas
Constitution.
3.4. Continuin2Obligation. In the event the Company continues to operate all or any
part of the System after the term of this Agreement, then the provisions of this Agreement shall
apply and the Company shall continue to comply with all applicable provisions of this Agreement,
including, without limitation, all compensation and other payment provisions of this Agreement,
throughout the period of such continued operation, provided that any such continued operation
shall in no way be construed as a renewal or other extension of this Agreement or the Franchise,
except to the extent an extension is for purpose of compliance with Section 626 of the Cable Act.
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3.5. More Favorable Franchise Terms. If the Franchising Authority grants to any third
party one or more franchises (hereinafter called "Additional Cable Franchise ") for the purpose of
constructing or operating a Cable System or providing Cable Service to any part of the Franchise
Areas, which contains terms more favorable to such third party in any regard, then the Company
may request that the Franchising Authority make a determination consistent with the provision of
section 1.6 of the Comcast Franchise.
In the event the Company agrees to pay a franchise fee to any City in the state of Arkansas
at a rate higher than provided for in this Agreement, the Company shall disclose such fact to the
Franchising Authority and the Franchising Authority may require such higher payment be paid to
it under this Franchise upon ninety (90) days written notice to Company after disclosure or
discovery of the higher fee payment.
SECTION 4
OVERSIGHT AND REGULATION
4.1. Franchising Authority's Right of Oversight. The Franchising Authority shall have
the right to oversee, regulate, and periodically inspect the construction, operation, maintenance and
upgrade of the System, and all parties thereof, in accordance with the provisions of this Agreement
and applicable law. Consistent with applicable law, the Franchising Authority may adopt or issue
such rules, regulations, orders, or other directives governing the Company or the System as it shall
find necessary or appropriate in the exercise of the Franchising Authority's police power, and such
other orders as the Franchising Authority shall find necessary or appropriate pursuant to and in
furtherance of the terms of this Agreement, and the Company expressly agrees to comply with all
such lawful rules, regulations, orders or other directives, provided that such rules, regulations,
orders, or other directives are not materially in conflict with the Company's rights set forth herein.
Nothing herein shall be interpreted to grant the Franchising Authority any right to adopt any rules,
regulations, orders or other directives it does not otherwise have the right to adopt under applicable
statute, rule, regulation or ordinance.
4.2. Franchising Authority's Rights of Inspection and Audit Right of Inspection-
General. The Franchising Authority or its designated representatives, shall have the right to
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inspector examine during normal hours of operation and upon ten (10) business days prior written
notice to the Company, all documents, records and other information which pertain to the S 6
Company or any Affiliated Person with respect to the System, and which enable the Franchising
Authority to determine the Company's compliance with this Agreement or to otherwise perform
its regulatory responsibilities under this Agreement. All such documents, record, and other
information shall be made available within the Franchise Areas in order to facilitate said
inspection, examination, or audit, as provided in this section 4.2. Further, during normal hours of
operation and upon five (5) business days prior written notice to the Company, the Franchise
Authority or its designated representatives may inspect and examine any other aspect of the
System, including facilities and equipment thereof. The Company shall have the right to be present
during any inspection pursuant to this section.
4.3. Company to Provide Copies to City Manager and Citv Attorney. The Company
shall provide a copy of all documents, records, rate filings or other information required to be
submitted to the Franchising Authority pursuant to this Agreement or applicable law or regulation
to the City Manager and to the City Attorney at the addresses and in the manner set forth in section
7.5.
SECTION 5
RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
5.1 Transfer of Franchise Agreement or System. Neither the Franchise, nor any rights
or obligations of the Company in the System or pursuant to this Agreement, or any part of the
capacity of the System, shall be encumbered, assigned, sold, transferred, pledged, leased, sublet,
or mortgaged in any manner, in whole or in part, to any person, nor shall title therein, either legal
or equitable, or any right or interest therein, pass to or vest in any Person, either by act of the
Company or any Affiliated Person, by act of any Person holding control of or any interest in the
Company or in the System or the Franchise, by operation of law, or otherwise, without the prior
written consent of the Franchising Authority, provided that the Franchising Authority shall
consider any such action in accordance with applicable law and its usual procedural rules.
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5.2. Consent No•Waiver. The grant or waiver of any o• or more such consents shall
not render unnecessary any subsequent consent, nor shall the grant of any such consent constitute
a waiver of any other rights of the Franchising Authority.
SECTION 6
SPECIFIC RIGHTS AND REMEDIES
61. Nonexclusive. The Company agrees that the Franchising Authority shall have the
specific rights and remedies set forth in this section 6. These rights and remedies are in addition
to and cumulative with any and all other rights or remedies, existing or implied, now or hereafter
available to the Franchising Authority at law or in equity in order to enforce the provisions of this
Agreement, except that nothing herein shall be interpreted to permit the Franchising Authority to
exercise such rights and remedies in a manner that permits duplicate recovery from or payments
by the Company. Such rights and remedies shall not be exclusive, but each and every right and
remedy specifically provided or otherwise existing or given may be exercised from time to time
and as often as in such order as may be deemed expedient by the Franchising Authority. The
exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise
at the same time or thereafter any other right or remedy nor shall nay such delay or omission be
construed to be a waiver of or acquiescence to any default. The exercise of any such right or
remedy by the Franchising Authority shall not release the Company from its obligations or any
liability under this Agreement, except as expressly provided for in this Agreement or as necessary
to avoid duplicate recovery from or payments by the Company.
6.2 Events of Default. The Company agrees that an Event of Default shall include, but
shall not be limited to, any of the following acts or failures to act by the Company or any Affiliated
Person:
(i) any substantial failure to comply with any material provisions of this Agreement
which is not cured within thirty (30) days after notice pursuant to this section;
(ii) the condemnation by a public authority other than the Franchising Authority,
or sale or dedication under threat or in lieu of condemnation, of all or a substantial part of the
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System, the effect of which would materially frustrate or impede the ability of the Company to
carry out its obligations, and the purpose of this Agreement; or
(iii) in the event that: (a) the Company shall suspend or discontinue its business,
shall make an assignment for the benefit of creditors, shall fail to pay its debts generally as they
become due, shall become insolvent (however such insolvency may be evidenced), shall be
adjudicated insolvent, or shall petition or apply to any tribunal for, or consent to, the appointment
of, or taking possession by, a receiver, custodian, liquidator, trustee or similar official pursuant to
federal, state, or local laws, ordinances or regulations of or for it any substantial part of its property
or assets, including all or any part of the System; (b) a writ or warrant of attachment, execution,
distraint, levy possession or any similar process shall be issued by any tribunal against all or any
material part of the Company's property or assets which is not discharged by the Company within
ninety (90) days; (c) any creditor of the Company petitions or applies to any tribunal for the
appointment of, or taking possession by, trustee, receiver, custodian, liquidator or similar official
for the Company or of any substantial parts of the assets of the Company under the laws of any
jurisdiction, whether now or hereinafter in effect, and an order, judgment or decree is entered
appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings which is not rescinded within 120 days; or (d) any order,
judgment or decree is entered in any proceedings against the Company decreeing the voluntary or
involuntary dissolution of the Company.
(iv) failure to provide notice to the Franchising Authority of additional areas of
operation or Cable Service as designated in the definition of Franchised Area.
6.3. Termination. In the event of any termination of this Agreement, the Franchising
Authority may:
(i) direct the Company to operate the System on behalf of the Franchising Authority
pursuant to the provisions of this Agreement, for a period of up to ninety (90) days, during which
time the Company shall be entitled to the revenues from the System;
(ii) if the Company does not agree to operate the System for the period set forth in
this section, authorize any other Person to operate the System on behalf of the Franchising
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Authority or otherwise upon such terms and conditions as are equitable to the Franchising
Authority and the Company; or S
(iii) order the Company to cease all construction and operational activities in a
prompt and workmanlike manner.
6.4. Franchising_Authorily's Right to Order Removal or To Acquire or Effect a Transfer
of the System. In addition to its rights under section 6.3, upon any termination, the Board of
Directors, may, in its sole discretion, but shall not be obligated to, direct the Company to remove,
at the Company's sole cost and expense, all or any portion of the System from all Streets and other
public property within the Franchise Areas, subject to the following:
(i) this provision shall not apply to buried cable which the Franchising Authority
determines should not be removed:
(ii) in removing the System, or any part thereof, the Company shall refill and
compact, at its own expense, any excavation that shall be made by it and shall leave all Streets and
other property in as good condition as that prevailing prior to the Company's removal of the
System and without leaving, altering or disturbing in any way any electric, telephone or other
utility cables, wires or attachments (except to the extent such leaving, altering, or disturbing is
permitted by an agreement between the Company and the applicable utility;
(iii) the Franchising Authority shall have the right to inspect and approve the
condition of such Streets and public property after removal;
(iv) the liability insurance and indemnity provisions of this Agreement shall remain
in full force and effect during the entire period of removal and associated repair of all Streets and
other public property; or
(v) removal shall be commenced within thirty (30) days of the removal order by the
Franchising Authority and shall be completed within ninety (90) days thereafter including all
associated repair of all Streets and other public property;
SECTION 7
MISCELLANEOUS
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7.1 Police Powers. The Franchising Authority expressly reserves the right to exercise 671
the full scope of its municipal powers, including both is police power and contracting authority,
to promote the public interest and to protect the health, safety, and welfare of the citizens of the
City of Little Rock.
7.2. Controlline Authorities. This Agreement is made with the understanding that its
provisions are controlled by the Cable Act, other federal laws, state laws, and all local laws,
ordinances, and regulations. Where this Agreement conflicts with a provision of applicable federal,
state, or local laws, ordinance, or regulation, this Agreement shall prevail to the extent permitted
by law.
7.3. Appendices. The Appendices to this Agreement attached hereto, and all portions
thereof and exhibits thereto, are, except as otherwise specified in such Appendices or unless
otherwise set forth herein, incorporated herein by reference and expressly made a part of this
Agreement.
7.4. Entire Agreement. This Agreement, including all Appendices, embodies the entire
understanding and agreement of the Franchising Authority and the Company with respect to the
subject matter hereof and merges and supersedes all prior representations, agreements, and
understandings, whether oral or written, between the Franchising Authority and the Company with
respect to the subject matter hereof, including, without limitation, all oral statements or
representations by any official, employee, agent, attorney, consultant or independent contractor
of the Franchising Authority or the Company.
7.5. Notices. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, designations, or other direction or
communication hereunder by any part to another shall be in writing and shall be sufficiently given
and served upon the other party, immediately if delivered personally or by telex or telecopy
(provided with respect to telex and telecopy that such transmissions are received on a business day
during normal business hours), the first business day after dispatch if sent by express mail, and the
second business day after dispatch if sent by first class mail, registered or certified, return receipt
requested, postage prepaid, and addressed as follows:
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THE FRANCHISING AUTHORITY:
City Manager
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
with a copy to:
City Attorney
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
THE COMPANY:
Bryan J. Rader, President
MediaWorks of Arkansas, L.L.C.
1095 Old Roswell Road, Suite C -1
Roswell, Georgia 30076
with a copy to:
David B. Sholem
Meyer, Cape], Hirschfeld, Muncy, Jahn &
Aldeen,P.C.
306 West Church Street
Champaign, IL 61820
7.6. Laws Licenses and Permits.
87-2
7.6.1. Obtaining and Filing Licenses and Permits. The Company has duly secured,
or will secure, all necessary and material permits and licenses in connection with the design,
construction, operation, maintenance, upgrade or repair of the System, or any part thereof, from,
and has filed, or will file, all required and material registrations, applications, reports and other
documents with the FCC and if applicable, public utilities commissions, telephone companies and
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other entities exercising jurisdiction over the provision of cable services or the construction of
delivery systems therefor. Further, no event has occurred which could (i) result in the revocation
or termination of any material license or authorization, or (ii) materially and adversely affect any
rights of the Company. No event has occurred which permits, or after notice or lapse of time or
both would permit, revocation or termination of any such license or which materially and
adversely affects, or so far as the Company can now foresee, will materially and adversely affect
the System or any part thereof. The Company has obtained, or will obtain, all leases, easements
and equipment rental or other agreements necessary for the maintenance and operation of the
System as now conducted.
7.6.2. Compliance with Laws Licenses and Permits. The Company shall comply
with: (i) all applicable laws, rules, regulations, orders, writs, decrees and judgments (including
those of the FCC) of all state, federal and other authorities of competent jurisdiction; and (ii) all
local laws, rules, regulations, orders or other directives of the Franchising Authority issued
pursuant to this Agreement.
7.7 Insurance. Throughout the term of this Agreement, the Company shall, at its own
cost and expense, maintain a liability insurance policy or policies, in a form acceptable to the
Franchising Authority, together with evidence acceptable to the Franchising Authority
demonstrating that the premiums for said policy or policies have been paid. Such policy or policies
shall be issued by companies duly licensed to do business in the State of Arkansas and acceptable
to the Franchising Authority. Such companies must carry a rating by Best of not less than "A ".
Such policy or policies shall insure (i) the Company and (ii) the Franchise Authority and its
officers, boards, commissions, councils, elected officials, agents and employees (through
appropriate and endorsements if necessary) against each and every form of liability of the
Company referred to in this Agreement in the minimum combined amount of Three Million
Dollars ($3,000,000) for bodily injury and property damage. The foregoing minimum limitation
shall not prohibit the Company from obtaining a liability insurance policy or policies in excess of
such limitations, provided that the Franchising Authority, its officers, boards, commissions,
15
councils, elected officials, agents, and employees shall be named as additional insured to the full
extent of any limitation contained in any such policy or policies obtained by the Company.
7.8. Severability. If any section, sentence, clause, phrase, or other portion of this
Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity
of the remaining portions hereof, which other portions shall continue in full force and effect.
7.9. No Aeencv. The Company shall conduct the work to be performed pursuant to this
Agreement as an independent contractor and not as an agent of the Franchising Authority.
7.10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted transferees and assigns.
7.11. Governing Law. This Agreement shall be deemed to be executed in the City of
Little Rock, State of Arkansas, and shall be governed in all respects, including validity,
interpretation and effect, and construed in accordance with, the laws of the State of Arkansas, as
applicable to contracts entered into and to be performed entirely within the State.
7.12. Liability and Indemnity
7.12:1. Comoanv. The Company shall be responsible for any liability,
including, without limitation, any liability of the Franchising Authority or any Person, including,
without limitation, any officer, employee, agent, attorney, consultant and independent contractor
of the Franchising Authority, arising out of or in connection with the construction, operation,
maintenance, repair, upgrade or removal of the System, any activity or function associated with
the production or distribution of any Service over the System, except any Service provided by the
Franchising Authority, or the distribution of any Service over the System, except any Service
provided by the Franchising Authority. The Company shall, at its own cost and expense, replace,
repair, or restore any damaged property to its prior condition and shall pay appropriate
compensation in the event of any injury to or death of any individual Person occasioned by any
act or failure to act of the Company, any Affiliated Person, or any officer, employee, agent or
16
• •.
subcontractor thereof, in connection with the construction, operation, maintenance, repair, upgrade 6745 1
or removal of the System.
7.12.2. Franchising Authority. The Franchising Authority, its officers,
employees, agents, attorneys, consultants and independent contractors shall not be liable for any
liability of the Company, any Affiliated Person or any other Person, arising out of or in connection
with the construction, operation, maintenance, repair, upgrade or removal of the System, any
activity or function associated with the production or distribution of any Service over the System,
or the distribution of any Service over the System.
7.13. Indemnification of the Franchising Authority. The Company and each Affiliated
Person shall: (i) defend, indemnify, and hold harmless the Franchising Authority, its officers,
employees, agents, attorneys, consultants and independent contractors from and against all
liabilities, special, incidental, consequential, punitive, and all other damage, cost, and expense
(including reasonable attorney's fees) arising out of or in connection with: (a) the construction,
operation, maintenance, repair, upgrade or removal of, or any other action or event with respect
to, the System or any activity or function associated with the production or distribution of any
Service over the System, except any Service provided by the Franchising Authority; or (b) the
distribution of any Service over the System, except any Service provided by the Franchising
Authority; and (ii) cooperate with the Franchising Authority, by providing such nonfinancial
assistance as may be requested by the Franchising Authority and any financial assistance on which
the Company and Franchising Authority specifically agree, in connection with any claim arising
out of or in connection with the negotiation or award of this Agreement and Franchise.
7.14. Modification. Except as otherwise provided in this Agreement, any Appendix to
this Agreement, or applicable law, no provision of this Agreement nor any Appendix to this
Agreement, shall be amended or otherwise modified, in whole or in part, except by an instrument,
in writing, duly executed by the Franchising Authority and the Company, which amendment shall
be authorized on behalf of the Franchising Authority through the adoption of an appropriate
resolution or order by the Franchising Authority, as required by applicable law.
17
THE COMPANY FRANCHISINIPAUTHORITY r , G7G
By:
BRYAN J.RADER
Title: President
MediaWorks of Arkansas, L.L.C.
Date: Date:
By:
JIM DAILEY
Title: Mayor
City of Little Rock, Arkansas
• APPENDIX A 677
DEFINED TERMS
For purposes of the Agreement to which this Appendix A is appended the following terms, phrases,
words, and their derivations shall have the meanings set forth herein, unless the context clearly
indicates that another meaning is intended.
Affiliated Person - means each Person who falls into one or more of the following
categories: (1) each Person having, directly or indirectly, a controlling interest in the Company;
(2) each Person in which the Company has a controlling interest; (3) each officer, director general
partner, limited partner holding an interest of fifteen percent (15 %) or more, joint venture or joint
venture partner, of the Company; and (4) each Person, directly or indirectly, controlling, controlled
by, or under common Control with the Company. Affiliated Person does not mean the Franchising
Authority or any creditor of the Company not otherwise an Affiliated Person by reason of owning
a controlling interest or being owned by or under common control with the Company.
Basic Service - means: (i) "basic cable service" as defined in the Cable Act; and (ii) any
equipment or installation used in connection with Basic Service.
Cable Act - means Title VI of the Communications Act of 1934,47 U.S.C. § 521, et. seq.,
and any amendments or installation used in connection with Basic Service.
Cable Service or Service - means "cable service" as defined in the Cable Act including
any Basic Service or any other video or programming service, or the provision of any equipment
and any installation of equipment or facilities and monthly used therefor whether originated by the
Company or any other Person, which is offered to any Person in conjunction with, or distributed
over, the System, except that the term does not include Noncable Service.
FCC - means the Federal Communications Commission, its designee, or any successor
thereto.
Franchise Area - means the area designated on Appendix B attached to this Agreement,
and such other areas within the City of Little Rock as Company or an Affiliated Person shall
operate or provide Cable Service during the term of this Franchise upon notice to the Franchising
Authority. The parties shall use their best efforts to supplement Appendix B from time to time to
designate such addtional areas.
Franchising Authority - means the City of Little Rock, or, as appropriate in the case of
specific provisions of this Agreement, the Board of Directors, or any board, bureau, authority,
agency, commission, or department of the City of Little Rock, Arkansas with jurisdiction over any
matter(s) governed by this agreement, or any officer, official, employee in charge of any such
t• � t• � � t• � t• t• � t• t• t• �
board, bureau, authority, agency, commission or department, or any designee of any of the 678
foregoing, or any successor thereto.
Gross Revenue - means all revenue, as determined in accordance with generally accepted
accounting principals, which is derived, directly, or indirectly, by the Company, by each Affiliated
Person, or any other Person, from or in connection with the System from the provision of Cable
Service, including, without limitation, all advertising revenue (including, without limitation, all
advertising commissions paid to or credited to any Affiliated Persons) and the value of any free
services provided by the Company. Gross Revenue shall also specifically, without limitation,
include: (i) the fair market value of any nonmonetary (i.e., barter) transactions between the
Company and any person, other than an Affiliated Person, but not less than the customary prices
paid in connection with equivalent transactions (ii) the fair market value of any nonmonetary (i.e.,
barter) transactions between the Company and any Affiliated Persons but not less than the
customary prices paid in connection with equivalent transactions conducted with Person who are
not Affiliated Person (iii) revenue which represents or can be attributed to a Subscriber fee or a
payment for the use of the System for the sale of merchandise through my Service distributed over
the System; and (iv) any revenue received by the Company or by any Affiliated Person, as
reasonably determined from time to time by the Franchising Authority, through any means which
is intended to have the effect of avoiding the payment of compensation based on Gross Revenues;
and (v) to the extent permitted under applicable law, the amount set forth as a separate line item
on a Subscriber's bill as a franchise fee.
Gross Revenue shall not include (i) the revenue of any Person, including, without
limitation, a supplier of programming to the Company, to the extent that said revenue is also
included in Gross Revenue of the Company; (ii) taxes imposed by law on Subscribers which the
Company is obligated to collect (it being acknowledged that franchise fees under this Agreement
are not considered taxes); (iii) amounts collected by the Company from Subscribers on behalf of
leased or access channel programmers, other than Affiliated Persons, to the extent that all the
amounts collected and paid to the revenue of any Affiliated Person which represents standards and
reasonable amounts paid by the Company to said Affiliated Person for ordinary and necessary
business expenses of the Company, including, without limitation, professional services fees and
insurance or bond premiums; (v) to the extent consistent with generally accepted accounting
principles, consistently applied, actual bad debt write -offs; and (vi) investment income.
Noncable Service - means any service, including without limitation, telecommunications
service, other than Cable Service.
Person - means any natural person or any association, firm, partnership, joint venture,
corporation, or other legally recognized entity, whether for - profit or not - for - profit, but shall not
mean the Franchising Authority.
Streets - means the surface of, and the space above and below, any and all streets, avenues,
highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways,
docks, bullheads, wharves,• , public grounds and public places owaters within and belonging 679
to the Franchising Authority and any other property within the Franchise Area to the extent to
which there exist public easements or public rights of way.
Subscriber - means any Person lawfully receiving any Service provided by the Company
by means of or in connection with the System.
System - means the Cable System which is to be constructed, operation, maintained and
upgraded, as necessary, by the Company in the Franchise Area pursuant to this Agreement,
including, without limitation, all real property, all tangible and intangible personal property,
buildings, officers, furniture, Subscribers lists, cables, amplifiers and all other electronic devices
used in connection therewith and all rights, contracts and understandings with regard to any matter
related thereto, except that such term does not include the Company's marks and trade name.
21
� r an
APPE`IDLY B
FRANCHISE AREA
` Lots 1 and 2, Shadow Lake Sucd :v :u_on in the city of Little Rock,
?ulask- county, Arkansas, beinel a ?art of a replat of Tracts 14 and
19, .4; -'!vale Addition, and part of cue NE1 /4 NE1 14 SW1 /4, Section 5,
Township 1 North, Range 13 West, with said Lot 1 being more
particularly described as follows: Commerce at the Southwest corner
of the SE1 /4 of the NW1 /4 of said Section 5; run thence South 88
degrees 35 minutes 14 seconds East for 843.28 feet along the South
line of said SES /4 NWl /4 Section 5 CO a point on the Southerly right
of way line of Shadow Lake Drive; thence South 80 degrees 14 minutes
40 seconds East for 137.84 feet; thence North 01 degree 24 minutes 46
seconds East for 50 feet to a point on the North right of way line of
Shadow Lake Drive, said point being the point of curvature of a 425
foot radius curve to the right and also being a point on the South
line of said Lot 2 and the point of beginning of this description of
said Lot 2; thence along said curve for 283.3 feet (curve chord
bearing North 69 degrees 29 minutes 22 seconds West for 278.1 feet);
thence North 50 degrees 23 minutes 30 seconds West for 395.38 feet to
the point of curvature of a 252.17 feat radius curve to the right;
thence along said curve for 227.78 feet (curve chord bearing North 24
degrees 30 minutes 52 seconds West far 220.12 feet); thence North 02
degrees 04 minutes 28 seconds Mast for 50.25 feet; thence North 01
degree 21 minutes 46 seconds East for 115 feet to the point of
curvature of a 25 foot radius curve to the right thence along said
curve for 39.27 feet (curve chord bearing North 46 degrees 22 minutes
East for 35.35 feet) to .a point on the South right of. way line of
West Markham Street; thence South 88 degrees 37 minues 53 seconds
East for 968.32 feet; thence South 01 degree-22 minutes 07 seconds
West for 10 feet; thence South 88 degrees 37 minutes 53 seconds East
for 225.85 feet to the point c: curvature of a 25 foot radius curve
to the right; thence along said curve for 38.8 feet (chord curve
bearing South 44 degrees 10 minutes East for 35.01 feet) to a point
on the West right of way line of Farris Street; thence South 00
degrees 17 minutes 20 seconds West for 633.1 feet to the point of
curvature of a 50 foot radius curve to the right; thence along said
curve far 78.27 feet (curve chord bearing South 45 degrees 08 minutes
West for 70.52 feet) to a point on the North right of way line of
Shadow Lake Drive; thence South' 89 degrees 59 minutes 07 seconds West
for 238.93 feet; thence North 88 degrees 35 minutes 14 seconds West
for 334.07 feet to the point of beginning; AND Lot 2, being more
particularly described as follows: Begin at the Southwest corner of
the SE1 /4 of the NW1 /4 of Section 5, Township 1 North, Range 13 West,
Pulaski County, Arkansas; run thence North 00 degrees 18 minutes 21
seconds East along the West line of the SE1 14 NW1 /4 of said Section 5
for 220.63 feet; thence South 89 degrees 41 minutes 39 seconds East
for 19.84 feet to the Southwest corner of Lot 2A, Evergreen Farm
Subdivision, Little Rock, Arkansas (Plat Book -A ", Page 219); thence
North 72 degrees 41 minutes 24 seconds East for 364.76 feet to the
Southeast corner of Lot 2A, said point being a point on the
Southwesterly right of way line of Shadow Lake Drive and also being
on a 302.17 foot radius curve to the left; thence along said curve
for 18.5 feet (curve chord bearing South 48 degrees 38 minutes 18
seconds East for 18.49 feet); thence South 50 degrees 23 minutes 30
seconds East for 395.38 feet to the point of curvature of a 475 foot
radius curve to the left -; thence along said curve for 178.3 feet
(curve chord bearing South 61 degrees 08 minutes 08 seconds East fox
177.28 feet) to a point on the South line of the SM1/4 NW1 /4 of
Section 5; thence North 88 degrees 35 minutes 14 seconds West for
843.28 feet to the point of beginning.
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