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HomeMy WebLinkAboutOrdinance No. 912 ORIGIIqAL CITY OF THE COLONY, TEXAS OmNANCE NO. AN ORDINANCE GRANTING A NON]EXCLUSIVE FRANCHISE T O COMMUNICATIONS SERVICES, INC., FOR THE CONSTRUCTION, OPERATION AND MAIIqTENANCE OF A CABLE SYSTEM IN THE CITY OF THE COLONY, TEXAS, AND PROVIDING FOR ALL MATTERS INCIDENT AND RELATED TO THE GRANT OF SAID FRANCHISE; REPEALING CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Communications Services, Inc., hereinafter referred to as "CSI" or "Grantee," is now and has been engaged in the business of providing cable service in the City of The Colony, Texas, hereinafter referred to as "City" or "Franchising Authority," and in furtherance thereof has erected and maintained certain facilities in the streets, alleys, highways, public thoroughfares, public utility easements and public ways of the City pursuant to the Franchise granted by the City for the term of years and under the conditions specified in Ordinance No. 2-74 of the City, dated January 10, 1974; and WHEREAS, under the terms of said Ordinance, the Franchise granted by the City shall terminate on October 20, 1995; and WHEREAS, it is to the mutual advantage of both the City and CSI that CSI continue providing cable service in the City, and in furtherance thereof, that CSI continue to construct, operate and maintain its facilities in, on, under and over the thoroughfares of the City under the conditions herein set forth; and WHEREAS, the City and CSI have agreed that this Ordinance, when adopted by the City and accepted by CSI, is in full compromise, settlement and release of all claims which have been or which might have been asserted under the previous ordinance dated January 10, 1974, as amended, or the communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended; and WHEREAS, the City has determined that the financial, legal and technical abilities of CSI are reasonably sufficient to provide services, facilities and equipment necessary to meet the future cable-related needs of the City and its citizens; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF TIlE CITY OF THE COLONY, TEXAS, THAT: SECTION I 1.1 Definition of Terms. For the purposes of this Ordinance, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: a. "Affiliate" means an entity which owns or controls, is owned or controlled by, or is under common ownership or control with Grantee. b. "Basic Cable" is the tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals and public, educational and governmental (PEG) access channels. c. "Communications Act" means the Communications Act of 1984, as amended, including the Cable Television Consumer Protection and Competition Act of 1992, and as these acts may hereafter be further amended. d. "Cable Service" means (i) the one-way transmission to subscribers of Video Programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such Video Programming or any other lawful communication service. e. "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment or other communications equipment that is designed to provide Cable Service. f. "FCC" means Federal Communications Commission or successor governmental entity thereto. g. FCC Technical Standards, see Exhibit B, Federal Communications Commision Rules & Regulations, section 76.601, Subpart K. h. "Franchise" shall mean the initial authorization, or renewal thereof} issued by the Franchising Authority, whether such authorization is designated as a franchise, ordinance, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes construction, operation and maintenance of the Cable System for the purpose of offering Cable Service to Subscribers. i. "Franchising Authority" means the City of The Colony, Texas, or the lawful successor, transferee or assignee thereof. j. "Grantee" means Communications Services, Inc., or the lawful successor, transferee or assignee thereof. k. "Gross Revenues" mean the monthly Cable Service revenues received by Grantee from operation of the Cable System, provided, however, that such phrase shall not include: (i) revenues received from any national advertising carried on the Cable System, or (ii) any taxes on Cable Service which are imposed directly or indirectly on any Subscriber thereof by any governmental unit or agency, and which are collected by the Grantee on behalf of such governmental unit or agency. 1. "Person" means an individual, partnership, association, joint stock company, 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 and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Service Area, which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the Cable System. "Public Way" shall also mean any easement now or hereafter held by the Franchising Authority within the Service Area for the purpose of public travel or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing or transmitting Grantee's Cable Service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to the Cable System. n. "Service Area" means that area within the present municipal boundaries or corporate limits of the Franchising Authority, and shall include any additions thereto by annexation or other legal means. o. "Service Tier" means a category of Cable Service or other services, provided by Grantee and for which a separate charge is made by Grantee. p. "Subscriber" means a person or user of the Cable System who lawfully receives, Cable Services or other service therefrom with Grantee's express permission. q. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 2 2.1 Grant of Franchise. The Franchising Authority hereby grants to Grantee a nonexclusive Franchise which authorizes the Grantee to construct, operate and maintain a Cable System and offer Cable Service and other services in, along, upon, across, above, over, under or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any Public Way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments and other related property or equipment as may be necessary or appurtenant to the Cable System. 2.2 Term. The Franchise granted pursuant to this ordinance shall take effect and continue and remain in full force and effect for a period of fifteen (15) years from the effective date hereof (the "Initial Term"). The Initial Term of the agreement shall be renewed and extended for an additional successive five (5) year period (the "Extended Term"); provided, the Grantee complies with the terms hereof during said Initial Term and subsequent Extended Term, and such Franchise extension is govemed by and complies with federal laws and/or FCC regulations in effect at the time of the proposed renewal. 2.3 Acceptance and Effective Date. Grantee shall accept the Franchise granted pursuant hereto by signing this Ordinance and filing same with the City Secretary within thirty (30) days after the passage and final adoption of this Ordinance. Subject to the acceptance by Grantee, the !5t~ day of effective date of this Ordinance shall be upon its passage and final adoption this 20t~ -~, 1995. 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. SECTION 3 3.1 Police Power of Franchising AuthoriW.. Grantee shall at all times during the term of the Franchise granted by this Ordinance be subject to all lawful exercise of police power by the Franchising Authority. 3.2 Conditions of Street Occupancy. All transmission and distribution structures, poles, other lines and equipment installed or erected by the Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference w/th the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said Public Ways. The location, route and installation of all such transmission and distribution structures, poles, other lines and equipment installed or erected by Grantee within the Service Area shall be subject to the reasonable and proper regulation, control and direction of the City Manager or of any other City official to whom such duties have been or may be delegated. 3.3 Restoration of Public Ways. If during the course of Grantee's construction, operation or maintenance of the Cable System there occurs a disturbance of any Public Way by Grantee, Grantee shall, at its sole expense, replace and restore such Public Way to a condition that is as good as or better than the condition of the Public Way existing immediately prior to such disturbance. Furthermore, the Franchise granted pursuant to this Ordinance shall be subject to Grantee's compliance with the following: a. Grantee shall comply with all lawful roles, regulations and ordinances of the City relative to street and sidewalk cuts, bores or excavations. b. No street, alley or other thoroughfare shall be cut, excavated, bored or othem, ise disturbed by Grantee for a longer period of time than shall be necessary to execute the work, and Grantee shall pursue such work once commenced with diligence and as few interruptions as practicable. c. When Grantee undertakes any work or temporarily places any obstruction in any Public Way within the Service Area, Grantee shall protect the public by installing or placing barriers, lights and other identifying markings, in accordance with City ordinances and federal safety regulations, to identify the work area or site to the public. 3.4 Relocation at Request of Franchising Authori.ty. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of the Grantee when lawfully required by the Franckising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, the Grantee may with the consent of the Franchising Authority have the right of abandonment of its property. If public funds are available to any company using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to the Grantee. 3.5 Relocation at Request of Third Party.. The Grantee shall, on the request of any person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary wire changes. 3.6 Trimming of Trees and Shrubbery.. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Service Area so as to prevent branches from coming in contact with the Grantee's wires, cables or other equipment. The Grantee shall reasonably compensate the Franchising Authority or property owner for any damages caused by such trimming or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the Cable System undertaken by Grantee. Such replacement shall satisfy any and all obligations Grantee may have to the Franchising Authority or property Owner pursuant to the terms of this Section. 3.7 Use of Grantee's Equipment by Franchising Authori~,. Subject to any applicable state or federal regulations or tariffs, the Franchising Authority shall have the right to make additional use, for any public purpose, of any poles or conduits controlled or maintained exclusively by or for the Grantee in any Public Way; provided that: (a) such use by the Franchising Authority does not interfere with a current or future use by the Grantee; (b) to the extent permitted by law, the Franchising Authority holds the Grantee harmless against and from all claims, demands, costs or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits, including, but not limited to, reasonable attorney's fees and costs; and (c) at Grantee's sole discretion, the Franchising Authority may be required either to pay a reasonable rental fee or otherwise reasonably compensate Grantee for the use of such poles, conduits or equipment; provided, however, that Grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement, or other authorization, relating to the Service Area. 3.8 Safe~. Requirements. Construction, installation, and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All such work shall be performed in accordance with applicable FCC or other federal, state and local regulations. The Cable System shall not unreasonably endanger or interfere with the safety of persons or property in the Service Area. 3.9 Aerial and Underground Construction. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the Grantee likewise shall construct, operate and maintain all of its transmission and distribution facilities underground. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, Grantee shall have the sole discretion to construct, operate and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this Section 3.9 shall require Grantee to construct, operate and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals or other related equipment. Notwithstanding anything to the contrary contained in this Section 3.9, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this Ordinance, Grantee shall only be required to construct, operate and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time that such are placed underground. 3.10 Required Extensions of Service. Grantee is hereby authorized and directed to extend the Cable System within the Service Area, as required pursuant to the terms hereof. Whenever Grantee shall receive a request for service from at least twenty (20) Subscribers within 5,280 cable-beating strand feet (one cable mile) of its trunk or distribution cable, it shall, as hereinafter provided, extend its Cable System to such Subscribers at no cost to said Subscribers for system extension, other than the usual connection fees for all Subscribers, provided that such extension is technically feasible: a. Grantee shall immediately initiate the planning and budgetary process for such extension upon receiving a request for service from at least twenty (20) Subscribers within 5,280 cable-bearing strand feet (one cable mile) of its trunk or distribution cable; and b. Grantee shall initiate construction on such extension within twelve (12) months of (a) above; and c. Grantee shall complete construction within six (6) months of commencing such construction in (b) above; and d. Grantee shall provide written notification of the availability of Cable Service to all Subscribers that can be served by such system extension within thirty (30) days of completing such construction in (c) above. 3.11 Subscriber Charges for Extensions of Service. No subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a Subscriber's request to locate his cable drop underground where not otherwise required to be underground, the existence of more than one hundred fifty (150) feet of distance from distribution or feeder cable to Subscriber's service connection, a density of less than twenty (20) Subscribers per 5,280 cable-bearing strand feet of trunk or distribution cable, Cable Service or other service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by Grantee and Subscribers in the area in which Cable Service may be expanded, Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential Subscribers per 5,280 cable-bearing strand feet of its trunk or distribution cable, and whose denominator equals twenty (20) Subscribers. Potential Subscribers will bear the remainder of the construction and other costs on a pro rata basis. Grantee may require that the payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. 3.12 Service to Public Buildings. The Grantee shall provide without charge one (1) outlet of Basic Service to the Franchising Authority's office building(s), fire station(s), police station(s), Municipal Civic Center, Municipal Recreational Center, Municipal Senior Citizens Center, and public school building(s) that are passed by its Cable System. The outlets of Basic Service shall not be used to distribute or sell Cable Services in or throughout such buildings; nor shall such outlets be located in common or public areas. The Franchising Authority shall take reasonable precautions to prevent any use of Grantee's System in any manner that results in the inappropriate use thereof or any loss or damage to the System. To the extent permitted by law. the Franchising Authority shall hold Grantee harmless from any and all liability or claims arising out of the use of such outlets, including but not limited to, those ari~n~ from copyright liability Notwithstanding anything to the contrary set forth in this Section 3.t--J:, the Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds three hundred (300) cable feet, unless it is technically feasible and so long as it will not adversely affect the operation, financial condition or market development of the Cable System to do so, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop tine in excess of three hundred (300) cable feet. In the event that additional outlets of Basic Service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials. Upon request of Grantee, the building owner may also be required to pay the service fees associated with the provision of Basic Service and the additional outlets relating thereto. 3.13 Emergency Override. Grantee shall, at its own cost and expense, install an emergency management interrupt system in the head-end for the benefit of the Franchising Authority. This system may be remotely activated by the Franchising Authority by installing a touch-tone telephone line, the cost of which is to be borne solely by the Franchising Authority. In the case of any emergency or disaster, the Franchising Authority would then be able to use the remote telephone to provide emergency information and instructions during the emergency or disaster period. The Franchising Authority shall take reasonable precautions to prevent any use of Grantee's System in any manner that results in inappropriate use thereof, or any loss or damage to the System. The Franchising Authority shall only permit designated persons to operate the emergency override system, and shall take reasonable precautions to prevent any use of the emergency override system in any manner that results hi inappropriate use of the override system, or any loss or damage to the Cable System. To the extent permitted by law, the Franchising Authority shall hold the Grantee, its agents, employees, officers and assigns hereunder, harmless from any claims arising out of the emergency use of its facilities by the Franchising Authority, including, but not limited to, reasonable attorney's fees and costs. 3.14 Performance Evaluations. Under the direction of the Franchising Authority, the Franchising Authority and Grantee shall jointly conduct scheduled performance evaluation sessions within thirty (30) days of the second, fourth, sixth and eighth year anniversary dates of the effective date of this Ordinance. All performance evaluation sessions shall be open to the public and announced in a local newspaper of general circulation at least ten (10) days prior to the meeting. Grantee shall submit to the Franchising Authority within twenty (20) days of the performance evaluation, a written report identifying comments made by the public and Grantee's responses. 3.15 Maps. Grantee shall file annually with the Franchising Authority current maps showing the location of Grantee's cables. 3.16 Public~ Educational and Governmental Access. Within thirty (30) days of the effective date of this Franchise, Grantee shall dedicate one (1) channel to the Franchising Authority for public, educational and/or governmental (PEG) access programming. This PEG channel will be available to any public or non-profit group, pursuant to applicable provisions of the Corcamunications Act. At such time as the Cable System is expanded pursuant to Section 3.18 hereof, Grantee will dedicate two (2) additional channels, for a total of three (3) channels, to the Franchising Authority for public, educational and/or governmental (PEG) Access programming. These PEG channels will be available to any governmental, educational, public or non-profit group, pursuant to the applicable provisions of the Communications Act. 3.17 Public, Educational? and Governmental Access Equipment. (a) Within 60 days of the effective date of the Franchise, Grantee shall provide and install at its own expense the following PEG access equipment in the City Hall: (1) One (1) VCR, Panasonic "Pro-Line" AG-1970 o~' its equivalent; (2) One (1) "Portable" camera, panasonic "ProLine" AG-455 or its equivalent; (3) Two (2) JVC Model TK 128OU fixed-mount cameras with Pelco remote control system or its equivalent; (4) One (1) Videonics MX-1 Digital Video Mixer or its equivalent; (5) One (1) Videonics TM-1 character generator or its equivalent; (6) Three (3) Videonics TM-9U color monitors or its equivalent; (7) One (1) Bogan tripod or its equivalent; and (8) One (1) return system to the Grantee's head-end for the direct live cable-cast of City Council meetings and functions held at the City Hall. This equipment shall become the sole responsibility of the Franchising Authority subsequent to its installation in the City Hall, including maintenance and replacement. (b) At the Franchising Authority's request, the Cable Operator will impose a surcharge on Subscriber bills, not to exceed fifty cents ($.50) per month, for the production and/or cable-casting of PEG access programming, pursuant to applicable provisions of the Communications Act. Said surcharge, if imposed, shall be remitted to the Franchising Authority by Grantee on an annual basis and in the same manner provided for Grantee's payment of the Franchise Fee, as set forth in Section 4.1 hereof. Grantee, at its option, may separately identify such surcharge, if imposed, on Subscriber's monthly bills. (c) The upstream system electronic and distribution facilities and equipment and cabling provided by Franchisee shall be of sufficient quality and performance specifications to enable all material cablecast on the access channels provided pursuant to this Agreement to meet all video and audio signal quality standards adopted by the FCC when transmitted downstream to subscribers, including any such standards as may be adopted or amended during the term of this Franchise Agreement. 3.18 Programming Services and System Technology. Grantee's Cable System shall be capable of delivering to Subscribers a minimum of fifty-eight (58) full-time video programming services (channels) no later than forty-eight (48) months from the effective date of this Franchise Ordinance. Exclusive of pilot tests and/or demonstration projects, broadcast, programming, transmission, security and other system technology, as defined, identified and installed by Grantee in its other cable systems throughout the Dallas/Fort Worth Metroplex, shall be installed and employed throughout the Cable System at all times during the initial or any successor term of the Franchise. Digital compression and fiber, optic technology will be installed and employed throughout the Cable-System at such time that said technology is installed and employed by Grantee in its other cable systems throughout the Dallas/Fort Worth Metroplex. SECTION 4 4.1 Franchise Fee. In consideration for the rights and privileges herein granted, the value of such rights and privileges, the administration of this Franchise by the Franchising Authority, the usage and interference with the public's usage of Public Ways within the Service Area, and the costs and obligations undertaken by the Franchising Authority herein, Grantee shall pay to the Franchising Authority an annual Franchise Fee equal to five percent (5 %) of Gross Revenues, as def'med in Section 1.1 hereof, received by Grantee from the operation of the Cable System on an annual basis. a. For the purpose of this section, the 12-month period applicable under the Franchise for the computation of the Franchise Fee shall be a calendar year, unless otherwise agreed to in writing by the Franchising Authority and Grantee. b. The Franchise Fee payment shall be paid quarterly and shall be due and payable no later than thirty (30) days after close of each quarter dates March 31, June 30, September 30 and December 31 for the preceding calendar quarter. Each such payment shall be accompanied by a financial report from Grantee, prepared according to generally accepted accounting principles as applied in the cable industry, showing in reasonable detail the basis for the Franchise Fee computation. c. To the extent consistent with 5.2 herein, Grantee shall maintain and shall make available for audit by the Franchising Authority, within a reasonable response time and upon reasonable notice, all non-proprietary and non-confidential financial and operating records reflecting the amounts of and basis for computation of all annual Franchise Fee payments to the Franchising Authority. All such accounts and records shall be kept according to generally accepted accounting principles as applied in the cable industry. d. The period of limitation for recovery of any Franchise Fee payable hereunder shall be five (5) years from the date on which payment by the Grantee is due. Unless within five(5) years from and after said payment due date the Franchising Authority initiates a lawsuit for recovery of such Franchise Fees in a court of competent jurisdiction, such recovery shall be barred, and the Franchising ' Authority shall be estopped from asserting any claims whatsoever against the Grantee relating to any such alleged deficiencies. e. The Franchising Authority, with six months written notice to Grantee, hereby reserves the right to increase the Franchise Fee provided for herein up to a maximum amount or percentage of Gross Revenues currently or in the future allowed by the Communications Act, not to exceed a maximum amount or percentage of seven and five-tenths percent (7.5%) of Gross Revenues. Grantee, at its option, may include such Franchise Fee increase as a surcharge to Subscribers. f. The Franchise Fee payments required herein to be paid by Grantee shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or other character of charge for use and occupancy of the Public Ways of the Franchising Authority; in lieu of any pole tax or inspection fee tax; in lieu of any easement or Franchise tax, whether levied as an ad valorem, special or other character of tax; and in lieu of any imposition other than the usual general or special ad valorem taxes and sales taxes now or hereafter levied, and the reasonable costs incurred by Grantee or the Franchising Authority to restore that portion of a Public Way cut, excavated or damaged by the Grantee. Should the Franchising Authority not have the legal power to agree that the payment of the foregoing Franchise Fee shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or Franchise taxes aforesaid, then the Franchising Authority agrees that it will apply so much of said payment as may be necessary to the satisfaction of the Grantee's obligation, if any, to pay any such taxes, licenses, charges, fees, rentals and easement or Franchise taxes imposed by the Franchising Authority. 4.2 Rates and Charges. The Franchising Authority may regulate rates to the max/mum extent provided by the Communications Act, as it now exists or as it may hereafter be amended, or by any subsequent or successor federal or state law or regulation determined to have preempted or superseded the Communications Act in this regard. 4.3 Renewal of Franchise. The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act, as it now exists or as it may hereafter be amended, unless the procedures and substantive provisions set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent or successor federal or state law or regulation. 4.4 Conditions of S ale. Except to the extent expressly required by federal or state law, if a renewal or extension of Grantee's Franchise is lawfully 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 a fair market value, determined on the basis of the Cable System valued as a going concern, and in accordance with generally accepted accounting principles as applied in the cable industry. Grantee and Franchising Authority agree that in the case of a lawful revocation of the Franchise, at Grantee's request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party. The Franchising Authority further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such re-vocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Franchising Authority, Grantee and Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee's continued operation of its Cable System during said 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. Notwithstanding anything contained herein to the contrary, neither Franchising Authority nor Grantee shall be required to violate federal or state law. 4.5 Transfer of Franchise. Grantee's right, title or interest in the Franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an Affiliate, without Franchising Authority's express written consent. 4.6 Service Offerings. In accordance with Section 623(f) of the Communications Act, Grantee shall not charge a subscriber for any service or equipment that the subscriber has not affirmatively requested by name. For purposes of this subsection, a subscriber's failure to refuse a cable operator's proposal to provide such service or equipment shall not be deemed to be an affirmative request for such service or equipment. 4.7 Regulation by Franchising Authority. Nothing in this Franchise shall prohibit the Franchising Authority from regulating any matter relative to the operation of the Cable System and the offering of Cable Services by the Grantee, the authority of which to regulate is recognized by any local, state or federal law. 4.8 Consumer Protection. Customer service requirements of the Grantee, consumer protection rights of Subscribers, construction schedules and other construction-related requirements of the Grantee, and other health, safety and welfare measures related to the Grantee's operation of the Cable System and its provision of Cable Services shall be in conformance with the requirements of the Communications Act and FCC regulations related thereto as they now exist or may hereafter be amended, specifically including 47 C. F. R. Part 76 (Subpart H), attached hereto as" Exhibit A" and incorporated herein by reference. SECTION 5 5.1 Testing for Compliance. The Franchising Authority may perform technical tests of the Cable System during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of the Grantee or the Cable System in order to determine whether or not the Grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only after givkng Grantee reasonable notice thereof, not to be less than two (2) business days, and providing a representative of Grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the Grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the Grantee. In the event that such testing demonstrates that Grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the Franchising Authority. Except in emergency circumstances, the Franchising Authority agrees that such testing shall be undertaken no more than two (2) times a year in the aggregate, and that the results thereof shall be made available to the Grantee upon Grantee's request. 5.2 Books and Records. The Grantee agrees that the Franchising Authority may review such of its books and records, during normal business hours and on a non-disruptive basis, as is reasonably necessary to monitor compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be requited to disclose information deemed confidential of proprietary by law. The Franchising Authority agrees to the extent allowed by law to treat any information disclosed to it 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. SECTION 6 6.1 Insurance Requirements. Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Comprehensive General Liability Insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage. Said insurance shall designate the Franchising Authority as an additional insured. Such insurance shall be noncancellable except upon thirty (30) days prior written notice to the Franchising Authority. 6.2 Indemnification. The Grantee agrees to indemnity, save and hold harmless, and defend the Franchising Authority, its officers, boards and employees, from and against any liability for damages to persons or property 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, including, but not limited to, attorney's fees and costs. 6.3 Bonds and Other SureW,. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. The Franchising Authority acknowledges that the legal, financial and technical qualifications of Grantee are sufficient to afford compliance with the terms of the Franchise and the enfomement thereof. Grantee and Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for Cable Services. In order to minimize such costs, the Franchising Authority agrees to require bonds and other surety 0nly in such amounts and during such times as there is a reasonably demonstrated need therefor. The Franchising Authority agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than $10,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the Franchising Authority agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in the Grantee's legal, financial or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith. SECTION 7 7.1 Notice of Franchise Violation. In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged noncompliance. 7.2 Grantee's Right to Cure or Respond. Grantee shall have thirty (30) days from receipt of the notice described in Section 7.1: (a) to respond to the Franchising Authority contesting the assertion of noncompliance, or (b) to cure such default, or (c) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed. 7.3 Public Hearing. In the event that Grantee fails to respond to the notice described in Section 7. 1, pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied within thirty (30) days after the Grantee is notified of the alleged default pursuant to Section 7.1, the Franchising Authority shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the Franchising Authority which is no less than five (5) business days therefrom. The Franchising Authority shall notify the Grantee of the date, time and place of such meeting and provide the Grantee with an opportunity to be heard. 7.4 Enforcement. Subject to applicable federal and state law, in the event the Franchising Authority, after such public hearing, determines that Grantee is or remains in default of any material provision of the Franchise, the Franchising Authority may: a. Foreclose on all or any part of any security provided under this Franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the Franchising Authority reasonably determines is necessary to remedy the default; b. Pursuant to Section 6.3 hereof, require the Grantee to provide bonds or other surety in such amount as the Franchising Authority reasonably determines is necessary and sufficient to remedy the default. e. Commence an action at law for monetary damages or seek other equitable relief; d. Initiate revocation procedures; or e. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by mason of any failure of the Franchising Authority to enfome prompt compliance. 7.5 Acts of God. The Grantee shall not be held in default or noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God or other events reasonably beyond its ability to control. SECTION 8 8.1 Unauthorized Reception Unlawful. It shall be unlawful for any person, firm or corporation to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of the Cable System without the express consent of the Grantee. Further, without the express consent of Grantee, it shall be unlawful for any person to tamper with, remove or injure any property, equipment or part of the Cable System or any means of receiving Cable Service or other services provided thereto. Any person who violates any provision of this Section shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine as provided in Section 1.06 of Chapter I of the City's Code of Ordinances. Each day any such violation or violations continue shall constitute a separate offense and be punishable as such. SECTION 9 9.1 Actions of Franchising Authori,ty. In any action by the Franchising Authority or representative thereof 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. 9.2 Place of Performance and Venue. All rights, duties and obligations under this Franchise Ordinance are enfomeable, and venue therefor shall reside in a court of competent jurisdiction in Denton County, Texas, or in the Federal Judicial District in which Denton County, Texas, is located. 9.3 Notice. Unless expressly agreed otherwise between the parties, every notice or response to be served upon the Franchising Authority or Grantee shall be in writing and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, return receipt requested, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service. The notices or responses to the Franchising Authority shall be addressed as follows: City of The Colony 5151 North Colony Boulevard The Colony, TX 75065 The notices or responses to the Grantee shall be addressed as follows: Communications Services, Inc. 8 Prestige Circle Allen, Texas 75002 with a copy to: Communications Services, Inc. Attention: Legal Department 4700 South Syracuse Street Suite l 100 Denver, Colorado 80237 Franchising Authority and Grantee may designate such other address or addresses from time to title by giving written notice to the other. 9.4 Descriptive Headings. The captions to Sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein,. 9.5 Repeal of Conflicting Ordinances. All ordinances, orders or resolutions heretofore passed and adopted by the City Council of the City of The Colony, Texas, are hereby repealed to the extent that said ordinances, orders or resolutions, or parts thereof, are in conflict herewith. 9.6 Severability. If any section, subsection, clause, phrase or provision of this Ordinance, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or by any state or federal authority having jurisdiction thereof to be invalid, void or unconstitutional, the remaining sections, subsections, clauses, phrases and provisions of this Ordinance, or the application thereof to any person or circmstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 9.7 Effective Date. Pursuant to Section 2.3 hereof, the effective date of this Franchise Ordinance shall be effective immediately after its passage and final adoption on second reading, subject to the acceptance of the Grantee. Passed and adopted this ¢:~ ay of /9/,,, 3/-/:lff~-~Zk~. 19"-~ subject to applicable federal, state and local law. IN WlTNES~WI~Ej _/R~OF, the parties hereto have entered into this Franchise Agreement on c~O --Jj/OF, 19c~'~.- City of The Colony, Texas ~(-~- ~A/~ Title: ,./,?~2A7~.~ ~ Clerk ' Accepted this [5~ day of ' ~--cq,~3~- , 19 C~ subject to applicable federal, state and local law. "EXHIBIT A" 47 C.F.R. PART 76 - C3tBLE TELEVISION SERVICE Subpart H - General Operating Requirements §76.300 Scope of application. (a) The provisions of ~§76.302, 76.306, and 76.307 are applicable to all cable television systems. NOTE: In addition to this band, stations in Puerto Rico may continue to be authorized on 942.5, 943.0, 943.5, 944.0 M~z in the band 942-944 MHz on a primary basis to stations and services operating in accordance with the Table of Frequency Allocations. (b) The provisions of §§76.301 and 76.305 are not applicable to any cable television system serving fewer than 1,000 subscribers. (Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317, 48 Stat., as amended, 1064, 1065, 1066, 1068, 1081, 1082, 1083, i084, 1085, 1088, 1089; (47 U.S.C. 152, 153, 154, 155, 301, 303, 307, 308, 309, 3 15, 317) §76.301 Copies of rules. The operator of a cable television system shall have a current copy of Part 76, and is ex?ected to be familiar with the rules governing cable television systems. Copies of the commission's rules may be obtained from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, at nominal cost. §76.302 Required record-keeping for must-carry purposes. (a) Effective June 17, 1993, the operator of every cable television system shall maintain for public inspection a file containing a list of all broadcast television stations carried by its system in fulfillment of the must-carry requirements pursuant to §76.56. Such list shall include the call .sign, community of license, broadcast channel number, cable channel number, and in the case of a noncommercial educational broadcast station, whether that station was carried by the cable system on March 29, 1990. (b) The operator of every cable television system shall maintain for public inspection the designation and location of its principal headend. (c) Such records must be maintained in accordance with the provisions of §76.305(b). 1 (d) Upon written request from any person, a cable operator is required to provide the list of signals specified in paragraph (a) of this section in writing within 30 days of receipt of such request. §76.305 Records to be maintained locally by cable system operators for public inspection. (a) Records to be maintained. The operator of every cable television system having 1,000 or more subscribers shall maintain for public inspection a file containing a copy of all records which are required to be kept by §76.207 (political file); §76.221(f) (sponsorship identifications); ~76.79 (EEO records available for public inspection); §76.225(c) (commercial records for children's programming); §76.601(c) (proof-of- performance test data); §76.601(e) (signal leakage logs and repair records) and §76.701(h) (records for leased access). (b) Location of records. The public inspection file shall be maintained at the office which the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business or at any accessible place in the community served by the system unit(s) (such as a public registry for documents or an attorney's office). The public inspection file shall be available for public inspection at any time during regular business hours. (c) The records specified in paragraph (a) of this section shall be retained for the period specified in §§76.207, 76.22!(f), 76.79, 76.225(c), 76.601(c), and 76.601(e), respectively. (d) Reproduction of records. Copies of any material in the public inspection file shall be available for machine reproduction upon request made in person, provided the requesting party shall pay the reasonable cost of reproduction. Requests for machine copies shall be fulfilled at a location specified by the system operator, within a reasonable period of time, which in no event shall be longer than seven days. The system operator is not required to honor requests made by mail but may do so if it chooses. (Secs. 2, 3, 4, 5, 301, 303, 307, 308, 309, 315, 317, 48 Stat., as amended, 1064, 1065, 1066, 1068, 1081, 1082, 1083, 1084, 1085, 1088, 1089; (47 U.S.C. 152, 153, 154, 155, 301, 303, 307, 308, 309, 315, 3 17)) ~76.307 System inspection. The operator of a cable television system shall make the system, its public inspection file {if required by §76.305), and 2 its records of subscribers available for inspection upon request by any authorized representative of the commission at any reasonable hour. §76.309 Customer service obligations. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (c) of this section against cable operators. The franchise authority must provide affected cable operators ninety (90) days written notice of its intent to enforce the standards. (b) Nothing in this rule should be construed to prevent or prohibit: (1) A franchising authority and a cable operator from agreeing to customer service requirements that exceed the standards set forth in paragraph (c) of this section; (2) A franchising authority from enforcing, through the end of the franchise term, pre- existing customer service requirements that exceed the standards set forth in paragraph (c) of this section and are contained in current franchise agreements, (3) Any state or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted herein; or (4) The establishment or enforcement of any state or municipal law or regulation concerning customer service that imposes customer service requirements that exceed, or address matters not addressed by the standards set forth in paragraph (c) of this section. (c) Effective July 1, 1993, a cable operator shall be subject to the following customer service standards: (1) Cable system office hours and telephone availability (i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week. (A) Trained company representatives will be available to respond to customer telephone inquiries during normal 3 business hours. (B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. (iii) The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (iv) Under normal operating conditions, the customer will receive a busy signal less than three (3) percent of the time. (v) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located. (2) Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis: (i) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet from the existing distribution system. (ii) Excluding conditions beyond the control of the operator, the cable operator will begin working on "service interruptions" 4 promptly and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem. (iii) The ,,appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.) (iv) An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. (v) If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as sche~duled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. (3) Communications between cable operators and cable subscribers - (i) Notifications to subscribers (A) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at .any time upon request: (1) Products and services offered; (2) Prices and options for programming services and conditions of subscription to programming and other services; (3) Installation and service maintenance policies; (4) Instructions on how to use the cable service; 5 (5) Channel positions programming carried on the system; and (6) Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office. (B) Customers will be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. In addition, the cable operator shall notify subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. (ii) Billing (A) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (B) In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within 30 days. (iii) Refunds - Refund checks will be issued promptly, but no later than either - (A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) The return of the equipment supplied by the cable operator if service is terminated. (iv) Credits Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. 6 (4) Definitions - (i) Normal business hours - The term "normal business hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. (ii) Normal operating conditions The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. (iii) Service interruption - The term ,,service interruption" means the loss of picture or sound on one or more cable channels.