Appendix B. FRANCHISES
TELECOMMUNICATIONS ORDINANCE
FOR
CITY OF INDIANOLA, MISSISSIPPI
(The Contact Network, Inc. d/b/a InLine)A FRANCHISE GRANTING TO THE CONTACT NETWORK, INC. D/B/A INLINE FOR A PERIOD OF TEN (10) YEARS FROM AND AFTER THE PASSAGE, ACCEPTANCE AND EFFECTIVE DATE OF THIS DOCUMENT, THE NONEXCLUSIVE RIGHT, PRIVILEGE AND FRANCHISE TO CONSTRUCT, OPERATE AND MAINTAIN A FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, UPON, ALONG, ACROSS, ABOVE, OVER, AND UNDER STREETS, ALLEYS, EASEMENTS, OPEN AREAS, PUBLIC WAYS AND PUBLIC PLACES, NOW LAID OUT OR DEDICATED, AND ALL EXTENSIONS THEREOF AND ADDITIONS THERETO, IN THE CITY OF INDIANOLA, MISSISSIPPI.
WHEREAS, prior to adoption of this Franchise the legal, character, financial and technical qualifications of The Contact Network, Inc. d/b/a InLine as well as the adequacy of the services it proposes and the adequacy and feasibility of its plans to provide service were considered; now therefore,
BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF INDIANOLA, MISSISSIPPI:
SECTION 1. DEFINITIONS
For purposes of this Franchise the following terms, phrases, words, abbreviations and their derivations shall have the same meaning given herein.
"Act" shall mean the Communications Act of 1934, as amended, 47 U.S.C. Sections 151 et seq.
"City Council" shall mean the present governing body of the City, or any successor to the legislative powers of the present government body.
"City" shall mean the City of Indianola, Mississippi, and all territory within its governmental authority.
"Company" or "The Contact Network, Inc. d/b/a InLine" or "InLine" or "Franchisee" shall mean The Contact Network, Inc. d/b/a InLine.
"Customer" means a Person or user of the System who lawfully receives Services therefrom with the Company's expressed permission.
"Effective Date" shall be the date of acceptance by Company in accordance with Section 27.
"Exchange Access" means the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services.
"FCC" means the Federal Communications Commission or successor governmental entity thereto.
"Franchise" means the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated by federal or state law or FCC order or regulation as a franchise, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes construction and operation of the System.
"Franchise Agreement" shall have the same meaning as Ordinance and refers to this Franchise Agreement between the City and InLine.
"Franchise Area", means the legal boundaries of the City as of the Effective Date, and shall also include any additions thereto, by annexation or other legal means.
"Franchising Authority" means the City, through its governing authority or the lawful successor, transferee, designee, or assignee thereof
"Gross Revenue" means any and all revenue collected by InLine derived from the operation of the System to provide Telecommunications Services in the Franchise Area, less uncollected bad debt or any tax or assessment imposed by any federal, state or local government imposed upon the Company or any Subscriber.
"Information Service" means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via Telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a Telecommunications system or the management of a Telecommunications Service.
"Local Exchange Carrier" means any Person that is engaged in the provision of Telephone Exchange Service or Exchange Access.
"Other Programming Service" means information that the Company makes available to all Subscribers generally.
"Person" shall mean any person, firm, partnership, association, corporation, company, or organization of any kind.
"Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Franchise Area, which shall entitle the Franchising Authority and the Company to the use thereof for the purpose of installing; operating, repairing, and maintaining the System. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the Franchise Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Company to the use thereof for the purposes of installing, operating, and maintaining the Company's System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the System.
"Sale, transfer or assignment" of this Franchise as used herein shall mean either: a change of the controlling interest of the Company; or a change of the right to operate the System in the City granted under this Franchise Agreement and to receive the revenues produced by the operation of the System.
"Services" shall mean collectively the Telecommunications Services and Information Services offered to Subscribers by Company.
"System" refers to Company's system of Telecommunications Equipment located within the Franchise Area.
"Subscriber" shall mean any Person who purchases Services from Company.
"Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
"Telecommunications Carrier" means any provider of Telecommunications Services, except that such term does not include aggregators of Telecommunications Services (as defined in Section 226 of the Act).
"Telecommunications Equipment" means equipment, other than customer premises equipment used by a Telecommunications Carrier to provide Telecommunications Services, and includes software integral to such equipment (including upgrades).
"Telecommunications Service" means the offering of Telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of facilities used.
"Telephone Exchange Service" means (a) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to Subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge, or (b) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a Subscriber can originate and terminate a Telecommunications Service.
SECTION 2. GRANT OF AUTHORITY
(a)
Franchise Grant. The Franchise Authority hereby grants to InLine pursuant to the Act, a nonexclusive, revocable Franchise which includes the right and privilege to provide Services and to construct, operate, and maintain a System for the provision of Services in, upon, across, above, over and under streets, alleys, easements, and all Public Ways now laid out or dedicated in the Franchise Area and upon annexation of any territory to the City, this Franchise shall extend to the territory so annexed.
(b)
Reservation of Authority. Nothing in this Franchise Agreement shall (i) abrogate the right of the Franchising Authority to perform any public works or public improvements of any description, (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 or authorizations for such use, or (iii) be construed as granting anything other than a Franchise for the operation of a System in the Franchise Area to provide Services as those terms are defined herein, (iv) be construed as preventing the City from imposing additional conditions on the use of Public Ways, including additional compensation for use of the Public Ways should Company provide services other than Services; or (v) be construed as a waiver or release of the rights of the Franchising Authority to exercise any governmental right or power with regard to the public health, safety and welfare of its citizens, or the proper exercise of the police powers or authority of the Franchising Authority in managing or using the Public Ways; provided Franchising Authority is permitted to take such action under the provisions of the Act.
(c)
Limitations. This Franchise only authorizes Company to provide Services. Neither this Agreement nor the grant of the Franchise shall be interpreted to prevent the City from imposing additional conditions, including additional compensation conditions for use of Public Ways should Company provide services other than Services.
(d)
Non-exclusive. The Franchise granted herein to the Company is non-exclusive and the City expressly reserves the right to grant one (1) or more additional non-exclusive Franchises on terms or conditions which are consistent with the Act.
SECTION 3. DURATION OF FRANCHISE
(a)
Term. The Franchise shall take effect on the Effective Date and shall continue in force for a period of ten (10) years subject to the conditions and restrictions herein provided (the "Term").
(b)
Surrender. The Company may surrender this Franchise at any time upon filing with the City a written notice of its intention so to do, at least sixty (60) days before the surrender date. All the rights and privileges and all of the obligations, duties and liability of the Company under this Franchise, except as to the extent previously accrued hereunder, shall terminate on the surrender date specified in such notice.
SECTION 4. RENEWAL PROCEDURES
(a)
Procedure. Any renewal of this Franchise shall be governed by and comply with the Act, as amended.
SECTION 5. TRANSFER OF OWNERSHIP OR CONTROL
(a)
Neither the Company nor any other Person may transfer the Franchise or any of the Company's rights or obligations in or regarding the Franchise without the prior written consent of the Franchising Authority. No such consent shall be required, however, for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Company in the Franchise or in the System in order to secure indebtedness, (ii) a transfer to any Person controlling, controlled by or under the same common control as the Company, or (iii) a sale of all or substantially all of the assets or stock of Company.
(b)
Company shall give Franchising Authority written notice as soon as possible of any impending transfer of Control of Company or its assets under Sections 5(a)(ii) or (iii).
(c)
For purposes of this Section 5 "Control" means ownership of a majority interest or the actual working control and day to day management of the Company.
SECTION 6. FRANCHISE PAYMENT
(a)
Franchise Fee. The Company shall pay to the Franchising Authority franchise fees in an amount equal to two percent (2%) of its annual Gross Revenue from sales of Telecommunications Services. The payment of Franchise Fees shall be made on a quarterly basis and shall be due and payable no later than forty-five (45) days after the last day of each March, June, September and December throughout the Term of this Franchise Agreement. Each Franchise Fee payment shall be accompanied by a certified report from a representative of the Company, which shows the basis for the computation of all Gross Revenue during the period for which such Franchise Fee payment is made. If the Franchise Fee payment is not actually received by the Franchising Authority on or before the applicable due date set forth in this Section, interest shall accrue on the outstanding amount at rates published by the Internal Revenue Service for additional tax payments for the period of delinquency.
(b)
Inspection. During the Term of this Franchise Agreement, once every twelve (12) months and upon reasonable prior written notice, during normal business hours, the Franchising Authority shall have the right to inspect the Company's financial records used to calculate the Franchising Authority's Franchise Fees, and the right to audit and to re-compute any amounts determined to be payable under this Section; provided, however, that any such audit shall take place within three (3) years from the date Franchising Authority received such payment, after which period any such payment shall be considered final. Any additional amounts due to the Franchising Authority as a result of such audit shall be paid to the Franchising Authority by the Company within thirty (30) days following written notice to the Company by the Franchising Authority of such final audit. Notice to the Company shall include a copy of the audit report. The Franchising Authority shall bear the expense of any inspection or audit of the Company's books and records. Any additional amount due Franchise Authority shall be paid within thirty (30) days of Company's receipt of Franchise Authority's final invoice for such sum. Prior receipt and acceptance of payments to City from Franchisee shall not be an accordance and satisfaction of amounts due nor shall it be considered a release.
(c)
Affiliate Use. The Franchisee shall not permit the use or operation of the System by affiliates on terms that result in a diversion of revenues from the operation of the System to the detriment of the City under this Franchise.
SECTION 7. BOOKS AND RECORDS
(a)
Books and Records. Throughout the Term of this Franchise Agreement, the Company agrees to keep such books and records regarding the operation of the System and the provision of Services in the Franchise Area as are reasonably necessary to ensure the Company's compliance with the terms and conditions of this Franchise. Such books and records shall include, without limitation, any records required to be kept in a public inspection file by the Company pursuant to the rules and regulations of the FCC. All such documents pertaining to financial matters, which may be the subject of an audit by the Franchising Authority shall be retained by the Company for a minimum period of three (3) years.
(b)
File for Public Inspection. Throughout the Term of this Franchise Agreement, the Company shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations.
(c)
Proprietary and Confidential Information. The Franchising Authority agrees to treat any information disclosed by the Company as confidential and only to disclose it to employees, representatives, and agents of the Franchising Authority that have a need to know it in order to enforce this Franchise Agreement. The Company shall not be required to provide Customer information in violation of Sections 222 or 631 of the Act or the rules and regulations of the FCC. For purposes of this Section 7 the terms "proprietary or confidential" include, but are not limited to, information relating to the System design, Subscriber list, Services and marketing plans, financial information unrelated to the calculation of Franchise Fees pursuant to FCC rules, or other information that is reasonably determined by the Company to be competitively sensitive.
(d)
Installation Map. The Company shall at all times maintain a complete working map showing the exact location of all the equipment of the System installed or in use in streets and other public places in the City, and such map shall be accessible during normal business hours by the City for all proper purposes upon reasonable prior notice to Company.
(e)
Communications with FCC. Copies of all communications submitted by the Company to the FCC concerning the Services or operations of the Company in the Franchise Area with regard to the provisions of the Franchise shall be provided to the City by mailing or filing a copy of the same with the City Secretary.
SECTION 8. LIABILITY INSURANCE AND INDEMNIFICATION
(a)
Insurance.
(1)
At all times during the Term of the Franchise the Company shall, at its own cost and expense, maintain in full force and effect general comprehensive liability insurance policies, including automobile, with a company approved by the City, protecting the City against liability for loss or damage for personal injury, death, and property damage, occasioned by the operation of the Company under the Franchise with minimum liability limits of Two Million Dollars ($2,000,000.00) for personal injury or death of any one person, Two Million Dollars ($2,000,000.00) for personal injury or death of two or more persons in any one occurrence, and Two Million Dollars ($2,000,000.00) for damage to property resulting from any one occurrence and Three Million and No/100 Dollars ($3,000,000) in the form of an umbrella policy. The Company shall also provide and maintain workers' compensation insurance.
(2)
The policy or policies of insurance mentioned in the foregoing paragraph (except workers' compensation) shall name the City, its officers, agents, boards and commissions as an additional insured and shall contain a provision that the policies are not cancelable except upon service of a written notice of cancellation or reduction in coverage of said policy to the City thirty (30) days in advance of the effective date thereof.
(b)
Indemnification. Company shall, at its sole cost and expense, indemnify, defend and hold harmless the City, its officers, boards, commissions and employees against any and all claims, suits, actions, liability and judgments for damages, including but not limited to reasonable attorney fees and costs:
(1)
Arising out of any claim for property damage or bodily injury (including death) arising out of or through the acts or omissions of the Company, its servants, agents or employees.
(2)
Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm, or corporation, for the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any Person, firm or corporation arising out of or through the acts or omissions of the Company, its servants, agents, or employees (excluding claims arising out of or relating to City programming, or statements made by City servants, agents, or employees).
(3)
Arising out of Company's failure to comply with the provisions of any federal, state, or local statute, ordinance or regulation applicable to Company in its businesses hereunder.
(c)
Condition. In order for the City to assert its rights to be indemnified and held harmless, the City must:
(1)
Promptly notify Company of any claim or legal proceeding which gives rise to such right;
(2)
Afford Company the opportunity to participate in and fully control any compromise, settlement, resolution or disposition of such claim or proceeding; and
(3)
Fully cooperate in the defense of such claim and make available to Company all such information under its control relating thereto.
(d)
Review of Coverage. The Franchise Authority may review the insurance coverage provisions set forth in Paragraph (a)(1) from time to time, and the Company agrees to provide a reasonable amount of additional insurance if reasonably required by the Franchise Authority.
SECTION 9. CONDITIONS OF STREET OCCUPANCY
(a)
Location of Poles and Fixture. The Company shall not place poles, wires or other fixtures where the same will interfere with any gas, electric, or telephone fixtures, water hydrants, water mains, public sewer lines, or traffic control devices and all such poles or other fixtures placed in any street shall be placed in the right-of-way between the roadway and the property as directed by the City.
(b)
Notice of Proposed Construction. The Company shall first obtain the approval of the City by obtaining a permit before any new construction is commenced on any of the streets, alleys, public grounds, or Public Ways of the City except where such construction involves routine maintenance or repair of facilities unless such maintenance or repair requires excavation of the Public Way. Notice is also not required where the purpose of the construction is to provide or repair a drop from the main cable or fiber to a user of the Services. The Company shall give the City reasonable written notice of the proposed new construction so as to coordinate all work between the City and the Company. In the event the City does not approve a request made by the Company within five (5) working days, the Company may appeal through a written statement submitted to the City Council within thirty (30) days from the date of the City's failure to approve.
(c)
Application. Application for approval shall contain the following material:
(1)
A written statement requesting approval.
(2)
Plans and specifications of work to be done, including cleanup and landscaping of the project.
(d)
Permits. The Company shall not open or disturb the surface of any Public Way for any purpose without first having obtained a permit to do so from the City. The System placed in the Public Ways pursuant to such permit shall be located in the Public Ways reasonably designated or approved by the City. The Company shall, upon completion of any work requiring the opening of any street or destruction of other aspects of the Public Way, restore the same, including the paving and its foundations along with all landscaping, if present before work, to as good condition as formerly, and in a manner and quality approved by the City, and shall exercise reasonable care to maintain the same thereafter in good condition. Said work shall be performed with due diligence, and if the Company shall fail to perform and complete the work within a reasonable time, to remove all dirt and rubbish and to put the Public Way in as good condition as existed prior to the work, the City shall have the right following written notice to the Company to put the Public Way in its prior condition at the expense of the Company; and the Company shall upon demand, pay to the City the cost of such work done for, or performed by, the City.
(e)
Relocation of Facilities. Whenever the City shall grade, regrade, or change the line of any street or Public Way or construct or reconstruct any sewer or water system therein and shall, with due regard to reasonable working conditions, order the Company to relocate or protect its wires, conduits, cables, and other property located in said street or Public Way, the Company shall relocate or protect its facilities at its own expense; provided, however, if the City compensates any person for similar work then the Company shall be similarly compensated. Further, where the City has determined that the location of the Company's wires, conduits, cables, and other property are unsafe, interfere with traffic control devices, or otherwise may be harmful to the public health, safety, and welfare the Company shall move such facilities to an alternate location as directed by the City. The City shall give the Company reasonable notice of plans to grade or change the line of any street or Public Way or to construct or reconstruct any sewer or water system therein or of any demand that the facilities be relocated for other reasons set forth herein. The Company may also be required to relocate its facilities where public utilities or other users of the rights-of-way require access. Such movement shall be at the expense of the third party.
(f)
Protection of Facilities. Nothing contained in this Section shall relieve any Person, from liability arising out of the failure to exercise reasonable care to avoid injuring the Company's facilities while performing any work connected with grading or changing the line of any street or Public Way or with the construction or reconstruction of any sewer or water system.
(g)
Notice of Improvements. The City shall give the Company reasonable written notice of plans for street improvements where paving or resurfacing of a permanent nature is involved that would affect the Company's facilities, which notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the time when the City is going to start the work. The notice shall be given to the Company a sufficient length of time, considering reasonable working conditions, in advance of the actual commencement of the work by the City to allow the Company to make any addition, alterations, or repairs to its facilities deemed necessary.
(h)
Facilities Not Hazardous to Public. The System shall be so located, constructed, installed, and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic, and travel upon the streets and Public Ways of the City. The Company shall keep and maintain all of its property in good condition, order, and repair, so that the same shall not menace or endanger the life or property of any Person. Adherence to the City requirements for placement of Company wires, conduits, cables and other property and facilities shall be deemed proof of compliance with this Section.
(i)
Compliance with Codes. All construction, installation, maintenance, and operation of the System or of any facilities employed in connection therewith shall be in compliance with the provisions of the National Electrical Safety Code as prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, any standards issued by the FCC or other federal or state regulatory agencies in relation thereto, and local zoning regulations.
(j)
Safety. The System shall be so designed, constructed, installed, maintained, and operated as not to endanger or interfere with the safety and well being of Persons or property in the City.
(k)
Moving of Buildings. The Company shall, on the request of any Person holding a building moving franchise, temporarily raise or lower its wires to facilitate the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the Person requesting the same, and the Company shall have the authority to require such payment in advance.
(l)
Underground Installations and Mississippi One Call. All installations shall be underground unless otherwise approved by the City. Where underground conduit exists that is either owned by the City or by other third parties, every effort will be made to reach an agreement for co-location within the existing conduit if feasible to avoid repeated excavation of street surfaces. Prior to installing any underground facility the Company shall notify the City to mark any water, sewer or other utility lines owned by the City and shall comply with the Mississippi One Call law.
(m)
Changes Required by Public Improvements. The Company shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other Public Way, or remove from the street or other Public Way, any property of the Company when required by the City by reason of traffic conditions, public safety, street vacation, freeway, and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the Company shall in all such cases have the privilege and be subject to the obligation to abandon any property of the Company in place.
(n)
Tree Trimming. The Company may trim trees or other vegetation within the right-of-way to prevent interference with its System at its expense and when so ordered by the City said trimming shall be done consistent with any applicable requirements of the City. The Company shall coordinate all entry of private property required for this purpose with the owner of the property. Should the Company fail to remove such trimmings within twenty-four (24) hours the City may remove the trimmings or have them removed, and the Company shall reimburse the City for its cost in removing trimmings and debris.
SECTION 10. FEES AND CHARGES TO CUSTOMERS
All rates, fees, charges, deposits and associated terms and conditions to be imposed by the Company or any affiliated Person for any Services as of the Effective Date shall be in accordance with the FCC's rate regulations. Before any new or modified rate, fee, charge, deposit or associated term or condition may be imposed, the Company shall follow the applicable FCC notice requirements and rules and notify affected Subscribers, which notice may be by any means permitted under applicable law. Except to the extent otherwise expressly permitted by the applicable law, the Company shall provide Services to each resident in the Franchise Area in accordance with a uniform rate structure throughout the Franchise Area. The preceding requirement shall not prevent the Company from using bulk, commercial, promotional and other rates as acceptable by federal law.
SECTION 11. MAINTENANCE AND REPAIRS.
(a)
Maintenance of System. The Company shall erect and maintain all parts of the System in good condition throughout the Term.
(b)
Interruption of Services. Whenever it is necessary to shut-off or interrupt Services for the purpose of making repairs, adjustments, or installations, the Company shall use its best efforts to do so during periods of minimum use of the System by Subscribers. Unless such interruption is unforeseen and immediately necessary, the Company shall give Subscribers reasonable notice of any planned interruption of Services. All costs incurred in repairing and correcting an interruption of Services shall be borne by the Company; provided, however, that nothing herein shall prevent the Company from recovering the costs incurred from Persons responsible for occurrences or acts which result in damage to the System or cause the interruption in Services.
(c)
Subscriber Service Office. The Company shall maintain a Subscriber service office or agent in the Franchise Area with a listed telephone number and easily accessible to Subscribers for the investigation and resolution of all complaints regarding the quality of Services, equipment malfunction, and similar matters. Subscribers shall be able to communicate with a Subscriber service office during normal working hours and without incurring long distance toll charges. Maintenance of this office within the City of Jackson or Ridgeland shall be deemed compliance with this Section.
(d)
Complaints. Any written Services complaints from Subscribers shall be investigated within twenty-four (24) hours of receipt of such complaint. Any Services complaint shall be resolved within seventy-two (72) hours. The Company shall keep a complaint log which will indicate the nature of each Services complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. The log shall be maintained for two (2) years and shall be made available for periodic inspection by City.
(e)
Inquiries and Complaint Recordation. As Subscribers are connected or reconnected to the System, the Company shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the local service office to which such inquiries or complaints are to be addressed, and furnish information concerning the City office responsible for administration of the Franchise with the address and telephone number of the office. Upon receipt or any complaint by the City, the City will forward a copy to the Company, and within such time as may be prescribed by the City, the Company shall file a written statement in response to the complaint. The City shall then have the power to make any further investigation of the complaint it deems desirable and with the agreement of the Company, may resolve the issue raised by the complaint.
(f)
Dual Filings. Should the Franchisee file any document with state or federal authorities concerning this Franchise it shall also file one copy with the City.
SECTION 12. SERVICE.
(a)
Construction. Company has or will fully construct the System depicted on Exhibit A hereto within ninety (90) days of the Effective Date. The Company may expand its System within the Franchise Area upon compliance with the City's permitting and other requirements set forth in Section 9.
(b)
Additional Territory. In the event additional adjacent territory is incorporated within the City's limits, by annexation or otherwise, the Company's rights and duties under this Franchise shall be deemed to include such additional territory.
SECTION 13. MANDATORY EQUIPMENT AND SERVICE.
During the Term of this Franchise the City shall have the right, free of charge, to use the facilities of the Company for the transmission of signals in any emergency situation or for the purposes of civil defense, pursuant to FCC regulations and guidelines for such use.
SECTION 14. COMPLIANCE WITH CONSTRUCTION AND TECHNICAL STANDARDS.
The Company shall upon request provide the Franchise Authority reasonable notice of any testing required by the FCC within ninety (90) days of said notice and the Franchise Authority will be allowed to have representatives present for such testing at its option. Company shall provide the City, upon request, with a written report of the results of Company's annual proof of performance tests conducted pursuant to FCC standards and requirements along with other FCC tests.
SECTION 15. RIGHT OF PRIVACY.
The Company shall comply with the laws governing the right of privacy of its Subscribers, as promulgated by the U.S. Congress and the FCC.
SECTION 16. PREFERENTIAL OR DISCRIMINATORY PRACTICES.
Except as otherwise permitted herein or by applicable law, the Company shall not as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any undue preference or advantage to any Person, except for bulk-rate discounts to multi-dwelling units such as apartment complexes, mobile home parks, businesses, and comparable facilities. The Company may however establish a graduated scale of charges and classified rate schedules and may wave or reduce charges made by the Company during promotional campaigns in accordance with its tariffs and applicable laws. It is understood and agreed that any waiver or reduction of charges made by the Company during promotional campaigns will reduce the Gross Revenues of the Company, and to that extent, may reduce the Franchise Fee due to the City.
SECTION 17. UNAUTHORIZED PRACTICES AND PENALTIES.
(a)
Unauthorized Connections Prohibited. It shall be unlawful for any Person, firm, or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a franchised telecommunications system within the City for the purpose of taking or receiving telecommunications, internet access or sound.
(b)
Unauthorized Connections Without Payment Prohibited. It shall be unlawful for any Person, firm, or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a franchised System within this City for the purpose of enabling himself/herself or others to receive any telecommunications, internet service, or sound, without payment to the owner of said System.
(c)
Tampering with System Equipment Prohibited. It shall be unlawful for any Person, without the consent of the Company, to willfully tamper with, remove, or injure any cables, wires, or equipment used or owned by Company.
(d)
Penalties for Violation. The violation of any provision of Section 17 of this Ordinance is hereby made a misdemeanor, and the same shall be punishable by a fine of not more than Two Hundred Dollars ($200.00). Each day any violation shall continue shall constitute a separate offense.
SECTION 18. COMPLIANCE WITH APPLICABLE LAW.
(a)
The Company shall at all times comply with all laws, ordinances and regulations of the federal, state and City governments or any administrative agencies thereof. If any federal or state law or regulation shall be in conflict with the terms of this Franchise, or any ordinance of the City, then as soon as possible following knowledge thereof, the Company shall notify the City of the point of conflict.
(b)
This Franchise Agreement shall be enforceable under any and all provisions of Mississippi law providing authority to a municipality to provide for a franchise or, alternatively, as consent by the municipality to use its streets, sidewalks, sewers, parks and other Public Ways subject to the provisions set forth herein under any provision or provisions of Mississippi law that may provide such authority whether in the form of a franchise, license permit, consent, regulation or by other means.
SECTION 19. PENALTIES.
For the violation of any of the following provisions of this Franchise penalties shall be chargeable as follows:
(a)
Failure to Test, Analyze or Report. For failure to test, analyze, and report on the performance of the System as required by the technical standards of the FCC following a request pursuant to this Franchise, Company shall pay to City Fifty Dollars ($50.00) per working day for each day, or part thereof, that such noncompliance continues.
(b)
Failure to Comply with FCC Technical Standards. Ninety (90) days following adoption of a resolution of the City Council determining a failure of Company to comply with FCC technical standards, Company shall pay to City Two Hundred Dollars ($200.00) per day for each day, or part thereof, following the 90 day period, that such noncompliance continues.
SECTION 20. ENFORCEMENT AND TERMINATION.
(a)
Breach. In addition to all other rights and powers retained by the City under this Franchise or otherwise, the City reserves the right to terminate the Franchise and all rights and privileges of the Company hereunder in the event of a substantial breach of its terms and conditions. A substantial breach by Company shall include the following:
(1)
Violation of any material provision of the Franchise or any material rule, order, regulation or determination which the City is authorized to make under the terms of this Franchise.
(2)
Attempt to evade any material provision of the Franchise or attempts to practice any fraud or deceit upon the City or its Subscribers;
(3)
Failure to begin or complete System construction as provided under the Franchise;
(4)
Failure to provide the types of Services promised herein; or
(5)
Material misrepresentation of fact in the application for or negotiation of the Franchise.
(b)
Excuse for Breach. The foregoing may not constitute a substantial breach if the violation occurs, but the City Council finds it is without fault of the Company or occurs as a result of circumstances beyond its control. Company shall not be excused by mere economic hardship or by misfeasance or malfeasance of its directors, officers or employees.
(c)
Force Majeure. The Company shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Company's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Company's cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary.
(d)
Notice of Violation. In the event the Franchise Authority believes the Company has not complied with the provisions of this Franchise, the City shall make a written demand that the Company comply with any such provision, rule, order, or determination under or pursuant to this Franchise. If the violation by the Company continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the City may place the issue of termination of the Franchise before the City Council. The City shall cause to be served upon Company, at least twenty (20) days prior to the date of such a Board meeting, a written notice of intent to request such termination, the provisions of the Ordinance under which termination is sought, and the time and place of the meeting. Public notice shall be given of the meeting and issues that the Board is to consider pursuant to the requirements of Mississippi law.
(e)
Consideration of Breach. The City Council shall hear and consider the issue and shall hear any Person interested therein, and shall determine whether or not any substantial breach by the Company has occurred.
(f)
Declaration of Forfeiture. If the City Council shall determine the violation by the Company was the fault of Company and within its control, the Board may, by resolution (1) seek specific performance of any provisions which reasonably lends itself to such remedy, as an alternative to damages; or (2) commence or action at law for monetary damages; or (3) declare a substantial breach and declare that the Franchise of the Company shall be terminated unless there is compliance within such period as the Board may fix, such period not to be less than sixty (60) days, provided no opportunity for compliance need be granted for fraud or misrepresentation.
(g)
Automatic Placement on Agenda. The issue of termination shall automatically be placed upon the agenda for public hearing pursuant to Mississippi law at the expiration of the time set by it for compliance. The Board then may terminate the Franchise forthwith upon finding that Company has failed to achieve compliance or may further extend the period, in its discretion.
SECTION 21. FORECLOSURE.
The Company shall notify the City of any pending foreclosure action not more than ten (10) days following actual notice by the Company that foreclosure has been commenced. Upon the foreclosure or other judicial sale of all or a substantial part of the System, or upon the termination of any lease covering all or a substantial part of the System, the Company shall notify the City a change in control of the Company has taken place, and the provisions of this Franchise governing the consent of the Franchise Authority to such change in control of the Company shall apply.
SECTION 22. RECEIVERSHIP.
The Franchise Authority shall have the right to cancel this Franchise one hundred twenty (120) days after the appointment of a receiver or trustee, to take over and conduct the business of the Company, whether in receivership, reorganization, bankruptcy or other action of proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
(a)
Time for Compliance. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this Ordinance and remedied all defaults thereunder; and
(b)
Execution of Agreement. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Ordinance and the Franchise granted to the Company.
SECTION 23. RULES AND REGULATIONS.
(a)
In addition to the inherent powers of the City to regulate and control the Franchise, and those powers expressly reserved by the City herein, the right and power is hereby reserved by the City to promulgate such additional regulations as it shall find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of this Franchise as long as such additional regulations conform with applicable Federal law regulating any Services provided hereunder.
(b)
The City may also adopt such regulations at the request of the Company upon application.
SECTION 24. RIGHTS OF AMENDMENT RESERVED TO CITY.
The City and Company expressly reserve the right to renegotiate the terms of this Franchise and, upon agreement by both parties, to amend or supplement its provisions.
SECTION 25. FAILURE OF CITY TO ENFORCE THIS FRANCHISE, NO WAIVER OF THE TERMS THEREOF.
The Company shall not be excused from complying with any of the terms and conditions of this Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.
SECTION 26. SEVERABILITY.
If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held illegal, invalid, or unconstitutional by any court of competent jurisdiction or the FCC, such decision shall not affect the validity of the remaining portions. The invalidity of any such portion of this Ordinance shall not abate, reduce, or otherwise affect any consideration or other obligation required by the City of the Company under the Franchise granted.
SECTION 27. ACCEPTANCE BY THE COMPANY.
The Franchise granted pursuant to this Ordinance and its terms and provisions shall be unconditionally adopted by written instrument executed and acknowledged by the appropriate officials of the City and delivered to the Company which shall accept same not later than twenty (20) days after receiving it by acknowledging the Company's acceptance in writing.
SECTION 28. NOTICE.
All notices called for in this Franchise shall be written notice and will be considered as being completed notice when mailed by registered mail or certified mail return receipt requested and addressed to the party to be notified as shown below:
To City: City of Indianola
101 Front Street
Indianola, Mississippi 38751To Company: Contact Network, Inc. DBA//InLine
600 Lakeshore Parkway
Birmingham, AL 35209ON MOTION by Alderman Carver Randle, Jr., seconded by Alderwoman Vivian Michelle Jenkins and carried with an AYE by Alderman Larry Brown, Alderman Otis Anthony, II, Alderwoman Vivian Michelle Jenkins and Alderman Carver Randle, Jr., with Alderman Gary Fratesi absent, to approve this foregoing Ordinance and Franchise Agreement with InLine, Inc., on this the 12th day of August, 2013.
____________
Steve Rosenthal, Mayor
City of Indianola, MississippiATTEST:
____________
Jane Evans, City Clerk
City of Indianola, MississippiThis Franchise has been accepted by InLine, Inc., this ____________ day of ____________ .
Contact Network, Inc. DBA//InLine
By: ____________
Jon GiffordTitle: VP Broadband & Government
EXHIBIT A. MAP OF SYSTEM
(Ord. of 8-12-2013)