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HomeMy WebLinkAbout1064 11-12-1991ORDINANCE NO. 1064 AN ORDINANCE AMENDING, RENEWING AND EXTENDING THE FRANCHISE OF STORER CABLE TV OF TEXAS, INC. (FORMERLY TARRANT CABLE COMMUNICATION, INC.) FOR THE CONTINUED OPERATION OF A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE CORPORATE LIMITS OF THE CITY OF EULESS, TEXAS; PROVIDING THE TERMS AND CONDI TIONS THEREOF; PROVIDING AN EFFECTIVE DATE; A TERMINATION DATE; AND PROVIDING A SEVERABILITY CLAUSE. WHEREAS, the Euless City Council did heretofore adopt Ordinance No. 566, establishing the authority for the grant of franchises for the construction, maintenance and operation of a cormmrnity antenna television system within the corporate limits of the City of Euless, Texas; and WHEREAS, pursuant to such Ordinance, the Euless City Council did thereafter adopt Ordinance No. 576 granting a franchise to Tarrant Cable Communication, Inc. the predecessor to Storer Cable TV of Texas, Inc. for the establishment and operation of a community antenna television system within the corporate limits of the City of Euless, Texas; and WHEREAS, the City Council of the City of Euless has determined that the services, facilities and equipment utilized by Storer Cable TV of Texas, Inc. in performance of its obligations under such franchise have been reasonably sufficient and that the financial, legal, and technical ability of Storer Cable TV of Texas, Inc. to continue to provide servic- es, facilities and equipment necessary to meet the current and future cable - related needs of the City are reasonably sufficient; and WHEREAS, Storer Cable TV of Texas, Inc., and the City of Euless desire to amend, renew and extend the franchise previously granted under Ordinance No. 576, upon the terms and conditions hereof. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULE.SS, TEXAS: DEFINITION OF TERMS. SECTION 1 Definition of Terms -1- 1.1 Terms For the purpose of this ordinance, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: a. "Affiliate" means an entity which awns or controls, is owned or controlled by, or is under common ownership with Grantee. b. "Basic Cable" is the tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals. c. "Cable Act" means the Cable Cmmmmications Policy Act of 1984 as amended. d. "Cable Service" means (i) the one -way transmission to subscribers of video programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such Video Programming or any other lawful communication service. e. "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other communications equipment that is designed to provide cable Service and other service to subscribers. f. "FCC means Federal Communications Commission, or successor governmental entity thereto. g. "Franchise" shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise which authorizes construction and operation of the Cable System for the purpose of offering Cable Service or other service to Subscribers. h. "Franchise Authority" means the city of Euless or the lawful successor, transferee, or assignee thereof. i. "Grantee" means Storer Cable TV of Texas, Inc., or the lawful successor, transferee, or assignee thereof. j. "Gross Revenues" mean all revenues received by Grantee directly or indirectly from or in connection with the operation of the Cable System within the Service area provided, however, that such phrase shall not include: (i) revenues received from any national advertising -2- carried on the Cable System; (ii) any taxes on Cable Service which are imposed directly or indirectly on any Subscriber thereof by any governmental unit or agency, and which are collected by the Grantee on behalf of such governmental unit or agency. k. "person" means an individual partnership, association, joint stock company, trust corporation, or governmental entity. 1. "Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right of way, including, but not limited to, public utility easements, dedicated utility strips, or rights-or -way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchise Authority in the Service Area which shall entitle the Franchise Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System. Public Way shall also mean any easement now or hereafter held by the Franchise Authority within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights- of-way as shall within their proper use and meaning entitle the Franchise Authority and the Grantee to the use thereof for the purposes of installing or transmitting Grantee's Cable Service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System. m. "Service Area" means the present municipal boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means. n. "Service Tier" other services, separate charge leans a category of Cable Service or provided by Grantee and for which a is made by Grantee. o. "Subscriber" means a person or user of the Cable System who lawfully receives Cable Services or other service therefrom with Grantee's express permission. p. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECITON 2 Grant of Easement -3- 2.1 Grant The City hereby grants to Grantee a nonexclusive Franchise which authorizes the Grantee to construct and operate a Cable System and offer Cable Service and other services in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System. 2.2 Term The Franchise granted pursuant to this Ordinance shall be for an initial term of ten (10) years from the effective date of the Franchise as set forth in Section 2.3, unless otherwise lawfully terminated in accordance with the terms of this Ordinance. 2.3 Acceptance: Effective Date Grantee shall accept the Franchise granted pursuant hereto by signing this ordinance and filing same with the City Clerk or other appropriate official or agency of the Franchising Authority within thirty (30) days after the passage and final adoption of this Ordinance. Subject to the acceptance by Grantee, the effective date of this Ordi- nance shall be the thirtieth (30) day after its passage and final adop- tion. 2.4 Favored Nations In the event the Franchise Authority enters into a franchise, permit, license, authorization, or other agreement of any kind with any other person or entity other than Grantee to enter into the Franchising Authority's streets and public ways for the purpose of constructing or operating a cable system or providing cable service to any part of the service area, the material provisions thereof shall be reasonably compa- rable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. SECPION 3 Standards of Service 3.1 General The Grantee may 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 to perform its obligations under this Agreement and to ensure uninterrupted service to each and all of its Subscribers, provided that no such rules, regula- tions, terms, or conditions shall be in conflict with the provisions of -4- the Franchise Ordinance, or with any law, regulations, ordinances, or orders of the City, the State of Texas, or the United States. 3.2 Conditions of Street OCCUpancV All transmission and distribution structures, poles, other lines, and equipment installed or erected by the Grantee pursuant to the terms hereof shall be located so as not to cause other than temporary inter- ference during installation or erection with the use of Public Ways and so as to cause only a minimum of interference with the rights and reason- able convenience of property owners who own property that adjoins any of said Public Ways. 3.3 Restoration of Public Ways If during the course of Grantee's construction, operation, or maintenance of the Cable System there occurs a disturbance of any Public Way by Grantee, it shall, at its expense, replace and restore such Public Way in a timely manner to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such distur- bance. 3.4 Relocation at Request of Franchising Authority Upon its receipt of reasonable advance notice, not to be less than five (5) business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of the Grantee when required by Fran- chising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, the Grantee shall in all cases have the right of abandonment of its property. If public funds are available to any company using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, funds shall also be made available to the Grantee. 3.5 Relocation at Request of Third The Grantee shall, on the request of any person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary wire changes. 3.6 Trimminq of Trees and Shrubbery The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Service Area so as to prevent branches from coming in contact with the Grantee's wires, cables, or other equipment. The Grantee shall reasonably compensate the -5- Franchising Authority or property owner for any damages caused by such trimming. 3.7 Use Of Grantee's Equimnent by Franchising Authority Subject to any applicable state or federal regulations or tariffs, the Franchising Authority shall have the right to make additional use, for any public purpose, of any poles or conduits controlled or maintained exclusively by or for the Grantee in any Public Way; provided that: (a) such use by the Franchising Authority does not interfere with a current or future use by the Grantee; (b) the Franchising Authority holds the Grantee harmless against and from all claims, demands, costs, or liabili- ties of every kind and nature whatsoever arising out of such use of said poles or conduits, including, but not limited to, reasonable attorneys' fees and costs; and (c) at Grantee's sole discretion, the Franchising Authority may be required either to pay a reasonable rental fee or otherwise reasonably compensate Grantee for the use of such poles, conduits, or equipment; provided, however, that Grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement, or other authorization, relating to the Service Area. Construction, installation, and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All such work shall be performed in accordance with applicable FCC or other federal, state, and local regulations. The Cable System shall not endanger or interfere with the safety of persons or property in the Service Area. 3.9 Aerial and Underground construction In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone commTuucations and electric services are underground, the Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone coimmrnications, and electric services are both aerial and underground, Grantee shall have the sole discretion to construct, operate, and maintain all of its transmis- sion and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this Section 3.9 shall require Grantee to construct, operate, and maintain underground any ground- mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this Section 3.9, in the event that all of the transmission or distribution facilities of the respective public utili- ties providing telephone communications and electric services are placed underground after the effective date of this ordinance, Grantee shall only be required to construct, operate and maintain all of its transmis- sion and distribution facilities underground if it is given reasonable G:fl notice and access to the public utilities' facilities at the time that such are placed underground. 3.10 Required Extensions of Service The Cable System, as constructed as of the date of the passage and final adoption of this ordinance, substantially complies with the materi- al provisions hereof. Grantee is hereby authorized to extend the Cable System as necessary, as desirable, or as required pursuant to the terms hereof within the Service Area. Whenever Grantee shall receive a request for service from at least thirteen (13) Subscribers within 1320 cable - bearing strand feet (one - quarter cable mile) of its trunk or distribution cable, it shall extend its Cable System to such Subscribers at no cost to said Subscribers for system extension, other than the usual connection fees for all Subscribers; provided that such extension is technically feasible, or as provided for under Section 3.11 of this Ordinance. 3.11 Subscriber Chanxes for Extensions of Service No Subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a Subscriber's request to locate his cable drop underground, existence of more than one hundred fifty (150) feet of distance from distribution cable to connection of service to Subscribers, or a density of less than thirteen (13) Subscribers per 1320 Cable - bearing strand feet of trunk or distribution cable, Cable Service or other service may be made available on the basis of a capital contribu- tion in aid of construction, including cost of material, labor, and easements. For the purpose of determining the amount of capital contri- bution in aid of construction to be borne by Grantee and Subscribers in the area in which Cable Service may be expanded, Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential Subscribers per 1320 cable- bearing strand feet of its trunks or distribu- tion cable, and whose denominator equals thirteen (13) Subscribers. Potential Subscribers will bear the remainder of the construction and other costs on a pro rata basis. Grantee may require that the payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. 3.12 Service to Public Buildings The Grantee shall provide without charge one (1) outlet of Basic Service to the Franchising Authority's office building(s), fire sta- tion(s), police station(s), and public school building(s) that are passed by its Cable System. The outlets of Basic Service shall not be used to distribute or sell Cable Services in or throughout such buildings; nor shall such outlets be located in cc=n or public areas open to the public. Users of such outlets shall hold Grantee harmless from any and all liability or claims arising out of their use of such outlets, includ- ing but not limited to, those arising from copyright liability. Notwith- standing anything to the contrary set forth in this Section 3.12, the Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds one hundred fifty (150) cable feet, unless it is technically -7- feasible and so long as it will not adversely affect the operation, financial condition, or market development of the Cable System to do so, or unless the appropriate governmental entity agrees to pay the incremen- tal cost of such drop line in excess of 150 cable feet. In the event that additional outlets of Basic Service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including but not limited to, labor and materials. Upon request of Grantee, the building owner may also be required to pay the service fees associated with the provision of Basic Service and the additional outlets relating thereto. 3.13 Emergencv Override In the case of any emergency or disaster, the Grantee shall, upon request of the Franchising Authority, make available its facilities for the Franchising Authority to provide emergency information and instruc- tions during the emergency or disaster period. The Franchising Authority shall hold the Grantee, its agents, employees, officers, and assigns hereunder, harmless from any claims arising out of the emergency use of its facilities by the Franchising Authority, including, but not limited to, reasonable attorneys' fees and costs. 3.14 system Upgrade The Grantee agrees that as a part of a system upgrade within two (2) years from the effective date of this agreement it will provide one (1) dedicated Access Channel to the City of Euless. 3.15 Production Commitment The Grantee agrees to commit to a total of 416 hours of production time annually for government access. This will be allocated monthly not to exceed 36 hours in any month. The Grantee also agrees to provide one (1) character generator for the government access channel. SECTION 4 Subscriber Frights 4.1 Disconnection Subject to federal, state, and City law, there shall be no charge for disconnection of any Installation, unless it is a part of a marketing promotion. If any Subscriber fails to pay the properly due monthly subscription fee, or any other properly due fee or charge the Grantee may disconnect the Subscriber's service, provided that such a disconnection shall not be effected until after the later to occur of: (1) thirty (30) days after the due date of such delinquent fees or charge; or (2) ten (10) days after delivery to such Subscriber of a written notice of the intent to disconnect. If a Subscriber pays all amounts due before the expiration of the later to occur of either of the foregoing dates, then the Grantee shall not disconnect service to such Subscriber. After disconnection, upon payment in full of the delinquent fee or charge and the payment of a reconnection charge, if any, the Grantee shall promptly reinstate the Subscriber's Service. M:L 4.2 Refunds Refunds to Subscribers shall be made or determined in the following manner: (1) If the Grantee fails, upon request of a Subscriber, to provide any Service then being offered, the Grantee shall promptly refund all deposits or advance charges paid for such Service by that Subscriber. This provision does not alter the Grantee's responsibility to Subscribers under any separate contractual agreement or relieve the Grantee of any other liability or obligation; (2) If any Subscriber terminates any Service prior to the end of a prepaid period, a proportionate portion of any prepaid Subscriber service fee, using the number of days as basis, shall be promptly refund- ed. If such refund shall be less than ten dollars ($10.00) Grantee shall be obligated to make such refund only if requested by the Subscriber. 4.3 Discriminatory Practices Prohibited The Grantee shall not deny any Service, deny access, or otherwise discriminate against Subscribers or other Persons on the basis of race, creed, color, religion, national origin, sex, age, handicap, marital status, or veteran status. The Grantee shall comply at all times with all other applicable federal, state and City ordinances, and all execu- tive and administrative regulations, rules, and orders relating to nondiscrimination. 4.4 Privacy Protections The Grantee shall operate the System in a manner that protects against invasions of any Person's privacy and protects the privacy of data Services and data Signals distributed over the System. At the time the Grantee initially provides cable service to a Subscriber and at least once a year thereafter, the Grantee shall provide the Subscriber with a written notice of the Grantee's information collection and disclosure policies, as required by Section 631 of the Cable Act. 4.5 Parental Control Devices The Grantee shall comply with Section 624 (d) (2) (A) of the Cable Act regarding the provision, by sale or lease, of a device by which a Subscriber can prohibit viewing of a particular cable Service during periods selected by the Subscriber. In the event the Cable Act no longer applies, the Grantee shall continue to make such devices available upon Subscriber request. 4.6 Obscene services The Grantee shall not provide any Service which is obscene or otherwise unprotected by the Constitution of the United States and Grantee shall fully comply with the rules and standards for Cable System operations now excising and as hereafter adopted by the F.C.C. and shall comply with all applicable federal, state and City Ordinances. 4.7 Customer Information The Grantee agrees that it shall provide each new customer in some form the following: a. the time allowed to pay outstanding bills b. grounds for termination of service c. how the customer can resolve billing disputes S=ON 5 Regulation by Franchise Authority 5.1 Franchise Fee A. Grantee shall pay to the Franchising Authority a franchise fee equal to five percent (5%) of Gross Revenues (as defined in Section 1.1 of this franchise) ; or any higher fee paid by Grantee within the Dallas, Fort Worth metrcplex area to be received by any other franchising authority from the operation of a Cable System on a quarterly basis; due and payable within 45 (forty -five) days after the end of each calendar quarter provided, however, that Grantee may credit against any such payments: (i) any tax, fee, or assessment of any kind imposed by a Franchising Authority or other governmental entity on a cable operator, or subscriber, or both, solely because of their status as such; (ii) any tax, fee or assessment of general applicability which is unduly discrimi- natory against cable operators or subscribers (including any such tax, fee, or assessment imposed, both on utilities and cable operators and their business, occupation, and entertainment tax). For the purpose of this section, the period applicable under the Franchise for the computa- tion of the franchise fee shall be each calendar quarter, ending March 31, June 30, September 30, and December 31 of each year, unless otherwise agreed to in writing by the Franchising Authority and Grantee. Each payment shall be accompanied by a brief report from a representative of Grantee showing the basis for the computation. B. Franchise Fee. The higher Franchise Fee referred to in Section 5.1.A, would take effect upon a fully executed Agreement with any other Franchising Authority and Grantee. 5.2 Reservation of Rights No acceptance of any franchise fee payment shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount, nor shall such acceptance of any payment be construed as a release of any claim that the Franchising Authority may have for further or additional sums payable under the provisions of the Franchise ordi- nances. All amounts paid shall be subject to audit and recomputation by the Franchising Authority. In the event that Basic Service rate increases are subject to approval of the Franchising Authority, the Grantee may, at its discretion and without consent of the Franchising Authority, increase rates relating to the provision of Basic Service by an amount which is at least equal to five -10- (5) percent per year; as referenced to the Cable Communications Act of 1984. 5.3 Rates and Charcres The Franchising Authority may not regulate the rates for the provi- sion of Cable Service and other services, including, but not limited to, ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law including, but not limited to, the Cable Act and FCC Rules and Regulations relating thereto. From time to time, and at any time, Grantee has the right to modify its rates and charges including, but not limited to, the implemen- tation of additional charges and rates; provided, however, that Grantee shall give notice to the Franchising Authority of any such modifications or additional charges thirty (30) days prior to the effective date thereof. 5.4 Renewal/Modification Costs The Grantee shall pay to the Franchising Authority an amount equal to the reasonable costs which the City may incur in connection with any renewal, renegotiation, anandment, or other modification of the Franchise Ordinance or this Agreement initiated by the Grantee at such time and in such manner as the City Manager shall specify. 5.5 Renewal of Franchise The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 546 of the Cable Act, unless the procedures and substantive protections set forth therein shall have been preempted and superseded by the provisions of any subsequent provision of federal or state law. Notwithstanding anything to the contrary set forth in this Section 5.5, the Grantee and Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to ccrment, the Franchising Authority and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof. The Grantee and the Franchising Authority consider the terms set forth in this section to be consistent with the express provisions of Section 546 of the Cable Act. 5.6 Conditions of Sale If a renewal or extension of Grantee's Franchise is lawfully terminated or revoked, ty acquires ownership of the Cable System o r ship to another party, any such acquisitio n fair market value, or at an equitable price applicable provisions of the Cable Act. -11- Franchise is denied or the and the Franchising Authori- effects transfer of owner- or transfer shall be at a as the case might be under Anything contained in the preceding paragraph to the contrary notwithstanding, Grantee and Franchising Authority agree that in the case of a lawful revocation of the franchise, at Grantee's request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party. The Franchising Authority further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of it prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Franchising Authority, Grantee and Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee's continued operation of its Cable System during the six (6) month period shall not be deemed to be a waiver, nor an extin- guishment of, any rights of either the Franchising Authority or the Grantee. 5.7 Transfer of Franchise Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of the Franchising Authority, such consent not to be unreasonably withheld. No such consent shall be required however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the Franchise or Cable System in order to secure indebtedness. SECPION 6 Compliance and Monitoring 6.1 Testing for Compliance The Franchising Authority may perform technical tests of the Cable System during reasonable times and in a manner which does not unreason- ably interfere with the normal business operations of the Grantee or the Cable System in order to determine whether or not the Grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only on a reasonable basis and after giving Grantee reasonable notice thereof, not to be less than two (2) business days, and providing a representative of Grantee an opportunity to be present during such test, if there are material discrepancies. The costs of such tests shall be borne by the Grantee. Except in emergency circumstances, the Franchising Authority agrees that such testing shall be undertaken no more than two (2) times a year in the aggregate, and that the results thereof shall be made avail- able to the Grantee upon Grantee's request. 6.2 Hooks and Records The Grantee agrees that the Franchising Authority may review such of its books and records, during normal business hours and on a nondisrup- tive basis, as is reasonably necessary to monitor compliance with the -12- terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose information which it reasonably deems to be proprietary to confidential in nature. The Franchising Authority agrees to treat any information disclosed by the Grantee to it as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. 6.3 Communications with Regulatory Agencies Copies of all material petitions, applications, communications, or reports submitted by the Grantee to the FCC, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the System shall promptly be submitted, upon written request by the Franchising Authority, to its City Manager. Copies of responses from the regulatory agencies to the Grantee shall likewise be furnished pertly to the City Manager by the Grantee, upon written request by the Franchising Authority. 6.4 Annual Reports Annually, within sixty (60) days after the end of each calendar year, throughout the term of this Agreement, the Grantee shall file with the City Manager of the Franchising Authority, the following: (1) revenue statements verified by the Grantee's Comptroller; (2) a current list of the names and addresses of each officer, director, and other management personnel, as well as each Person owning five percent (5%) or more, of the Grantee; (3) a statement of the Grantee's current billing practices; (4) a current copy of the Grantee's rules, if any, regarding the use of Access Channels and Leased Channels and related facilities and equipment; and (5) a current copy of the Grantee's Subscriber service con- tracts, if any, and its Subscriber complaint procedures. 6.5 Audits The Franchising Authority shall have authority to arrange for and conduct, at the Franchise Authority's expenses, an audit of and to copy the books and records of the Grantee in accordance with Section 6.2. The Grantee shall be given at least five (5) days notice of the audit re- quest, a description of and purpose for the audit, and a description, to the best of the Franchise Authority's ability, of books, records and documents the Franchise Authority wants to review. in the event any such audit reveals Grantee's failure to comply with the requirements hereof, the reasonable cost of such audit shall be paid by Grantee to Franchising -13- Authority upon request therefore accompanied by an invoice reflecting an itemization of the costs of such audit. 6.6 Toll -Free Number The Grantee shall continuously maintain publicly listed, a toll -free telephone number, which shall be operated so as to receive Subscriber complaints and requests for repairs and service on a twenty -four (24) hour - a-day, seven (7) day- a-week basis, provided that outside of usual business hours, this may be accomplished through an answering service, but not an answering machine. A written log shall be maintained listing all complaints and their dispositions. 6.7 Repairs /Service Interruptions The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice to the Franchising Authority and to each affected Subscriber and shall occur during periods of minimum use of the System. A written log shall be maintained for all service interruptions. Except where a Subscriber has damaged the System's equipment, upon request by the Subscriber, the Subscriber's account shall be credited if the Subscriber is without service for any reason for a period exceeding twenty -four (24) business hours after the Grantee has received notice of an interruption of service. This information shall be provided to the Subscriber, as part of the Grantee's initial subscriber information materials. 6.8 Response Time The Grantee shall maintain a repair force of technicians that shall respond to Subscriber complaints or requests for service within twen- ty -four (24) hours after receipt of the complaint or the request, to the extent possible. All technical employees of the Grantee shall be clearly identified as employees of the Grantee. All complaints shall be resolved within seven (7) days, to the extent possible. 6.9 Subscriber Recourse In the event a Subscriber does not obtain satisfactory resolution of a complaint through the foregoing procedures, such Subscriber shall have recourse to refer the complaint to an administrator designated by the City Manager of the Franchising Authority, to assist in the resolution of the complaint. All Subscribers, programmers, and members of the general public may bring any complaint regarding the System or the Grantee before the City Council of the Franchising Authority, where there is evidence that the Grantee has not settled the complaint to the satisfaction of the Person initiating the complaint. 6.10 Reviews The Franchising Authority reserves the right to adopt rules and regulations controlling the procedures and subjects for periodic reviews and evaluations of the Grantee and the System. In the absence of any -14- additional rules and regulations, the Grantee shall be subject to the procedures and subjects described in this Section 6.10. The Franchising Authority may require, at its discretion, System performance evaluation sessions at any time during the term of the franchise, but not more than one (1) in any twelve -month period, or as required by federal or state law. The Grantee shall notify its Subscribers of all evaluation sessions by announcement on the Access Channels of the System between the hours of 7:00 p.m. and 9:00 p.m. for five (5) consecutive days preceding each session. To assist in its review and evaluations, the Franchising Authority may, at the Franchising Authority's expense, enlist an indepen- dent consultant to conduct an analysis of the System and its performance and to submit a report of such analysis to the Franchising Authority. Topics which may be discussed at any evaluation session may include, but shall not be limited to: franchise fees, Services, application of new technologies, System technical performance, Access Channels and related facilities and equipment, Subscriber aouplaints, privacy, amendments, subsequent legal developments, including judicial and FCC rulings, and Grantee or Franchise Authority rules. During a review and evaluation by the Franchise Authority the Grantee shall fully cooperate with the Franchise Authority and shall provide, without cost, such information and documents as the City Manager of the Franchise Authority may reasonably request. In the event any such System performance evaluation determines that Grantee is not in compliance herewith all costs and expenses reason- ably incurred by Franchise Authority, including without limitation hereto the costs of any independent consultant shall be paid by Grantee to Franchising Authority upon request therefore accompanied by an invoice reflecting an itemization of such costs and expenses. 6.11 Insurance 6.11.1 Liability Grantee shall maintain, throughout the term of the franchise, liability insurance naming the Franchise Authority and its officers, boards, ccmmissions, elected officials, and employees as additional insureds, with regard to any of the matters listed in Section 6.11 herein, in the minimum amounts of: (1) One Million Dollars ($1,000,000.00) for bodily injury or death to each Person; (2) One Million Dollars ($1,000,000.00) for property damage resulting from any one accident; (3) Three Million Dollars ($3,000,000.00) in an umbrella policy covering bodily injury, death and property damage; and (4) One Million Dollars ($1,000,000.00) for all other types of liability. 6.11.2 Automobile Grantee shall carry in its own name automobile liability insurance with limits of Five Hundred - Thousand Dollars ($500,000.00) for each Person and one Million Dollars ($1,000,000.00) for each accident for property damage with respect to owned and non - owned automobiles for the operations of which the Grantee is responsible. 6.11.3 Construction Hazard -15- Because Grantee will be working in the Public Way continually, the Grantee's insurance will cover comprehensive form, premises- operations, explosions and collapse hazard, underground hazard and products completed hazard in the minimum amount of one Million Dollars ($1,000,000.00), or whatever greater limits are permitted by the State for bodily injury and property damage combined. 6.11.4 Proof Required on or prior to the Effective Date of this Agreement, and as a condition precedent to the effectiveness of this Agreement, the Grantee shall furnish proof to the Franchising Authority that the foregoing insurance policies have been obtained, along with written evidence of payment of required premiums. Each such insurance policy shall contain the following or similar endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew by stated until sixty (60) days after receipt by the City Manager and City Attorney of the Franchising Authority, by registered mail, or a written notice or such intent to cancel or not to renew." Within forty (40) days after receipt by the Franchising Authority of any such notice to cancel or not to renew, and in no event later than twenty (20) days prior to any such cancellation or nonrenewal, the Grantee shall obtain and furnish to the City Manager replacement certificates of insurance policies in a form reasonably acceptable to the City Manager and City Attorney of the Franchising Authority. 6.11.5 Maintenance The insurance policies required by this Section 6.11 shall be main- tained by the Grantee throughout the term of this Agreement and such other period of time during which the Grantee operates or is engaged in the removal of the System. 6.12 Bonds and other Surety Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. The Franchising Authority acknowledges that the legal, financial, and technical qualifications of Grantee are sufficient to afford compliance with the terms of the Fran- chise and the enforcement thereof. Grantee and Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for Cable Services. The Franchise Authority agrees that in no event, howev- er, shall it require a bond or other related surety in an aggregate amount greater than ($50,000) conditioned upon the substantial perfor- mance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the Franchising Authority agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in the Grantee's legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith. -16- 6.13 Limitation of Liability (A) The Grantee agrees that the Franchising Authority may, at any time, in the case of fire, disaster or other emergency, as determined by the Franchising Authority, cut or move any of the wires, cables, amplifi- ers, appurtenances or other parts of the System, provided, however the Franchising Authority shall hold the Grantee, its employees, officers, and assigns hereunder, harmless from any claims arising out of the Franchising Authority's cutting or moving of any of its wires, cables, amplifiers, appurtenances, or other parts of the system. When reasonably practicable, the Grantee shall be consulted prior to any such cutting or movement of its wires and be given the opportunity to perform such work itself. (B) The Franchising Authority reserves the right to require the Grantee to relocate, at the sole expense of the Grantee, any part of the System, if relocation is determined necessary by the Franchising Authori- ty for traffic safety, for the accommodation of other necessary Franchis- ing Authority utilities, or due to changes in the grade, width, direction or location of the Streets, or for any other reason deemed necessary by the Franchising Authority in the public interest. The Franchising Authority shall not be liable to the Grantee for any damage to or loss of all or any part of the System, or otherwise, as a result of or in connec- tion with the protection, breaking through, movement, removal, altera- tion, or relocation of any part of the System by or on behalf of the Grantee, or the Franchising Authority in connection with any public work, public improvement, alteration of any municipal structure, change in the grade, width or line of any Street, or the elimination, discontinuation, or closing of any Street, as provided herein, except for any negligent, illegal, or ultra vires acts by the Franchising Authority, its officers, boards, cc fissions, elected officers or employees. When reasonably practicable the Grantee shall be consulted prior to any such relocation. SECTION 7 Enforcement and Termination of Franchise 7.1 The termination of this Franchise Agreement and the Grantee's rights herein shall become effective upon the earliest to occur of: (1) the lawful revocation of the franchise and this Agreement by action of the City Council of the Franchising Authority, as provided by Section 9.2 herein; (2) the abandonment of the System, in whole or material part, by the Grantee without the express, prior written approval of the City Council of the Franchising Authority; or (3) the expiration of the term of the franchise, if not renewed or extended. 7.2 Notice of Violation In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged noncompliance. 7.3 Technical Requirements -17- The Grantee shall construct, operate, maintain, and test the System in accordance with the technical specifications and system performance standards set forth in Appendix A to this Agreement. 7.4 Grantee's Right to Cure or Respond Grantee shall have thirty (30) days from receipt of the notice described in Section 7.1: (a) to respond to the Franchising Authority contesting the assertion of noncompliance, or (b) to cure such default, or (c) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed. 7.5 Public Hearing In the event that Grantee fails to respond to the notice described in Section 7.2 pursuant to the procedures set forth in Section 7.4, or in the event that the alleged default is not remedied within sixty (60) days after the Grantee is notified of the alleged default pursuant to Section 7.2, the Franchising Authority may terminate this Franchise. Such termination shall be effected by vote of the City Council of the Fran- chising Authority following a public hearing thereon at which public hearing Grantee shall be given an opportunity to be heard. At least five (5) business days notice of such public hearing shall be given Grantee by Franchising Authority. 7.6 Enforcement Subject to applicable federal and state law, in the event the Franchising Authority, after such meeting, determines that Grantee is in default of any provision of the Franchise, the Franchising Authority may: a. Foreclose on all or any part of any security provided under this Franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the Franchising Authority reasonably determines is necessary to remedy the default; b. Commence an action at law for monetary damages or seek other equitable relief; c. In the case of a default of a material provision of the Franchise, declare the Franchise Agreement to be revoked; or d. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the Franchising Authority to enforce prompt compliance. MM 7.7 Acts of God The Grantee shall not be held in default or noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control. 7.8 Survival of Liability No termination of the franchise shall operate as a waiver or release of the Grantee for any liability which arises or arose out of any act or failure to act by the Grantee prior to any termination. 7.9 City's Right to Order Removal or to Acquire or Effect a Transfer of the Svstem 7.9.1 Removal Subject to applicable law, upon any termination the City Council of the Franchising Authority may direct the Grantee to remove, at the Grantee's expense, all or any portion of the System from all Streets and other public property within the City, subject to the following: (1) this provision shall not apply to buried cable which cannot be removed; (2) in removing the System, or part thereof, the Grantee shall refill and compact, at its own expense, any excavation that shall be made by it and shall leave all Streets and other property in as good condition as that prevailing prior to the Grantee's removal of the System and without affecting, altering or distributing in any way any electric, telephone or other utility cables, wires or attachments; (3) the Franchising Authority shall have the right to inspect and approve the condition of such Streets and property after removal; (4) liability insurance and indemnity provi- sions of this Franchise Ordinance shall remain in full force and effect during the entire period of removal; (5) removal shall be commenced within thirty (30) days of the removal order by the City Council of Franchising Authority and shall be completed within one hundred and eighty (180) days thereafter; (6) if, in the reasonable judgment of the City Manager of the Franchising Authority, the Grantee fails to commence removal of the System, or such part therein as designated by the City Council, within thirty (30) days after the City Council's removal order, or if the Grantee fails to substantially ccmiplete such removal within one hundred and eighty (180) days thereafter, except due to circLmistances beyond the Grantee's control, then, the Franchising Authority shall have the right to: (a) declare that all rights, title and interest to the System belong to the Franchising Authority with all rights of ownership, including, but not limited to, the right to operate the System or to effect a transfer of the System to another Person for operation; or (b) authorize removal of the System, at the Grantee's cost, by another person; and (c) any portion of the System, not designated by the City Council for removal shall belong to and become the property of the Franchising Authority without payment to the Grantee and the Grantee shall execute and deliver such documents, as the City Manager shall request, in form and substance acceptable to the City Attorney, to evidence such ownership by the Franchising Authority. 0 k= 7.9.2 Acquisition or Transfer As an alternative to ordering removal of the System, the Franchising Authority shall have the right to acquire or to effect a transfer of all of the assets of the System to a third party, consistent with the subsec- tion 5.6 above and Section 547 of the Policy Cable Communications Act of 1984. In the event of any such acquisition or transfer, the Grantee shall: (1) cooperate for a six (6) month period of time with the Franchising Authority or any third party in maintaining the distribution of services over the system; (2) promptly execute all appropriate documents to- transfer to the Franchising Authority or third party, free of any and all encumbrances, title to the System; and (3) promptly supply the City Manager of the Franchising Authority with all necessary records to reflect the Franchising Authority's or third party's ownership of the System and to operate the System. SECTION 8 Acquisition, Transfer or Removal of the System Notwithstanding anything to the contrary in this Section 8, if at the time of any termination of the franchise, this Agreement, and the Grantee's rights therein, the Grantee is using a headend, supertrunk or other facilities located outside the Franchising Authority to provide Services in the Franchising Authority: (i) the Franchising Authority's right to order removal of the System pursuant to Section 7 of this Franchise Ordinance shall apply only to that portion of the System located within the Franchising Authority; and (ii) if the Franchising Authority elects instead to acquire or to effect a transfer to a third party of all or any part of the assets of the System pursuant to Section 7 of this Franchise Ordinance, the Franchising Authority shall be enti- tled to acquire or effect a transfer only of that portion of the System located with the Franchising Authority. 8.1 Permitted EncLunbrances /Substitution of Collateral Nothing in this Section 8 shall be deemed to prohibit any assign- ment, pledge, lease, sublease, mortgage, or other encumbrance of all or any part of the System, or any right or interest therein, for financing purposes, provided that each assignment, pledge, lease, sublease, mort- gage, or other encumbrance shall be subject to the rights of the Fran- chising Authority pursuant to this Franchise Ordinance and applicable law, provided that no encumbrance of any sort shall work to effect a transfer of Control of the Grantee. SE=ON 9 Foreclosure, Condemnation and Receivership 9.1 Foreclosure and Condemnation 9.1.1 Notice Required -20- Upon the occurrence of any event which may reasonably lead to the foreclosure or judicial sale of all or any material part of the System, or the termination of any lease or mortgage covering all or any material part of the System, the Grantee shall immediately notify the City Manager and City Attorney of the Franchising Authority of such occurrence. Such notification shall be treated as a notification of a proposed change in Control of the Grantee, and the provisions of Section 7.6 shall apply. 9.1.2 Grounds for Revocation Upon the occurrence of any event which may reasonably lead to the foreclosure or judicial sale of all or any material part of the System, or the termination of any lease or mortgage covering all or any material part of the System by an entity other than the Franchising Authority and the effect of such taking of the Franchise Authority would materially frustrate or impede the ability of the Grantee to carry out its obliga- tions pursuant to, and the purposes of, this Franchise Ordinance, then the City Council of the Franchise Authority may revoke the franchise. Nothing contained in this section shall be deemed to create a right in any entity to take or condemn the System. 9.2 Receivershi 9.2.1 Notice Reauired The Grantee shall immediately notify the City Manager and the City Attorney of the Franchising Authority in writing if: (1) the Grantee files a voluntary petition in bankruptcy, a voluntary petition to reor- ganize its business, or a voluntary petition to effect a plan or other arrangement with creditors; (2) the Grantee files an answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as amended; (3) the Grantee is adjudicated bankrupt, makes an assignment for the benefit of creditors, applies for or consents to the appointment of any receiver or trustee of all or any part of its property, including all or any part of the System; (4) the Grantee institutes dissolution or liquidation pro- ceedings with respect to its business; (5) an order is entered approving an involuntary petition to reorganize the business of the Grantee or to effect a plan or other arrangement with creditors or appointing a receiv- er or trustee for the Grantee of all or a part of its property, including all or any part of the System; or (6) a writ or warrant of attachment, execution, distraint, levy, possession, or any similar process shall be issued by any court against all or any material part of the property of the Grantee, including all or any material part of the System. 9.2.2 Grounds for Revocation In the event that such petition, writ, or warrant shall not be dismissed, or a stay of foreclosure obtained, or the assignment, appoint- ment, or proceedings shall not be rescinded or terminated, within one hundred and twenty (120) days of the issuance, making, or commencement therein, and the effect therein is to materially frustrate or impede the ability the ability of the Grantee to carry out its obligations pursuant -21- to, and the purposes of, this Franchise Ordinance, then the City Council Of the Franchising Authority may revoke the franchise, unless: (1) within one hundred and twenty (120) days after his election or appointment, any receiver or trustee of the Grantee itself as a debtor - in- possession in connection with any such reorganization or similar proceedings, shall have remedied any uncured failure to comply with any provision of this Agreement; and (2) within that one hundred and twenty (120) day period the receiver or trustee, or the Grantee itself as a debtor -in- possession, shall have executed an Agreement, duly approved by the City Council of the Franchis- ing Authority and the court having jurisdiction over the premises, whereby the receiver or trustee or the Grantee, in that capacity, assumes all obligations and agrees to be bound fully by each and every provision of the Franchise Ordinance and this Agreement. S=ON 10 Other Standards and Provisions 10.1 Amendment of Franchise and Variance 10.1.1 AmerxIment of the Agreement This Agreement may be amended by ordinance adopted by the City Council of the Franchising Authority with the written consent of the Grantee. 10.1.2 Variance from Franchise Obliaation Except for modifications sought by the Grantee pursuant to Section 545 of the Cable Act, the following standards and procedures shall apply: (1) Variance applications by the Grantee shall be considered in the following circumstances: (a) where the requested variance is a minor deviation from this Agreement and is consistent with the Franchise Ordinance and this Agreement in the sole judgment of the Franchising Authority, (b) where application or enforcement of the affected provision of this Agreement would result in an undue hardship to the Grantee and to grant a variance would not be detrimental to any affected party; (c) where, due to expense or delay, it would be unreasonable to perfect such change by an amenIment to the Franchise Ordinance or this Agreement; or (d) where undue delay, expense, or other adverse results will not occur by approval of the required variance. (2) A variance application shall be made in accordance with the following procedures: (a) an application shall be filed with the City Manager, in a manner specified by the City Manager; (b) the City Manager shall forward the application to the City Council within fourteen (14) calendar days of receipt; (c) the City Council shall report the findings of its investigation and shall act on the request within thirty (30) days of its receipt; and (d) if the variance is not approved by the City Council, the variance shall be deemed denied. -22- 10.2 Work Performed by Others The Grantee shall ensure that each subcontractor or other Person performing any work or activity on behalf of the Grantee (whether direct- ly or indirectly) in connection with the franchise, this Agreement, or the Franchise Ordinance, complies with all provisions of the Franchise Ordinance and this Agreement with respect to the work to be performed or the materials or equipment to be supplied by such contractor or other Person. 10.3 Subsequent Action by State of Federal Agencies If any subsequent federal, State of Texas, or City ordinance, or regula- tion shall require or permit the Grantee to perform any act which nay be in conflict with the terms of this Franchise ordinance, or shall prohibit the Grantee from performing any act in conformance with the terms of the Franchise Ordinance or this Agreement, then as soon as possible following knowledge thereof, the Grantee shall so notify the City Manager. 10.4 Nonenforcement by City The Grantee shall not be relieved of any obligation by reason of any failure of the City to enforce prompt compliance with any provision of the Franchise Ordinance or this Agreement. 10.5 Service to Other Jurisdictions The Grantee represents and warrants that any actions or obligations undertaken by the Grantee, with respect to or imposed on the Grantee by any other cable franchise authority, in which cable service may be provided through the System, shall not impair, affect, excuse, or provide a defense against the Grantee's full and complete satisfaction of each and all of its obligations under this Franchise Ordinance, without regard to the manner in which any Service, Service Related Activity, or connec- tion to or access to the System is provided in any other jurisdiction. Any failure of the Grantee to full and completely satisfy its obligations under this Franchise Ordinance as a direct result of providing any Service, Service Related Activity, or connection to or access to the System in any other jurisdiction shall be deemed to constitute a material breach of this Franchise Ordinance. 10.6 Administration of the Franchise 10.6.1 City Manager The City Manager or his appointed representative shall be responsi- ble for the continued administration of this Franchise Ordinance. 10.6.2 Rules and Regulations Subject to federal and state law, the City Council and the City Manager may issue such reasonable rules, regulations, or directives concerning construction, operation, and maintenance of the System as are -23- consistent with the provisions of this Franchise Ordinance, or otherwise in accordance with the Franchising Authority's legal general police powers - 10.6.3 City Supervision The Grantee shall construct, operate, and maintain the System subject to the supervision of all the authorities of the City having jurisdiction over such matters and in strict compliance with all laws, ordinances, departmental rules, and regulations passed by the City in accordance with its lawful police powers affecting the System. 10.6.4 Inspection The System and all parts therein shall be subject to the right of periodic inspection by the Franchising Authority. 10.7 Rights and Remedies 10.7.1 Not Exclusive All rights and remedies given to the Franchising Authority by this Franchise Ordinance shall be in addition to and emulative with any and all other rights or remedies, existing or implied, now or hereafter available to the Franchising Authority, at law or in equity. such riots and remedies shall not be exclusive, but each and every right and remedy specifically provided or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedi- ent by the Franchising Authority. The exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy nor shall any such delay or amission be construed to be a waiver of or acquiescence to any default. The exercise of any such right or remedy by the Franchising Authority shall not release the Grantee from its obligations or any liability under this Franchise Ordinance. 10.7.2 Injunctive Relief In addition to all other remedies granted or available to the parties, the parties shall be entitled to seek the restraint any injunc- tion of the violation, or attempted or threatened violation, by other party of any terms or provisions of this Franchise Ordinance or to a decree compelling performance by the other party of any term or provision hereof. 10.7.3 Indemnification of Franchising Authority Grantee agrees to hold the Franchising Authority, its officers, employees and agents harmless against any and all claims, demands, costs, or liabilities of every kind and nature whatsoever, arising out of Grantee's operation hereunder and in exercising the authority herein granted, including but not limited to, reasonable attorneys' fees and costs. MOzM 10.7.4 C'hallenaes to ordinance Except as to those matters which may be preempted or overturned by federal or state law or regulations, or by a court of C mTpetent jurisdic- tion, and provided further that nothing contained herein shall be con- strued to be a waiver of estoppel by the Grantee of any of its federal or states constitutional rights, the Grantee agrees that it will not, at any time, set up against the Franchising Authority any claim, or institute against the Franchising Authority any proceeding alleging that a condi- tion or term of this Franchise Ordinance is unreasonable, arbitrary, or ambiguous. Except as stated above or otherwise expressly provided herein, by execution of this Agreement, the Grantee accepts the validity of the terms and conditions of the Franchise Ordinance in their entirety. Notwithstanding anything contained herein to the contrary, the terms, covenants and agreements set forth in this Section 10.7.4 shall be deemed inapplicable and unenforceable where (a) any other Cable Communications system operates within the Cable Service Area utilizing any Street of the City without a franchise or under terms and conditions materially differ- ent than these contained in the Franchise Ordinance and this Agreement, or (b) the Franchising Authority has initiated, commenced, filed or otherwise instituted any proceeding, lawsuit or legal action of whatever nature against the Grantee or the System. 10.8 Authority to Sign Agreement At or before the Effective Date of this Agreement, the Grantee shall deliver to the City Manager a certified copy of the resolution(s) of the Board of Directors or other governing body or individual (s) of the Grantee, and, as applicable, each Affiliated Person and Person holding Control of the Grantee authorizing execution of this Agreement. 10.9 AArplication to Successors All of the provisions of this Agreement shall apply to the Grantee, its successors, and assigns. 10.10 No Opposition The Grantee agrees that it shall not oppose the intervention by the Franchising Authority, at the Franchising Authority's own cost and expense, in any suit, action, or proceeding involving the Grantee with respect to the System or any material provision of this Agreement, provided the Franchising Authority is in compliance with the applicable rules of intervention. 10.11 Applicable Law This agreement shall be deemed to be executed in the City of Euless, State of Texas, regardless of the domicile of the Grantee, and shall be governed by and construed in accordance with the laws of the State of Texas. 10.12 Construction of the Agreement -25- The Franchising Authority and the Grantee have each participated fully in the negotiation and preparation of this Agreement. Therefore, the language in this Agreement, shall, in all cases, be construed accord- ing to its fair meaning and not strictly for or against any party hereto. 10.13 Time of the Essence Time is of the essence to the performance of the terms and condi- tions of this Agreement. 10.14 Entire Understanding This Franchise ordinance embodies the entire understanding and agreement of the Franchising Authority and the Grantee with respect to the subject matter hereof and merges and supersedes all prior representa- tions, agreements, and understandings, whether oral or written, between the Franchising Authority and the Grantee with respect to the subject matter hereof, including, without limitation, all prior drafts of this Franchise Ordinance and all prior drafts of and Appendix to this Fran- chise Ordinance and any and all written or oral statements or representa- tions by any official, employee, or agent of the Franchising Authority and by the Grantee. SECITON 11 Miscellaneous Provisions 11.1 Preemption If the FCC, or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the Franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise or the like jurisdiction by the Franchising Authority, the jurisdiction of the Franchising Authority over such preempted or superseded matter only shall cease and no longer exist. 11.2 Notice Unless expressly otherwise agreed between the parties, every notice or response to be served upon the Franchising Authority or Grantee shall be in writing, and shall be deemed to have been duly given to the re- quired party five (5) business days after having been posted in a proper- ly sealed and correctly addressed envelope by certified or registered rail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service. The notices or responses to the Franchising Authority shall be addressed as follows: The City of Euless 201 N. Ector Drive Euless, Texas 76039 -26- with a copy to: Cribbs and McFarland Attorneys -at -Law P.O. Box 13060 Arlington, Texas 76013 The notices or responses to the Grantee shall be addressed as follows: Storer Cable TV of Texas, Inc. 934 E. Centerville Road Garland, Texas 75041 with a copy to: Storer Cable TV of Texas, Inc. Attention: Legal DeparGnent P.O. Box 5630 Denver, Colorado 80217 Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other. 11.3 Descriptive Headinct The captions to Sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein. 11.4 Severability In any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof. 11.5 Publication The Grantee shall reimburse the Franchising Authority for the expenses of publication of notices of public hearings and of the passage of this Ordinance, which notices shall be as required by law and the Franchising Authority's Charter and Ordinances. PRESENTED AND GIVEN FIRST READING at a regular meeting of the Euless City Council on the 8th day of October , 1991 by a vote of 5 ayes, 0 nays and 0 abstentions. GIVEN SECOND READING, PASSED AND APPROVED at a regular meeting of the Euless City Council on the 12th day of November , 1991 , by a vote of (o ayes, _Q nays and o abstentioTns. -27- 1 AT=: J Ile Harold Samuels, Mayor Technical Specifications and Standards Storer Cable TV of Texas, Inc. is working toward the long -term necessity of maintaining excellence in service to its subscribers. The technical specifications and construction procedures which the Company will strive to maintain throughout the Euless system are detailed below. The standards below exceed the standards contained in the FCC Guidelines. Construction Standards: Materials and components used will be of the highest quality and of conservative design. For example, trunk and distribution or feeder lines shall be constructed using law loss aluminum coaxial cable. To ensure reliability and continuing good service, system components will be carefully selected to maintain system RF shielding integri- ty. All splices and connectors will be of the integral sleeve type. House -drop cable will be double - shielded, with a layer of foil and 67 percent braid coverage. All matching connectors will be of the long shank type, with 1/2 inch clip rings at a minimum. To minimize the occurrence of major system outages and other prob- lems, the Company will take the following precautions: 1) All indoor system components will be in an air conditioned environment to insure optimum functioning. 2) The system will be bonded and grounded. 3) All subscriber drops will be checked for proper grounding. 4) All towers, antennas, satellite receive stations, and other exposed equipment will be properly grounded to exceed normal requirements. 5) Specially designed surge protectors will be installed at each amplifier throughout the system, especially in conjunction with all power suppliers. Standard construction practices to be followed by Storer Cable TV of Texas, Inc. dictate that coaxial cable splices shall be held to a minimmm, be properly waterproofed, and contain adequate thermal expansion loops to absorb the expansion and contractions of the cable due to temperature variation. Installation of equipment, cable placement, and similar practices will be all in conformance with standard industry procedures. All active equipment will be checked for operational parameters, such as frequency response, flatness, and gain, etc. The amplifier will then be aligned to the bench for a specific location from the systems design maps. The Company considers reliability of service second only to safety in -1- the design and construction of a cable system. With respect to the latter, construction practices shall be in accordance with standard utility pole, base regulations, and the statutes and regulations listed below: Rules and Regulations of the Federal Communications Commission. Part 76 Technical Standards and Specifications, Cable Television Information Center, 1973 Obstruction Marking and Lighting, AC 70/7460 -IE, Federal Aviation Administration, November 1976 Federal Communications Commission Rules Part 17, Construction, Marking and Lighting of Antenna Structure, June 1977 National Electrical Safety Code, 1987 National Electrical Code, 1988 OSHA Safetv and Health Standards NCIA Standards of Good Engineering Practices, NCTA 008 -0477 EIA Standard RS -222C, "Structural Standards for Steel Towers and Antenna Supporting Structures ". System Maintenance and Performance Tests: The system performance tests that are performed on a monthly basis include Frequency Re- sponse, Signal-to-Noise, Signal -to -Hum, Head -end Operations, and Satellite Station Inspection. On a quarterly basis the entire plant will be inspected for egress. Yearly system performance tests are performed in compliance with guidelines set forth by the FCC. The qualifications of persons conducting the test include a minimum five years technical experience with the appropriate background. Preventative maintenance will consist of routine evaluation of all system operating parameters at the extremities of each distribution network each month. It will further consist of routine physical inspection of each active device in the distribution system to assure the mechanical integrity of all housings, placement of all radiation and moisture shielding, and the security of all coaxial connectors. All power connections, ground devices, pole mounts, external power supplies, surge protectors, and other associated equipment will be inspected for proper operation, installation, and placement. This inspection shall include the verification of operating parame- ters. A record of such data, plus such components as equalizing devices, pads, splitters, and modules will be maintained for each active device dating from initial proof of performance. Any chang- es, modifications, or substitutions shall include verification of RF levels, AC and DC voltage levels at each site. -2- Customer Service The primary objective of the complaint procedure program is to satisfy complaints with the minimum delay. This means having suffi- cient well- trained staff on duty. It will be the responsibility of the office staff to receive complaints from subscribers relating to the reception of services offered, such as service interruptions, system difficulties, and weak pictures. Office personnel will receive and satisfy complaints relating to billing, installations, and employee problems. This office will also receive and process requests from subscribers and potential subscribers for installation, disconnection and change in service. Inquiries relating to rates, payment methods and service offered will be handled by the staff. Service calls will be accepted on a 24 -hour basis. Generally, service calls will be made the same day of the customer call. After normal business hours, service calls will be accepted through a reliable answering service for forwarding to a "stand -by" techni- cian. Experienced engineering staff will be available on -call to work with stand -by technicians in helping to solve more difficult problems. Service technicians are fully trained to handle service calls, both from a technical and customer relations standpoint. Should a system outage occur, upon request, subscribers will receive a prorata rebate for loss of service for 48 hours or longer. The main office will be open Monday through Friday from 8:30 a.m. to 5:30 p.m. After hours, phone calls will be handled by a company trained employee. A service technician will be available to respond to service calls from 8:30 a.m.to 5:30 p.m., Monday through Saturday. In addition, the Company will respond to major system outages twenty -four hours per day, seven days per week. Scheduling of service calls will be handled on the following priori- ty basis: 1. Major System Outage (disruption of service to majority of subscribers). 2. Minor System Outage (disruption of service reasonably identifiable as unique to 8 -10 subscribers or to a specific geographic area) . 3. Individual outages. 4. Impairments (when cable signal is delivered, but there is a deficiency in either the picture or sound. 5. Miscellaneous (disruption of service caused by another party). -3- Scheduling of all business (excluding service calls and repair service) will be handled on the following priority basis: 1. Service changes and rescheduling appointments for existing subscribers. 2. Disconnection of service for existing subscribers. 3. Installation of service for new subscribers. It is understood these will be minimum standards of customer ser- vice. Ite=enov Alert System The Company will provide the City with an emergency alert system. When accessed (via telephone and security code) the audio on all channels on the cable system will be blanked out and the initiator of the call may deliver the emergency message. The Company requests that the City indemnify it for the City's use of this system. -4-