HomeMy WebLinkAbout99-3205Cable
ORI)INAN~E 1~10. 99-3205
AN ORDINANCE OF THE CITY OF PLAINVIEW, TEXAS,
GRANTING TO TCA PARTNERS II ITS SUCCESSORS AND
ASSIGNS, A FRANCHISE FOR A PERIOD OF 15 YEARS, TO
ERECT, MAINTAIN, AND OPERATE A CABLE TYPE
TELEVISION SYSTEM IN THE CITY OF PLAINVIEW AND TO
ERECT, MAINTAIN AND OPERATE ITS POLES, TOWERS,
ANCHORS, W~ CABLES, ELECTRONIC CONDUCTORS,
CONDUITS, MANHOLES, AND OTHER STRUCTURES AND
APPURTENANCES IN, OVER, UNDER, ALONG AND ACROSS THE
PUBLIC STREETS, HIGHWAYS, AI,LEYS, BR1DGES, AND OTHER
PUBLIC WAYS AND PLACES IN THE CITY OF PLA1NVIEW;
PRESCRIBING COMPENSATION FOR THE PRIVILEGES
CONFERRED UNDER THIS FRANCHISE; PRESCRIBING THE
CONDITIONS GOVERNING THE OPERATION OF THE BUSINESS
INSOFAR AS IT AFFECTS THE USE OF PUBLIC PROPERTY FOR
THE PURPOSE OF SUCH BUSINESS, PRESCRIBING RULES AND
REGULATIONS GENERALLY FOR THE OPERATION OF SAID
BUSINESS UNDER THIS GRANT; PROVIDING FOR
SEVERABILITY, AND ANT EFFECTIVE DATE.
WHEREAS, Franchisee has asked the City to renew Franchisee's nonexclusive franchise
(the "Prior Franchise") to construct, install, maintain and operate a cable communications system
in the City; and
WHEREAS, the City is authorized to grant one or more nonexclusive cable television
franchises pursuant to Charter of the City of Plainview, City of Plainview Code of Ordinances, as
amended; and
.WHEREAS, the construction, installation, maintenance and operation of such a system
involves the occupation of and placement of private commercial facilities in the Public
Rights-of-Way within the City; and
WHEREAS, the City has reviewed Franchisee's performance under the Prior Franchise
and the quality of service during the Prior Franchise term, has identified the future cable-related
needs and interests of the City and its citizens, has considered the fmancial, technical and legal
qualifications of Franchisee, and has determined whether Franchisee's plans for constructing,
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operating and maintaining its Cable System are adequate, in a full public proceeding affording
due process to all parties; and
WHEREAS, the City has relied on Franchisee's representations regarding its financial,
technical and legal qualifications and its plans for constructing, operating and maintaining its
Cable System, and has considered the information that Franchisee has presented to it; and
WHEREAS, based on Franchisee's representations and information, and in response to its
request for renewal, the City has determined that, subject to the terms and conditions set forth
herein, the grant of a new nonexclusive franchise to Franchisee, to supersede the Prior Franchise,
is consistent with the public interest; and
WHEREAS, the City and Franchisee have reached agreement on the terms and conditions
set forth herein and the parties have agreed to be bound by those terms and conditions; and
WHEREAS, Franchisee agrees to be bound by the terms of this Agreement with respect
to the City.
NOW, THEREFORE, be it ordained in consideration of the City's grant of a new
franchise to Franchisee, Franchisee's promise to provide Cable Service to residents of the City
pursuant to and consistent with the Ordinance the terms and conditions set forth herein, the
promises and undertakings herein, and other good and valuable consideration, the receipt and the
adequacy of which are hereby acknowledged,
Between the City of Plainview, Texas and TCA Partners II (dba TCA Cable TV).
THIS CABLE FRANCHISE AGREEMENT (the "Franchise Agreement") is entered into
by and between City of Plainview, Texas, a municipality, duly organized under the. applicable
law of the State of Texas ("City"), and TCA Partners II (dba TCA Cable TV) ("Franchisee").
THE PARTIES DO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
Except as otherwise provided herein, the definitions and word usage set forth in the
Ordinance are incorporated herein and shall apply in this Agreement. In addition, the following
definitions shall apply:
(a) Affiliate: Any person who owns or controls, is owned or controlled by, the Franchisee.
(b) Basic Service: Any service tier that includes the retransmission of local television broadcast
signals.
(c) Cable System: means a system of antennas, cables, amplifiers, towers, microwave links,
cable-casting studios, and any other conductors, terminals, converters, equipment of facilities,
designed and constructed for the primary purpose of producing, receiving, amplifying, storing,
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processing, or distributing audio, video, digital, or other forms of electronic or electrical signals
or information services, whether owned, rented, leased or lease-purchased by the Franchisee.
(d) Cable Service: (1) the one-way transmission to subscribers of video programming or other
programming services; and (2) subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service. Cable Service includes the
provision of Internet access over the Cable System.
(e) Control: The legal or practical ability to exert actual working control over the affairs of the
Franchisee, either directly or indirectly, whether by contractual agreement, majority ownership
interest, any lesser ownership interest, or in any other manner.
(f) City: City of Plainview, Texas.
(g) Franchise: The right granted by the City to construct, maintain and operate a cable system
over, on or under the Public Rights-of-Way, as embodied in this Agreement.
(h) Franchise Agreement or Agreement: This contract and any amendments, exhibits or
appendices hereto.
(i) Franchise Area: The entire existing territorial limits of the City and any area annexed thereto
during the term of the Franchise
(j) Franchisee: TCA Cable Partners II, dba TCA Cable TV, and its lawful and permitted
successors, assigns, and transferees.
(k) Gross Revenues: Any and all revenues, including cash, credits, property or other
consideration of any kind or nature arising from, attributable to, or in any way derived directly or
indirectly by the Franchisee, its Affiliates, or by any other entity that is a cable franchisee of the
System, from the operation of the Franchisee's Cable System (including the studios and other
facilities associated therewith) to provide cable services. Gross Revenues include, by way of
illustration and not limitation, monthly fees charged subscribers for any basic, optional,
premium, per-channel, per-program service, or cable programming service; installation,
disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and
administrative fees; fees, payments, or other consideration received from programmers for
carriage of programming on the System and accounted for as revenue under generally accepted
accounting principles (GAAP); revenues from rentals or sales of converters or other equipment;
any studio rental, production equipment; advertising revenues; barter; revenues from program
guides; revenues from the sale or carriage of other cable-related services; and revenues from
home shopping, bank-at-home channels, and other revenue sharing arrangements. Gross
Revenues shall include revenues received by an entity other than the Franchisee, an Affiliate, or
another entity that operates the System if created solely to prevent evasion or avoidance of the
obligation under this Agreement to Pay the franchise fee. Gross Revenues shall not include (i) to
the extent consistent with GAAP, actual bad debt write-offs not to exceed 2% of annual
revenues, provided, however, that all or part of any such actual bad debt that is written offbm
subsequently collected shall be included in Gross Revenues in the period collected; or (ii) any
taxes on services furnished by the Franchisee which are imposed directly on any subscriber or
user by the state, city, or other governmental unit and which are collected by the Franchisee on
behalf of said governmental unit. A franchise fee is not such a tax.
(1) Institutional Network or Network: The system shall within a reasonable time from the date of
final passage of this Ordinance by the City have sufficient capacity to provide for an institutional
network to connect designated City office buildings for voice, data or video transmission. The
City shall reimburse Franchisee for the actual costs and expenses incurred by Franchisee for the
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installation of all additional equipment and facilities for the institutional network.
(m) Normal Business Hours: Those hours during which most similar businesses in the
community are open to serve customers.
(n) Normal Operating Conditions: Those service conditions which are within the control of the
cable Franchisee. Those conditions which are not within the control of the cable Franchisee
include, but are not limited to, natural disasters, civil disturbances, power outages, telephone
network omages, and severe or unusual weather conditions. Those conditions which are within
the control of the cable Franchisee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance
or Rebuild of the cable system.
(o) Public Rights-of-Way: The surface, the air space above the surface, and the area below the
surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge,'tunnel,
park, parkway, waterway, easement, or similar property within the City, which, consistent with
the purposes for which it was dedicated, may be used for the purpose of installing and
maintaining the Cable System. No reference herein to a "Public Right-of-Way" shall be deemed
to be a representation or guarantee by the City that its interest or other right to control the use of
such property is sufficient to permit its use for such purposes, and a Franchisee shall be deemed
to gain only those rights to use as are properly in the City and as the City may have the right and
power to give.
(p) Prior Franchise: The Cable Television Franchise for the City of Plainview, Texas held by
TCA Partners II (dba TCA Cable TV)prior to the effective date of this Franchise.
(q) Service Interruption: The loss of picture or sound on one or more cable Channels or Channel
Equivalents.
(r) System Outage: A service interruption affecting more than 50 subscribers.
(s) System Rebuild or Rebuild: A major improvement or enhancement in the technology or
service capabilities made by the Franchisee to the Cable System, as more fully described herein.
(t) Transfer of the Franchise. Any transaction in which:
1. An ownership or other interest in the Franchisee is transferred, directly or
indirectly, from one person or group of persons to another person or group of
persons so that control of the Franchisee is transferred; or
2. The rights held by the Franchisee under this Franchise Agreement are transferred
or assigned to another'person or group of persons.
(u) Transfer of an Interest: The sale or transfer, directly or indirectly, of an existing or newly
created equity interest in the Franchisee that does not result in a transfer of control of the
Franchisee.
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
Grant of Authority:
Subject to the terms and conditions of this Agreement, the City hereby grants the
Franchisee the right to own, construct, operate and maintain a Cable System along the Public
Rights-of-Way within the Franchise Area, for the sole purpose of providing Cable Service. This
Franchise shall grant no authority for the Franchisee to use the Public Rights-of-Way for any
purposes other than provision of Cable Service, except to the extent other services may be
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provided pursuant to the terms contained herein. No privilege or power of eminent domain is
bestowed by this grant; nor is such a privilege or power bestowed by this Agreement. This
Agreement does not confer any rights other than as expressly prOvided herein or as mandated by
federal, state, or local law.
Area Served: The Franchise is granted for the Franchise Area defined herein.
Term: The Franchise and this Franchise Agreement shall extend for a term of fifteen (15) years,
commencing on the effective date determined pursuant to the terms contained herein, unless the
Franchise is earlier revoked or its term shortened as provided herein,
Grant Not Exclusive: The Franchise and the right it grants to use and occupy the Public
Rights-of-Way shall not be exclusive, and the City reserves the right to grant other franchises for
similar uses or for other uses of the Public Rights-of-Way, or any portions thereof, to any person,
or to make any such use themselves, at any time during the term of this Franchise Agreement,
with or without a franchise.
Franchise Agreement Subject to Other Laws: This Franchise Agreement is subject to and shall
be governed by all applicable provisions of federal, state, and local law.
Franchise Agreement Subject to Exercise of Police Powers: All rights and privileges granted
herein are subject to the police powers of the City and its right under applicable law and
regulations to exercise its governmental powers to its full extent and to regulate the Franchisee
and the construction, operation and maintenance of the Franchisee's Cable System, including, but
not limited to, the right to adopt and enforce additional ordinances and regulations as the City
shall find necessary in the exercise of its police powers, the right to adopt and enforce applicable
zoning, building, permitting and safety laws, ordinances and regulations, the right to adopt and
enforce laws, ordinances and regulations relating to equal employment opportunities, and the
right to adopt and enforce laws, ordinances and regulations containing right-of-way,
telecommunications, utility and cable television consumer protection and service standards and
rate regulation provisions. By its acceptance of the Franchise, the Franchisee agrees, to meet all
these requirements.
p~proval, Acceptance, and Effective.Date: This Franchise Agreement shall become effective on _
uar~t 2b, 199~ff(the "Effective Date"), following its approval by the City Council and its
acceptance by the Franchisee, provided that if the Franchisee fails to accept the Franchise before
~tbr[filrq 2,~ ,199~g,qor within thirty (30) days after approval by the Council, whichever is -
later, it ~hall be deemed void.
Effect of Acceptance: By accepting the Franchise and executing this Franchise Agreement, the
Franchisee:
Accepts and agrees to comply with each provision of this Agreement;
Acknowledges and accepts the legal right of the City to grant the Franchise, to
enter this Franchise Agreement, and to enact and enforce laws, ordinances and
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regulations related to the Franchise;
Agrees that the Franchise was granted pursuant to processes and procedures
consistent with applicable law, and that it will not raise any claim to the contrary,
or allege in any claim or proceeding by the Franchisee against the City that any
provision, condition or term of this Franchise Agreement at the time of the
acceptance of the Franchise was unreasonable or arbitrary, or that at the time of
the acceptance of the Franchise any such provision, condition or term was void or
that the City had no power or authority to make or enforce any such provision,
condition or term;
Agrees that it will not oppose intervention by the City in any proceeding affecting
the City's fights under this Agreement or the City's exercise of its regulatory
authority; and
Agrees to reimburse the City for all costs incurred in its review, preparation,
evaluation of proposals and qualifications, and negotiations involving this
Agreement, up to $2,000.00. The City shall provide the Franchisee with an
accounting of these expenses, such as consultant fees, and shall supply the
Franchisee with invoices for said expenses. Franchisee shall dehver payment to
the City within thirty (30) days of receipt of said invoices. Such payments are in
addition to the Franchise Fee. Failure to make timely payment of said expenses,
except for any expenses that are the subject of legitimate dispute, shall constitute a
material violation of this Agreement
No Waiver:
The failure of the City on one or more occasions to exercise a fight or to require
compliance or performance under this Franchise Agreement, or any other
applicable law shall not be deemed to constitute a waiver of such fight or a waiver
of compliance or performance by the City, nor to excuse the Franchisee from
complying or performing, unless such right or such comphance or performance
has been specifically waived in writing.
The failure of the Franchisee on one or more occasions-to exercise a right under
this Franchise Agreement or applicable law, or to require performance under this
Franchise Agreement, shall not be deemed to constitute a waiver of such fight or
of performance of this Agreement, nor shall it excuse the City from performance,
unless such fight or performance has been specifically waived in writing.
Waiver of a breach of this Agreement by the City shall not be a waiver of any
other breach, whether similar to or different from that waived. Neither the
granting of the Franchise, nor any provision herein, nor any action by the City
hereunder shall constitute a waiver of or a bar to the exercise of any governmental
right or power of the City, including without limitation the fight of eminent
domain.
No Recourse: The Franchisee shall have no recourse against the City for any loss, cost, expense,
claim, liability or damage arising out of .ar_ay action undertaken or not undertaken by the
Franchisee pursuant to the Franchise Agreement, whether or not such action or non-action was
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required by the Franchise Agreement, arising out of the enforcement or non-enforcement by the
City of any provision or requirement of this Agreement, or otherwise arising out of the Franchise
Agreement. The preceding shall not preclude injunctive relief.
Construction of Franchise Agreement: The provisions of this Franchise Agreement shall be
liberally construed to effectuate its objectives consistent with the public interest. References to
apphcable law or applicable requirements refer to applicable law or requirements as the same
may be amended from time to time.
3. TRANSFERS
Transferee's Agreement: No application for a Transfer of the Franchise shall be granted unless
the transferee agrees in writing that it will abide by and accept all terms of this Agreement, and
that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known
and unknown, of the previous Franchisee under this Agreement for all purposes, including
renewal, unless the City, in its sole discretion, expressly waive this requirement in whole or in
part.
Right of First Refusal.
If at any time Franchisee enters into a bona fide purchase agreement for the Cable
System, a complete copy of such agreement shall be given to the City, within thirty (30)
days of execution of such agreement. Upon receipt of such agreement, the City shall
have the right to purchase the Cable System according to the terms of that agreement.
The City shall exercise such right by submitting a written notice of intent to purchase to
the Franchisee, no more than ninety (90) days following receipt of the copy of the
agreement. If the City does not so notify Franchisee, the Cable System may be sold,
subject to the transfer provisions of this Franchise, on the.terms submitted to the City. If
any material change is made in the agreement, the amended'agreement shall again be
given to the City, and the City shall again have ninety (90) days to exercise their right to
purchase as provided herein. Franchisee's failure to comply with the requirements of this
paragraph shall be sufficient basis for the City to deny the Transfer.
If the Cable System is not sold to the buyer on the terms set forth in the purchase
agreement or amended purchase agreement, as applicable, then the right of the City to
purchase the System shall continue, and notice of all subsequent purchase agreements
shall be given to the City pursuant to this paragraph. The City's right to purchase
pursuant to this Section shall survive every sale to a buyer and be binding upon every
buyer of the Cable System.
4. PROVISION OF CABLE SERVICE
Availability of Cable Service
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The Franchisee shall make Cable Service available to all persons, including residences,
businesses, and other legal entities, within the Franchise Area which is economically and
technically feasible and subject to the provisions of 4(1), including owners or occupants of
multiple dwelling units that request Cable Service, except for multiple dwelling unit buildings to
which the Franchisee cannot legally obtain access or cannot reach an agreement for access after
good faith negotiation with the building owner. Except as otherwise required under this
Franchise, terms and conditions of services provided to businesses are subject to negotiation
between the Franchisee and the business requesting the service.
Line Extension Requirements.
Requirements. The Franchisee shall extend its Cable System within a reasonable time
(but not to exceed ninety (90) days) to provide service to any person or business upon
request at no charge other than any applicable installation fees for the individual
subscriber's drop, as long as the following conditions are satisfied:
the new subscriber requesting service is located 150 feet or less from the
termination of the Cable System; and
the number of dwelling units to be passed by the extension is equal to or greater
than 25 per mile measured from any point on the system.
The above requirements may be waived if the Franchisee demonstrates to the City's
satisfaction, in its sole discretion, that a waiver is justified due to extraordinary circumstances. In
addition, the Franchisee may obtain a waiver of the 90-day time period if it demonstrates to the
City's satisfaction that additional time is required to accommodate utilities providing the
Franchisee with access to poles, ducts, conduit or right-of-way.
Bo
If a person has requested Cable Service but the requirement in paragraph (1)(A)
above is not met, and the density requirement in paragraph (1)(B) is met, then the
Franchisee shall extend its System to serve the person requesting service,
provided that the Franchisee may require the person to pay the cost of any line
extension in excess of 150 feet.
If neither of the requirements in paragraph (1) is met, then the Franchisee must
extend its System based upon an equitable and reasonable cost-sharing
arrangement with affected potential subscribers, such as the arrangement
described below:
The Franchisee shall first determine the total construction costs of the extension.
The "total construction costs" are defined as the actual turnkey cost to construct
the entire extension including electronics, pole make-ready charges, labor and
reasonable associated overhead, but not profit or the cost of the house drop.
The Franchisee shall then determine its share of the total construction costs by
multiplying the total construction costs by a fraction, where the numerator equals
the number of actual potential subscribers per mile in the area to be served by the
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extension at the time of the request, and the denominator equals 15.
Persons requesting service can be required to bear the remainder of the total
construction costs on a pro rata basis.
If the Franchisee proposes to require a person requesting extension to make a
contribution in aid of extension, it must, within 30 days of completion of the
extension, furnish the City proof of the total cost of the extension.
5. CONSTRUCTION AND MAINTENANCE.
Construction Standards.
All wires, cable lines, and other transmission lines, equipment, and structures shall be
installed and located to minimize interference with the rights and convenience of property
owners and the use of the Public Right-of-Way.
All installation of electronic equipment shall be of a permanent nature, using durable
components, except where maintenance or emergency repairs require the installation of
temporary equipment. Temporary equipment shall be replaced as soon as possible. If
replacement cannot occur within 60 days, Franchisee must provide notification to the
City.
Without limiting the foregoing, antennae and their supporting structures (towers) shall be
designed in accordance with the Building Officials and Code Administrator's National
Building Code, as amended, and shall be painted, lighted, erected, and maintained in
accordance with all applicable rules and regulations of the Federal Aviation
Administration and all other applicable state or local laws, codes, and regulations, all as
hereafter may be amended or adopted.
Without limiting the foregoing, all of the Franchisee,s plant and equipment, including, but
not limited to, the antennae site, headend and distribution system, towers, house
connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures, and
apparatuses shall be installed, located, erected, constructed, reconstructed, replaced,
removed, repaired, maintained, and operated in accordance with good engineering
practices, performed by experienced and properly trained maintenance and construction
personnel so as not to endanger or interfere with improvements the City shall deem
appropriate to make or to interfere in any manner with the Public Rights-of-Way or legal
rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
All safety practices required by law shall be used during construction, maintenance, and
repair of the Cable System. The Franchisee shall at all times employ ordinary care and
shall install and maintain in use commonly accepted methods and devices preventing
failures and accidents that are likely to cause damage, injury, or nuisance to the public.
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o
o
o
10,
11.
12.
In the event of a failure by the Franchisee to complete any work required for the
protection or restoration of the Public Rights-of-Way, or any other work required by City
or local law or ordinance, within the time specified by and to the reasonable satisfaction
of the City, following notice and an oppommity to cure, the City may cause such work to
be done, and the Franchisee shall reimburse the City the cost thereof within thirty (30)
days after receipt of an itemized list of such costs.
The Franchisee shall place facilities, equipment, and fixtures where they will minimize
effects on any gas, electric, telephone, water, sewer, or other utility facilities, and shall
not obstruct or hinder inany manner the various utilities serving the residents of the City
or their use of any Public Rights-of-Way.
Any and all Public Rights-of-Way, public property, or priVate property that is disturbed
or damaged during the construction, repair, replacement, relocation, operation,
maintenance, or construction of a System shall be promptly restored to the same
condition as it was in prior to its disturbance by the Franchisee.
The Franchisee shall, by a time specified by the City, and at no cost to the City, protect,
support, temporarily disconnect, relocate, or remove any of its property when required by
the City by reason of traffic conditions; public safety; Public Right-of-Way construction;
Public Right-of Way maintenance or repair (including resurfacing or widening); change
of Public Right-of-Way grade; construction, installation or repair of sewers, drains, water
pipes, power lines, signal lines, tracks, or any other type of government-owned
communications system, public work or improvement or any government-owned utility;
Public-Right-of-Way vacation; or for any other purpose where the convenience of the
City would be served thereby; provided, however, that the Franchisee shall, in all such
cases, have the privilege of abandoning any property in place.
If any removal, relaying, or relocation is required to accommodate the construction;
operation, or repair of the facilities of another person that is authorized to use the Public
Rights-of-Way~ the Franchisee shall, after forty-five (45) days' advance written notice,
take action to effect the necessary changes requested by the responsible entity. The City
may resolve disputes as to responsibility for costs associated with the removal, relaying,
or relocation of facilities as among entities authorized to install facilities in the Public
Rights-of-Way if the parties are unable to do so themselves, and if the matter is not
governed by a valid contract between the parties or a state or federal law or regulation.
In the event of an emergency, or where a Cable System creates or is contributing to an
imminent danger to health, safety, or property, the City may remove, relay, or relocate
any or all parts of that Cable System without prior notice. The City shall make
reasonable efforts to contact the Franchisee prior to performing such work, or
immediately thereafter if prior notice is impossible.
The Franchisee shall, on the request of any person holding a building moving permit
issued by the state, temporarily raiSe or lower its wires to permit the moving of buildings,
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13.
14.
15.
16.
The expense of such temporary removal or raising or lowering of wires shall be paid by
the person requesting same, and the Franchisee shall have the authority to require such
payment in advance, except in the case where the requesting person is the City, in which
case no such payment shall be required. The Franchisee shall be given not less than
forty-eight (48) hours advance notice to arrange for such temporary wire changes.
The Franchisee may trim trees or other vegetation owned by the City to prevent
their branches or leaves from touching or otherwise interfering with its wires,
cables or other structures.
A. All trimming or pruning provided herein shall be done only w/th the City's
prior approval.
B. All trimming or pruning shall be at the sole cost of the Franchisee.
C. The Franchisee may contract for said trimming or pnming services with
any person approved by the City prior to the rendering of said services.
Any person engaged by the Franchisee to provide tree trimming or pruning
services shall be deemed, for the purpose of this Agreement, to be an
employee of the Franchisee when engaged in said activity.
The Franchisee shall obtain the written permission of the owner of any privately
owned tree or other vegetation before it trims or prunes the same, unless otherwise
provided by the right-of-way agreement.
The Franchisee shall use, with the owner's permission, existing poles, conduits and other
facilities whenever technically feasible and economically practical. The Franchisee may
not erect poles, conduits, or other facilities in Public Rights-of-Way without the express
permission of the City, and/or necessary local permits. Copies of agreements for use of
conduits or other facilities shall be filed with the City upon the City's request.
System cable and facilities may be constructed overhead where poles now exist and
electric or:telephone lines or both are now overhead, but where no overhead poles exist
all cables and facilities, excluding system passive or active electronics that may be
housed in low-profile, above-ground pedestals, shall be constructed underground.
Whenever and wherever electric lines and telephone lines are moved from overhead to
underground placement, all Cable System cables shall be similarly moved.
The City shall have the right to install, at a rate negotiated by the City and Franchisee,
upon any poles owned by the Franchisee, any wire and pole fixtures that do not
unreasonably interfere with the Cable System of the Franchisee.
Except as otherwise required herein, prior to erection of any poles or conduits or the
construction, upgrade, or rebuild of a Cable System, the Franchisee shall first submit to
the City for approval, a concise description of the Cable System facilities proposed to be
erected or installed, including strand maps, if required by the City, indicating the
proposed location of all such facilities. No such erection or construction shall be
commenced by any person until approval therefor has been received fi:om the City.
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17.
Any contractor or subcontractor used for work or construction, installation, operation,
maintenance, or repair of System equipment or for the pruning or removal must be
properly licensed under laws of the state and all applicable local ordinances, where
applicable, and each contractor or subcontractor shall have the same obligations with
respect to its work as the Franchisee would have if the work were performed by the
Franchisee. The Franchisee must ensure that contractors, subcontractors and all
employees who will perform work for it are trained and experienced. The Franchisee
shall be responsible for ensuring that the work of contractors and subcontractors is
performed consistent with the franchise and applicable law, shall be responsible for acts
or omissions of contractors or subcontractors to the same degree it is responsible for the
acts of its employees, shall be responsible for promptly correcting acts or omissions by
any contractor or subcontractor, and shall implement a quality control program to: ensure
that the work is properly performed.
Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the
Franchisee shall, in a manner approved by the City, replace and restore all paving, sidewalk,
driveway, landscaping, or surface of any street or alley disturbed, in substantially the same
condition and in a good workmanlike, timely manner in accordance with standards for such work
set by the City. Such restoration shall be undertaken as quickly as possible, and within no more
than thirty (30) days after the damage is incurred, and shall be completed as soon as reasonably
possible thereafter, provided that the City may extend the thirty-day period if weather conditions
make restoration within that time impractical. The Franchisee shall guarantee and maintain such
restoration for at least one year against defective materials or workmanship.
Publicizing Proposed Construction Work. The Franchisee shall notify the public prior to
commencing any proposed construction that will significantly disturb or disrupt public property
or have the potential to present a danger or affect the safety of the public generally, except when
a delay in commencing such work would present a danger or affect the safety of the public. The
Franchisee shall pubhcize proposed construction work at least one (1)week prior to
commencement of that work by causing written notice of such construction work to be delivered
to the City and by notifying those persons most likely to be affected by the work in at least two
(2) of the following ways: by telephone, in person, by mail, by distribution of flyers to
residences, by publication in local newspapers, or in any other manner reasonably calculated to
provide adequate notice. In addition, before entering onto any person's property, the Franchisee
shall provide prior notification and obtain the property owner's or, in the case of residential
property, the resident's permission. If the Franchisee must enter premises, it must schedule an
appointment at the convenience of the owner or resident.
System Maintenance.
Interruptions to be Minimized. The Franchisee shall schedule maintenance on its System
at times that will minimize the likelihood of interruptions in service to subscribers.
2. Maintenance Practices Subject to Regulation. Maintenance of the System shall be
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performed in accordance with the technical performance and operating standards
established by FCC rules and regulations. The City may monitor the Franchisee's
maintenance practices and; to the extent permitted by applicable law and as agreed to by
the parties, may waive requirements or adopt additional requirements as reasonable to
ensure the system remains capable of providing high-quality service.
Failure Grounds for Termination. Failure on the part of the Franchisee to commence and
diligently pursue and complete each of the material requirements set forth in this Section of the
Agreement or in plans submitted to the City regarding System design and construction shall be
grounds for termination of its Franchise under and pursuant to the terms contained herein;
provided, however, that the City in its discretion may extend the time for the completion of
construction and installation for additional periods in the event the Franchisee, acting in good
faith, experiences delays by reason of circumstances beyond its control
6. SYSTEM FACILITIES, EQUIPMENT AND SERVICES.
System Characteristics: The Franchisee's Cable System shall, at all times during the Franchise
term, meet or exceed the following requirements:
Compliance With Federal Communication Commission (FCC) Rules. All maintenance
performed on the Cable System by the Franchisee shall be in accordance with the FCC
rules and regulations governing the technical performance and operating standards for
such System.
ContinuoUs 24-Hour Operation. The System shall be capable of continuous twenty-four
(24) hour daily operation without severe material degradation of signal except during
extremely inclement weather or immediately following extraordinary storms that
adversely affect utility services or damage major system components.
Temperature Specifications. The System shall be capable; of operating over an outdoor
temperature range of ~20 degrees F to +120 degrees F and over variation in supply
voltages from 105 to 130 volts AC without catastrophic failure or irreversible
performance changes. The System shall meet all applicable specifications over an
outdoor temperature range of 0 degrees F to 100 degrees F and over variation in supply
voltages from 105 to 130 volts AC.
No Interference. The Franchisee shall operate the System in such a manner as to
minimize interference with the reception of off-the-air signals by a subscriber. The
Franchisee shall insure that signals carded by the System, or originating outside the
System wires, cables, fibers, electronics and facilities, do not ingress or egress into or out
of the System in excess of FCC or other applicable standards. In particular, Franchisee
shall not operate the System in such a manner as to pose unwarranted interference with
emergenCy radio services, aeronautical navigational frequencies or any airborne
navigational reception in normal flight patterns, or any other type of wireless
13 of 36
communications, pursuant to FCC regulations.
No Deterioration to Access Signals. The System shall be so constructed and operated
that there is no significant deterioration in the quality of leased access signals resulting
from the transportation of the video signal, either upstream or downstream, as compared
with any other channel on the System. Deterioration refers to any signal problem,
including but not limited to ghost images and other interference and distortions.
Industry-accepted Equipment. The System shall use equipment generally used in
high-quality, reliable, modem systems of similar design.
Stand-by Power. Franchisee shall provide standby power generating capacity at the
headend and at all hubs. Franchisee shall maintain motorized standby power generators
capable of at least twenty four (24) hours duration at the headend, and battery back-up
power capability of at least two (2) hours duration for all system hubs with automatic
dialer response systems to alert the system headend when commercial power is
interrupted if applicable. The headend generator shall be tested once per month. The
standby power system may be reviewed and approved by the City as part of System
Design Review. The power suppliers serving the nodes and distribution shall be capable
of providing power to the system for not less than two (2) hours according to
manufacturer specification in the event of an electrical outage. The Franchisee shall
maintain sufficient portable motorized generators to be deployed to a hub site in the event
that the duration of a power disruption is expected to exceed two (2) hours.
Cable Ready Television Sets. The Franchisee shall comply with all FCC regulations
regarding scrambling or other encryption of signals.
Consumer Equipment For Lease or Sale. Subject to applicable law or regulation, as part
· of the System, the Franchisee shall, consistent with 47 C.F.R. § 76.984 and 47 U.S.C. §
543(d) or other applicable law role or regulation, offer every subscriber, at uniform prices
and regardless of the level of service taken, the opportunity to lease from the Franchisee
or to lease or buy from others Converters (including digital converters), including any
associated software, that allow subscribers to view a program on one channel while
taping a program on another channel. To the extent permitted by federal law, subscribers
shall have the right to attach devices to the Franchisee's System to allow them to transmit
signals or service to video cassette recorders, receivers and other terminal equipment, and
to use their own remote control devices and Converters, and other similar equipment, as
long as such devices do not interfere with the operation of the Franchisee's System or the
reception of any cable subscriber, do not serve to circumvent the Franchisee's security
procedures, or are not used in any manner to obtain services illegally. The Franchisee, at
no additional charge, shall provide information regarding the cable system to subscribers
which will assist them in adjusting such devices so that they may be used with the
Franchisee's System.
10. Parental Control. The Franchisee shall provide equipment to enable subscribers to block
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out audio and video on any undesired channels on the System.
11,
Program Security. The System shall include equipment so that any pay-per-view
programming can only be activated by the positive action of a subscriber.
12.
Service for the Disabled. All closed-caption programming retransmitted by the System
shall include the closed-caption signal. For hearing impaired subscribers, the Franchisee
shall provide information concerning the cost and availability of equipment to facilitate
the reception of all basic services for the hearing impaired as regulated by federal law.
Upon request, the Franchisee shall provide, for purchase or lease, :a remote control device
to those subscribers who are mobility limited, or where a member of the subscriber's
household is mobility limited.
Current System: The Franchisee is authorized and required to operate its existing System, and to
provide service substantially equivalent to its existing serVice, within the City as of the Effective
Date of this Agreement, until such time as the System is rebuilt, as provided herein.
Integration of Advancements in Technology.
In addition to any upgrades required herein, it is the responsibility of the Franchisee to
periodically upgrade its Cable System to integrate advancements in technology as may be
required to meet the needs and interests of the community in light of the cost the
community is willing to pay for.
To ensure that the Franchisee is carrying out its responsibilities hereunder, the Franchisee
shall upon request submit a report on cable technology to the City every three years
during the Franchise term. Each report shall describe developments in cable technology,
and whether, how, andby what date the Franchisee plans to incorporate those
technological developments into the System. In addition, the report shall describe the
effect of those developments on public, educational, and governmental use of the Cable
System, and the effect and compatibility of those technological changes on consumer
electronic equipment. The report also shall describe how other cable' companies have
incorporated or are planning to incorporate the technological developments into their
Systems and the estimated timetable for doing so.
System Buildout:
The System backbone connections shall utilize fiber optic links (headend to hubs, hubs to
hubs, and hubs to nodes). Franchisee has 24 months to complete build out to Franchise
Area. Fiber optic nodes, segmented into distinct service areas, shall be constructed to
serve coaxial copper cable passing no more than 1,500 dwelling units per node.
Individual nodes may serve cable passing a de minimis number of dwelling units in
excess of 1,500, provided there is no effect on the performance characteristics of the
node.
The Franchisee shall design the system so that channel capacity may be readily expanded
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and digital programming delivered to Subscribers through digital video compression or
similar appropriate technology without compromising signal or service quality or
requiring significant alterations, upgrading or reconstruction.
The rebuilt System shall prOvide two-way capability. Except as provided elsewhere in
this Agreement, Franchisee, in its sole discretion, may activate such capability based on
economic and technical considerations.
The Franchisee may offer high-speed cable modems as a Cable Service'.
System Physical Design Review Process: The. City may review the physical system design maps
and submit comments to the Franchisee within fifteen (15) days of the date each map is provided
to the City for review. The Franchisee shall take any such comments into account in
implementing its. construction plan.
Construction Manual and Cut-Over Plan. No later than sixty (60) days before the date
construction of the buildout is to begin, the Franchisee shall upon request provide for City review
and approval, a buildout construction manual, rebuild cut-over plan, installation manual, and
plan for notifying area residents of the buildout work process.
System and Institutional Network Rebuild Schedule:
The Franchisee shall begin construction of the Rebuild within six months of the effective
date of the Franchise, and shall complete construction within four years of the effective
date of the Franchise, in order to minimize disruption of the Public Rights-of-Way.
The Franchisee's construction plan shall insure that service is extended to low income
areas at least as quickly as it is extended to higher income areas.
o
All construction shall be performed in accordance with generally accepted construction
standards and applicable provisions of this Agreement, except where specifically waived
in writing by the City:
Periodic Progress Reporting.
Delays in the System Buildout. The Franchisee shall not be exCused from the timely
performance of its obligation t° begin and complete any System Buildout within the
times specified herein, except for the following occurrences:
Any Force Majeure situation, as described herein;
Delays beyond the control of the Franchisee that the Franchisee could not
reasonably have anticipated regarding the availability, shipment and arrival of
necessary equipment, cables, electronics or hardware, protracted underground
excavation, easement availability, third-party refusal to allow necessary access to
poles or other fights-of-way facihties, changes in contractors or contractor
personnel, the issuance of necessary governmental permits, or any other valid
factor agreed to by the City as fully explained and reasonably justified in writing
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..
to the City or its designee.
Consequences of Delays. Absent a showing of excusable delay pursuant to the terms
contained herein, should the Franchisee be unable to demonstrate the commencement or
timely completion of the System Buildout (including the Institutional Network) by the
times specified herein, or be unable to reasonably justify any delays, then the Franchisee
shall be in violation of a material provision of this Franchise Agreement and the City
may, in its sole discretion, either grant the Franchisee an extension of time to complete
such construction or implement any enforcement measures specified in this Agreement,
including but not limited to revocation of the franchise. In the event of excusable delay
pursuant to the terms contained herein, the time for completion shallbe extended by the
period of such delay.
Technical Standards. The Cable System shall meet or exceed the technical standards set forth in
47 C.F.R. § 76.601 and any other applicable technical standards, including any such standards as
hereafter may be amended applicable federal law.
Types of Service: Should the Franchisee desire to change the selection of programs or services
offered on any of its tiers, it shall maintain the quality and level of services provided over the
System. Any change in programs or services offered shall comply with all lawful conditions and
procedures contained in this Agreement and in applicable law. The Franchisee shall provide
thirty (30) days advance written notice to subscribers and the City of any change in channel
assignment or in the video programming service provided over any channel, unless this
requirement is waived by the City or by operation of federal or state law, or due to events beyond
the reasonable control of the Franchisee.
Leased Access Channels: Franchisee shall provide Leased Access Channels as required by
federal law.
Customer Service Monitoring: Franchisee shall keep such records, maintain such monitoring
equipment or provide a detailed monitoring report as provided by the telephone company as are
required to enable the City to determine whether the Franchisee is complying with all telephone
answering standards required by applicable customer service regulations, as amended from time
to time.
Emergency Alert System.
Franchisee shall install and thereafter maintain for use by the City, an Emergency Alert
System ("EAS"), which shall consist of:
A. All Emergency Alert System features required by 47 C.F.R. Part 11.
B0
Capabilities enabling the City to scroll video emergency messages on ail
channels.
2. To the extent permitted by 47 C}F.R. Part 11, the EAS shall be remotely activated by
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telephone and shall allow a representative of the City to override the audio and video on
all channels on the Franchisee's System that may lawfully be overridden, without the
assistance of the Franchisee, for emergency broadcasts from a location designated by the
City in the event of a civil emergency or for reasonable tests.
Every thirty (30) days the City will provide reasonable notice to the Franchisee prior to
any test use of the EAS. The Franchisee shall cooperate with the City in any such test.
Uses of System: Franchisee must agree to advise the City of all active uses ofthe System,
for both entertainment and other purposes, and the City shall have the right to conduct
unannounced audits of such usage.
Additional Capacity: Franchisee will notify the City in advance of the installation of any fiber
optic capacity not contemplated by the initial design of the System, so that additional fiber may
be installed, at the City's expense, on an Actual Cost basis for government and institutional use.
If the City wishes to request additional capacity, it may notify the Franchisee within 15 days of
receipt of Franchisee's notification that the City will request additional capacity.
Periodic Performance Evaluation: The City may schedule periodic public hearings to evaluate
the performance of'the Franchisee, or to discuss the integration of future technologies, other
plans or operations of the Franchisee or any aspect of the Franchisee's Cable System. The
Franchisee shall cooperate with the City in any such evaluation.
Mid-Term Technical Review:
In addition to any periodic performance evaluations conducted pursuant to the terms
contained herein, the City may also conduct a Mid-Term Technical Review of the
Franchisee's Cable System once during the eighth and ninth year of the Franchise. The
Franchisee shall fully cooperate and assist the City in conducting:such review.
Purpose: The purpose, of the Mid-Term TechniCal Review shall be to evaluate the
technical Performance and capabilities of the :Franchisee's System; including the
Institutional Network, to determine whether to require a system upgrade to conform with
technical improvements then commonly in use in the industry and available on systems in
communities similar to the City. Subject to the provisions contained herein, the City may
amend this Franchise Agreement to require the Franchisee to upgrade its System to
incorporate technical improvements (the "Upgrade Option").
o
City's Initial Review: To determine whether to invoke the Upgrade Option, the City shall
first commence a review of the Cable System. Such review shall be conducted to enable
the City to determine the following: (i) whether the Cable System should be upgraded or
rebuilt; (ii) whether the Cable System's technical standards should be revised or
improved; (iii) whether additional channels, equipment, facilities or support are required
for pubhc, educational and governmental use of the Cable System; and (iv) in general,
whether any other changes in Franchise requirements should be made. Each
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determination under this paragraph shall be based upon the reasonable cable-related needs
and interests of the City and the community, considering the costs to the Franchisee of
meeting those needs and interests during the remaining term of the Franchise.
Franchisee's Report: To assist in the City's initial review, the Franchisee shall, at the
City's request, promptly submit a report to the City describing advances in cable
technology nationwide, the potential benefits and disadvantages of those advances for
consumers, and any plans or timetables the Franchisee may have for instituting such
changes in technology.
Public Heatings: If, after conducting its initial review, the City determines that a system
upgrade may be warranted, it shall hold a public heating to enable the general public and
the Franchisee to comment and to present additional information.
Upgrade Order: Following such hearings, the City shall determine whether the exercise
of the Upgrade Option is warranted, based upon the reasonable cable-related needs and
interests of the community, considering the costs to the Franchisee of meeting those
needs and interests. The City shall issue a written order ("Upgrade Order") stating
whether an upgrade is required, describing any upgrade to be implemented, and setting
forth the basis for its decision. If an upgrade is required, the City shall set forth any
relevant conditions.
o
Franchisee's Response. Within sixty (60) days after the City issues the Upgrade Order,
the Franchisee shall notify the City in writing whether it will comply with the Order. If
the Franchisee does not so notify the City within sixty (60) days, the Franchisee will be
deemed to have agreed to comply with the Upgrade Order.
Amendment of the Franchise Agreement. If the Franchisee agrees to comply with the
Upgrade Order, the parties shall amend this Franchise Agreement accordingly.
If, however, the Franchisee is unwilling to comply with the Upgrade Order, the
Franchisee shall, notify the City in writing, pursuant to Section 626 of the Cable Act, that
it w/shes to commence proceedings to renew the Franchise. If, at the time of such notice,
more than three (3) years remain in the term of the Franchise, such notice shall be
deemed, by mutual agreement, to shorten the term of the Franchise and this Agreement so
that the Franchise and this Agreement shall terminate thirty-one (31) months from the
date of the notice.
7. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE.
Government Access Channel:
Following the completion of the system buildout, Franchisee shall make available to each of its
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subscribers who receive some or all of the services offered on the system, two governmental
access channels which one will be used for non-commercial purposes and one for a black out
channel.
The channel designated for government access shall be provided by Franchisee as part of the
basic cable service. The government access channel shall be made available by Franchisee for
use by the City and its citizen in accordance with the rules and procedures established by the City
or any lawfully designated person group, organization, or agency authorized by the City for that
purpose.
Return Feed From Facilities:
The Franchisee shall provide dedicated, bi-directional fiber optic links between the
headend and each of the following institutional facilities, at the addresses designated in
Exhibit A. These links shall be completed within twelve months of the effective date of
the FranchiSe.
The Franchisee shall provide and install all equipment for amplification, conversion,
receiving, transmitting, routing, and headend processing of signals to be used for
governmental purposes on the System, under the provisions contained herein.
The dedicated connections required by this Agreement shall be designed and built to
include all equipment required for the transport of video and audio source material,
including but not limited to laser transmitters, modulators, and processors, drops and
wiring, so that each such center can send signals to the headend initially. Franchisee shall
bear the cost of providing all equipment necessary to meet this requirement.
Cable Service to Certain Facilities:
Upon the request of the ,City, the Franchisee shall without charge install one activated
outlet at each public and non-profit educational institution, each city; or municipal
agency building, each facility owned by or leased to the City, any location within 300 ft
of existing plant, and each multi-purpose Community Center, within the Franchise Area,
as shall be designated by the City from time to time subject to line extension
requirements of section 4 above.
The Franchisee shall provide the highest tier that contains Basic Service, and any
equipment necessary to receive such service, free of charge to those facilities specified in
subsection (1) herein. At its sole discretion, the Franchisee may also provide higher
levels of service to such facilities free of charge.
8. FRANCHISE FEE.
Payment to City. Each year during the Franchise term, as compensation for use of Public
20 of 36
Rights-of-Way, the Franchisee shall pay to the City, on a quarterly basis, a Franchise fee of five
percent (5%) of Gross Revenues. Such payments shall be made no later than thirty days
following the end of each calendar quarter.
Increase in Franchise Fee. The City may, in its sole discretion, increase the amount of the
Franchise fee up to the maximum amount permitted under state and federal law at any time.
However, the City shall provide the Franchisee with sixty days' advance notice of such an
increase. If no maximum amount is specified, the City and Franchisee may amend the Franchise
Agreement to specify the amount the Franchisee will pay. The Franchisee shall begin paying the
increased fee from the effective date of the amendment to the Franchise Agreement.
Supporting Information. Each franchise fee payment shall be submitted with supporting detail
and a statement certified by the Franchisee's chief fmancial or accounting officer or an
independent certified public accountant, reflecting the total amount of quarterly Gross Revenues
for the payment period and a breakdown by major revenue categories (such as basic service,
cable programming service, premium service, etc.). In the information provided with each
payment, the Franchisee shall also indicate the number of subscribers within the Franchise Area.
The City shall have the right to require further supporting information.
Late Payments. In the event any Franchise fee payment or recomputation amount is not made on
or before the required date, the Franchisee shall pay a late charge of five percent of the amount of
payment plus interest charges computed from such due date at an annual rate equal to the annual
rate then charged for unpaid federal income taxes.
Aud~
1.
The City shall have the right to inspect and copy records held by the Franchisee and the
rights to audit and to recompute any amounts determined to be payable under this
Agreement.
The Franchisee shall be responsible for providing to the City all records necessary to
confirm the accurate payment of Franchise fees, without regard to by whom they are held.
Such records shall be made available pursuant to the requirements provided herein. The
Franchisee shall maintain such records for seven years.
The City's audit expenses shall be bome by the Franchisee as a cost incidental to the
enforcement of the Franchise, if the audit determines the annual payment to the City for
preceding year is increased by more than 5%. Any additional amounts due to the City as
a result of the audit shall be paid within thirty (30) days following written notice to the
Franchisee by the City of the underpayment, which notice shall include a copy of the
audit report. Ifrecomputation results in additional revenue to be paid to the City, such
amount shall be subject to an interest charge as allowed by law. If the audit determines
that there has been an overpayment by Franchisee, the Franchisee may credit any
overpayment against its next quarterly payment.
4. The Franchisee shall maintain its fiscal and financial records and have all relevant fiscal
21 of 36
and financial records maintained by others on its behalf in such a manner as to enable the
City to determine Gross Revenues.
No Limitation on Taxing Authority:
Nothing in this Agreement shall be construed to limit any authority of the City to impose
any tax, fee, or assessment of general applicability. By way of illustration and not
limitation, to the extent permitted by applicable law, the City may impose a tax, fee, or
other assessment on any person (other than a cable Franchisee)with respect to Cable
Service or other communications service provided by such person over a Cable SYstem
for which charges are assessed to subscribers but not received by the cable Franchisee,
The Franchise fee payments required by this section shall be in addition to any and all
taxes ora general nature (i.e., those which are not applicable solely to cable television
operations within the City) or other fees or charges which the Franchisee shall be required
to pay to the City or to any local, state or federal agency or authority, as required herein
or by law, all of which shall be separate and distinct obligations of the Franchisee. The
Franchisee shall not have or make any claim for any deduction or other credit of all or
any part of the amount of said Franchise fee payments from or against any of said City or
municipal taxes or other fees or charges which the Franchisee is required to pay to the
City, except as expressly permitted by law. The Franchisee shall not apply nor seek to
apply all or any part of the amount of said Franchise fee payments as a deduction or other
credit from or against any of said City taxes or other fees or charges, except as expressly
permitted by law. Nor shall the Franchisee apply or seek to apply all or any part of the
amount of any of said taxes or other fees or charges as a deduction or other credit from or
against any of its Franchise fee obligations, except as expressly permitted by law.
9, CUSTOMER SERVICE.
General Provisions.
This Section 9 sets forth customer service standards that the Franchisee must satisfy. In
addition, the Franchisee shall at all times satisfy any additional or stricter requirements
established by FCC regulations, or other applicable federal, state, or local law or regulation, as
the same may be amended from time to time. Nothing in this section in any way relieves the
Franchisee of its obligation to comply with other applicable consumer protection laws.
Installations, Connections, and Other Franchisee Services.
Location of Drops. The subscriber's preference as to the point of entry into the residence
shall be observed whenever feasible. Runs in building interiors shall be as unobtrusive as
possible. The Franchisee shall use due care in the process of installation and shall restore
the subscriber's property to its prior condition. Such restoration shall be undertaken as
soon as possible after the damage is incurred and shall be completed within no more than
22 of 36
thirty (30) days after the damage is incurred.'
2~
Antennas and Antenna Switches. The Franchisee shall adhere to FCC regulations
regarding antenna switches. The Franchisee shall not, as a condition to providing Cable
Service, require any subscriber or potential subscriber to remove any properly grounded
existing antenna structures for the receipt of over-the-air television signals.
Delinquent Accounts. The Franchisee shall use its best efforts to collect on delinquent
subscriber accounts before terminating service. In all cases, the Franchisee shall provide
the customer with at least ten (10) working days written notice, with the telephone.
number to call; to arrange payment or to resolve disputes, prior to disconnection,
Telephone and Office Availability.
Franchisee shall maintain an office at a convenient location in the City that shall be open
during Normal Business Hours to allow subscribers to request service, pay bills, and
conduct other business.
Franchisee will maintain at least one local, toll-free or collect call telephone access line
which will be available to subscribers 24 hours a day, seven days a week. Trained
representatives of the Franchisee shall be available to respond to subscriber telephone
inquiries during Normal Business Hours.
Under Normal Operating Conditions, the following standards shall be met by the
Franchisee at least ninety (90) percent of the time, measured quarterly.
Ao
Do
Telephone answering time shall not exceed thirty (30) seconds, and the time to
transfer the call to a customer service representative (including hold time) shall
not exceed an additional thirty (30)Seconds.:
A customer will receive a busy signal less than three percent (3%) of the time.
When:the business office is closed, an answering machine or service capable of
receiving and recording service complaints and inquiries shall be employed.
Inquiries received after hours must be responded to by a trained representative of
the Franchisee on the next business day. To the extent possible, the after-hours
answering service shall comply with the same telephone answer time standard set
forth in this Section.
The Franchisee must hire sufficient staff so that it can adequately respond to
customer inquiries, complaints, and requests for service in its office, over the
phone, and at the subscriber's residence.
Scheduling and Completing Service.
Appointments. The appointment window for installations, service calls, and other
installation activities will be either a specific time or, at maximum, a 4-hour time block
during Normal Business Hours. Where a subscriber cannot conveniently arrange for a
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service call or installation during Normal Business Hours, the Franchisee shall make
reasonable efforts to schedule service and installation calls outside Normal Business
Hours for the express convenience of the subscriber.
Cancellations. Under normal operating conditions the Franchisee may not cancel an
appointment with a subscriber after the close of business on the business day preceding
the appointment. If the Franchisee's representative is running late for an appointment
with a subscriber and will not be able to keep the appointment as scheduled, the
subscriber will be contacted, and the appointment rescheduled, as necessary, at a time
which is convenient for the subscriber.
Other Inquiries; Under Normal Operating Conditions, billing inquiries and requests for
service, repair, and maintenance not involving Service Interruptions must be
acknowledged by a trained customer service representative within twenty-four (24) hours,
or prior to the end of the next business day, whichever is earlier. The Franchisee shall
respond to all other inquiries within five (5) business days of receipt of the inquiry or
complaint.
To the extent consistent with federal law, no charge shall be made to the subscriber for
repairs or maintenance of Franchisee-owned equipment or facilities, except for the cost of
repairs to the Franchisee's equipment or facilities where it can be shown that the
equipment or facility was damaged by a subscriber.
Mobility-Limited Subscribers. With regard to mobility-limited subscribers, upon
subscriber request, the Franchisee shall arrange for pickup and/or replacement of
converters or other Franchisee equipment at the subscriber's address or by a satisfactory
equivalent (such as the provision of a postage-prepaid mailer).
Interruptions of Service.
The Franchisee may intentionally interrupt service on the Cable System only for good
cause and for the shortest time possible and, except in emergency situations or to the extent
necessary to fix the affected, subscriber's service problems, only after a minimum of forty-eight
(48) hours prior notice to subscribers and the City of the anticipated service interruption;
provided, however, that planned maintenance that does not require more than two' (2) hours'
interruption of service that occurs between the hours of 12:00 midnight and 6:00 a.m., shall not
require such notice to subscribers, but shall require notice to the City no less than twenty-four
(24) hours prior to the anticipated service interruption. Brief interruptions of service of less than
five minutes necessary to conduct planned maintenance shall not require notice to subscribers
and the City.
Notice to Subscribers.
The Franchisee shall provide the following materials to each subscriber at the time Cable
Service is installed, at least annually thereafter, and at any time upon request. Copies of
all such materials provided to subscribers shall also be provided to the City.
A. A written description of products and services offered, including a schedule of
rates and charges, a list of channel positions, and a description of programming
services, options, and conditions;
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B. A written description of the Franchisee's installation and service maintenance
policies, delinquent subscriber disconnect and reconnect procedures, and any
other of its policies applicable to its subscribers;
C. Written instructions on how to use the cable service;
D. Written instructions for placing a service call;
E. A written description of the Franchisee's billing and complaint procedures,
including the address and telephone number of the City office responsible for
receiving subscriber complaints;
F. A copy of the service agreement, if any;
G. Notice regarding subscribers' privacy rights pursuant to 47 U. SiC.§ 551;
H. Notice of the availability of universal remote controls and other compatible
equipment (a list of which, specifying brands:and models, shall be provided to any
subscriber upon request).
Subscribers and the City will be notified of any changes in rates, programming services
or channel positions, and any significant changes in any other information required to be
provided by this section, as soon as possible through announcements on the cable system
and in writing. Notice must be given to subscribers and the City a minimum of thirty
(30) days in advance of such changes and other significant changes if the change is within
the control of the cable Franchisee.
All Franchisee promotional materials, announcements, and advertising of residential
Cable Service to subscribers and the general public, where price information is listed in
any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view
or pay-per-event programming, all promotional materials must clearly and accurately
disclose price terms and in the case of telephone orders, the Franchisee shall take
appropriate steps to ensure that price terms are clearly and accurately disclosed to
potential customers before the order is accepted.
The Franchisee shall maintain a public file containing all notices provided to subscribers
under these customer service standards, as well as all promotional offers made to
subscribers. Copies of all notices; promotional or special offers sent to subscribers and
any agreements used with subscribers shall be filed promptly with the City. All forms
and notices distributed to customers which describe customer service policies and
procedures shall be subject to City approval. City response to Franchisee's requests for
review shall be made within five (5) working days of Franchisee's submission, and
approval shall not be um'easonably withheld.
Billing. Bills shall be clear, concise, and understandable. Bills must be fully itemized with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Bills shall clearly delineate all activity during the billing period, including optional
charges, rebates, and credits.
Rebate Policy. In the event of a Service Interruption of one or more channels to any subscriber,
the Franchisee shall repair the Service Interruption as soon as possible. This obligation is
satisfied if the Franchisee offers the subscriber the next available repair appointment within the
twenty-four hour period following the Service Interruption, or at the request of the subscriber, to
a mutually convenient later time for the repair call, and successfully repairs the Service
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Interruption during the agreed appointment.
10. EMPLOYMENT, TRAINING, AND PROCUREMENT
REQUIREMENTS
Employment:
The Franchisee shall, in accordance with federal, state, and local laws and regulations,
afford equal opportunity and non-discrimination in employment to all individuals,
regardless of their race, color, religion, age, sex, national origin, sexual orientation or
disability. The Franchisee shall Comply will all applicable requirements of the Americans
with Disabilities Act.
The Franchisee agrees that it shall give documentary evidence as to the steps it took to
ensure that a good faith effort was made by it to comply with subsection (a)(1) above.
Training: The Franchisee shall provide training on an ongoing basis for its employees to
maintain and upgrade skills and to prepare for promotional opportunities.
11. REPORTS AND RECORDS.
Open Books and Records.
The City shall have the right, upon written notice, to inspect at any time during normal
business hours at the City Cable System office or at such location as the City may
designate, all books, receipts, maps, plans, financial statements, contracts, service
complaint logs, performance test results, records of requests for service, computer
records, codes, programs, and disks or other storage media and other like material. This
includes not only the books and records of the Franchisee, but any books and records the
City deems relevant held by an Affiliate, a cable Franchisee of the Cable System, or any
person holding any form of management contract for the Cable System. With respect to
books and records held by contractors and subcontractors other than entities described in
the preceding sentence, the Franchisee shall cooperate with the City and exercise
Franchisee's best efforts to obtain access to the books and records. The Franchisee is
responsible for collecting the information and producing it at the location specified above
which the City deems appropriate in order to monitor compliance with the terms of this
Agreement, or applicable law.
The Franchisee shall maintain financial records that allow analysis and review of its
operations in the Franchise Area.
Access to the Franchisee's records shall not be denied by the Franchisee on the basis that
said records contain "proprietary" information. Refusal to provide information required
herein to the City shall constitute a breach of this agreement. All such information
received by the City shall remain confidential insofar as permitted by the Texas Public
Information Act and other applicable state and federal law.
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The Franchisee shall maintain a file of records oPen to public inspection in accordance
with applicable FCC rules, and regulations.
Communication with Regulatory Agencies. The Franchisee shall file with the City in a form
acceptable to the City all reports and materials submitted to or received from the FCC, the
Security and Exchange Commission, or any other federal or state regulatory commission or
agency having jurisdiction over any matter affecting operation of the Franchisee's System,
including, but not limited to, any proof of performance tests and results, Equal Employment
Opportunity reports, and all petitions, applications, and communications of all types regarding
the Cable System, or a group of Cable Systems of which the Franchisee's Cable System is a part,
including any such material submitted by or received by the Franchisee, an Affiliate, or any other
person on the behalf of the Franchisee.
Annual Report. Upon written request and no more often than every twelve (12) months no later
than 90 days after the end of Franchisee's fiscal year, the Franchisee shall submit a written report
to the City, in a form directed by the City, which shall include:
A summary of complaints, identifying both the number and nature of the complaints
received and an explanation of their dispositions, as such records are kept by the
Franchisee. Where complaints involve recurrent System problems, the nature of each
problem and the corrective measures taken shall be identified.
A report shOwing the number of service calls received by type during the prior quarter,
and the percentage of service calls compared to the subscriber base by type of complaint.
A report showing the number of outages and service degradations for the prior quarter,
and identifying separately each planned outage, the time it occurred, its duration, and the
estimated area and number of subscribers affected; each unplanned outage or service
degradation, the time it occurred, its estimated duration and the estimated area and the
number of subscribers affected; and the total hours of outages and service degradations as
a percentage of total hours of Cable System operation.
A copy of the Franchisee's rules and regulations applicable to subscribers of the cable
system;
An annual statement of Gross Revenues derived from the operation of the Cable System,
certified by the Franchisee's Vice President of Accounting or an independent certified
public accountant;
No later than 120 days after the end of its fiscal'year, the Franchisee shall provide an
annual financial report for the previous calendar year, certified by the Franchisee's Vice
President of Accounting or an independent certified public accountant, including
year-end balance sheet; income statement showing subscriber revenue from each category
of service and every source of non-subscriber revenue, line item operating expenses,
depreciation expense, interest expense, and taxes paid; statement of sources and
applications of funds; capital expenditures; and depreciation schedule;
An annual list of officers and members of the Board of Directors or similar controlling
body of the Franchisee and any Affiliates;
An organizational chart showing all corporations or partnerships with more than a five (5)
percent ownership interest in the Franchisee, and the nature of that ownership interest
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11.
12.
13.
14.
15.
16.
(limited parmer, general Partner, Prdferred shareholder, etc,); and showing the same
information for each corporation or partnership that holds such an interest in the
corporations or partnerships so identified and so on until the ultimate corporate and
partnership interests are identified;
An annual list of officers and members of the Board of Directors or similar controlling
body of the Franchisee and any Affiliates;
An organizational chart showing all corporations or partnerships with more than a five (5)
percent ownership interest in the Franchisee, and the nature of that ownership interest
(limited partner, general parmer, preferred shareholder, etc.); and showing the same
information for each corporation or partnership that holds such an interest in the
corporations or parmerships so identified and so on until the ultimate corporate and
partnership interests are identified;
An annual report and SEC 10(k) filing for each entity identified in subsection (9) of this
Section that generates such documents;
Unless previously provided, strand maps depicting the location of all cable plant,
showing areas served and locations of all trunk lines and feeder lines in the City;
a full schedule of all.subscriber and other user rates, fees and charges;
the Franchisee's PoliCieS regarding A/B switches;
the Franchisee's policieS regarding subscriber privacy; and
a summary of programs and statistical results which quantify Franchisee's
implementation of nondiscrimination, equal opportunity, and minority business policies
as required by the City.
Special Reports.
The Franchisee shall submit monthly construction reports regarding the System Rebuild
to the .City in which construction was performed during that month. The first report shall
be done 30 days after construction of the System Rebuild begins, and the last report shall
be done 30 days after the System Rebuild is complete, The Franchisee must submit
updated as-built system strand maps to the City, within sixty (60)days of the completion
of system construction in any geographic area. The maps shall be developed on the basis
of post-construction inspection by the Franchisee and construction personnel to assess
compliance with system design. Any departures from design must be indicated on the
strand maps, to assist the City in assessing the Franchisee's compliance with its
obligations.
The Franchisee must submit a copy and full explanation of any notiCe of deficiency,
forfeiture, or other document issued by any state or federal agency instituting any
investigation or civil or criminal proceeding regarding the Cable System, the Franchisee,
or any Affiliate of the Franchisee, to the extent the same may affect or bear on operations
in the City. By way of illustration and not limitation, a notice that an Affiliate that has a
management contract for the Cable System was not in compliance with FCC EEO
requirements would be deemed to affect or bear on operations in the City.
The Franchisee must submit a copy and brief explanation of any request for protection
under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the
Franchisee or by any partnership or corporation that owns or controls the Franchisee
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directly or indirectly.
Additional Reports. Franchisee shall prepare and furnish to the City, at the times and in the form
prescribed by the City, such additional reports with respect to its operation, affairs, transactions
or property, as may be reasonably necessary or appropriate to the performance of any of the
rights, functions or duties of the City in connection with this Agreement.
Records Required.
1. The Franchisee shall at all times maintain:
Ao
Records of all complaints received. The term "complaints" as used herein and
throughout this Agreement refers to complaints about any aspect of the Cable
System or the Franchisee's operations, including, without limitation, complaints
about employee courtesy. Complaints recorded maylnot be limited to complaints
requiring an employee service call.
A full and complete set of plans, records, and strand maps showing the exact
location of all System equipment installed or in use in the City, exclusive of
subscriber service drops
Records of outages, indicating date, duration, area, and the number of subscribers
affected, type of outage, and cause.
Records of service calls for repair and maintenance indicating the date and time
service was required, the date of acknowledgment and date and time service was
scheduled (if it was scheduled), and the date and time service was provided, and
(if different) the date and time the problem was solved.
Records of installation/reconnection and requests for service extension, indicating
date of request, date of acknowledgment, and the date and time service was
extended,
A'public file showing its plan and timetable for the System Rebuild..
Copies of the foregoing shall be provided to the City upon request, and the City may
require additional information, records, and documents from time to time.
Performance Evaluation.
The City may, at its discretion, hold performance evaluation sessions every three years.
The Franchisee may be required by the City to notify subscribers of all such evaluation
sessions by announcement on a designated local channel on the System in a manner and
with a frequency specified by the City for five (5) consecutive days preceding each
session.
Topics that may be discussed at any evaluation session may include, but are not limited
to, system performance and construction, Franchisee compliance with this Agreement,
customer service and complaint response, subscriber privacy, services provided,
programming offered, service rate structures, Franchise fees, penalties, free or discounted
services, applications of new technologies, judicial and FCC filings, and hne extensions.
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o
During the evaluation process, the Franchisee Shall fully cooperate with the City and shall
provide such information and documents as the City may need to reasonably perform its
review.
Voluminous Materials. If any books, records, maps or plans, or other requested documents are
too voluminous, or for security reasons cannot be copied and moved, then the Franchisee may
request that the inspection take place at some other location, provided that (1) Franchisee must
make necessary arrangements for copying documents selected by the City after review; and (2)
Franchisee must pay all travel and additional copying expenses incurred by the City in inspecting
those documents or having those documents inspected by its designee. The parties agree that any
payments made by Franchisee pursuant to this paragraph are not a Franchise fee.
Retention of Records; Relation to Privacy Rights. Franchisee shall take all steps that may be
required to ensure that it is able to provide the City all information which must be provided or
may be requested under this Agreement, including by providing appropriate subscriber privacy
notices. Nothing in this Section shall be read to require Franchisee to violate 47 U.S.C. § 551.
Franchisee shall be responsible for redacting any data that federal law prevents it from providing
to the City. The City retains the right to question any such redaction and to challenge it in any
forum having jurisdiction over such a challenge. Records shall be kept for at least five (5) years.
Waiver of Reporting Requirements. The City may, at its discretion, waive in writing the
requirement of any particular report specified in this Section 11.
12. RATE REGULATION
All Rights Reserved.
The City reserves all of its rights to regulate Franchisee,s rates to the maximum extent permitted
by law.
Geographical Uniformity.
To the extent consistent with the applicable lOcal state or federal law, the Franchisee's residential
rates throughout the Franchise Area shall be uniform.
13. INSURANCE, SURETY, AND INDEMNIFICATION
Upon the effective date of renewal the Franchisee shall, at its sole expense, take out and maintain
during the life of this franchise agreement public liability insurance with a company licensed to
do business in the State of Texas with rating by Best's Key Rating System of not less than "A"
that shall protect the Franchisee, the City, and the City's officials, officers, employees and agents
from claims which may arise from operations under this agreement, whether such operations are
by the Franchisee, its officials, officers, directors, employees and agents, or any subcontractors of
Franchisee. This liability insurance shall include, but shall not be limited to, protection against
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claims arising from bodily and personal injury and damage to property, resulting ~om
Franchisee's automobiles, products and completed operations. The amount of insurance for
single limit coverage applying to bodily and personal injury and property damage shall not be
less than three hundred thousand dollars ($300,000) per occurrence and three million dollars
($3,000,000) in aggregate. The following endorsements shall attach to the liability policy:
(1) The policy shall cover personal injury as well as bodily injury.
(2) The policy shall cover blanket contractual liability subject to the standard universal
exclusions of contractual liability included in the carder's standard endorsement as to
bodily injuries, personal injuries and property damage.
(3) Broad form property damage liability shall be afforded.
(4) The City shall be named as an additional insured on the policy.
(5) An endorsement shall be provided which states that the coverage is primary insurance
and that no other insurance effected by the City will be called upon to contribute to a loss
under this Coverage.
(6) Standard form of Cross-liability shall be afforded.
(7) An endorsement stating that the policy shall nOt be canceled without thirty (30) days
written notice of such cancellation given to the City.
The City reserves the right to adjust the coverage limit requirements no more than every five (5)
years, Any such adjustment by the City will be no greater than the increase in the State of Texas
Consumer Price Index (all consumers) for such five (5) year period,
Franchisee shall submit to the City documentation of the required insurance including a
certificate of insurance signed by the insurance agent and companies named, as well as all
properly executed endorsements,
Any deductible or self-insured retention must be declared to the City.
Policies Available for Review. All insurance policies shall be available for review by the City,
and the Franchisee shall deliver to the City a copy of the required certificates of insuranCe,
evidencing that the required policies are in effect, no later than thirty (30) days after such policy
is required to be effeCtive.
Indemnification.
Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the
City and each of its officials, boards, commissions, commissioners, agents, and
employees, against any and all claims, suits, causes of action, proceedings, and judgments
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for damages or equitable relief arising out of the construction, maintenance, or operation
of its Cable System; copyright infringements or a failure by Franchisee to secure consents
from the owners, authorized distributors, or Franchisees of programs to be delivered by
the Cable System, the conduct of the Franchisee's business in the City; or in any way
arising out of Franchisee's enjoyment or exercise of the Franchise, regardless of whether
the act or omission complained of is authorized, allowed, or prohibited by the this
Agreement.
Specifically, Franchisee shall fully indemnify, defend, and hold harmless the City, and,
its :officers, agents, and employees thereof, from and against any and all claims, suits,
actions, liability, and judgments for damages or otherwise subject to 47 U.S.C. § 558,
arising out of or alleged to arise out of the installation, construction, operation, or
maintenance of the System, including but not limited to any claim against Franchisee for
invasion of the fight of privacy, defamation of any person, firm or corporation, or the
violation or infringement of any copyright, trade mark, trade name, service mark, or
patent, or of any other right of any person, firm, or corporation.
The City shall give Franchisee prompt notice of any claim or the commencement of any
action, suit or other proceeding covered by the provisions of this Section. Franchisee will
provide the defense of any claims brought against the City under this Section of the
franchise by selecting counsel of Franchisee' choice to defend the claim, subject to the
consent of the City; which will not unreasonably be withheld. Nothing herein shall be
deemed to prevent the City from cooperating with Franchisee and participating in the
defense of any litigation by its own counsel at its own cost and expense, provided
however, that after consultation with the City, Franchisee shall have the right to defend,
settle or compromise any claim or action arising hereunder, and Franchisee shall have the
authority to decide the appropriateness and the amount of any such settlement. In the
event that the City does not consent to the terms of any such settlement or compromise,
FranchiSee shall not settle the claim or action but its obligation to indemnify the City
shall in no event.exceed the amount of such settlement.
Nothing in this Agreement shall be construed to waive the tort immunity of the City.
No Limit of Liability: Neither theprovisions of this Section nor any damages recovered by the
City shall be construed to limit the liability of Franchisee for damages under the Franchise.
14. PERFORMANCE GUARANTEES AND REMEDIES.
Performance Bond:
Franchisee shall obtain and maintain during the entire term of the Franchise, and any
renewal or extensions thereof, except as provided herein, a performance bond or an
irrevocable letter of credit in favor of the City in the amount of $1,000,000, to ensure the
Franchisee,s faithful performance of its obligations under the Ordinance and this
Agreement.
2. The performance bond shall prOvide the following conditions:
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There shall be recoverable by the City from the principal and surety, any and all
fines and penalties due to the City and any and all damages, losses, costs, and
expenses suffered or incurred by the City resulting from the failure of Franchisee
after notice and opportunity to cure and to faithfully comply with (i) the material
provisions of this Agreement, and other applicable law; (ii) all orders, permits and
directives of the City, or other body having jurisdiction over its acts or defaults;
(iii) payment of fees due to the City; or (iv) payment of any claims or liens due
the City. Such losses, costs and expenses shall include but not be limited to
reasonable attorney's fees and other associated expenses.
Co
The total amount of the performance bond shall be forfeited in favor of the City in
the event:
i. Franchisee abandons the System at any time during the term of its
Franchise or any extension thereto; or
ii. Franchisee carries out a Transfer of the Franchise or Transfer of Interest
without the express written consent of the City as provided herein.
iii. The City shall apPly any funds received under the performance bond to
defray any damages, fees, costs and expenses attributable to or arising
from the abandonment of the System or Transfer of the Franchise. Any
funds remaining upon final resolution of all claims and payment of all
damages, costs, fees, and expenses shall be returned to the bonding
company.
The performance bond shall be issued by a surety qualified to do business in
Texas and with an A+9 or better rating for financial condition and financial
performance in nest's Key Rating Guide, Property/Casualty Edition; shall be in a
form approved by the City; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until sixty (60) days
after receipt by the City, by certified mail, return receipt requested, of a
written notice from the issuer: of the bond of intent to cancel or not to
renew."
Reduction of Bond. Upon written application by Franchisee, the City may, at its sole option, in
writing, permit the amount of the bond to be reduced or waive the requirements for a
performance bond. Reductions granted or denied upon application by Franchisee shall be
without prejudice to Franchisee's subsequent apphcations or to the City's right to require the full
bond at any time thereafter, However, no application shall be made by Franchisee within one (1)
year of any prior application.
15. MISCELLANEOUS PROVISIONS.
Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their
respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and
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assigns, and the promises and obligations herein shall survive the expiration date hereof.
Preemption: In the event that federal or state laws, rules or regulations preempt a provision or
hmit the enforceability of a provision of this Agreement, then, the provision shall be read to be
preempted to the extent and for the time, but only to the extent and for the time, required by law.
In the event such federal or state law, rule or regulation is subsequently repealed, rescinded,
amended or otherwise changed so that the provision hereof that had been preempted is no longer
preempted, such provision shall thereupon return to full force and effect, and shall thereafter be
binding on the parties hereto, without the requirement of further action on the part of the City.
Compliance With Federal and State Laws: Franchisee shall comply with all applicable federal,
state, and local laws and regulations.
Force Majeure: Franchisee shall not be deemed in default of provisions of this Agreement where
performance was rendered impossible by war or riots, labor strikes or civil disturbances, floods,
earthquakes, fire, explosions, or epidemics, or other causes beyond Franchisee's control, and the
Franchise shall not be revoked or Franchisee penalized for such noncompliance, provided that
Franchisee takes immediate and diligent steps to bring itself back into compliance and to comply
as soon as possible under the circumstances with the Franchise without unduly endangering the
health, safety, and integrity of Franchisee's employees or property, or the health, safety, and
integrity of the public, Public Rights-of-Way, public property, or private property.
Governing Law: This Franchise Agreement shall be governed in all respects by the law of the
State of Texas.
Notices: Unless otherwise expressly stated herein, notices required under this Franchise
Agreement shall be mailed first class, postage prepaid, to the addressees below. Each party may
change its designee by providing written notice to the other party, but each party may only
designate one entity to receive notice,
Notices to the Franchisee shall be mailed to:
TCA Management Company
President
3015 Loop 323
Tyler, Texas 75709
CC:
Legal Dept.
3015 Loop 323
Tyler, Texas 75709
Notices to the City shall be mailed to:
City Manager
City of Plainview
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't
901 Broadway
Plainview, Texas 79072
Franchisee shall at all times keep the City advised as to which individual(s) are authorized to act
on behalf of the Franchisee and whose acts will be considered to bind the Franchisee.
Time of Essence: In determining whether Franchisee has substantially complied with this
Franchise Agreement, the parties agree that time is of the essence. As a result, the Franchisee's
failure to complete construction, to extend service, to seek approval of Transfers or to provide
information in a timely manner may constitute material breaches.
Captions and References:
The captions and headings of sections throughout this Agreement are intended solely to
facilitate reading and reference to the sections and provisions of this Agreement. Such captions
shall not affect the meaning or interpretation of this Agreement.
Jurisdiction and Venue: The Franchisee consents to venue and jurisdiction in the U.S. District
Court of Texas and the Circuit Court for the City of Plainview, Texas.
Passed on first reading this /~day of__~/Q~4'a~'- ,1999.
Passed on second and final reading this .7~,aL day of 0~.~o~..,~.-- , 1999.
LloydC~oods, Mayor
ATTEST:
Khren McBeth, City Secretary
ACCEPTANCE
TCA Cable Partners II (dba TCA Cable TV) accepts and ~ereby agrees to be bound by all the
terms and conditions of this franchise,
APPROVED AS TO CONTENT:
APPROVED AS TO FORM:
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Fred R. Nichols, President of
TCA Cable Partners II
~Y
· B~:own, TCA General Counsel
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