HomeMy WebLinkAboutORD 1997-062 ORDINANCE NO. 9�-62
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS PROVIDING FOR RENEWAL OF A
FRANCHISE TO PARAGON COMMUNICATIONS, d/b/a
PARAGON CABLE, TO OWN AND OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM IN GRAPEVINE,
TEXAS, SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANT OF FRANCHISE; PROVIDING FOR THE
REGULATION AND USE OF SAID SYSTEM; AND
PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of Grapevine has, following reasonable notice, conducted a fuil
public hearing, affording all persons reasonable opportunity to be heard, which proceeding
was concerned with the analysis and consideration of the technical ability, financial
condition, legal qualification and general character of the franchisee; and
WHEREAS, the City of Grapevine, after such consideration, analysis and
� � deliberation, has approved and found sufficient the technical ability, financial condition,
legal quatification, and character of said franchisee; and
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WHEREAS, the City Council finds the public necessity and convenience requires
that a renewal franchise be granted to Paragon Communications, d/b/a Paragon Cable,
for the purpose of installing a cable television system in the City of Grapevine for the
benefit of the citizens of the City of Grapevine;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS:
That it is agreed by and between the City Council of the City of Grapevine and Paragon
Communications, d/b/a Paragon Cable, that there is hereby granted a renewal
nonexclusive franchise for a period of twelve (12) years for the installation, operation and
maintenance of a cable television system within the City of Grapevine to Paragon
Communications, d/b/a Paragon Cable, provided, however, that the said franchise shall
be subject to the following terms and performance conditions:
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� SECTION 1. DEFINITIONS
For the purpose of this Franchise the following terms, phrases, words and their derivations
� shall have the meaning given herein. When not inconsistent with the context, words used
in the present tense include the future, words in the plural number include the singular
number and words in the singular number include the plural number. The words "shall"
and "will" are mandatory and "may" is permissive. Words not defined herein shall be given
the meaning set forth in the Communications Act of 1934 as amended by the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
Competition Act of 1992, and the Telecommunications Act of 1996 and, if not defined
there, shall be given their common and ordinary meaning.
"Affiliate" means each Person who falls into one or more of the following categories: (i)
each Person having, directly or indirectly, a Controlling Interest in the Grantee; (ii) each
Person in which the Grantee has, directly or indirectly, a Controlling Interest; (iii) each
Person, directly or indirectly, controlling, controlled by, or under common Control with, the
Grantee; provided that "Affiliate" shall in no event mean any creditor of the Grantee solely
by virtue of its status as a creditor and which is not otherwise an Affiliate by reason of
owning a Controlling Interest in, being owned by, or being under common ownership,
common management, or common Control with, the Grantee.
��`� "Channel" means a portion of the electromagnetic frequency spectrum which is capable
of delivering both the audio and video portions of a television signal. At the time of
�� enactment of this Franchise, such capability generally requires a 6 MHZ capacity, but this
is subject to changes in technology.
"City" means the City of Grapevine, a (home-rule) municipality incorporated under the laws
of Texas.
"City Council" means the elected governing body of the City of Grapevine, Texas.
"City Requirements" means all laws, rules, regulations, policies and directives of general
application of the City of Grapevine adopted in the exercise of its police power which are
in effect at present or are adopted in the future by the City Council.
"Cable Service" means (A) the one-way transmission to subscribers of video programming
or information that Grantee makes available to all subscribers genera�ly, and (B) subscriber
interaction, if any, which is required for the selection or use of such video programming or
information.
"Cable System" means a facility, consisting of a set of closed transmission paths and
� � associated signal generation, reception, and control equipment that is designed to provide
cable service which includes video programming and which is provided to multiple
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� subscribers within a community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one (1) or more television broadcast stations;
(B) a facility that serves Subscribers without using any Public Rights-of-Way; (C) a facility
��..� of a common carrier which is subject, in whole or in part, to the provisions of Title II of the
Communications Act of 1934, except that such facility shall be considered a Cable System
to the extent such facility is used in the transmission of video programming directly to
subscribers.
"Converter" means an electronic device which converts cable channel frequencies which
are not normally receivable by some television sets to an appropriate channel which
permits a Subscriber to view signals included in the service being delivered, according to
a designated tuning or channel selector dial.
"Control" or "Controlling Interest" means actual working control in whatever manner
exercised.
"Days" means calendar days unless otherwise specified.
"Direct Cost" means all expenses associated with a specific activity or function, excluding
overhead.
"FCC' refers to the Federal Communications Commission.
��� "Franchise" means this contract between the City and Grantee.
"Franchise Area" means all of the geographic area within the City of Grapevine.
"Grantee" means Paragon Communications, a Colorado general partnership authorized
to do business in the State of Texas and doing business as Paragon Cable, or any
successor.
"Gross Revenue" means any and all consideration of any kind or nature, including without
limitation, cash, credits, property and in-kind contributions (services or goods) received by
Grantee which is derived from the provision of cable service to subscribers. Gross
Revenue does not include any revenue not actually received, even if billed (e.g., bad debt).
Gross Revenue also includes an allocated portion of all revenue derived by Grantee from
advertising on system-originated programs. The allocation shall be based on the number
of subscribers in the Franchise Area divided by the total number of subscribers on the
system.
"Information Service" means, to the extent not a Cable Service, the offering of a capability
�"`9� for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and includes electronic publishing, but does
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. not include any use of any such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications service.
�._ � "Normal Operating Conditions" is defined as being those service conditions which are
within the control of the Grantee. Those conditions which are ordinarily within the control
of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate
increase, regular peak or seasonal demand periods, and maintenance or upgrade of the
System, except for unscheduled and/or emergency equipment replacement, testing
required by the FCC or this Franchise and cutovers performed in connection with the
Rebuild. Those conditions which are not within the control of the Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone network
outages, programmer originated interruption, and severe weather. The definition of Normal
Operating Conditions is relevant in assessing compliance with telephone answering time,
installations, service calls, and repair of Service Interruptions.
"Person" means any corporation, partnership, proprietorship, individual or organization or
any natural person, excluding any governmental entity. -
"Public Rights-of-Way" means the surface, the air space above the surFace, and the area
below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, easement or similar property in which the City holds any property
� � interest or exercises any rights of management or control and which, consistent with the
purposes for which it was acquired or dedicated, may be used for the installation and
�g� maintenance of a Cable System and/or Transmission Network. No reference in this
Franchise to a "Public Right-of-Way" shall be deemed to be a representation or guarantee
by the City that its interests or other rights in such property are sufficient to permit its use
for the installation and maintenance of a Cable System and/or Transmission Network, and
the Grantee shall be deemed to gain only those rights which the City has the right and
power to give.
"Rebuild" means the upgrade process by which Grantee brings its Cable System into
compliance with the standards set forth in Section 8 and Exhibit A hereof.
"Residential Dwelling Unit" means each home, house, building, or other structure that
normally accommodates the living quarters of one (1) family, and each apartment,
condominium, or co-operative unit that normally accommodates the living quarters of one
(1) family in any multiple-unit building or complex of multiple-unit buildings; provided,
however, that if the Grantee has not been granted the authority by an owner or association
of owners to extend its facilities to individual apartments, condominiums, and co-operative
units within the interior of such multiple-unit buildings or complex of multiple-unit buildings,
then any such multiple-unit building or complex of multiple-unit buildings shall be
�� �'" considered a single Residential Dwelling Unit.
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"Service Interruption" or "Outage" is defined as being a Cable System malfunction
resulting in the loss of picture or sound on one or more channels affecting more than one
Subscriber. The definition of Service Interruption or Outage affects the timing of when the
�a..� Grantee must respond to a Service problem.
"Standard Drop" means the cable up to a maximum length of one hundred finrenty-five
(125) feet that connects the antenna terminal on a Subscriber's radio or television set,
computer terminal, or other terminal, to the nearest feeder cable of the Cable System.
"Subscriber" means any person within the City who receives any Cable Service or
Information Service delivered by the Cable System.
"Transmission Network" means the set of transmission paths, property, facilities and
associated transmission, reception, control and switching equipment within the Public
Rights-of-Way and used to provide services authorized by this Franchise.
SECTION 2. GRANT OF FRANCHISE
a) There is hereby granted to Paragon Communications, hereinafter called "Grantee,"
for a term as described below, unless otherwise terminated as provided for herein,
� °� the non-exclusive right and privilege to have, acquire, construct, expand,
reconstruct, maintain, use and operate in, along, across, on, over, through, above
��� and under the Public Rights-of-way of the City, a Cable System to provide Cable
Service and such other services as Grantee may legally provide.
b) The franchise and the rights, privileges and authority hereby granted shall take
effect and be in force from and after final passage thereof, as provided by law, and
shall continue in force and effect for a term of twelve (12) years.
c) If, after the effective date of this Franchise, the City enters into and authorizes a
franchise, permit, license or other form of agreement with any person other than
Grantee to enter the Streets for the construction and operation of a system
providing Cable Services within any part of Grantee's franchise area, the material
provisions of such agreement shall be non-discriminatory and competitively neutral
with respect to provisions of this franchise (i.e. impose no lesser burdens or provide
no greater benefits than this franchise).
(d) In the event that any person (including without limitation a governmental entity) uses
facilities in the Streets to provide a multi-channel video service (including without
limitation an open video system) without a franchise, such use shall be on terms
�"" ° and conditions which are non-discriminatory and competitively neutral.
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. (fl If necessary to effectuate the requirements of non-discrimination and competitive
neutrality contained in subsections (c) and (d), this franchise shall be amended to
provide such greater benefits and/or lesser burdens.
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SECTION 3. SERVICE AVAILABILITY
Throughout the term of this Franchise, the Grantee covenants and agrees to construct,
operate, maintain and upgrade the Cable System so as to make all Cable Services
distributed over the Cable System available to any person within the Franchise Area in
accordance with this Franchise, except for any such service which is provided on a test
basis and provided, however, that a new Cable Service may be introduced on a phased
basis in different areas of the City over a period no longer than two years, except as may
be dependent on the Rebuild. Grantee shall not unlawfully discriminate, between or
among any Persons, in the availability of Cable Services or in the rates, terms and
conditions thereof. Further, the Grantee shall ensure that access to any Cable Service is
not denied to any group of potential Subscribers because of the income of the residents
of the area in which such group resides. It shall be the right of all Subscribers to receive
continuously all available Cable Services insofar as their financial and other obligations to
the Grantee are honored. The Grantee shall continuously monitor the implementation of
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the commitments set forth in this section.
Line Extension Policy. Grantee shall extend its cable system in the Franchise Area
pursuant to the following requirements:
Grantee shall extend its cable system and make cable service available to every existing
residential area within the Franchise Area whenever density of at least twenty (20)
Residential Dwelling Units per cable mile (or any proportionate amount thereof ineasured
over a shorter or longer distance) is realized, as measured from the existing facilities of
Grantee's cable system in the Franchise Area. For purposes of this section, density per
cable mile shall be computed by dividing the number of Residential Dwelling Units in the
area by the length, in miles or fractions thereof, of the total amount of aerial or
underground cable necessary to make service available to the Residential Dwelling Units
in such area in accordance with Grantee's system design parameters. The cable length
shall be measured from the nearest point of access to the then-existing system, provided
that extension is technically feasible from that point of access, and located within the Public
Rights-of-Way. The total cable length shall exclude the drop cable necessary to serve
individual Subscriber premises.
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�,, _.._ Grantee shall extend its cabie system necessary for the provision of cable service and
make cable service available to any business in the Franchise Area when the business
subscriber agrees to pay for the labor costs incurred and materials used in making the
�.� extension.
SECTION 4. SERVICE TO COMMUNITY FACILITIES
Public Primary and Secondary Schools. If requested to do so by the school authorities,
Grantee shall provide during the life of this Franchise each primary and secondary public
school located in the Franchise area, and passed by the Cable System one (1) free cable
television service outlet at the most popular service level.
Grantee will, at the school's request, provide an appropriate interFace to any internal video
distribution system in the school, so long as the school insures that such internal system
complies with the FCC's signal leakage and signal quality standards and does not interfere
with or adversely affect the system, including the upstream capacity. There will be no
charge for cable service on any additional outlets in the school except for a pass through
of any charge imposed on Grantee by a program supplier, and Grantee may impose a
charge for equipment for additional outlets.
Grantee witl provide each connected school with a free connection to a Time Warner on-
�° � line service for personal computers to the extent it is available on Grantee's Cable Systerr�
and Transmission Network. Upon request each connected school will receive one free
�� modem and free access to the Time Warner on-line service for use during the school year.
Additional modems will be made available, upon request, at cost. Free access to the Time
Warner on-line service will be provided through each such modem for use during the
school year. In addition, the Grantee will sponsor a workshop to educate teachers about
the Time Warner on-line service and to provide them with an opportunity for hands-on
training.
City Facilities. Upon the request of City authorities Grantee shall provide during the life of
this Franchise each municipal facility owned or operated by the City and located within the
City of Grapevine and located within one hundred twenty-five (125) feet of Grantee's plant
one (1) free cable television service outlet at the most popular service level. Each free
outlet shall include if necessary a free Converter and maintenance thereof by Grantee. All
additional cable television hardware and the installation thereof requested by City shall be
provided by Grantee and the cost to the City shall not exceed Grantee's Direct Cost.
Grantee will, at the City's request, provide an appropriate interface to any internal video
distribution system in the City building, so long as the City insures that such internal system
complies with the FCC's signal leakage and signal quality standards and does not interFere
�`" ° with or adversely affect the system, including the upstream capacity. There will be no
charge for cable service on any additional outlets in the City facilities except for a pass
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� • through of any charge imposed on Grantee by a program supplier, and Grantee may
impose a charge for equipment for additional outlets.
SECTION 5. EDUCATIONAL AND GOVERNMENT ACCESS
Grantee shall make available two channels as government access and/or educational
access channels. Educational access shall mean a channel time reserved for use by
educational institutions located within Tarrant County, Texas, for non-commercial
programming associated with their educational functions. Government access shall mean
channel time reserved for use by the City of Grapevine for non-commercial programming
associated with City of Grapevine governmental functions. The City of Grapevine shall
designate the programmers for the time periods on each of these channels consistent with
the requirements of this section.
SECTION 6. CLOSED CAPTION
Grantee shall retransmit all closed-captioned signals made available by programmers in
conjunction with programming in its line-up and which are provided in order to facilitate
viewing by handicapped persons. Grantee shall maintain the necessary head-end
equipment to make SAP features available to Subscribers. Grantee's obligations under
� '" this section do not extend to providing customer premises equipment.
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SECTION 7. CONSTRUCTION WORK REGULATION BY CITY AND UNDERGROUND
CONDUIT USE BY GRANTEE
All work done by Grantee in connection with the construction, expansion, reconstruction,
maintenance or repair of its facilities in the Public Rights-of-Way shall be subject to and
governed by all City Requirements, and applicable federal and state rules and regulations.
All excavations and other construction in the Public Rights-of-Way shall be performed in
accordance with all applicable City Requirements.
Grantee may be required by the City to attach portions of its facilities to poles or duct trench
space maintained by any other person or entity franchised by the City. Grantee shall not be
required to attach its facilities to the poles or duct trench space of any other person or entity
franchised by the City if it can be shown to the City's satisfaction that Grantee shall be
subjected thereby to increased risks of interruption to its service or to increased liability for
accidents, or unreasonably delay construction or availability of service, or if the facilities of such
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other person or entity are not of the character, design and construction required by, or are not
being maintained in accordance with current practice, or are not available to Grantee on
reasonable terms, including without limitation a reasonable fee.
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SECTION 8. REBUILD AND UPGRADE OF SYSTEM
�°� The Grantee shall complete a Rebuild of the Cable system in accord with the specifications
set forth in Exhibit A on or before eighteen (18) months from the effective date provided
herein, unless the schedule for completion is amended in accordance with the terms of this
Franchise.
No less than thirty (30) days prior to completion of the Rebuild, the Grantee shall notify the
City Manager that the Rebuild is substantially complete. The City Manager and the
Grantee shall arrange for such inspections as shall enable the City Manager to ascertain
whether the Rebuild has been completed as scheduled. The City Manager shall accept
the completion of the Rebuild upon the City Manager's satisfaction that the obligations of
the Grantee to complete the Rebuild have been fulfilled in all respects.
Completion of Rebuild. Notice witl be given to the City of any material changes in the
specifications, but no such changes shall adversely affect the operations or completion
date of the Rebuild. Upon completion of the Rebuild, the Grantee shall submit to the City,
in written and in computer form, maps for the entire System as upgraded.
Upon completion of the Rebuild, the Grantee shall be capable of providing the upgraded
�' � Cable Service to every potential subscriber in the Franchise Area except as provided in
this Franchise.
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Quality. All work involved in the construction, operation, maintenance, repair, upgrade,
and removal of the Cable System shall be performed in a safe, thorough and reliable
manner using materials of good and durable quality. If, at any time, it is determined by the
City or any other agency or authority of competent jurisdiction that any part of the Cable
System, including, without limitation, any means used to distribute Signals over or within
the Cable System, is harmful to the health or safety of any person, then the Grantee shall,
at its own cost and expense, promptly correct all such conditions.
Technical Specifications of Cable System. The Grantee shall install all aerial and
underground cables and wires in a manner consistent with City Requirements and in
compliance with all applicable laws, ordinances, and safety Requirements including but
not limited to those of the Federal Communications Commission, Federal Aviation
Administration, National Electric Code, National Electric Safety Code, and National Cable
Television Association Standards of Good Engineering Practices.
As provided in this Franchise, the Grantee shall comply with all applicable federal, state
and City laws, rules, regulations, codes, and other requirements in connection with the
� A� construction of the Cable System.
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�°• ° The installation of all cables, wires, or other component parts of the Cable System in any
structure shall be undertaken in a manner which does not interFere with the operation of
any signal distribution system in said structure, including any conduit used in connection
��` with such other system. For the purpose of routine maintenance, repair, connection,
installation, or disconnection, all Cable System cabling and wiring in any structure shall be
accessible from the "tap side" in a public hallway, roof, basement, stairwell, outside wall
or other public area in said structure.
The Grantee must comply with, and shall ensure that its subcontractors comply with the
City Requirements. If the installation, construction or operation of the Cable System does
not comply with such rules, regulations and standards, the Grantee must, at its sole cost
take steps necessary to ensure compliance with such rules, regulations and standards.
SECTION 9. WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS,
ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENT
The City reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines
or cables and conduits, and to do and permit to be done, any underground and overhead work,
and any attachment, restructuring or changes in aerial facilities that may be deemed necessary
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or proper by the City in, across, along, over or under any public street, alley or right-of-way
occupied by Grantee, and to change any curb or sidewalk or the grade of any street. In
permitting such work to be done, the City shall not be liable to Grantee for any damages not
directly caused by the willful misconduct or negligence of the City; provided, however, nothing
herein shall relieve any other person or entity, including any contractor, subcontractor, or agent
from liability for damage to Grantee's Cable System.
In the event that, during the term of this Franchise, the City authorizes abutting landowners to
occupy space under the surFace of any public street, alley, or right-of-way, such grant to an
abutting landowner shall be subject to the rights herein granted to Grantee. In the event that
the City shall close or abandon any public street, alley or right-of-way, which contains any
portion of Grantee's Cable System, any conveyance of land contained in such closed or
abandoned public street, alley, or right-of-way shall be subject to the rights herein granted.
During the term of this agreement, Grantee shall be liable for the acts or omissions of any
entity used by Grantee (including an A�liate)when such entity is involved directly or indirectly
in the construction and installation of Grantee's Cable System to the same extent as if the acts
or omissions of such entity were the acts or omissions of Grantee.
Relocation or Removal of Facilities: Within thirty (30) days following written notice from the
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City, the Grantee shall, at its own expense, temporarily or permanently remove, relocate,
change or alter the position of any of its Cable System or other of its facilities that are within
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� the Public Rights-of-Ways whenever the City shall have determined that such removal,
relocation, change or alteration is reasonably necessary for:
� The construction, repair, maintenance or installation of any public improvement in or upon
the public ways.
The operations of the City or other governmental entity in or upon the public ways.
SECTION 10. COMPLIANCE WITH CITY CHARTER
Grantee recognizes, accepts and agrees that the terms, conditions and provisions of this
franchise are subject to the applicable provisions of the Grapevine City Charter. Any request
by Grantee for a modification of this franchise shall be subject to review by the City Attorney
for compliance with the applicable provisions of the City Charter.
SECTION 11. CONSTRUCTION, MAINTENANCE, EXPANSION, RECONSTRUCTION,
AND EXCAVATION
In furtherance of the public interest in safety, health and public welfare and to facilitate the
'� �� safe management of Public Rights-of-Way, the construction, expansion, reconstruction,
excavation, use, maintenance and operation of Grantee's Cable System and property shall
be subject to all generally applicable City Requirements. In addition to any other City
Requirements, ten (10) days prior to the commencement of construction which involves
any alteration to the surface or beneath the surface of the Public Rights-of-Way, to the
extent generally required, Grantee shall provide the Public Works Director (or such other
officials as the City may designate from time to time) with construction plans and maps
showing the routing of any new construction and construction plans.
Upon request by written notice of the City, Grantee shall remove and abate any facility that
is declared an Emergency. Grantee and the City shall cooperate to the extent possible to
assure continuity of service. If Grantee, after notice, fails or refuses to act, the City may
remove or abate the same, at the sole cost and expense of Grantee, all without
compensation or liability for damages to Grantee.
Upon completion of initial or any subsequent construction work, Grantee shall promptly
restore the Public Rights-of-Way in accordance with applicable City Requirements.
Grantee may excavate only for the construction, installation, expansion, repair, removal,
and maintenance of all or a portion of its facilities.
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� Except in an Emergency, Grantee shall not excavate any pavement in any public alley or
street or significant amounts of any unpaved public right-of-way without first complying with
all applicable City Requirements.
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Within one hundred twenty (120) days of completion of each segment of Grantee°s
facilities, Grantee shall supply the City with a complete set of"as built" drawings for that
segment in a format to be prescribed by the Public Works Director.
SECTION 12. CONSUMER SERVICE STANDARDS
The Grantee agrees to abide by the Consumer Service Standards attached hereto as
Exhibit B.
SECTION 13. COMPENSATION TO THE CITY
General Compensation. For the reason that the Public Rights-of-Way to be used by
Grantee in the provision of services within the boundaries of the Franchise Area are
valuable public properties, acquired and maintained by the City at great expense to its
taxpayers, and because the grant to Grantee of the use of said Public Rights-of-Way is
� �" a valuable property right without which Grantee would be required to invest substantial
capital in right-of-way costs and acquisitions, the Grantee agrees to pay to the City as
General Compensation during each year of this Franchise, a franchise fee consisting of
5% (five percent) of Grantee's Gross Revenue derived within the Franchise Area.
Any other franchise granted by the City to a similarly-situated service provider for
services allowed herein shafl be granted on a competitively neutral basis.
Calculation and Payment on a Quarterly Basis of Annual Franchise Fee. Grantee shall
pay to the City for each quarter this franchise remains in effect an amount equal to five
percent (5%) of Gross Revenue, referred to as the "Quarterly Payment." Grantee shall
make this payment by the forty-fifth (45) day following the close of the calendar quarter
for which the Quarterly Payment is calculated. Any necessary prorations shall be
made.
To the extent consistent with federal law, the compensation set forth in this section shall
be exclusive of and in addition to all special assessments and taxes of whatever nature,
including, but not limited to, ad valorem taxes, street cut permits, inspection fees and
assessments for recovery of costs incurred by the City.
'��' Grantee shall file annually with the City no later than one hundred and finrenty (120)
days after the end of the Grantee°s fiscal year, a statement of Gross Revenue for that
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�,; 9 year within the Franchise Area pursuant to this Franchise. This statement shall set
forth the Gross Revenue for the year in a reasonable form prescribed by the City after
consultation with Grantee.
Any transaction or arrangement which has the effect of circumventing payment of
required franchise fees and/or evasion of payment of franchise fees by non-collection,
non-reporting of Gross Revenue, collection of revenues by Affiliates, bartering, or any
other means which evade the actual collection of revenues by Grantee for services
delivered over the Cable System or businesses Grantee pursues derived from the
operation of the Cable System is prohibited.
SECTION 14. ACCOUNTS, RECORDS, REPORTS AND INVESTIGATIONS
Promptly upon request (not later than ten (10) days, if not reasonably available sooner),
Grantee shall provide the City information as to all matters in connection with or affecting
the construction, reconstruction, removal, maintenance, operation and repair of Grantee's
Cable System (and any other facilities) in the Public Rights-of-Way.
Grantee shall keep complete and accurate books of accounts and records of its business
and operations pursuant to this Franchise in accordance with generally accepted
�s� accounting principles. After consultation with Grantee, the City may require the keeping of
additional records or accounts which are reasonably necessary for purposes of identifying,
� accounting for, and reporting Gross Revenue for purposes of Section 13. To the extent
practicable, Grantee shall keep its books of account and records in such a way that
identification of revenues by type within the Franchise Area is straightforward.
In order to determine the Gross Revenue received by the Grantee which in accordance
with Section 13 is subject to franchise fee, Grantee agrees that on the same date that
payment is made, it will file with the City Secretary a sworn copy of a report setting forth the
Gross Revenue.
The City may, if it sees fit, have the books and records of Grantee examined by a City
representative to ascertain the correctness of the reports agreed to be filed herein.
Upon the City's twelve (12) day written request, Grantee shall make available to the City, ira
Grapevine during regular business hours, its books and records to examine, audit, review
and/or obtain copies of the papers, books, accounts, documents, maps, plans and other
records of Grantee pertaining to all revenue derived by Grantee from the operation of the
Cable System in order to verify the accuracy of payments under Section 13. Grantee shall
fully cooperate in making available its records and otherwise assisting in these activities.
� " The City shall extend the time for the provision of information requested under this section
upon a reasonable showing by Grantee that such extension is justified.
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�..� The City may, at any time, make inquiries pertaining to Grantee's performance of the terms
and conditions of this Franchise.
Promptly and timely, Grantee shall provide the City with notices of all petitions,
applications, communications and reports submitted to or received from the FCC,
Securities and Exchange Commission and the Public Utility Commission (PUC), or their
successor agencies, concerning the use of Franchise Area Public Rights-of-Way and/or
the operation of a Cable System authorized pursuant to this Franchise. Upon written
request from City, Grantee shall provide the City Manager with copies of all such
documentation.
The City will maintain confidentiality of information provided by Grantee to the extent
permitted by law when Grantee has notified the City of the confidential nature of the
information. The City will provide Grantee copies of any Attorney General opinion request
under the Open Records Act which pertains to such information.
SECTION 15. ASSIGNMENT OF FRANCHISE
Neither this Franchise, the assets held by Grantee for use under this Franchise which are
in the Public Rights-of-Way, any rights or privileges of Grantee under this Franchise, either
�'°� separately or collectively, shall be sold, resold, assigned, transferred or conveyed by
Grantee to any other person, firm, or entity, without the prior written consent of the City by
ordinance or resolution, such approval shall not be unreasonably withheld. Should the
Grantee sell, assign, transfer, convey or otherwise dispose of any of its rights or interests
under this Franchise, including Grantee's Cable System or capacity on its Cable System, or
attempt to do so, without the City's prior consent, the City may revoke this Franchise for
default, in which event all rights and interest of the Grantee shall cease. Any change of
Control of Grantee shall constitute a transfer under this section. There shall be a rebuttable
presumption of a change of Control of Grantee upon a change of 10% or greater in the
ownership of Grantee. A mortgage or other pledge of assets to a bank or lending institution
in a bona fide lending transaction shall not be considered an assignment. However, the
provisions of this section shall not apply in the event of the transfer of the franchise to an
Affiliate but notice thereof shatl be provided to the City.
SECTION 16. VIOLATIONS
If the City has reason to believe that Grantee is in violation of this Franchise, the City shall
notify Grantee in writing of the violation setting forth the nature of such violation. Within
finrenty-one (21) days of receipt of such notice, or such longer period specified by the City,
'�'" Grantee shall respond in writing that the violation has been cured or provide a cure plan or
�""' 14
� -, schedule that satisfies the City or provide explanations in refutation or excuse with
documentation to support that an alleged violation did not occur.
Nofinrithstanding the above paragraph, Grantee shall be allowed thirty (30) days to cure
violations after written notice is received from the City, by taking appropriate steps to
comply with the terms of this franchise ordinance and any lawful regulations. If the nature
of the violation is such that it cannot be fully cured within 30 days due to circumstances not
under Grantee's control, the period of time in which Grantee must cure the violation shall be
extended for such additional time reasonably necessary to complete the cure, provided that
(i) Grantee shall have promptly commenced to cure, and (ii) Grantee is diligently pursuing
its efforts to cure.
If the violation has not been cured within the time allowed above, Grantee shall be liable for
liquidated damages for the following violations:
failure to perform the Cable System Rebuild according to the requirements of
Section 8: fifteen cents ($0.15) per affected household for each day that such delay
continues (not to exceed one thousand dollars ($1000) per day);
failure to provide and maintain requested Cable Service to any household within the
Franchise Area as required by this Franchise: fifteen cents ($0.15) per affected
�'°"� household, for each day that such failure continues; (not to exceed one thousand
dollars ($1000) per day);
�
failure to promptly provide data, documents, reports or information to the City, in
accordance with Section 14: two hundred and fifty ($250) per day, for each day
such failure continues;
failure to comply with City requirements concerning construction in the Public Rights-
of-Way: finro hundred ($200) per day for each day such failure continues.
Grantee agrees that each of the foregoing failures shall result in injuries to the City and its
citizens and institutions, the compensation for which would be difficult to ascertain and to
prove. Accordingly Grantee agrees that the foregoing amounts are liquidated damages,
not a penalty or forFeiture, and are within one or more exclusions to the term "franchise fee"
provided by federal law at 47 U.S.C. 542 (g) (2) (A-D) and therefore in no way part of the
compensation paid to the City pursuant to Section 13 herein.
If Grantee fails to make full and complete payments required by this Franchise within ten
(10) days after receipt of written notice from the City, then the City may immediately
withdraw without further notice to Grantee the amount thereof from the letter of credit
� "� maintained in accordance with Section 17.
�"' 15
,�,..,� Notwithstanding any other provision of this Franchise, upon Grantee's request, Grantee
shall be afforded an opportunity to show that a violation has not occurred. This opportunity
shall consist of an administrative hearing upon thirty (30) days' notice before an impartial
hearing examiner jointly designated by the City and Grantee within thirty (30) days of
Grantee's request.
If as a result of the administrative hearing, the hearing examiner determines that a violation
has not occurred, the City shall pay all of the expenses related to the administrative
hearing. If a violation has occurred, Grantee shall pay the expenses. After the conclusion of
the administrative hearing either party may seek any and all remedies which it may have at
law.
Upon evidence being received by the City that violations of this Franchise, have occurred,
or continue to occur after the thirty (30) day period, and any additional time necessary to
cure, as allowed under this section, the City may cause an investigation to be made. If the
City finds that such a violation continues to exist or has occurred, then the City or Grantee
may take any action authorized by law, subject to Section 21, including forfeiture of this
franchise and a suit in court to compel compliance. In any such proceeding the non-
prevailing party shall be required to pay the reasonable expenses incurred by the
prevailing party in such suit and all damages and costs (including attorney fees), but
Grantee may be allowed, either by the court in the judgment of forFeiture or by order of the
�� City Council, a reasonable time thereafter, as fixed by such judgment or order, to correct
the default and pay such expenses, damages and costs as it may be adjudged to pay, and
� if Grantee does so correct and so pay within such time, forfeiture shall not become effective
nor be enforced.
Failure by the City or the Grantee to enforce any rights under this franchise does not
constitute a waiver of such rights.
SECTION 17. LETTER OF CREDIT/ BOND
Within ten (10) days after the effective date of this Franchise ordinance the Grantee shall
deposit with the City's Administrative Services Director an irrevocable $100,000 letter of
credit and maintain such letter of credit or substitute letter of credit on deposit through the
term of this contract as security for the faithful perFormance by it of all the provisions of this
contract, and compliance with all orders, permits and directions of any agency of the City
having jurisdiction over its acts or defaults under this contract, and the payment by the
Grantee of any claims, fiens and taxes due the City which arise by reason of the
construction, operations or maintenance of the system.
�`y" Within ten (10) days after notice to it that any amount has been drawn on the letter of credit
of this section, the Grantee shall deposit with the Administrative Services Director an
16
� ,. amendment to the letter of credit or a new letter of credit sufficient to restore the aggregate
undrawn amount to $100,000 provided that if the letter of credit is called, and there is a
good faith dispute concerning the performance of Grantee's obligations hereunder and
�� Grantee has invoked Section 26, or has instituted a legal action in court to resolve the
dispute in court, then the letter of credit does not have to be replenished.
Within thirty (30) days after the award of this franchise, the Grantee shall deposit with the
City the surety bond in the amount of$25,000. The surety bond shall be used to insure the
faithful perFormance by the Grantee of all provisions of this franchise; and compliance with
all orders, permits and directions of any agency, commission, board, department, division or
office of the City having jurisdiction over its acts or defaults under this franchise and the
payment by the Grantee of any claims, liens and taxes due the City which arise by reason
of the construction, operation or maintenance of the system.
The surety bond shall be maintained at $25,000 during the entire term of this franchise,
even if amounts have to be withdrawn pursuant to the third paragraph of this section.
If the Grantee fails to pay to the City any compensation within the time fixed herein; or,
fails, after ten (10) days' notice to pay to the City any taxes due and unpaid; or fails, to
repay the City within ten (10) days, any damages, costs or expenses which the City is
compelled to pay by reason of any act or default of the Grantee in connection with this
franchise; or fails, after ten (10) days' notice of such failure by the City to comply with any
provision of this franchise which the City reasonably determines can be remedied by
� demand on the surety bond the City may immediately request payment of the amount
thereof, with interest and any penalties, from the surety bond security fund. Upon such
request for payment, the City shall notify the Grantee of the amount and date thereof.
The rights reserved to the City with respect to the surety bond are in addition to all other
rights of the City, whether reserved by this franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to such surety bond shall affect any other
right the City may have.
SECTION 18. INSURANCE
Grantee shall obtain and maintain in full force and effect throughout the term of this
Franchise insurance with an insurance company licensed to do business in the State of
Texas and acceptable to the City. All companies will be required to be rated A-VII or better
by A.M. Best or A or better by Standard and Poors. Grantee shall provide City with proof of
such insurance so required at the time of filing the acceptance of franchise. The City
reserves the right to review these insurance requirements during the effective period of the
� �� Franchise, and to reasonably adjust insurance coverage and their limits when deemed
'�'"' 17
,�..,m necessary and prudent by the City, based upon changes in statutory law, court decisions,
or the claims history of the industry or the Grantee.
Subject to Grantee's right to maintain reasonable deductibles, Grantee shall obtain and
maintain in full force and effect for the duration of this Franchise, at Grantee°s sole
expense, insurance coverage in the following type and minimum amounts:
TYPE AMOUNT
Workers' Compensation and Statutory $100,000/$500,000/$100,000
Employers Liability
Commercial General (public) Liability - to Combined single limit for bodily injury
include coverage for the following where and property damage $10,000,000 per
the exposure exists: occurrence or its equivalent
• Premises operations
• Independent contractors
• Products/completed operations
• Personal injury
• Contractual liability
• Explosion, collapse and
� underground property damage
Comprehensive Automobile insurance Combined single limit for bodily injury
�"" coverage for loading and unloading and property damage $1,000,000 per
hazards, for: occurrence or its equivalent
• Owned/leased automobiles
• Non-owned automobiles
• Hired automobiles
Coverage for programming on channels Combined single limit of$10,000,000
that are directly or indirectly controlled by per occurrence or its equivalent
Grantee for:
• Libel and slander
• Copyright violations
The City shall be entitled, upon request and without expense, to receive copies of
certificates of insurance evidencing coverage stated above. The City may make any
reasonable requests for deletion, revision or modification of particular policy terms,
conditions, limitations or exclusions, except where policy provisions are established by
law or regulation binding upon either City or Grantee or upon the underwriter for any of
"'�' 18
� � such policies. Upon request for deletion, revision or modification by the City's Risk
Manager, Grantee shall exercise reasonable efforts to accomplish the changes.
�_�i Grantee agrees that with respect to the above-required insurance, all insurance
certificates will contain the following required provisions:
Name the City of Grapevine and its officers, employees, board members and elected
representatives as additional insured parties (as the interests of each insured may appear)
as to all applicable coverage (except worker's compensation);
Provide for thirty (30) days' notice to the City for cancellation, non-renewal, or material
change;
Provide for notice to both the City Manager and the Office of Risk Management by certified
mail at:
City of Grapevine
P.O. Box 95104
Grapevine, TX 76099
���
Provide that all provisions of the franchise ordinance, as amended, concerning liability,
duty, and standard of care, including the Indemnity section of this franchise ordinance,
shall be underwritten by contractual coverage sufficient to include such obligations within
applicable policies, subject to policy terms and conditions.
Companies issuing the insurance policies shall have no recourse against the City of
Grapevine for payment of any premiums or assessments which all are set at the sole risk
of the Grantee. Insurance policies obtained by Grantee shall provide that the issuing
company waives all right of recovery by way of subrogation against the City in connection
with any damage covered by these policies.
SECTION 19. INDEMNITY
Grantee shall defend, indemnify and hold City harmless from and against all damages,
cost, loss or expense for the repair, replacement, or restoration of City's property,
equipment, materials, structures and facilities which are damaged, destroyed or found to
be defective as a result of Grantee's negligence, willful misconduct or strict liability.
Grantee, for itself and its agents, employees, subcontractors, and the agents and
�., .
employees of said subcontractors, shall defend, indemnify, and hold the City, its
successors, assigns, officers, employees and elected officials harmless from and against
any and all claims, demands, suits, causes of action, and judgments for: (i) Damage to or
� � 19
�: b loss of the property of any person (including, but not limited to Grantee, its agents,
officers, employees and subcontractors, City's agents, officers and employees, and third
parties); and/or(ii) death, bodily injury, illness, disease, worker's compensation, loss of
•��-� services, or loss of income or wages to any person (including but not limited to the agents,
officers and employees of Grantee, Grantee's subcontractors and City, and third parties),
arising out of, incident to, concerning or resulting from the negligence, willful misconduct or
strict liability of Grantee, its agents, employees, and/or subcontractors, in the performance
of all activities and services pursuant to this Franchise, no matter how, or to whom, such
loss may occur.
In the event that any such damage, claim or loss is found by a court of competent
jurisdiction to be caused by the concurrent fault of both Grantee and City, then Grantee
shall indemnify City to the full proportionate extent that Grantee is determined to be at
fault. It is the intention of the parties, and Grantee expressly agrees, that the provisions of
this section shall not exclude claims, damages, and losses caused in part, but not wholly,
by the negligence of City, even if the City is more negligent than Grantee except to the
e�ent of the City's negligence.
City shall give Grantee prompt written notice of any claims or suits. Grantee shall have
the right to investigate, defend and compromise same to the extent of its own interests.
,� <,�
SECTION 20. NOTICES
All notices from Grantee to the City pursuant to this Franchise shall be directed to the City,
at, or to such officer as designated by the City Council. All notices to Grantee pursuant to
this Franchise shall be to such local corporate officer designated by Grantee in writinga
Grantee shall maintain a local telephone number operational during normal business
hours for the conduct of matters related to this Franchise. Any change in address or
telephone number shall be furnished to the City ten (10) days prior to the change.
SECTION 21. FORFEITURE AND TERMINATION
In addition to all other rights and powers retained by the City under this Franchise or
otherwise, the City reserves the right to forfeit and terminate this Franchise and all rights
and privileges of Grantee hereunder in the event of a material breach of its terms and
conditions, subject to reasonable notice and opportunity to cure, as provided in Section 16
as well as the provisions of Section 26.
The foregoing shall not constitute a material breach if the violation occurs without the fault
�'�' of Grantee or occurs as a result of circumstances beyond its control. Grantee shall not be
excused from performance of any of its obligations under this Franchise by mere
20
economic hardship, nor misfeasance or malfeasance of its directors, officers or
employees.
���•� A termination shall be declared only by a written decision of the City Council after an
appropriate public proceeding before the City Council, which shall accord the Grantee due
process and full opportunity to be heard and to respond to any notice of grounds to
terminate. All notice requirements shall be met by providing the Grantee at least fifteen
(15) days prior written notice of any public hearing concerning the proposed termination of
this Franchise. Such notice shall state the grounds for termination alleged by City.
The City Council, after public hearing, and upon finding the existence of grounds to
terminate, may either declare this agreement terminated or excuse such grounds upon a
showing by the Grantee of mitigating circumstances or good cause for the existence of
such grounds.
Neither Grantee's acceptance of this Franchise, Grantee's appearance before the City
Council at any public hearing concerning proposed termination of this Franchise nor any
action taken by the City Council as a result of any such public hearing, including a
declaration of termination or a finding of grounds to terminate, shall be construed to waive
or otherwise affect the Grantee's right to seek judicial determination of the rights and
�r.�
responsibilities of the parties under this Franchise.
SECTION 22. EMERGENCY OVERRIDE
Grantee shall comply with the regulations of the FCC regarding the provision of
emergency information to subscribers.
SECTION 23. GOVERNING LAW
This Franchise is subject to the provisions of the Constitution and laws of the United
States of America and the State of Texas.
SECTION 24. FORCE MAJEURE
The time within which Grantee shall be required to perform any act under the Franchise
shall be extended by a period of time equal to the number of days performance is delayed
due to a force majeure, nor shall Grantee be subject to any penalty hereunder because of
acts or failure to act due to "force majeure." The term "force majeure" shall mean delays
" due to acts of God, war, civil disturbances, fire, unavoidable casualty, construction delays
due to weather, failure of supplier(s), or for other causes beyond the control of Grantee.
�'� 21
SECTION 25. SEVERABILITY AND PREEMPTION
�.;�.
Except as provided in the subsequent paragraph, if any section, subsection, sentence,
clause, phrase, term, provision, condition, covenant or portion of this Franchise is for any
reason held invalid or unenforceable by any court of competent jurisdiction, or superseded
by state or federal legislation, rules, regulations or decision, the remainder of this
Franchise shall not be affected thereby but shall be deemed as a separate, distinct and
independent provision, and such holding shall not affect the validity of the remaining
portions hereof, and each remaining section, subsection sentence, clause, phrase,
provision, condition, covenant and portion of this Franchise shall be valid and enforceable
to the fullest extent permitted by law.
If any material provision of this Franchise is for any reason held invalid or unenforceable
by any court of competent jurisdiction, or superseded by state or federal law, rules,
regulations or decision so that the intent of these provisions is frustrated, the parties agree
to immediately negotiate replacement provision to fulfill the purpose and intent of the
superseded provisions consistent with applicable law.
In the event that federal or state laws, rules or regulations preempt a provision or limit the
°`" " enforceability of a provision of this Franchise, then the provision shall be read to be
preempted to the extent and for the time required by law. In the event such federal or
� state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise
changed so that the provision hereof that had been preempted is no longer preempted,
such provision shall thereupon return to full force and effect, and shall thereafter be
binding on the parties hereto, without the requirement of further action on the part of the
City, and any amendments to this Franchise negotiated pursuant to the preceding
paragraph as a result of such provision being preempted shall no longer be of any force or
effect.
SECTION 26. MEDIATION
Any controversy or dispute between Grantee and the City concerning the performance of
either party under this Franchise and/or calculation of any monetary payment due to the
City by Grantee may upon agreement of the parties, be submitted to mediation.
SECTION 27. EFFECTIVE DATE
�""� This ordinance shall take effect and be in force from and after July 31, 1997.
"'�"' 22
PASSED AND APPROVED BY THE CITY COUNCIL OF THE GTY OF GRAPEVINE,
TEXAS on first reading on this the 2oth day of May , 1997.
+� � PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE,
TEXAS on second and final reading on this the �st day of .luly
,
1997.
APPROVED:
�
William D. Tate
Mayor
ATTEST:
#,�.:.:�
_. �
�c,
Linda uff
City Secretary
APPROVED AS TO FORM:
. , o -
John F. Boyle, Jr. '
City Attorney
��...�
23
�., �.
ACCEPTANCE
OF ORDINANCE NO. 97-62
THE FOREGOING ORDINANCE FOR RENEWAL OF A FRANCHISE IN GRAPEVINE9
TEXAS, IS ACCEPTED. �
�
July 31 �gg�
,
Effective Date
APPROVED:
Paragon Communications; *
d/b/a Paragon Cable
State of Connecticut
County Of Fairf i.eld
This instrument was acknowledged before me on July 31, 1997 by
Marc J. Apf ell�aum
;seal)
Notary Public, State of Connecticut
My commission expires: DIMITRA SPYROPOUIOS
b/ic
My Cammission Expires Apri 30, 200Q
* By American Television and Communications, a partner, by MarC J. �pfel�a�;m
title Vice Pres�dent ,
�
24
� w EXHIBIT A
��
REBUILD SPECIFICATIONS
Paragon Cable will upgrade their present coaxial cable facilities to one of a
hybrid fiber coax system. The upgraded facility will have a bandwidth of 750
MHz, and all equipment placed in the plant, e.g., fiber nodes, amplifiers, and
passive equipment, will also have the capability of 750 MHz.
�
��
� :�
EXHIBIT B
�..�.
CONSUMER SERVICE STANDARDS
1. Telephone and Office Availability
The Grantee shall provide Subscribers a toll-free or local telephone number for installation,
service, and complaint calls.
The Grantee must have telephone lines, either adequately staffed or with answering
capability, providing at least emergency referral information, which are operational finrenty-
four(24) hours a day, every day, including weekends and holidays.
Under"Normal Operating Conditions" and when phones are staffed, Subscriber calls to the
Grantee will be answered on average within thirty (30) seconds ninety percent (90%) of the
�.�
time measured on a quarterly basis; and Subscribers will receive a busy signal three
percent (3%) of the time or less.
�' On weekdays, during normal business hours the Grantee must have telephone lines
staffed and have its office(s) located within the Franchise Area:
A. to accept payments;
B. to exchange or accept return of Grantee-provided equipment;
C. to schedule and conduct technical calls, and
D. to answer Subscriber inquiries.
On Saturdays, Grantee must have telephone lines staffed and have adequate staff
available: to accept equipment, such as Converters, at the option of the Grantee either at
its office or in the field; to schedule and perForm emergency service or emergency
technician calls; must have the capability to accept payments (this may be done through
arrangements with unaffiliated retailers); and to answer Subscriber inquiries which may be
answered by advising the caller when and to what number to call back during weekdays.
��.�
1
� � 2. Handicapped Access
The Grantee shall comply with all rules and regulations pertaining to the Americans with
Disabilities Act.
3. Employee Identification
All personnel of the Grantee contacting Subscribers or potential Subscribers outside the
office of the Grantee must be clearly identified as associated with the Grantee.
4. Installations
All installations will be in accordance with FCC rules, including but not limited to,
appropriate grounding, adjustment of the television set in order to receive Service, and the
provision of required consumer information and literature to instruct the Subscriber in the
utilization of the Services.
Under normal operating conditions, if the Grantee cannot perform standard installations as
defined above within five (5) business days of request by a Subscriber (provided that the
� � schedule or preferences of the person requesting installation have not been responsible for
the delay), the Subscriber may request and is entitled to receive a free standard installation.
If the Grantee fails to provide this free standard installation and the request was made by
the Subscriber within thirty (30) days of the installation request, the City may direct the
Grantee to issue a credit for the installation. Failure to comply with the City directive will "
subject Grantee to appropriate enforcement actions. This section does not apply to the
introduction of new products and services when Grantee is utilizing a phased introduction.
5. Service Interruptions and Other Service Problems
The Grantee shall make repairs promptly, and interrupt Service only if necessary and for
the shortest period possible.
The Grantee shall promptly notify the City of any "Significant Service Interruption" in the
operation of the System. For the purposes of this section, a "Significant Service
Interruption in the operation of the System "shall mean any outage a duration of at least
four (4) continuous hours between the hours of 6:00 a.m. to 10:00 p.m. and eight (8)
continuous hours between the hours of 10:00 p.m. and 6:00 a.m. to at least 3,000 of the
�,,:�
Subscribers in the area served by Grantee.
�
2
� �M The Grantee shall exercise its best efforts to limit any Significant Service Interruption for the
purpose of maintaining, repairing, or construction of the System. Except in an emergency
or other situation necessitating a more expedited or alternative notification procedure, the
�" Grantee may schedule a Significant Service Interruption only after the City has been given
reasonable prior notice of the proposed interruption.
Technicians employed by the Grantee and capable of performing service-related
emergency repairs and maintenance must be available finrenty-four (24) hours a day,
including weekends and holidays.
Under normal operating conditions, service-related Subscriber complaints, if possible, must
be resolved within forty-eight (48) hours (provided that the schedule or preferences of the
person requesting service have not been responsible for the delay) and in any event,
resolution must occurwithin one (1) week. A complaint shall be considered to be resolved
when signals received by the subscriber have been brought into compliance with
applicable FCC standards. Those matters requiring additional maintenance, repair, or
technical adjustments that necessitate an excess of one (1) week to reasonably complete,
must be finally resolved, if technically feasible, within thirty (30) days of the initial complaint
if the complaint has been determined to be the fault of the Grantee. The City Manager may
require reasonable documentation to be provided by the Grantee to substantiate the
additional time to resolve a complaint. The foregoing does not apply to service interruptions
� �' which occur on an intermittent basis.
�' Under normal operating conditions, upon request by the Subscriber, the Grantee shall
provide a credit to Subscriber when there is an Outage of all channels for a period of
twenty-four(24) consecutive hours or more which affects the discrete definable service
area. The credit for such an Outage shall equal, at a minimum, the value of one-thirtieth
(1/30) of Subscriber's current monthly bill, excluding premium, pay-per-view and special
events, for the first finrenty-four(24) consecutive-hour period and prorated for each
additional 4-hour period or portion thereof that the Outage continues.
Under normal operating conditions, upon request by the Subscriber, the Grantee shall
provide a credit to Subscriber when there is an Outage of any premium Service for a period
of finrenty-four(24) consecutive hours or more which affects a discrete, definable service
area. The credit shall equal, at a minimum, the value of one-thirtieth (1/30) of Subscribers
current monthly bill, for affected premium services, for the first twenty-four (24) consecutive-
hour period and prorated for each additional (4) hour period or portion thereof that the
Outage continues.
Under normal operating conditions, upon request of the Subscriber, the Grantee shall
provide a credit to the Subscriber whenever an Outage for a period of twenty-
�' � four(24) consecutive hours or more has affected fewer than all of the non-premium
channels received by the affected Subscriber as part of their Service. The credit shall
3
� � equal the value of one-thirtieth (1/30) of the prorated portion of the rate per affected
channel times the number of affected channels.
�
6. Installation and Service Appointments
The "appointment window" alternatives for installations and service calls which require
Subscriber presence, will be either a specific time or, at maximum, a four-hour scheduled
time block during normal business hours. The schedule time block may be longer if the
Subscriber consents. (The Grantee may schedule service calls and other installation
activities outside of normal business hours for the express convenience of the Customer).
This provision does not apply to disconnects, service upgrades or downgrades which do
not require access to the Subscriber's premises or to special request orders.
Under normal operating conditions, if the Grantee does not arrive for installations or
service calls by appointment within the scheduled four-hour time frame agreed to by the
Subscriber, the Subscriber may request and is entitled to receive a free standard
installation, or$20.00 credit respectively. If the Grantee fails to provide such free
standard installation, and the request was made by the Subscriber within thirty (30) days of
the missed appointment, the City may direct the Grantee to issue the credit. Failure to
� s�
comply with the City's directive will subject Grantee to appropriate enforcement actions.
Under Normal Operating Conditions, the Grantee may not cancel an appointment with a
"�"' Subscriber after the close of business on the business day prior to the scheduled
appointment without the Subscriber's consent.
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 make 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 a second contact at least one more time
during the previously agreed upon appointment window. The appointment will be
rescheduled, as necessary, at a time which is convenient to the Subscriber. Contacting the
Subscriber will not necessarily negate the requirement for a free standard installation.
7. Notices and Customer Communications
The Grantee shall notify affected Subscribers of any pricing changes or additional charges
(excluding temporary marketing and sales discounts or offers) and/or any changes in
programming services (including the scrambling or descrambling of channels - except the
�,.�
descrambling of a channel(s) for promotional purposes).
�
4
�=-�- The Grantee shall provide written information to Subscribers on each of the following areas
at the time of installation of Service, at least annually to all affected Subscribers, at any time
upon request, and for affected Subscribers, at least thirty (30) days prior to making
�'" significant changes in the information required by this section:
A. products and services offered;
B. prices and options for programming services and conditions of subscription to
programming and other services and facilities;
C. installation and maintenance policies including, when applicable, information regarding
the Subscriber's hpme wiring rights and information describing ownership of internal
wiring during the period Service is provided;
D. instructions on how to use the Service;
E. channel positions of programming offered on the System;
F. billing and complaint procedures, including the name, address and telephone number of
the City Manager
� �" G. the availability of a Signal control device;
'��' H. the Grantee's practices and procedures for protecting against invasions of privacy;
I. the address and telephone number of the Grantee's office to which complaints may be
reported; and
J. when applicable, the Grantee's community Unit Identifier as specified by the FCC.
In all Subscriber communications, the Grantee shall be as clear and precise as possible.
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 (as opposed to less specific terms, such
as "adjustment").
Notices of changes of programming services and/or channel locations shall include a
concise description of the new programming service and the specific dial location, of that
programming service. In addition, should the dial location, be affected by the introduction
�:�
of a new service, such information must also be included in the notice.
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� � In order that Subscribers are fully apprised of the charges they may incur, Companies will
generally be required to note that advertised rates are subject to additional taxes and fees.
In order that Subscribers are fully apprised of the charges they may incur, telephone
communications with Subscribers that quote rates, fees, and/or other charges shall inform
Subscribers that the rates, fees, and/or charges are subject to additional taxes and fees.
Every notice of termination of Service shall include all of the following information:
A. the name and address of the Subscriber whose account is delinquent.
B. current account balance.
C. the date by which payment is required in order to avoid termination of Service.
D. the telephone number of a representative of the Grantee who can provide additional
information and handle complaints or initiate an investigation concerning the Service
and charges in question.
�
8. Billing
Bills must be itemized, in accordance with service or services purchased by subscribers
""""` and related equipment charges as provided by law and regulations. If, on bills, a Grantee
chooses to itemize as a separate line item franchise fees and/or other governmentally-
imposed fees attributable to the total bill, such fees must be shown in accordance with any
applicable law concerning the Grantee's ability to itemize such fees.
Every residential Subscriber sending payment directly to the Grantee shall have at least ten
(ten) business days from the postmarked date of the initial bill for the delinquent amount for
Services to pay the listed charges prior to disconnect for non-payment.
A specific due date shall be indicated on every Subscriber bill. This provision applies only to
active accounts not those accounts pending disconnect.
Any Subscriber who, in good faith, disputes all or part of any bill has the option of
withholding the disputed amount without disconnection until Grantee has investigated the
dispute and has made a determination that the amount is owed provided that:
A. The Subscriber pays all undisputed charges;
�"` � B. The Subscriber provides written notification of the dispute to the Grantee in a timely
manner and includes identifying information; and
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� � C. The Subscriber cooperates in determining the appropriateness of the charges in
dispute.
�� The Grantee shall forward all regulatory billing inserts and copies of all other mailings
required by governmental authorities to Subscribers to the City Manager prior to or at the
same time that they are provided to Subscribers. (Copies of notices to Subscribers must
be forwarded to the City Manager pursuant to the applicable sections of these Consumer
Service Standards.)
9. Disconnection/Denial of Service
The Grantee shall not terminate residential Service for nonpayment of a delinquent account
unless the Grantee provides initial notice of the delinquency and impending termination at
least ten (10) days prior to the proposed termination. The notice shall be mailed, postage
prepaid, to the Subscriber to whom the Service is billed. This notice shall not be sent until
the finrenty-eighth (28th) day after the initial bill for Services was mailed to the Subscriber.
The notice of delinquency and impending termination may be part of a billing statement.
This section does not apply to Subscribers disconnected due to NSF checks.
The Grantee shall only terminate Service on days when the Subscriber can reach a
�A'� representative of the Grantee either in person or by telephone. Service terminated without
good cause must be restored without charge for the Service restoration. Good cause
includes, but is not limited to, signal leakage, failure to pay, payment by check for which
there are insufficient funds, theft of Service, abuse of equipment or System personnel, or
other similar Subscriber actions.
Subject to provisions of the franchise agreement, the Grantee shall furnish and maintain
Services to each person, in the franchise areas, who qualify for service, who makes a
request to receive any programming service. Nothing is these Standards shall limit the
right of the Grantee to deny Service to any household or individual which has a negative
credit or service history with the Grantee, which may include non-payment of bills or theft or
damage to the Grantee's equipment, or who has threatened or assaulted employees of the
Grantee in the course of their employment. Provided that in the event Service is denied,
the Grantee will give notice to the Subscriber of the right to contact the appropriate
regulatory authority, providing name, address, and phone number as directed by the City.
10. Deposits, Refunds, and Credits
Refund checks will be issued promptly within forty-five (45) days following the Subscriber
`�"� request.
� �
� � In addition to a requested refund, if the Grantee fails to mail a check for a refund to any
Subscriber who has requested a check who has disconnected Service with an outstanding
credit within forty-five (45) days of the date refund is requested, and the Subscriber has
returned all Grantee-owned equipment, the Subscriber is entitled to receive a $10.00
penalty payment, in addition to the total refund due. Failure to comply with the $10.00
penalty provision shall be grounds for appropriate enforcement actions.
Credits for Service will be issued no later than the Subscribers next billing cycle following
the determination that a credit is warranted.
11. Rates, Fees, and Charges
The Grantee shall not, except to the extent permitted by law, impose any fee or charge on
any Subscriber for service calls to said Subscriber's premises to perform any repair or
maintenance work related to Grantee-installed equipment necessary to receive Service,
except any such work which was necessitated by a negligent or wrongful act of said
Subscriber.
Where the actions of the Grantee, its agent(s) or subcontractor(s) can be shown upon a
reasonable demonstration of evidence to have contributed to the theft, loss or damage of a
'�" converter or other equipment lawfully used by a Subscriber, the Subscriber's liability with
respect to said converter or other equipment shall be reduced to the extent of such
contributing actions.
All charges for residential Services must be applied on a nondiscriminatory basis as
provided by law, allowing however, for reasonable discounts to senior citizens and/or the
economically disadvantaged and that the Grantee may conduct promotional campaigns in
which rates are discounted or waived, and may offer commercial rates or bulk rate
discounts for multiple dwelling units, hotels, motels and similar institutions.
The Grantee shall not assess late fees until the Subscriber's second billing cycle.
The Grantee shall be entitled to recover a fee for all checks returned due to non-sufficient
funds.
12. Privacy Protections
The Grantee shall comply fully with all applicable State and federal laws relating to the
protection of Subscriber privacy. The Grantee shall not disclose the telephone number of
"�'"" any Subscriber for any purpose that is not directly related to the provision of services
offered by Grantee. �
�
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� The Grantee shall not require more personally-identifiable information than is necessary to
confirm the identity of a Subscriber and any past due amounts owed the Grantee. The type
of information considered to be necessary, may vary depending on the individual
"��' Subscriber. The Grantee may deny service if a Subscriber fails to produce any verifiable
personally-identifiable information after being requested to do so.
13. Enforcement
The City may seek injunctive relief or any other Judicial remedy available pursuant to state
or federal law in order to enforce compliance with these standards.
14. Rights Reserved by the City
The City reserves the right to establish additional, reasonable consumer service standards
from time to time, as may be necessary, after making a finding of need and after notice and
opportunity to be heard from the Grantee and Grantee has agreed to said changes.
The City reserves the right to regulate rates for video Service to the fullest extent permitted
��
by law.
15. Consumer Service Reporting Requirements
All reports shall be provided for the Grapevine franchise area where the capability exists.
Otherwise, system-wide reports are acceptable and shall be deemed to reflect Grapevine
franchise area numbers based on the Allocation Percentage (the number of Franchise
Area Subscribers divided by the total system Subscribers).
Annual reports shall be due on April 1 annually, unless otherwise agreed upon by the City
and the Grantee.
The Grantee shall provide annual reports to the City containing, but not limited to, the
following information:
A. Telephone Report shall contain information relevant to the question of whether its
telephone answering system continues to conform to the third paragraph of section 1 of
this exhibit.
!f the City Manager determines, based on complaints or any other evidence, that the
"�'� Grantee's telephone service does not meet the standards set forth in this exhibit, or any
variations in those standards previously agreed to by the City Manager, then the City
�.
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� •� Manager has the authority to order the Grantee to take appropriate action to meet such
standards. Failure of the City Manager to issue such order, however, shall not
constitute a waiver of the City's rights with respect to any failure by the Grantee to
�`"" comply with its obligations pursuant to this exhibit or this Agreement.
B. Significant Service Interruptions report which shall track information on a monthly basis.
C. Grantee shall provide results of any technical testing on the system during the year.
The Grantee shall provide any other information which may be requested by the City
relevant to the administration of this franchise. This information, subject to reasonable
confidentiality requirements, shall be delivered to City Hall or shall be made available at the
office of the Grantee nearest to the City of Grapevine, Texas, within a reasonable period of
time.
��.,.�
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