HomeMy WebLinkAboutOrd 358 Granting a Franchise Agreement with Millennium TelcomTOWN OF WESTLAKE
ORDINANCE NO. 358
AN ORDINANCE GRANTING A FRANCHISE TO MILLENNIUM TELCOM, L.L.C. FOR
USE OF PUBLIC RIGHTS-OF-WAY IN THE TOWN OF WESTLAKE FOR THE
PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A CABLE SYSTEM;
REQUIRING EXECUTION OF A FRANCHISE AGREEMENT BETWEEN THE TOWN
OF WESTLAKE AND MILLENNIUM TELCOM, L.L.C. REGARDING CONDITIONS,
AND REQUIREMENTS RELATED TO THE USE OF PUBLIC RIGHTS-OF-WAY IN THE
TOWN OF WESTLAKE AND TO THE CONSTRUCTION, MAINTENANCE AND
OPERATION OF A CABLE SYSTEM AND TO THE PROVISION OF CABLE SERVICES
TO RESIDENTS OF THE TOWN OF WESTLAKE AND TO REASONABLE
COMPENSATION TO THE TOWN OF WESTLAKE FOR THE USE OF THE PUBLIC
RIGHTS-OF-WAY; PROVIDING FOR PUBLICATION; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the following statements are true and correct and constitute the basis upon
which the Board of Aldermen of the Town of Westlake ("the Town") has adopted this ordinance.
WHEREAS, Millennium Telcom, L.L.C. ("the Company") wishes to construct a cable
television system and to provide cable television services in the Town of Westlake. In accordance
with the ordinances of the Town, the Company has applied for a franchise from the Town in order
to carry out those purposes.
WHEREAS, the Company is a Texas limited liability Company owned equally by Value
Choice, Inc. and One Source Communications, L.L.C. Value Choice, Inc. is a wholly-owned
subsidiary of Tri -County Electric Cooperative, Inc., a Texas corporation. One Source
Communications, L.L.C. is owned by TLJ Limited Partnership, an Oklahoma limited partnership;
C. Roger Hutton, an individual; and Conley L. Cathey, an individual.
WHEREAS, the Town has reviewed the Company's franchise application and determined
that the granting of a franchise, on the terms and conditions set forth herein, will assist the cable -
related needs and interests of the community, including, but not limited to, the provision of necessary
competition in cable services and participation in the provision of valuable public, educational and
governmental programming.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE TOWN
OF WESTLAKE, TEXAS:
Section 1: The Town hereby grants the Company a franchise to erect, construct, install
and maintain a Cable System in, over, under, along and across the Public Rights -of -Way in
accordance with the Town's right-of-way Ordinance No. 350 and to transact business related to the
provision of Cable Service over such Cable System subject to the execution by Company of a
Franchise Agreement in the form attached hereto as Exhibit A, which is hereby made a part of this
Ordinance for all purposes.
Section 2: This ordinance shall be in full force and effect following (i) its adoption; and
{ ii) in accordance with Section 1, the execution of the Franchise Agreement attached hereto as
Exhibit A.
PASSED AND APPROVED ON THIS 24TH DAY OF APRIL, 2000.
ATTEST: Scott Bradley, Mayor
&'�Tg-& Crosswy, To ecretary Trent O. Petty, Town ager
Exhibit A
FRANCHISE AGREEMENT
The following statements are true and correct and constitute the basis upon which the Town
of Westlake has executed this Franchise Agreement.
The Board of Aldermen of the Town of Westlake has adopted an ordinance that
grants Millennium Telcom, L.L.C. a franchise to erect, construct, install and maintain a cable
television system in, over, under, along and across the Public Rights -of -Way in the Town of
Westlake, which installation and maintenance must at all times be in accordance with the
Town's Right -of -Way Management Ordinance adopted pursuant to Ordinance No. 350 (the
d"Right -of -Way Management Ordinance), and to transact business related to the provision of
abble services over such cable television system ("Franchise Ordinance"), subject to the
execution by Company of this Franchise.
A. In accordance with the Franchise Ordinance, Millennium Telcom, L.L.C. desires to
enter into this Franchise and guarantee unconditional performance of Millennium Telcom,
L.L.C.'s duties and obligations under this Franchise.
Agreement
1 DEFINITIONS.
Words not defined herein shall be given the meaning set forth in the Communications Act
of 1934 as amended by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and
if not defined therein, the words shall be given their common and ordinary meaning. Capitalized
terms used in this Franchise and not otherwise defined within this Franchise shall have the following
meanings:
Act means the federal Communications Act of 1934, as amended by the Cable Communications
Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and
the Telecommunications Act of 1996.
Affiliate means any individual, partnership, association, joint stock Company, limited liability
Company, trust, corporation, or other person or entity who owns or controls, or is owned or
controlled by, or is under common ownership or control with, the entity in question.
Cable Business means the provision by Company of Cable Service solely by means of Company's
Cable System.
Cable Service means only:
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❑ The one-way transmission to Subscribers of (i) Video Programming or (ii) other
programming services, by which is meant information which Company makes
available to all Subscribers; and
❑ Subscriber interaction, if any, which is required for the selection or use of such Video
Programming or other programming service; and
❑ Institutional Network Services.
Cable System means a 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 the Town, but
such term does not include (i) a facility that serves only to re -transmit the television signals of one
or more television broadcast stations; (ii) a facility that serves subscribers without occupying any
portion of the Public Rights -of -Way; (iii) a facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the Act, except that such a facility shall be considered a
Cable System (other than for purposes of Section 621(c) of the Act) 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 Act; or (v) any facilities of any electric utility used solely for operating its electric
utility systems.
Company means Millennium Telcom, L.L.C.
Town means the Town of Westlake, Texas.
Complaint means, by way of illustration and not limitation, a telephone call or written
communication notifying Company of a problem relating to Company's billing or billing practices,
Company's equipment, picture quality, failure to receive one or more channels, a change in
Company's practice or policy, Company advertising or other business practice, the conduct of a
Company employee or contractor, or the failure of Company or a service representative to comply
with any applicable customer service regulations.
Drop means the cable or wire that connects the distribution portion of Company's Cable System to
a Subscriber's premises, whether it be a single or multi tenant. If the drop is multi tenant then a
drop will apply to each tenant.
Facilities means all duct spaces, manholes, poles, conduits, underground and overhead passageways,
and other equipment, structures and appurtenances and all associated transmission media in the
Public Rights -of -Way used by Company in the provision of Cable Service.
FCC means the Federal Communications Commission.
Franchise Area means all of the area contained within the municipal boundaries of the Town of
Westlake in which the town of Westlake owns or controls the Public Right -of -Way, at present or in
the future, located within the full purpose annexed or incorporated areas of the Town of Westlake.
Gross Revenue means any and all amounts earned or accrued by Company, or by an entity in any
way affiliated with Company, in whatever form and from all sources, including barter, which are in
connection with or attributable to (i) the operation of the Cable System within the Franchise Area
or (ii) Company's provision of Cable Service within the Franchise Area. Gross Revenue includes,
but is not limited to, all Subscriber and customer revenues earned or accrued net of bad debts,
including revenues for (i) basic cable services; (ii) additional tiers of service; (iii) premium services;
(iv) pay-per-view programs and services, program guides, Internet programming and connectivity
service; (v) any other services; (vi) the installation or disconnection of Cable Service; (vii) service
calls; (viii) the provision, sale, rental or lease of converters, remote controls, additional outlets, cable
modems, and other Subscriber premises equipment; (ix) revenues from the use of leased access
channels; (x) advertising revenues from the Cable System; and (xi) revenues in compensation from
home shopping programming. Gross Revenue also includes any charges or fees imposed on
Company by the Town by this Franchise that are passed through from Company as a line item paid
by Subscribers. Gross Revenue does not include taxes which are imposed by law directly on the
Subscriber but collected by Company and passed on to other governmental entities, such as the local
and state sales tax Advertising revenues and other revenues whose source cannot be identified with
a specific Subscriber shall be allocated to the Town based upon the percentage of Subscribers in the
Town compared to the total number of subscribers served from the head -end serving the Franchise
Area.
Institutional Network or I -NET means the fiber optic communications network described in
Section 5.2 and Exhibit "B" to be constructed and operated by Company for the provision of
Institutional Network Services to I -NET Users. The Town and Company agree that Exhibit "B" will
be attached to this agreement and incorporated herein at a subsequent date.
Institutional Network Services means the provision of usable bandwidth capacity to I -NET Users
through fiber optic lines for applications authorized by the Town.
I -NET User means the Town and any public entity designated by the Town to receive Institutional
Network Services under this Franchise Agreement.
Interconnect, Interconnected or Interconnection means the provision of an electronic linkage
between Company's Cable System and any other designated Cable System for the purpose of
transmitting PEG Channels and I -Net signals to and from the Interconnected Cable Systems.
Normal Operating Conditions means those service conditions which are within the Company's
control. Those conditions which are not within the Company's control include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone network outages (independent
systems only), severe or unusual weather conditions, and employee strikes, slowdowns and walkouts
of more than thirty days in duration. Those conditions which are within the Company's control
include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak
or seasonal demand periods, changes in the billing cycle, changes in the form of bills and other
billing matters, changes in channel lineups or services that are within Company's control, and
repairs, rebuilds, maintenance and upgrade of the Cable System including computer software and
hardware.
PEG Channels means non-commercial public access, educational and government channels.
k,
Person means any natural person, corporation, limited liability Company, partnership,
proprietorship, organization, or any other entity.
Public Rights -of -Way means all dedicated public streets, highways, alleys and rights-of-way in the
Franchise Area, but shall not include any property of the Town that is not a dedicated public street,
highway, alley or right-of-way. No reference in this Franchise to a "Public Right -of -Way" shall be
deemed to be a representation or guarantee by the Town that its interests or other rights in such
Property are sufficient to permit its use for the installation and maintenance of a Cable System, and
Company shall be deemed to gain only those rights which the Town has the right and power to give.
Residential Dwelling Unit means each home, house, building, or other structure that normally
accommodates the living quarters of one (1) family, and each apartment, condominium, or
co-operative unit that normally accommodates the living quarters of one (1) family in any
multiple -unit building or complex of multiple -unit buildings; provided, however, that if Company
has not been granted the authority by an owner or association of owners to extend its facilities to
individual apartments, condominiums, and co-operative units within the interior of such
multiple -unit buildings or complex of multiple -unit buildings, then any such multiple -unit building
or complex of multiple -unit buildings shall be considered a single Residential Dwelling Unit
Subscriber means any Person within the Franchise Area who lawfully receives any Cable Service
delivered by Company's Cable System_ The term "Subscriber" also includes Persons who do not yet
receive Cable Service but who are scheduled for installation.
Telecommunications Service means the offering of any type of telecommunications service, other
than Cable Services, to the public, or to such classes of users as to be effectively available directly
to the public, regardless of the facilities used, by means of the transmission, between or among
points specified by the user, of information of the user's choosing.
Transfer or Transferred means, in addition to supplements set forth in Section 12 of this Franchise
and notwithstanding any provision of Texas law to the contrary: (i) any form of sale, conveyance,
assignment, lease, sublease, consolidation or merger involving Company as to this Franchise or the
Cable System or (ii) any change in the effective control of Company, such as, by way of example
only, that described in 47 C.F.R. § 76.501 et seq. and the notes thereto.
Video Programming means programming provided by, or generally considered comparable to
programming provided by, a television broadcast station.
2 GRANT OF RIGHTS.
2.1 General Use of Public Rights -of -Way for Provision of Cable Services.
Subject to the terms and conditions set forth in this Franchise and the Town ordinances, the Town
hereby grants the Company the right to erect, construct, install and maintain a Cable System in, over,
under, along and across the Public Rights -of -Way and to provide Cable Services and transact a Cable
Business in the Franchise Area. Company hereby acknowledges and agrees that this Franchise does
not allow Company to provide any Telecommunications Service in or through the Franchise Area.
Neither Company nor any Affiliate of Company may provide any Telecommunications Service in
or through the Franchise Area, without first obtaining all authorization required by law.
2.2 Scone.
2.2.1 Initial Service Area.
If the Company will not make its Cable Services available in all parts of the Franchise Area
on the Effective Date of this Franchise, the Company shall outline the area within the
Franchise Area in which the Company will initially offer its Cable Services, a map of which
area is attached hereto as Figure 1 and made a part of this Franchise for all purposes ("Initial
Service Area"). The Initial Service Area and any other portion of the Franchise Area in
which Company, in accordance with this Franchise, is authorized to provide Cable Service
shall be collectively referred to as the "Authorized Service Area."
2.2.2 Extensions of Cable S stem.
The Town cannot endorse or condone any plan by Company to provide Cable Service in
geographically disparate areas of the Franchise Area that might be favored by Company. At
the same time, the Town understands Company's financial inability to construct a Town -wide
cable system in a short amount of time. Therefore, the Town is willing to allow Company
to provide Cable Service immediately in the Initial Service Area and beyond the Initial
Service Area as follows:
2.2.2.1 No Subscriber shall be arbitrarily refused Cable Service. Company shall
extend service to new Subscribers, at Company's normal installation charge and
monthly rates, where: (a) the new Subscriber, or nearest Subscriber of a group of
potential Subscribers is located within five hundred (500) feet of existing distribution
cable, and (b) where the number of Residential Dwelling Units to be passed by such
new extension cable plant exceeds or equals fifty (50) occupied residences per
square mile of such new extension cable plant. If the requirements of (a) and (b),
above, are not met, Company may require a potential Subscriber to bear a portion of
the actual turn -key cost to construct the extension, including electronics, pole make-
ready charges, labor, and the cost of installing the relevant Drops (the "Total
Extension Cost") which portion may not exceed the "Subscriber's Share" as
determined by the following formula:
Cost Per Mile of Extension = (Total Extension Cost)/(miles of extension)
Company's Share Per Residential Dwelling Unit = (Cost Per Mile of Extension)/50
Cost Per Subscriber — (Total Extension Cost)/(Number of Subscribers Requesting Service)
Subscriber's Share = (Cost Per Subscriber) - (Company's. Share Per Residential Dwelling Unit)
The above formula applies to the drops required to include multiple drops at a single
family dwelling. Company may not assess a Subscriber any additional cost for
installation of Drops of 250 feet or less. Company may require a Subscriber
requiring a Drop in excess of 250 feet to pay Company's incremental costs of
installing the Drop on a cost—plus—labor basis.
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2.3 Nonexclusive.
This Franchise and all rights granted to Company herein are strictly nonexclusive. The Town
reserves the right to grant other and future Cable System franchises to other Persons and entities as
the Town deems appropriate. This Franchise does not establish any priority for the use of the Public
Rights -of -Way by Company or by any present or future franchisees or other permit holders. In the
event of any dispute as to the priority of use of the Public Rights -of -Way, the first priority shall be
to the public generally, the second priority to the Town in the performance of its various functions,
and thereafter, as between franchisees and other permit holders, as determined by the Town in the
exercise of its powers, including the police power and other powers reserved to and conferred on it
by the State of Texas.
2.4 Other Permits.
This Franchise does not relieve Company of any obligation to obtain permits, licenses and other
approvals from the Town necessary for the construction, repair or maintenance of the Cable System
or the provision of Cable Services.
2.5. Bonds.
Prior to the commencement of any construction work in the Public Rights -of -Way in the Town that
requires a cut or excavation, Company shall deliver to the Town bonds executed by a corporate
surety authorized to do business in the State of Texas and acceptable to the Town in the proportional
amount of the cost of work under the construction contract or construction project that will be
performed in the Franchise Area. The bonds shall guarantee (i) satisfactory compliance by Company
with all requirements, terms and conditions of this Franchise Agreement and (ii) full payments to
all Persons with whom Company has a direct relationship for the performance of such construction,
maintenance or repairs.
If any such construction, maintenance and repair work is undertaken by a contractor of Company,
Company shall also require such contractor to deliver to Company bonds executed by a corporate
surety authorized to do business in the State of Texas and acceptable to the Town in the proportional
amount of the cost of work under the construction contract or construction project that will be
performed by the contractor in the Town's corporate limits. The bonds shall guarantee (i) the faithful
performance and completion of all construction, maintenance or repair work in accordance with the
contract between Company and the contractor and (ii) full payment for all wages for labor and
services and of all bills for materials, supplies and equipment used in the performance of that
contract, in the same time frame as the original contract. Such bonds shall name both the Town and
Company as dual obligees.
3 FEES AND PAYMENTS TO TOWN.
3.1 Franchise Fee.
Company shall pay the Town throughout the term of this Franchise an amount equal to five percent
(5%) of Company's Gross Revenue ("Franchise Fee")
3.1.1 When Due.
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Company shall pay the Franchise Fee to the Town on a calendar quarterly basis. The
Franchise Fee shall be due within forty-five (45) days following the last day of each quarter.
3.1.2 Accompanying Report.
Company shall submit with its Franchise Fee payment a written report in a form acceptable
to the Town and verified by an officer of the Company that details the material components
of Company's Gross Revenue for the previous quarter and computes the amount of the
Franchise Fee due the Town for that quarter.
3.1.3 Evasion of Payments.
Any transaction or arrangement which has the effect of circumventing payment of required
Franchise Fees and/or evading payment of Franchise Fees by non -collection, non -reporting
of Gross Revenue, collection of revenues by Affiliates, bartering, or any other means which
evades Company's actual collection of revenues subject to the Franchise Fee is strictly
prohibited and shall constitute a material breach of this Franchise Agreement.
3.1.4 Audits.
The Town may audit Company at any time to verify the accuracy of Franchise Fees paid to
the Town. Company shall pay any additional amounts due the Town as reported in any audit
within, thirty (30) days following the Town's submission to Company of an invoice for such
sum. If this amount exceeds ten percent (10%) of the Franchise Fee which the audit shows
should have been paid to the Town for the period in which the audit covered, Company shall
pay the Town's costs for the audit. Otherwise, the Town shall pay its own costs for the audit.
3.2 Other Payments.
In addition to the Franchise Fee, Company shall pay the Town all sums which may be due the Town
for property taxes, license fees, permit fees, or other taxes, charges or fees that the Town may from
time to time impose. Company shall reimburse the Town for publication of this Franchise.
3.3 Interest.
All sums not paid when due shall bear interest at the rate of ten percent (10%) per annum or the
maximum amount allowed by law, whichever is less, computed monthly. If such outstanding sums
are paid with interest within thirty (30) days following their respective due dates, Company's failure
to pay such sums by their respective due dates shall not, in and of itself, constitute an Event of
Default under Section 13 of this Franchise.
3.3 Letter of Credit.
Within thirty (30) days following the Effective Date of this Franchise, Company shall provide the
Town with a Letter of Credit in favor of the Town in the amount of Five Thousand Dollars
($5,000.00) issued by a financial institution in the Town's corporate limits and in a form acceptable
to the Town. Company shall increase the amount of this Letter of Credit to $10,000 once Company
has two thousand (2,000) or more subscribers in the Town; and $25,000 once Company has 5,000
subscribers in the Town. This Letter of Credit shall serve a security to the Town for the faithful
performance by Company of the provisions of this Franchise. The Letter of Credit shall provide that
the Town may draw down an amount owed by Company to the Town under the provisions of this
Franchise or applicable law by presenting the issuer with (i) a written statement, signed by the flown
of Westlake, that sets forth the basis of the Town's demand and contains an appropriate reference to
the applicable law, ordinance or Franchise provision under which the Town is due the sum
demanded and (ii) a copy of the Letter of Credit. Company shall keep in effect and maintain this
Letter of Credit at the amount specified herein at all times during the term of this Franchise. The
Letter of Credit shall provide that the Letter of Credit shall not expire and that the issuer shall not
cancel the Letter of Credit unless the issuer provides written notice to the Town at least sixty (60)
days in advance of such expiration or termination.
3.4 Acceptance of Payments.
Payment of money under this Section 3 shall not in any way limit or impair any of the privileges or
regulatory, condemnation, or police powers or taxing rights of the Town, whether under this
Franchise or otherwise. No acceptance of any payment shall be construed as an accord that the
amount paid is the correct amount, nor shall such acceptance be construed as a release of any claim
which the Town may have for additional sums payable under the provisions of this Franchise
Agreement.
4 TERM
This Franchise shall become effective on the Effective Date, as established in the Franchise
Ordinance, and shall expire at 11:59 F.M. CDT on December 31, 2006. This Franchise and all rights
of Company hereunder shall automatically terminate upon the expiration of this Franchise. The
Town may reopen this Franchise within six (6) months following the date of adoption of federal or
state legislation or FCC rules or regulations if such affect the Town's ability to (i) regulate rates for
any Cable Services provided by Company or (ii) protect Subscribers on matters such as customer
service or consumer protection. This Franchise may not be reopened for any reason other than as
set forth in the immediately preceding sentence. This Franchise may only be amended by the request
of both parties to increase the Franchise Area.
5 ACCESS TO THE SYSTEM.
5.1 PEG Channels.
Company shall provide PEG Channels on its Cable System in the basic or lowest tier of service as
follows:
5.1.1 Public Access Channel.
Company shall designate one channel as a public access channel for use by members of the
general public which will be administered by the Town or by an institution or institutions
designated by the Town in the Town's sole discretion.
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5.1.2 Educational Channels.
Company shall designate two channels as educational channels for use by educational
entities located in the Dallas -Fort Worth metropolitan area designated by the Town in the
Town's sole discretion.
5.1.3 Government Channels.
Company shall designate two channels as government channels administered by the Town
for programming provided by the Town, a designee of the Town or such other units of state
or local government as the Town may appoint from time to time.
5.1.4 PEG Pr __ ing Support.
Although federal law allows the Town to require a cable operator to provide facilities for
PEG programming, the Town is willing to forgo any such requirement in return for
Company's assistance in the Town's production of and administration over PEG
programming as provided in this Section 5.1.4. In order for the Town to continue its
production of and administration over PEG programming, Company shall pay to the Town
each month during the term of this Franchise a payment equal to One Dollar ($1.00) for each
Subscriber ("PEG Fee"). In accordance with federal law, Company may elect, but is not
required, to pass through this PEG Fee to Subscribers in the Franchise Area. If Company
does elect to pass through the PEG Fee to Subscribers, Company shall list the PEG Fee as
a separate line charge on Subscribers' monthly bills. Company hereby waives the right to
claim that the Town's expenditure of any PEG Fee renders the PEG Fee chargeable against
the Franchise Fee.
5.1.5 Activation of PEG Channels.
PEG Channels shall be activated only upon Company's receipt of written notice from Board
of Aldermen to activate one or more PEG Channels.
5.1.6 Allocation of PEG Channels.
Upon at least six (6) months' advance written notice to Company, the Town may allocate or
reallocate the usage of the PEG Channels among and between different uses and users of
such PEG Channels, including, but not limited to, the Town's removing a PEG Channel or
a user of a PEG Channel; replacing a PEG Channel or a user of a PEG Channel; requiring
several different users to share or jointly use a given PEG Channel; or allowing one or more
users currently sharing a PEG Channel to have a PEG Channel in which they are the sole
User. Company controls channel assignment of PEG Channels.
5.1.7 Temporary Additional PEG Channels,
After the date on which Company begins to provide at least fifty (50) channels in a high
definition television format (or technological successor thereof), Company shall provide,
upon written request by the Town, one additional PEG Channel so as to allow, to the extent
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deemed appropriate by the Town, PEG Channel simulcasting in both 6 MHz analog NTSC
format and in an HDTV format. If Company ceases to provide any channel of programming
on its Cable System in 6 MHz NTSC analog format, Company shall not be required to
provide such additional PEG Channel.
5.1.8 PEG Channel Interconnection
For the purpose of making all PEG Channels available to all subscribers, PEG Channels on
Company's Cable System shall be capable of being Interconnected with other Cable Systems
(now or hereafter existing) throughout the Town, for cablecast of the PEG Channels and
actual Interconnection shall be implemented upon request of the Town Manager provided
that 1) Interconnection is technically feasible; 2) Company and the other operator agree upon
reasonable Interconnection arrangements, including an allocation of the costs of
Interconnection between Company and such other operator that is reasonable in light of the
relative benefits and burdens, including consideration of support (capital and operational)
provided for PEG Channel purposes, including equipment in use for PEG Channel purposes
at the time of Interconnection. Interconnection with multi -channel video providers who are
not Cable Systems under the Act shall not be required unless the building where a multi-
channel video provider requesting Interconnection is in compliance with an open access
ordinance to be enacted by the Town.
5.2 Institutional Network.
Company shall provide, construct, operate and maintain an Institutional Network (excluding
coders/decoders, interface and other terminal equipment which will be supplied by I -NET Users) that
will provide I -NET Users with Institutional Network Services. Unless the Town agrees otherwise
in writing with Company, the I -NET, including the individual fiber optic fibers constituting all or
any portion of the INET, shall by owned and maintained by Company but provided for the sole and
exclusive use of I -NET Users. Upon written request by the Town, Company will provide the Town
with a written final cost estimate (and other information that the Town may reasonably require) of
installing INET fiber from Company's fiber optic Facilities to the locations to be potentially served.
Company shall pay (i) all costs and expenses associated with connecting the I -NET from Company's
signal based facilities to the Town's Municipal Building located at 3 Village Circle, Suite 207,
Solana plus (ii) the actual cost of the first five hundred (500) feet of fiber optic fiber and installation
thereof from Company's fiber optic Facilities to all respective I -NET Sites chosen by the Town from
time to time. The Town shall pay the for the installation of fiber optic fiber over five hundred (500)
feet from Company's fiber optic Facilities to any I -NET Site based on the written final cost estimate
provided to the Town.
5.3 I -NET Design.
5.3.1 The Company shall furnish twelve (12) strands of multi mode fiber optic assembly
to each and every point for similar cable routing. In addition the Company shall run twelve
(12) strands in one }/4 inch inner duct of a complete conduit assembly (field fabricated)
containing inner duct. Conduit assembly shall have a minimum of three additional'/4 inch
inner ducts for use by the Town at a future date. Optical fibers shall interconnect with each
I -NET Site in a star or hybrid network architecture, as requested and approved by the Town
in writing.
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5.3.2 Within thirty (30) days following receipt of the architecture and design for the I -NET,
the Town shall respond to Company with approval or a reasonable request for revision. If
the Town approves the design, the Town shall advise Company of the portions of the I -NET
that Company shall construct, activate and connect. If the Town requests a revision(s),
Company shall accordingly revise and resubmit the architecture and design and resubmit
within thirty (30) days following receipt of the Town's request. This procedure shall be
repeated until agreement as to the architecture and design of the I -NET is reached. The
Company shall submit a cost estimate with each plan submittal. The cost estimate shall
include a line item for both design and construction.
5.3.3 Company shall purchase and install termination hardware at each I -NET Site,
including standard connectors designated by the Town and appropriately labeled. Company
shall terminate the fibers on the termination hardware. Site equipment other than termination
hardware shall be provided and maintained by the Town for I -NET Users.
5.4 Incremental I -NET Fiber.
Company shall install and terminate additional fiber optic pairs ("Incremental I -NET Fiber") in
Company's future new and replacement fiber optic installations for use as an I -NET in the following
manner:
5.4.1 The Town will inform Company in writing from time to time of additional facilities
it wants to be I -NET Sites. Company will use such information in its plans for future fiber
optic installations, where, for example, one routing will pass a facility the Town would like
to have served and another routing of comparable cost would not.
5.4.2 Company will provide the Town with its conceptual plans for all new and
replacement fiber optic construction within thirty (30) days of the Town's final review
date of the plans.
5.4.3 Upon written request by the Town, Company will provide the Town with a
conceptual cost estimate, and other information that the Town may reasonably require, of
installing Incremental I -NET fiber and related duct (which shall be a separate line item of the
cost estimate) along all or any portion of a route or routes that are part of Company's
conceptual plans. Such estimates shall be provided as soon as possible after the Town's
request so that the Town may have time to obtain Board of Aldermen approval or to amend
its budget.
5.4.4 As to any route where the Town has requested a conceptual cost estimate, Company
shall provide the Town with the final cost estimate of installing Incremental I -NET Fiber,
and other information that the Town may reasonably require, as soon as Company's design
of the fiber for such route is reasonably complete. The Town will have thirty (30) days
following receipt of the final cost figure to notify Company to install Incremental I -NET
Fiber.
5.4.5 The cost of the installation of Incremental I -NET Fiber shall be computed on an
incremental basis, meaning the cost to Company of constructing and installing fiber on a
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given route with the Incremental I -NET Fiber less the cost to Company of constructing and
installing fiber on a given route without the Incremental I -NET Fiber.
5.5 I -NET Maintenance.
Company shall provide I -NET Users with a reliable level of service, repair and maintenance that,
at a minimum, meets the following performance standards:
5.5.1 Company shall maintain 99.5 percent service availability monthly to I -NET Users,
measured over a period of twelve (12) months.
5.5.2 Company shall respond to repair requests from I -NET Users for circuits identified
as critical pursuant to Section 5.5.4 within two (2) hours of the request. Company shall
respond to other I -NET repair requests within four (4) hours of the request.
5.5.3 Company shall provide ongoing maintenance of the I -NET at its discretion and as it
deems necessary to meet the standards set forth in Section 5.5.1. Except in emergency
situations, Company shall provide at least one (1) week's advance notice to any affected I-
NET User of any maintenance requiring temporary interruption of services.
5.5.4 Company and the Town shall develop a mutually agreeable priority listing of critical
circuits and their terminal locations. When notifying Company of service complaints, an I-
NET User shall identify critical circuits requiring priority repair. Company shall escalate the
repair of critical circuits to the extent reasonable under the circumstances.
6 Cable Service to Community Facilities
61 Schools.
Company shall, without charge for installation, maintenance, or service, provide two (2) outlets of
Cable Service (at Company's most subscribed service tier level) to all existing and newly constructed
public schools (including any branch of Tarrant County Junior College) located within five hundred
(500) feet of the Cable Distribution Network. Company shall install additional outlets upon the
request of school officials at cost plus ten percent (10%). There shall be no charge for Cable Service
on such additional outlets. Each outlet shall include a free converter and access control, if necessary,
and maintenance thereof by Company.
Company shall, within ninety (90) days of any school's request and without charge, provide an
appropriate interface to any internal video distribution system in the school, so long as the school
ensures that such internal system complies with the FCC's signal leakage and signal quality
standards and does not interfere with or adversely affect Company's Cable Distribution Network,
including the upstream capacity. Hardware and the installation thereof for internal video distribution
systems requested by primary and secondary public school authorities shall be provided at a
reasonable charge to the schools based on Company's actual cost.
6.2 Town Facilities.
ill
Company shall, without charge for installation, maintenance, or service, provide two (2) outlets of
Cable Service (at Company's most subscribed service tier level) to all existing and newly constructed
Town libraries, offices, fire stations, and police stations located within five hundred (500) feet of the
Cable Distribution Network. Company shall install additional outlets upon the Town's request at
cost plus ten percent (10%). There shall be no charge for Cable Service on such additional outlets.
Each outlet shall include a free converter and access control, if necessary, and maintenance thereof
by Company.
Company shall, within ninety (90) days of the Town's request and without charge, provide an
appropriate interface to any internal video distribution system in any Town building, so long as the
Town ensures that such internal system complies with the FCC's signal leakage and signal quality
standards and does not interfere with or adversely affect Company's Cable Distribution Network,
including the upstream capacity.
7 USE OF PUBLIC RIGHTS-OF-WAY.
7.1 No Undue Burden.
The Cable System shall not be erected, installed, constructed, repaired, replaced or maintained in any
manner that places an undue burden on the present or future use of the Public Rights -of -Way by the
Town and the public. If the Town, in its sole and reasonable judgment, determines that any portion
of the Cable System does place an undue burden on a portion of the Public Rights -of -Way,
Company, at Company's sole cost and expense and within a reasonable time period specified by the
Town, shall modify the Cable System or take other actions determined by the Town to be in the
public interest to remove or alleviate the burden. All maintenance and installation of the Cable
System must be in accordance with the Right -of -Way Management Ordinance.
7.2 Minimal Interference.
The Cable System shall be erected and maintained in a manner that causes minimal interference with
the public's use of the Public Rights -of -Way and with the rights or reasonable convenience of the
owners of property which adjoins any of the Public Rights -of -Way.
7.3 Underground Facilities.
In any part of the Franchise Area where the Town currently or may in the future require public
utilities to place their cables, wires or other equipment underground then Company shall also place
its existing and future cables, wires, fibers, and other equipment underground. In all areas where
cables, wires, and other like facilities of public utilities are currently placed underground, Company
shall place its cables, wires, and other like facilities underground regardless of whether the Town
actually requires public utilities to place their cables, wires or other equipment underground. In any
such area where Company and other utilities may have existing cables, wires, fibers, and/or other
equipment above ground, Company and other utilities shall install such cables, wires, fibers, and
other equipment underground within six (b) months following written notification from the Town
and at no expense, cost or liability to the Town. In this event, Company shall coordinate with other
utilities serving such area of the Town so that only one or as few possible trenches as necessary are
utilized for the underground installation of Facilities and other equipment.
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7.4 Restoration of Prope
Company, at Company's sole cost and expense, and in a manner approved by the Town, shall
promptly restore any portion of the Public Rights -of -Way that are in any way disturbed or damaged
by the construction, operation, maintenance or removal of the Cable System to, at Company's option,
as good or better a condition as such property was in immediately prior to the disturbance or damage.
Company shall diligently commence such restoration within fifteen (15) calendar days following
the date that Company first became aware of the disturbance or damage or, if the Cable System is
being removed, within fifteen (15) calendar days following removal of the Cable System.
7.5 Joint Use.
Company shall permit the joint use of its poles, conduits and Facilities located in the Public Rights-
of-Way
ights-
ofWay by other utilities and by the Town or other governmental entities for I -NET Use; provided
that (i) the I -NET shall be for the exclusive use, free of charge, by I -NET Users and (ii) for Facilities
other than the I -NET, Company may require such users to enter into a reasonable agreement with
Company for such use. Company may be required by the Town to attach portions of its Facilities
to poles or duct trench space maintained by any other Person franchised by the Town. Company
shall not be required to attach its facilities to the poles or duct trench space of any other Person
franchised by the Town if (i) Company shall be unreasonably subjected thereby to increased risks
of interruption to its service or to increased liability for accidents, or to unreasonable delays in
construction or availability of service, or (ii) if the facilities of such other Person are not of the
character, design and construction required by, or are not being maintained in accordance with
current practice, or are not available to Company on reasonable terms, including without limitation
a reasonable fee. The Town shall have the right to install and maintain, free of charge to the Town,
upon the poles and within the underground pipes and conduits of Company, any wires and fixtures
designated by the Town to the extent that such installation and maintenance does not interfere with
existing and future operations of Company.
7.6 Tree Trimming.
Upon receipt of and in accordance with the Town's ordinances and applicable permits, Company
may, at Company's sole cost and expense, trim trees in or overhanging the Public Rights -of -Way so
as to prevent the branches of such trees from interfering with the construction or maintenance of the
underground cable system. Except in an emergency, Company shall trim trees in or overhanging the
Public Rights -of -Way or Town property only after it has notified the Town and received a permit
for tree trimming as required by Town ordinances. Company shall not trim trees on privately owned
property unless it has obtained the consent of the property's owner. Company shall maintain its
Cable System in a safe, suitable condition and in good order and repair. If the Town finds that
clearance requirements of trees and vegetation established pursuant to the National Electric Safety
Code are violated, the Town shall establish a reasonable time for Company to perform, at Company's
sole cost and expense, necessary cutting and trimming. If the required work is not done within the
established time frame, the Town may perform the work itself or have it done and collect all
reasonable costs thereof from Company. Company shall be responsible and shall defend and hold
the Town harmless for any and all damages to any tree or to the land surrounding any tree as a result
of trimming by Company or its agents or contractors, whether such tree is trimmed, pruned, or
removed.
I's
7.7 Relocation of Facilities.
Company, at Company's sole cost and expense, shall protect, support, disconnect or remove from
the Public Rights -of -Way any portion of its Cable System when required by the Town due to street
or other public excavation, construction, repair, grading, regrading or traffic conditions; the
installation of sewers, drains, water pipes or municipally -owned facilities of any kind; the vacation,
construction or relocation of streets or any other type of structure or improvement of a public
agency; or any other type of improvement undertaken by the Town.
7.8 TemporaLry Relocation of Facilities.
Upon advance notice of at least fifteen (15) business days, Company shall temporarily raise or
lower its wires, cables or other equipment upon the reasonable request of any Person, including, but
not limited to, a Person with a building moving permit issued by the Town. Company may charge
the requesting Person (other than the Town) a reasonable fee for this service, but such fee shall not
exceed the actual and direct costs incurred by Company in the temporary relocation of such
Facilities.
7.9 Removal of Cable S, ste.
Upon the revocation, termination or expiration without extension or renewal of this Franchise,
Company's right to use Public Rights -of -Way under this Franchise shall cease and Company shall
immediately discontinue the provision of Cable Services in the Franchise Area and the use of the
Cable System. Within six (6) months following such revocation, termination or expiration and in
accordance with directions from the Town, Company shall remove their wiring, cable and fiber
optics systems. The company shall not disturb other wiring, cable and fiber optics systems within
the distribution system. The Company shall submit demolition plans to the Town for approval prior
to removal. The Company shall be responsible for all repairs required to other wiring, cable and
fiber optics systems that are damaged during the removal of the Company's systems. All supporting
structures, poles, transmission and distribution systems and other appurtenances, fixtures or property
from the Public Rights -of -Way shall remain. If Company has not removed all Facilities from the
Public Rights -of -Way within six (6) months following revocation, termination or expiration of this
Franchise, the Town may deem all of Company's Facilities remaining in the Public Rights -of -Way
abandoned and, at the Town's sole option, (i) take possession of and title to such property or (ii) take
any and all legal action necessary to compel Company to remove such property. No action shall be
required on the Town's or Company's part to transfer to the Town title such property other than the
Board of Aldermen's decision to take possession thereof and title thereto.
Within six (6) months following revocation, termination or expiration of this Franchise and in
accordance with Section 3.3 of this Franchise, Company shall also restore any property, public or
private, that is disturbed or damaged by removal of the Cable System. If Company has not restored
all such property within this time, the Town, at the Town's sole option, may perform or have
performed any necessary restoration work, in which case Company shall immediately reimburse the
Town for any and all costs incurred in performing or having performed such restoration work.
8 CUSTOMER SERVICE STANDARDS
17
Company agrees to abide by the customer service obligations established under Section 76.309 of
the Rules of the FCC and the Customer Service Standards attached as Exhibit "C" hereto. In the
event of a conflict between the FCC's customer service obligations and Exhibit "C," Exhibit "C"
shall control. The Town does not waive any right it may have to promulgate additional or revised
customer service standards so along as they are reasonable and allow Company a reasonable
opportunity to comment on such revisions prior to adoption.
9 RATES AND REGULATION.
9.1 General Rights of the Town.
The Town reserves the right to regulate Company, the Cable System, the provision of Cable Services
authorized under this Franchise, Company's rates and charges for the provision of Cable Services
and for related services, such as, without limitation, rental deposits and downgrade fees, as expressly
permitted by federal, state and/or local laws, ordinances, rules and regulations.
9.2 Frequency of Rate „Increases.
Company will not increase or file any form or notification with. the FCC related to an increase in
Company's rates for basic cable service, equipment, service calls or other services over which the
Town has regulatory authority under federal, state and/or local laws, ordinances, rules and
regulations more than once in each calendar year.
9.3 Rate Orders.
Unless a final order of the FCC, affirmed on appeal if an appeal is taken, determines that a rate order
of the Town, as a franchise authority, is automatically stayed by the filing of an appeal by Company
to the FCC, Company will implement each rate order adopted by the Town unless and until
Company obtains an order of the FCC or a court of competent jurisdiction staying or overruling the
effectiveness of the rate order. Company will reimburse the Town for all attorneys' fees and other
expenses incurred by the Town as a result of Company's violation of this Section 9.3.
9.4 Notice of Certain Costs.
On at least an annual basis and at any other time when requested by the Town, Company shall
identify to the Town in writing the costs which Company claims are external costs that Company
potentially may pass through to Subscribers under rules and regulations of the FCC or successor
rules with a similar effect. Company's notice to the Town shall state the individual amounts of such
costs and the approximate amount that Subscribers may be billed as a result and shall contain a
calculation to justify such amount.
10 LIABILITY AND INDEMNIFICATION.
10.1 Disclaimer of Liability.
The Town shall not at any time be liable for any injury or damage occurring to any Person or
property from any cause whatsoever that arises out of the construction, maintenance, repair, use,
operation, condition or dismantling of the Cable System or Company's provision of Cable Services.
13
10.2 Indemnification.
Company, at Company's sole cost and expense, shall indemnify, defend, and hold harmless the
Town, its officers, boards, commissions, agents, employees and volunteers ("Indemnitees"), from
and against any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges,
losses and expenses, whether legal or equitable, which may be imposed upon, incurred by or asserted
against any Indemnitees by reason of any personal injury or property damage or any act or omission
of Company, its personnel, employees, agents, contractors or subcontractors which may arise out
of or be in any way connected with (i) the construction, installation, operation, maintenance or
condition of the Cable System; (ii) the transmission of any programming over the Cable System; (iii)
any claim or lien arising out of work, labor, materials or supplies provided or supplied to Company,
its contractors or subcontractors; (iv) the provision of Cable Services; or (v) Company's failure to
comply with any federal, state or local law, ordinance, franchise, rule or regulation.
10.3 Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its officers, directors,
agents, contractors, subcontractors, agents and employees, all risk of dangerous conditions, if any,
on or about any Town -owned or Town -controlled property, including, but not limited to, the Public
Rights -of -Way. In addition, Company hereby agrees to and shall indemnify, defend, and hold
harmless any Indemnitee against and from any claim asserted or liability imposed upon any
Indemnitee for any personal injury or property damage incurred or asserted by Company or any of
its officers, directors, employees, agents, servants, contractors or subcontractors, and arising from
the installation, operation, maintenance or condition of the Cable System.
10.4 Defense of Indemnitees.
If any action, lawsuit or other proceeding is brought against any Indemnitee by reason of any matter
for which the Indemnitees are indemnified under Sections 10.2 or 10.3, the Town shall give
Company reasonably prompt notice of the making of any claim or commencement of any such
action, lawsuit or other proceeding, and Company, at Company's sole cost and expense, shall resist
and defend the same with legal counsel selected by the Town and with reasonable participation by
the Town. In such an event, Company shall not admit liability in any matter on behalf of any
Indemnitee without the advance written consent of the Town.
11 INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies of
insurance to provide coverages as specified below, naming the Town as an additional insured and
covering all public risks related to the use, occupancy, condition, maintenance, existence or location
of the Public Rights -of -Way and the construction, installation, operation, maintenance or condition
of the Cable System.
11.1 Primary Liability Insurance Coverage.
❑ Commercial General Liabili :
$1,000,000 per occurrence;
1.)
❑ Property Damage Liabili
$1,000,000 per occurrence;
❑ Automobile Liability:
$1,000,000 per accident, including, but not limited to, all owned, hired or non -owned
motor vehicles used in conjunction with the rights granted under this Franchise
❑ Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
11.2 Excess Liability Insurance Umbrella.
$1,000,000, including Primary Coverage, for each coverage listed in Section 11.1.
11.3 Revisions to Required Coverage.
At the recommendation of the Town Manager, the Town may at any time revise insurance coverage
requirements and limits required by this Franchise. Company agrees that within thirty (30) days of
receipt of written notice from the Town, Company will implement all such revisions requested by
the Town. The policy or policies of insurance shall be endorsed to provide that no material changes
in coverage, including, but not limited to, cancellation, termination, non -renewal or amendment,
shall be made without at least thirty (30) days' prior written notice to the Town.
11.4 Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to do business in
the State of Texas and who are acceptable to the Town in terms of solvency and financial strength.
Within thirty (30) days following adoption of this Franchise by the Board of Aldermen, Company
shall furnish the Town with certificates of insurance signed by the respective companies as proof that
it has obtained the types and amounts of insurance coverage required herein. In addition, Company
shall from time to time, on demand, provide the Town with evidence that it has maintained such
coverage in full force and effect.
11.5 Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein shall not exceed
$25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate
is otherwise approved in writing by the Town.
11.6 No Limitation of Liability.
The insurance requirements set forth in this Section 11 and any recovery by the Town of any sum
by reason of any insurance policy required under this Franchise shall in no way be construed or
effected to limit or in any way affect Company's liability to the Town or other Persons as provided
by this Franchise or law.
12 TRANSFERS, OWNERSHIP AND CONTROL.
20
12.1 Management of Cable System.
Company shall personally manage the Cable System and the provision of Cable Services within the
Franchise Area. Company shall not, directly or indirectly, contract for, subcontract or assign, in
whole or in part, the management of the Cable System or the provision of Cable Services within the
Franchise Area unless the Town provides advance written consent, which consent may be granted
or withheld in the Town's sole and absolute discretion.
12.2 Transfers.
Neither this Franchise nor the Cable System shall be sold, Transferred, assigned or otherwise
encumbered without the prior written consent of the Town. For purposes of this Franchise, in
addition to the definition provided in Section 1, a "Transfer" shall specifically include (i) any change
in limited partnership interests, non -managing limited liability Company interests, or non-voting
stock representing thirty percent (30%) or more of the equity interests in the entity in question and
(ii) any option, right of conversion or similar right to acquire interests constituting control without
substantial additional consideration. if Company seeks to obtain the consent of the Town for any
kind of Transfer, sale, assignment or other encumbrance, Company shall submit an application for
such consent in the form requested by the Town and shall submit or cause to be submitted to the
Town all such documents and information that the Town may reasonably need for its consideration
of the application. Company shall pay on the Town's behalf or reimburse the Town for all costs
incurred by the Town due to any proposed sale, Transfer, assignment or other encumbrance. Breach
of this Section 12.2 shall immediately constitute an Uncured Event of Default (e.g. Company shall
not be entitled to any cure period) upon which the Town may exercise any of the remedies set forth
in Section 14.2. Any sale, Transfer, assignment, or encumbrance of this Franchise and/or the Cable
System in violation of this Section 12.2 shall be deemed null and void ab initio.
13 DEFAULTS.
The occurrence at any time during the term of this Franchise of one or more of the following events
shall constitute an "Event of Default" under this Franchise:
13.1 Failure to Pay Franchise Fees.
An Event of Default shall occur if Company fails to pay any Franchise Fee on or before the
respective due date.
13.2 Breach.
An Event of Default shall occur if Company materially breaches or violates any of the terms,
covenants, representations or warranties set forth in this Franchise or fails to perform any obligation
required by this Franchise.
13.3 Bankruptcy, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) is
adjudicated insolvent; (iii) files any petition or fails to contest any petition filed against it seeking
21
any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
for itself under any laws relating to bankruptcy, insolvency or other relief for debtors; (iv) seeks,
consents to, acquiesces in, or unsuccessfully challenges the appointment of any trustee, receiver,
master, custodian or liquidator of Company, any of Company's property, franchises, or any revenues,
issues, earnings or profits thereof; (v) makes an assignment for the benefit of creditors; or (vi) fails
to pay Company's debts generally as they become due.
13.4 Violations of the Law.
An Event of Default shall occur if Company violates any existing or future federal, state or local
laws or any existing or future ordinances, rules and regulations of the Town.
14 UNCURED DEFAULTS AND REMEDIES.
14.1 Notice of Default and Onportunily to Cure.
If an Event of Default occurs, the Town shall provide Company with written notice and shall give
Company the opportunity to cure such Event of Default. For an Event of Default which can be cured
by the immediate payment of money to the Town, Company shall have thirty (30) days from the date
it receives written notice from the Town to cure the Event of Default. For any other Event of
Default, Company shall have sixty (60) days from the date it receives written notice from the Town
to cure the Event of Default. If any Event of Default is not cured within the time period specified
herein, such Event of Default shall, without further notice from the Town, become an "Uncured
Default" and the Town immediately may exercise the remedies provided in Section 14.2.
14.2 Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the Town shall be entitled to exercise, at the same time
or at different times, any of the following remedies, all of which shall be cumulative of and without
limitation to any other rights or remedies the Town may have:
14.2.1 Termination of Franchise.
Upon the occurrence of an Uncured Default, the Town may terminate this Franchise. Upon
such termination, Company shall forfeit all rights granted to it under this Franchise, and,
except as to Company's unperformed obligations and existing liabilities as of the date of
termination, this Franchise shall automatically be deemed null and void and shall have no
further force or effect. Company shall remain obligated to pay and the Town shall retain the
right to receive Franchise Fees and any other payments due up to the date of termination.
Company shall remove the Cable System from the Franchise Area as and when requested
by the Town. The Town's right to terminate this Franchise under this Section 14.2.1 does
not and shall not be construed to constitute any kind of limitation on the Town's right to
terminate this Franchise for other reasons as provided by and in accordance with this
Franchise.
14.2.2 Legal Action Against Company.
2:2
Upon the occurrence of an Uncured Default, the Town may commence against Company an
action at law for monetary damages or in equity for injunctive relief or specific performance
of any of the provisions of this Franchise which, as a matter of equity, are specifically
enforceable.
15 RIGHTS AND RESERVATIONS OF THE TOWN.
In addition to the rights reserved to the Town under this Franchise, the Town shall have the
following rights and reservations:
15.1 To require proper and adequate extensions of the Cable System and Cable Services and
maintenance thereof at the highest practicable standards of efficiency;
15.2 To establish reasonable standards of Cable Service and product quality and to prevent unjust
discrimination in Company's provision of Cable Services and/or rates for Cable Services;
15.3 To require continuous and uninterrupted service to the public in accordance with the terms
and conditions of this Franchise throughout the entire term of this Franchise;
15.4 To exercise the privileges or regulatory, condemnation, or police powers or taxing rights of
the Town, whether under this Franchise or otherwise.
15.5 To control and regulate the use of the Town's Public Rights -of -Way, public places and other
Town -owned property and the spaces above and beneath them;
15.6 Through representatives designated by the Town, to inspect all construction, Facility -
installation or other work performed by Company in the Franchise Area, and to make any
inspections that the Town finds necessary to ensure compliance with the terms of this Franchise and
applicable laws, ordinances, rules and regulations.
16 PROVISION OF INFORMATION.
16.1 Filings.
Company shall deliver to the Town copies of all documents which Company files with or sends to
the FCC contemporaneously with such filing or sending to the FCC. Company shall also, upon the
Town's request, deliver copies of records that. Company is required to maintain under FCC
regulations (currently 47 C.F.R. § 76).
16.2 Lawsuits.
Company shall provide the Town with copies of all pleadings in all lawsuits to which Company is
a party and that pertain to the granting of this Franchise and/or the operation of the Cable System
within thirty (30) days of Company's receipt of same.
16.3 Books and Records.
2:3
From time to time, during normal business hours and on a non -disruptive basis, the Town may
review all portions of Company's books and records that are necessary to monitor compliance by
Company with the terms and conditions of this Franchise. Such records shall include, but shall not
be limited to, records that Company is required to maintain under FCC and financial information
underlying reports provided to the Town in accordance with this Franchise. However, Company
shall not be required to release personally identifiable Subscriber information if prohibited by
applicable law (such as § 631 of the Cable Act, codified at 47 U.S.C. § 551). To the extent permitted
by law, the Town shall treat any information released to it by Company on a confidential basis if
requested by Company and upon execution of a Town -signed written agreement or letter to that
effect.
17 COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent contractor as
to all rights and privileges granted by this Franchise, and not as an agent, representative or employee
of the Town. Company shall have the exclusive right to control the details of its Cable Business and
operation, in accordance with the terms and conditions of this Franchise, and shall be solely
responsible for the acts and omissions of its officers, agents, servants, employees, contractors and
subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply
with regard to the Town and the acts of its employees. Company further agrees that nothing herein
shall be construed as the creation of a partnership or joint enterprise between the Town and
Company.
18 NOTICES.
Notices required pursuant to the provisions of this Franchise shall be conclusively determined to
have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or
representatives, or (2) received by the other party by United States Mail, postage prepaid, return
receipt requested, addressed as follows:
To THE TOWN:
Town of Westlake
3 Village Circle
Suite 207 Solana
Westlake, TX 76262
with a copy to:
L. Stanton Lowry
Boyle & Lowry, L.L.P.
4201 Wingren, Suite 108
Irving, TX 75062
To COMPANY:
Millennium Telcom, L.L.C.
841 Keller Parkway
Suite 220
Keller, TX 76248-2486
19 NON-DISCRIMINATION COVENANT.
24
Company shall not discriminate against any Person on the basis of race, color, national origin,
religion, handicap, sex, sexual orientation or familial status in the operation or provision of Cable
Services, in the receipt of benefits from Company's Cable Business, in any opportunities for
employment with Company that Company may offer or in the construction or installation of
Company's Cable System or other Facilities.
20 NO WAIVER.
The failure of the Town to insist upon the performance of any term or provision of this Franchise
or to exercise any rights that the Town may have, either under this Franchise or the law, shall not
constitute a waiver of the Town's right to insist upon appropriate performance or to assert any such
right on any future occasion.
21 GOVERNING LAW AND VENUE.
This Franchise shall be construed pursuant to and in accordance with the laws of the United States
of America and the State of Texas. if any action, whether real or asserted, at law or in equity, arise
out of the terms of this Franchise, Company's provision of Cable Services or Company's use of the
Public Rights -of -Way, venue for such action shall lie exclusively in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas, Fort Worth
Division.
22 EMERGENCY OVERRIDE.
Company shall maintain systems, equipment, and procedures permitting preempting of the regular
signal on all channels with emergency warning signals originating from the Town of Westlake or
designated representatives of the Town. The following stipulations shall apply, except where and
to what extent they may be preempted by FCC regulations:
22.1 The director of the Town Emergency Services (TES) or his designee shall determine when
the emergency cable override is to be activated in response to actual or impending emergency
conditions.
22.2 Company shall provide and maintain all equipment, systems, software, services, security
provisions, and procedures required for a fully operational emergency cable override warning system
in accordance with FCC rules. Any equipment necessary for activation of the system by the TES
shall be provided by Company. Activation points shall be at the TES and one other backup point
within the Tarrant County area, as mutually agreed upon by the parties.
22.3 The cable override shall consist of audio and crawler text signals as required by the Federal
Communications Commission rules governing the new Emergency Alert System (EAS).
22.4 The system shall be tested as determined by the TES not more than monthly and not less than
annually.
2-15)
22.5 Company shall cooperate fully with the TES in all other matters pertaining to a functioning
emergency cable override system.
23 SEVERABILITY.
If any provision of this Franchise is held to be invalid, illegal or unenforceable by a final order
entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired. For purposes of this Franchise, a court order
shall be final only to the extent that all available legal rights and remedies pertaining to such order,
including, without limitation all available appeals, have been exhausted. In such an event, the Town
and Company agree that they shall amend or have amended this Franchise to comply with such final
order entered by a court of competent jurisdiction.
24 FORCE MAdEURE.
The time within which Company shall be required to perform any act under the Franchise shall be
extended by a period of time equal to the number of days performance is delayed due to a force
majeure. Company shall not be subject to any penalty hereunder because of acts or failure to act due
to "force majeure." The term "force majeure" means delays due to acts of God, war, civil
disturbances, fire, unavoidable casualty, construction delays due to weather, or for other similar
causes beyond the control of Company.
25 ACCEPTANCE OF FRANCHISE.
Company shall, on or before thirty (30) days after the final passage of this Franchise by
Board of Aldermen, deliver to the Town Manager a written instrument accepting this Franchise and
all terms and conditions thereof, signed and acknowledged by its proper officers in a form acceptable
to the Town, and Company shall pay the Town its reasonable expenses incurred in this Cable
franchise process, but not to exceed Five Thousand Dollars ($5,000) dollars, which sum shall be
credited by the Town against the Franchise Fee due the Town. Company shall also pay costs of
publication of the Franchise, for which no credit shall be given.
26 HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Franchise are for
reference purposes only and shall not be deemed a part of this Franchise.
27 ENTIRETY OF AGREEMENT.
This Franchise, including the schedule of exhibits attached hereto and any documents incorporated
herein by reference, contains the entire understanding and agreement between the Town and
Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions
of this Agreement. This Franchise shall not be amended unless agreed to in writing by both parties
and approved by the Board of Aldermen of the Town.
215
28 ATTORNEYS' FEES.
If any suit or other action is instituted in connection with any controversy arising under this
Franchise, the prevailing party shall be entitled to recover all of its costs and expenses including such
sum as the court may judge reasonable for attorneys' fees, including fees upon appeal of any
judgment or ruling.
29 TIME IS OF THE ESSENCE. Time is of the essence of this Franchise and each and all
of its provisions in which performance is a factor.
30 REMEDIES ARE CUMULATIVE. Any remedies provided under the terms of this
Franchise are not intended to be exclusive but shall be cumulative with all other remedies available
to the Town at law, in equity, or by statute.
31 COMPANY NOR TOWN NOT A COMMON CARRIER. Nothing in this Franchise or
by any use of the PEG Channels hereof shall be deemed by Town or Company to subject the Town
or Company's operations, Cable System, or the use of the PEG Channels provided by Company
under authorization of this Franchise, to regulation as a common carrier within the meaning of
applicable state or federal law. If a state or federal agency or court deem them such, the Town will
discontinue or alter its use in such a manner that would be consistent with the intent of the parties
as set forth in the previous sentence.
32 GUARANTEE OF PERFORMANCE.
Company hereby acknowledges that it carefully has read the terms and conditions of this Franchise
and accepts and agrees to perform the duties and obligations set forth in this Franchise. Tri -County
Electric Cooperative, Inc., TL7 Limited Partnership, an Oklahoma limited partnership, Value Choice,
Inc. and One Source Communications, L.L.C. hereby jointly and severally guarantee unconditional
performance of Company's duties and obligations under this Franchise.
MILLENNIUM TELCOM, L.L.C.
By: -
Name: Tom . Joh on
Title: Preside -d ,-----'
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EXHIBIT "C"
CUSTOMER SERVICE STANDARDS
1. CUSTOMER SERVICE AND CONSUMER PROTECTION.
a. General Standards.
L Company shall at all times comply with the more stringent of the customer service
and consumer protection provisions of these Customer Service Standards or the FCC, as may
be set forth from time to time in FCC rules and regulations, such as the current FCC Rule
76.309. The more stringent standard shall be the one which most favors the Town. This
requirement is in addition to the specific provisions of subsequent sections set forth below.
ii. Company may provide a customer bill of rights or similar guaranty to Subscribers
annually and at the establishment of service.
b. Scramblinolocking.
If at any time the Cable System operates at 860 MHz, Company shall at all times scramble both the
audio and video portions of all channels with predominately adult-oriented programming. Upon
request by a Subscriber, Company shall entirely block such Subscriber from receiving both the audio
and video portion of any channel with predominantly adult-oriented programming with devices,
such as, by way of example, notch filters, which prevent the frequencies containing a specific
channel or channels from being transmitted into the Subscriber's premises.
C. Pay Per View Options.
Subscribers shall be given the option of (i) not having pay per view or per program service available
at all or (ii) only having such services provided upon the Subscriber's provision of a security number
selected by an adult representative of the Subscriber.
d. Customer Notifications.
Company shall provide all Subscribers with written information on at least each of the following
matters: (i) products and services offered; (ii) prices (rates) and options for Cable Services and the
conditions of a subscription to such Cable Services, including, but not limited to, prices for
programming, equipment rental, program guides, installation, disconnection, processing charges for
late payment and other fees charged by Company; (iii) Company's installation and service
maintenance policies (including, where applicable, information regarding the Subscriber home
wiring rights and information describing ownership of internal wiring during the period Cable
Service is provided); (iv) instructions on how to use Cable Services, including procedures and
options for pay per view, premium channels and connection to a VCR; (v) channel positions of
programming carried on the Cable System, including a listing specific to the Franchise Area showing
the channel names and numbers actually available to subscribers in the Franchise Area; (vi) billing
and Complaint procedures with a notice for a Subscriber to initially contact Company with
Complaints and questions; (vii) applicable privacy requirements as set forth in this Franchise or
provided for by law; (viii) the availability of lockout devices and the ability to have a channel
entirely blocked or trapped; (ix) the procedure for resolving signal quality problems as set forth in
Section 4(c), (x) the availability of any and all credits and refunds required under this Franchise and
the procedure for obtaining the same, (xi) Company's practices and procedures for protecting against
invasions of privacy, and (xii) when applicable, Company's Community Unit Identifier, as specified
by the FCC.. Company shall provide such written information to Subscribers (i) at the time of
installation or reinstallation of service; (ii) annually to all Subscribers, and (iii) at any time upon
request of a Subscriber or the Town. The information shall be dated with the printing, revision, or
effective date.
In addition to the notice requirements set forth above, Company shall send annually, written notice
to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by
Company may be referred to the Town. Such notification shall be either;
A separate document which may be included with a billing statement; or
2. Included on the portion of the monthly bill that is to be retained by the Subscriber.
Company's telephone number for service and the telephone number for the Town shall be contained
in the notice. This notice shall also fully describe Company's telephone hours and, when applicable,
its lobby hours and shall include the telephone number(s) available to Subscribers after Company's
normal business hours through which Subscribers can obtain, at a minimum, emergency referral
information. No promotional material may be included on the separate document or the portion of
the bill containing this notice. A draft of this notice shall be forwarded to the Town for review and
comment, after which the Town shall respond with comments within ten (10) business days. The
annual notice may be combined with the notice delineated above.
C. Notifications Pertaining to Cable Services -related Changes.
Company shall notify Subscribers of any changes in rates, Cable Services or channel positions as
soon as possible through announcements on the Cable System or in writing. Company will provide
written notice of such changes to the Town in advance of its notifying Subscribers and will make
every effort to notify the Town forty-five (45) days in advance of any such change. Unless a longer
time period is required by applicable law or regulation, notice must be given to Subscribers a
minimum of thirty (30) days in advance of the implementation of any such change if the change is
within the control of Company and as soon as possible if the change is not within the control of
Company. In addition, Company shall notify Subscribers and the Town at least thirty (30) days in
advance of any significant changes in the matters covered in Section 1(e). Notifications provided
pursuant to this Section shall be dated with the printing, revision or effective date. Notices of
changes in rates shall indicate the new rate and the amount the rate has increased or decreased from
the current rate. Specific words such as "Increase" or "Decrease" must be used to describe the
2
changes (as opposed to less specific terms, such as "adjustment"). Notices of changes of
programming services and/or channel locations shall include a concise description of the new
programming service and the specific channel location of that programming service. In addition,
should the channel location be affected by the introduction of a new service, such information must
also be included in the notice.
f.
Telephone Service Standards.
i. Customer Service Telephone Number.
Company shall have a local or toll-free telephone number available for use by Subscribers
in the Franchise Area twenty-four (24) hours per day, seven (7) days per week. The local or
toll-free numbers shall be listed, with appropriate explanations, in the directory published
by each local telephone company and in any significant directories published by others.
ii. Customer Service Representatives.
Once Company has one thousand (1000) Subscribers located in franchise area, Company
shall ensure that Trained Company Representatives will be available to respond to Subscriber
telephone inquiries twenty-four (24) hours per day, seven (7) days per week. As to video
service matters, the term "Trained Company Representatives" means employees of
Company who have the authority and capability while speaking with a Subscriber to, among
other things, answer billing questions, adjust bills, and schedule service and installation calls.
iii. Response Time.
Under Normal Operating Conditions, a Trained Company Representative shall personally
answer a telephone call within thirty (30) seconds from the time that the telephone
connection is made. If the telephone call needs to be transferred, the time to complete the
transfer shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety percent (90%) of the time under Normal Operating Conditions, measured on a
quarterly basis.
iv. Busy Signals.
Under Normal Operating Conditions, Subscribers shall receive a busy signal less than three
percent (3%) of the time, measured on a quarterly basis.
g. Com any Office.
Company shall maintain a physical office within the Franchise Area or within ten (10) miles of the
Authorized Area, which shall include a place where Subscribers may pay their bills, pickup and
return converter boxes and comparable items and receive information on Company and its services.
The office shall be open at least from $:00 A.M. to 6:00 P.M. Monday through Friday and 9:00 A.M.
3
to 1:00 P.M. on Saturdays.
h. Standards for Installations and Service Calls.
Company shall meet the following standards for installations and service calls not less than ninety-
five percent (95%) of the time, measured on a quarterly basis:
i. Installations Made within Seven Business Days.
Under Normal Operating Conditions, installations located up to one hundred fifty (15 0)
aerial feet from the existing distribution cable system shall be performed within seven (7)
business days after an order has been placed.
ii. SchedulLng.
Installations and service calls shall be available at a minimum from 5:00 A.M. to 6:00 P.M.
Monday through Friday and 9:00 A.M. to 1:00 P.M. on Saturdays. Company shall, at the
Subscriber's option, either (i) schedule the Subscriber to be the first call of the day or last call
of the day on a first come, first served basis; (ii) schedule the appointment for a date certain
on a "call to meet" basis where as the service technician finishes his/her prior task, the
technician calls the Subscriber and arranges to meet the Subscriber shortly thereafter; or (iii)
establish an appointment window of no more than three (3) hours with the Subscriber (or
adult representative of the Subscriber) or another appointment window mutually agreed upon
between the Subscriber and Company.
L Operating Procedures for Installations and Service Calls.
Company shall comply with the following operating procedures for all installations and service calls.
If Company fails to comply with any operating procedure set forth in this Section 10), Company
shall provide an affected Subscriber with (i) a free installation if the call is for a Cable Service
installation or (ii) at least twenty dollars ($20.00), which may be in the form of a credit, if the call
is for any matter other than a Cable Service installation.
i. Nature of Response.
Company shall respond to the request for service and/or installation in accordance with the
option selected by the Subscriber.
ii. Cancellations or Rescheduling Requests by, Company.
Company shall not cancel or request the rescheduling of an appointment with a Subscriber
after 5:00 P.M. on the business day prior to the scheduled appointment. If, on the day of a
given appointment with a Subscriber, Company's technician is running late for such
appointment and will not be able to keep the appointment as scheduled, the Subscriber shall
4
promptly be contacted. The appointment shall be rescheduled, as necessary, at a time which
is convenient for the Subscriber.
iii. Cancellations or ReschedulingReguests by, Customers.
If access to the Subscriber's premises is not made available to Company's technician when
the technician arrives during the established appointment window, the technician shall leave
written notification stating the time of arrival and requesting that Company be contacted
again to establish a new appointment window. Notwithstanding the foregoing, if
Company's technician or service representative telephones the Subscriber during or prior to
the appointment window and is advised that the technician will not be given access to the
Subscriber's premises during the appointment window, then the technician shall not be
obliged to travel to the Subscriber's premises or to leave the written notification referred to
above, and the burden shall again be upon the Subscriber (or adult representative of the
Subscriber) to contact Company to arrange for a new appointment.
iv. Length of Service Calls.
Company's service technicians and service representatives shall take adequate time on each
service call to address or correct the problem in question and shall not be held to a quota of
calls per day or an established limitation on time invested per call.
V. Charges for Service to Company Equipment.
Company shall not charge a Subscriber for any service call relating to Company owned and
Company maintained equipment after the initial installation of Cable Services unless the
problem giving rise to the service request can be demonstrated by Company to have been
caused by the intentional misconduct of the Subscriber.
j. Service Interruptions and Signal Quality Im airments.
Company shall meet the standards set forth in Sections 1(k)(i) and I (k)(ii) not less than ninety-five
percent (95%) of the time, measured on a quarterly basis. In addition, Company shall comply with
the conditions of Section 1(k)(iii) at all times.
i. Service Interruptions.
Under Normal Operating Conditions, Company shall diligently begin working on a Service
Interruption promptly and in no event later than twenty-four (24) hours after the Service
Interruption becomes known to Company. "Service Interruption" shall mean the loss of
picture or sound on one or more cable channels that affects one or more Subscribers.
ii. Signal Oualfty Im airments.
5
Under Normal Operating Conditions, Company shall begin diligently begin working on
Subscriber Complaints involving impairment or degradation of signal quality (other than a
Service Interruption) promptly and in no event later than the next business day after the
problem becomes known to Company.
iii. Redress for Service Interruptions and Signal Quality Impairments
Company shall provide affected Subscribers, upon request by the Town or the Subscriber,
with one day's free service (equivalent to the service they were receiving at the time of the
interruption) for each day or portion thereof of Service Interruption.
iv. Significant Service Interruptions.
Company shall make repairs promptly and interrupt Cable Service to one or more
Subscribers only if necessary and only for the shortest period possible. Company shall
promptly notify the Town of any "Significant Service Interruption." A "Significant Service
Interruption" means any outage of a duration of at least three (3) continuous hours between
the hours of 6:00 a.m. to 10:00 p.m. and six (6) continuous hours between the hours of 10:00
p.m. and 6:00 a.m. to at least 100 of the Subscribers. Company shall exercise its best efforts
to limit any Significant Service Interruption for the purpose of maintaining, repairing, or
construction of the Cable System. Except in an emergency or other situation necessitating
a more expedited or alternative notification procedure, Company may schedule a Significant
Service Interruption only after the Town and affected Subscribers have been given
reasonable prior notice of the proposed interruption.
V. Technicians
Technicians employed by Company and capable of performing service -related emergency
repairs and maintenance must be available twenty-four (24) hours a day, including weekends
and holiday.
k. Log of Customer Complaints,.
Company shall maintain a written log, or an equivalent stored in computer memory and capable of
access and reproduction in printed form, of all Cable Service -related Complaints originating within
the Franchise Area. Such log shall be in form and substance acceptable to the Town and at minimum
list the date and time of each such Complaint, identify the Person making such Complaint to the
extent allowed by law, and describe the nature of the Complaint and when and what actions were
taken by Company in response thereto. The log shall be kept at Company's office in or near the
Franchise Area for a period of at least two (2) years and shall be available for inspection during
regular business hours by the Town upon request.
1. Bills.
0
i. Format.
Company's bills to Subscribers for Cable Services shall be issued monthly to each Subscriber
with a balance due or change of service. Bills shall be clear, concise and understandable.
Bills shall be fully itemized, with itemizations including, but not limited to, basic service,
cable programming service, premium service charges, equipment charges and processing fees
for late payments as further specified in Section 1(o). Bills shall also clearly delineate all
activity during the billing period, including optional charges, rebates, credits, and late
charges. The Town shall be given thirty (3 0) days advance notice of any change in the format
of bills.
Each bill shall prominently display Company's local or toll-free telephone numbers available
for use by Subscribers. If bill has more than one portion (for example, one portion that is
kept by the Subscriber and one portion that is sent to Company) such telephone numbers
shall prominently appear on the front side of the portion of the bill retained by the
Subscriber.
Company shall forward all regulatory billing inserts and copies of all other mailings required
by governmental authorities to Subscribers to the Town prior to or at the same time that they
are provided to Subscribers.
ii. Complaints and Disputes.
Company shall respond in writing to all written complaints from Subscribers regarding
billing matters within thirty (30) days of receipt. Company shall not disconnect a Subscriber
for failure to pay legitimately contested charges during a billing dispute. However, during
a billing dispute Company may disconnect a Subscriber for failure to pay charges that are
not contested.
R1. Refunds and Credits..
Refund checks for Cable Service shall be issued to Subscribers promptly and in no event later than
either (i) the Subscriber's next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or (ii) if service is terminated, thirty (30 ) days after return of equipment owned
by Company or at the time of the next billing cycle, whichever is earlier. Credits for Cable Service
shall be issued no later than the Subscriber's next billing cycle following a determination that a
credit is warranted.
n. Late Payments.
i. Notification of Additional Fee on Bills.
Each bill shall specify on its face in a fashion emphasizing same (such as bold face type,
7
underlined type or a larger font): "For payments received after [date] a $ processing
fee for late payment may be charged."
ii. Process for Assessment of Additional Fee.
No processing fee for a late payment, however denominated, shall be assessed or added to
a Subscriber's bill less than twenty-one (2 1) calendar days after the mailing of the bill to the
Subscriber. In the event any such fee is assessed or added, Company shall separately state
the charge on the Subscriber's bill and shall include the word "late" in the description of such
fee.
o. Disconnection of Cable Services.
Company shall comply with the following standards and procedures pertaining to the disconnection
of Cable Services to any of Company's Subscribers in the Franchise Area.
L Disconnection for Non -Payment.
Company shall not disconnect a Subscriber for failure to pay until at least forty-five (45)
calendar days have elapsed after the due date for payment of the Subscriber's bill and
Company has provided at least ten (10) calendar days' written notice
separate from the monthly bill to the Subscriber prior to disconnection, specifying the
effective date after which Cable Services are subject to disconnection.
ii. Disconnection for Illegal Practices.
Company may disconnect a Subscriber at any time if Company in good faith believes that
the Subscriber has tampered with or abused Company's equipment, that there is a signal
leakage problem (or other non-compliance with FCC rules or other standards which poses
a risk to lives or property) on the Subscriber's premises, or that the Subscriber is or may be
engaged in the theft of Cable Services.
iii. Disconnection at Subscriber's Re nest.
Company shall promptly disconnect any Subscriber who so requests disconnection, including
those Subscribers who elect to cease receiving Cable Services from Company in order to
receive Cable Services or other multi -channel video services from another Person. No period
of notice prior to requested termination of service shall be required of Subscribers by
Company. No charge shall be imposed upon the Subscriber for or related to disconnection
or for any Cable Service delivered after the effective date of the disconnect request (unless
there is a delay by the Subscriber in the return of Company equipment). If the Subscriber
fails to specify an effective date for disconnection, the effective date shall be deemed to be
the day following the date the disconnect request is received by Company provided that
8
Company equipment has been returned by the Subscriber.
P. Truth In Advertising.
Company's bills, advertising and communications to its current or potential Subscribers shall be
truthful and shall not contain any false or misleading statement. For the purposes of the preceding,
a statement is false or misleading if it contains an untrue statement of any material fact or omits to
state a material fact necessary in order to make the statements made, in the light of the circumstances
under which they were made, not misleading.
q. Underground Facilities Requested by Subscriber.
If a Subscriber requests Company to install Cable Services to a Subscriber's property through
underground facilities, Company shall comply with the Subscriber's request but may charge the
Subscriber the actual difference in cost between the aerial installation of the Drop and the
underground installation of the Drop. This provision shall not apply if the Subscriber lives in an area
of the Franchise Area in which underground utilities and facilities are required by this Franchise, in
which case Company may only charge the Subscriber its normal installation charge.
r. Identification of Company Personnel.
All service personnel of Company, including contractors and subcontractors, whose normal duties
involve contact with the general public shall wear on their clothing a clearly visible identification
card bearing their name and photograph. Company shall account for all identification cards at all
times. Every service vehicle of Company shall be clearly identifiable by the public.
S. Subscriber Information.
Except as required for billingpurposes, Company shall not record or retain any information as
to the programming actually watched by a Subscriber. Company shall destroy all Subscriber
information of a personally identifiable nature after a reasonable period of time unless otherwise
requested by the affected Subscriber. This Section 1(t) shall not prohibit Company from its
conducting system -wide or individually addressed "sweeps" solely for the purpose of (i) verifying
system integrity, (ii)cheeking for illegal taps or (iii) billing.
2. REPORTS TO TOWN.
a. Service -Related Reports.
Company shall provide the following reports to the Town monthly (by the 15th business day of the
following month) and quarterly (by the 15th business day of the following quarter. These reports
shall take substantially the same form as forms currently used by Company, and acceptable to the
Town, showing on a consistent basis, fairly applied, Company's compliance with the customer
9
service standards set forth in this Franchise.
0 Number of Subscribers;
❑ Report of Service Calls by Reason, which report must include an explanation
of the categories of reported reasons,
❑ Monthly Service Interruption
Once Company has one thousand (1000) Subscribers located in the Franchise Area, the Town may
require Company to provide the following additional reports in a form acceptable to the Town and
the Company:
❑ Cable System Statistics
❑ Monthly Service Call Availability Analysis and Installation Call
Availability Analysis
❑ Monthly Complaint Report, showing the results of a random sampling of
Complaints; and
❑ Monthly Call Center Performance Report
b. Format of Reports.
Company's service -related reports to the Town shall show Company's performance for the respective
time period, excluding periods that were not Normal Operating Conditions ("Abnormal Operating
Conditions") and, if Company contends any Abnormal Operating Conditions occurred during the
period in question, it shall describe the nature and extent of such Abnormal Operating Conditions
and show Company's performance both including and excluding the time periods Company contends
such conditions were in effect. At the Town's request, Company will provide additional
information and existing reports reasonably related to the measurement and evaluation of Company's
compliance with the customer service requirements set forth in this Franchise.
C. Audits Pertaining to Service -Related Report .
The Town, by itself or in combination with other municipalities with whom Company has a
franchise or other agreement to use public rights-of-way for the provision of Cable Services, reserves
the right to audit Company or any Affiliate of Company to verify the accuracy of the service -related
reports required under this Section 2. In the event of any such audit, Company shall make available
at a location in Tarrant County, Texas, that is convenient to the Town all records of Company or any
and all Affiliates of Company reasonably necessary to conduct such audit. If the audit discloses
performance that is three (3) percentage points worse than any of the standards of the referenced
sections (such as compliance 92% of the time versus 95% of the time), Company shall pay the
Town's costs in connection with the audit within thirty (30) days of submission of an invoice.
Otherwise, the Town shall pay the costs of such audit.
d. Construction -Related Rem.
Company shall provide the Town with a written quarterly report that outlines Company's plans for
construction to the Cable System and for expansion of the Cable System into areas of the Franchise
Area beyond the Initial Service Area and other areas of the Franchise Area previously approved by
the Town Council for service by Company. This report shall be a public document and kept on file
in the Town Secretary's Office for inspection by the public.
3. LIQUIDATED DAMAGES FOR VIOLATIONS OF CUSTOMER SERVICE
STANDARDS.
a. Telephone Service.
Company acknowledges and agrees that its failure to comply with the telephone service standards
set forth in Sections 1(g)(ii), 1(g)(iii), and/or 1(g)(iv) of this Franchise will harm Subscribers and
the Town and that the amounts of actual damages will be difficult or impossible to ascertain.
Therefore, for each quarter following the Effective Date of this Franchise, the Town may assess the
following liquidated damages against Company for non-compliance with the customer service
standards set forth in Sections 1(g)(ii), l (g)(iii), and l (g)(iv) (measured on a quarterly basis).
Company acknowledges and agrees that the liquidated damages set forth below are a reasonable
approximation of actual damages and that this Section 3(a) is intended to provide compensation and
is not a penalty.
Subject to Section 3(c) of this Franchise, the damages for non-compliance with one or more of the
standards in Sections 1(g)(ii), 1(g)(iii), and/or 1(g)(iv) during a calendar quarter are as follows:
❑ First quarter of non-compliance: $1.00 per Subscriber or $5,000.00, whichever is
more.
❑ Second quarter of non-compliance within three (3) consecutive calendar quarters:
$2.00 per Subscriber or $5,000.00, whichever is more.
❑ Third quarter of non-compliance within six (6) consecutive calendar quarters and
each subsequent non-compliance: $3.00 per Subscriber call or $5,000.00, whichever
is more.
b. Installations Service Calls and Service Interruptions.
Company acknowledges and agrees that its failure to comply with the standards for installations,
service calls and service interruptions set forth in Section 1(i)(i), 1(i)(ii), 1(k)(i), and/or 1(k)(ii) of
this Franchise will harm Subscribers and the Town and that the amounts of actual damages will be
difficult or impossible to ascertain. Therefore, for each quarter following the Effective Date of this
Franchise, the Town may assess the following liquidated damages against Company for non-
compliance with the customer service standards set forth in Sections 1(i)(i), I (i)(ii), 1(k)(i), and/or
11
1(k)(ii) (measured on a quarterly basis). Company acknowledges and agrees that the liquidated
damages set forth below are a reasonable approximation of actual damages and that this Section 3(b)
is intended to provide compensation and is not a penalty.
Subject to Section 3(c), the damages for non-compliance with one or more of the standards in
Sections 1(i)(i), 1(i)(ii), 1(k)(i), and/or 1(k)(ii) during a calendar quarter are as follows:
❑ First quarter of non-compliance: $1.00 per Subscriber or 55,000.00, whichever is
more.
❑ Second quarter of non-compliance within three (3) consecutive calendar quarters:
$2.00 per Subscriber or $5,000.00, whichever is more.
❑ Third quarter of non-compliance within six (6) consecutive calendar quarters and
each subsequent non-compliance: $3.00 per Subscriber or $5,000.00, whichever is
more.
C. Effect of Extended Periods of Compliance.
If Company complies with all of the standards identified in Sections 3(a) and 3(b) for eight (8)
consecutive calendar quarters, the damages for the first subsequent non-compliance with any and
each of those standards will be $0.25 per Subscriber or $3,000, whichever is more. Thereafter, the
damages provided in Sections 3(a) and 3(b) will again be applicable so that the next non-compliance
within three (3) and/or six (6) consecutive calendar quarters, as the case may be, will be subject to
the damages set forth for such quarters in Sections 3(a) and/or 3(b), respectively.
d. Calculation of Number of Subscribers.
For purposes of calculating liquidated damages under Sections 3(a), 3(b), or 3(e), the number of
affected Subscribers shall be that reflected on Company's report to the Town pertaining to Subscriber
numbers for the quarter in which liquidated damages are subject to assessment or, if Company fails
to provide such report, as calculated by the Town.
e. Failure to Submit Quarterly Reports.
Company acknowledges and agrees that its failure to submit quarterly reports to the Town as
required by Sections 2(a) and 2(b) will harm the Town and its ability to serve its citizens who
subscribe to Company's Cable Services, and that the amounts of actual damages will be difficult or
impossible to ascertain. Therefore, for each quarter following the Effective Date of this Franchise,
the Town may assess liquidated damages against Company for Company's failure to submit quarterly
reports as required by Sections 2(a) and 2(b) in the amount of $1.00 per Subscriber or $5,000.00,
whichever is more. Company acknowledges and agrees that such liquidated damages are a
reasonable approximation of actual damages and that this Section 3(e) is intended to provide
compensation and is not a penalty.
12
f. No Waiver.
An event of non-compliance will be taken into account in determining whether a later event of non-
compliance is a second, third or subsequent event without regard to whether Town has assessed
liquidated damages or taken any other action with respect to the non-compliance.
g. Procedure for Assessment.
Liquidated damages shall be assessed by the Town Manager or his or her designee. Company may
obtain a review of the assessment by the Town Council by making a written request within ten (10)
business days after receipt of such assessment in writing, which assessment shall state the basis for
the imposition of liquidated damages. If Company delivers such written request within such time
period, Company shall have an opportunity to be heard at a meeting of the Town Council or by a
person designated by the Town Council as a hearing officer prior to being required to deliver
payment for such liquidated damages. The Town Council may adopt additional procedures,
including appointment of a Town official or other person to act as a hearing officer. The Town
Council's decision may be based upon the record of proceedings conducted by the hearing officer
or a proposal for decision submitted by the hearing officer.
h. Payment and Classification of Liquidated Damnes.
Liquidated damages shall be paid on or before the tenth (10th) day following Company's receipt of
the Town's assessment of liquidated damages or, if Company timely requests a hearing under Section
3(g), above the Town Council's or Town Council's designee's decision regarding the imposition of
such liquidated damages. Company acknowledges and agrees that liquidated damages paid under
this Franchise do not constitute franchise fees, do not reduce the amounts otherwise payable as
franchise fees and will not be passed through to Subscribers.
i. Employee Identification
All personnel of Company contacting Subscribers or potential Subscribers outside the Company's
office must be clearly identified as associated with Company.
j. Deposits, Refunds, and Credits
i. Company may require refundable deposits for service or equipment. Upon
termination of Cable Service for any reason, Subscribers will be entitled to receive
a refund or credit against amounts owed to Company equal to the deposit.
ii. On all deposits, Company shall be required to pay simple interest at a rate of one-half
percent (1/2%) per month (6% per year). Such interest shall be accrued and payable
13
upon termination of Cable Service. Upon termination of Cable Service for any
reason, Subscribers will be entitled to receive a refund or credit against amounts
owed to Company equal to the deposit plus accumulated interest. The rate may be
modified to reflect prevailing market rates upon approval by the Town which shall
not be unreasonably withheld. Such interest shall be accrued on deposits charged to
Subscribers after January 1, 2000. Company will not be required to pay simple
interest on deposits received prior to such date.
Refund checks shall be issued promptly following the resolution of the event giving
rise to the refund within forty-five (45) days.
iv. In addition to a refund, if Company fails to mail a check for a refund to any
Subscriber disconnecting Cable Service with an outstanding credit of $3.00 or more
within 45 days of the date Cable Service is ended, and the Subscriber has returned
all Company-owned equipment, the Subscriber is entitled to receive a $10.00 penalty
payment, in addition to the total refund due. Failure to comply with the $10.00
penalty provision shall be grounds for appropriate enforcement action. Refunds shall
be provided to Subscribers with outstanding credits of less than $3.00 upon request.
V. Credits for Cable Service will be issued no later than the Subscriber's next billing
cycle fallowing the determination that a credit is warranted.
k. Rates Fees and Charges
L Company shall not, except to the extent permitted by law, impose any fee or charge
on any Subscriber for service calls to said Subscriber's premises to perform any
repair or maintenance work related to Company -installed equipment necessary to
receive Cable Service, except any such work which was necessitated by a negligent
or wrongful act of said Subscriber.
ii. Where the actions of Company, its agent(s) or subcontractor(s) can be shown upon
a reasonable demonstration of evidence to have contributed to the theft, loss or
damage of a converter or other equipment lawfully used by a Subscriber, the
Subscriber's liability with respect to said converter or other equipment shall be
reduced to the extent of such contributing actions.
All charges for residential Cable Service must be applied on a nondiscriminatory
basis as provided by law, allowing however, for reasonable discounts to senior
citizens and/or the economically disadvantaged and that Company may conduct
promotional campaigns in which rates are discounted or waived, and may offer
commercial rates or bulk rate discounts for multiple dwelling units, hotels, motels
and similar institutions.
iv. Company shall be entitled to recover a fee for all checks returned due to
14
non -sufficient funds.
1.
Privacy Protections:
i. Company shall comply fully with all applicable State and federal laws relating to the
protection of Subscriber privacy. Company shall not disclose the telephone number
of any Subscriber for any purpose that is not directly related to the provision of
services offered by Company. Company shall not require more personally
identifiable information than is necessary to confirm the identity of a Subscriber and
any past due amounts owed to Company. The type of information considered to be
necessary, may vary depending on the individual Subscriber. Company may deny
service if a Subscriber fails to produce any verifiable personally identifiable
information after being requested to do so.
ii. No signals transmitted from a Subscriber's terminal shall be monitored by Company
in order to determine patterns or practices without the prior written permission of the
Subscriber. Any request for such permission shall be contained in a separate
document with a prominent statement that the Subscriber (i) is under no obligation
to grant such permission, (ii) the decision to withhold such permission shall not in
any way affect the quality of service to be provided to the Subscriber, and (iii) the
Subscriber may revoke such permission at any time without penalty of any kind
whatsoever. Such written permission shall be for a limited period of time not to
exceed six (f) months, after which new permission must be obtained. No penalty
shall be invoked for a Subscriber's failure to provide or renew such an authorization.
Such authorization is required for each type of classification of cable communication
activity planned; provided, however, that Company shall be entitled to conduct
system -wide or individually addressed "sweeps" for the purpose of verifying system
integrity, controlling return -path transmission, or billing for services.
Company, or any of its agents or employees, shall not sell, or otherwise make
available to any party which is not an agent of Company: (i) lists of the names and
addresses of Subscribers from which Subscribers have not been presented in writing
with an opportunity to remove their names, or (ii) any list which identifies the
viewing habits of individual Subscribers.
M. Enforcement
The Town may seek all rights and remedies under the franchise and/or injunctive relief or any other
judicial remedy available pursuant to state or federal law in order to enforce compliance with these
standards.
n. Rights Reserved by the Town
The Town reserves the right to establish additional, reasonable customer service standards from time
15
to time, as may be necessary, after making a finding of need and after notice and an opportunity to
be heard have been given to Company. The Town reserves the right to regulate rates for video or
Cable Service to the fullest extent permitted by law.
4. TECBMCAL STANDARDS.
The following provisions shall apply to Company's implementation of and compliance with the
FCC's rules and regulations relating to cable television technical standards for signal quality,
currently set forth at 47 C.F.R. § 76.601 and following, and subsequent amendments to any such
rules and regulations.
a. Testing by Com an .
Company shall notify the Town at least thirty (30) days in advance of testing for compliance with
FCC standards. The Town may have a representative present to observe such tests and may
designate one location to be tested. Company shall provide the Town with a report of testing for
compliance with such standards upon written request (but not more than twice a year). Such report
to Town shall state, in pertinent part, that the Person doing the testing has reviewed the applicable
rules and regulations of the FCC, the industry standards and other materials referenced therein, and
that such testing was done fairly and either shows full compliance with such rules and regulations
or sets forth with specificity and in detail all areas of non-compliance, their actual or likely scope
and causes, and Company's professional recommendation of the best corrective measures to
immediately and permanently correct the non-compliance.
b. Testing by Town.
The Town at its expense (no more than twice per year, barring unusual circumstances) upon thirty
(30) days written notice to Company may test the Cable System for compliance with the FCC
technical standards. Company shall fully cooperate in such tests and provide access to the Cable
System. Company shall reimburse the Town for the full expense of any test which shows a material
non-compliance with such standards.
C. Subscriber Complaints Regarding Signal Quality.
Company shall establish and notify Subscribers of the following procedure for the resolution of
Complaints from Subscribers about the quality of the television signal delivered to them: (i) All
complaints shall go initially to Company; (ii) All matters not resolved by Company shall at
Company's or the Subscriber's option be referred to the Town for the Town to resolve; and (iii) All
matters not resolved by the Town may be referred to the FCC for the FCC to resolve.
16
LEGEND
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THOROUGHFARES IN CSiEES ADJACENT TO IYES i i,AK