ORDINANCE NO. 2002-O2


An ordinance granting a nonexclusive Franchise for the maintenance and operation in the Village of Capitan, New Mexico, 88316 of a cable system.

Be it ordained by the Village of Capitan of Lincoln County of the state of New Mexico:

Section 1. Grant of Non-Exclusive Franchise.

There is hereby granted to the Village of Capitan and assigned a non-exclusive Franchise to Interlink Communications Partners, LLC, d/b/a Charter Communications, hereinafter referred to as the "Franchisee," to operate and maintain a cable system for a period of fifteen (15) years, with option to renew for an additional fifteen (15) years upon renegotiation and acceptance by both parties.

Section 2. Definitions.

For the purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. The word "shall" is always mandatory and not merely directory.

1.    "Village" shall mean the Village of Capitan.

2.    "Board" shall mean the governing body of the Village of Capitan

3.    "Franchise" shall mean the authorization to operate a cable television system, including all mutual rights, duties and obligations of the Franchisee and the Village as contained in this Ordinance.

4.    "Franchisee" shall mean Interlink Communications Partners, LLC, d/b/a Charter Communications, its successor or any affiliated company in accordance with the provisions of this Ordinance.

5.    "Gross Proceeds" shall mean those proceeds received from monthly charges paid by subscribers within the corporate limits for services (exclusive of attachment charges for installations or extensions).

6.    "System" shall mean those antennas, cables, wires, lines towers, waveguides, or other conductors, converters, equipment or facilities, designed and constructed within the Village for the purpose of producing, providing, receiving, transmitting, amplifying and distributing, audio, video and other forms of electronics or directional duplex signals.

Section 3. Grant of Authority.

Franchisee shall be given the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over, and under the streets, allys, Public ways now laid out or dedicated and in compatible easements, and all extensions, thereof, and additions thereto, in the Village, poles, wires, cables, underground conduits, manholes, and other equipment and fixtures necessary for the maintenance and operation of a cable system.

Franchisee shall raise or lower wires or equipment upon the reasonable request of any third person, including any person holding a building permit.  Expenses associated with raising and lowering the wires or equipment shall be paid by the person requesting the same (except in cases where Franchisee is required to bear the costs under other provisions of this Franchise) andthe Franchisee may require advance payment. Franchisee shall be entitled to require that it be given up to ten (10) days advance notice by the person requesting the movement.

Section 4. Compliance with Applicable Laws.

Franchisee, shall, at all times during the life of this Franchise, be subject, when not inconsistent with this Franchise, to all lawful exercise of the police power by the Village and to such reasonable regulation as the Village shall hereafter provide.

Section 5. Compliance with FCC Regulation.

Franchisee shall comply with all applicable rules and regulations of the Federal Communications Commission.

Copies of all petitions, applications and communications submitted by the Franchisee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect of any matters directly affecting Cable System operations authorized pursuant to the Franchise, shall be submitted to the Board upon request.

Section 6. Compliance with Electrical Standards.

Construction and maintenance of the transmission and distribution system including house connections, shall be in accordance with the provisions of the National Electrical Safety Code of the National Board of Fire Underwriters, and such safety codes as now exist or which may be established in the future. In the event of a conflict among safety codes, the strictest standard shall apply.

Section 7. Franchise Requirements for Other Franchise Holders.

In the event that Village grants one (1) or more Franchise(s) or similar authorization(s), for the construction, operation and maintenance of any communication facility which shall offer services substantially equivalent to services offered by the Franchisee it shall not make the grant on more favorable or less burdensome terms. If Franchisee finds that the agreement(s) granting said other Franchise(s) contain provisions imposing lesser obligations on the Company(s) thereof than are imposed by the provisions of this Franchise, Franchisee may petition Village for a modification of this Franchise. The Franchisee shall be entitled, with respect to said lesser obligations to such modification(s) of this Franchise as may be determined to be necessary to insure fair and equal treatment by this Franchise and said other agreements.

In the event that a non-Franchise multichannel video programming distributor provides service to the residents of the Village, the Franchisee shall have a right to request Franchise amendments that relieve the Franchisee of regulatory burdens that create a competitive disadvantage to the Franchisee. In requesting amendments, the Franchisee shall file a petition seeking to amend the Franchise. Such petitions shall:

1.    Indicate the presence of a non-Franchised competitor(s);

2.    Identify the basis for Franchisee's belief that certain provisions of the Franchise place Franchisee at a competitive disadvantage;

3.    Identify the regulatory burdens to be remanded or repealed in order to eliminate the competitive disadvantage.

The Village shall not unreasonably withhold granting the Franchisee's petition and so amending the Franchise.

Section 8. Cable System Franchise Required

No cable system shall be allowed to occupy or use the streets or public right-of-way of the Village or be allowed to operate without a cable system Franchise.

Section 9. Service Territory.

Franchise shall include the entire area of the Village.

Franchisee's distribution system shall be capable of providing service to all potential subscribers requesting service within the incorporated  limits of the city and shall extend its distribution system to serve additional subscribers in any unserved areas of the Village as of the effective date of this Ordinance whenever the number of unserviced homes passed by such extension would exceed forty (40) homes per mile; provided that such extensions are technically and economically feasible to the Franchisee.

Where the length of a drop cable required to serve an individual resident would exceed 150 feet, the subscriber served by such a drop cable shall pay the cost of installing a feeder cable to a point where the subscriber will receive a signal without degradation of picture quality or reliability.

Section 10. Customer Service.

Franchisee shall comply with applicable Federal, State and local laws for the protection of privacy of cable subscribers.

Franchisee shall render efficient repair service, and interrupt service only for good cause and for the shortest time possible. All non-emergency service requests and complaints shall be responded to within five (5) days of receipt. All emergencies and/or system outages will be responded to within twenty-four (24) hours.

Franchisee shall give Village thirty (30) days prior notice of any rate increases, channel lineup or other substantive service changes.    

The Franchisee shall by appropriate means, as subscribers are connected or reconnected to the system, furnish information concerning the procedures for making inquiries and/or complaints, including the name, address and toll-free telephone number of the Franchisee.

The equipment installed by the Franchisee in the subscriber's home shall remain the property of the Franchisee and shall be subject to reasonable inspection and service by the Franchisee at reasonable hours, and removal upon non-payment or termination of the service.

Section 11. Community Programming.

Franchisee shall reserve one local access/PEG (Public, Education, Government) Channel.

Section 12. Service to Village.

Franchisee shall provide and maintain one free connection of basic cable service to the Village Office, fire stations, and to all public and parochial primary and secondary schools located in the Village. The cost of any internal wiring shall be borne by the institution.

Such connections shall be provided at such times as service can be provided from the Franchisee's existing distribution plant. If a distribution plant extension of the system is, required which imposes an undue economic hardship, the Franchisee shall have the right to petition the Village for relief from the service commitments of this Section. Service shall be provided to newly constructed Village facilities under the same terms and conditions and as soon as practical, but in no ever later than two (2) years from the date of occupancy.

Section 13. Fee to Village.

Franchisee shall pay to the Village for the privilege of operating a cable system under this Franchise two percent (2%) of its gross proceeds received from monthly charges paid by subscribers within the corporate limits for service (exclusive of attachment charges for installationsor extensions), in accordance with the Cable Act. Such percentage shall be payable, to the Village on a monthly basis due no later than twenty five (25) days following the end of the period.

Village shall have the right to inspect for up to three (3) previous years the Franchisee's records showing its gross receipts for all services from which its contracted payouts are computed. No acceptance of any payout by the Village shall be construed as a release of or an accord or satisfaction of any claim the Village might have for further or additional sums payable under the terms of this Franchise.

Section 14. Conditions on Street Use.

Franchisee shall endeavor to obtain rights to use facilities belonging to other Franchise holders within the Village. Approval of the assignment of such rights to the Franchisee by such other Franchise holders is hereby expressly given by the Village, it being the intention of the Village that the Franchisee will utilize public utility facilities where feasible.

All transmission and distribution structures, lines, and equipment erected by the Franchisee within the Village shall be located so as not to interfere with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys, or other public ways and places, and not to interfere with existing public utility installation.

If the Franchisee disturbs any pavements, sidewalks, driveways or other surfacing, it shall, at its own expense, and in the manner provided by the Village, replace and restore all such pavings, sidewalks, driveways or other surfaces of any streets or alleys thus disturbed.

If at any time during the period of this Franchise, the Village shall lawfully elect to alter, or change the grade or alley, or other public ways, the Franchisee shall upon reasonable notice by the Village, remove and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense, and in each instance comply with the requirements of the Village.

Section 15. Indemnification and Insurance.

Workers' Compensation
 Statutory Limits


Commercial General Liability
 $1,000,000 per occurrence,

Combined Single Liability

(C.S.L.)

$2,000,000 General Aggregate


Auto Liability including coverage
 $1,000,000 per occurrence C.S.L.
on all owned, non-owned and
hired autos


Umbrella Liability
 $1,000,000 per occurrence C. S.L.
   
The Village shall be added as an Additional Insured to the above Commercial General Liability and Auto Liability Insurance Coverage.

The Franchisee shall furnish the Village with current Certificates of Insurance evidencing such coverage on request.

Section 16. Notice.

Any notices to be sent to the parties hereto shall be sent to the following addresses; unless either party notifies the other in writing of another address:


 Charter Communications
Village of Capitan
 Atten: Vice President
Office of the Mayor
 Government Relations
P.O.Box 246
 12444 Powerscourt, 4th Floor
Capitan, N.M.88316
 St. Louis, MO 63131

Section 17. Duration and Renewal of Franchise.

This Franchise and the rights, privileges and authority hereby granted shall take effect and be in force thirty (30) days from and after the final passage hereof and upon filing of acceptance by the Franchisee, and shall continue in force and effect for a term of fifteen (15 years).

This Franchise may be renewed for an additional fifteen (15) years if the Franchisee has substantially complied with the material terms of the Franchise and with applicable law.

Section 18. Emergency Use of Facilities.

In the case of any emergency or disaster, the Franchisee shall upon request of the Village, make available its facilities for emergency use during the, emergency or disaster.

Section 19. Public Records.

The Village shall have access to records and other like materials of the Franchisee upon reasonable prior notice as mutually agreed upon by the Village and Franchisee.

Section 20. Forfeiture of Franchise.

(a)    In addition to all other rights and powers pertaining to the Village by virtue of this Franchise or otherwise, the Village reserves the right to terminate and cancel this Franchise and all rights and privileges of the Franchisee hereunder in the event that the Franchisee:

(1)    Violates any provision of this Franchise.
(2)    Becomes insolvent, unable or unwilling to pay its debts, is adjudged bankrupt;
(3)    Practices any fraud or deceit upon the Village.

(b) Such termination and cancellation shall be by Ordinance duly adopted after thirty (30) days written notice to the Franchisee and shall in no way affect any of the Village's rights under this Franchise or any provisions of law. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact shall be made by the Board or its representative. Before this Franchise may be terminated and canceled under this Section, the Franchisee must be provided with an opportunity to be heard before the Board and an opportunity to cure any condition leading to termination or cancellation. If the Franchisee has corrected the condition leading to termination or cancellation within the thirty (30) days written notice of termination or cancellation, or, if such correction requires more than thirty (30) days, has begun to correct any such condition, this Franchise shall remain in effect.

(c) Prevention or delay of any performance under the Franchise due to circumstances beyond the control of Franchisee or Village including, but not limited to, natural disaster, employee strikes or war shall not be deemed noncompliance with or a violation of this Franchise.

Section 21. Equal Employment Opportunity Compliance.

Franchisee shall comply at all times with applicable Federal, State and local laws and all executive and administrative orders relating to nondiscrimination, equal employment and affirmative action.

Section 22. Severability.

If any section, subsection, sentence, clause, phrase, or portion of this Franchise is for any reason held invalid, unconstitutional or unenforceable, such portion shall be deemed a separate, distinct and independent provision and such holding shall not effect the validity of the remaining portions hereof

Section 23. Integration.

    This Franchise sets forth the entire Franchise between the parties respecting the subject matter hereof. All agreements, covenants, representations and warranties, express and  implied, oral and written, of the parties with regard to the subject matter hereof are contained herein. No other agreements, covenants, representations and warranties, express or implied, oral or written, have been made by any party to another with respect to the matter of this. Franchise. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and superseded hereby and thereby. This is an integrated Franchise.

Section 24. Rate Regulation.

To the extent that Federal or State Law or regulation may now, or as the same may hereafter be amended to, authorize the Village to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Franchisee, the Village shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the Village. If and when exercising rate regulation, the Village shall abide by the terms and conditions set forth by the FCC.




                      Dated this ______________  day of ________________,    20___.

                                                                                    Village of Capitan






                                                                                    By:__________________________
                                                                                         Mayor/Executive





___________________________
Witness

___________________________
(Print Name)



                                                                                     Interlink Communications, LLP
                                                                                     d/b/a Charter Communications




                                                                                     By:___________________________
                                                                                          Senior, Vice President. Operations


                                                                                     Dated:________________________



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