HomeMy WebLinkAbout1534 08-13-2002ORDINANCE NO. 1534
AN ORDINANCE RENEWING AND EXTENDING THE
FRANCHISE OF TCI TKR OF THE METROPLEX, INC.,
FOR THE CONTINUED OPERATION OF A COMMUNITY
ANTENNA TELEVISION SYSTEM WITHIN THE CITY OF
EULESS; PROVIDING THE TERMS AND CONDITIONS
THEREOF; PROVIDING AN EFFECTIVE DATE;
PROVIDING 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 community 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 the predecessor of TCI TKR OF THE
METROPLEX, 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 TCI TKR OF THE METROPLEX, INC., in
performance of its obligations under such franchise have been reasonably sufficient
and that the financial, legal, and technical ability of TCI TKR OF THE METROPLEX,
INC., to continue to provide services, facilities and equipment necessary to meet the
current and future cable - related needs of the City are reasonably sufficient; and
WHEREAS, TCI TKR OF THE METROPLEX, 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 EULESS, TEXAS:
FRANCHISE AGREEMENT
This Franchise Agreement ( "Franchise ") is between the City of Euless, Texas,
hereinafter referred to as "the Franchising Authority' and TCI TKR of the Metroplex,
Inc., hereinafter referred to as "the Grantee."
The Franchising Authority hereby acknowledges that the Grantee has
substantially complied with the material terms of the current Franchise under applicable
law, and that the financial, legal, and technical ability of the Grantee is reasonably
sufficient to provide services, facilities, and equipment necessary to meet the future
cable- related needs of the community, and having afforded the public adequate notice
and opportunity for comment, desires to enter into this Franchise with the Grantee for
the construction and operation of a cable system on the terms set forth herein.
SECTION 1
Definition of Terms
1.1 Terms. For the purpose of this Franchise, 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. "Basic Cable" is the lowest priced tier of Cable Service that includes the
retransmission of local broadcast television signals.
B. "Cable Act" means Title VI of the Communications Act of 1934, as
amended.
C. "Cable Services" 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
such video programming or other programming service.
D. "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 to multiple
,Subscribers within the Service Area.
E. "Channel" means a portion of the frequency band capable of carrying a
video programming service or combination of video programming services
on a twenty -four (24) hour per day basis.
F. "FCC" means Federal Communications Commission, or successor
governmental entity thereto.
G. "Franchising Authority' means the City of Euless, Texas, or the lawful
successor, transferee, or assignee thereof.
H. "Government Access Programming" is non - commercial programming
produced or acquired by government institutions in the Service Area for
cablecasting on the Cable System.
"Grantee" means TCI TKR of the Metroplex, Inc., or the lawful successor,
transferee, or assignee thereof.
Ordinance No. 1534, Page 2 of 33
J. "Gross Revenue" means any revenue received by the Grantee from the
operation of the Cable System to provide Cable Services in the Service
Area, provided, however, that such phrase shall not include: (1) any tax,
fee or assessment of general applicability collected by the Grantee from
Subscribers for pass- through to a government agency, including the FCC
User Fee; (2) unrecovered bad debt; and (3) and PEG amounts recovered
from Subscribers.
K. Normal Operating Conditions: Those service conditions which are within
the control of the Grantee. Those conditions which are not within the
control of the Grantee include, but are not limited to, natural disasters,
civil disturbances, labor strikes or slowdowns, telephone network outages,
interruption of electric power service which is not a direct result of the
Grantee's actions, and severe or unusual weather conditions. Those
conditions which ordinarily are within the control of the Grantee include,
but are not limited to, special promotions, pay - per -view events, rate
adjustments, regular peak or seasonal demand periods, backup power
during power outages, changes in billing cycles, changes in channel line-
ups that are within Grantee's control, construction, rebuilds, maintenance
(including repairs related thereto) and/or upgrade of the Cable System.
L. "Person" means an individual, partnership, association, joint stock
Grantee, trust, corporation, or governmental entity.
M. "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 -of -way dedicated for compatible uses now
or hereafter held by the Franchising Authority in the Service Area which
shall entitle the Grantee to the use thereof for the purpose of installing,
operating, repairing, and maintaining the Cable System.
N. Service Area" means the present boundaries of the Franchising Authority,
and shall include any additions thereto by annexation or other legal
means.
O. "Standard Installation" is defined as one hundred twenty -five (125) feet
from the nearest tap to the Subscriber's terminal.
P. "Subscriber' means a Person who lawfully receives Cable Service of the
Cable System with the Grantee's express permission.
Ordinance No. 1534, Page 3 of 33
SECTION 2
Grant of Franchise
2.1 Grant. The Franchising Authority hereby grants to the Grantee a nonexclusive
Franchise which authorizes the Grantee to construct and operate a Cable System 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 such facilities and equipment as may be necessary or
appurtenant to the Cable System.
2.2 Other Ordinances. The Grantee agrees to comply with all applicable
ordinances of the Franchising Authority including, without limitation thereto, the
Franchising Authority's right -of -way management ordinance. Neither party may
unilaterally alter the material rights and obligations set forth in this franchise. In the
event of a conflict between any ordinance and this Franchise, the Franchise shall
control, provided however that the Grantee agrees that it is subject to the lawful
exercise of the police power of the Franchising Authority.
2.3 Term. The Franchise granted hereunder shall be for an initial term of five (5)
years commencing on the effective date of the Franchise as set forth in subsection
12.6, unless otherwise lawfully terminated in accordance with the terms of this
Franchise.
2.4 Favored Nations. In the event the Franchising 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 comparable 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.
SECTION 3
Standards of Service
3.1 Conditions of Occupancy. The Cable System installed by the Grantee
pursuant to the terms hereof shall be located so as to cause a minimum of interference
with the proper use of Public Ways and with the rights and reasonable convenience of
property owners who own property that adjoins any of such Public Ways.
3.2 Restoration of Public Ways. If during the course of the Grantee's construction,
operation, or maintenance of the Cable System there occurs a disturbance of any
Public Way by the Grantee, at its expense, shall replace and restore such Public Way
Ordinance No. 1534, Page 4 of 33
3.3 Relocation for the Franchising Authority. Upon its receipt of reasonable
advance written notice, to be not less than five (5) business days, the Grantee shall at
its expense protect, support, raise, lower, temporarily disconnect, relocate in or remove
from the Public Way, any property of the Grantee when required by the Franchising
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 public structures or improvements which
are not used to compete with the Grantee's services. The Grantee shall in all cases
have the right of abandonment of its property.
3.4 Relocation for a Third Party. The Grantee shall, on the request of any Person
holding a lawful permit issued by the Franchising Authority, protect, support, raise,
lower, temporarily disconnect, relocate in or remove from the Public Way as necessary
any property of the Grantee, provided: (A) the expense of such is paid by said Person
benefiting from the relocation, including, if required by the Grantee, making such
payment in advance; and (B) the Grantee is given reasonable advance written notice to
prepare for such changes. For purposes of this subsection, "reasonable advance
written notice" shall be no less than ten (10) business days in the event of a temporary
relocation, and no less than one hundred twenty (120) days for a permanent relocation.
3.5 Trimming of Trees and Shrubbery. The Grantee shall have the authority to
trim trees or other natural growth in order to access and maintain the Cable System.
The Grantee shall reasonably compensate the Franchising Authority or property owner
for any damages caused by such trimming.
3.6 Safety Requirements. Construction, operation, and maintenance of the Cable
System shall be performed in an orderly and workmanlike manner. All such work shall
be performed in substantial accordance with generally applicable federal, state, and
local regulations and the National Electric Safety Code. The Cable System shall not
endanger or, unreasonably interfere with the safety of Persons or property in the
Service Area.
3.7 Underground Construction. In those areas of the Service Area where all of the
transmission or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, the Grantee likewise
shall construct, operate, and maintain its Cable System underground. Nothing
contained in this subsection shall require the Grantee to construct, operate, and
maintain underground any ground- mounted appurtenances.
3_8 Required Extensions of the Cable System. Grantee agrees to provide Cable
Service to all residences in the Service Area subject to the density requirements
specified in this subsection. Whenever the Grantee receives a request for Cable
Service from a potential Subscriber in a contiguous unserved area where there are at
least ten (10) residences within one thousand three - hundred and twenty (1320) cable -
bearing strand feet (one - quarter cable mile) from the portion of the Grantee's trunk or
distribution cable which is to be extended, it shall extend its Cable System to such
Subscribers at no cost to said Subscribers for the Cable System extension, other than
Ordinance No. 1534, Page 5 of 33
the published Standard /non- Standard Installation fees charged to all Subscribers.
Notwithstanding the foregoing, the Grantee shall have the right, but not the obligation,
to extend the Cable System into any portion of the Service Area where another
operator is providing Cable Service, into any annexed area which is not contiguous to
the present Service Area of the Grantee, or into any area which is financially or
technically infeasible due to extraordinary circumstances, such as a runway or freeway
crossing.
3.9 Subscriber Charges for Extensions of the Cable System. No Subscriber
shall be refused service arbitrarily. However, if an area does not meet the density
requirements of subsection 3.9 above, the Grantee shall only be required to extend the
Cable System to Subscribers in that area if the Subscribers are willing to share the
capital costs of extending the Cable System. Specifically, the Grantee shall contribute
a capital amount equal to the construction cost per mile, multiplied by a fraction whose
numerator equals the actual number of residences per one thousand three hundred
twenty (1320) cable- bearing strand feet from the Grantee's trunk or distribution cable,
and whose denominator equals ten (10). Subscribers who request service hereunder
shall bear the remaining cost to extend the Cable System on a pro rata basis. The
Grantee may require that payment of the capital contribution in aid of construction
borne by such potential Subscribers be paid in advance. Subscribers shall also be
responsible for any Standard /non- Standard Installation charges to extend the Cable
System from the tap to the residence.
3.10 Cable Service to Public Buildings. The Grantee, upon request, shall provide
without charge, a Standard Installation and one outlet of Basic and Expanded Basic
Cable Service to those administrative buildings owned and occupied by the Franchising
Authority, fire station(s), police station(s), and K -12 public school(s) that are passed by
its Cable System. The Cable Service provided shall not be distributed beyond the
originally installed outlet without authorization from the Grantee. The Cable Service
provided shall not be used for commercial purposes, and such outlets shall not be
located in areas open to the public. The Franchising Authority shall take reasonable
precautions to prevent any use of the Grantee's Cable System in any manner that
results in the inappropriate use thereof or any loss or damage to the Cable System.
The Franchising Authority shall hold the Grantee harmless from any and all liability or
claims arising out of the provision and use of Cable Service required by this
subsection. The Grantee shall not be required to provide an outlet to such buildings
where a non - Standard Installation is required, unless the Franchising Authority or
building owner /occupant agrees to pay the incremental cost of any necessary Cable
System extension and /or non - Standard Installation. If additional outlets of Basic Cable
are provided to such buildings, the building owner /occupant shall pay the usual
installation fees associated therewith.
3.11 Reimbursement of Costs. If funds are available to any Person using the Public
Way for the purpose of defraying the cost of any of the foregoing, the Franchising
Authority shall reimburse the Grantee in the same manner in which other Persons
affected by the requirement are reimbursed. If the funds are controlled by another
Ordinance No. 1534, Page 6 of 33
governmental entity, the Franchising Authority shall make application for such funds on
behalf of the Grantee.
3.12 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 time with all other applicable
federal, state and City Ordinances, and all executive and administrative regulations,
rules, and orders relating to nondiscrimination.
3.13 Privacy Protections. The Grantee shall operate the System in a manner
consistent with the privacy requirements of Section 631 of the Cable Act. At the time
the Grantee initially provides cable service to a Subscriber and at least once a year
thereafter, the Grantee's information collection and disclosure policies, as required by
Section 631 of the Cable Act.
3.14 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.
3.15 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 existing and as hereafter adopted by the F.C.C. and shall
comply with all applicable federal, state and City Ordinances.
SECTION 4
Customer Service
4.1 Customer Service. Grantee shall comply with the customer service standards
included in Exhibit "A ". These standards shall apply to the Grantee and any Affiliates of
Grantee to the extent they are providing Cable Services over the Cable System.
SECTION 5
Regulation by the Franchising Authority
5.1 Franchise Fee.
A. The Grantee shall pay to the Franchising Authority a franchise fee of five
percent (5 %) of annual Gross Revenue (as defined in subsection 1.1 of this Franchise).
In accordance with the Cable Act, the twelve (12) month period applicable under the
Franchise for the computation of the franchise fee shall be a calendar year. The
Ordinance No. 1534, Page 7 of 33
franchise fee payment shall be due and payable within forty -five days after the close of
the preceding calendar quarter. Each payment shall be accompanied by a brief report
prepared by a representative of the Grantee showing the basis for the computation.
Grantee reserves the right to provide franchise fee reporting in a format consistent with
franchise fee reporting to other local franchising authorities.
B. Limitation on Franchise Fee Actions. The period of limitation for recovery
of any franchise fee payable hereunder shall be four (4) years from the date on which
payment by the Grantee is due.
5.2 Rates and Charges. The Franchising Authority may regulate rates for the
provision of Basic Cable and equipment as expressly permitted by federal or state law.
5.3 Renewal of Franchise.
A. 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 626 of the
Cable Act.
B. In addition to the procedures set forth in said Section 626(a), the
Franchising Authority agrees to notify the Grantee of all of its assessments regarding
the identity of future cable - related community needs and interests, as well as the past
performance of the Grantee under the then current Franchise term. The Franchising
Authority further agrees that such assessments shall be provided to the Grantee
promptly so that the Grantee has adequate time to submit a proposal under Section
626(b) of the Cable Act and complete renewal of the Franchise prior to expiration of its
term.
C. Notwithstanding anything to the contrary set forth in this subsection 4.3,
the Grantee and the Franchising Authority agree that at any time during the term of the
then current Franchise, while affording the public appropriate notice and opportunity to
comment, the Franchising Authority and the Grantee may agree to undertake and
finalize informal negotiations regarding renewal of the then current Franchise and the
Franchising Authority may grant a renewal thereof.
5.4 Transfer of Franchise.
A. This Franchise shall be a privilege personal to the Grantee and shall not be
assigned or transferred, or otherwise encumbered, in whole or in part, without the prior
consent of the Franchising Authority expressed by resolution or ordinance, and then
only under such conditions as may be lawfully prescribed therein. Within thirty (30)
days of receiving the request for transfer, the Franchising Authority shall notify the
Grantee in writing of the information it requires to determine the legal, financial, and
technical qualifications of the transferee. If the Franchising Authority has not taken
action on the Grantee's request for transfer within one hundred twenty (120) days after
receiving such request and provided the Franchising Authority has promptly received
Ordinance No. 1534, Page 8 of 33
from Grantee the information it requested in connection with the request, consent by
the Franchising Authority shall be deemed given. No assignment to any Person shall
be effective until the transferee has filed with the Franchising Authority an instrument in
writing, duly executed, reciting the fact of such assignment, accepting the terms of this
Franchise, and agreeing to comply with all of the provisions hereof, subject to
applicable law.
B. The Grantee shall promptly notify the Franchising Authority of any actual or
proposed change in, or transfer of, or disposition or acquisition by any other Person in
Control of the Grantee. Every change, transfer, or acquisition of Control of the Grantee
shall make the Franchise subject to cancellation unless and until the Franchising
Authority shall have consented thereto by resolution or ordinance provided that the
Franchising Authority has acted within the time constraints required by law. For the
purpose of determining whether it shall consent to such change, transfer, disposition,
or acquisition of Control, the Franchising Authority may inquire into the legal, financial,
and technical qualifications of the prospective Controlling party, but shall do so within
thirty (30) days of receipt of the requested transfer from the Grantee. Grantee shall
assist the Franchising Authority in such inquiry and will respond within ten (10) days
unless a longer time is reasonable necessary to respond or allowed by law.
C. The Grantee and the Franchising Authority consider the terms set forth in
this subsection 5.4 to be consistent with the express provisions of Section 626 of the
Cable Act. Notwithstanding the foregoing, no further consent shall be required for the
Change of Control of Grantee and its parent company, AT &T Corp. to AT &T Comcast
Corporation pursuant to the Agreement and Plan of Merger dated December 19, 2001
and for any internal restructuring occurring in connection therewith.
5.5 Conditions of Sale. If a renewal or extension of the Grantee's Franchise is
denied or the Franchise is lawfully terminated, and the Franchising Authority either
lawfully acquires ownership of the Cable System or by its actions lawfully effects a
transfer of ownership of the Cable System to another party, any such acquisition or
transfer shall be at the price determined pursuant to the provisions set forth in Section
627 of the Cable Act.
The Grantee and the Franchising Authority agree that in the case of a final
determination of a lawful revocation of the Franchise, the Grantee shall be given at
least six (6) months to effectuate a transfer of its Cable System to a qualified third
party. Furthermore, the Grantee shall be authorized to continue to operate pursuant to
the terms of its prior Franchise during this period. If, at the end of that time, the
Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable
System that is reasonably acceptable to the Franchising Authority, the Grantee and the
Franchising Authority may avail themselves of any rights they may have pursuant to
federal or state law. It is further agreed that the Grantee's continued operation of the
Cable System during the six (6) month period shall not be deemed to be a waiver, nor
an extinguishment of, any rights of either the Franchising Authority or the Grantee.
Ordinance No. 1534, Page 9 of 33
SECTION 6
Governmental Access Channel
6.1 Access Channels. Grantee shall continue to provide one (1) downstream
channel for purposes of Governmental Access. The Grantee agrees that within two (2)
years from the effective date of this agreement it will provide one (1) additional
dedicated Access Channel.
6.2 Return Lines. Grantee shall continue to provide one (1) channel for upstream
channel capacity and equipment to enable the Franchising Authority to disseminate
Government Access programming over the Cable System to Subscribers. Grantee
shall provide additional upstream channel capacity and equipment to transmit
Government Access channel content from additional sites as may identified by the
Franchising Authority within one hundred twenty (120) days of said request, provided
that the Franchising Authority is responsible for the direct costs of all construction and
equipment. Grantee shall provide the Franchising Authority with an estimate of the
construction and equipment costs prior to beginning construction of any new return
line. Grantee shall not be responsible for constructing any new return line until the
Franchising Authority has approved such costs in writing.
6.3 Government Access Channel Support.
A. Within thirty (30) days written request of the Franchise Authority, Grantee
shall provide to the Franchising Authority a grant in the amount of $30,000
which may be used to purchase a character generator and /or video
production equipment.
B. Within thirty (30) days written request of the Franchising Authority, Grantee
shall collect and remit to the Franchising Authority up to forty cents ($.40) per
month per residential Subscriber as capital support for the Government
Access Channel ( "Government Access Capital Fee ") so long as Government
Access programming is provided by the Franchising Authority on a continuing
basis. Grantee shall not be responsible for collecting or paying the
Government Access Capital Fee on gratis accounts or for Subscribers
covered by bulk agreements. Each payment shall be due and payable no
later than forty -five (45) days following the end of each calendar quarter from
when the Government Access Capital Fee takes effect.
C. At such time the Franchising Authority decides to telecast City Council meetings,
Grantee will, upon request of the City, provide up to twenty hours of technical
and /or production support to facilitate the implementation of such telecasts.
6.4 Use of Government Access Funds. The Franchising Authority shall have the
authority to distribute and re- distribute the Government Access Capital Fee in a manner
that is deemed by the Franchising Authority to be in the best interest of the Subscribers
with respect to Government Access Programming in accordance with applicable law.
Ordinance No. 1534, Page 10 of 33
6.5 Initial Production Support. For a period not to exceed one (1) year the
Franchising Authority may, upon five days notice, use Grantee's studio facilities up to
four (4) hours per month to produce and disseminate Government Access
programming. Such time will be made available at a rate not to exceed $200 per hour.
No later that one year from the effective date of the Franchise Agreement, the
Franchising Authority or its designee shall assume full responsibility for the origination
and administration of all programming offered on the Franchising Authority's access
channels.
6.6 Other Financial Support. The Franchising Authority may obtain underwriting for
the Government Access Programming that it produces, but may not exhibit commercial
advertising on the Government Access Channel.
6.7 Indemnification for Government Access Channel. The Franchising Authority
agrees to-indemnify, save and hold harmless the Grantee from and against any and all
liability resulting from the use of the Grantee's channels by the Franchising Authority or
its designee.
SECTION 7
Emergency Alert Service
7.1 Emergency Use. Subject to the requirements of federal law, any Emergency
Alert System ( "EAS "), then the Franchising Authority 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 Franchising Authority
shall hold the Grantee, its employees, officers and assigns harmless from any claims
arising out of use of the EAS, including, but not limited to, reasonable attorneys' fees
and costs.
SECTION 8
Books and Records
8.1 Review of Books and Records The Grantee agrees that the Franchising
Authority, upon ten (10) days written notice to the Grantee, may review such of its
books and records at the Grantee's business office, during normal business hours and
on a nondisruptive basis, as is reasonably necessary to ensure compliance with the
terms of this Franchise. Such notice shall specifically reference the subsection of the
Franchise that is under review, so that the Grantee may organize the necessary books
and records for easy access by the Franchising Authority. Alternatively, if the books
and records are not easily accessible at the local office of the Grantee, the Grantee
may, at its sole option, choose to pay the reasonable travel costs of the Franchising
Authority's representative to view the books and records at the appropriate location.
Ordinance No. 1534, Page 11 of 33
The Grantee shall not be required to maintain any books and records for Franchise
compliance purposes longer than four (4) years. Notwithstanding anything to the
contrary set forth herein, the Grantee shall not be required to disclose information that
it reasonably deems to be proprietary or confidential in nature, nor disclose books and
records of any affiliate that is not providing Cable Service in the Service Area. The
Franchising Authority agrees to treat any information disclosed by the Grantee 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. The Grantee
shall not be required to provide Subscriber information in violation of Section 631 of the
Cable Act.
8.2 Communications with Regulatory Agencies. Upon reasonable request,
Grantee shall provide the Franchising Authority or its attorneys with copies of (i) all
documents which Grantee sends to the FCC (or any similar agencies having jurisdiction
over the Grantee), which are related to this Ordinance, (ii) all records required to be
maintained by Grantee under Section 76 of the FCC regulations (47 C.F.R. Part 76) or
successor sections, and (iii) all pleadings submitted by Grantee in any lawsuit
regarding the validity of statutes or regulations, whether federal, state or local which
are related to this Ordinance. Grantee shall make representation available to respond
to Council and /or City Manager's questions.
8.3 Audits. The Franchising Authority shall have authority to arrange for and
conduct, at the Franchising Authority's expense, an audit of and to inspect the books
and records of the Grantee. The Grantee shall be given at least five (5) days notice of
the audit request, a description of and purpose for the audit, and a description, to the
best of the Franchising Authority's ability, of books, records and documents the
Franchising Authority wants to review. Grantee shall maintain the books and records
for Franchise compliance purposes for a period of three (3) years. 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 Authority upon
request therefore accompanied by an invoice reflecting an itemization of the costs of
such audit.
SECTION 9
Insurance and Indemnification
9.1 Insurance Requirements. The Grantee shall maintain, throughout the term of
the franchise, liability insurance naming the Franchising Authority and its officers,
boards, commissions, 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:
(a) One Million Dollars ($1,000,000.00) for bodily injury or death to each Person;
(b) One Million Dollars ($1,000,000.00) for property damage resulting from any
one accident;
(c) Three Million Dollars ($3,000,000.00) in an umbrella policy covering bodily
injury, death and property damage; and
Ordinance No. 1531 Page 12 of 33
(d) One Million Dollars ($1,000,000.00) for all other types of liability.
The Grantee shall also 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.
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.
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
forth (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 non - renewal, 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. The insurance policies required by this
Section shall be maintained 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.
9.2 Indemnification. The Grantee agrees to indemnify, save and hold harmless,
and defend the Franchising Authority, its officers, boards and employees, from and
against any liability for damages and for any liability or claims resulting from property
damage or bodily injury (including accidental death), which arise out of the Grantee's
construction, operation, or maintenance of its Cable System, provided that the
Franchising Authority shall give the Grantee written notice of its obligation to indemnify
the Franchising Authority within ten (10) days of receipt of a claim or action pursuant to
this subsection. Notwithstanding the foregoing, the Grantee shall not indemnify the
Franchising Authority for any damages, liability or claims resulting from the willful
misconduct or negligence of the Franchising Authority.
SECTION 10
Performance Review
10.1 Reviews. The Franchising Authority reserves the right to adopt rules and
regulations controlling the procedures and subjects for periodic reviews and
Ordinance No. 1534, Page 13 of 33
evaluations of the Grantee and the System. 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 twenty -four month period, or as required
by federal or state law. To assist in its review and evaluations, the Franchising
Authority may, at the Franchising Authority's expense, enlist an independent consultant
to conduct an analysis of the System and it 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,
Subscriber complaints, privacy amendments, subsequent legal developments, including
judicial and FCC rulings, and Grantee or Franchising Authority rules. During a review
and evaluation by the Franchising Authority the Grantee shall fully cooperate with the
Franchising Authority and shall provide, without cost, such information and documents
as the City Manager of the Franchising Authority may reasonably request. In the event
any such System performance evaluation determines that Grantee is not in compliance
herewith, all costs and expenses reasonably incurred by Franchising 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.
SECTION 11
Enforcement and Termination of Franchise
11.1 Notice of Violation. In the event that the Franchising Authority believes that the
Grantee has not complied with the terms of the Franchise, the Franchising Authority
shall informally discuss the matter with Grantee. If these discussions do not lead to
resolution of the problem, the Franchising Authority shall notify the Grantee in writing of
the exact nature of the alleged noncompliance.
11.2 The Grantee's Right to Cure or Respond. The Grantee shall have thirty (30)
days from receipt of the notice described in subsection 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.
11.3 Public Hearing. In the event that the Grantee fails to respond to the notice
described in subsection 7.1 pursuant to the procedures set forth in subsection 7.2, or in
the event that the alleged default is not remedied within thirty (30) days or the date
projected pursuant to 7.2(C) above, if it intends to continue its investigation into the
default, then the Franchising Authority shall schedule a public hearing. The Franchising
Authority shall provide the Grantee at least ten (10) days prior written notice of such
hearing, which specifies the time, place and purpose of such hearing, and provide the
Grantee the opportunity to be heard.
Ordinance No. 1534, Page 14 of 33
11.4 Enforcement. Subject to applicable federal and state law, in the event the
Franchising Authority, after the hearing set forth in subsection 7.3, determines that the
Grantee is in default of any provision of the Franchise, the Franchising Authority may:
A. Seek specific performance of any provision, which reasonably lends itself
to such remedy, as an alternative to damages; or
B. Commence an action at law for monetary damages or seek other
equitable relief; or
C. In the case of a substantial default of a material provision of the
Franchise, seek to revoke the Franchise in accordance with subsection 7.5.
11.5 Revocation. Should the Franchising Authority seek to revoke the Franchise
after following the procedures set forth in subsections 7.1 -7.4 above, the Franchising
Authority shall give written notice to the Grantee of its intent. The notice shall set forth
the exact nature of the noncompliance. The Grantee shall have thirty (30) days from
such notice to object in writing and to state its reasons for such objection. In the event
the Franchising Authority has not received a satisfactory response from the Grantee, it
may then seek termination of the Franchise at a public hearing. The Franchising
Authority shall cause to be served upon the Grantee, at least ten (10) days prior to
such public hearing, a written notice specifying the time and place of such hearing and
stating its intent to revoke the Franchise.
At the designated hearing, Grantee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce
relevant evidence, to require the production of evidence, to compel the relevant
testimony of the officials, agents, employees or consultants of the Franchising
Authority, to compel the testimony of other persons as permitted by law, and to
question witnesses. A complete verbatim record and transcript shall be made of such
hearing.
Following the hearing, the Franchising Authority shall determine whether or not
the Franchise shall be revoked. If the Franchising Authority determines that the
Franchise shall be revoked, the Franchising Authority shall promptly provide Grantee
with its decision in writing. Grantee shall not waive any rights to seek appeal under
state and federal law.
The Franchising Authority may, at its sole discretion, take any lawful action,
which it deems appropriate to enforce the Franchising Authority's rights under the
Franchise in lieu of revocation of the Franchise.
11.6 Force Maieure. The Grantee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or
penalty relating to noncompliance or default, where such noncompliance or alleged
defaults occurred or were caused by circumstances reasonably beyond the ability of
the Grantee to anticipate and control. This provision includes work delays caused by
waiting for utility providers to service or monitor their utility poles to which the Grantee's
Ordinance No. 1534, Page 15 of 33
Cable System is attached, as well as unavailability of materials and /or qualified labor to
perform the work necessary.
Furthermore, the parties hereby agree that it is not the Franchising Authority's
intention to subject the Grantee to penalties, fines, forfeitures or revocation of the
Franchise for violations of the Franchise where the violation was a good faith error that
resulted in no or minimal negative impact on the Subscribers within the Service Area,
or where strict performance would result in practical difficulties and hardship to the
Grantee which outweigh the benefit to be derived by the Franchising Authority and /or
Subscribers.
SECTION 12
Miscellaneous Provisions
12.1 Actions of Parties. In any action by the Franchising Authority or the Grantee
that is mandated or permitted under the terms hereof, such party shall act in a
reasonable, expeditious, and timely manner. Furthermore, in any instance where
approval or consent is required under the terms hereof, such approval or consent shall
not be unreasonably withheld.
12.2 Entire Agreement. This Franchise constitutes the entire agreement between
the Grantee and the Franchising Authority. Amendments to this Franchise shall be
mutually agreed to in writing by the parties.
12.3 Notice. Unless expressly otherwise agreed between the parties, every notice or
response required by this Franchise to be served upon the Franchising Authority or the
Grantee shall be in writing, and shall be deemed to have been duly given to the
required party when placed in a properly sealed and correctly addressed envelope: a)
upon receipt when hand delivered with receipt/acknowledgment, b) upon receipt when
sent certified, registered mail, or c) within five (5) business days after having been
posted in the regular mail.
The notices or responses to the Franchising Authority shall be addressed as follows:
City of Euless
201 N. Ector Dr.
Euless, Texas 76039
with a copy to:
Bob McFarland
Cribbs and McFarland
1000 W. Abram
Arlington, Texas 76013
The notices or responses to the Grantee shall be addressed as follows:
TCI TKR of the Metroplex, Inc.
Attn:Franchising Department
2951 Kinwest Parkway.
Irving, Texas 75063
Ordinance No. 1534, Page 16 of 33
with a copy to:
AT &T Broadband
Law & Government Affairs
188 Inverness Drive West, Suite 600
Englewood, CO 80112
The Franchising Authority and the Grantee may designate such other address or
addresses from time to time by giving notice to the other in the manner provided for in
this subsection.
12.4 Descriptive Headings. The captions to Sections and subsections contained
herein are intended solely to facilitate the reading thereof. Such captions shall not
affect the meaning or interpretation of the text herein.
12.5 Severability. If any Section, subsection, 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,
subsection, sentence, paragraph, term or provision hereof, all of which will remain in
full force and effect for the term of the Franchise.
12.6 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 Ordinance shall be the thirtieth (30) day after its
passage and final adoption.
Considered and approved this 13th day of August 12002 .
City of Euless, Texas
Signature
Name/Title:-Mary Lib Saleh, Mayor
Accepted this30th day of August 2002 , subject to applicable
federal, state and local law.
TCI TKR of the Metroplex Inc.
Signatum/ :: -
Name/Titler-5�/9,
Ordinance No. 1534, Page 17 of 33
EXHIBIT A
CUSTOMER SERVICE STANDARDS
These standards shall apply to the Grantee and any Affiliates of Grantee to the extent they
are providing Cable Services over the Cable System.
SECTION 1: DEFINITIONS
A. Outage: A Service Interruption affecting multiple Subscribers in a contiguous area that
has the same source problem.
B. Service Call: The action taken by the Grantee to correct a Service Interruption
affecting an individual Subscriber.
C. Service Interruption: The loss of picture or sound on one or more Channels.
D. Standard Installation: Installations where the length of the Drop is up to one
hundred twenty -five (125) feet.
SECTION 2: TELEPHONE AVAILABILITY
A. The Grantee shall maintain a toll -free number to respond to all calls and inquiries from
Subscribers in the Franchise Area and /or City residents regarding Cable Service.
Grantee representatives trained and qualified to answer questions related to Cable
Service in the Franchise Area must be available to receive requests for Service Calls or
report Outages twenty -four (24) hours a day, seven (7) days a week, and other inquiries
at least forty-five (45) hours per week, including some evening and weekend hours.
Grantee representatives shall identify themselves by name when answering this
number.
B. The Grantee's telephone numbers shall be listed, with appropriate description (e.g.
administration, customer service, billing, repair, etc.), in the directory published by the
local telephone company or companies serving the Franchise Area.
C. In the event that the Grantee chooses to use an Automated Response Unit ( "ARU ") or a
Voice Response Unit ( "VRU ") to distribute calls, the system shall have as a first tier
menu option (not including a routing option for foreign language), an option "for all other
inquiries." If a foreign language routing option is provided, and the Subscriber does not
enter an option, the menu will default to the first tier menu of English options.
After the first tier menu (not including a foreign language routing option) has run
through twice, if customers do not select any option, the ARU or VRU will forward
the call to a queue for a live representative. The Grantee may reasonably
substitute this requirement with another method of handling calls from customers
who do not have touch -tone telephones.
Ordinance No. 1534, Page 18 of 33
The total elapsed time between when a Subscriber's call is first answered by an
ARU or VRU to the end of the last tier menu shall not be longer than ninety (90)
seconds. For purposes of this subsection, the "last tier menu" is the last tier before
the Subscriber is routed to a live representative, or specific information is given to
the Subscriber, such as instructions for troubleshooting or directions to an office.
The City may review the options provided to callers and recommend to the Grantee
that additional options be provided. The Grantee shall consider the City's
recommendations.
D. Under Normal Operating Conditions, calls received by the Grantee shall be
answered within thirty (30) seconds after the Subscriber has selected their final
menu option. The Grantee shall meet this standard for ninety percent (90 %) of the
calls it receives, as measured on a calendar quarter basis. Measurement of this
standard shall include all calls received by the Grantee, whether they are answered
by a live representative, automated attendant, or abandoned before completion.
If the Grantee does not meet the ninety percent (90 %) standard described in this
Paragraph D. during any calendar quarter, liquidated damages may be assessed
by the City against the Grantee as follows:
• Any quarter where the Grantee performs equal to or greater than eighty -five (85 %)
and less than ninety percent (90 %), the Grantee shall pay the City one hundred
dollars ($100).
• Any quarter where the Grantee performs equal to or greater than seventy -five
percent (75 %) and less than eighty -five percent (85 %), the Grantee shall pay the
City three hundred dollars ($300).
• Any quarter where the Grantee performs equal to or greater than sixty -five percent
(65 %) and less than seventy -five percent (75 %), the Grantee shall pay the City one
thousand dollars ($1,000).
• Any quarter where the Grantee performs less than sixty -five percent (65 %), the
Grantee shall pay the City two thousand dollars ($2,000).
For any consecutive quarter(s) in which the Grantee performs at a level below
ninety percent (90 %), the Grantee shall pay the City the amount listed above for
the most recent quarter, plus the amount paid to the City for the previous
quarter. For example, if the Grantee performs at seventy -nine percent (79 %) one
quarter and sixty percent (60 %) in the next quarter, the Grantee shall pay the
City three hundred dollars ($300) for the first quarter and two thousand three
hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the
previous quarter] for the second quarter. If Grantee continues to have a 60%
performance in the third quarter, the payment shall be four thousand three
hundred dollars ($4,3.00)[$2,000 for the most recent quarter and $2,300 for the
pervious quarter.]
Ordinance No. 1534, Page 19 of 33
E. Under Normal Operating Conditions, callers to the Grantee shall receive a busy signal
less than three (3 %) percent of the time during any calendar quarter.
F. Not more than thirty (30) days after the end of each calendar quarter, the Grantee
shall report to the City the following for all call centers receiving calls from
Subscribers except for temporary telephone numbers set up for national
promotions:
• total number of calls received by the Grantee
• number of calls answered by these categories: live representative, automated
attendant, and abandoned
• number of calls answered within thirty (30) seconds
• percentage of calls answered within thirty (30) seconds
percentage of time all trunks were busy-
The material substance of the report shall be in a form reasonably acceptable to
the City. If the City does not receive the quarterly calls report when due, the City
shall give notice to the Grantee. The Grantee shall be assessed liquidated
damages in the amount of fifty dollars ($50) per day for every day following
receipt of the notice that the report is not provided to the City. The Grantee shall
not be assessed liquidated damages for failure to report on statistics which
cannot be produced for reasons outside of its control, provided that the Grantee
supplies an explanation to the City as to why the statistics required herein could
not be produced.
G. The Grantee shall notify the City's designee as promptly as possible, by any available
means, whenever there is a situation that prevents all Subscribers from being able to
reach the Grantee by telephone. For failure to so notify the City, Grantee shall pay
liquidated damages of two hundred fifty dollars ($250) to the City.
H. At the Grantee's option, the measurements and reporting above may be changed
from calendar quarters to billing or accounting quarters. The Grantee shall notify
the City of such a change at least thirty (30) days in advance of any
implementation.
SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS
A. All installations will be in accordance with FCC rules, including but not limited to,
appropriate grounding, connection of equipment to ensure reception of Cable
Service, and the provision of required consumer information and literature to
adequately inform the Subscriber in the utilization of the Grantee - supplied
equipment and Cable Services.
Ordinance No. 15341 Page 20 of 33
B. Under Normal Operating Conditions, Standard Installations shall be performed
within seven (7) days after an order has been placed, except when a Subscriber
has specifically requested an installation date later than seven (7) days after order
placement.
The Company shall meet this standard for ninety percent (90 %) of the Standard
Installations it performs, as measured on a calendar quarter basis, excepting out
customer requests for connection later than seven (7) days after order placement.
If the Grantee does not meet the ninety percent (90 %) standard described in this
Paragraph B. during any calendar quarter, liquidated damages may be assessed
by the City against the Grantee as follows:
• Any quarter where the Grantee performs equal to or greater than eighty -five
(85 %) and less than ninety percent (90 %), the Grantee shall pay the City one
hundred dollars ($100).
• Any quarter where the Grantee performs equal to or greater than seventy -five
percent (75 %) and less than eighty -five percent (85 %), the Grantee shall pay
the City three hundred dollars ($300).
• Any quarter where the Grantee performs equal to or greater than sixty -five
percent (65 %) and less than seventy -five percent (75 %), the Grantee shall
pay the City one thousand dollars ($1,000).
• Any quarter where the Grantee performs less than sixty -five percent (65 %),
the Grantee shall pay the City two thousand dollars ($2,000).
For any consecutive quarter(s) in which the Grantee performs at a level below
ninety percent (90 %), the Grantee shall pay the City the amount listed above for
the most recent quarter, plus the amount paid to the City for the previous
quarter. For example, if the Grantee performs at seventy -nine percent (79 %) one
quarter and sixty percent (60 %) in the next quarter, the Grantee shall pay the
City three hundred dollars ($300) for the first quarter and two thousand three
hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the
previous quarter] for the second quarter. If Grantee continues to have a 60%
performance in the third quarter, the payment shall be four thousand three
hundred dollars ($4,300)[$2,000 for the most recent quarter and $2,300 for the
pervious quarter.]
In addition, any individual Subscriber who does not have their Standard
Installation completed within the seven (7) day period shall be entitled to receive
a free Standard Installation upon request, excepting out Subscribers who
request installation later than seven (7) days after order placement.
C. The Grantee shall provide the City with a report within thirty (30) days following the
end of each calendar quarter, noting the following:
Ordinance No. 1534, Page 21 of 33
• number of total Standard Installations completed for the quarter, excluding those
requested outside of the seven (7) period by the Subscriber
• number of Standard Installations completed within the seven (7) day period
number of Standard Installations not completed within the seven (7) day period
• percentage of Standard Installations completed within the seven (7) day period,
excluding those requested outside of the seven (7) day period by the Subscriber
At the Grantee's option, the measurements and reporting above may be
changed from calendar quarters to billing or accounting quarters. The Grantee
shall notify the City of such a change not less than thirty (30) days in advance.
D. The Grantee will offer Subscribers "appointment window' alternatives for
installations, Service Calls, and other installation activities of a maximum four (4)
hour scheduled time block between the hours of 8:00 a.m. and 7:00 p.m. except
during months where available light does not permit appointments after 6:00 p.m..
At the Grantee's discretion, the Grantee may offer Subscribers appointments other
than these four (4) hour time blocks if agreeable to the Subscriber. The Grantee
may offer to schedule Subscriber appointments for a specific time and shall
schedule the Subscriber to be the first call of the day or last call of the day if
requested by the Subscriber and warranted by the circumstances. The Grantee
shall also perform some Service Calls outside of the hours specified above in the
evenings and on weekends.
E. At the request of the Subscriber, the Grantee will call the Subscriber prior to an
installation or Service Call appointment. The call shall be made by the Grantee at
the approximate time and to the telephone number requested by the Subscriber.
F. At the time this Franchise was entered into, Grantee was voluntarily participating in
the industry "On -Time Guarantee' program. Under the terms of that program, if the
Grantee does not arrive for an installation or Service Call appointment within the
scheduled time frame agreed to with the Subscriber, the Subscriber is entitled to
receive either a free Standard Installation in the event of an installation
appointment, or a $20.00 credit in the event of a missed Service Call appointment.
Calling a Subscriber during the appointment window does not negate the
Subscriber's entitlement to credit for a missed appointment. The Grantee will
participate in this program and reserves the right to substitute another customer
service program for the "On -Time Guarantee" at its discretion, provided that the
Subscriber benefits are reasonably comparable to those provided by the current
program.
G. Under Normal Operating Conditions, the Grantee may not cancel an appointment
with a Subscriber after 6:00 p.m. on the business day prior to the day of the
scheduled appointment.
Ordinance No. 1534, Page 22 of 33
H. If the Grantee's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, the Grantee will
document an effort to contact the Subscriber directly. If, however, the Subscriber is
unavailable at the time the contact attempt is made, the Grantee will attempt at
least a second documented contact during the previously agreed upon appointment
window or before the specifically scheduled time. The appointment will be
rescheduled, as necessary, at a time which is mutually agreeable.
I. If it is necessary to place a temporary Drop on the ground, the Grantee shall bury
the temporary Drop within ten (10) business days, under Normal Operating
Conditions. The ten (10) day period shall be extended for days that the Grantee is
unable to bury the Drop due to unfavorable weather conditions.
SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES
A. The Grantee shall make repairs promptly, and interrupt Cable Service only as
necessary and for the shortest time period possible. Unless otherwise required by
law or approved by the City, the Grantee will not schedule routine testing or
maintenance which would cause a Service Interruption or Outage on Friday,
Saturday or Sunday night.
B. The Grantee shall promptly notify the City of any significant Outage of the Cable
System. For the purposes of this section, a significant Outage of the Cable System
shall mean any Service Interruption lasting at least four (4) continuous hours that
affects at least ten percent (10 %) of the Subscribers in the Franchise Area.
C. The Grantee shall exercise its best efforts to limit any Outage for the purpose of
maintaining, repairing, or constructing the Cable System. Except in an emergency
or other situation necessitating a more expedited or alternative notification
procedure, the Grantee may schedule an Outage for a period of more than four (4)
hours during any twenty -four (24) hour period only after the City and each affected
Subscriber in the City have been given fifteen (15) days prior notice of the
proposed Outage.
D. Technicians employed by the Grantee who are capable of responding to Outages
must be available to respond twenty -four (24) hours a day, seven (7) days per
week.
E. Under Normal Operating Conditions, the Grantee must respond to a call or written
notice from a Subscriber regarding a Service Interruption within twenty -four (24)
hours. The Grantee must begin actions to correct all other Cable Service problems
the next business day after notification by the Subscriber or the City of a Cable
Service problem.
F. Under Normal Operating Conditions, the Grantee shall complete Service Calls
within seventy -two (72) hours after being notified of a Service Interruption, not
Ordinance No. 1534, Page 23 of 33
including situations where the Subscriber is not reasonably available for a Service
Call to correct the Service Interruption within the seventy -two (72) hour period.
G. The Grantee shall meet the standard in Paragraph F. of this Section for ninety
percent (90 %) of the Service Calls it completes, as measured on a quarterly basis.
If the Grantee fails to meet this standard during any calendar quarter, liquidated
damages may be assessed by the City against the Grantee as follows:
• Any quarter where the Grantee performs equal to or greater than eighty -five
(85 %) and less than ninety percent (90 %), the Grantee shall pay the City one
hundred dollars ($100).
• Any quarter where the Grantee performs equal to or greater than seventy -five
percent (75 %) and less than eighty -five percent (85 %), the Grantee shall pay
the City three hundred dollars ($300).
• Any quarter where the Grantee performs equal to or greater than sixty -five
percent (65 %) and less than seventy -five percent (75 %), the Grantee shall
pay the City one thousand dollars ($1,000).
• Any quarter where the Grantee performs less than sixty -five percent (65 %),
the Grantee shall pay the City two thousand dollars ($2,000).
For any consecutive quarter(s) in which the Grantee performs at a level below
ninety percent (90 %), the Grantee shall pay the City the amount listed above for
the most recent quarter, plus the amount paid to the City for the previous
quarter. For example, if the Grantee performs at seventy -nine percent (79 %) one
quarter and sixty percent (60 %) in the next quarter, the Grantee shall pay the
City three hundred dollars ($300) for the first quarter and two thousand three
hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the
previous quarter] for the second quarter. If Grantee continues to have a 60%
performance in the third quarter, the payment shall be four thousand three
hundred dollars ($4,300)[$2,000 for the most recent quarter and $2,300 for the
pervious quarter.]
H. The Grantee shall provide the City with a report within thirty (30) days following the
end of each calendar quarter, noting the following:
• number of total Service Calls completed for the quarter, not including Service
Calls where the Subscriber was reasonably unavailable for a Service Call within
the seventy -two (72) hour period
• number of Service Calls completed within the seventy -two (72) hour period
• percentage of Service Calls completed within the seventy -two (72) hour period,
not including Service Calls where the Subscriber was reasonably unavailable for
Ordinance No. 1534, Page 24 of 33
a Service Call within the seventy -two (72) hour period
At the Grantee's option, the measurements and reporting above may be
changed from calendar quarters to billing or accounting quarters. The Grantee
shall notify the City of such a change at least thirty (30) days in advance.
J. Under Normal Operating Conditions, the Grantee shall provide credit upon Subscriber
request to affected Subscriber(s) when all Channels received by that Subscriber are out
for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum,
a proportionate amount of the affected Subscriber(s) current monthly bill. In order to
qualify for the credit, the Subscriber must promptly report the problem and allow the
Grantee to verify the problem if requested by the Grantee.
K. Under Normal Operating Conditions, the Grantee shall provide a credit upon Subscriber
request to any Subscriber experiencing a Service Interruption of any Channel(s) for a
period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a
proportionate amount of the affected Cable Service. In order to qualify for the credit, the
Subscriber must promptly report the problem and allow the Grantee to verify the
problem if requested by the Grantee.
L. Under Normal Operating Conditions, if an outage affects all video programming
Cable Services in an area which serves more than ten percent (10 %) of total
Grantee Subscribers in the Franchise Area, for more than twenty -four (24)
consecutive hours, the Grantee shall issue an automatic credit to the affected
Subscribers in the amount of the value of Basic plus Expanded Basic Service for the
proportionate time the Cable Service was out. Such credit will be reflected on
Subscriber billing statements within forty -five (45) days following the outage. Such
credit under this provision does not negate the Subscriber's right to request
additional credit under items I. and J. herein.
M. With respect to service issues concerning cable services provided to City facilities,
Grantee shall respond to all inquiries from the City within four (4) hours and shall
make necessary repairs within twenty -four (24) hours under Normal Operating
Conditions. If such repairs cannot be completed within twenty -four (24) hours, the
Grantee shall notify the City in writing as to the reason(s) for the delay and provide
an estimated time of repair.
SECTION 5: CUSTOMER COMPLAINTS
A. The Grantee shall maintain a written log or an equivalent stored in computer memory
and capable of access and reproduction in printed form, of all cable- related Subscriber
contacts which result in a Service Call. Such log shall, at a minimum, list the date and
time of such contact, the nature of the complaint, and when and what actions were
taken by the Grantee in response thereto. Such log shall be kept at the Grantee's
office in or near the Franchise Area, for a period of at least three (3) years and shall be
available for inspection during regular business hours by City upon request, subject to
Section 631 of the Cable Act regarding Subscriber privacy.
Ordinance No. 1534, Page 25 of 33
Additionally, the Grantee shall maintain a written or electronic log of every
Subscriber complaint referred by the City, including the dates, times and detailed
information related to the complaint and resolution. The Grantee shall cooperate
with the City in the development of this log format.
If the City receives a pattern of complaints from Subscribers which indicates a
recurring problem, City may require the Grantee to maintain a manual or electronic
log of the problem being tracked until such time as the calls to the City are
reasonably reduced.
B. Under Normal Operating Conditions, the Grantee shall resolve Subscriber
complaints referred by the City within seventy -two (72) hours. The Grantee shall
notify the City of those matters that necessitate an excess of seventy -two (72)
hours to resolve, but those matters must be finally resolved within ten (10) days of
the initial complaint. The City may require reasonable documentation to be
provided by the Grantee to substantiate the request for additional time to resolve
the problem. If the Grantee fails to resolve a complaint within the required seventy -
two (72) hours (or extended period), the Grantee shall pay to the City one hundred
($100) dollars per day for each day the complaint is not resolved within the
specified time frame.
For purposes of this subsection, "resolve" means that the Grantee shall perform
those actions which, in the normal course of business, are necessary to respond to
the Subscriber's problem.
SECTION 6: BILLING
A. Subscriber bills must be itemized, in accordance with Cable Services purchased by
Subscribers and related equipment charges. Bills shall clearly delineate all activity
during the billing period, including optional charges, rebates, credits, and late
charges. If the Grantee chooses to itemize franchise fees and /or other
governmentally imposed fees as a separate line item(s), such fees must be shown
in accordance with applicable law. The Grantee shall maintain records of the date
and place of mailing of bills and upon request shall certify in writing to City the date
of mailing of each group of bills.
B. Every Subscriber with a current account balance sending payment directly to
Grantee shall be given at least twenty (20) days from the date statements are
mailed to the Subscriber until the payment due date.
C. To the extent that the Grantee chooses to bill in advance for Cable Services, every
Subscriber with a current account balance sending payment directly to the Grantee
shall be given at least fifteen (15) days from the first day of the billing period until the
payment due date. The billing period is the time period for which Cable Services are
being billed. For example if the customer's billing period is from the 15` to the 313` of the
month, the due date shall not be earlier than the fifteenth (15`h) day of the month.
Ordinance No. 1534, Page 26 of 33
D. A specific due date shall be listed on the bill of every Subscriber whose account is
current. Delinquent accounts may receive a bill which lists the due date as "upon
receipt "; however, the current portion of that bill shall not be considered past due except
in accordance with B and C above.
E. Any Subscriber who, in good faith, disputes all or part of any bill shall have the
option of withholding the disputed amount without disconnect or late fee being
assessed until the dispute is resolved provided that:
• The Subscriber pays all undisputed charges;
The Subscriber provides notification of the dispute to Grantee within five (5) days of
the due date: and
• The Subscriber cooperates in determining the accuracy and /or appropriateness of
the charges in dispute.
• It shall be within the Grantee's sole discretion to determine when the dispute has
been resolved, however, the City has the right to determine if the Grantee has
met its obligations to the Subscriber under this subsection.
F. Under Normal Operating Conditions, the Grantee shall investigate and resolve all
billing complaints received from Subscribers within five (5) business days of receipt
of the complaint if the dispute is regarding charges that are no greater than six (6)
months old, or within fifteen (15) business days if the dispute involves charges that
are more than six (6) months old.
G. Subscriber bills from the Grantee shall include the name, address and telephone
number of the appropriate regulatory agencies, including the City. The City shall
have the opportunity to approve the name, address and telephone number of the
City that appears on the bills.
H. The Grantee shall provide a telephone number and address on the bill for
Subscribers to contact the Grantee.
I. The Grantee shall forward a copy of any billing inserts or other mailing sent to
Subscribers to the City upon request.
J. The Grantee shall provide all Subscribers with the option of paying for Cable
Service by (1) cash, (2) check, (3) an automatic payment plan, where the amount of
the bill is automatically deducted from a checking account designated by the
Subscriber, or (4) by using a major credit card, as determined by the Grantee, on a
preauthorized basis.
The City recognizes that only option (4) above is available as of the effective date
of this Franchise for subscription to the Grantee's cable Internet service, but that
the Grantee is taking steps to make options (1) — (3) available in the near future.
Ordinance No. 1534, Page 27 of 33
The City reserves the right to enforce the requirement above for the cable Internet
service if the Grantee has not voluntarily made available the other payment options
within eighteen (18) months of the effective date of this Franchise.
SECTION 7: DEPOSITS, REFUNDS AND CREDITS
A. The Grantee may require refundable deposits from Subscribers with 1) a poor credit or
poor payment history, 2) who refuse to provide credit history information to the Grantee,
or 3) who rent Subscriber equipment from the Grantee, so long as such deposits are
applied on a non - discriminatory basis. The maximum deposit the Grantee may charge
Subscribers with poor credit or poor payment history or who refuse to provide credit
information is the average of a typical Subscriber's bill over the most recent six (6)
month period. The maximum deposit the Grantee may charge for Subscriber
equipment is the cost (not depreciated value) of the equipment which the Grantee
would need to purchase to replace the equipment rented to the Subscriber.
B. The Grantee shall pay simple annual interest at five percent (5 %) on deposits
collected for equipment which are unrelated to poor credit or poor payment history
if the deposit is held by the Grantee for a period in excess of one year, and the
Subscriber's account is current at the time the deposit is refunded. The Grantee
shall pay interest on other deposits if required by State law or other generally
applicable law.
C. Under Normal Operating Conditions, refund checks will be issued within forty -five
(45) days following the resolution of the event giving rise to the refund.
D. Credits for Cable Service will be issued no later than the Subscriber's next bill which is
printed following the determination that a credit is warranted, and the credit is approved
and processed. Such approval and processing shall not be unreasonably delayed.
E. Bills shall be considered paid when appropriate payment is received by the
Grantee or its authorized agent. Appropriate time considerations shall be included
in the Grantee's collection procedures to assure that payments due have been
received before late notices or termination notices are sent.
SECTION 8: RATES, FEES AND CHARGES
A. The Grantee shall not, except to the extent expressly permitted by law, impose any fee
or charge for Service Calls to a Subscriber's premises to perform any repair or
maintenance work related to Grantee - equipment necessary to receive Cable Service,
except where any such problem which was caused by a negligent or wrongful act of the
Subscriber (including, but not limited to a situation in which the Subscriber reconnects
Grantee equipment incorrectly), or by the failure of the Subscriber to take reasonable
precautions to protect the Grantee's equipment (for example, a dog chew).
Ordinance No. 1534, Page 28 of 33
B. The Grantee shall provide written advance notice to Subscribers of the possible
assessment of a late fee, including the amount of the late fee, on bills or by
separate notice.
C. No late fee may be assessed on Cable Services until one (1) month following the
date of the bill on which the charges first appeared.
D. The amount of the late fee shall be subject to any applicable federal, state or local
consumer protection laws or other lawful and applicable regulations.
SECTION 9: DISCONNECTION /DENIAL OF SERVICE
A. The Grantee shall not terminate Cable Service for nonpayment of a delinquent
account unless the Grantee provides a notice of the delinquency and impending
termination at least fifteen (15) days prior to the proposed termination. The notice
shall be mailed, postage prepaid, to the Subscriber to whom the Cable Service is
billed. This notice shall not be given until five (5) days after the original due date for
the charges. The notice of delinquency and impending termination may be part of a
billing statement.
B. In the event that Cable Service is terminated pursuant to a bulk contract and the
Grantee is permitted to enter into Cable Service arrangements with individual
dwellings previously serviced under such contract, the Grantee shall not hold such
individual Subscriber(s) liable for any nonpayment or underpayments related
specifically to the contract. Subscribers may be held accountable for payment for
Cable Services subscribed to during the period of the contract, which were in
addition to the Cable Services provided pursuant to the contract.
C. Cable Service terminated in error must be restored without charge within twenty -
four (24) hours of notice. If Subscriber was billed for the period during which Cable
Service was terminated in error, an automatic credit shall be issued to Subscriber if
the Service Interruption was reported by the Subscriber. The amount of the
automatic credit shall be in accordance with Section 5, Paragraph I of these
Customer Service Standards.
D. Subject to Section 3.8 of the Franchise, the Grantee shall furnish and maintain
Cable Services to each Person who makes a request to receive any Grantee -
offered Cable Service. Nothing in these standards shall limit the right of the
Grantee to deny Cable Service for non - payment of previously provided Cable
Services, refusal to pay any required deposit, theft of Cable Service, damage to the
Grantee's equipment, or abusive and /or threatening behavior toward the Grantee's
employees or representatives.
E. No period of notice prior to requested termination of service can be required of
Subscribers by the Grantee. No charge shall be imposed upon the Subscriber for or
related to total disconnection of Cable Service, or for any Cable Service delivered
Ordinance No. 1534, Page 29 of 33
after the effective date of the disconnect request (unless there is a delay in
returning Grantee equipment). If the Subscriber fails to specify an effective date for
disconnection, the Subscriber shall not be responsible for Cable Service received
after the day following the date the disconnect request is received by the Grantee.
For purposes of this subsection, the term "disconnect" shall include Subscribers
who elect to cease receiving Cable Service from the Grantee and to receive Cable
Service or other multi - channel video service from another Person or entity.
F. Upon the termination of Cable Service and upon request by the Subscriber, the
Grantee shall either entirely remove its Drop or secure the Drop in a method
reasonably acceptable to City.
SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS
A. All Grantee personnel, contractors and subcontractors contacting Subscribers or
potential Subscribers outside of the office of the Grantee shall wear a clearly visible
identification card bearing their name and photograph. The Grantee shall account
for all identification cards at all times. In addition, all Grantee representatives shall
wear appropriate clothing while working at a subscriber's premises. Every service
vehicle of the Grantee, its contractors or subcontractors shall be clearly identified
as such to the public. Specifically, Grantee vehicles shall have the Grantee's logo
and phone number plainly visible; those of contractors and subcontractors working
for the Grantee shall have the contractor's /subcontractors name and phone
number plus markings (such as a magnetic door sign) indicating they are under
contract to the Grantee.
B. All contact with a Subscriber or potential Subscriber by a Person representing the
Grantee shall be conducted in a courteous manner.
C. The Grantee shall send annual written notices to all Subscribers informing them
that any complaints or inquiries not satisfactorily handled by the Grantee may be
referred to the City. Such notification shall be either:
• A separate document included with a billing statement;
• Included on the portion of the monthly bill that is to be retained by the
Subscriber: or
. A separate mailing.
D. The Grantee shall notify Subscribers in writing and as soon as possible of any
pricing changes or additional charges (excluding temporary marketing on sales
discounts or offers) and /or any changes in Cable Services, including channel line-
ups. Notice must be given to Subscribers a minimum of thirty (30) days in advance
of such changes if within the control of the Grantee, and the Grantee shall provide
a copy of the notice to the City including how and when the notice was given to
Subscribers.
Ordinance No. 1534, Page 30 of 33
E. The Grantee shall provide written information to all Subscribers about each of the
following areas at the time of installation of Cable Service, and thereafter at least
annually to all Subscribers, at any time upon request, and at least thirty (30) days
prior to making significant changes in the information required by this subsection, if
within the control of the Grantee:
• Products and Cable Service offered
• Prices and options for Cable Services and conditions of subscription to Cable
Services. Prices shall include those for Cable Service options, equipment
rental, program guides, installation, downgrades, late fees and other fees
charged by the Grantee related to Cable Service
• Installation and maintenance policies including, when applicable, information
regarding the Subscriber's in -home wiring and /or home run wiring rights during
the period Cable Service is being provided
• Instructions about how to use the Cable Services, including procedures and
options for ordering pay - per -view services, if offered
Channel positions of Cable Services offered on the Cable System
• Complaint procedures, including the name, address and telephone number of
the City, but with a notice advising the Subscriber to initially contact the Grantee
about all complaints and questions
Procedures for requesting Cable Service credit
The availability of a parental control device
• Grantee practices and procedures for protecting against invasions of privacy
• The address and telephone number of the Grantee's office to which complaints
may be reported
• When applicable, the Grantee's community unit identifier as specified by the
FCC
• Other information relating to the provision of Cable Services pursuant to this
Franchise in format and substance as from time to time requested by the City
and agreed to by the Grantee. The Grantee shall promptly notify the City if they
are unable to agree and shall propose viable alternatives.
• A copy of notices required in this Paragraph E. will be given to the City at least
fifteen (15) days prior to distribution to Subscribers if the reason for notice is due
to a change that is within the control of Grantee and as soon as possible if not
within the control of Grantee.
Ordinance No. 1534, Page 31 of 33
F. Notices of changes in rates shall indicate the new rate and the amount the rate has
increased or decreased from the current rate. Specific words such as "increase' or
"decrease" must be used to describe the changes.
G. Notices of changes of Cable Services and /or Channel locations shall include a
description of the new Cable Service, the specific dial location, and the hours of
operation of that Cable Service if the Cable Service is only offered on a part-time
basis. In addition, should the dial location, hours of operation, or existence of other
Cable Services be affected by the introduction of a new Cable Service, such
information must be included in the notice.
H. Every notice of termination of Cable Service shall include all of the following
information:
The name and address of the Subscriber whose account is delinquent
The amount of the delinquency
• The date by which payment is required in order to avoid termination of Cable
Service
• The telephone number for the Grantee where the Subscriber can receive
additional information about their account and discuss the pending termination
I. The Grantee shall made reasonable efforts to ensure that employees that speak
Spanish and English are available to assist Subscribers and potential Subscribers
as requested.
SECTION 11: HANDICAPPED ACCESS
The Grantee shall comply with all rules and regulations pertaining to the Americans
with Disabilities Act.
SECTION 12: AMENDMENTS
These standards may be amended from time to time upon mutual agreement of the City
and the Grantee.
SECTION 13
Severability Clause
That it is hereby declared to be the intention of the City Council that the
sections, paragraphs, sentences, clauses and phrases of this ordinance are severable,
and if any phrase, clause, sentence, paragraph or section of this ordinance shall be
declared invalid or unconstitutional by the valid judgment or decree of any court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect any of the
Ordinance No. 1534, Page 32 of 33
remaining phrases, clauses, sentences, paragraphs and sections of this ordinance,
since the same would have been enacted by the City Council without the incorporation
in this ordinance of any such invalid or unconstitutional phrase, clause, sentence,
paragraph or section.
SECTION 14
Saving Clause
That Ordinance No. 1064 of the City of Euless, Texas, as amended, shall remain
in full force and effect, save and except as amended by this ordinance.
SECTION 15
Publication
The City Council further directs that only the caption of this ordinance be published.
SECTION 16
Effective Date
This ordinance shall be in full force and effect thirty (30) days from and after its
passage and publication as provided by the Euless City Charter and the laws of the
State of Texas.
PRESENTED AND GIVEN FIRST READING at a regular meeting of the Euless
City Council on the 25TH day of June, 2002, by a vote of 7 ayes, 0 nay, and 0
abstentions.
PRESENTED AND GIVEN SECOND AND FINAL READING and approved at a
regular meeting of the Euless City Council on the 13`" day of August, 2002, by a vote of
7 ayes, 0 nay, and 0 abstentions.
APPROVED:
ATTEST:
Ordinance No. 15341 Page 33 of 33
VED AS TO FORM:
Bob McFarland, City Attorney