Loading...
ORD 2002-44EFFECTIVE MATE: EXPIRATION DATE: TOWN OF TROPHY CLUB ORDINANCE NO. 2002 - 44 AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS. GRANTING TO MARCUS CABLE ASSOCIATES, L.L.C. d/b/a CHARTER COMMUNICATIONS, IT'S SUCCESSORS OR ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OWN, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM WITHIN THE TOWN OF TROPHY CLUB, TEXAS; PROVIDING FOR INCORPORATION; PROVIDING DEFINITIONS; PROVIDING A GRANT OF RIGHTS; PROVIDING A FRANCHISE REQUIREMENTS; PROVIDING FOR LIMITS ON A GRANTEE'S RECOURSE; PROVIDING FOR ACCESS TO THE SYSTEM; PROVIDING FOR FEES AND REPORTING; PROVIDING FOR APPLICATIONS AND REQUIRED SERVICES; PROVIDING FOR FORM; CONTENTS; PROCEDURES; FEES; PAYMENT UPON GRANT; PROVIDING FOR REQUIRED SERVICES AND FACILITIES TO BE INCLUDED IN FRANCHISE AGREEMENT; PROVIDING FOR INDEMNITY AND INSURANCE; PROVIDING FOR FEES AND PAYMENTS; PROVIDING FOR A FRANCHISE TERM; PROVIDING FOR TRANSFERS, OWNERSHIP AND CONTROL; PROVIDING FOR DEFAULTS; PROVIDING FOR REMEDIES; PROVIDING FOR PROVISION OF INFORMATION; AND PROVIDING A GENERAL CLAUSE, PROVIDING FOR PUBLICATION; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. THIS FRANCHISE AGREEMENT is made and entered into as of the 2nd day of December, 2002 by and between the Town of Trophy Club, Texas, a municipal corporation duly organized under the laws of the State of Texas (hereinafter the "Town" or alternatively, "Grantor") and Marcus Cable Associates, L.L.C. d/b/a Charter Communications, (hereinafter "Company" or alternatively, "Grantee"), a Texas corporation with its principal place of business at 4800 Blue Mound Rd., Fort Worth, Tarrant County, Texas. WHEREAS, Company wishes to provide cable service in the Town and has requested a renewal franchise agreement in order to do same, and WHEREAS, the Town is authorized to grant one or more non-exclusive franchises for the provision of cable service within the Town by means of a cable system, and WHEREAS, the Town has reviewed Company's request and has considered the terms and conditions of the Town's current cable franchise dated December, 2002, and WHEREAS, the Town has determined that the granting of a nonexclusive franchise on the terms set forth herein is in the public interest and in the interest of the Town and its residents and will assist in meeting the cable related needs and interests of the community, and WHEREAS, this Ordinance is adopted by the Town of Trophy Club and the franchise granted hereby is subject to the terms and performance conditions provided herein: -I- NOW, THE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, THAT: ARTICLE I GRANT OR FRANCHISE AND GENERAL PROVISIONS Section 1 INCORPORATION OF PRI NIISES The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all purposes. Section 2 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense shall include the future, words in the plural number shall include the singular number, and words in the singular number shall include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 2.1. Additional service shall mean cable television communications service provided by the Grantee or others over its Cable System for which a special charge is made based on program or service content, time or spectrum space usage, and shall include all Cable Services offered by the Grantee that are not included within the "Basic Service Tier". 2.2. Basic Service Tier shall mean those subscriber services provided by the Grantee, pursuant to the Cable Television Consumer Protection and Competition Act of 1992, including the delivery of broadcast signals electing carriage and any public, educational and governmental access covered by the regular monthly charge paid by all Subscribers, excluding optional services for which a separate charge is made. 2.3 Cable Act shall mean Title VI of the Communications Act of 1934, as amended. -2- 2.4 Cable Service shall mean (1) the one-way transmission to Subscribers of (a) video programming, or (b) other programming service, and (2) Subscriber interaction, if any, which is required for the selection or use of video programming or other programming service. 2.5 Cable System shall mean the Grantee's facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided for sale to or use by the inhabitants or businesses of the Town. 2.5 Cable mile shall mean a linear mile of strand -bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal. 2.7 Class N channel shall mean a signaling path provided by a Cable System to transmit signals of any type from a subscriber terminal to another point in the Cable System. 2.8 Converter means an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber, and by use of an appropriate channel selector also permits a Subscriber to receive all signals delivered at designated converter dial locations. 2.7 FCC shall mean the Federal Communications Commission and any legally appointed or elected successor. 2.8 Franchise shall mean the non-exclusive rights granted pursuant to this Ordinance to construct and operate a Cable System along the public ways within all or a specified area in the Town. Any such authorizations, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the Town as required by other ordinances and laws of this Town. 2.9 Grantee shall mean any "Person" receiving a Franchise pursuant to this Ordinance and its lawful successor, transferee or assignee. -3- 2.10 Gross Revenues shall mean all revenues received by the Grantee, from the operation of the Cable System to provide Cable Services in the Service Area, provided, however, that such phase shall not include: (1) any taxes, fees, or assessments of general applicability collected by the Grantee from Subscriber for pass- through to a government agency, including the FCC User Fee; (2) unrecovered bad debt; and, (3) any PEG or I - Net amounts recovered from Subscribers. "Gross Revenues" shall include Grantee paying franchise fees on cable modem type services if the FCC's March, 2002 cable modem ruling is reversed by the FCC, is overturned by Congress, or is subject to a final, non -appealable decision by a federal court with jurisdiction over the FCC. 2.11 Installation shall mean the connection of the Cable System from feeder cable to the subscribers' terminals. 2.12 Person shall mean an individual, partnership, association, organization, corporation or any lawful successor, transferee or assignee of said individual, partnership, association, organization or corporation. 2.13 Reasonable notice shall be written notice addressed to the Grantee at its principal office or such other office as the Grantee has designated to the Town as the address to which notice should be transmitted to it, which notice shall be certified and postmarked not less than three (3) days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said three (3) days, Saturdays, Sundays and holidays recognized by the Town shall be excluded. 2.14 Sale shall include any sale, exchange, barter or offer for sale. 2.15 School shall mean any school at any educational level operated within the Town by any public, private or parochial school system, but limited to, elementary, junior high school, and high school (K-12). 2.16 Service area shall mean the geographic area within Franchise territory having twenty-five (25) dwellings per cable mile. 2.17 State shall mean the State of Texas. -4- 2.18 Street shall include each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public ways and extensions and additions thereto, together with such other public property and areas that the Town shall permit to be included within the definition of "Street" from time to time. 2.19 Subscriber shall mean any person lawfully receiving Cable Service from the Grantee. 2.20 Town shall mean the Town of Trophy Club, Texas, a municipal corporation of the State of Texas. 2.21 Town Council shall mean the Town Council for the Town of Trophy Club, Texas. 2.22 User means a party utilizing a cable system channel for purposes of production or transmission of material to Subscribers, as contrasted with receipt thereof in a subscriber capacity. Section 3 RIGHTS AND PRIVILEGES OF GRANTEE The Franchise granted by the Town pursuant to this Ordinance shall grant to the Grantee the right and privilege to erect, construct, operate and maintain in, upon, along, across, above, over and under the Streets, now in existence and as may be created or established during its terms; any poles, wires, cable, underground conduits, manholes, and other conductors and fixtures necessary for the maintenance and operation of a Cable System. The Grantee shall conform with all lawful requirements of Ordinance No. 2001-13 as of its effective date. Section 4 FRANCHISE TERRITORY This nonexclusive Franchise relates to the Town limits as presently defined and to any area henceforth added thereto during the term of this Franchise. -5- Section 5 TERM A. The non-exclusive Franchise and the rights, privileges and authority granted herein shall continue in force and effect for a term of seven (7)�_yearsrnm the Effective Date. B. This Franchise shall be extended for an additional three (3) years upon a finding by the Town Council at the end of the fourth (4`) year of the Franchise that the Grantee is and has maintained itself in substantial material compliance with: 1. The Customer Service Requirement in Article If, Section 3 ; I The Franchise Fee requirements in Article II, Sections 7 and 8(A); 3. Records, reports, and maps as required in Article U, Section 10; and 4. The Cable System meeting all applicable technical and performance standards of the FCC. Section 6 FRANCHISE REQUIREMENTS FOR OTHER FRANCHISE HOLDERS A. In the event that Town grants one (1) or more franchise(s) or similar authorization, for the construction, operation and maintenance of any communication facility which shall offer services substantially equivalent to services offered by the Cable System, it shall not make the grant on more favorable or Iess burdensome terms. If said other franchise(s) contain provisions imposing lesser obligations on the company(s) thereof than are imposed by the provisions of this Franchise, Grantee may petition the Town for a modification of this Franchise. The Grantee shall be entitled, with respect to said lesser obligations to such modification(s) of this Franchise as may be determined to be necessary to insure fair and equal treatment by this Franchise and said other agreements. B. In the event that a nonfranchised multichannel video programming distributor provides service M to the residents of the Town, the Grantee shall have a right to request Franchise amendments that relieve the Grantee of regulatory burdens that create a competitive disadvantage to the Grantee. C. The Town shall not unreasonably withhold granting the Grantee's petition and so amending the Franchise. Section 7 FRANCHISE RENEWAL This Franchise may be renewed by the Town upon application of the Grantee pursuant to Section 626 of the Cable Act. Section 8 POLICE POWERS In accepting this Franchise, the Grantee acknowledges that its rights hereunder are subject to the police power of the Town to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the Town pursuant to such police power. Subject to the Town's Iawful police powers, the Town may not, by ordinances or otherwise, alter any of the Grantee's material rights, benefits, obligations or duties as specified in this Franchise. Section 9 CABLE SYSTEM FRANCIUSE REQUIRED, EXCLUSIVE_ CONTRACTS PROIIIBITED. A. No Cable System shall be allowed to occupy or use the Streets or public right of way of the Town or be allowed to operate without a Franchise to provide Cable Service. B. No Grantee or other multichannel video programming distributor shall enter into or enforce an exclusive contract for the provision of Cable Service or other multichannel video programming with any Person, or demand the exclusive right to serve a Person or location, as a condition of extending service to that or any other Person or location. -7- C. No Grantee or other multichannel video programming distributor shall engage in acts that have the purpose or effect of limiting competition for the provision of Cable Service or services similar to Cable Service in the Town, except for such actions as are expressly authorized by law. Section 10 USE OF COMPANY FACILITIES The Town shall have the right, during the life of this Franchise, to install and maintain free of charge upon the poles owned by the Grantee any wire and pole fixtures that do not unreasonably interfere with the operations of the Grantee's Cable System. Section 11 NOTICES Any notices to be sent to the parties shall be sent by certified mail to the following addresses unless either parry notifies the other in writing of another address: To the Town: Town of Trophy Club Attn: Mayor 100 Municipal Drive Trophy Club, Texas 76262 To the Grantee: Charter Communications Attn: Vice President of Operations 4800 BIue Mound Road Fort Worth, Texas 76106 With Copy To: Charter Communications Vice President — Government Relations 12405 Powerscourt Drive St. Louis, Missouri 63131 M Section 12 INDEMNIFICATION AND INSURANCE A. Disclaimer of Liability The Town shall not at any time be liable for injury or damage occurring to any person or property arising out of the Grantee's negligence or alledged negligence of Grantee in the construction, maintenance, repair, use, operation, condition or dismantling of Grantee's Cable System or Grantee's provision of Cable Service. B. Indemnification Grantee shall, at its sole cost and expense indemnify and hold harmless the Town and all associated, affiliated, allied and subsidiary entities of the Town, now existingor hereaftercreated, and their respective officers, boards, commissions, agents, and employees (herinafter referred to as "Indemnitees"), from and against: 1. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys), whether legal or equitable, which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any act or omission of Grantee, its personnel, employees, agents, contractors, subcontractors or affiliates, which may arise out of or be in any way connected with the construction, installation, operation, maintenance or condition of the Cable System or other Grantee property (including those arising from any matter contained in or resulting from the transmission of signals over the Cable System and including any claim or Iien arising out of work, labor, materials or supplies provided or supplied to Grantee, its contractors or subcontractors) and the provision of Cable Service or other services. 2. Any claim asserted or liability imposed upon the Indemnitees for personnel injury or property damage to any person arising out of the Grantee's installation, operation, or maintenance of the Cable System. C. Defense of Indemnitees In the event any action or proceeding shall be brought against the Indemnitees by reason of any manner M for which the Indemnitees are indemnified hereunder, the Grantee shall upon notice from any of the Indemnitees, at Grantee's sole cost and expense, resist and defend the same with legal counsel approved by the Town; provided, however, that Grantee shall not admit liability in any matter on behalf of the Indemnitees without the written consent of the Town. D. Notice, Cooperation and Expenses The Town shall provide Grantee with prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the Town from cooperating with the Grantee and participating in the defense of any litigation by the Town's own counsel. E. Insurance The Grantee shall maintain throughout the term of the Franchise insurance in amounts at least as follows: Workers' Compensation,- Workers' Compensation and employer's liability insurance within statutory limits, and which meets all requirements of any applicable State workers' compensation or comparable laws, as well as any applicable Federal insurance of a similar nature. 2. Commercial General Liabilitv. Comprehensive general liability insurance with minimum limits of Five Million Dollars ($5,000,000) as the combined single limit for each occurrence of bodily injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for: products and completed operations liability; independent contractor's liability; railroad protection coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. -10- 3. Cam rehensive Public Liabili . Comprehensive public liability insurance in the amount not less than One Million Dollars ($1,000,000) per occurrence with a Five Million Dollar ($5,000,000) umbrella policy. The insurance shall indemnify, defend, and hold harmless the Grantee and the Town and the respective officers, boards, comrnissions, agents, and employees of each from any and all claims made by any person on account of injury to, or death of a person or persons caused by the operations of the Grantee under this Franchise, alleged to have been so caused or alleged to have occurred. 4. Comprehensive Automobile Liability. Comprehensive automobile liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence with a Five Million Dollar ($5,000,000) umbrella policy. The insurance shall indemnify, defend and hold harmless the Grantee and the Town and the respective officers, boards, commissions, employees and agents of each from any and all claims made by any person on account of collision, personal injury or property damage caused by use of any owned, hired, or non - owned motor vehicles used in conjunction with the rights herin granted or alleged to have been so caused or alleged to have occurred. F. Additional insured The Town shall be added as an additional insured to the above Commercial General Liability, Comprehensive Public Liability, Auto Liability and Umbrella Liability insurance coverage. The Grantee shall furnish the Town with current certificates of insurance evidencing such coverage. All insurance policies (other than workers' Compensation and employer's liability insurance) shall be written on an occurrence basis not on a claims made basis. -11- G. Deductible The Grantee shall indemnify and save harmelsss the Town from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder. Grantee's insurance policies may have deductibles but no retainages. H. Cancellation or Change The insurance policies called for herein shall require thirty (30) days written notice to the Town and Grantee of any cancellation or change in the amount of coverage. The Grantee shall in the event of any cancellation notice, obtain, maintain, pay all premiums for, and file with the Town written evidence of payment of premiums for an appropriate replacement insurance policies so canceled within thirty (30) days following receipt by Town or Grantee of notice of cancellation. I. Drop Down Coverage The coverage amounts set forth may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual obligations or not be collectible for any of its coverages for any reason during the Term, or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy. J. Qualified Carriers All insurance shall be effected under valid and enforceable policies insured by insurance carriers licensed to do business in the State of Texas or by surplus line carriers on the State Insurance Commissioner's approved list of companies qualified to do business in the State. All insurance and surplus line carriers shall be rated A or better by A.M. Best Company. -12- K. Insurance Primary Grantee's insurance coverage shall be primary insurance with respect to the Town, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions (collectively "them."). Any insurance or self-insurance maintained by any of them shall be in excess of Company's insurance and shall not contribute to it (where "insurance or self-insurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them). Section 13 PERFORMANCE GUARANTEES AND REMEDIES A. Security Fund 1. Within thirty (30) days after the effective day of the Franchise, the Grantee shall file and maintain with the Town Manager an irrevocable letter of credit with a surety acceptable to the Town in the amount of fifteen thousand dollars ($15,000.00). The letter of credit will be used to insure the Grantee's compliance with the terms and conditions of this Franchise. 2. The Grantee shall agree to structure the letter of credit in a manner so that if the Town draws upon the letter of credit and reduces the amount of available credit below ten thousand dollars ($10,000.00), the Grantee shall replenish the letter of credit to fifteen thousand dollars ($15,000.00) within five (5) business days. 3. The letter of credit shall be retained by the Town and returned to the Grantee at the expiration of the Franchise if there is no outstanding default, unpaid franchise fees, taxes or debts due the Town on the part of the Grantee or Grantee's creditors. -13- B. Performance Bond 1. Prior to any Cable System construction, upgrade or other such work, the Grantee shall establish a performance bond to ensure the Grantee's faithful performance of the construction, upgrade or other work. The amount of such performance bond shall be equal to three percent (3%) of the total cost of the work. 2. In the event the Grantee fails to complete the Cable System construction, upgrade, or other work in a safe and competent manner, after written notice and an opportunity to cure, there shall be recoverable from the principal any damage or loss suffered by the Town as a result of cost of removal or abandonment of any property of the Grantee, or the cost of completing or repairing the Cable System construction, upgrade, or other work, plus a reasonable allowance for Attorney's fees, up to the full amount of the bond. 3. Upon completion of the System construction, upgrade or other such work and payment of all construction obligations of the Cable System to the satisfaction of the Town Council, the Town Council shall eliminate the bond after a time appropriate to determine whether the work performed was satisfactory. Section 14 RIGHTS OF INDNIDUALS A. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal, State, local laws and regulations as well as all executive and administrative orders relating to nondiscrimination, which are hereby incorporated and made part of this Ordinance by reference. B. Grantee shall strictly adhere to the equal employment opportunity requirements of the FCC, State and local regulations, as amended from time to time. -14- C. The Grantee, or any of its agents or employees, shall not, without the specific written authorization of the Subscriber involved, sell, or otherwise make available to any party any lists which identifies the viewing habits of individual Subscribers. D. The Cable System of the Grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility to all citizens. E. Grantee shall establish rates that are nondiscriminatory within the same general class of subscribers which must be applied fairly and uniformly to all subscribers in the Service Area for all services. Nothing contained herein shall prohibit the Grantee from. offering (i) discounts to commercial and multiple family dwelling subscribers billed on a bulk basis; (ii) promotional discounts; or (iii) reduced installation rates for subscribers who have multiple services. Section 15 PUBLIC NOTICE Minimum public notice of any public meeting relating to this Franchise shall be in accordance with appropriate State law. The public notice shall also be posted at the Town Hall, and by character generated announcement on the Government Access channel, once the channel is activated and administered by the Town. Section 16 SEVERABILITY If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Ordinance. -15- ARTICLE H CABLE SYSTEM EXTENSION, OPERATION, STANDARDS AND PROCEDURES Section I SERVICE AVAILABILITY The Grantee shall provide Cable Service throughout the entire Franchise area pursuant to the provisions of this Franchise and shall keep a record of all service extended by the Grantee. This record shall be available for inspection by the Town at the local office of the Grantee during Normal Business Hours. 1.1 Line Extensions 1. In all areas of the Franchise territory, the Grantee shall be required to extend its Cable System pursuant to the following requirements: a. Grantee must extend and make Cable Service available to every dwelling unit in all unserved, developing areas having at least twenty-five (25) dwelling units per cable mile as measured from the existing Cable System, and shall extend its Cable System simultaneously with the installation of utility lines. b. Grantee must extend and make Cable Service available to any isolated resident requesting connection at the standard connection charge, if the connection to the isolated resident would require no more than a standard one hundred and fifty (150) foot aerial drop line. 2. In areas not meeting the requirement for mandatory extension of service, Grantee shall provide, upon the written request of a potential Subscriber desiring service, an estimate of the costs required to extend Cable Service to said Subscriber. Grantee may require advance payment or assurance of payment satisfactory to Grantee. The amount paid by Subscribers for early extension shall be nonrefundable, and in the event the area subsequently reaches the density required for mandatory extension, such payments shall be treated as consideration for early extension. 3. In cases of new construction or property development where utilities are to be placed -16- underground, the developer or property owner shall give Grantee at least thirty (30) days prior notice of such construction or development, and of the particular date on which open trenching will be available for Grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching. 4. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or vaults, and laterals within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five-day period, the cost of new trenching is to be borne by Grantee. 1.2. Special Agreements Nothing herein shall be construed to prevent Grantee from serving areas not covered under this Section upon agreement with developers, property owners, or residents. Section 2 CONSTRUCTION AND TECHNICAL STANDARDS A. Construction Standard 1. Compliance with Safety Codes All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all State and local codes where applicable. 2. Compliance with Electrical Codes All installation of electronic equipment and wires shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electric Safety Code as amended. -17- 3. Antennas and Towers Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in Electronics Industry Association's R.S.-22A Specifications. 4. Compliance with Aviation Requirements Antenna supporting structures (tower) 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 codes and regulations. 5. Construction Standards and Requirements All of the Grantee's plant and equipment, including but not limited to the antenna site, head -end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the municipality may deem proper to make, or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on municipal properties. 6. Work Performed By Others 1. The Grantee shall make available to the Town the names and addresses of any Person, other than the Grantee, which performs services pursuant to this Ordinance; provided, however, that all provisions of this Ordinance remain the responsibility of the Grantee. 2. All provisions of this Ordinance shall apply to any subcontractor or others performing any work or services pursuantto the provisions of this Ordinance on behalf of the Grantee. 7. Safety, Nuisance, Requirements The Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage. B. Network Technical Requirements The Cable System shall be operated so as to meet or exceed all technical standards of the FCC. C. Performance Monitoring 1. Test procedures used in verification of the performance criteria set forth herein, if not as set forth in paragraph 76.609, Subpart K of the FCC Rules and Regulations, shall be in accordance with good engineering practice and shall be fully described in an attachment to the annual certificate filed with the Town. Within thirty (30) days after the annual certificate is filed, Grantee shall make a written report and presentation to the Town Council. The Grantee shall use best efforts to submit materials and develop a presentation to the Town Council that is understandable to any lay person. 2. To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the Town shall accept such combined reports, provided that all standards and measurements herein or hereafter established by the Town are satisfied. 3. The Town may require additional tests, full or partial repeat tests, different test procedures, or test involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant non-compliance, and such tests will be limited to the particular matter in controversy. The Town will endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee. D. Street Occupancy Grantee shall utilize existing poles, conduits and other facilities whenever possible, and -19- shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately -owned property until the written approval of the Town is obtained, which approval shall not be unreasonably withheld. However, no location of any pole or wire holding structure of the Grantee shall be a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the Town reasonably determines that the public convenience would be enhanced thereby. The costs for such removal or modification shall be paid by Grantee if all other users of the Streets are also required to pay such costs for their facilities. 2. The facilities of the Grantee shall be installed underground in those areas of the Town where existing telephone and electric services are both underground at the time of system construction. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the Grantee may install its facilities aerially with the understanding that at such time as the existing aerial facilities are required to be placed underground by the Town, the Grantee shall likewise place its facilities underground. 3. A Grantee shallnotify the Town at least ten (10) days prior to the intention of the Grantee to commence any construction in any streets. The Town shall cooperate with the Grantee in granting any permits required, providing such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the Town. 4. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The Grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times -20- and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way the Grantee shall be placed in such a manner as not to interfere with the usual travel on such public way. 5. Grantee shall, at its own expense and in a manner approved by the Town, restore to the Town reasonable standards any damage or disturbance caused to the Streets as a result of its operations or construction on its behalf. 5. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Chief of the Fire Department or Chief of the Police Department to remove any of the Grantee's facilities, no charge shall be made by the Grantee against the Town for restoration and repair, unless such acts amount to gross negligence by the Town. 7. Grantee or its designee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the Town. Trimming of trees on private property shall require written consent of the property owner. &. The Grantee, at its expense, shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the Town the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the Town shall undertake to cause all such properties to be located beneath the surface of the ground. The Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of Grantee in place. Nothing hereunder shall be deemed a taking of the property of Grantee and Grantee shall be entitled to no surcharge by reason of -21- anything hereunder. In the event that any funds are available from third parties to offset the cost of moving said lines, Grantee shall have the opportunity to access said funds for the moving of said lines. 9. Upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this Ordinance to be done in any Street, within the time prescribed and to the reasonable satisfaction of the Town, the Town may, at its option, cause such work to be done and the Grantee shall pay to the Town the cost thereof in the itemized amounts reported by the Town to Grantee within sixty (60) days after receipt of such itemized report. 10. The Grantee shall make no paving cuts or curb cuts unless absolutely necessary, but only after written permission has been given by the Town. 11. The Grantee shall install in conduit all cable passing under any major roadway. E. Emergency Alert System The Grantee shall provide an Emergency Alert System (`BAS") in a manner consistent with the rules and regulations as established by the FCC. Such use by the Town shall be in a manner consistent with any State and/or regional emergency alert system plans adopted in response to the FCC's EAS rules. The Town and Grantee will agree on the procedures for the Town to follow to expeditiously use the EAS in the event of an emergency.The Town shall permit only appropriately trained and authorized persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that results in inappropriate use thereof, or any loss or damage to- the Cable System. Except to the extent expressly prohibited by law, the Town shall hold the Grantee, its employees, officers and assigns harmless from any claims arising out of the EAS, including, but not limited to, reasonable attorneys' fees and costs. -22- Section 3 CUSTOMER SERVICE STANDARDS AND CONSUMER PROTECTION A. Customer Service Obligations The Grantee shall comply with the Customer Service Standards set forth in Sections 76.309, 76.1602, 76.1603 and 76.1619 of the FCC's Rules and Regulations, as such may be amended from time to time. The Grantee shall also meet other specific provisions of customer service and consumer protection as set forth in this Section. B. Definitions "Complaints" shall mean a notice of dissatisfaction by a Subscriber or resident, made either through verbal or written communication to the Grantee or Town. Informational inquiries shall not be counted as compaints, unless the Subscriber or resident was unable to reach the Grantee to get the information, nor shall request for specific channels or programming be counted as a complaint. The Town shall use its best efforts to inform Subscribers and residents that cable problems should fust be addressed with the Grantee prior to filing a complaint with the Town. 2. "Normal Business Hours" shall have the same meaning as defined under 47 C.F.R Section 76.309 of the FCC Rules and Regulations. 3. "Normal Operating Conditions" shall have the same meaning as defined under 47 C.F.R. Section 76.309 of the FCC Rules and Regulations. 4. "Outages" shall mean the loss of all video or audio to five (5) or more subscribers along the same trunk or feeder line. 5. "Service Interruption" shall have the same meaning as defined under 47 C.F.R. Section 76.309 of the FCC Rules and Regulations. -23- C. Notification The Grantee shall furnish each Subscriber: a) at the time that Cable Service is installed; b) annually; and, c) at any time upon request, written information as required under Section 76.309 (c)(3)(i)(A) of the FCC Rules and Regulations. The Grantee shall also provide noticfication to Subscribers of: a. the name, address and phone number of the Town Manager or designated employee to address issues related to the service provided by the Grantee or complaints; b. applicable privacy requirements as set forth in the Franchise or provided by applicable law; c. the availability of programming lockout devices; and d. refund and credit procedures. 2. Grantee shall provide all Subscribers and the Town at least thirty (30) days prior notice of any rate increases, channel lineup or other substantive service changes if the changes are in the control of the Grantee. Such notice shall be in writing and by announcement on the Cable System. D. Telephone Service Standards 1. Grantee shall establish a publicly listed local toll-free telephone number available to Subscribers twenty-four (24) hours per day, seven (7) days per week. The number shall be listed in the local telephone directory. 2. Trained Company Representatives shall be available to respond to Subscriber telephone inquiries or complaints twenty-four (24) hours per day, seven (7) days per week. "Trained Company Representatives" shall mean employees of the Grantee who have the authority and capability as Customer Service Representatives to assist a Subscriber regarding billing inquiries, adjusting bills as allowed under the Grantee's operational policies, and schedule service and standard installation calls. -24- 3. Under Normal Operating Conditions, telephone answer time by a Trained Company Representative shall meet the standards as set forth under Section 76.309 (c)(1)(ii) and Section 76.309 (c)(1)(iv) of the FCC Rules and Regulations. These standards will be measured daily, averaged quarterly and reported by the Grantee to the Town on six (6) month basis. E. Facility The Grantee shall maintain a payment center facility within the Town, or adjacent community, where Subscribers during Normal Business Hours may pay their bills; address, at the site, any Subscriber inquiries; receive and return cable equipment; and, receive Subscriber information on the Company and its services. The payment center facility shall not, however, function as a customer service call center. "Adjacent community" shall mean the communities of Westlake, Roanoke, Marshall Creek and Southlake, Texas. F. Standard Installations "Standard Installations" are those that are located up to one hundred fifty (150) feet from the existing distribution plant. G. Installation/Service Calls The following shall apply to Subscribers (new or current) requesting installation or service. 1. Installation and service call "appointment window" hours shall be at a minimum during Normal Business Hours. The Grantee shall provide specific "appointment window" hours to the Town within thirty days after the effective date of this Franchise. Any changes in the "appointment window" hours by the Grantee must first be submitted to the Town in writing, and at least thirty (30) days prior to the effective change. 2. "Appointment window" alternatives for installation and service calls shall be (a) At a specific time; (b) four-hour time blocks during Normal Business Hours; or (c) periods outside Normal Business Hours for the express convience of the Subscriber that are mutually agreed upon between the Subscriber and the Grantee. -25- 3. The Grantee shall not cancel an appointment with a Subscriber after 5 PM on the business day prior to the scheduled appointment. 4. If the Grantee's technician is running Iate for an appointment with the Subscriber and will be unable to keep the appointment as scheduled, the Subscriber shall be promptly contacted and the appointment shall be rescheduled at a time convenient for the Subscriber. 5. In the event access to the Subscriber's premises is not made available to Grantee's technician when the technician arrives during the established "appointment window", the technician shall leave written notification (such as a door hanger) stating the time of arrival and a phone number the Subscriber can call to establish a new appointment. 6. If the Grantee's technician or service representative telephones the Subscriber during or prior to the appointment window and is advised that the Grantee's technician will not be given access to the Subscriber's premises , then the technician is not obligated to leave written notification referred to above, and the Grantee shall be deemed to have responded to the service or installation request. 7. Grantee's technician or service representative shall take adequate time on each service call to address or correct the problem(s) in question. 8. In the event the Subscriber experiences a missed appointment due to the fault of the Grantee, the Subscriber shall receive installation free of charge, if the appointment was for installation. If an installation was to have been provided free of charge, or for other appointments, the Subscriber shall receive a twenty dollar ($24.00) credit. 9. Under Normal Operating Conditions, all installation and service call criteria, as established under Section 76.309 (c)(2) of the FCC Rules and Regulations shall be met no less than 95% of the time, which shall be measured daily, averaged quarterly and reported by the Grantee to the Town on a six (6) month basis. -26- 10. During maintenance and installation work and outage repair, the Grantee shall use best efforts to notify residences prior to entering the private property. 11. All service personnel of the Grantee, its contractors and subcontractors, whose duties are with the general public will wear on their clothing a clearly visible identification card. bearing their name and photograph. In addition, 0 service vehicles of the Grantee shall be clearly identified to the public. H. Service Interruptions 1. Under Normal Operating Conditions, the Grantee shall begin working on Subscriber problems involving impairment or degradation of the signal quality (other than a Service Interruption) promptly and in no event later than the next business day after the problem becomes known to the Grantee. The Grantee shall meet this requirement 95% of the time, which shall be measured daily, averaged quarterly and reported by the Grantee to the Town on a six (6) month basis. 2. On request, the account of any Subscriber shall be credited a prorated share of the monthly charge of service if said Subscriber is without service or if service is substantially impaired for any reason for a period exceeding four (4) hours during any twenty-four (24) hour period, except where it can be documented that a Subscriber seeks a refund for an outage or impairment which that Subscriber caused, or in the case of a planned outage occurring between the hours of 12 AM to 6AM of which the Town received prior notification. 1. Billing 1. Billing statements must be clear, concise and understandable, must itemize each category of service and equipment provided to the Subscriber and must state clearly the change thereof. It must comport with applicable law. 2. Each bill shall prominently display the Grantee's local and/or toll-free telephone number available for use by Subscribers. 3. The Grantee's billing statement must show a specific due date. -27- (30) days. 4. Grantee shall respond to all written billing inquiries from Subscribers within thirty 5. Grantee shall provide all individual residential Subscribers with the option of paying for Cable Services by cash, check, bank draft, or credit card. Such payment options, however, shall be provided under the Grantee's operational policies. Refunds And Credits 1. Refund checks to Subscribers shall be issued no later than (a) the Subscriber's next billing cycle following resolution of the refund request; or (b) the date of return of all equipment to Grantee, if service has been terminated. 2. Credits for service shall be issued no later than the Subscriber's next billing cycle after the determination that the credit is warranted. K. Late Payment For Cable Service 1. Any balance not received from a Subscriber within fifteen (15) days after the due date may be assessed a reasonable processing fee for late payment. 2. The Grantee's billing statement regarding late fees must comport with applicable State or federal law. L. Disconnection 1. A Subscriber may terminate service at anytime. 2. The Grantee shall disconnect or downgrade any Subscriber who so requests by giving at least one (1) day notice and reasonably cooperating with the Grantee regarding the removal of the Grantee's equipment from the Subscriber's location. No charge may be imposed for any voluntary disconnection, and downgrade charges must comply with the requirements of federal Iaw. -28- 3. If the Subscriber fails to pay a monthly Subscriber bill or other fee or charge, a Grantee may disconnect the Subscriber's service outlet; however, such disconnection shall not be effective until after thirty (30) days from the due date. If the Subscriber pays all the amounts due, including late charges, before the date scheduled for disconnection, the Grantee shall not disconnect service. After disconnection, upon payment by the Subscriber in full of all fees or charges due, including the payment of the reconnection charge, if any, and any reasonable security deposit, the Grantee shall promptly reinstate service on request. 4. The Grantee may immediately disconnect a Subscriber if the Subscriber is damaging or destroying the Grantee's Cable System or equipment. After disconnection, the Grantee shall restore Cable Service after the Subscriber provides adequate assurances that it has ceased the practices that led to the disconnection, and paid all proper fees and charges, including any reconnection fees and amounts owed the Grantee for damages to its Cable System or equipment and any reasonable security deposit. 5. The Grantee may also disconnect a Subscriber that causes signal leakage in excess of federal limits. It may do so without notice, provided that the Grantee shall immediately notify the Subscriber of the problem, and, once the problem is corrected, reconnect the Subscriber. M. Enforcement Provisions 1. The Town may assess the following liquidated damages against the Grantee for violation of customer service standards and reports under subsections [(D)(3), (G)(9), and (H)(1)] of this Section, as measured and reported by the Grantee in a six month period. All reports will be submitted by the Grantee by the twentieth (20'') of the month following the end of the six month period. 2. The Grantee will be deemed in compliance if. (a) each criterion has been met or exceeded as averaged during the six month period; or, (b) if each criterion has been met or exceeded during four (4) consecutive months within the six month period. _29_ 3. Should the Grantee fail to meet compliance mentioned above, The Town shall immediately notify the Grantee in writing and specify the basis for the finding. A thirty (30) day cure period shall be provided to the Grantee. If the Grantee continues to fail to meet these established criteria within the thirty (30) day period, the Town may proceed with enforcement provisions. a. First non-compliance with a given standard — $.25 per Subscriber. b. Second non-compliance with a given standard in either one or any two in any two, consecutive six month periods — $1.00 per Subscriber. c. Third or subsequent non-compliance with a given standard in either one or within three or more consecutive six month periods - $2.00 per Subscriber. violation. 4. The Town may not collect both liquidated damages and actual damages for the same Section 4 RATES To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to authorize the Town to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by Grantee, the Town shall have the right to exercise rate regulation to the full extent authorized by Iaw, or to refrain from exercising such regulation for any period of time, at the sole discretion of the Town. If and when exercising rate regulation, the Town shall abide by the terms and conditions set forth by the FCC. Section 5 CONTINUITY OF SERVICE A. It shall be the right of all Subscribers to continue receiving Cable Service insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the Cable System, or the Town gives notice of intent to terminate or fails to renew this -30- Franchise, the Grantee shall act so as to ensure that all Subscribers receive continuous, uninterrupted service unless circumstances are beyond the control of the Grantee, unforeseen circumstances, or acts of God. B. In the event of a change of Grantee, or in the event a new operator acquires the Cable System, the Grantee shall cooperate with the Town, new Grantee or operator in maintaining continuity of service to all Subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the Cable System. C. In the event Grantee fails to operate the Cable System for seven (7) consecutive days without prior approval of the Town or without just cause, the Town may, at its option, operate the Cable System or designate an operator until such time as Grantee restores service under conditions acceptable to the Town or a permanent operator is selected. If the Town is required to fulfill this obligation for the Grantee, the Grantee shall reimburse the Town for all reasonable costs or damages in excess of revenues from the Cable System received by the Town that are the result of the Grantee's failure to perform. Section 6 GRANTEE RULES AND REGULATIONS The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its obligations under this Franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable federal and State laws, rules and regulations. Section 7 FRANCEISE FEE Grantee shall pay to the Town an annual fee in an amount equal to three percent (3%) of the Gross Revenues. Such payment shall be in addition to any other taxes or permit fees owed to the Town by the Grantee that are not included as franchise fee under federal law. The Town may increase the franchise fee, during the -31- term of this Franchise, to any amount up to the maximum five percent (5%) as allowed by applicable law. The Town shall provide a ninety (90) day written notice to the Grantee before any franchise fee increase is implemented. Section S PAYMENT TO THE TOWN A. Method of Computation The fee due the Town under the provisions of Section 7 above shall be computed and paid quarterly forty-five (45) days after each quarter, based on the Grantee's fiscal year. Any adjustments of franchise fees to the Town based upon the Grantee's review of Gross Revenue shall be paid not later than ninety (90) days after the end of the Grantee's fiscal year to the office of the Treasurer during its regular business hours. The payment period shall commence as of the effective date of the Franchise. In the event of a dispute, the Town, if it so requests, shall be furnished a statement of said payment, by a Certified Public Accountant, reflecting the Gross Revenues and the above charges, deductions and computations for the period covered by the payment. B. Acceptance by the Town No acceptance of any payment by the Town shall be construed as a release or as an accord and satisfaction of any claim the Town may have for further or additional sums payable as a franchise fee under this Ordinance or for the performance of any other obligation of the Grantee. The period of limitation, however, for recovery of any franchise fees payable hereunder shall be three (3) years from the date on which payment by the Grantee is due. C. Failure to Make Required Payment In the event that any Franchise payment or recomputed payment is not made on or before the dates specified herein, Grantee shall pay an interest charge , computed from such due date, at the annual rate of one percent (1%) over the prime interest rate. -32- D. Audit The Town shall have the authority to fully execute an audit to verify the above provisions in Sections 7 and S of Article II. Section 9 TRANSFER OF OWNERSHIP OR CONTROL A. The Franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said Franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the Town, and then only under such conditions as the Town may establish. Such consent as required by the Town shall, however, not be unreasonably withheld or delayed, nor may there be a change in control of Grantee without the prior consent of the Town, where "change of control" means any change in actual working control (by whatever manner exercised) or in effective control of Grantee, such as described in 47 C.F.R. Section 76.501. B. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of the Franchise, the Town may inquire into the legal, technical, and financial qualifications of the prospective party, and the Grantee shall assist the Town in any such inquiry. C. By its acceptance of this Franchise, the Grantee specifically grants and agrees that any such sale, assignment or transfer occurring without prior approval of the Town Council shall constitute a violation of this Franchise by the Grantee. D. The foregoing requirements shall not apply to any sale, assignment or transfer to any Person which is owned or controlled by the Grantee, or any Person which owns or controls the Grantee. Grantee shall notify the Town thirty (30) days prior to any sale, assignment or transfer. -33- Section 10 RECORDS, REPORTS AND MAPS A. Reports Required The Grantee shall file with the Town: 1. The Grantee's schedule of charges, contract or application forms for regular subscriber service, policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the Grantee's policy in connection with its Subscribers shall be filed with the Town upon written request. 2. All petitions, applications and communications of all types submitted by Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction over any matter affecting operation of Grantee's system shall be submitted to the Town upon written request. 3. Copies of any FCC Technical Standards Test that are fled with the FCC. S. Records Required The Grantee shall at all times maintain: 1. A record of all complaints received and interruptions or degradation of service experienced shall be maintained for one (1) year. 2. A full and complete set of plans, records and "as -built" maps showing the exact location of all Cable System equipment installed or in use in the Town, exclusive of Subscriber service drops. C. Filing When not otherwise prescribed herein, all matters required to be filed with the Town shall be filed with the Town Manager. -34- D. Inspection of Property and Records At all reasonable times, Grantee shall permit examination, by any duly authorized representative of the Town, of all Franchise property, together with any appurtenant property of Grantee situated within or without the Town. Grantee shall also permit any duly authorized representative of the Town to examine any and all maps and other records relevant to Grantee's compliance with the Franchise. Section 11 REMOVAL OF CABLE SYSTEM At the expiration of the term for which this Franchise is granted, or upon its termination as provided herein, Grantee shall forthwith, upon notice by Town, remove at its own expense the Cable System from. all Streets and public property within the Town. Section 12 PEG CHANNELS AND COMMUNITY PROGRAMMING A. Public, Educational and Governmental Access Channels 1. The Grantee shall provide on the Cable System on the Basic Service Tier the following channels for Public, Education and Government ("PEG") Access. a. One (1) channel for Public Access, which may be used by the general public, which may be administered by the Town or by an institution as designated by the Town. b. Two (2) channels for Educational Access, which may be administered for use by the Northwest Independent School District in a manner which conforms to the technical ability of the Cable System. c. One (1) channel for Government Access, which shall be administered by the Town in which non-commercial government programming shall be provided by the Town, its designee, or other government units of the State. -35- 2. The Grantee may be permitted to utilize unused access channel capacity under applicable laws B. PEG Access Assistance 1. The Grantee shall provide to the Town within one hundred and twenty (120) days after the. effective date of the Franchise, a character generator to assist the Town in providing character generated messages on its Government Access Channel. The Grantee shall provide adequate training to Town staff, or its designee, on the use of said equipment. 2. The Grantee shall provide to the Town a series of grants which shall be used to assist the Town in the acquisition of video equipment or in the maintenance of production facilities. The grants and their timing shall be as follows: a. $2,000.00 upon acceptance by the Grantee of the Franchise. b. $2,000.00 on or before May 20, 2003 c. $1,000.00 on or before May 20, 2004 d. $1,000.00 on or before May 20"' for the Year 2005 and every year thereafter until the franchise term expires, including any extension of the Franchise under this Franchise Agreement, or is terminated by the Town. 3. The Grantee shall use best efforts to provide technical support and assistance should. the Town relocate its Government access production equipment and facilities. Such support shall include the reactivation of Government Access production equipment onto the Cable System. All other costs associated with the construction, relocation, and installation of the Government Access equipment and/or facilities, shall be the responsibility of the Town. -36- C. The Grantee shall maintain, without charge, one outlet to each School, located in the area served by the Cable Sytem and will provide free Basic Service and Extended Basic Service, for so long as the Cable System remains in operation in the area. Any such School may install, at its expense, such additional outlets for classroom purposes as it desires, provided that such installation shall not interfere with the operation of Grantee's Cable System, and that the quality and manner of installation of such additional connections shall have been approved by the Grantee and shall comply with all Town, State and federal laws and regulations. D. In addition, the Grantee shall furnish to the Town, without charge, that is, without installation or monthly charges, one outlet to each Police and Fire Station, and up to a total of four (4) outlets to the Town Hall or to such other occupied Town buildings that facilitate Town government offices. Such obligations of free Cable Service shall not extend to areas of Town buildings and offices where the Grantee would normally enter into a commercial contract to provide such Cable Service. Such free outlets and Cable Service may only be used for lawful purposes. E. Grantee has established a voluntary initiative to provide Cable Internet Service to all Schools, public libraries and Town Hall at no cost to the Town or institutions within one (1) year after the effective date of this Franchise. Grantee intends to provide each School, public library and Town Hall with one (1) outlet of unlimited Internet access, including the necessary cable modem. The Town encourages and supports Grantee's efforts in this area. ARTICLE III ADMINISTRATION AND REGULATION Section 1 - PERFORMANCE EVALUATION SESSIONS A. The Town and Grantee may hold performance evaluation sessions as may be required by federal and State law or by the Town. All evaluation sessions shall be open to the public. -37- B. All evaluation sessions shall be announced in accordance with the notice requirements under appropriate State law. C. Topics which may be discussed at any scheduled session may include, but not be limited to: rates, franchise fees, customer service issues, new technologies, system performance, cable service, including progranuning offered, privacy provisions, line extension policies, judicial and FCC rulings and Grantee and Town rules. Section 2 FORFEITURE OR REVOCATION A. Grounds for Revocation The Town reserves the right to revoke the Franchise granted hereunder and rescind all rights and privileges associated with the Franchise in the following circumstances, each of which shall represent a default and breach under this ordinance and the Franchise grant: If the Grantee should default in the performance of any of its material obligations under this Ordinance or under such documents, contracts and other terms and provisions entered into by and between the Town and the Grantee. 2. If the Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverage's as required herein. 3. If the Grantee should frequently violate any orders or rulings of any regulatory body having jurisdiction over the Grantee relative to this Franchise unless such orders or rulings are being contested by the Grantee in a court of competent jurisdiction. A. If the Grantee fails to receive necessary FCC approval. 5. If the Grantee ceases to provide services for any reason within the control of the Grantee. The Grantee shall not be declared at fault or be subject to any sanction under any provision of this ordinance in any case in which performance of any such provision is prevented for reasons beyond the Grantee's control. -38- If the Grantee attempts to evade any of the provisions of this Ordinance or the Franchise agreement or practices any fraud or deceit upon the Town. B. Procedure Prior to Revocation The Town shall make written demand by certified mail to the Grantee to comply with any such requirement, limitation, term, condition, rule or regulation and shall provide the Grantee with minimum of 30 days to cure the Town's complaint. If the default, failure, refusal or neglect of the Grantee continues for a period of thirty (30) days following such written demand, the Town may place its request for termination of the Franchise upon a regular Town Council meeting agenda. The Town shall cause to be served upon Grantee, a reasonable written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the Town Clerk in accordance with the Public Notice requirements in Article I, Section 15 of this Ordinance. 2. The Town Council shall hear any persons interested therein, and shall determine, in its discretion, whether or not any default, failure, refusal or neglect by the Grantee was with just cause. 3. If such default, failure, refusal or neglect by the Grantee was with just cause, the Town Council shall direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable. 4. If the Town Council shall determine such default, failure, refusal or neglect by the Grantee was without just cause, then the Town Council may, by resolution, declare that the Franchise of Grantee shall be terminated. 5. Any finding and/or determination by the Town in accordance to this Subsection shall be subject to judicial review de novo. 99D2 C. Restoration of Property In removing its plant, structures and equipment, the Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as prevailed prior to the Grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires, or attachments. The Town shall inspect and approve the condition of the Streets and public places; and cables, wires, attachments and poles after removal. The liability, indemnity and insurance as provided herein shall continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this paragraph and this Ordinance. D. Restoration by Town, Reimbursement of Costs In the event of a failure by the Grantee to complete any work required by Article H, Section 11 and/or Subsection C. above, or any other work required by Town law or ordinances within the time as may be established and to the reasonable satisfaction of the Town, the Town may cause such work to be done and the Grantee shall reimburse the Town the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs. The Town shall be permitted to seek legal and equitable relief to enforce the provisions of this Section. E. Extended Operation Upon the revocation of a Franchise, the Town may require the Grantee to continue to operate the Cable System for a period of time not to exceed three (3) months from the date of such revocation. The Grantee shall, as trustee for its successor in interest, continue to operate the Cable System under the terms and conditions of this Ordinance and the Franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. The Town shall be permitted to seek legal and equitable relief to enforce the provisions of this Section. -40- F. Rights Not Affected The termination and forfeiture of any Franchise shall in no way affect any of the rights of the Town or Grantee under the Franchise or any provision of law. Section 3 RECEIVERSHIP AND FORECLOSURE A. The Franchise herein granted shall at the option of the Town, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: 1. Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Ordinance and the Franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the Franchise; and 2. Such receivers or trustees shall, within said one hundred twenty (120) days, execute any agreement duly approved by the Court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise herein granted. B. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the Grantee,or any substantial part thereof, including or excluding this Franchise, the Town Council may serve notice of termination upon the Grantee and the successful bidder at such sale, in which event the Franchise herein granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: 1. The Town Council shall have approved the transfer of this Franchise, as and in the manner in this Ordinance provided and; -41- 2. Such successful bidder shall have covenanted and agreed with the Town to assume and be bound by all the terms and conditions of this Franchise. Section 4 COMPLIANCE WITH STATE AND FEDERAL LAWS Notwithstanding any other provisions of this Franchise to the contrary, the Grantee shall at all times comply with all laws and regulations of the State of Texas and the federal government or any administrative agencies thereof which relate to the conduct of Grantee's system business. This includes Grantee paying franchise fees on cable modem type services if the FCC's March, 2002 cable modem ruling is reversed by the FCC, is overturned by Congress, or subject to a final, non -appealable decision by a federal court with jurisdiction over the FCC. Section 5 INTEGRATION This Agreement sets forth the entire agreement between the parties respecting the subject matter hereof. All agreements, covenants, representations and warranties, express and implied, oral and written, of the parties with regard to the subject matter hereof are contained herein. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to another with respect to the matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and superseded hereby and thereby. This is an integrated Agreement. Section 6 PUBLICATION The Town Secretary of the Town of Trophy Club is hereby directed to publish the Caption, Penalty and Effective Date of this Ordinance as required by Section 52.011 of the Texas Local Government Code. -42- Section 7 ENGROSSMENT AND ENROLLMENT The Town. Secretary of the Town of Trophy Club is hereby directed to engross and enroll this Ordinance by copying the Caption, Penalty, and Effective Date in the minutes of the Town Council of the Town of Trophy Club and by filing this Ordinance in the ordinance records of the Town. Section S EFFECTIVE DATE This Ordinance shall become effective from and after its date of adoption and publication as provided by law, provided that within forty-five (45) days after the date of final passage of the Franchise, the Grantee shall file with the Town its unconditional acceptance of the Franchise PASSED AND APPROVED by the Town Council of the Town of Trophy Club, Texas, this the 2nd day of December, 2002. A_ . TOWN�OF TROPHY UB, TEXAS Attest: r Ti�% Town Clerk c. 'E This Franchise Agreement is hereby accepted by the Grantee on this ° � ' day of �r , 2002. MARCUS CABLE ASSOCIATES, L.L.C. d/b/a CHARTER COMMUNICATIONS By: M. Celeste Vossmeyer Vice President Title: __�Qovemrnent-Relafions -43-