* WARNING: THIS IS AN UNOFFICIAL, INTRODUCTORY COPY OF THE BILL.
THE OFFICIAL COPY CONSIDERED BY THE CITY COUNCIL IS THE FIRST READER COPY.
INTRODUCTORY*
CITY OF BALTIMORE
COUNCIL BILL
Introduced by: The Council President
At the request of: The Administration (Mayor's Office of Cable and Communications)
A BILL ENTITLED
AN ORDINANCE concerning
Title
Franchise - Cavalier IP TV, LLC
FOR the purpose of granting a franchise to Cavalier IP TV, LLC, to construct, operate, and maintain a cable communications system in and across certain streets and public ways, subject to certain terms, conditions, and reservations; and providing for a special effective date.
Body
BY authority of
Article VIII - Franchises
Baltimore City Charter
(1996 Edition)
SECTION 1. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF BALTIMORE, That a franchise or right is granted to Cavalier IP TV, LLC (the "Grantee") to construct, operate, and maintain a cable communications system, subject to the terms and conditions of this Ordinance and the Franchise Agreement between the Mayor and City Council of Baltimore and the Grantee, in substantially the form attached to this Ordinance, as approved by the Board of Estimates on __________, 200_ (the "Franchise Agreement").
SECTION 2. AND BE IT FURTHER ORDAINED, That Grantee shall provide a modern and uniform cable communications system to the residents and institutions within the service area delineated in the Franchise Agreement (the "Service Area") and, to that end, may construct, operate, and maintain this cable communications system, as specified in the Franchise Agreement, in and across the streets and public ways in the Service Area.
SECTION 3. AND BE IT FURTHER ORDAINED, That for the franchise or right granted by this Ordinance (the "Franchise") to become effective, the Grantee must notify the Board of Estimates, within 30 days of the effective date of this Ordinance, that the Grantee accepts the Franchise. The Grantee's failure to so notify the Board of Estimates constitutes a refusal to accept the Franchise, and, in that event, this Ordinance and the Franchise granted by it will be abrogated and of no further effect.
SECTION 4. AND BE IT FURTHER ORDAINED, That also for the Franchise to become effective, the Franchise must be executed and enjoyed by the Grantee within 6 months after the effective date of this Ordinance.
SECTION 5. AND BE IT FURTHER ORDAINED, That the term of the Franchise is 12 years, commencing on the effective date of this Ordinance, subject to renewal terms and to earlier termination as provided in the Franchise Agreement.
SECTION 6. AND BE IT FURTHER ORDAINED, That this ordinance does not affect or modify the mutual rights, duties, and obligations under Baltimore City Ordinance No. 41, approved May 9, 1889, of: (1) the Mayor and City Council of Baltimore; and (2) the Chesapeake and Potomac Telephone Company of Baltimore City and the Chesapeake and Potomac Telephone Company.
SECTION 7. AND BE IT FURTHER ORDAINED, That the Mayor and City Council of Baltimore expressly reserves the right at all times to exercise, in the interest of the public, full municipal superintendence, regulation, and control over and in respect to all matters connected with the Franchise and not inconsistent with the terms of this Ordinance.
SECTION 8. AND BE IT FURTHER ORDAINED, That this Ordinance takes effect on the date it is enacted.
Mayor, Baltimore City
BALTIMORE CITY CABLE TELEVISION
FRANCHISE AGREEMENT
BY AND BETWEEN
THE MAYOR AND CITY COUNCIL OF BALTIMORE
AND
CAVALIER IP TV, LLC
TABLE OF CONTENTS
INTRODUCTORY CLAUSES
SECTION 1. DEFINED TERMS.
SECTION 2. GRANT OF AUTHORITY; TERM.
2.1 Grant of Franchise.
2.2 Term of Franchise
2.3 Renewal
2.4 Reservation of Authority
SECTION 3. CONSTRUCTION STANDARDS.
3.1 General Requirement
3.2 Standards and Specifications
3.3 Licenses and Permits
3.4 Right of Inspection
3.5 Report on Permits
3.6 New Grades or Lines
3.7 Movement of Cables, Wires, and Other Equipment
3.8 Emergency Removal
3.9 Notices of Construction
3.10 Protection of Public Property and Landmarks
3.11 Pavement Cut Coordination
3.12 Safety Precautions
3.13 No Interference with Facilities or Equipment
3.14 Trimming of Trees and Vegetation
3.15 Aerial and Underground Construction
3.16 Open Conductors and Sheathing
3.17 Poles and Facilities
3.18 Map Accuracy
3.19 Storage of Slack Coil
3.20 Membership Required
SECTION 4. SERVICE OBLIGATIONS.
4.1 Service to All Persons
4.2 Requests for Service
4.3 Prohibition Against Reselling Service
4.4 Disconnection for Cause
4.5 Residential Subscribers Served under Bulk Agreements
4.6 Continuity of Service
4.7 Ownership of Installed Wiring
SECTION 5. CABLE SYSTEM FACILITIES, EQUIPMENT, AND SERVICES.
5.1 Cable System Design and Capacity; Technical Performance
5.2 Signal Quality and Security
5.3 Leased Services
5.4 Interactive Services/Two-Way Cable Modem Service
5.5 Audio Services
5.6 Digital Television Programming
5.7 Signals/Channels
5.8 Parity with Neighboring Jurisdictions
5.9 Testing
5.10 Headend/Hubs Design and Intrasystem Interconnection
5.11 System Bandwidth and Capacity
5.12 Emergency Override
SECTION 6. PUBLIC SERVICES.
6.1 Provision of Peg Channels
6.2 Number of Peg Channels
6.3 Allocation and Use of Peg Channels
6.4 Signal Input Points
6.5 Capital Support for Equipment and Facilities for Peg Channels
6.6 Publicity
6.7 Leased Access
6.8 Cost Borne by Franchisee
SECTION 7. EMPLOYMENT AND PURCHASING.
7.1 Equal Employment Opportunity
7.2 Hiring
7.3 MBE/WBE
7.4 Prequalification
7.5 Compliance
SECTION 8. FEES AND CHARGES.
8.1 General Requirement
8.2 Notice of Change
8.3 No Discrimination
8.4 Service to Disabled Subscribers
8.5 Subsequent Changes
SECTION 9. CUSTOMER SERVICE STANDARDS, CUSTOMER BILLS, AND PRIVACY PROTECTION.
9.1 Consumer Protection Standards
9.2 Customer Bills
9.3 Privacy Protection
9.4 Service Centers; Bill Payment Locations; Administrative Office
9.5 Service Interruptions
9.6 Service Complaints
9.7 Information to Subscribers
9.8 No Interference with Customer Equipment
SECTION 10. FRANCHISE FEES.
10.1 Franchise Fees; Payment Due
10.2 Quarterly Report
10.3 Acceptance by City
10.4 Itemization
10.5 Ordinary Business Expense
10.6 Payments to Be Made to the City
10.7 Franchise Fee and Other Audits
10.8 Not Franchise Fees
10.9 Method of Payment
10.10 Interest on Late Payments
SECTION 11. OVERSIGHT AND REGULATION BY CITY.
11.1 Oversight
11.2 City Reservation of Authority
11.3 Franchisee's Participation in Meetings and Hearings
11.4 Performance Evaluation Sessions
11.5 General Provisions Regarding Reports and Records
11.6 Franchisee Report
11.7 Related Services Report
11.8 Significant Construction Progress
11.9 Technical Performance Documents
11.10 Additional Filings
11.11 Books and Records
11.12 Inspection of Cable System
11.13 Files for Public Inspection
11.14 Transfer of Interest
11.15 Transfer of Control or Stock
11.16 Petition
11.17 Transfer Review Period
11.18 Notice to Franchisee That Information Is Complete; Extensions
11.19 City Decision
11.20 Scope of Inquiry
11.21 Conditions
11.22 Franchisee Liability
11.23 Permitted Encumbrances
11.24 Effect of Unauthorized Sale or Transfer
11.25 No Waiver
SECTION 12. INSURANCE AND INDEMNITY.
12.1 Liability
12.2 Indemnification
12.3 Insurance
SECTION 13. ENFORCEMENT, REMEDIES, AND TERMINATION.
13.1 Rights and Remedies Not Exclusive
13.2 Security Fund
13.3 Liquidated Damages
13.4 Remedies for Breach
13.5 Obligations upon Termination
13.6 City's Right to Order Removal or to Acquire or Effect a Transfer of the System
13.7 Franchisee's Obligations
13.8 Other Provisions
13.9 Termination
13.10 Performance Bond
SECTION 14. MISCELLANEOUS PROVISIONS.
14.1 Delays and Failures Beyond Control of Franchisee
14.2 Notice
14.3 Public Notice
14.4 Appendices
14.5 Entire Agreement
14.6 Modification
14.7 Severability
14.8 Preemption
14.9 Governing Law
14.10 Priority of Maryland Laws
14.11 Action Taken by City
14.12 Venue
14.13 Additional Representations and Warranties
14.14 Survival of Representations and Warranties
14.15 No Waiver; Cumulative Remedies
14.16 Cooperation
14.17 No Opposition
14.18 Binding Effect
14.19 No Recourse Against the City
14.20 Interpretation
14.21 Headings and Interpretation
14.22 Terms
14.23 Days and Time; Computation of Time
14.24 No Agency
14.25 Delegation of City Rights
14.26 No Third Party Beneficiaries
14.27 Time of the Essence
APPENDIX A. SYSTEM CHARACTERISTICS APPENDIX B. PEG SIGNAL INPUT POINTS
APPENDIX C. RATE CARD
APPENDIX D. FORM OF LETTER OF CREDIT
APPENDIX E. OWNERSHIP INTERESTS
BALTIMORE CITY CABLE TELEVISION FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT is made and entered into this day of , 200_, by and between THE MAYOR AND THE CITY COUNCIL OF BALTIMORE, a municipal corporation of the State of Maryland ("City"), and CAVALIER IP TV, LLC, a Delaware limited liability company with its principal place of business at 2134 West Laburnum Avenue, Richmond, Virginia 23227 ("Franchisee"):
WITNESSETH:
WHEREAS, the City, pursuant to Article II, Sec. 35A and Article VIII of the City Charter (as defined in Section 1), is authorized to grant and renew non-exclusive, revocable franchises for Cable Services (as defined in Section 1) within the City; and
WHEREAS, pursuant to the federal Cable Act (as defined in Section 1), the Congress established certain procedures and standards for cable franchising in order to, among other purposes, encourage the growth and development of cable systems, assure that cable systems are responsive to the needs and interests of the local community, assure that cable operators provide and are encouraged to provide the widest possible diversity of information services and other services to the public and assure that access to Cable Services is not denied to any Person (as defined in Section 1); and
WHEREAS, Franchisee has requested that the City grant a non-exclusive franchise on terms to be agreed by the City and the Franchisee; and
WHEREAS, in response to the request submitted by the Franchisee, the City, pursuant to the terms of the Cable Act, performed a technical review of the system and identified the future cable-related community needs and interests,; and
WHEREAS, the Franchisee offered to provide certain services (as defined in Section 1) and the Franchisee and the City subsequently engaged in arm's-length negotiations regarding the terms and conditions of a proposed franchise; and
WHEREAS, the construction, installation, maintenance of a Cable System (as defined in Section 1) involves the occupation of, and placement of private commercial facilities in, the Public Ways (as defined in Section 1) within the City; and
WHEREAS, pursuant to Article VIII, Section 2 of the City Charter, a final franchise shall be granted by an ordinance of the Council (as defined in Section 1) for the compensation and on the terms approved by the vote or resolution of the Board (as defined in Section 1); and
WHEREAS, the Board held a public hearing on the proposed franchise agreement memorializing the compensation, terms and conditions of the proposed franchise; and
WHEREAS, said hearing was a full public proceeding affording due process at which the Board reviewed the Franchisee's character and its financial, legal and technical ability to carry out its obligations pursuant to this Agreement (as defined in Section 1), and reviewed the Franchisee's plan for operating, maintaining, upgrading, and enhancing the System (as defined in Section 1); and
WHEREAS, the City has relied on the Franchisee's representations and has considered the information that the Franchisee has presented to it; and
WHEREAS, the City has determined that, subject to the terms and conditions set forth in this Agreement, the grant of a non-exclusive franchise to the Franchisee is consistent with the federal Cable Act, the City Charter, all other applicable laws and regulations, and the public interest; and
WHEREAS, the Board approved the compensation, terms and conditions of the proposed franchise, as set forth in this Agreement; and
WHEREAS, the Council adopted an Ordinance authorizing the Mayor to execute this Agreement and granting the Franchisee a non-exclusive franchise on the terms and conditions set forth in this Agreement; and
WHEREAS, the City intends to exercise the full scope of its powers, including its police power and contracting authority, to: promote the public interest; protect the public health, safety and welfare of its residents; assure the widespread availability of cable television services; maximize the diversity of programming over the System (as defined in Section 1) and access to the System by Persons other than the Franchisee; promote access to advanced services and technologies for City residents and institutions; develop programming and services by the City and its institutions for delivery to the public over the System; and experiment with and implement uses for Cable Systems (as defined in Section 1) in connection with the City's operations; and
WHEREAS, the City and Franchisee have reached agreement on the terms and conditions set forth in this Agreement through arm's-length negotiations, and voluntarily agree to be bound by those terms and conditions;
NOW, THEREFORE, in consideration of the foregoing clauses, which clauses are hereby incorporated in and made a part of this Agreement by this reference, the mutual promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby covenant and agree as follows:
SECTION 1 DEFINED TERMS
For purposes of this Agreement, the following terms, phrases, words and their derivations shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future tense, words used in the plural number include the singular number, and words used in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section 1.
"Abandonment" means the cessation, by act or failure to act of the Franchisee or any Affiliated Person, of the provision of all, or substantially all, of the Services then being provided over the System to Subscribers or the City for seven (7) or more consecutive days, except if due to an event beyond the control of the Franchisee as set forth in Section 14.1 of this Agreement.
"Affiliated Person" means each Person who falls into one (1) or more of the following categories:
(i) each Person having, directly or indirectly, a Controlling Interest in the Franchisee;
(ii) each Person in which the Franchisee has, directly or indirectly, a Controlling Interest;
(iii) each officer, director, general partner, limited partner holding an interest of five percent
(5%) or more, joint venturer, or joint venture partner of the Franchisee; and
(iv) each Person, directly or indirectly, controlling, controlled by or under common Control with
the Franchisee;
provided that Affiliated Person shall in no event mean the City, any PEG Entity, or any creditor of the Franchisee solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of falling within clause (iii) of this definition or by reason of owning a Controlling Interest in; being owned by; or being under common ownership, common management or common Control with; the Franchisee.
"Agreement" or "Franchise Agreement" means this Agreement, together with the Appendices attached to this Agreement, and any amendments or modifications.
"Applicable Law" means all federal, state, and local laws, statutes, codes, ordinances, resolutions, orders, rules, and regulations, including but not limited to all FCC resolutions, orders, rules, and regulations, and the Baltimore City Charter; and the administrative and judicial decisions interpreting these sources of law, but in all uses Applicable Law shall be limited by Section 11.2 of this Agreement.
"Board" means the Board of Estimates of Baltimore City, its designee, or any successor to its powers and responsibilities.
"Business Day" means any day that is not a Holiday.
"Cable Service" means: (i) the one-way transmission to Subscribers of (a) video programming or (b) other programming service, and (ii) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
"Cable System" means any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include:
(i) a facility that serves only to retransmit the television Signals of one or more television broadcast stations;
(ii) a facility that serves Subscribers without using any Public Ways;
(iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title
II of the Communications Act of 1934, approved June 19, 1934 (48 Stat. 1070; 47 U.S.C. § 201 et seq.), as amended, except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the Cable Act (47 U.S.C. § 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services;
(iv) an Open Video System that complies with Section 653 of the Cable Act (47 U.S.C. § 573)
(or any successor thereto) and the rules promulgated pursuant to that section; or
(v) any facilities of any electric utility used solely for operating its electric utility systems.
The foregoing definition of "Cable System" shall not be deemed to circumscribe the valid authority of any governmental body, including the City, to regulate the activities of any other communications system or provider of communications services.
"Channel" means a band of frequencies in the electromagnetic spectrum utilizing various means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which band of frequencies is capable of carrying one (1) or more video, audio, voice, or data Signals.
"City" means the Mayor and City Council of Baltimore, Maryland or, as appropriate in the case of specific provisions of this Agreement, any board, bureau, authority, agency, commission or department of, or any other entity of or acting on behalf of, the Baltimore City government or any officer, official, employee, or agent of the Baltimore City Government, any designee of any of the foregoing, or any successor thereto.
"City Charter" means the Baltimore City Charter, 1996 edition.
"City Solicitor" means the City Solicitor of the City, the City Solicitor's designee, any person legally acting in such capacity, or any successor to his powers and responsibilities.
"Comptroller" means the Comptroller of the City, the Comptroller's designee, any person legally acting in such capacity, or any successor to her powers and responsibilities.
"Control" of or "Controlling Interest" in a Person or in the Cable System or the Franchise, means working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of such Person, the Cable System, or the Franchise. A rebuttable presumption of the existence of Control of, or a Controlling Interest in, a Person shall arise from the beneficial ownership, directly or indirectly, by any Person or group of Persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of five percent (5%) or more (for voting interests), or fifty percent (50%) or more (for non-voting interests), of such Person. Control or Controlling Interest as used in this Agreement may be held simultaneously by more than one (1) Person or group of Persons. Notwithstanding the preceding sentence, if one (1) Person owns a majority of the voting interests of a Person, the Cable System, or the Franchise, such owner shall have sole Control of and shall possess the sole Controlling Interest in such Person, the Cable System, or the Franchise unless another Person exercises de facto control (as that term is defined under the precedents of the Federal Communications Commission) of the Controlled Person, the Cable System, or the Franchise, in which case such other Person also shall have Control and a Controlling Interest.
"Council" means the City Council of the City, its designee, or any successor to its powers and responsibilities.
"Criminal Act" means the commission of a crime, and shall include, but not be limited to:
A. Any material misrepresentation, either oral or written, intentionally or grossly negligently made by, or on behalf of, the Franchisee in connection with any representation or warranty contained in this Agreement, or the negotiation or renegotiation of this Agreement, or any amendment or other modification to this Agreement that is in violation of any criminal law, provided that either the Franchisee has admitted to such conduct or a court of competent jurisdiction has determined that the Franchisee engaged in such conduct;
B. The conviction, guilty plea or plea of nolo contendere (or an equivalent plea) of the Franchisee, any Person holding a Controlling Interest in the Franchisee, or any director or officer of the Franchisee or of any Controlling Person, of: (i) any criminal offense relevant to fitness to own or operate a Cable System, excluding traffic infractions; or (ii) any offense, including, without limitation, bribery or fraud, arising out of or in connection with (a) this Agreement or any other agreement to construct, operate or maintain a Cable System in the City; (b) the award of the Franchise granted pursuant to this Agreement; or (c) any act to be taken following the Effective Date of this Agreement by the City, its officers, employees or agents relating or pursuant to this Agreement, provided that the right to terminate this Agreement in the event of such convictions or guilty pleas shall arise only with respect to any of the foregoing convictions of the Franchisee itself and, in the event of the conviction or guilty plea of any of the other Persons specified, the City shall have the right to order the Franchisee to disassociate itself from, or terminate the employment of, said other Persons with respect to activities in the City or any other activities affecting the System pursuant to this Agreement;
C. The conviction, guilty plea or plea of nolo contendere (or an equivalent plea) of any City officer, employee or agent of the offense of bribery, extortion or fraud with respect to this Agreement which arises out of or in connection with an interaction between such Person and the Franchisee, any Person holding a Controlling Interest in the Franchisee, or any agent or employee of any of the foregoing acting under the express direction or actual consent of the foregoing, provided that the interaction was initiated by the Franchisee, any Person holding a Controlling Interest in the Franchisee or any agent or employee of any of the foregoing.
"Current Technology," as applicable, means that level of technical or service performance in terms of quality, reliability, capacity, and capability (including, but not limited to, plant or other equipment; public, educational, or governmental access and other production equipment or facilities; construction techniques; customer service; facilities, equipment, systems, and operations; and performance standards) which has been developed and demonstrated in the cable industry or any other comparable industry that provides services to the public under similar conditions to be workable and Economically and Technically Feasible and Viable, as such level may develop from time to time throughout the Term of the Franchise.
"Day" or "Days" means calendar day or days unless otherwise specified.
"Digital Service" means a Service which is transmitted in a digital format.
"Digital Television Channel" means a Channel which is transmitted in a digital format; which utilizes digital compression and encryption technologies; and which occupies sufficient bandwidth to enable the transmission of a high-quality television program at the Cable System's standard compression level(s).
"Direct Bury" means installation of fiber optic or coaxial cable or wires directly in the ground without any casing, conduit, or other covering thereon. Often, a Direct Bury is done using a pull-type or self-propelled machine to plant or bury such cable or wire in a continuous, one-step operation, eliminating trenching and backfilling.
"DOT" shall mean the City's Department of Transportation, its designee, or any successor thereto.
"DPW" shall mean the City's Department of Public Works, its designee, or any successor thereto.
"Drop" means the cable or wire that connects the distribution portion of a Cable System to a Subscriber's premises.
"Economically and Technically Feasible and Viable" means capable of being provided through technology that has been demonstrated to be feasible for its intended purpose, in an operationally workable manner, and in a manner whereby the Cable System has a reasonable likelihood of being operated on reasonably profitable terms.
"Effective Date" means the later of (1) the date on which the Franchisee fulfills all conditions precedent as set forth in Section 2.2C of this Agreement and this Agreement shall take effect; or (2) December 31, 2007.
"FCC" means the Federal Communications Commission, or the successor to its responsibilities.
"Franchise" means the non-exclusive right granted, by ordinance and subject to this Agreement, to Franchisee to construct, operate, repair, maintain, and reconstruct the Cable System on, over, under, upon, across, and along the Public Ways.
"Franchise Area" or "Service Area" shall mean all the area within the boundaries of the City.
"Franchisee" means Cavalier IP TV, LLC.
"Gross Revenue" means all revenue, as determined in accordance with generally accepted accounting principles, that is derived by the Franchisee and by each Affiliated Person from the operation of the Cable System to provide Cable Services.
A. Gross Revenue shall include, to the extent it is received by the Franchisee, revenue from any other Person, including, without limitation, Leased or PEG Channel programmers, that is derived from the operation of the Cable System to provide Cable Services.
B. Gross Revenue shall include by way of example and without limitation:
1. the fair market value of any non-monetary (i.e., barter) transactions between the Franchisee and any Affiliated Persons, which fair market value shall not be less than the customary prices paid in connection with equivalent transactions conducted with Persons who are not Affiliated Persons;
2. revenue received by the Franchisee which represents or can be attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of merchandise through any Cable Service distributed over the Cable System;
3. franchise fees received from Subscribers;
4. fees received from Subscribers to support PEG Channels;
5. any revenue generated by the Franchisee or by any Affiliated Person through any means which has the effect of avoiding the payment of compensation that would otherwise be paid to the City for the Franchise granted in this Agreement;
6. any revenue from Subscriber equipment sold or leased by the Franchisee or an Affiliated Person;
7. late fees and administrative fees;
8. revenue derived from program guides;
9. revenue derived from forfeited deposits;
10. revenue derived from installation, disconnection, or service call fees;
11. revenue derived from game channels;
12. studio rental, production equipment, and personnel fees;
13. revenue derived from commissions;
14. any actual bad debt that is written off but subsequently collected (such bad debt shall be included as Gross Revenue for the period in which it is collected); and
15. other revenues that may be posted in the general ledger as an offset to an expense account.
C. Gross Revenue shall also include all advertising revenue which is derived, directly or indirectly, from or in connection with the sale of advertising on the Cable System, whether by the Franchisee, or whether collected by an Affiliated Person or any other Person for Franchisee. If the advertising revenue received from the Affiliated Person is only net advertising revenue, advertising revenues from an Affiliated Person shall be grossed up as if the Franchisee had received the advertising revenue directly. Notwithstanding the preceding sentence, standard and reasonable commissions retained by a regional interconnect that is an Affiliated Person may be excluded from Gross Revenue.
D. Gross Revenue shall not include:
1. any compensation awarded to the Franchisee based on the City's condemnation of property of the Franhisee;
2. the revenue of any Person, including, without limitation, a supplier of programming to the Franchisee, to the extent that such revenue is also included in Gross Revenue of the Franchisee;
3. the revenue of the Franchisee or any other Person which is generated directly from the sale of any merchandise through any Service distributed over the Cable System, other than that portion of such revenue which represents or can be attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such merchandise - for example, the portion of such payment attributable to a commission for the Franchisee or an Affiliated Person-which portion shall be included in Gross Revenue;
4. taxes imposed by law on Subscribers which the Franchisee is obligated to collect, it being acknowledged that Franchise Fees under this Agreement are not considered taxes;
5. amounts collected by the Franchisee from Subscribers on behalf of Leased or PEG Channel programmers, other than Affiliated Persons, to the extent that all of the amounts collected, in excess of the amounts deducted pursuant to Section 10.6 of this Agreement and paid to the City, are passed on by the Franchisee to such programmers;
6. the revenue of any Affiliated Person which represents standard and reasonable amounts paid by the Franchisee to the Affiliated Person for ordinary and necessary business expenses of the Franchisee, including, without limitation, professional service fees and insurance or bond premiums;
7. advertising commissions deducted by advertising agencies, other than an agency which is an Affiliated Person, before advertising revenues are paid over to the Franchisee;
8. to the extent consistent with generally accepted accounting principles, consistently applied, actual bad debt write-offs taken in the ordinary course of business;
9. amounts recovered by Franchisee for theft or loss of portions of the Cable System, such as pedestal boxes, that were previously written off;
10. investment income; and
11. payments received by the Franchisee or an Affiliated Person that represent a reimbursement
for work performed by the Franchisee or its agents on behalf of a contractor or third party, where payment for such work would not normally be considered Gross Revenue based on the nature of the work performed.
"Holiday" means a Saturday, Sunday, officially recognized federal or City legal holiday, and any other day on which the City's offices are closed and not reopened before 4:00 p.m.
"Leased Channel" means a Channel on the Subscriber Network designated by the Franchisee pursuant to Section 612 of the Cable Act (47 U.S.C. § 532).
"Liability" or "Liabilities" means any and all encumbrances, defects of title, easements, mortgages, security interests or agreements, pledges, liens, charges, damages, expenses, penalties, fines, costs, conditional sales agreements, title retention agreements, claims, assessments, restrictions, liabilities, obligations, debts, commitments, undertakings, taxes, covenants, attorneys' and other fees and responsibilities of every kind and character, known and unknown, contingent or otherwise, or arising or existing by operation of law, by judicial decree or judgment, by contract or otherwise, including, without limitation, those evidenced by contracts, agreements, memoranda, indentures, mortgages and security agreements and conditional sales and other title retention agreements. "Liability" or "Liabilities" shall also mean any damage or loss to any real or personal property of, or any injury to or death of, any Person or the City.
"MOCC" means the Mayor's Office of Cable and Communications of the City, its designee, or any successor to MOCC.
"Non-Cable Service" means any Service which is distributed over the Cable System, other than a Cable Service.
"Non-Residential Subscriber" means a Subscriber, other than a Residential Subscriber, who lawfully receives any Service the Franchisee provides through its Cable System.
"Open Video System" means an Open Video System as defined in Section 653 of the Cable Act (47 U.S.C. § 573) (or any successor thereto) and the rules promulgated pursuant to that section.
"PEG Channels" means public Channels, educational Channels, and government Channels provided by Franchisee under Section 6 and shall include leased access Channels provided pursuant to Section 6.8.
"PEG User" means a Person authorized to administer or operate a PEG Channel or the I-Net, and shall include the City. If several Persons share a PEG Channel, each Person shall be a separate PEG User.
"Person" shall mean any natural person or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for-profit or not-for-profit.
"Public Way" means 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 utilized for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the Franchise Area, which, consistent with the purpose for which it was dedicated, may be utilized for the purpose of installing, operating, repairing, and maintaining the Cable System after negotiation of terms and conditions mutually satisfactory to the City, the Franchisee, and the appropriate public utility. Public Way also means any easement now or hereafter held by the City within the Franchise Area for the purpose of public travel, or for utility or public service use utilized for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the City and the Franchisee to the use for the purposes of installing, operating, and maintaining the Franchisee's Cable 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 Cable System. Public Way shall not include any City buildings, structures, or other improvements, regardless of whether they are situated in a public right-of-way.
"Region" means Anne Arundel County, Baltimore City, Baltimore County, Carroll County, Harford County, and Howard County.
"Resident" means (i) any occupant who resides in a dwelling in the City, including, without limitation, occupants of hotels, apartment houses, one- and two-family dwellings, apartment hotels, motels, lodging or rooming houses, rectories, convents, monasteries, school dormitories, hospitals, prisons, reformatories, nursing homes, mental institutions, clinics, orphanages, day nurseries, homes for the aged and sanitariums; or (ii) as otherwise defined by Applicable Law. However, with respect to prisons, reformatories, and mental institutions, the Franchisee's obligation shall be only to provide Services to common areas in such facilities, to the extent that the Franchisee can obtain the consent of such prison, reformatory, or mental institution for the provision of such Services. In the case of any other commercial or institutional facility (such as a hotel, a dormitory, a hospital, a nursing home, etc.), the Franchisee shall negotiate the terms of providing Services to Residents in such institutional facility.
"Residential Subscriber" means a Resident who lawfully receives any Service on the Subscriber Network, except to the extent that such Services are used by the Subscriber in connection with a trade, business, or profession, either directly or indirectly, unless such use is incidental.
"Security Fund" means the fund established in Section 13.2 of this Agreement.
"Service" means (i) any Cable Service, including any Basic Service, or any other service, whether originated by the Franchisee or any other Person, which is offered to any Person in conjunction with, or distributed over, the Cable System; and (ii) any Non-Cable Service provided for public, educational, or governmental use.
"Service-Related Activity" means any activity or function associated with the production or distribution of any Service over the Cable System, including, without limitation, the use of studio or other facilities equipment, billing, audience promotion, or installation or lease of equipment.
"Signal" means any transmission of radio frequency energy or of optical information.
"Significant Construction" means any major alteration, construction, reconstruction, upgrade, rebuild or enhancement of the System in the Franchise Area, during the Term of this Agreement or for such longer time as the Franchisee operates the System, the costs of which are estimated to be more than One Million Dollars ($1,000,000) over a twenty-four month period; but excluding therefrom any item not located or occurring within, abutting, or affecting any City property or Public Way.
"Standard Installation" means: (i) any installation by which cable service is delivered to a Subscriber over existing copper twisted-pair wires leased by Franchisee from an incumbent local exchange carrier, as unbundled network elements in Franchisee's collocation sites in central offices, without causing new equipment, facilities, or outside plant to be built or added, and without having existing equipment, facilities, or outside plant reengineered or modified, and with twisted-pair wires able to support Internet protocol (IP) download speeds of 10 Megabits per second (Mbps) and IP upload speeds of 1 Mbps utilizing digital subscriber line (DSL) technology; or (ii) with respect to Franchisee-constructed cable plant, any installation by which cable service is delivered to a Subscriber using a cable that connects the Network Interface Device at the Subscriber's residence or institution to the nearest distribution cable of the Subscriber Network (within one hundred fifty (150) feet or less).
"System" means, subject to Section 13.6 of this Agreement, the Cable System constructed, operated, and maintained by the Franchisee pursuant to this Agreement, including, without limitation, all real property, all tangible and intangible personal property, buildings, offices, furniture, Subscriber lists, cables, wires, amplifiers, and all other electronic devices used in connection with the Cable System and all rights, contracts, and understandings with regard to any matter related to the Cable System.
"Subscriber" means any Person lawfully receiving any Service provided by the Franchisee by means of or in connection with the Cable System, whether or not a fee is paid for such Service.
"Subscriber Network" means that portion of the Cable System over which Services are provided primarily to Residential Subscribers.
"Term" shall have the meaning set forth in Section 2.2 of this Agreement.
"Two-Way" means that the headend, cables, hubs, distribution plant, amplifiers and other technical components of the Cable System have the requisite equipment in place to pass video, audio, voice and/or data Signals in both directions simultaneously.
SECTION 2
GRANT OF AUTHORITY; TERM
2.1 Grant of Franchise.
A. General. City hereby grants to Franchisee, subject to the terms and conditions of this Agreement and the Franchise grant ordinance, a non-exclusive Franchise with the right, privilege and authority to construct, operate, repair, maintain, and reconstruct a Cable System on, over, under, upon, across, and along the Public Ways within the Franchise Area in accordance with the City's specifications and this Agreement. The grant of this non-exclusive Franchise is expressly conditioned upon the construction, operation, maintenance, repair, and reconstruction of the Cable System in accordance with the terms of this Franchise. The rights granted hereunder, including, without limitation, rights to utilize the Public Ways, shall not be sold, transferred or assigned without the approval of the City.
B. Compliance with Law. The Franchise granted under the terms and conditions of this Agreement shall be consistent with the Baltimore City Charter, the laws, regulations and rules of the City, and other applicable statutory requirements. In the event of conflict between this Agreement and the terms and conditions on which the City can grant a franchise, the Charter, the laws, regulations and rules of the City, and any such statutory requirements shall control; provided, however, that the terms and conditions of this Agreement may not be affected by any law, regulation, or rule adopted after the Effective Date of this Agreement unless: (1) the content of the law, regulation, or rule was not permitted to be enacted as of the Effective Date, or (2) the law, regulation, or rule is of general applicability.
C. No Waiver of Other Permits and Authorizations. Nothing in this Agreement shall be construed as a waiver of any laws, regulations or rules of the City or of the City's right to require the Franchisee or any Person using the Cable System to secure the appropriate permits or authorizations for such use, provided that the fees and charges imposed upon the Franchisee for any such permit or authorization shall be the standard fees or charges generally applicable to all Persons for such permits or authorizations, and any such standard fee or charge: (i) shall not be considered a "franchise fee" under 47 U.S.C. § 542(g)(1); (ii) shall fall within the exception to such term pursuant to 47 U.S.C. § 542(g)(2)(A); and (iii) shall not be an offset against the compensation or other payment the Franchisee, an Affiliated Person or other Person is required to pay the City or any other entity pursuant to Sections 6 and 10 of this Agreement.
D. Non-Cable Services. Except as otherwise provided in this Agreement, the Franchise neither authorizes the Franchisee to, nor prohibits the Franchisee from, providing any Non-Cable Services, provided that this limitation shall not limit the use of the PEG Channels by the City or PEG Users. The use of the Cable System for Non-Cable Services shall be subject to separate additional approval by City if permitted by Applicable Law. Any use of the Cable System for Non-Cable Services shall be reported in writing to MOCC not less than fifteen (15) Days after the Franchisee has begun such use. Nothing in this Agreement shall be interpreted to prevent the City from imposing additional lawful conditions, including additional compensation provisions, for use of the Public Ways if the Franchisee provides any service other than Cable Service.
E. Closing of Public Ways. Nothing in this Agreement shall be construed as a waiver or release of the rights of the City in and to the Public Ways. In the event that all or part of the Public Ways within the Franchise Area are (1) closed to pedestrian and/or vehicular traffic and/or utilities and services such as Cable Services; or (2) vacated or if ownership of the land under the affected Public Ways is otherwise transferred to another Person, all rights and privileges granted pursuant to this Agreement with respect to such Public Ways, or any part of such Public Ways so closed, vacated, or transferred, shall cease upon the effective date of such closing, vacation, or transfer, and Franchisee shall remove its Cable System from such Public Ways. If such closing, vacation, or transfer of any Public Way is undertaken for the benefit of any private Person, the City shall, as appropriate, condition its consent to such closing, vacation, or transfer of such Public Way on the agreement of such private Person to: (i) grant the Franchisee the right to continue to occupy and use such Public Way; or (ii) reimburse the Franchisee for its reasonable costs to relocate the affected part of the Cable System. The City shall provide reasonable prior notice to Franchisee of any such closing, vacation, or transfer to allow Franchisee to remove its Cable System where the right to continue to occupy and use such Public Way is not reserved for Franchisee.
2.2 Term of Franchise.
A. Established. The Franchise granted shall be for a term commencing upon the Effective Date of the Agreement and terminating on December 31, 2019, unless the Franchise is renewed or is lawfully terminated in accordance with the terms of this Agreement.
B. Conditions Precedent. The Franchise shall commence upon the Effective Date, provided that the Franchisee shall have met each of the conditions precedent set forth below and otherwise in this Agreement (unless the City agrees to waive any of the conditions precedent), at which time it shall become effective:
1. Board and Council Action. All necessary approvals of this Agreement by the City shall have been obtained.
2. Certified Copies of Resolutions. The Franchisee shall provide the City with a certified copy of resolution(s) duly adopted by the Franchisee approving the execution, delivery and performance of this Agreement and approving the execution, delivery and performance by Franchisee of all other documents, certificates, guarantees and other instruments required to be furnished to the City by and pursuant to the terms of this Agreement.
3. Representations and Warranties. The Franchisee shall provide the City with a certificate by the Franchisee certifying that the representations and warranties made in this Agreement are true and correct as of the Effective Date.
4. Labor Employment Plan. The Franchisee shall have executed Baltimore City Residents First Certification Statement as set forth in Section 7.2 of this Agreement.
5. Related Services Report. The Franchisee shall have submitted to MOCC the Related Services Report, as set forth in Section 11.7 of this Agreement.
6. Location of Customer Service Center(s). The Franchisee shall have notified MOCC of the proposed location(s) of its customer Service Center(s) within the City.
7. Insurance. The Franchisee shall have secured its insurance policies as set forth in Section 12.3 of this Agreement and delivered the certificate of insurance to MOCC and the City Solicitor, together with evidence that the premium for each of such policies have been paid, that the policies will be in effect on or before the Effective Date, and that the policies are in accordance with this Agreement.
8. Security Fund. The Franchisee shall have complied with the Security Fund requirements pursuant to Section 13.2 of this Agreement.
9. Letter of Credit. The Franchisee shall have delivered to MOCC and the City Solicitor a fully executed letter of credit in the form set forth in Appendix D to this Agreement.
10. Permitting and Licensing Compliance. DOT and DPW shall each have certified that the
Franchisee is in compliance with all applicable permitting, leasing, and licensing requirements under City law.
11. Clean Hands Certification. The Franchisee shall have paid all amounts due and owing to the
City, including, but not limited to, taxes, fees, fines, penalties and interest.
2.3 Renewal. Any renewal of this Franchise shall be governed by and comply with the provisions of Applicable Law.
2.4 Reservation of Authority. Nothing in this Agreement shall abrogate the right of the City to perform any public works or public improvements of any description or be construed as a waiver of any codes or ordinances of general applicability promulgated by the City, or be construed as a waiver or release of the rights of the City in and to the Public Ways. In the event that the Cable System interferes with the construction, operation, maintenance or repair of such public works or public improvements, the Franchisee shall, at its own cost and expense, protect or promptly alter or relocate the Cable System as directed by the City. In the event that Franchisee refuses or neglects to so protect, alter or relocate all or part of the Cable System, or in the event of fire, disaster or other emergency, the City shall have the right to break through, remove, alter or relocate, without notice to Franchisee, all or part of the Cable System and the Franchisee shall pay to City the costs incurred in connection with such breaking through, removal, alteration or relocation. In the event that the City or any public or quasi-public entity reimburses costs for other occupants of the Public Ways which this Section 2.4 imposes on the Franchisee, it will not be a breach of this Agreement for the Franchisee to request that the City or such public or quasi-public entity, as the case may be, bear some or all of the Franchisee's costs.
SECTION 3 CONSTRUCTION STANDARDS
3.1 General Requirement. Throughout the Term, and for such other time as it may take the Franchisee to remove the System pursuant to Section 13 of this Agreement, the Franchisee shall comply with the terms, conditions, and provisions set forth in this Section, and all other requirements or procedures pertaining to construction and technical requirements that are specified by the City or Applicable Law.
3.2 Standards and Specifications.
A. Compliance with Standards and Specifications. The Franchisee shall meet or exceed all construction and service requirements required by this Agreement, the Baltimore City Code, and Applicable Law. All work involved in the construction, operation, repair, maintenance, upgrade, Significant Construction, rebuild, enhancement, and removal of the System shall be performed in a safe, thorough, and reliable manner using materials of good and durable quality. The Franchisee shall comply with applicable codes and industry standards, including the specifications set forth in the most recently published DPW guidelines and standards and the "City of Baltimore Department of Public Works Specifications for Material, Highways, Bridges, Utilities, and Incidental Structures (2006)," as amended from time to time ("Green Book"); administrative orders of the City Department of Transportation, as amended from time to time; the National Electrical Code, as adopted by the City from time to time; the National Electrical Safety Code, as adopted by the City from time to time; all rules, standards, practices, and procedures of the FCC and National Cable Television Association, as amended from time to time; and the requirements of other utilities whose poles and conduits the Franchisee uses, as amended from time to time.
B. Antennas and Towers. Antenna supporting structures and towers shall be designed for the proper loading as specified in Electronic Industry Association's R.S. 222-C Specifications. In addition, antenna supporting structures and towers shall be designed in accordance with the International Building Code, as amended, and shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other Applicable Law.
C. Plant and Equipment. The Franchisee's plant and equipment, including, without limitation, the antenna and satellite earth station sites, headend and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures, and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel, so as not to endanger or interfere with improvements made by the City, interfere in any manner with the rights of any property owner, or unnecessarily hinder or obstruct pedestrian or vehicular traffic on any Public Way.
D. Correction of Harmful or Unsafe Conditions. If, at any time, the City or any other agency or authority of competent jurisdiction determines that, consistent with Applicable Law, 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, the City shall notify the Franchisee of the circumstances and the Franchisee shall then, at its sole cost and expense, within a reasonable time period specified by the City or such agency or authority, correct all such conditions. The Franchisee shall promptly notify MOCC and the Directors of DPW, DOT, and the Baltimore City Department of Health (or any successor thereto) of any determination or finding by an agency or authority of competent jurisdiction that any part of the System is harmful to the health or safety of any Person, and in no event later than twenty-four (24) hours after receiving notice of such a determination or finding.
E. Standards for Drawings and As-Builts. Whenever a drawing, illustration, or other depiction is required by this Agreement or by the City, the Franchisee shall ensure that such drawing, illustration, or depiction is drawn to scale, shows all existing utilities, and complies with Green Book standards, including, but not limited to, the following:
1. All shop drawings and working drawings shall be completely legible and drawn to scale on sheets, twenty-four inch (24") by thirty-six inch (36") outside dimensions, and with border lines set back three-quarters of an inch (3/4") on the top, bottom, and right hand side of the sheet and one and one-quarter (1-1/4") on the left hand side of the sheet. After all work is completed, all drawings shall be corrected to show all parts of the structure as finally built. The tracings shall then be turned over to the DPW and become the property of the City, except for tracings of reinforced steel, which need not be turned over to the City.
2. All shop drawings and working drawings shall include a four inch (4") by eight (8") standard title block in the lower right corner. The title block shall state the following:
a. Name of contractor and subcontractor if applicable;
b. Address of contractor and subcontractor if applicable;
c. Sheet Title, including reinforcement details;
d. Name of structure;
e. Crossing; and
f. Signature block.
F. Prohibited Construction Techniques. In Public Ways and on City property:
1. Franchisee shall not use, or cause to be used, the "back of sidewalk" or "lip of gutter" construction techniques.
2. Franchisee shall not perform any installations using the Direct Bury technique; provided, however, that Drops or portions thereof that: (i) are located under structures or improvements of any kind, including, without limitation, paving, sidewalks, driveways, fences, walls, garages, sheds, and the like, shall not be performed using the Direct Bury technique and shall be encased or enclosed in a conduit, covering, concrete, or other material consistent with the City standards and specifications in Section 3.2A, and (ii) are not located under such structures or improvements may be performed using the Direct Bury technique.
G. No Obstruction. The Franchisee shall not obstruct the Public Ways, subways, railways, passenger travel, river navigation, or other traffic to, from, or within the Franchise Area without the required permits from and the prior consent of the City and all other appropriate public or private authorities.
3.3 Licenses and Permits. The Franchisee shall be solely responsible for obtaining, at its sole cost and expense, all permits, licenses, and other forms of approval or authorization necessary to construct, operate, maintain, repair, upgrade, perform Significant Construction to, rebuild, enhance, or remove the System, or any part of the System, prior to the commencement of any such activity. In the event of an emergency which poses a serious risk to life or public safety, the Franchisee may carry out any work necessary to eliminate the emergency to the extent consistent with Applicable Law. Any blanket permit issued by the City to the Franchisee shall only authorize the Franchisee to perform everyday maintenance and emergency repair. If, during the performance of any work authorized by a blanket permit, Franchisee performs any work in the Public Ways that is not authorized by the blanket permit, Franchisee shall file for all required permits no later than the following Business Day. Where work is pursuant to a blanket permit, the Franchisee shall submit a list of proposed work locations by the 25th of each month for the succeeding months.
3.4 Right of Inspection. The City shall have the right to inspect all construction and installation work performed subject to the provisions of this Agreement and to conduct such tests as it deems necessary to ensure compliance with this Agreement and Applicable Law; provided, however, that such inspection and tests shall not interfere with the provision of Services. The City shall be permitted to charge the Franchisee its usual and customary fees for the inspection of construction in the streets. Any delays in construction due to such inspections shall not be reason for default.
3.5 Report on Permits. Not later than the fifteenth (15th) Day after the close of each calendar quarter during the period of any Significant Construction, the Franchisee shall provide MOCC with a cumulative written list of the permits that the Franchisee or any Affiliated Person has received from the City through the last Day of the preceding calendar quarter. The report shall list the type of permit, the location(s) of the work being performed under the permit, the date the work started or is projected to start, and the date the work stopped or is projected to stop. The Franchisee shall omit a permit from this list after such permit has expired and not been renewed for three (3) consecutive months.
3.6 New Grades or Lines. If the grades or lines of any Public Way are changed at any time during the Term of this Agreement, then the Franchisee shall, at its sole cost and expense and within ten (10) Days after actual or constructive notice from the City, or within such longer time period as may be reasonably requested by the Franchisee, protect, alter, or relocate the System, or any part of the System, so as to conform with the new grades or lines. In the event that the Franchisee refuses or neglects to so protect, alter, or relocate all or part of the System within the time period specified by this Section 3.6, the City shall have the right to break through, remove, alter, or relocate all or any part of the System without any Liability of the City to the Franchisee, and the Franchisee shall pay to the City the costs incurred in connection with such breaking through, removal, alteration, or relocation.
3.7 Movement of Cables, Wires, and Other Equipment. The Franchisee shall, upon written notice delivered not less than ten (10) Days in advance by the City or any Person holding a permit that authorizes an activity (including, but not limited to, movement of a structure) that requires movement of cables, wires, or other equipment, move its cables, wires, and other equipment to allow the permitted activity to be completed in a timely manner. The Franchisee may impose a charge, not to exceed its Actual Cost plus 15%, on any such permit holder other than the City, for any such movement of its cables, wires, and other equipment. This Section 3.7 shall not be construed to be a limitation on Section 2 of this Agreement.
3.8 Emergency Removal. If, at any time, in case of fire or other disaster, the Mayor or the Mayor's designee determines
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