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HomeMy WebLinkAbout1997-036 - Franchise with American CablevisionBILL NO. ~~ ~-3(/ ORDINANCE NO. 97- ~~ AN ORDINANCE APPROVING THE FRANCHISE AGREEMENT BETWEEN AMERICAN CABLEVISION AND THE CITY ("AGREEMENT") AND AUTHORIZING AND DIRECTING THE MAYOR, CITY CLERK AND OTHER CITY OFFICIALS TO EXECUTE AND DELIVER THE AGREEMENT ON BEHALF OF THE CITY AND APPROVING ACTIONS RELATED THERETO. WHEREAS, by Ordinance No. 8113, passed April 14, 1981, the City of Riverside, Missouri ("City") granted a franchise ("Franchise") to Kansas City Cable Partners, dba American Cablevision ("Franchisee"); WHEREAS, the City held a public hearing regarding the Franchisee; WHEREAS, the performance of the Franchisee has been generally favorable; WHEREAS, the City and the Franchisee have been in negotiations regarding a new franchise agreement; WHEREAS, the Board of Aldermen has determined that entering into the Franchise Agreement will contribute to the welfare of the people of the City; WHEREAS, subject to the terms and conditions set forth in the Agreement, the City and Franchisee desire to enter into the Agreement; NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri: Section L The Agreement is approved and the Mayor, City Clerk and other City officials are authorized and directed to execute the Agreement in substantially the form attached with such changes as such officials approve, execution of such agreements being conclusive evidence of such approval. Section 2. The Mayor, City Clerk, and other City officials are authorized and directed to take such further actions as are necessary or desirable to consummate the transactions contemplated by the Agreement. Section 3. This ordinance shall take effect immediately. Passed this 18th day of March, 1997. ATTEST: ))~ ~ ~. G li~i,tc~ ~w11~.~Gl~t~_, _. ~ CITY CLERK ~_ ~ MAYOR 1:A61492V00016AFRANAGT.ORD RIVERSIDE, NHSSOURI CABLE CONIl~IL'NICATIONS FRANCHISE AGREEMENT AMERICAN CABLEVISION Section 1. Intent. Kansas City Cable Partners, a Colorado general partnership doing business as American Cablevision ("American Cablevision"), requested renewal of its cable communications Franchise, and agrees to comply with the terms and conditions of this Franchise Agreement and all applicable ordinances, statutes, regulations, rules, and other laws for the construction, maintenance, and operation of a Cable Communications System. This Franchise Agreement provides for and specifies the means by which the City shall grant to American Cablevision, and by which American Cablevision will exercise, authority to use Public Property and to continue providing cable communications services to the Residents of the City. Section 2. Short Title. This Franchise Agreement shall be known as the "Riverside, Missouri Cable Communications Franchise -American Cablevision. " Section 3. Definitions. The terms used in this Franchise Agreement shall be as defined in the Cable Communications Code. Section 4. Application of the Cable Communications Code. This Franchise Agrezment shall be subject to the Cable Communications Code, as it now exists and as it may be properly amended. Section 5. Franchise Term. This Franchise Agreement shall continue without interruption American Cablevision's authority to own, construct, operate and maintain a Cable Communications System in the City. This Franchise Agreement serves to renew and continue the City's regulation and grant of authority to American Cablevision to use Public Property, and to renew and continue American Cablevision's continued, uninterrupted operation of its System within the City, under the terms of this Franchise Agreement, from the effective date of this Franchise Agreement until the expiration of fifteen (15) years from the effective date of this Franchise Agreement. 7:161492V00016\FRNAGMT. R V 3 Section 6. Acceptance. 6.01 American Cablevision's Acceptance. Acceptance of this Franchise Agreement shall be reflected by the execution of this Franchise Agreement. 6.02 American Cablevision's Warranty. American Cablevision represents, warrants and guarantees that neither it, nor any of its representatives or agents, has committed any illegal acts or engaged in any wrongful conduct contrary to, or in violation of, any federal, state or local law or regulation in connection with the passage of the ordinance approving this Franchise Agreement. American Cablevision further warrants and represents as follows: (A) Lawful Acts of American Cablevision. That it is a partnership authorized to do business in the State of Missouri, and has full right and authority to enter into and fully perform its obligations under this Franchise Agreement; that all partnership action required to authorize the acceptance of this Franchise Agreement and execution and delivery of this Franchise Agreement and all other documents to be executed or delivered by American Cablevision pursuant to this Franchise Agreement, and to authorize the performance by American Cablevision of all of its obligations under this Franchise Agreement, and all such other documents to be executed or delivered by American Cablevision, have been validly and duly acted on and are in force and effect; and that this Franchise Agreement and all other documents executed and/or delivered by American Cablevision have been duly accepted and executed and the terms of each thereof are fully binding upon and enforceable against American Cablevision. (B) Ability to Perform. American Cablevision has the fiscal and technical capability to commence, complete, operate and maintain a Cable Communications System pursuant to the terms of this Franchise Agreement. (C) Covenant Against Contingent Fees. American Cablevision has neither employed nor retained any person to solicit or secure the continuation of its rights under this Franchise Agreement upon an agreement or understanding for a commission, percentage, brokerage or other fee contingent on the City's continuation of American Cablevision's Franchise. (D) No Gratuities. American Cablevision has not offered, given, or agreed to give to any employee or official or former employee or official of the City, and has not solicited, demanded, accepted or agreed to accept from any other Person, a gratuity, offer of employment or anything of pecuniary value in connection with any decision, approval, disapproval, recommendation, or preparation of any part of this Franchise Agreement. (E) Contemporaneous Employment. American Cablevision warrants and agrees that no employee or official of the City who is participating directly or indirectly in the development of this Franchise Agreement is or will become, as a condition of the approval of this Franchise Agreement, an employee of American Cablevision. -2,- J:A61492V00016ArRNAGMT.RV3 6.03 Recourse by American Cablevision. It is recognized that challenges by American Cablevision to actions of the City are subject to applicable law. 6.04 American Cablevision Acknowledgments. American Cablevision expressly acknowledges that, in accepting this Franchise Agreement, it did so relying upon its own investigation and understanding of the power and authority of the City to grant and to continue the Franchise. American Cablevision, by acceptance of this Franchise Agreement, acknowledges that it has not been induced to enter into this Franchise Agreement by any understanding or promise or other statement, whether verbal or written, by or on behalf of the City or by any other Person concerning any term or condition of this Franchise Agreement not expressed in this Franchise Agreement. American Cablevision further acknowledges by the acceptance of this Franchise Agreement that it has carefully read its terms and conditions. Section 7. Sale or Transfer of Franchise. The restriction established by Section 2.5 of the Cable Communications Code shall be interpreted to not apply to the transfer of this Franchise Agreement to any Affiliate of American Cablevision so long as (i) such sale, assignment, transfer, lease or sublease does not result in a change in control of American Cablevision's operations within the City; (ii) the City is provided with thirty (30) days prior written notice of such transaction; and (iii) the transferee provides to the City, prior to the transfer, an executed addendum to this Franchise Agreement effective as of the date of transfer, assuming and agreeing to be fully bound by all of the terms and conditions of this Franchise Agreement. Section 8. Security Bond Under its previous franchise agreement, American Cablevision deposited with the City a security bond. The City shall continue to hold such security bond as security for the faithful performance by American Cablevision of its obligations under this Franchise Agreement and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts and for its defaults under the Cable Communications Code and for the payment by American Cablevision of any claims, liens or taxes due the City which arise by reason of the construction, use, maintenance or operation of all or any part of the System or the use of any Public Property. Any income earned on the security bond which is received by the City shall be credited against Franchise fees due from American Cablevision; provided that it shall be the sole responsibility of American Cablevision to properly make such credit. Any income received by the City in excess of the Franchise fee shall be the property of the City. The security bond shall become the property of the City if this Franchise Agreement is terminated due to a default of American Cablevision or if this Franchise Agreement otherwise terminates and American Cablevision is in default immediately prior to such termination. If this Franchise Agreement terminates due to any reason other then American Cablevision's default and American Cablevision is not in default immediately prior to such termination, American Cablevision shall be entitled to a return of the remaining security bond. The City's rights with respect to the security bond are in addition to any and all other rights the City may have and no action, _ 3 _ J: \61492\00016\FRN AGMT. R V 3 proceeding or exercise of a right with respect to the security bond will affect any other right the City may have in law or equity. Section 9. Grant of Authority and LTSe of Streets. In consideration of American Cablevision's payment of the Franchise fees and its performance of all other obligations under this Franchise Agreement, American Cablevision is authorized under the provisions of this Franchise Agreement to continue the following activities: (A) Develop Cable Communications System. To establish, acquire, construct, maintain and operate a Cable Communications System within the City; (B) Provide Cable Services. To furnish, render and sell Cable Service and Additional Service in the City; (C) Use of Public Streets and Property. To use and occupy the Streets and other Public Property for its System; (D) Placement of Equipment. Subject to the City's right to control and designate where and when the following will occur and subject to compliance by American Cablevision with the Cable Communications Code, to use and attach to any City-owned utility poles, and to enter and construct, erect, locate, repair and rebuild on, in, under, along, over and across the Streets and other Public Property, all towers, poles, cables, amplifiers, conduits and other facilities owned, leased and otherwise used by American Cablevision for its System to the extent reasonable and necessary. Section 10. System Upgrade. 10.01 General Requirements. By no later than 18 months after the passage of the ordinance approving this Franchise Agreement, American Cablevision shall complete a rebuild of its System pursuant to the provisions of this Franchise Agreement. American Cablevision shall use equipment used in high-quality, reliable, modern Cable Communications Systems of similar design. Within 90 days after passage of the ordinance approving this Franchise Agreement, American Cablevision shall provide to the City a plan for upgrading the current System indicating, at least, a general overview of the construction schedule. 10.02 General Description. The upgrade shall provide Residents with a technically advanced and reliable Cable Communications System. The System shall operate with 750 Mhz of bandwidth, capable of delivering a minimum of 110 channels of programming. It will have a return capacity of 5-30 Mhz. The design will provide the benefits of proven 110-channel electronics while positioning the System for expansion of bandwidth and channel capacity as technology and future services develop. A purpose of this upgrade, in addition to increasing the technical capabilities and reliability of the System, is to provide the capacity for increased channels of video programming available to Subscribers. _4_ 7:A61492V00016AFRNAGMT.RV3 10.03 Design. The design of the System shall be based upon a "Fiber to the Feeder" architecture. This architecture will deliver the signals by fiber optics directly to each neighborhood group. With a neighborhood group average of only 500 homes, the resulting System will have improved reliability while delivering a high quality picture. American Cablevision will place fiber optic cables throughout the City, delivering the signals to an optical node placed in each neighborhood area. There shall be no more than an average of 9.5 active components in a cascade between the headend and the Subscriber, and an average of no more than 7.5 active components in a cascade from any node. The longest coaxial cascade from a node shall not be longer than two (2) miles, which coaxial cascade shall use no more than nine active components. The headends will be interconnected to the hubs by a redundant fiber ring, and the hubs will then feed the nodes. Should any equipment failures occur at a node, the number of homes which could be affected would total no more than the number of homes fed from that node. The incorporation of standby power supplies, strategically placed throughout the System, will further reduce the likelihood of service interruptions. 10.04 Technical Specifications. The System shall meet or exceed FCC requirements. In no event shall the System fall below the following standards: (A) The System shall be capable of meeting the following distortion parameters: 1. Carrier to RMS Noise 47 Db 2. Carrier to Second Order 53 Db 3. Carrier to Cross Modulation 53 Db 4. Carrier to Composite Beat 53 Db (B) The frequency versus gain response of a single channel as measured across any 6 Mhz spectrum shall not exceed +/- 2 Db. (C) The frequency versus gain response of the entire passband shall not exceed n/10+ 2 Db for the entire System where N is the number of amplifiers in cascade. (D) The System shall be designed such that at a minimum all technical specifications of this Franchise Agreement are met. (E) The System shall be designed such that no noticeable degradation in signal quality will appear at the Subscriber terminal. Section 11. Basic Service to Government and Public Educational Facilities. 11.01 No-Cost Basic Service. There will be no monthly charge for one Basic Service Drop to each governmental facility and to each public educational facility presently receiving no-cost Basic Service from American Cablevision. In addition, American Cablevision shall install one -S- 7:A61492V00016AFRNAGMT.RV3 Drop to each governmental and public educational facilities identified in Section 10.02 upon the request of the Franchise Administrator. There will be no monthly charge for one Basic Service Drop at all such facilities, but American Cablevision may charge its standard monthly additional outlet charge for additional Basic Service outlets. Additional outlets shall be installed or existing outlets shall be relocated for a predetermined fee for each additional outlet, including the costs of amplification equipment required for adequate signals. 11.02 Description of Facilities. Drops and Cable Service will be provided by American Cablevision, in accordance with the terms and conditions of Section 10.01, to all the following buildings located in the City, whether now existing or constructed or obtained after the commencement of this Franchise, provided they are located within 1,000 feet of American Cablevision's System: (A) the City Hall and each of its departments not located at City Hall; (B) the Riverside, Missouri Police Department; (C) the Riverside, Missouri Fire Department; (D) all elementary and secondary public schools; and (E) all public libraries. Section 12. Low Density Service. Under Section 3.22 of the Cable Communications Code, for the purpose of providing Cable Service to Residents on an accelerated basis, the City, through its Franchise Administrator, and American Cablevision may mutually agree to any other alternative methods of extending Cable Service into areas of the City where the minimum occupied density does not meet the requirements described in Section 3.21 of the Cable Communications Code. Such circumstances may include, but are not limited to, the following: (A) Voluntary Extension. American Cablevision may extend its System into any such "low density" areas of the City at its own discretion. (B) Cost-Sharing Agreement. In any unserved developing area having a minimum occupied density which is lower than the minimum density requirements required by this Franchise Agreement, American Cablevision may negotiate acost-sharing agreement with the area's developer or any of the area's Residents to allow Residents of low-density areas to receive Cable Service, according to the following general guidelines: (1) Developer Capital Assistance. Upon the request of the developer of a newly planned or developing subdivision, or of the developing phase of an existing subdivision, within the City, where the current average occupied density of Residential Dwelling Units per -(- J: A61492V00016AFRN AGMT. R V 3 cable mile and per Street mile is less than that required for mandatory extension of service, American Cablevision may: (a) Coordinate with the developer to obtain a current plat of the area, determine the growth plan of the subdivision and acquire any other information which may assist American Cablevision in surveying the area. (b) Conduct a site survey of the area and prepare an engineering and investment analysis to determine the technical requirements and cost of extending American Cablevision's System to each existing and planned Residential Dwelling Unit in the area, from the closest point where available quality signals exist. (c) Coordinate with the developer to determine a capital cost-sharing plan to finance the initial extension of American Cablevision's System into the area. The plan would ensure that any "up-front" monetary contribution by the developer would cause American Cablevision's remaining share of the extension investment to be economically feasible, as compared to the feasibility assumed by the applicable density ratios of this Franchise Agreement. (d) Upon agreement of a capital cost-sharing plan, American Cablevision and the developer may also agree to a reimbursement plan where American Cablevision would reimburse the developer's share of the extension investment should the minimum occupied density of Residential Dwelling Units in the area ever reach the applicable density ratios of this Franchise Agreement. (e) In addition, American Cablevision and area developers may coordinate any other mutually agreeable and economically acceptable capital cost-sharing plans which allow Cable Service to be extended to Residents in low density areas. (2) Individual Resident's Capital Assistance. American Cablevision may also enter into any other mutually agreeable and economically acceptable capital cost-sharing arrangements with individual Residents, or an organized group of Residents, within any low-density area requesting Cable Service. (3) Agreements Private. Any such capital cost-sharing agreement shall be coordinated between American Cablevision and a developer, a group of Residents or an individual Resident, and the City shall not be a party to such agreement. Likewise, such private agreements shall not involve the City in any way nor expose the City to any claim for damages or liability as the result of any dispute which may arise between American Cablevision and any other party to a capital cost-sharing agreement. American Cablevision shall indemnify and hold harmless the City from any and all damages, claims, losses, and action, including but not limited to attorneys fees, arising in connection with any such agreements, according to the provisions of the Cable Communications Code and this Franchise Agreement. _'~_ J: \61492\00016\FRN AGMT. R V 3 Section 13. System Improvement. Upon completion of the System upgrade or on the fourth anniversary of the effective date of the ordinance containing this Franchise Agreement, whichever occurs first, and every three years thereafter, American Cablevision shall make such improvements to the System as are necessary to maintain the System at the modern level of technical performance which has been implemented in a majority of cable television systems, provided that such improvements can be instituted through technology which has been demonstrated to be feasible for its intended purpose, in an operationally workable manner, and in a manner which is reasonably profitable with respect to each such improvement. Section 14. Government Channel. 14.01 Channel established. American Cablevision shall provide, at no cost to the City and its designee, one Channel for use by the City to present non-commercial local governmental information of interest to Subscribers in the City. Operator shall provide the City with a character generator for use in connection with the government Channel. The City may provide this service itself, or may designate another agency or person to provide this service for the City. 14.02 Exportation of Channel. Without written permission from the City, American Cablevision may not export the government Channel. However, should American Cablevision interconnect the System to Cable Communications Systems operated by American Cablevision in other municipalities in the Kansas City area, American Cablevision may carry on such other Cable Communications Systems the educational access Channel and government Channel provided under the terms of this Franchise Agreement. 14.03 Elimination of Channel. The government Channel shall not be eliminated by American Cablevision absent written authorization by the City. 14.04 Modification of Obligations of American Cablevision. The City and American Cablevision may agree, in writing, that American Cablevision may use the government Channel for other programming to the extent it is not being used for governmental programming. The City shall not consider the nature of the programming proposed by American Cablevision when approving or disapproving such temporary use of the government Channel. The City shall not unreasonably deny American Cablevision access to the government Channel provided that any and all use by the City shall have first priority. If such consent has been obtained, the City shall give American Cablevision no less than 30 days notice should the government Channel being temporarily used by American Cablevision be required for the City's use. 14.05 American Cablevision Held Harmless. (1) City Obligation. The City shall indemnify, defend and forever hold harmless American Cablevision, its officers, employees, agents, licensees and affiliates from and -$- 7:A61492V00016A FRN AGMT. R V3 against any and all claims, judgments, costs, liabilities, damages, and expenses (including reasonable attorney's fees) arising out of or in connection with the City's use of the government Channel and educational access Channel, including, but not limited to, its presentation of programming. (2) American Cablevision's Negligence or Willful Misconduct. The City shall provide a defense for American Cablevision in any action, suit or proceeding alleging American Cablevision has engaged in willful misconduct or criminal acts; provided, however, that notwithstanding any provision to the contrary contained in this Section, American Cablevision shall not be indemnified nor reimbursed in relation to any matter in said action, suit or proceeding where American Cablevision is found, pursuant to a final nonappealable order of a court of competent jurisdiction, to have been negligent or to have engaged in willful misconduct or criminal misconduct or criminal acts, and thereupon the City shall be reimbursed by American Cablevision for all reasonable amounts paid and expenses incurred by the City in connection with such action, suit or proceeding, including reasonable attorney's fees. (3) Notice to City. American Cablevision shall immediately notify the City, with a copy of all written notifications to the City Attorney, of any potential claim, demand, or other legal action for which American Cablevision shall demand to be held harmless pursuant to this section. (4) Payments by City. Should payments be found to be due and owing to American Cablevision pursuant to this section by 6na1 decision of a court of competent jurisdiction, payment shall be made solely and exclusively from Franchise fees to be paid to the City, in the next fiscal year of the City for which a budget has not yet been adopted by the Board and continuing until all payments due and owing to American Cablevision have been satisfied. If there exists a dispute whether the City is obligated to hold harmless American Cablevision, that dispute may be, at the agreement of the parties, submitted to a panel of arbitrators pursuant to the terms of Section 14-Arbitration, or American Cablevision may bring an action in a court of competent jurisdiction. Pending resolution of any disputed obligation, American Cablevision shall- not set off any amount from its Franchise fee payments. The amount in which the City is obligated to indemnify American Cablevision shall not exceed the amount permitted by law. Section 15. Arbitration. 15.01 Procedures. When any part of this Franchise Agreement, including the scope of required performance by the City or American Cablevision under this Franchise Agreement, is in dispute, the City and American Cablevision may mutually agree, but are not otherwise required, to submit the dispute to the arbitration of disinterested parties for hearing and determination. Such arbitration shall be conducted as follows: -9- !: \61492\00016\FRN AGMT. R V 3 (A) Appointment of Arbitrators. If the City and American Cablevision agree to arbitration. then each shall, within 15 Days of a written request by either party to the other to proceed with arbitration, appoint one arbitrator. The panel of two arbitrators shall agree upon the selection of a third member, similarly qualified, within 15 days after appointment of the second arbitrator. (B) Commencement of Hearing. Within 30 days after appointment of all arbitrators and upon 10 days advance written notice to the City and American Cablevision, the arbitrators shall commence a hearing of the dispute. (C) Hearing Open to the Public. All hearings, debates and deliberations shall be held in Riverside, Missouri and shall be open to the public, but the public shall not participate in such hearings unless duly called as individual witnesses. The times and places of the hearings shall be announced by public notice or as thereafter publicly stated in the order to adjourn. Each hearing shall be recorded and may be transcribed at the request of either American Cablevision or the City. (D) Arbitrators' Decision. At the close of the hearings the arbitrators shall prepare written findings and make a written decision within 30 days of their final adjournment. Their decision shall be a majority agreement, and shall be served by mail upon the City and American Cablevision. 15.02 Judicial Review. Either the City or American Cablevision may seek judicial review of the decision of the arbitrators to the extent authorized under applicable law. Additionally, it is recognized that judicial review may be sought if: (1) the City or American Cablevision fails to select an arbitrator; (2) the arbitrators fail to select a third member; (3) one or more of the arbitrators is unqualified; (4) the designated time limits have been exceeded; or (5) the arbitrators have not proceeded expeditiously. In the event a court determines the arbitrators abused their discretion, or otherwise acted unlawfully, it may order the arbitration to be repeated and issue findings, orders and directions. 15.03 Costs of Arbitration. The costs of arbitration shall be borne equally unless otherwise ordered by the arbitrators or a reviewing court of competent jurisdiction. Section 16. Less Restrictive Franchise Terms. 16.01 Election by American Cablevision. If the City grants a Franchise to another Operator on terms and conditions which are materially less burdensome or more favorable to another Operator than the terms and conditions of this Franchise Agreement, then American Cablevision may request the modification of this Franchise Agreement pursuant to the procedures set forth in this Section. 16.02 All Provisions Considered. In considering whether the terms and conditions of another Franchise are materially less burdensome or more favorable than the terms and conditions of this -10- J: A61492V00016AFRN AGMT. R V 3 Franchise Agreement, the reasonable value of the requirements of each Franchise shall be 'aken as a whole. 16.03 Procedure. If the terms and conditions of another Franchise are materially less burdensome or more favorable, then American Cablevision may propose modifications of the requirements in this Franchise Agreement to the extent that such modifications materially cure the disparity between the two Franchises. American Cablevision shall provide the City with written notice of any proposed modifications under this section, and the City shall accept or reject such proposed modifications within 45 days of receipt of such notice. If the City rejects such proposed modifications, American Cablevision and the City may mutually agree to submit the dispute to arbitration pursuant to Section 15 or either party may seek relief regarding the terms of this Franchise Agreement in a court of competent jurisdiction. In either case, the terms and conditions of this Franchise Agreement shall remain in effect during the resolution of this dispute. The City shall not unreasonably reject proposed modifications. 16.04 Non-Franchised System. If any Cable Communications System is constructed or operated within the City (excepting those pursuant to an agreement or rights existing on the date hereof) and the Operator of such Cable Communications System is using Public Property without a Franchise, license, lease or other agreement which permits such use, and the City, under applicable law, has the right to require such Operator to obtain a Franchise, American Cablevision may request the mod cation of this Franchise Agreement pursuant to the following procedures. In considering whether the terms and conditions are materially less burdensome or more favorable than the terms and conditions of this Franchise Agreement, the reasonable value of the requirements of each and all rights available over each respective term shall be taken as a whole. If such terms and conditions are materially less burdensome or more favorable, then American Cablevision may propose modifications of the requirements in this Franchise Agreement to the extent that such modifications materially cure such disparity. American Cablevision shall provide the City with written notice of any proposed modifications under this section, and the City shall accept or reject such proposed modifications within 45 days of receipt of such notice. If the City rejects such proposed modifications, American Cablevision and the City may mutually agree to submit the dispute to arbitration pursuant to Section 15 or either party may seek relief regarding the terms of this Franchise Agreement in a court of competent jurisdiction. In either case, the terms and conditions of this Franchise Agreement shall remain in effect during the resolution of this dispute. The City shall not unreasonably reject proposed modifications. 16.05 Actions by the City as a Competitor. If the City or any Affiliate of the City shall make a decision to commence construction and operation of a Cable Communications System in the City, or should construction of a Cable Communications System by the City or any Affiliate of the City commence without an identifiable final decision, then this Franchise Agreement automatically shall be amended as of the date of the final decision to commence construction and operation, or at the commencement of construction if it begins without an identifiable final decision, in the manner described below: -1 1- J: A61492V00016AFRN AGMT. R V 3 their relationship for the full term of this Franchise Agreement. If any court. agency. commission, or other authority of competent jurisdiction, in a final nonappealable decision, (1) declares this Franchise Agreement or the Cable Communications Code invalid, in whole or in part, or (2) requires American Cablevision or the City either to: (a) perform any act which is inconsistent with any provision of this Franchise Agreement or the Cable Communications Code, or (b) cease performing any act required by any provision of this Franchise Agreement or the Cable Communications Code, then American Cablevision shall not be required to comply with any such term declared invalid and shall comply with any such requirement, as the case may be. Section 19. Severability. Each provision of this Franchise Agreement shall be considered a separate, distinct and independent part of this Franchise Agreement. If any provision of this Franchise Agreement is held by a court or by any federal or state agency to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, the conflicting provision shall be considered to be a separate, distinct and independent part of this Franchise Agreement, and such holding shall not affect the validity and enforceability of any other provision of this Franchise Agreement. Section 20. Modification. Except as otherwise expressly provided in this Franchise Agreement, no provision of this Franchise Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument in writing duly executed by the party against whom enforcement of such amendment or modification is sought. If inconsistent with the terms of the Cable Communications Code, the specific provisions of this Franchise Agreement shall control. No part of this Franchise Agreement shall be a restriction on the City's authority to exercise its police power, including but not limited to amending the Cable Communications Code with respect to matters within the proper exercise of its police power, to the extent consistent with applicable law. Section 21. Clarification of Law. The City and American Cablevision agree that either party may seek a ruling as to the applicability of any court determination, federal or state law or regulation to the terms of this Franchise Agreement or the Cable Communications Code. Section 22. Delays and Failures Beyond Control of American Cablevision or the City. Notwithstanding any other provisions of this Franchise Agreement, American Cablevision or the City shall not be liable for delay in performance of, or failure to perform, in whole or in part, its obligations due solely and directly to strike, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act _13_ J:A61492V00016\FRNAGM'r.RV3 of God, unpreventable technical failure, unavailability of materials or equipment, sabotage or vandalism, Subscriber tampering or interference, or other events, where American Cablevision or the City has exercised all due care in the prevention thereof to the extent that such causes or other events are beyond the control of American Cablevision or the City. In the event that any such delay in performance or failure to perform affects only part of American Cablevision's or the City's capacity to perform, American Cablevision or the City shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct such cause(s). American Cablevision and the City agree that in correcting such cause(s), they shall take all reasonable steps to do so in as expeditious a manner as possible. American Cablevision or the City shall notify the other party in writing of the occurrence of an event covered by this section within a reasonable period of time after American Cablevision or the City learns of its occurrence. Section 23. Written Notice. All notices, reports or demands required to be given under this Franchise Agreement shall be given in writing and shall be deemed to be given when delivered personally to American Cablevision addressed to its president or to the City addressed to the City Administrator, whichever is appropriate, or when 48 hours have elapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to which notice is being given. Such addresses may be changed by either party upon notice to the other party given as provided in this section. At the time of this continuation of American Cablevision's Franchise by the Board, the addresses of the parties are as follows: American Cablevision: City of Riverside: Kansas City Cable Partners City of Riverside, Missouri DBA American Cablevision of Kansas City 4500 High Drive 6550 Winchester Avenue Riverside, MO 64168 Kansas City, MO 64133 ATTN: Franchise Administrator ATTN: President with a copy to: Stephen A. Crystal Armstrong, Teasdale, Schlafly & Davis 2345 Grand Blvd., Suite 2000 Kansas City, MO 64108 Section 24. No Recourse. Except as expressly provided in this Franchise Agreement, American Cablevision shall have no right to recover money damages from the City for any loss, cost, expense or damage arising out of any of the provisions or requirements of this Franchise Agreement or because of the enforcement thereof by the City, nor for the failure of the City to have the authority to grant all -14- J: \61492\00016\FRNAGMT. R V 3 IN WITNESS WHEREOF, the parties execute this Franchise Agreement the date se[ forth above. SEAL ;" ~~ ~~ City Clerk - "AMERICAN CABLEVISION" KANSAS CITY CABLE PARTNERS, a Colorado general partnership doing business as American Cablevision "CITY" CITY OF RIVERSIDE, MISSOURI B: ule, Mayor By: Time Warner ert inment Co., L.P., a General Partner Thr gh i ns~ City Division By: Name: Robert B. Niles President Title: _ 1(- J:\61492\OOOl6\FRNAGMT.RV3