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HomeMy WebLinkAboutOrdinances (O-03-1413)-08/19/2003 ORDINANCE 0-03-1413 AN ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS, GRANTING TO COMCAST CABLE OF TEXAS II, INC., ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AND FRANCHISE FOR THE TERM OF TEN YEARS, TO ERECT, MAINTAIN, AND OPERATE A CABLE SYSTEM IN THE CITY OF COLLEYVILLE, TEXAS; TO ERECT, MAINTAIN, AND OPERATE ITS POLES, TOWERS, ANCHORS, WIRES, CABLES, ELECTRONIC CONDUCTORS, CONDUITS, MANHOLES, AND OTHER STRUCTURES AND APPURTENANCES IN, OVER, UNDER, ALONG, AND ACROSS THE PRESENT AND FUTURE PUBLIC RIGHTS-OF-WAY IN THE CITY; PRESCRIBING COMPENSATION FOR THE RIGHTS, PRIVILEGES, AND FRANCHISE CONFERRED HEREUNDER; PRESCRIBING THE CONDITIONS GOVERNING THE OPERATION OF THE BUSINESS INSOFAR AS IT AFFECTS THE USE OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH BUSINESS; INSTALLATION, UPGRADE, MAINTENANCE, AND OPERATION OF SAID SYSTEM AND BUSINESS; CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE WHEREAS, by Ordinance No. 094-966 and No. 0-94-967 passed and approved on December 6, 1994 the City of Colleyville, Texas ("City"), granted to TCI TKR of The Metroplex, Inc., referred to herein as TCI in this preamble, the right, privilege, and franchise to erect, maintain, and operate for a term of ten (10) years a cable system in said City with an effective date of December 6, 1994; and WHEREAS, TCI has provided cable services within the City under such franchise; and WHEREAS, TCI, now Comcast Cable of Texas II, Inc., has requested renewal of its franchise in accordance with Section 626 of the Communications Act to allow continued operation of its cable system in the City; and WHEREAS, the City Council finds from all the evidence that TCI, now Comcast Cable of Texas II, Inc., meets the legal, character, financial, and technical qualifications, as well as other qualifications, necessary to provide cable service in accordance with this franchise; and WHEREAS, following proper notice, the City Council of the City of Colleyville held a public hearing on Grantee's request for renewal, at which time representatives of TCI, now Comcast Cable of Texas II, Inc., and any and all persons desiring to be heard as interested members of the public were afforded an opportunity for comment on the proposed franchise; and WHEREAS, the City Council now deems it appropriate that the franchise be renewed with Comcast Cable of Texas II, Inc., as Grantee. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: SECTION 1 ENACTMENT 91.01. Recitals. The facts and recitations set forth in the preamble of this Ordinance are hereby adopted, ratified, and confirmed. 91.02. Short Title. This Ordinance shall be known and may be cited as "The City of Colleyville Cable Service Franchise Ordinance." Within this document, it shall be referred to as the "Franchise." SECTION 2 DEFINITIONS 92.01. Terms. The following terms, phrases, words, abbreviations, and their derivations shall have the meanings hereafter set forth. Terms, phrases, words, and abbreviations not defined herein shall be construed in accordance with the Communications Act, and if not therein defined, then in accordance with the ordinances of the City or their customary usage and meaning. When not inconsistent with the context, words used in the singular shall include the plural, words in the plural shall include the singular, and words used or defined in one tense or form shall include other tenses or derivative forms. The headings contained in this Franchise are to facilitate reference only, do not form a part of this Franchise, and shall not in any way affect the construction or interpretation hereof. The words "shall," "will," and "must" are mandatory, and the word "may" is permissive or directory. A. Affiliate. A Person, directly or indirectly, Controlling, Controlled by, or under common Control with the Grantee, provided that "Affiliate" shall in no event mean any limited partner holding an interest of less than five percent (5%) of the Grantee, or 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. B. Basic Cable Service. Any service tier, which includes the retransmission of local television broadcast signals, as well as the EG Channels required by this Franchise. 2 [Consistent with federal definition 47 U.S.C. 522 (3); basic service tier may not always be the lowest priced service] C. Communications Act. The Communications Act of 1934 as amended and as may be amended from time to time during the term of this Franchise (47 U.S.C. ~ 521 et seq., as amended). D. Cable Operator. Any Person or group of Persons (i) who provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in the cable system, or (ii) who otherwise Controls or is responsible for, through any arrangement, the management and operation of such a Cable System. E. Cable Service. (A)The one-way transmission to Subscribers of (i) Video Programming, or (ii) Other Programming Service and (B) Subscriber interaction, if any, which is required for the selection or use of such Video Programming, Other Programming Service. F. Cable Svstem. 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, but is not limited to, Video Programming and which is provided to multiple Subscribers within a community, but such term does not include facilities that qualify under the exceptions put forth in 47 U.S.C. ~522(7). Unless otherwise specified, "Cable System" is used in this Franchise to refer to the particular cable system authorized under the Franchise and operated by the Grantee or any Affiliate who is a Cable Operator within the Franchise Area. G. Channels. A portion of the electromagnetic spectrum, which is capable of delivering a video signal, an audio signal, a voice signal or a data signal. A Channel can be either "downstream," in which case the signal is transmitted by Grantee from Grantee's facilities to Subscriber premises, or "upstream," in which case the signal is transmitted in the reverse direction from Subscriber premises to Grantee's facilities. For purposes of rate regulation, the City and the Grantee retain all lawful rights to interpret the definition of "channels" in a manner consistent with this Franchise and regulations promulgated by the FCC. H. Control. The actual working control of Grantee in whatever manner exercised. Without limiting the generality of the foregoing, for the purposes hereof, a change in Control shall be deemed to have occurred at any point in time when there is: (i) a change in working or effective voting control, in whatever manner effectuated, of the Grantee; (ii) an agreement of the holders of voting stock or rights of the Grantee which effectively vests or assigns policy decision-making in any Person other than the Grantee; or (iii) a sale, assignment or transfer of more than ten percent (10%) of the shares or interest in the Grantee. 3 I. Days. Calendar days unless otherwise specified. J. Drop. An aerial or underground portion of the Cable System which extends from the tap to the ground block or other mutually agreed point of demarcation at, outside or within the Subscriber's residence or business. K. Educational Access Channel. The non-commercial Channel(s) on the Cable System which are reserved for educational users and used in accordance with the rules and procedures established by the City or its designee. L. EG Channels. All Educational Access Channels and Government Access Channels, collectively. M. EG Proorammina. Programming produced for and exhibited over the EG Channels. Assist the City in establishing exhibition requirements which helps limit the use of production equipment for only programs shown over the access channel] N. Expanded Basic Cable Service. One or more clusters of cable programming services which mayor may not be offered for an additional monthly charge over and above the charge for Basic Cable Service. O. Federal Communications Commission or FCC. The agency as presently constituted by the United States Congress or any successor agency with jurisdiction over Cable Service matters. P. Franchise Area. The incorporated area of the City and such additional areas as may be included in the corporate limits of the City during the term of this Franchise. Q. Government Access Channel. The non-commercial Channel(s) on the Cable System which are reserved for government users and used in accordance with the rules and procedures established by the City or its designee. R. Grantee. Comcast Cable of Texas II. Inc., or any Person who succeeds Comcast Cable of Texas II, Inc., in accordance with the provisions of this Franchise. S. Gross Revenue. Any and all revenue received by Grantee as determined in accordance with generally accepted accounting principles, its Affiliates, or any Cable Operators of the Cable System or other Persons acting as Cable Operators of the Cable System (regardless of who bills for the Cable Services), which is derived from or attributable to the operation of the Cable System to provide Cable Services. By way of illustration and not limitation, Gross Revenue includes all fees charged Subscribers for any and all Cable Services provided by Grantee over the Cable System such as Basic Cable Service revenues, Expanded Basic Cable Service revenues, Pay Cable Service 4 revenues, revenues resulting from connection or reconnection to the Cable System in order to receive Cable Services, revenues resulting from the lease, rental, or use of Cable System equipment used to provide Cable Service, revenues from late, delinquent, or other administrative fees applied to Cable Services, Franchise fees assessed on Cable Services which are collected from Subscribers, and cable Internet service to the extent this service is considered a Cable Service under applicable law. Gross Revenues shall also include advertising revenues received by the Grantee which are attributable to Cable Services delivered over the Cable System in the City and/or from display on equipment, facilities, revenues resulting from the lease, use or rental of Channels or Channel capacity to provide Cable Services, and revenues received by Grantee from commissions on sales from shopping Cable Services. Gross Revenue shall also include revenues received from programmers for carriage of programming on the Cable System based on excess receipts from programmers over actual marketing expenses. Gross Revenues shall not include those payments described in subsection 14.09 of this Franchise. The parties intend for the definition of Gross Revenue to be as inclusive as possible consistent with existing applicable law. If there is a change in federal law subsequent to the effective date of this Franchise, such change shall not impact this Gross Revenues definition in such a way to reduce Gross Revenue unless the change specifically preempts the affected portion of the definition above. T. Institutional Network. A portion of the Cable System constructed and maintained by Grantee and which is only available for private, non-commercial use by governmental and/or educational entities pursuant to agreement between the Grantee and the City. U. Other Proarammina Service. Information that a Cable Operator makes available to all Subscribers generally. V. Normal Ooeratina Conditions. Those service conditions that are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, labor strikes or slowdowns, civil disturbances, telephone network outages which are not caused by Grantee or its Affiliate, commercial power outages, and severe or unusual weather conditions. Those conditions which are within the control of Grantee include, but are not limited to, special promotions, pay-per-view events, changes in rates, regular or seasonal demand periods, changes in the billing cycles, changes in channel lineups that are within the Grantee's control, backup power during power outages, and maintenance or upgrade of the Cable System. W. Pay Cable Services. The delivery over the Cable System of programming to Subscribers for a fee or charge over and above the charge for Basic Cable Service or Expanded Basic Cable Programming Service on a per program, per-Channel, per connection or per-time period of connection basis. 5 X. Person. Any person, firm, partnership, association, corporation, company, joint stock company, trust corporation, governmental entity, or organization of any kind. Y. Public Riahts-of-Wav. The surface, the air space above the surface, and the area below the surface of any public street, highway, freeway, land path, parkway, circle, lane, 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, repair, and maintenance of a Cable System. 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, repair, and maintenance of a Cable System, and the Grantee shall be deemed to gain only those rights which the City has the undisputed right and power to give. Z. Subscriber. Any Person lawfully receiving Cable Service delivered by means of the Grantee's Cable System. AA. Video Proarammina. Programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 3 GRANT OF AUTHORITY 93.01. Use of Public Riahts-of-Wav. There is hereby granted to Grantee the right, privilege, and Franchise to have, acquire, construct, reconstruct, repair, maintain, use, and operate in the City a Cable System, and to have, acquire, construct, reconstruct, repair, maintain, use, and operate in, over, under, and along the present and future Public Rights-of-Way of the City all necessary or desirable poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes, and other structures and appurtenances necessary for the construction, maintenance, and operation of a Cable System in the Franchise Area. Grantee or Affiliates shall not install or construct facilities within the City's Public Rights-of-Way, which are not authorized by this Franchise or lawfully allowed by applicable local, state, or federal law. 93.02. Use, Rental. or Lease of Utility Poles and Facilities. There is hereby granted to Grantee the authority to contract with the City or with the holder or owner of any utility Franchise in the City for the use, rental, or lease of its or their poles, underground conduits, and other structures and facilities for the purpose of extending, carrying, or laying Grantee's wires, cables, electronic conductors, and other facilities and appurtenances necessary or desirable in conjunction with the operation of its Cable System. The City agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to its Franchise, allow, and is encouraged to allow, Grantee to make such use thereof pursuant to any agreement 6 reached between such utility and Grantee. Nothing in this Franchise shall authorize Grantee to attach any part of its Cable System to any City-owned conduits or facilities until Grantee has entered into a separate agreement with the City, supported by independent consideration, for such rights of attachment or use. 93.03. Additional Services/Compensation. By granting this Franchise, the City does not waive and specifically retains any right to regulate and receive compensation as allowed by law for services offered over the Cable System, which are not Cable Services. Upon request, Grantee shall inform City of any non-Cable and/or cable Services offered over the Cable System of which Grantee or its Affiliates is aware. Nothing in this Franchise shall be construed to limit any lawful authority of the City to impose a tax, fee, or other assessment of any kind on any Person (other than the Grantee, its Affiliates and/or other Persons which are Cable Operators of the Cable System), with respect to Cable Service or other communications service provided by such Person over the Cable System for which charges are assessed to Subscribers but not received by the Grantee, its Affiliates and/or other Persons who are Cable Operators of the Cable System. Upon request, Grantee shall inform City of any uses of the Cable System by Persons who are not Cable Operators. 93.04. Responsibilitv for Costs. Except as expressly provided otherwise, any act that Grantee is required to perform under this Franchise shall be performed at its cost. If Grantee fails to perform work that it is required to perform within the time provided for performance, the City may perform the work and bill the Grantee for documented costs. The Grantee shall pay the amounts billed within thirty (30) days. The parties agree that any amounts paid pursuant to this Section are not Franchise fees and fall within one or more of the exceptions to the definition of Franchise fee under federal law. Nothing in this section is intended to affect in any way (by expansion or contraction) Grantee's rights under applicable law governing rates. SECTION 4 TERM, EVALUATION, AND RENEWAL 94.01. Term of Franchise. This Franchise shall be in full force and effect for a term and period of ten (10) years commencing after passage and approval of this Franchise by the City and in accordance with the written acceptance as required by Section 30 of this Franchise. 94.02. Performance Evaluations. In order to assure that the Grantee is complying with the terms of this Franchise and with the character, quality, and efficiency of service to be rendered, given, performed, and furnished under this Franchise, and in order to promote a sharing of information between the City Council and the Grantee, the City may schedule a performance evaluation no more often than every three (3) years of the Franchise, subject to subsection 4.03 below, in accordance with the following process: 7 A. At least ninety (90) days prior to each performance evaluation, the City shall notify the Grantee of the date, time and location of the evaluation. Such notice shall include specification of any additional information to be provided by the Grantee pursuant to paragraph B (vi) below. Unless specifically waived by the City Council, attendance of Grantee's duly authorized representative at these meetings shall be mandatory. B. Within sixty (60) days from receipt of such notification, the Grantee shall file a report with the City that is certified by a representative of the Grantee knowledgeable of the operations of Grantee within the City, in reasonable detail, specifically addressing, at a minimum, the following areas: (i) compliance with the requirements regarding technical performance and testing, as provided in subsection 12.02 of this Franchise; (ii) compliance with the EG Channel requirements, as provided in subsections 14.01 and 14.02; (iii) compliance with and Institutional Network ("I-Nef') requirements, as provided in Section 1 0.05 of this Franchise; (iv) compliance with any upgrade requirements, as provided in Sections1 0.04 and 10.02 of this Franchise; (v) compliance with the customer service standards, as provided in Exhibit A of this Franchise; (vi) a comparison of rates to any benchmarks or standards set by federal, state, or local agencies having jurisdiction; (vii) any other topic deemed material or relevant by the City for its enforcement of this Franchise, subject to subsection 18.03. C. All reports to be prepared under this subsection and submitted by Grantee shall be based on information since the previous performance evaluation up to and inclusive of the most current quarter available and not data that ends more than six (6) months before the time of the performance evaluation. D. Following receipt of the report, but not less than thirty (30) days prior to the performance evaluation, the City may request additional information, clarification or detailed documentation concerning those topics identified for inclusion in the performance evaluation. Grantee shall make reasonable effort to provide such additional information to the City prior to the meeting. In the event that the information cannot be made available prior to the performance evaluation, Grantee shall notify the City in writing explaining the reasons for such delay. 8 E. The City Council may hear any interested Persons during such performance evaluation. The Grantee shall be entitled to all the rights of due process consistent with the City proceedings, including but not limited to, the right to present evidence and the right to be represented by counsel. F. Upon request of the City, Grantee shall assist the City in notifying Subscribers of the evaluation session. Nominal costs associated with the notification, in an amount not to exceed $1,000, shall be borne by the Grantee. ~4.03. Additional Performance Evaluations. Notwithstanding subsection 4.02, the City Council may initiate and conduct such additional performance evaluations regarding Grantee's performance under this Franchise as the City Council, in its sole discretion, may deem justified or necessary under the circumstances. Grantee shall be given reasonable notice of the date, time, and location of any such additional performance evaluations. ~4.04. Renewal. Grantee and City agree that the Communications Act, or other law applicable shall govern Franchise renewal proceedings at the time of renewal. SECTION 5 RECOUPMENT OF COSTS BY CITY ~5.01. Publication Costs. Any and all costs of publication related to this Franchise, which may be required, by law or action of City Council shall be borne by Grantee. Any payments made by the City under this provision are to be reimbursed to the City within thirty (30) days of Grantee's receipt of the invoice. SECTION 6 COMPLIANCE WITH CITY, STATE, AND FEDERAL LAWS ~6.01. Compliance with Applicable Laws. Grantee shall at all times comply with all laws, rules, and regulations of the City, state and federal governments and any administrative agencies thereof which are applicable to all businesses in the City and/or all users of the Public Rights-of-Way. ~6.02. Subiect to Police Power of the City. The construction, maintenance, and operation of Grantee's Cable System and all property of Grantee subject to the provisions of this Franchise shall be subject to all lawful police powers, rules, and regulations of the City. The City shall have the power at any time to order and require Grantee to remove or abate any pole, line, tower, wire, cable, guy, conduit, electric conductor, or any other structure or facility that is dangerous to life or property. In the event Grantee, after written notice, fails or refuses to act within fifteen (15) days of such 9 written notice, City shall have the power to remove or abate the same at the expense of Grantee, all without compensation or liability for damages to Grantee except in instances when the damage is caused by negligence or willful misconduct of the City or its agents. ~6.03. Notification in the Event of Preemptive Law. Grantee shall use its best efforts to notify the City in the event of any change in law that materially affects Grantee's rights or obligations under this Franchise. SECTION 7 CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY ~7.01. Use. All structures, wires, cables, equipment, and facilities erected or maintained by Grantee within the City shall be located as to cause minimum interference with the proper and intended use of the Public Rights-of-Way and with the rights or reasonable convenience of the owners or occupants of property which adjoins any of such Public Rights-of-Way. The location of all poles, towers, anchors, wires, cables, electronic conductors, conduits, manholes and other structures and appurtenances in, over, under, along, and across the present and future Public Rights-of- Way in the City shall be fixed under the supervision of the City or an authorized agent appointed by the City. Grantee agrees to comply with all other City laws, rules, or ordinances that govern the use of Public Rights-of-Way that currently exist or may be applicable during the term of this Franchise, provided that such are promulgated under the City's lawful police powers. In the event that there is conflict between requirements of this Franchise and other lawful and generally applicable City ordinances governing Grantee's ability to use the Public Rights-of-Way, the more strict provisions shall apply. ~7.02. Excavation. Grantee may excavate only for the construction, installation, expansion, repair, removal, and maintenance of all or a portion of its facilities used to provide Cable Service under this Franchise. In the event a permit may ordinarily be required for any excavation, a permit shall not be required for the installation of facilities to initiate service to a customer's property, or repair or maintenance of existing facilities unless such installation, repair or maintenance requires the breaking of pavement, excavation or boring. Grantee shall provide the City written notice within fifteen (15) days of any proposed breaking of pavement, excavation, or boring on any Public Rights-of-Way other than for the purposes of installation of facilities to initiate service to a customer's property, or repair or maintenance of existing facilities, prior to the commencement thereof. Grantee shall provide the City with notice following any emergency maintenance that required the breaking of pavement, excavation, or boring on the Public Right-of-Way. Property owners or occupants of adjoining property shall be given reasonable notice. No Public Rights-of-Way shall be encumbered by construction, maintenance, removal, restoration, or repair work by Grantee for a longer period than shall be necessary to execute such work. When the Grantee shall make or cause to be made excavations or shall place obstructions in any Public Rights-of-Way, the public 10 shall be protected by barriers and lights placed, erected, and maintained by the Grantee in accordance with any existing or future City, state, or federal requirements. 97.03. Restoration. The surface of any Public Rights-of-Way disturbed by Grantee in laying, constructing, maintaining, operating, using, extending, removing, replacing, or repairing its Cable System shall be restored by Grantee as soon as is reasonably possible, but in no instance more than thirty (30) days after the completion of the work, under Normal Operating Conditions. The thirty (30) day period shall be extended for days that the Grantee is unable to perform the work due to unfavorable weather conditions. In the event restoration is scheduled to take longer than thirty (30) days for any other reason, Grantee shall provide the City with written notice as to the reason(s) for the delay. Grantee shall restore the Public Rights-of-Way at its cost and expense, to as good a condition as before the commencement of the work, and the restoration shall be maintained by Grantee to the satisfaction of the City for one (1) year from the date of completion of such restoration work. If there is an unreasonable delay by Grantee in restoring and maintaining Public Rights-of-Way after such excavations or repairs have been made, City shall have the right, following written notice to Grantee to which Grantee has forty-eight (48) hours in which to respond, to restore or repair the same and to require Grantee to pay to the City the reasonable cost of such restoration or repair, all without compensation or liability for damages to the Grantee unless such damage was caused by the negligence or willful misconduct of the City or its agents. In the event City determines that Grantee's use of any of City's Public Rights-of-Way as set forth in this Franchise pose an immediate danger to the health, safety or general welfare of the public, City shall have the right to restore or repair same and shall require Grantee to pay to the City the reasonable costs incurred regarding same, all without compensation or liability for damages to the Grantee unless such damage was caused by the willful misconduct of the City or its agents. 97.04. Relocation. Whenever by reason of the construction, repair, maintenance, relocation, widening, raising, or lowering of the grade of any Public Rights- of-Way by the City or by the location or manner of construction, reconstruction, maintenance, or repair of any public property, structure, or facility by the City, it shall be deemed necessary by the City for Grantee to move, relocate, change, alter, or modify any of its facilities or structures, such change, relocation, alteration, or modification shall be promptly made by Grantee when directed in writing to do so by the City. Grantee shall pay the cost of such relocation unless there are funds generally available to affected users of the Public Right-of-Way for reimbursement of such costs, in which case Grantee shall be entitled to its share of such funding. If the funds are controlled by another governmental entity, the City shall make application for such funds on behalf of the Grantee upon request of Grantee if Grantee cannot make such application itself. In the event Grantee, after such notice, fails or refuses to commence, pursue, or complete such relocation work within a reasonable time, the City shall have the authority, but not the obligation, to remove or abate such structures or facilities and to require Grantee to pay to the City the reasonable cost of such removal or abatement, all without compensation or liability for damages to Grantee unless such damage was caused by the willful misconduct of the City or its agents. 11 97.05. Temporary Removal of Wire for Buildinq Movinq. Upon written request of any Person holding a building moving permit issued by the City, Grantee shall remove, raise, or lower its wires and cables temporarily to permit the moving of houses, buildings, or other bulky structures. The reasonable expense of such temporary removal, raising, or lowering shall be paid by the benefited Person, and Grantee may require such payment in advance, Grantee being without obligation to remove, raise, or lower its wires and cables until such payment shall have been made. Grantee shall be given not less than seventy-two (72) hours advance written notice to arrange for such temporary wire and cable adjustments. 97.06. Tree Trimminq. The Grantee shall have the authority to trim trees or other natural growth overhanging any of the Cable System in the Franchise Area so as to prevent branches from coming into contact with the Grantee's wires, cables or other equipment that may be damaged due to continued contact. The Grantee shall reasonably compensate the City or property owner for any damages caused by such trimming, or shall, at its own expense, replace all trees or shrubs damaged as a result of such trimming in a mutually agreed manner with the property owner. From time to time, the City Council may pass ordinances regulating the trimming or removal of trees on or along City property, and Grantee shall comply with these ordinances. 97.07. Placement of Fixtures. Grantee shall not place poles, towers, or similar fixtures where the same will interfere with any gas, electric, telecommunications, water hydrant, water main, drainage, sanitary sewer or other facilities located within the City's Public-Rights-of-Way as authorized by the City, and all such poles, towers, and similar facilities shall be placed as directed by the City. 97.08. Approval of Plans and Specifications. Grantee shall provide complete plans and specifications for all construction (with the exception of individual drops) within Public Rights-of-Way to the City. Approval of plans and specifications shall not be unreasonably delayed or denied. In the event of rejection, Grantee shall submit revised plans and specifications for approval. This provision shall apply to each construction sequence if the construction is accomplished in phases. 97.09. Underqround Installation. In those portions of the City having telephone lines and electric utility lines underground, whether required by ordinance or not, any and all of Grantee's lines, cables, and wires shall also be underground. Grantee's lines, cables, wires, and similar facilities located above ground prior to the effective date of this Franchise shall be relocated underground by Grantee at the same time that other above-ground utility lines (e.g., electric and telecommunications lines) located within the immediate vicinity of Grantee's facilities are required to be placed underground. Grantee shall pay the cost of such relocation unless there are funds generally available to affected users of the Public Right-of-Way for reimbursement of such costs, in which case Grantee may be entitled to a share of such funding. It shall be the policy of the City that existing poles for electric and communications purposes be 12 utilized by Grantee whenever possible and that underground installation, even when not required, is preferable to the placing of additional poles. ~7.10. Facilities Location. From time to time, the City or its representatives, may request identification of the specific location of certain Grantee Cable System facilities. The Grantee agrees to respond to such request within forty-eight (48) hours of the receipt of the request. In the event that Grantee fails to provide the necessary information, and damage is caused to Grantee facilities as a direct result of withholding said information, the Grantee shall hold the City harmless from all liability, damage, cost or expense resulting from any City action in this regard unless such damage was caused by the willful misconduct of the City or its agents. The City shall have the right to be informed as to matters in connection with or affecting the construction, reconstruction, maintenance, operations, and repair of the Cable System facilities of the Grantee within the Public Rights-of-Way including, but not necessarily limited to, the identification and location of the Grantee's Cable System facilities within the Public Rights-of-Way and to updates of such information as changes regarding same occur. At a minimum, this requires Grantee to maintain on file with the City a current set of strand and trench drawings of the Cable System. Such strand and trench maps shall be updated as changes occur in the Cable System. In addition to providing the location of Grantee's facilities, Grantee agrees to obtain facilities location information from other users of the Public Rights-of-Way prior to Grantee's construction, reconstruction, maintenance, operations and repair of the Cable System facilities. Upon request by the City, the Grantee shall furnish the City information relevant to such matters, which is prepared, maintained, and available in the ordinary course of business. SECTION 8 INDEMNIFICATION AND LIABILITY ~8.01. Indemnification. It is the intent of this Section and by its acceptance of this Franchise, Grantee specifically agrees, that Grantee, for itself and its agents, employees, subcontractors, and the agents and employees of said subcontractors, shall indemnify and hold the City, its officers, agents, employees, contractors, elected officials, successors and assigns harmless from all liability actions, causes of action, lawsuits, judgments, claims, damages, penalties, costs or fees, including attorney's fees and costs of defense, for any injury to or the death of any Person or damage to or destruction of any property arising out of, resulting from or based upon, in whole or in part, any act or omission of Grantee, its officers, employees, contractors, subcontractors, and agents under this Franchise, including the construction, operation, or maintenance of its Cable System. In the event that any action, suit or proceeding is brought or claim is made 13 against the City based upon or arising out of any such act or omission of the Grantee under this Franchise, the City shall give notice in writing of such action, suit, proceeding or claim to the Grantee. However, the failure of the City to provide such notice in writing to Grantee shall not relieve Grantee of its duties and obligations under this Section, provided that Grantee is given sufficient advance notice to perform its duties under this Section. The City shall not and does not by reason of this granting of this Franchise, or any failure to act by the City which may impact the Grantee's performance under this Franchise, assume any liability of Grantee whatsoever for injury or death to Persons, damage to property, or penalties of any kind whatsoever. The provisions of this Section shall survive the expiration or early termination of this Franchise. 98.02. Damaaes and Penalties. Grantee shall pay, and by acceptance of this Franchise specifically agrees that it will pay, all damages or penalties which the City, its officers, agents, employees, or contractors may legally be required to pay as a result of damages arising out of copyright infringements and all other damages arising out of Grantee's or Grantee's agents' installation, maintenance, or operation of the Cable System whether or not any act or omission complained of is authorized, allowed, or prohibited by this Franchise. 98.03. Expenses. If any action or proceeding is brought against the City or any of its officers, agents, employees, or contractors with respect to which payment may be sought for claims for damages or penalties described in this Section, the Grantee, upon written notice from the City, shall assume the investigation of defense and fully control any resolution or compromise thereof, including the employment of counsel and the payment of all expenses including the reasonable value of any services rendered by any officers, agents, employees or contractors of the City which are not unreasonably duplicative of services provided by Grantee and its representatives. The City shall fully cooperate with the Grantee. 98.04. Separate Counsel. The City shall have the right to employ separate counsel in any action or proceeding and to participate in the investigation and defense thereof, and the Grantee shall pay the reasonable fees and expenses of such separate counsel if employed with the approval and consent of the Grantee or if representation of both the Grantee and the City by the same attorney would be inconsistent with accepted canons of professional ethics. SECTION 9 INSURANCE REQUIREMENTS 99.01. this Franchise: Minimum Coveraae. Grantee shall maintain throughout the term of A. a commercial general liability insurance policy issued by a company duly authorized to do business in the State of Texas (and acceptable to the City) insuring the 14 Grantee with respect to the installation, maintenance, and operation of Grantee's Cable System in the minimum amount of two million dollars ($2,000,000) per incident and four million dollars ($4,000,000) aggregate. B. an automobile liability insurance policy and, if necessary, a commercial umbrella liability insurance policy with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any Grantee motor vehicle (including owned, hired, and non-owned vehicles). S9.02. Increased Coveraae. The City Council reserves the right to require Grantee to increase the minimum amounts of liability insurance coverage up to a maximum of four million dollars ($4,000,000) per incident if such increased coverage is deemed by City Council to be reasonably based on changes in statutory law, court decisions, or the claims history of the industry or the Grantee. Such requirement shall be expressed by resolution or ordinance. S9.03. Endorsements. Grantee agrees that with respect to the insurance requirements contained in subsection 9.01, all insurance certificates will contain the following required provisions: A. Name the City of Colleyville and its officers, employees, and elected representatives as additional insured. B. Provide for thirty (30) days notice to the City for cancellation, non-renewal or material change, or ten (10) days notice to the City in the event of non-payment of the premium. C. Shall be on an occurrence basis and shall be primary coverage of all losses resulting from Grantee's operations covered by the policies. S9.04. Workers' Compensation. The Grantee shall maintain throughout the term of this Franchise workers' compensation and employers liability insurance in the amount required by all applicable federal and state laws. S9.05. Certificate of Insurance. Within thirty (30) days after the effective date of this Franchise, Grantee shall provide to the City and maintain on file throughout the term of the Franchise a certificate of insurance evidencing coverage as required in this Section. At the City's request, such request to be based only on evidence, which suggests that the certificates supplied are incorrect, a true and correct copy of the insurance policies shall be made available for the City's review at Grantee's offices. If Grantee elects to make such policies available for review outside of the Dallas, Texas metropolitan area, Grantee shall pay the travel costs for a City representative to review such policies. Grantee's policies are considered proprietary information, which is subject to non-disclosure, and may not be copied by any means. 15 99.06. Term. The insurance required by subsection 9.01 shall be kept in full force and effect by Grantee during the existence of this Franchise and thereafter until after the removal of all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures incident to the maintenance and operation of Grantee's Cable System, should such removal be required by City Council or undertaken by Grantee. ~9.07. Issuina Companies. Companies issuing the insurance policies shall have no recourse against the City 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 10 CABLE SYSTEM CHARACTERISTICS 910.01. Channel Capacitv. Grantee's Cable System shall have the potential of providing no fewer than one hundred (100) Channels throughout the term of this Franchise. At a minimum, eighty (80) Channels shall be programmed and offered to Subscribers in the Franchise Area during the term of this Franchise. All Channels being offered to Subscribers within the Franchise Area will adhere to the technical standards set forth in paragraph 12.02 (A). 910.02. New Construction. Any areas of the City where Grantee constructs new Cable System facilities, such facilities shall be built, at a minimum, to the same technical specifications as the Cable System existing in the City as of the effective date of this Franchise. However, where technically and financially feasible, any new construction areas will be constructed to at least the quality of new construction that has been implemented by the Grantee or its affiliates in other systems operating within the Dallas-Fort Worth metroplex. 910.03. Cable System Capabilities. The Cable System will have the following attributes during the term of this Franchise: A. Activated return capability from Subscriber locations; and B. Emergency standby power rated at a minimum of twenty-four (24) hours at the headend, four (4) hours at each fiber optic node located throughout the Cable System, and one and one-half (1- Y2) hours at any other power supply on the distribution portion of the Cable System. This latter requirement shall be increased to at least two (2) hours within two years of the effective date of this Franchise. 16 910.04. Future Upqrades. In the event Grantee either voluntarily or under the terms of subsection 10.02 undertakes an upgrade or rebuild of the Cable System during the term of this Franchise, at least thirty (30) days prior to the implementation of any upgrade and/or replacement activities, Grantee shall provide to the City a written plan which shall include general information as to the construction necessary for the project, and the procedure or method Grantee will employ to ensure minimal interruption of Cable Service. All construction and technical specifications included in the plan(s) submitted by Grantee shall be in conformity with the provisions of this Franchise, including any lawful and generally applicable City permitting process. Grantee shall meet with the City to discuss the status and progress of the construction upon request. 910.05. Institutional Network. Grantee shall, upon the request of the City, provide I-Net capacity according to a design and functionality to be specified by City and the Grantee which, at the City's discretion, may be used for non-commercial, non- profit applications, by the City, its agencies, other governments and their agencies, K- 12 schools, libraries, public corporations created by the City, and other non-profit institutions to the extent that such non-profit institutions provide public services. In the event that the Grantee requires reimbursement of costs to provide, construct, and/or maintain such I-Net, the City will only be required to reimburse Grantee based on Grantee's Incremental Cost as defined in Exhibit B. Grantee agrees that the City may utilize fibers within the Grantee's fiber sheath as may be available for I-Net capacity in order to maximize the cost savings to be realized through paying Incremental Costs only. In no event will any part of the subscriber network distribution system be utilized to I-Net capacity. The City or its designee shall have the right to control and manage the use of the I-Net provided for herein. The Grantee shall, if requested by the City, maintain the I-Net it provides, up to a demarcation point, according to the terms of a maintenance agreement between the parties. The City will be responsible for the Incremental Costs associated with maintenance of the portion of the I-Net providing capacity to the City. The demarcation point at any City designated facility will generally mean the patch panel, termination block, or other termination device located at each I-Net site, at the point closest to the Grantee's facilities where the device transmits signals to and from the I-Net provided by Grantee. The cost to the City for the construction of the I-Net shall be no more than the Incremental Cost of I-Net construction, and there shall be no other charge by the Grantee to the City or other authorized user for the use of the I-Net than maintenance as determined in a separate maintenance agreement. The I-Net capacity to any location identified in Exhibit C shall be provided within 12 months following a request by the City that Grantee construct or provide an I-Net connection to that location. Any additional sites shall be constructed within 18 months following a request by the City that the Grantee construct or provide an I-Net connection to that location. The Grantee shall cooperate with the City to ensure the 17 most cost-effective construction of the I-Net. Costs of construction shall not exceed the estimate provided by Grantee. Upon notification by the City to the Grantee to construct an I-Net, the Grantee shall provide cost estimates to the City within thirty (30) days of such request, and shall if the City so directs, proceed with such construction upon Grantee's receipt of a City purchase order and agreement on method of payment. The City has sixty (60) days from receipt of cost estimates, or as may be required by law, to approve the costs and authorize construction of the I-Net. Prior to a request for I-Net construction by the City to the Grantee, Grantee shall notify the City at least one hundred-twenty (120) days in advance of any plans for additional plant construction near the locations in Exhibit C. If the City notifies the Grantee within 30 days that it desires to have an I-Net constructed by the Grantee, then the same requirements shall apply as are set forth in the previous paragraph following provision for notification by the City to Grantee that it desires to have Grantee construct an I-Net. Costs of construction shall not exceed the estimate provided by Grantee. Within thirty (30) days of the City's request, Grantee shall determine the technical and operational feasibility of interconnecting the City's I-Net capacity to an I-Net within any contiguous jurisdiction, and it feasible and subject to mutual agreement, interconnect such capacity to a contiguous jurisdiction designated by the City. The I-Net may only be used for any (a) municipal purpose (proprietary or governmental); (b) educational purpose; (c) public purpose, or for use of the EG Channels. It is understood that the connections to City, county or other governmental institutions and transmissions to and among these institutions fall within the terms above. To the extent allowed by law, cost related fees may be charged by the City to Persons other than Grantee for use of the I-Net or for the information transmitted via the I-Net. The I-Net may be linked to any other communications network used by the City or to any I-Net user authorized by the City, provided such user is either a public agency or such use is for non-commercial, non-profit purposes. The I-Net may also be linked to the Internet; however, the City (or an entity under the City's control) may not use the I-Net provided by Grantee to act as the Internet Service Provider for the general public or any commercial establishments. The City may designate an entity to control and manage the use of the I-Net provided by Grantee. The City may not lease, to a third party, any portion of the network that Grantee installs or leases to the City without the prior written permission of the Grantee; provided that the Grantee shall not unreasonably deny such permission, and shall limit denial to those cases where the lease may reasonably be construed as facilitating the provision of a service in competition with the Grantee. Moreover, where the purpose of any use is commercial and for profit, such use shall not be allowed without the written permission of Grantee. 18 I-Net users will not attach any equipment or otherwise use the I-Net in any way that will interfere with the signal quality and the normal operation of Grantee's quality and the normal operation of Grantee's Cable System in conformity with this Franchise or FCC regulations, including but not limited to regulations pertaining to signal leakage. The City and other I-Net users will not resell access to the I-Net. The parties agree that there shall be no charge for the I-Net provided by Grantee other than the incremental construction costs and possible maintenance charges specified in this Section and defined in Exhibit B. SECTION 11 PERFORMANCE BONDING 911.01. Amount. Within thirty (30) days of the effective date of this Franchise, the Grantee shall furnish and file with the City a performance bond in the amount of seventy-five thousand dollars ($75,000.00. The bond shall be conditioned upon the faithful performance of the Grantee of all terms and conditions of the Franchise. Such performance bond will be in addition to any construction bonding requirements of other lawful and generally applicable City ordinances. 911.02. Reservation of Riahts. The rights reserved by the City with respect to the bond are in addition to all other rights the City may have under the franchise extension or any other law. 911.03. Endorsement. The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled without the consent of the City. The City must be given thirty (30) days written notice by registered mail, return receipt requested, of intent to cancel or not to renew." SECTION 12 OPERATIONAL STANDARDS 912.01. Compliance with FCC Rules. At a minimum, Grantee shall comply with present and future rules and regulations of the FCC, including but not limited to, technical standards, testing requirements, consumer protection standards and consumer electronics compatibility regulations and all other present and future rules and regulations of the FCC in connection with and relating to the operation of Grantee's Cable System. Such compliance will not negate or replace any additional requirements identified in this Franchise. 19 ~12.02. Technical Performance. A. Grantee's Cable System within the City shall meet or exceed all FCC and other applicable technical and signal quality standards for cable systems, including any such standards or regulations as hereinafter may be amended or adopted to the extent that compliance with such amended standards is mandated by law or regulation. In the event that such amended standards are not mandated by law or regulation, and provide for a less strict performance standard and/or less frequent testing requirements, such modifications will not be included as a part of this Franchise unless the City chooses to incorporate by means of a resolution or amendment hereto. B. Antennas, supporting structures, headend and associated equipment, and outside plant used in the Cable System shall comply with any applicable federal, state, county, or generally applicable City law. C. Grantee shall not design, install or operate its facilities in a manner that will interfere with the signals of any broadcast station, the electrical or telephone system located in any building, the cable system of another franchisee, or individual or master antennas used for receiving television or other broadcast signals. D. If the City contacts Grantee prior to the next FCC required test period (e.g., those generally conducted in February and August of each year), a City representative may be present during the testing. Upon request, Grantee shall provide summary written reports of the results of such tests to the City. E. Grantee shall maintain all of its real property, headend facilities and outside plant in a safe condition. Upon request by the City, Grantee shall provide copies of the detailed plant maintenance procedure manuals in existence at the time of the request. F. Grantee shall keep and maintain a proper and adequate inventory of maintenance and repair parts for the Cable System. Grantee shall maintain or otherwise have available a work force of skilled technicians for Cable System repair and maintenance. G. Upon request, Grantee shall provide the City copies of all correspondence with the FCC related to technical performance of the Cable System. In the event that any complaints are filed with the FCC related to the Cable System operations, Grantee shall provide copies of such complaints as well as the resolution thereof to the City upon request. ~12.03. Parental Guidance Control. Upon request of a Subscriber, Grantee shall provide by sale and/or lease a device by which the Subscriber can prohibit viewing or use of a particular Cable Service(s) during periods selected by that Subscriber. Subscribers shall be notified individually, in writing, by the Grantee of the availability of the device no less frequently than annually. 20 912.04. Customer Service. The Grantee shall provide customer service in accordance with the City's customer service standards set forth in Exhibit A. Such standards shall apply to all Affiliates that provide Cable Services to the Subscribers, or any other company that provides Cable Services under written agreement with the Grantee. 912.05. Qualitv of Service. Throughout the term of this Franchise, the Grantee shall maintain the quality of service and meet operational standards in the maintenance and operation of its Cable System as are required herein. In the event that the City elects to do so, the City may monitor the Grantee's quality of service by means of surveying selected test sites on a regular basis. Such test site, as well as the intervals in which the surveys may be conducted will be at the sole discretion of the City. The City shall give the Grantee thirty (30) days written notice of the selection of test site(s) prior to beginning the surveys. In addition, the City may delete and lor add any test site provided that the Grantee is given the thirty (30) day written notice prior to such action. Should the City find that the Grantee has failed to maintain such quality of service or operational standards, the City may notify the Grantee in writing and specifically set forth therein the improvements required to rectify such deficiencies. 912.06. City's Riaht to Evaluate Technical Performance. The City shall have the right to conduct detailed evaluations of the technical performance of the Cable System during the term of the Franchise. Grantee shall reimburse the City for its costs to conduct one (1) such evaluation during the term of this Franchise. SECTION 13 SIGNALS TO BE CARRIED 913.01. Reauired Proarammina Cateaories. Grantee shall carry at least four (4) hours per day at a minimum, programming classified under each of the following broad categories: A. News and Information B. Arts, Culture, Performing Arts C. Movies D. Sports E. General Entertainment, Leisure, Music F. Children, Family G. Religious H. Educational, Science I. Governmental J. Spanish-language K. Weather 21 ~13.02 Service for the Hearina Impaired. Grantee shall comply with any FCC or other federal or state requirements regarding altering or adapting programming for the hearing impaired. Grantee shall not take any action to remove or alter closed captioning provided for the hearing impaired as a part of any programming. Grantee shall deliver intact such closed captioning in the manner in which it arrives at the headend or from another origination source to the Cable System. ~13.03. City-Wide Distribution of E G Access Channels. In the event there are other cable operators providing service within the City during the term of this Franchise the Grantee agrees to cooperate in good faith with the City for the purpose of city-wide distribution of the EG Channel programming and ensuring the uniform and immediate activation of the City's emergency alert system to all subscribers in the City. This city-wide distribution shall be made in such a manner as to protect the proprietary aspects of each Cable System and on a competitively neutral basis, but with any subsequent cable service provider bearing the cost of any link to Grantee's system, if required, and for any new equipment reasonably required to allow distribution of the E G Channels and emergency alert system over the new cable provider's system. The City may act as a mediator between cable operators. ~13.04. Use of Cable System to Provide Internet Access By Multiple Providers. The City believes that nondiscriminatory access to the Cable System for multiple providers of Internet service may be a benefit to Subscribers. Therefore, the City reserves the right to adopt requirements for such access to the Cable System, subject to applicable law. Prior to such action, the City shall notify the Grantee in writing at least forty-five (45) days in advance of its intent to impose such a requirement, and hold a hearing, which affords the Grantee and other interested members of the public the right to be heard. By approval and acceptance of this Franchise, neither the City nor the Grantee has waived any rights, obligations, claims, defenses or remedies regarding the City's authority to impose such conditions. SECTION 14 EDUCATIONAL AND GOVERNMENT ACCESS ~ 14.01. Current Access Channels. As of the effective date of this Franchise, Grantee has and shall continue to have a total of five (5) dedicated analog Channels for the carriage of EG Programming. The Grantee shall ensure that the transmission of such EG Channels are of a technical quality comparable to any other Channel offered over the Cable System. S14.02. Additional Channels. If all the Video Programming Services offered by Grantee on the Cable System are in a digital format Grantee shall make available additional digital EG Channels which will total no more than six (6) digital EG Channels (when added to the originally provided analog channels now offered in digital format). 22 If the City or one of its EG Channel designees believes that additional Channel capacity is needed for EG Programming, the interested party may file a request with the City. In its deliberations, the City will consider the ability and resources to produce additional EG Programming, the interest of the community in the additional EG Programming, consideration of Grantee-selected programming that may be displaced by the new EG Programming (if any), how much programming is produced on the existing EG Channels, how much programming on the existing EG Channels is repeated, how much programming on the existing EG Channels is character- generated, whether it is feasible to cluster EG Programming into blocks of time such that the Channel space can be compatibly shared between EG Programming providers and the Grantee, and if several EG Programming providers should combine their programming onto a single EG Channel. Should the City find that the evidence exists to support the activation of an additional Channel for EG Programming, then the City shall provide the decision in writing and Grantee shall provide the Channel within ninety (90) days of receiving the request. 914.03. Underutilized EG Channels. Grantee and the City agree that it is their mutual goal to fully and efficiently use the Channel capacity of the Cable System, which may include allowing the Grantee to use underutilized time on the EG Channels. If Grantee believes that any EG Channel has underutilized time, Grantee may file a request with the City to use that time. In response to the request, the City will consider a combination of factors, including but not limited to, the community's needs and interests, and the source, quantity, type and schedule of the programming carried on the Channel. The City will also consider, taking into account the mission of the EG Programming, whether it is feasible to cluster EG Programming into blocks of time such that the Channel space can be compatibly shared between the EG Programming provider and the Grantee and/or if several EG Programming providers can combine their programming onto a single EG Channel. The City shall render its decision regarding the matter within ninety (90) days of receiving the request. Should the City find that the EG Channel or portion of the Channel may be used by the Grantee, then Grantee may begin using such time ninety (90) days after receipt of the decision. The Grantee's request shall not be unreasonably denied. Any permission granted pursuant to this subsection for use of an EG Channel or a portion thereof shall be considered temporary. At such time as an EG Programming provider believes that it has the resources and ability to utilize any EG Channel currently used by the Grantee pursuant to this subsection, the EG Programming provider may request that the City return such EG Channel or portion of an EG Channel being used by the Grantee to the EG Programming provider. In response to the request, the City will consider a combination of factors, including but not limited to, the community's needs and interests, the quantity and schedule of the programming the applicant proposes to carry on the EG Channel, and the applicant's ability and resources to acquire or produce the proposed EG Channel programming. The City will also consider whether 23 it is feasible for the EG Programming provider to cluster programming into blocks of time such that the EG Channel can be compatibly shared between the EG Programming provider and the Grantee and/or if several EG Programming providers can combine their programming onto a single EG Channel. The City shall render its decision regarding the matter within ninety (90) days of receiving the request. Should the City find that the evidence exists to support the return of an EG Channel or portion of an EG Channel to the EG Programming provider, then the Grantee shall surrender the requested time on the EG Channel within ninety (90) days of receiving the decision. ~14.04. Delivery of EG ProQramminQ. EG Programming be produced, recorded and transmitted in any format which is compatible with the technology utilized by the Cable System, whether audio, video, or other information (including, by way of example and not limitation, secondary audio, text, digital information, high definition signals and compressed signals). Such uses must be in furtherance of EG Programming uses. ~14.05. ManaQement and Control of EG Channels. The City or its designee shall have the right at its discretion to allocate and reallocate the EG Channels amongst Educational and Government Access Programming. The City may authorize a third party(ies) to control and manage the use of any or all EG Channels and related facilities provided by Grantee under this Franchise. The City or its designee may formulate rules for the operation of EG Channels consistent with this Franchise and federal law. The current EG Access Channel programming line-up is acceptable to the City, and will only be changed with prior written notice from the City to the Grantee. ~14.06. Return Lines. Within sixty (60) days from a written request by the City, Grantee shall provide the necessary upstream Channel capacity and equipment to originate EG Channel content from the new City Hall, currently under construction, for dissemination over the Cable System to Subscribers, so long as such site is used to originate EG Programming. Grantee shall provide the necessary upstream Channel capacity and equipment to route EG Channel content from additional sites as identified by the City within one hundred twenty (120) days of said request, provided that the City is responsible for the direct costs of all construction and equipment. Grantee shall provide the City with an estimate of the construction and equipment costs prior to beginning construction of any new return line. Grantee shall not be responsible for constructing any new return line until the City has approved such costs in writing. ~14.07. Relocation of Access Channels. Grantee will use reasonable efforts to minimize the movement of EG Channel assignments. Grantee shall provide the City with a minimum of sixty (60) days notice subject to non-disclosure until thirty (30) days prior to the change of channel assignments, and use its best efforts to provide ninety (90) days notice, prior to the time any EG Channel designation is changed, unless the change is required by federal law, in which case Grantee shall give the City the maximum notice possible. In addition, Grantee shall pay to the City an amount equal to the City's costs in remarketing the location of the EG Channels 24 and managing the relocation administratively and technologically, one time up to a maximum of fifty cents ($.50) per Subscriber. Grantee shall only be allowed to recover such amounts paid to City as "external costs" (as that term is used in 47 C.F.R. Section 76.922) if the movement of Channels is required by federal, state or local law. Grantee, at Grantee's expense, will place the City's notices of the Channel change on or with its regular monthly billings, upon the City's request. Any new Channel designations for the EG Channels provided pursuant to this Franchise shall be in full compliance with FCC signal quality and proof-of-performance standards. 914.08. EG Channels on Basic Cable Service. All EG Access Channels provided for under this Section shall be part of Basic Cable Service. 914.09. EG Capital Support. A. Within sixty (60) days of the effective date of this Franchise, Grantee shall provide the City with a grant of thirty-seven thousand dollars ($37,000) for EG capital purchases. Grantee shall be allowed to pass-through this payment to Subscribers over the term of this Franchise B. Any time after the first twelve months from the effective date of this Franchise, the City may request up to $.50 per Subscriber per month as capital support for EG Programming, or as capital support for an I-Net provided pursuant to Section 10.05 ("EG Capital Fee"). The City shall give Grantee at least ninety (90) days advance written notice of Grantee's obligation to begin payment of the EG Capital Fee, including the monthly amount to be collected. Each payment shall be due and payable no later than thirty (30) days following the end of the quarter from when the EG Capital Fee takes effect. The City shall have discretion to allocate the funds in accordance with applicable law. The City may adjust the amount of the EG Capital Fee on an annual basis (up to the maximum amount specified in this paragraph), provided that Grantee is given ninety (90) days advance written notice. Grantee shall be allowed to pass-through this payment to Subscribers. C. Grantee shall pay a late charge in an amount which is the greater of $100.00 or 10% per annum, compounded daily, on EG Capital Fee payments, or portions thereof, that are paid subsequent to the payment dates specified above. 914.10. Technical Assistance. Within one (1) hour of a request from the City and/or its designee, identifying a problem and requesting assistance from the Grantee regarding an EG Channel, Grantee will respond by telephone to address the problem. Within four (4) hours of a request, Grantee shall provide technical assistance or diagnostic services to determine whether or not a problem with an EG Channel is the result of matters for which Grantee is responsible and, if so, Grantee will take prompt corrective action. If the problem originates with the Grantee's facilities, such assistance will be at no charge to the City. Grantee is responsible for the working condition of its facility to the point of demarcation. 25 914.11. Sponsorships. The City may obtain "PBS" type sponsorships and/or underwriting for EG Programming that it produces subject to the restrictions of 47 U.S.C. 399(b), provided that such support is not in conflict with the advertising sales of Grantee. SECTION 15 EMERGENCY USE OF THE CABLE SYSTEM 915.01. EmerQencv or Disaster. In accordance with and at the time required by the provisions of FCC Regulations Part 11, Subpart D, Section 11, and as such provisions may from time to time be amended, Grantee shall install and maintain an Emergency Alert System (EAS) for use in transmitting pursuant to such regulations in the event of an emergency. Grantee shall provide the City with the ability to activate the EAS from at least two (2) locations in order to override both audio and video of all programming service simultaneously during a period of emergency or disaster. Such emergency alert capability shall be operational throughout the term of this Franchise. Grantee shall provide the appropriate training to City personnel as may be necessary to operate the equipment and facilities necessary to satisfy this provision of the Franchise. Grantee shall provide the City with a 24-hour contact telephone number, and promptly advise the City of any changes in the number during the term of this Franchise. 915.02. Simultaneous EAS Activation. In the event that the City enters into franchise agreements with other cable service providers, to the extent technically and legally feasible, Grantee shall cooperate with the City to create a system and/or procedure to simultaneously activate the EAS over all cable systems operating in the City. The cost of such interconnection shall be borne by the other cable operators connecting to the Grantee's facilities. SECTION 16 EMPLOYMENT REQUIREMENTS 916.01. Equal ODPortunitv in Emplovment. Grantee shall afford equal opportunity in employment to all qualified Persons. No Person shall be discriminated against in employment because of race, color, religion, national origin, or gender. SECTION 17 PAYMENT TO CITY 917.01. Amount and Time. As compensation for the right, privilege, and Franchise herein conferred, Grantee shall pay to City each year during the term of this Franchise a sum equal to five percent (5%) of the Grantee's Gross Revenue. Such payments shall be made quarterly within forty-five (45) days after the expiration of each 26 calendar quarter. Accompanying the payment, Grantee shall file a financial statement prepared according to generally accepted accounting principles showing Gross Revenues by significant category used in the computation of said payment, including but not limited to basic service, expanded basic service, pay TV, pay-per view, digital service, Internet service, home shopping, advertising, and franchise fees. An officer or certified public accountant of the Grantee shall sign such statement. Notwithstanding any other provision in this Franchise, in the event the percentage of Gross Revenue which the City may assess the Grantee is increased by federal law, that increase would automatically be included in all subsequent payments to the City with the increase accruing from the effective date of such an increase. 917.02. Annual Financial Report. Grantee shall file with the City within sixty (60) days following the end of each calendar year, or portion thereof during which the Franchise is in effect, an annual financial statement prepared according to generally accepted accounting principles showing Gross Revenues by significant category used in the computation of the Franchise fee payment for the previous year. An officer or certified public accountant of the Grantee shall sign such statement. 917.03. Riqht of Inspection of Records. The City shall have the right to inspect Grantee's or any Affiliate's or Cable Operator's records showing the Gross Revenues from which payments to the City are computed and to audit and re-compute any and all amounts paid under this Franchise. The City's right to audit and the Grantee's obligation to retain records related to a Franchise fee audit shall expire five (5) years or as otherwise allowed by law after each Franchise fee payment has been made to the City. The City shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of the Grantee or any Affiliate or Cable operator in possession of pertinent information. If after a financial audit it is determined that the Grantee has under paid amounts owed to the City (in excess of two percent (2%), then the City may require the Grantee to reimburse the City for the actual cost of the audit. 917.04. Late Payment Charqe. Grantee shall pay a late charge in an amount which is the greater of $100.00 or 10% per annum, compounded daily, on Franchise fee payments, or portions thereof, that are paid subsequent to the payment dates specified in 917.01. In the event the City identifies, as a result of an audit, amounts owed by the Grantee from prior periods, the Grantee shall pay a late charge of 8% per annum, compounded quarterly, on the amounts identified, calculated from the date each portion of the underpayment was originally due until the date Grantee remits the underpayment to the City. 917.05. Acceptance. Payments received from the Grantee under this Section shall not in any way limit or impair any of the privileges or rights of the City, whether under this Franchise or otherwise. No acceptance of any payment shall be construed as an accord that the amount paid is the correct amount, nor shall acceptance be construed as a release of any claim, which the City may have for additional amounts payable under the provisions of this Section, subject to the limitations in subsection 17.03. 27 917.06. Acts of Non-Collection. Any transaction or arrangement made for the purpose of evading Franchise fees payable under this Franchise is prohibited. 917.07. Additional Commitments Not Franchise Fees. The Franchise fee payable hereunder shall be exclusive of and in addition to all ad valorem taxes, special assessments, fees for municipal improvements, the EG Capital Fee and other lawful obligations of Grantee to City. Although the total sum of Franchise fee payments and additional commitments set forth elsewhere in this Franchise may total more than five percent (5%) of Grantee's Gross Revenues in any annual period, Grantee agrees that the additional commitments herein are neither Franchise fees as defined under any federal law in effect as of the effective date of this Franchise, nor are the additional payments to be offset or credited against any Franchise fee payments due to the City, .Grantee shall be allowed to pass-through franchise cost to Subscribers. 917.08. Bundled Services. To the extent discounts reduce revenues (gross revenue defined in the franchise subject to Federal law, Cable Act, Section 622 (b)) includable for purposes of calculating franchise fees, the Franchisee may not unfairly or unlawfully allocate discounts for bundled services for the purpose of evading payment of franchise fees to the Grantor. SECTION 18 RECORDS AND REPORTS 918.01. Notice. Unless expressly otherwise agreed between the parties, every notice or response required by the Franchise to be served upon the City or the Grantee shall be in writing, and shall be deemed to have been duly given to the required party when hand delivered, or five (5) business days after having been posted in a properly sealed and correctly addressed envelope and sent by certified or registered mail, postage prepaid. The notices or responses to the City shall be addressed as follows: City Manager's Office Attn. City Manager City of Colleyville P. O. Box 185 Colleyville, Texas 76034 28 With a copy to: Attn. City Attorney to Colleyville The notices or responses to the Grantee shall be addressed as follows: Comcast Cable of Texas II, Inc. Attention: Franchising/ Government Affairs 2951 Kinwest Parkway Irving, Texas 75063 With a copy to: Comcast Cable of Texas II, Inc. c/o Comcast Corp. Attention: Law & Local Government Affairs 188 Inverness Drive West, Suite 600 Englewood, CO 80112 The City and the Grantee may designate such other address or addresses from time to time by giving notice to the other. 918.02. Books of Account. Grantee shall keep complete and accurate books of accounts and records of its business and operations under and in connection with this Franchise and its exhibits. All such books of accounts and records related to enforcement of the Franchise shall be made available for inspection by the City at a Grantee office located within the Dallas metropolitan area during normal business hours upon advance notice. In the alternative and at Grantee's discretion, Grantee may make books and records available in other locations, but must pay the travel costs for a City representative to visit this site if such review is requested by the City. Grantee shall maintain the books and records for Franchise compliance purposes for a period of at least five (5) years. If Grantee maintains books and records related to enforcement of the Franchise for a period greater than five (5) years, City shall have access to those records. 918.03. Confidentialitv. The City agrees to treat as confidential any books or records that constitute proprietary or confidential information under federal or State law, to the extent Grantee makes the City aware of such confidentiality. Grantee shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains confidential or proprietary information, and shall provide a brief written explanation as to why such information is confidential under State or federal law. If the City believes it must release any such confidential books and records in the course of enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. If the City receives a demand from any Person for disclosure of any 29 information designated by Grantee as confidential, the City shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, the City agrees that, to the extent permitted by State and federal law, it shall deny access to any of Grantee's books and records marked confidential as set forth above to any Person. 918.04. Quarterly Reports. A report shall be filed by Grantee with the City within thirty (30) days following the end of each calendar quarter, or portion thereof during which the Franchise is in effect. At the Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters. Grantee shall notify the City of such a change thirty (30) days in advance. The material substance of the report shall be in a form reasonably acceptable to the City. The information contained within the quarterly report shall include, but not be limited to: A. Total Subscribers and Basic Service only Subscribers, subject to subsection 18.03. B. Reports required by the customer service standards included in Exhibit A of this Franchise. C. The Gross Revenue report required by subsection 17.01. 918.05. Disconnect Reports. If the City receives a trend of complaints from Subscribers indicating that they are disconnecting Cable Service due to dissatisfaction with Grantee's customer service, or if the City notes a downtrend in Gross Revenues, which may be caused by disconnecting Subscribers, the City may request that Grantee provide a report indicating the reason for recent Subscriber disconnects. Grantee shall prepare such report for the most recent calendar quarter of information available, within thirty (30) days of receiving a written request from the City. Such report will be requested no more often than quarterly, and shall be subject to subsection 18.03. SECTION 19 REGULATION OF RATES 919.01 City Requlation of Grantee's Rates. The City Council shall be empowered to regulate, by ordinance, the rates for any and all Cable Services, installations, and equipment of Grantee subject to regulation by the City, consistent with FCC rules governing rate regulation. In such event the City Council shall first prescribe by ordinance the procedure and standards to be followed and the extent and scope of such rate regulations, all of which matters shall be consistent with due process and shall conform to any and all of those federal and state laws, rules, and regulations then applicable. Subject to its authority to regulate rates, the City shall have access to all 30 books and records related to Grantee's rates including bulk contract rate information, subject to applicable law. 919.02. Notice of Rates. Grantee shall provide written notice of its then current rates and charges for any and all of its Cable Services in the City in compliance with any timing requirements prescribed in FCC regulations. SECTION 20 FREE DROPS AND SERVICE 920.01. Free Drops and Service. Grantee shall, at no cost to the City, continue to provide two standard installation outlets of Basic Cable Service and Expanded Basic Cable Service to all City owned and occupied buildings, schools and public libraries that exist as of the effective date of this Franchise. For purposes of this subsection, "school" means all State-accredited public and private K-12 schools. In addition, Grantee shall provide, at no cost to the City or other entity, two standard installation outlet of Basic Cable Service and Expanded Basic Cable Service to new or relocated, owned or leased and occupied City buildings, schools and libraries where service is not being provided as of the effective date of this Franchise upon request and if the drop line from the feeder cable to such building does not exceed one hundred twenty-five feet (125 ') or if the City or other entity agrees to pay the incremental cost of such drop line in excess of one hundred twenty-five feet ( 125 '), including the cost of such excess labor and materials within ninety (90) days of the request. Such obligation to provide free Cable Service shall not extend to areas of City buildings where the Grantee would normally enter into a commercial contract to provide such Cable Service (e.g., golf courses, airport restaurants and concourses, and recreation center work out facilities). Outlets of Basic Cable Service and Expanded Basic Cable Service provided in accordance with this subsection may only be used to distribute Cable Services throughout such buildings upon the express agreement of the Grantee. Any Cable Service provided under this subsection may only be used for lawful purposes. The City's initial request as to City and School Facilities that are to have cable connections are listed in Exhibit D. SECTION 21 PROHIBITION OF DISCRIMINATORY OR PREFERENTIAL PRACTICES 921.01. Rates. Charqes. and Services. In its rates or charges, or in making available Cable Service, or in its rules or regulations, or in any other respect, Grantee shall not make or grant preference or advantage to any Subscriber or potential Subscriber and shall not subject any such Person to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the Cable System or other legitimate uses thereof. 31 SECTION 22 NON-EXCLUSIVE FRANCHISE 922.01. Franchise Non-Exclusive. The rights, privileges, and Franchise granted hereby are not exclusive. This Franchise shall not be construed as any limitation upon the right of the Grantor, through its proper officers, to grant to other persons or corporations, including itself, rights, privileges or authority the same as, similar to or different from the rights, privileges or authority herein set forth, in the same or other streets and public ways by Franchise, permit or otherwise. The City shall not authorize or permit any Person providing Video Programming and/or Cable Services to enter into the Public Rights-of-Way in any part of the City on terms or conditions more favorable or less burdensome to such Person than those applied to the Grantee pursuant to this Franchise, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. 922.02. Disputes. In the event that the City is considering the grant of a franchise to another Person to provide Video Programming and/or Cable Services in the City, and the City provides a copy of the final negotiated franchise to Grantee, Grantee shall have forty-five (45) days to notify the City, in writing, of any alleged discrimination between this Franchise and the burdens and rights provided in such other franchise. If the City does not provide a copy of the franchise to Grantee, Grantee shall have three (3) months from the date Grantee receives a copy of the final negotiated franchise to notify the City, in writing, of any alleged discrimination between this Franchise and the burdens and rights provided in such other franchise. In either event, failure to notify the City shall stop Grantee from any further action related to allegations of discrimination regarding the granting of such franchise. This subsection is not intended to prevent Grantee from any action related to the City's actual administration of such franchise that the Grantee believes is discriminatory. SECTION 23 BREACH OF FRANCHISE, NOTICE AND LIQUIDATED DAMAGES 923.01. Notice of Default: Opportunity to Cure: Public Hearinq. A. Notice of Default. The City shall notify the Grantee, in writing, of any alleged failure to comply with a provision of this Franchise, which notice shall specify the alleged failure with reasonable particularity. The Grantee shall have thirty (30) days subsequent to receipt of the notice in which to (i) correct the violation before the City may take further action (or with respect to any such violation, if by reason of the nature thereof such violation cannot with due diligence by wholly cured within such period of thirty (30) days, then the thirty (30) day period shall be extended for such period of time as may be necessary to complete the correction of the same with all due 32 diligence, but in no eyent longer than ninety (90) days unless a further extension of time is approved by the City Council) or (ii) provide a written response to the City, presenting facts and arguments in refutation or excuse of such alleged failure. B. If the City is unsatisfied with the Grantee's response under 923.01 (A), the City shall hold a public hearing on the matter. Grantee must be given at least ten (10) days notice of the hearing. At the hearing, the Grantee shall be entitled to all the rights of due process consistent with the City procedures, including but not limited to, the right to present evidence and the right to be represented by counsel. The Grantee shall make available to the City, if requested, any records, documents or other information reasonably necessary to its consideration of the matter. Following the public hearing, the City may determine (i) whether a failure to comply with a Franchise provision has occurred; (ii) whether such failure is excusable; and (iii) whether such failure has been cured or will be cured by the Grantee. After the hearing, Grantee will be provided with a written copy of any action taken by the City Council, along with supporting documents. C. If the City determines that a failure to comply with a provision of the Franchise has occurred and that such failure is not excusable and has not been or will not be cured by the Grantee in a manner and in accordance with a schedule reasonably satisfactory to the City, then the City may take any actions provided in ~23.02. D. In the event of Grantee fails to make a Franchise fee payment as required by subsection 17.01, fails to make the EG payments specified in paragraphs 14.09 A-C, or fails to maintain insurance in accordance with Section 9, the City is not required to conduct the public hearing identified in paragraph B above, but may proceed directly to subsection 23.02 following the procedures in paragraph A above. 923.02. City Action in Event of Breach. In the event that grounds exist which give the City reason to believe that the Grantee failed to comply with a provision of this Franchise, then the City may, at any time during the term of this Franchise, to the extent lawful: (A) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; (B) commence an action at law for monetary damages from the Grantee as compensation for such breach; (C) seek liquidated damages pursuant to 923.03; and/or (D) in the case of breach of a material provision of the Franchise or other material violation as set forth in subsection 24.01 and 24.02, seek to revoke the Franchise pursuant to subsection 24.03. Notwithstanding the foregoing, the City may not pursue monetary damages or liquidated damages for late payment of Franchise fees in addition to the interest specified in subsection 17.04, or for late payment of the EG Capital Fee in addition to the interest specified in paragraph 14.09 (C). 923.03. liquidated Damaqes. In the event the City's selected course of action following the process set forth in 923.01 and 923.02 is to impose liquidated damages, the City shall give Grantee written notice of its intent, and a reasonable period of time 33 following receipt of the notice, not less than thirty (30) days and not more than ninety (90) days unless a longer period is approved by City Council, to cure the alleged violation. If Grantee remains in violation of the Franchise following this cure period, the City may charge to and collect from the Grantee the liquidated damages set forth below, with the liquidated damages beginning to accrue no earlier than the day following the end of the cure period set forth above. The parties agree that actual damages that might be sustained by the City by reason of the breach by Grantee of the provisions of this Franchise set forth below, are uncertain and difficult of ascertainment, and that the sums set forth below would be reasonable compensation for such breach, and Grantee promises to pay, and the City agrees to accept, such sums as liquidated damages, and not as a penalty, in the event of such breach. Additionally such sums of money shall be considered liquidated damages due the City by Grantee by reason of inconvenience to the public and because of public works supervision and maintenance and other City administrative time and involvement which resulted in the expenditure of public funds due to Grantee's failure to comply with certain provisions in this Franchise. Grantee covenants that any such sums paid to the City under this provision of the Franchise shall not be included in the development of any rate, change, or price for services charged to Subscribers. A. For failure of Grantee to provide any report, certificate or map to the City as required by this Franchise, fifty dollars ($50) per day, except as to the Quarterly and Annual Gross Revenue reports required under Section 18.04 C. and 18.05 C., respectively, which shall be $100 per day. B. For failure of Grantee to provide services and upgrade in accordance with Section 10, one thousand dollars ($1,000) per day. C. For failure of Grantee to respond, restore or repair the Public Rights-of- Way within forty-eight (48) hours of notice by City under subsection 7.03, two hundred fifty dollars ($250) per day for every day following forty-eight (48) hours after Grantee's receipt of the notice. Should the City adopt any lawful and generally applicable ordinance governing the Public Rights-of-Way which includes administrative fees for failure to restore the Public Rights-of-Way, such fees in the ordinance shall apply to the Grantee and supersede the ability of the City to collect liquidated damages under the Franchise. D. If City is required to relocate Grantee's facilities under subsection 7.04, Grantee shall pay one thousand dollars ($1,000) in addition to the costs incurred by the City in relocating the facilities. Should the City adopt any lawful and generally applicable ordinance governing the Public Rights-of-Way which includes administrative fees for City-performed relocation of Grantee facilities, such fees in the ordinance shall apply to the Grantee and supersede the ability of the City to collect liquidated damages under the Franchise. E. For failure of Grantee to provide the EG Channels as required by Section 14, one hundred dollars ($100) per day. 34 F. For failure of Grantee to provide the City the ability to activate the EAS as required by subsection 15.01, five hundred dollars ($500) per day. G. For failure of Grantee to provide the notice of rates as required by subsection 19.02, fifty dollars ($50) per day. H. For failure to comply with the service extension requirements set forth in Section 27, the greater of two hundred fifty dollars ($250) per day or one dollar ($1.00) per day per impacted Subscriber. I. For failure to comply with any other provisions within the Franchise, one hundred dollars ($100) per day, except for those provisions specifically identified in Exhibit A as having automatic liquidated damages for non-compliance and any other liquidated damages or fines that apply, subject to 97.01. 923.04. Force Maieure. Other than its failure, refusal, or inability to pay its debts and obligations, including, specifically, the payments to City required by this Franchise, Grantee shall not be declared in default or be subject to any sanction under any provision of this Franchise in those cases in which performance of such provision is prevented by reasons beyond its control. 923.05. Reservation of Riqhts. The rights reserved to the City under this section 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 shall affect any other right the City may have. SECTION 24 REVOCATION OF FRANCHISE 924.01. General. In addition to all rights and powers of the City by virtue of this Franchise or otherwise, the City reserves, as an additional and as a separate and distinct power, the right to revoke the Franchise in accordance with the procedures specified herein if any of the following events occur or for any of the following reasons: A. Grantee by act or omission violates any material term, condition, or provision of this Franchise and fails or refuses to effect material compliance following the notice and opportunity to cure specified under 923.01. B. Grantee knowingly or willingly attempts to evade any material provision of this Franchise. C. Grantee knowingly makes a false entry or statement regarding any material provision under this Franchise in any reports or records provided to the City. 35 D. Repeated and substantial violation or willful disregard of: (i) the City's lawful ordinances and regulations related to the Public Rights-of-Way; or (ii) the Customer Service Standards in Exhibit A; or (iii) the Cable System technical performance requirements in Section 12. E. The occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or non-judicial sale of all or any material part of the Cable System. F. Grantee becomes insolvent or is adjudged bankrupt or all or any part of Grantee's facilities are sold under an instrument to secure a debt and are not redeemed by Grantee within thirty (30) days from the date of such sale; provided, however, this shall not be an event of termination or cancellation in the event of bankruptcy proceeding and the trustee, receiver, or debtor in possession agrees in writing to be bound by the terms of this Franchise. G. Grantee has been found by a court of law to have practiced any fraud or deceit in its conduct or relations under this Franchise with the City, Subscribers or potential Subscribers. 924.02. Material Provisions. Material terms of this Franchise include, but are not limited to: A. The indemnification required by Section 8. B. The insurance required by subsection 9.01. C. The channel capacity required by subsection 10.01. D. The emergency standby power required by subsection 10.03 (B). E. The upgrade required by subsection 10.04. F. The I-Net required by subsection 10.05. G. The EG Channels as required by subsections 14.01 and 14.02. H. The EG Capital Fee required by subsection 14.09. I. The EAS required by subsection 15.01. J. Payment of Franchise fees as required by subsection 17.01 and 17.06. 36 K. The Gross Revenue reporting requirements of subsection 17.01 and 17.02, and subsection 18.04 C.and 18.05 C. L. Nondiscrimination in rates and services as required by Section 21. M. City approval of transfers and changes of control as required by subsections 25.01 and 25.02. 924.03. Method of Revocation. Should the City Council determine, following the process set forth in 923.01 and 923.02 (to the extent applicable) that its selected course of action shall be to seek revocation of the Franchise, the City shall give Grantee written notice of such intent. The notice shall set forth the causes and reasons for the proposed revocation, shall advise Grantee that it will be provided an opportunity to be heard by City regarding such proposed action before any such action is taken, and shall set forth the time, date, and place of the hearing. In no event shall such hearing be held less than thirty (30) days following delivery of such notice to Grantee. At the hearing, the Grantee shall be entitled to all rights of due process consistent with the City procedures, including but not limited to the right to present evidence and the right to be represented by counsel. Any such revocation of this Franchise shall be by ordinance. 924.04. Grantee May Appeal City's Decision. The Grantee may appeal the City's decision to revoke the Franchise to an appropriate court, which shall have the power to review the City's decision de novo and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City. SECTION 25 ASSIGNMENT OF FRANCHISE 925.01. City Approyal of Assianment Reauired. This Franchise shall be a privilege personal to the Grantee and shall not be assigned or transferred, or otherwise encumbered, other than to an Affiliate of comparable or better technical and financial capabilities, in whole or in part, without the prior consent of the City expressed by resolution or ordinance, and then only under such conditions as may be lawfully prescribed therein. Within thirty (30) days of receiving the request for transfer, the City shall notify the Grantee in writing of the information it requires to determine the legal, financial, and technical qualifications of the transferee. If the City has not taken action on the Grantee's request for transfer within one hundred twenty (120) days after receiving such request and provided the City has promptly received from Grantee the information it requested in connection with the request, consent by the City shall be deemed given. No assignment to any Person shall be effective until the transferee has filed with the City an instrument in writing, duly executed, reciting the fact of such 37 assignment, accepting the terms of this Franchise, and agreeing to comply with all of the provisions hereof, subject to applicable law. 925.02. City Approval of Transfer of Control Reauired. The Grantee shall promptly notify the City of any actual or proposed change in, or transfer of, or disposition or acquisition by any other Person in Control of the Grantee. Every change, transfer, or acquisition of Control of the Grantee shall make the Franchise subject to cancellation unless and until the City shall have consented thereto by resolution or ordinance provided that the City has acted within the time constraints required by law. For the purpose of determining whether it shall consent to such change, transfer, disposition, or acquisition of Control, the City may inquire into the legal, financial, and technical qualifications of the prospective Controlling party, but shall do so within thirty (30) days of receipt of the requested transfer from the Grantee. Grantee shall assist the City in such inquiry and will respond within ten (10) days unless a longer time is reasonable necessary to respond or allowed by law. SECTION 26 FAILURE OF CITY TO ENFORCE FRANCHISE 926.01. No Waiver of Terms. The Grantee shall not be excused from complying with each and all of the terms, conditions, and provisions of this Franchise even though the City should upon one or more occasions fail to insist upon, to require, or to seek compliance with any such term, condition, or provision. SECTION 27 SERVICE AVAILABILITY 927.01. Service Availability. The Grantee shall provide Cable Service throughout the entire Franchise Area, subject to the provision below. 927.02. Annexations. If the City annexes any contiguous area which is being provided Cable Service by the Grantee or its Affiliates, the annexed area will be subject to the provisions of this Franchise upon the effective date of the annexation; provided, however, that Grantee shall be allowed no less than twelve months (12) to make any required modifications to the Cable System, Cable Services, billing system, etc. as may be required to accommodate such change, and provided that if the area is serviced by an Affiliate, a transfer of ownership of the Cable System in that area to the Grantee shall not be required by the City. If the annexed area is being provided Cable Service by another provider, Grantee shall have the right, but not the requirement, to extend its Cable System to the annexed area. If the annexed area is not being provided Cable Services, the Grantee shall be required to provide service within one year of the annexation. 38 927.03. Extension Policy. Grantee must extend and make Cable Service available within six (6) months of a request to every lot or tract of land for which the owner or occupant thereof has requested service in all unserved areas having at least ten (10) dwelling units constructed or planned, as approved plats, for construction per 1,320 cable bearing strand feet or twenty-five (25) dwelling units per cable bearing strand mile, as measured from the portion of the existing system to be extended. Extensions shall be at Grantee's cost. The City understands that the Grantee retains all rights to negotiate payment of such extensions or portion thereof by a third party. If more than one hundred twenty five feet (125') of distance lies between the nearest distribution cable and the point of connection of service to the property for which service is requested, the Grantee may charge the potential Subscriber non-standard installation charges as allowed by federal law. Should such potential Subscriber be located beyond the one hundred twenty five feet (125'), Grantee must install the first one hundred twenty five feet (125') at Grantee's sole expense and cost. If the unserved area is a new underground development, Grantee shall participate in joint trenching with the other utilities installing service to the area, provided that the Grantee is provided adequate notice and access to the trenches. The ability of the Grantee to participate in joint trenching shall not impact the Grantee's requirement to provide extensions pursuant to this subsection. 927.04. Contributions in Aid of Construction. In the event that potential Subscribers request Cable Service in an area that does not meet the density requirements of subsection 27.03, the Subscriber(s) will be given the alternative to provide a contribution in aid of construction of the Cable System extension equal to seventy five percent (75%) of the Grantee's actual out-of-pocket costs to provide extensions less than 1 ,320 cable bearing strand feet. That portion of any extension greater than 1,320 cable bearing feet shall be paid by the Subscriber(s) at the Grantee's actual out-of-pocket cost. In the event that any portion of the extension for which a Subscriber has provided contribution in aid of construction ultimately meets the extension requirements in subsection 27.03, Grantee shall reimburse all Subscribers that have made such contributions in aid of construction, provided that such Subscribers provide evidence of having made such contributions to Grantee. SECTION 28 VALUATION 928.01. Purchase Price of Cable System. If the Franchise is revoked for cause and the parties agree that the City may purchase the Cable System, the City may purchase the Cable System at an equitable price. If renewal of the Franchise is lawfully denied and the parties agree that the City may purchase the Cable System, the City may purchase the Cable System at fair market value, determined on the basis of the 39 Cable System valued as a going concern but with no value allocated to the Franchise itself. Should the parties fail to agree upon the equitable price or the fair market value of the Cable System, the same shall be determined in an appropriate proceeding filed in any court having jurisdiction. SECTION 29 RECOURSE, UNDERSTANDING, CONSTRUCTION, AND SEVERABILITY 929.01. Requirements and Enforcement. Except as expressly provided herein, Grantee shall have no monetary recourse whatsoever against City of any loss, cost, expense, or damage arising out of the provisions or requirements of this Franchise or because of the enforcement thereof by City or because of the lack of City's authority to grant all or any part of this Franchise. 929.02. Grantee's Understandina. Grantee expressly acknowledges that in accepting this Franchise, it relied solely upon its own investigation and understanding of the power and authority of City to grant this Franchise and that Grantee was not induced to accept this Franchise by any understanding, promise, or other statement, verbal or written, by or on behalf of City or by any third Person concerning any term or condition not expressed herein. 929.03. Construction of Franchise. By acceptance of this Franchise, Grantee acknowledges that it has carefully read the provisions hereof and is willing to and does accept all of the risks of the meanings of such provisions. 929.04. Provisions Severable. If any provision, section, subsection, paragraph, sentence, clause, or phrase of this Franchise is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of the remaining portions of this Franchise. It is the intent of City in adopting this Franchise that no portion or provision thereof shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other portion or provision, and to this end all provisions of this Franchise are declared to be severable. SECTION 30 ACCEPTANCE OF FRANCHISE 930.01. Method of Acceptance. Within thirty (30) days from the effective date of this Franchise, Grantee shall file with the City Secretary a written statement in the following form signed in its name and behalf: "To the Honorable Mayor and City Council of the City of Colleyville, Texas: For itself, its successors, and assigns, Comcast Cable of Texas II, Inc., duly 40 authorized to do business in the State of Texas, hereby accepts the attached Franchise and agrees to be bound by all of its terms, conditions, and provisions, subject to applicable law. Subject to the acceptance by Grantee, this Franchise shall be effective immediately upon its adoption by the City. 930.02. Acceptance of Franchise Not a Waiver. Acceptance of this Franchise by Grantee shall not constitute a waiver by it of any of its rights. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the t. ')t,f day of ~M-a -C 2003. The second reading and public hearing being conducted on the / 9 ~ day of ~./.I""C 2003. ATTEST: tJ2 ~ Cynthia Singleton, TRMC City Secretary ~ FORM AND LEGALITY: Ross Foster City Attorney Comcast Cable of Texas II, Inc. BY:~~ ns: ~~~io~al Senior Vice president/ Southern Region 41 authorized to do business in the State of Texas, hereby accepts the attached Franchise and agrees to be bound by all of its terms, conditions, and provisions, subject to applicable law. Subject to the acceptance by Grantee, this Franchise shall be effective immediately upon its adoption by the City. 930.02. Acceptance of Franchise Not a Waiver. Acceptance of this Franchise by Grantee shall not constitute a waiver by it of any of its rights. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the ~~ 6 L'1 C 2003. The second reading and public hearing being conducted on the ~:}G~LJC 2003. (p '>'t! day of /5' ~ day of Cynthia Singleton, TRMC City Secretary ATTEST: ty?~~~ ~OVEO AS TO FORM ANO LEGALITY: RO~ City Attorney Comcast Cable of Texas II, Inc. By: Its: 41 EXHIBIT "A" CUSTOMER SERVICE STANDARDS These standards shall apply to the Grantee and any Affiliates of Grantee to the extent they are providing Cable Services over the Cable System. SECTION 1: DEFINITIONS A. Outage: A Service Interruption affecting multiple Subscribers in a contiguous area that has the same source problem. B. Service Call: The action taken by the Grantee to correct a Service Interruption affecting an individual Subscriber. C. Service Interruption: The loss of picture or sound on one or more Channels. D. Standard Installation: Installations where the length of the Drop is up to one hundred twenty-five (125) feet. SECTION 2: TELEPHONE AVAILABILITY A. The Grantee shall maintain a toll-free number to respond to all calls and inquiries from Subscribers in the Franchise Area and/or City residents regarding Cable Service. Grantee representatives trained and qualified to answer questions related to Cable Service in the Franchise Area must be available to receive requests for Service Calls or report Outages twenty-four (24) hours a day, seven (7) days a week, and other inquiries at least forty-five (45) hours per week, including some evening and weekend hours. Grantee representatives shall identify themselves by name when answering this number. B. The Grantee's telephone numbers shall be listed, with appropriate description (e.g. administration, customer service, billing, repair, etc.), in the directory published by the local telephone company or companies serving the Franchise Area. C. In the event that the Grantee chooses to use an Automated Response Unit ("ARU") or a Voice Response Unit ("VRU") to distribute calls, the system shall have as a first tier menu option (not including a routing option for foreign language), an option "for all other inquiries." If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. 42 After the first tier menu (not including a foreign language routing option) has run through twice, if customers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. The Grantee may reasonably substitute this requirement with another method of handling calls from customers who do not have touch-tone telephones. The total elapsed time between when a Subscriber's call is first answered by an ARU or VRU to the end of the last tier menu shall not be longer than ninety (90) seconds. For purposes of this subsection, the "last tier menu" is the last tier before the Subscriber is routed to a live representative, or specific information is given to the Subscriber, such as instructions for troubleshooting or directions to an office. The City may review the options provided to callers and recommend to the Grantee that additional options be provided. The Grantee shall consider the City's recommendations. D. Under Normal Operating Conditions, calls received by the Grantee shall be answered within thirty (30) seconds after the Subscriber has selected their final menu option. The Grantee shall meet this standard for ninety percent (90%) of the calls it receives, as measured on a calendar quarter basis. Measurement of this standard shall include all calls received by the Grantee, whether they are answered by a live representative, automated attendant, or abandoned before completion. If the Grantee does not meet the ninety percent (90%) standard described in this Paragraph D. during any calendar quarter, liquidated damages may be assessed by the City against the Grantee as follows: . Any quarter where the Grantee performs equal to or greater than eighty-five (85%) and less than ninety percent (90%), the Grantee shall pay the City one hundred dollars ($100). . Any quarter where the Grantee performs equal to or greater than seventy-five percent (75%) and less than eighty-five percent (85%), the Grantee shall pay the City three hundred dollars ($300). . Any quarter where the Grantee performs equal to or greater than sixty-five percent (65%) and less than seventy-five percent (75%), the Grantee shall pay the City one thousand dollars ($1,000). . Any quarter where the Grantee performs less than sixty-five percent (65%), the Grantee shall pay the City two thousand dollars ($2,000). 43 For any consecutive quarter(s) in which the Grantee performs at a level below ninety percent (90%), the Grantee shall pay the City the amount listed above for the most recent quarter, plus the amount paid to the City for the previous quarter. For example, if the Grantee performs at seventy-nine percent (79%) one quarter and sixty percent (60%) in the next quarter, the Grantee shall pay the City three hundred dollars ($300) for the first quarter and two thousand three hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the previous quarter] for the second quarter. If Grantee continues to have a 60% performance in the third quarter, the payment shall be four thousand three hundred dollars ($4,300)[$2,000 for the most recent quarter and $2,300 for the pervious quarter.] E. Under Normal Operating Conditions, callers to the Grantee shall receive a busy signal less than three (3%) percent of the time during any calendar quarter. F. Not more than thirty (30) days after the end of each calendar quarter, the Grantee shall report to the City the following for all call centers receiving calls from Subscribers except for temporary telephone numbers set up for national promotions: . total number of calls received by the Grantee . number of calls answered by these categories: live representative, automated attendant, and abandoned . number of calls answered within thirty (30) seconds · percentage of calls answered within thirty (30) seconds . percentage of time all trunks were busy The material substance of the report shall be in a form reasonably acceptable to the City. If the City does not receive the quarterly calls report when due, the City shall give notice to the Grantee. The Grantee shall be assessed liquidated damages in the amount of fifty dollars ($50) per day for every day following receipt of the notice that the report is not provided to the City. The Grantee shall not be assessed liquidated damages for failure to report on statistics which cannot be produced for reasons outside of its control, provided that the Grantee supplies an explanation to the City as to why the statistics required herein could not be produced. G. The Grantee shall notify the City's designee as promptly as possible, by any available means, whenever there is a situation that prevents all Subscribers from 44 being able to reach the Grantee by telephone. For failure to so notify the City, Grantee shall pay liquidated damages of two hundred fifty dollars ($250) to the City. H. At the Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters. The Grantee shall notify the City of such a change at least thirty (30) days in advance of any implementation. SECTION 3: OFFICE HOURS A. At least forty (40) hours during the week, including some evening and weekend hours, the Grantee must have an office located within the Franchise Area or within a fifteen (15) mile radius from 4000 Main Street (the current City Hall address), and adequately staffed to respond to Subscribers concerning, at a minimum, the following types of transactions: . To accept payments . To exchange or accept return of Grantee-provided equipment . To schedule technical calls and delivery and pick up of converter boxes, remotes and similar Grantee-supplied equipment from Subscribers . To answer Subscriber inquiries B. The Grantee shall provide the City with written notice of current office locations and hours of operation for each office location that Subscribers can visit for any of the above functions, and notify the City of any subsequent changes in either location or hours thirty (30) days in advance. SECTION 4: INSTALLATIONS AND SERVICE APPOINTMENTS A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the provision of required consumer information and literature to adequately inform the Subscriber in the utilization of the Grantee-supplied equipment and Cable Services. B. Under Normal Operating Conditions, Standard Installations shall be performed within seven (7) days after an order has been placed, except when a Subscriber has specifically requested an installation date later than seven (7) days after order placement. 45 The Company shall meet this standard for ninety percent (90%) of the Standard Installations it performs, as measured on a calendar quarter basis, excepting out customer requests for connection later than seven (7) days after order placement. If the Grantee does not meet the ninety percent (90%) standard described in this Paragraph B. during any calendar quarter, liquidated damages may be assessed by the City against the Grantee as follows: . Any quarter where the Grantee performs equal to or greater than eighty-five (85%) and less than ninety percent (90%), the Grantee shall pay the City one hundred dollars ($100). . Any quarter where the Grantee performs equal to or greater than seventy-five percent (75%) and less than eighty-five percent (85%), the Grantee shall pay the City three hundred dollars ($300). . Any quarter where the Grantee performs equal to or greater than sixty-five percent (65%) and less than seventy-five percent (75%), the Grantee shall pay the City one thousand dollars ($1,000). . Any quarter where the Grantee performs less than sixty-five percent (65%), the Grantee shall pay the City two thousand dollars ($2,000). For any consecutive quarter(s) in which the Grantee performs at a level below ninety percent (90%), the Grantee shall pay the City the amount listed above for the most recent quarter, plus the amount paid to the City for the previous quarter. For example, if the Grantee performs at seventy-nine percent (79%) one quarter and sixty percent (60%) in the next quarter, the Grantee shall pay the City three hundred dollars ($300) for the first quarter and two thousand three hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the previous quarter] for the second quarter. If Grantee continues to have a 60% performance in the third quarter, the payment shall be four thousand three hundred dollars ($4,300)[$2,000 for the most recent quarter and $2,300 for the pervious quarter.] In addition, any individual Subscriber who does not have their Standard Installation completed within the seven (7) day period shall be entitled to receive a free Standard Installation upon request, excepting out Subscribers who request installation later than seven (7) days after order placement. C. The Grantee shall provide the City with a report within thirty (30) days following the 46 end of each calendar quarter, noting the following: . number of total Standard Installations completed for the quarter, excluding those requested outside of the seven (7) period by the Subscriber . number of Standard Installations completed within the seven (7) day period . number of Standard Installations not completed within the seven (7) day period . percentage of Standard Installations completed within the seven (7) day period, excluding those requested outside of the seven (7) day period by the Subscriber At the Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters. The Grantee shall notify the City of such a change not less than thirty (30) days in advance. D. The Grantee will offer Subscribers "appointment window" alternatives for installations, Service Calls, and other installation activities of a maximum four (4) hour scheduled time block between the hours of 8:00 a.m. and 7:00 p.m. except during months where available light does not permit appointments after 6:00 p.m. At the Grantee's discretion, the Grantee may offer Subscribers appointments other than these four (4) hour time blocks if agreeable to the Subscriber. The Grantee may offer to schedule Subscriber appointments for a specific time and shall schedule the Subscriber to be the first call of the day or last call of the day if requested by the Subscriber and warranted by the circumstances. The Grantee shall also perform some Service Calls outside of the hours specified above in the evenings and on weekends. E. At the request of the Subscriber, the Grantee will call the Subscriber prior to an installation or Service Call appointment. The call shall be made by the Grantee at the approximate time and to the telephone number requested by the Subscriber. F. At the time this Franchise was entered into, Grantee was voluntarily participating in the industry "On-Time Guarantee" program. Under the terms of that program, if the Grantee does not arrive for an installation or Service Call appointment within the scheduled time frame agreed to with the Subscriber, the Subscriber is entitled to receive either a free Standard Installation in the event of an installation appointment, or a $20.00 credit in the event of a missed Service Call appointment. Calling a Subscriber during the appointment window does not negate the Subscriber's entitlement to credit for a missed appointment. The Grantee will participate in this 47 program and reserves the right to substitute another customer service program for the "On-Time Guarantee" at its discretion, provided that the Subscriber benefits are reasonably comparable to those provided by the current program. G. Under Normal Operating Conditions, the Grantee may not cancel an appointment with a Subscriber after 6:00 p.m. on the business day prior to the day of the scheduled appointment. H. If the Grantee's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, the Grantee will document an effort to contact the Subscriber directly. If, however, the Subscriber is unavailable at the time the contact attempt is made, the Grantee will attempt at least a second documented contact during the previously agreed upon appointment window or before the specifically scheduled time. The appointment will be rescheduled, as necessary, at a time, which is mutually agreeable. I. If it is necessary to place a temporary Drop on the ground, the Grantee shall bury the temporary Drop within ten (10) business days, under Normal Operating Conditions. The ten (10) day period shall be extended for days that the Grantee is unable to bury the Drop due to unfavorable weather conditions. SECTION 5: SERVICE INTERRUPTIONS AND OUTAGES A. The Grantee shall make repairs promptly, and interrupt Cable Service only as necessary and for the shortest time period possible. Unless otherwise required by law or approved by the City, the Grantee will not schedule routine testing or maintenance which would cause a Service Interruption or Outage on Friday, Saturday or Sunday night. B. The Grantee shall promptly notify the City of any significant Outage of the Cable System. For the purposes of this section, a significant Outage of the Cable System shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%) of the Subscribers in the Franchise Area. C. The Grantee shall exercise its best efforts to limit any Outage for the purpose of maintaining, repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, the Grantee may schedule an Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after the City and each affected Subscriber in the City have been given fifteen (15) days prior notice of the proposed Outage. 48 D. Technicians employed by the Grantee who are capable of responding to Outages must be available to respond twenty-four (24) hours a day, seven (7) days per week. E. Under Normal Operating Conditions, the Grantee must respond to a call or written notice from a Subscriber regarding a Service Interruption within twenty-four (24) hours. The Grantee must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or the City of a Cable Service problem. F. Under Normal Operating Conditions, the Grantee shall complete Service Calls within seventy-two (72) hours after being notified of a Service Interruption, not including situations where the Subscriber is not reasonably available for a Service Call to correct the Service Interruption within the seventy-two (72) hour period. G. The Grantee shall meet the standard in Paragraph F. of this Section for ninety percent (90%) of the Service Calls it completes, as measured on a quarterly basis. If the Grantee fails to meet this standard during any calendar quarter, liquidated damages may be assessed by the City against the Grantee as follows: . Any quarter where the Grantee performs equal to or greater than eighty-five (85%) and less than ninety percent (90%), the Grantee shall pay the City one hundred dollars ($100). . Any quarter where the Grantee performs equal to or greater than seventy-five percent (75%) and less than eighty-five percent (85%), the Grantee shall pay the City three hundred dollars ($300). . Any quarter where the Grantee performs equal to or greater than sixty-five percent (65%) and less than seventy-five percent (75%), the Grantee shall pay the City one thousand dollars ($1,000). . Any quarter where the Grantee performs less than sixty-five percent (65%), the Grantee shall pay the City two thousand dollars ($2,000). For any consecutive quarter(s) in which the Grantee performs at a level below ninety percent (90%), the Grantee shall pay the City the amount listed above for the most recent quarter, plus the amount paid to the City for the previous quarter. For example, if the Grantee performs at seventy-nine percent (79%) one quarter and sixty percent (60%) in the next quarter, the Grantee shall pay the City three hundred dollars ($300) for the first quarter and two thousand three hundred dollars ($2,300) [$2,000 for the most recent quarter plus $300 for the previous 49 quarter] for the second quarter. If Grantee continues to have a 60% performance in the third quarter, the payment shall be four thousand three hundred dollars ($4,300)[$2,000 for the most recent quarter and $2,300 for the pervious quarter.] H. The Grantee shall provide the City with a report within thirty (30) days following the end of each calendar quarter, noting the following: . number of total Service Calls completed for the quarter, not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72) hour period . number of Service Calls completed within the seventy-two (72) hour period . percentage of Service Calls completed within the seventy-two (72) hour period, not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72) hour period At the Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters. The Grantee shall notify the City of such a change at least thirty (30) days in advance. J. Under Normal Operating Conditions, the Grantee shall provide credit upon Subscriber request to affected Subscriber(s) when all Channels received by that Subscriber are out for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow the Grantee to verify the problem if requested by the Grantee. K. Under Normal Operating Conditions, the Grantee shall provide a credit upon Subscriber request to any Subscriber experiencing a Service Interruption of any Channel(s) for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Cable Service. In order to qualify for the credit, the Subscriber must promptly report the problem and allow the Grantee to verify the problem if requested by the Grantee. L. Under Normal Operating Conditions, if an outage affects all video programming Cable Services in an area which serves more than ten percent (10%) of total Grantee Subscribers in the Franchise Area, for more than twenty-four (24) consecutive hours, the Grantee shall issue an automatic credit to the affected Subscribers in the amount of the value of Basic plus Expanded Basic Service for the proportionate time the Cable Service was out. Such credit will be reflected on 50 Subscriber billing statements within forty-five (45) days following the outage. Such credit under this provision does not negate the Subscriber's right to request additional credit under items I. and J. herein. M. With respect to service issues concerning cable services provided to City facilities, Grantee shall respond to all inquiries from the City within four (4) hours and shall make necessary repairs within twenty-four (24) hours under Normal Operating Conditions. If such repairs cannot be completed within twenty-four (24) hours, the Grantee shall notify the City in writing as to the reason(s) for the delay and provide an estimated time of repair. SECTION 6: CUSTOMER COMPLAINTS A. The Grantee shall maintain a written log or an equivalent stored in computer memory and capable of access and reproduction in printed form, of all cable-related Subscriber contacts, which result in a Service Call. Such log shall, at a minimum, list the date and time of such contact, the nature of the complaint, and when and what actions were taken by the Grantee in response thereto. Such log shall be kept at the Grantee's office in or near the Franchise Area, for a period of at least three (3) years and shall be available for inspection during regular business hours by City upon request, subject to Section 631 of the Communications Act regarding Subscriber privacy. Additionally, the Grantee shall maintain a written or electronic log of every Subscriber complaint referred by the City, including the dates, times and detailed information related to the complaint and resolution. The Grantee shall cooperate with the City in the development of this log format. If the City receives a pattern of complaints from Subscribers, which indicates a recurring problem, City may require the Grantee to maintain a manual or electronic log of the problem being tracked until such time as the calls to the City are reasonably reduced. B. Under Normal Operating Conditions, the Grantee shall resolve Subscriber complaints referred by the City within seventy-two (72) hours. The Grantee shall notify the City of those matters that necessitate an excess of seventy-two (72) hours to resolve, but those matters must be finally resolved within ten (10) days of the initial complaint. The City may require reasonable documentation to be provided by the Grantee to substantiate the request for additional time to resolve the problem. If the Grantee fails to resolve a complaint within the required seventy-two (72) hours (or extended period), the Grantee shall pay to the City one hundred ($100) dollars per day for each day the complaint is not resolved within the specified time frame. 51 For purposes of this subsection, "resolve" means that the Grantee shall perform those actions, which, in the normal course of business, are necessary to respond to the Subscriber's problem. SECTION 7: BILLING A. Subscriber bills must be itemized, in accordance with Cable Services purchased by Subscribers and related equipment charges. Bills shall clearly delineate all activity during the billing period, including optional charges, rebates, credits, and late charges. If the Grantee chooses to itemize franchise fees and/or other governmentally imposed fees as a separate line item(s), such fees must be shown in accordance with applicable law. The Grantee shall maintain records of the date and place of mailing of bills and upon request shall certify in writing to City the date of mailing of each group of bills. B. Every Subscriber with a current account balance sending payment directly to Grantee shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date. C. To the extent that the Grantee chooses to bill in advance for Cable Services, every Subscriber with a current account balance sending payment directly to the Grantee shall be given at least fifteen (15) days from the first day of the billing period until the payment due date. The billing period is the time period for which Cable Services are being billed. For example if the customer's billing period is from the 1 sl to the 31s1 of the month, the due date shall not be earlier than the fifteenth (15th) day of the month. D. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill, which lists the due date as "upon receipt"; however, the current portion of that bill shall not be considered past due except in accordance with 8 and C above. E. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved provided that: . The Subscriber pays all undisputed charges; . The Subscriber provides notification of the dispute to Grantee within five (5) days of the due date; and 52 . The Subscriber cooperates in determining the accuracy and/or appropriateness of the charges in dispute. It shall be within the Grantee's sole discretion to determine when the dispute has been resolved, however, the City has the right to determine if the Grantee has met its obligations to the Subscriber under this subsection. F. Under Normal Operating Conditions, the Grantee shall investigate and resolve all billing complaints received from Subscribers within five (5) business days of receipt of the complaint if the dispute is regarding charges that are no greater than six (6) months old, or within fifteen (15) business days if the dispute involves charges that are more than six (6) months old. G. Subscriber bills from the Grantee shall include the name, address and telephone number of the appropriate regulatory agencies, including the City. The City shall have the opportunity to approve the name, address and telephone number of the City that appears on the bills. H. The Grantee shall provide a telephone number and address on the bill for Subscribers to contact the Grantee. I. The Grantee shall forward a copy of any billing inserts or other mailing sent to Subscribers to the City upon request. J. The Grantee shall provide all Subscribers with the option of paying for Cable Service by (1) cash, (2) check, (3) an automatic payment plan, where the amount of the bill is automatically deducted from a checking account designated by the Subscriber, or (4) by using a major credit card, as determined by the Grantee, on a preauthorized basis. The City recognizes that only option (4) above is available as of the effective date of this Franchise for subscription to the Grantee's cable Internet service, but that the Grantee is taking steps to make options (1) - (3) available in the near future. The City reserves the right to enforce the requirement above for the cable Internet service if the Grantee has not voluntarily made available the other payment options within eighteen (18) months of the effective date of this Franchise. SECTION 8: DEPOSITS, REFUNDS AND CREDITS A. The Grantee may require refundable deposits from Subscribers with 1) a poor credit or poor payment history, 2) who refuse to provide credit history information to the Grantee, or 3) who rent Subscriber equipment from the Grantee, so long as such 53 deposits are applied on a non-discriminatory basis. The maximum deposit the Grantee may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information is the average of a typical Subscriber's bill over the most recent six (6) month period. The maximum deposit the Grantee may charge for Subscriber equipment is the cost (not depreciated value) of the equipment, which the Grantee would need to purchase to replace the equipment rented to the Subscriber. B. The Grantee shall pay simple annual interest at five percent (5%) on deposits collected for equipment, which are unrelated to poor credit or poor payment history if the deposit is held by the Grantee for a period in excess of one year, and the Subscriber's account is current at the time the deposit is refunded. The Grantee shall pay interest on other deposits if required by State law or other generally applicable law. C. Under Normal Operating Conditions, refund checks will be issued within forty-five (45) days following the resolution of the event giving rise to the refund. D. Credits for Cable Service will be issued no later than the Subscriber's next bill, which is printed following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed. E. Bills shall be considered paid when appropriate payment is received by the Grantee or its authorized agent. Appropriate time considerations shall be included in the Grantee's collection procedures to assure that payments due have been received before late notices or termination notices are sent. SECTION 9: RATES. FEES AND CHARGES A. The Grantee shall not, except to the extent expressly permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Grantee-equipment necessary to receive Cable Service, except where any such problem which was caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Grantee equipment incorrectly), or by the failure of the Subscriber to take reasonable precautions to protect the Grantee's equipment (for example, a dog chew). B. The Grantee shall provide written advance notice to Subscribers of the possible assessment of a late fee, including the amount of the late fee, on bills or by separate notice. 54 C. No late fee may be assessed on Cable Services until one (1) month following the date of the bill on which the charges first appeared. D. The amount of the late fee shall be subject to any applicable federal, state or local consumer protection laws or other lawful and applicable regulations. SECTION 10: DISCONNECTION /DENIAL OF SERVICE A. The Grantee shall not terminate Cable Service for nonpayment of a delinquent account unless the Grantee provides a notice of the delinquency and impending termination at least fifteen (15) days prior to the proposed termination. The notice shall be mailed, postage prepaid, to the Subscriber to whom the Cable Service is billed. This notice shall not be given until five (5) days after the original due date for the charges. The notice of delinquency and impending termination may be part of a billing statement. B. In the event that Cable Service is terminated pursuant to a bulk contract and the Grantee is permitted to enter into Cable Service arrangements with individual dwellings previously serviced under such contract, the Grantee shall not hold such individual Subscriber(s) liable for any nonpayment or underpayments related specifically to the contract. Subscribers may be held accountable for payment for Cable Services subscribed to during the period of the contract, which were in addition to the Cable Services provided pursuant to the contract. C. Cable Service terminated in error must be restored without charge within twenty-four (24) hours of notice. If Subscriber was billed for the period during which Cable Service was terminated in error, an automatic credit shall be issued to Subscriber if the Service Interruption was reported by the Subscriber. The amount of the automatic credit shall be in accordance with Section 5, Paragraph I of these Customer Service Standards. D. Subject to Section 27 of the Franchise, the Grantee shall furnish and maintain Cable Services to each Person who makes a request to receive any Grantee-offered Cable Service. Nothing in these standards shall limit the right of the Grantee to deny Cable Service for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service, damage to the Grantee's equipment, or abusive and/or threatening behavior toward the Grantee's employees or representatives. E. No period of notice prior to requested termination of service can be required of Subscribers by the Grantee. No charge shall be imposed upon the Subscriber for or related to total disconnection of Cable Service, or for any Cable Service delivered 55 after the effective date of the disconnect request (unless there is a delay in returning Grantee equipment). If the Subscriber fails to specify an effective date for disconnection, the Subscriber shall not be responsible for Cable Service received after the day following the date the disconnect request is received by the Grantee. For purposes of this subsection, the term "disconnect" shall include Subscribers who elect to cease receiving Cable Service from the Grantee and to receive Cable Service or other multi-channel video service from another Person or entity. F. Upon the termination of Cable Service and upon request by the Subscriber, the Grantee shall either entirely remove its Drop or secure the Drop in a method reasonably acceptable to City. SECTION 11: COMMUNICATIONS WITH SUBSCRIBERS A. All Grantee personnel, contractors and subcontractors contacting Subscribers or potential Subscribers outside of the office of the Grantee shall wear a clearly visible identification card bearing their name and photograph. The Grantee shall account for all identification cards at all times. In addition, all Grantee representatives shall wear appropriate clothing while working at a subscriber's premises. Every service vehicle of the Grantee, its contractors or subcontractors shall be clearly identified as such to the public. Specifically, Grantee vehicles shall have the Grantee's logo and phone number plainly visible; those of contractors and subcontractors working for the Grantee shall have the contractor's/subcontractor's name and phone number plus markings (such as a magnetic door sign) indicating they are under contract to the Grantee. B. All contact with a Subscriber or potential Subscriber by a Person representing the Grantee shall be conducted in a courteous manner. C. The Grantee shall send annual written notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by the Grantee may be referred to the City. Such notification shall be either: . A separate document included with a billing statement; . Included on the portion of the monthly bill that is to be retained by the Subscriber; or . A separate mailing. D. The Grantee shall notify Subscribers in writing and as soon as possible of any 56 pnclng changes or additional charges (excluding temporary marketing on sales discounts or offers) and/or any changes in Cable Services, including channel line- ups. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of the Grantee, and the Grantee shall provide a copy of the notice to the City including how and when the notice was given to Subscribers. E. The Grantee shall provide written information to all Subscribers about each of the following areas at the time of installation of Cable Service, and thereafter at least annually to all Subscribers, at any time upon request, and at least thirty (30) days prior to making significant changes in the information required by this subsection, if within the control of the Grantee: . Products and Cable Service offered . Prices and options for Cable Services and conditions of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rental, program guides, installation, downgrades, late fees and other fees charged by the Grantee related to Cable Service . Installation and maintenance policies including, when applicable, information regarding the Subscriber's in-home wiring and/or home run wiring rights during the period Cable Service is being provided . Instructions about how to use the Cable Services, including procedures and options for ordering pay-per-view services, if offered . Channel positions of Cable Services offered on the Cable System . Complaint procedures, including the name, address and telephone number of the City, but with a notice advising the Subscriber to initially contact the Grantee about all complaints and questions . Procedures for requesting Cable Service credit . The availability of a parental control device . Grantee practices and procedures for protecting against invasions of privacy . The address and telephone number of the Grantee's office to which complaints may be reported . When applicable, the Grantee's community unit identifier as specified by the 57 FCC . Other information relating to the provision of Cable Services pursuant to this Franchise in format and substance as from time to time requested by the City and agreed to by the Grantee. The Grantee shall promptly notify the City if they are unable to agree and shall propose viable alternatives. A copy of notices required in this Paragraph E. will be given to the City at least fifteen (15) days prior to distribution to Subscribers if the reason for notice is due to a change that is within the control of Grantee and as soon as possible if not within the control of Grantee. F. Notices of changes in rates shall indicate the new rate and the amount the rate has increased or decreased from the current rate. Specific words such as "increase" or "decrease" must be used to describe the changes. G. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific dial location, and the hours of operation of that Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the dial location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service, such information must be included in the notice. H. Every notice of termination of Cable Service shall include all of the following information: . The name and address of the Subscriber whose account is delinquent . The amount of the delinquency . The date by which payment is required in order to avoid termination of Cable Service . The telephone number for the Grantee where the Subscriber can receive additional information about their account and discuss the pending termination I. The Grantee shall made reasonable efforts to ensure that employees that speak Spanish and English are available to assist Subscribers and potential Subscribers as requested. SECTION 12: PROTECTION OF SUBSCRIBER PRIVACY The Grantee shall comply fully with all applicable State and federal laws relating to the 58 protection of Subscriber privacy. SECTION 13: HANDICAPPED ACCESS The Grantee shall comply with all rules and regulations pertaining to the Americans with Disabilities Act. SECTION 14: AMENDMENTS These standards may be amended from time to time upon mutual agreement of the City and the Grantee. 59 EXHIBIT "B" INCREMENTAL COSTS 1. Specification of Costs For the construction of the Institutional Network, Grantee agrees that the term "Direct Costs" include only those costs specified in Section 2, and no Indirect Costs. 2. Direct Costs are: 2.1. Costs of necessary materials, equipment and hardware to construct the Institutional Network; 2.2. Payments made by Grantee to subcontractors in accordance with the requirements of the subcontracts; 2.3. Wages and salaries of Grantee's employees performing work on the relevant portion of the I-Net, including those employees involved in designing and mapping the I-Net (to the extent such designing and mapping is a Direct Cost that is over and above any Direct Cost that Grantee would incur in designing and mapping its Cable System,) and including management and supervision costs incurred by persons working within the City (over and above any Direct Cost that Grantee would incur in managing and supervising its own Cable System), and also including their welfare, unemployment compensation, social security and other benefits, for such part of their time as is employed on this work; 2.4. Payroll taxes and insurance and contributions applicable to wages and salaries of Grantee's employees performing work on the relevant portion of the I-Net, and sales, excise, business and occupation, and other taxes paid by Grantee on materials, equipment, supplies and services chargeable to the relevant portion of the I-Net; 2.5. Any labor force travel expenses directly chargeable to the work on the relevant portion of the I-Net; 2.6. Costs of necessary Franchise and permit fees related to the relevant portion of the I-Net; 2.7. Actual rental costs for the use of any necessary temporary facilities, or special machinery, equipment and hand tools used in the work on the relevant portion of the I-Net; 2.8. That portion directly attributable to this Franchise of premiums for insurance and bonds related to the design, construction, lease of optical fibers and maintenance of the I-Net; 2.9. Losses, expenses, and cost of reconstructing any work destroyed or damaged, not compensated by insurance or otherwise, sustained by 60 Grantee in connection with the work, provided they have resulted from causes other than the fault or negligence of Grantee; 2.10. Costs of removal of debris on the relevant portion of the I-Net; 2.11. Costs incurred on the relevant portion of the I-Net in taking action to prevent threatened damage, injury, loss in case of an emergency affecting the safety of persons and property; and 2.12. Other costs incurred on the relevant portion of the I-Net in the performance of the work if and to the extent approved in advance in writing by City. 3. "Indirect Cost" shall include: 3.1. Salaries and other compensation of Grantee's employees stationed at Grantee's principal office or offices other than the work site, except as provided in Section 2.3; 3.2. Overhead and general expenses, except as may be expressly included in Section 2.3; 3.3. Grantee's capital expenses, including interest on Grantee's capital, employed for the work; 3.4. Costs due to the fault or negligence of Grantee, subcontractors, anyone directly or indirectly employed by any of them, or for those whose acts any of them may be liable, including, but not limited to, costs for the correction of damage, defective or non-conforming work, disposal and replacement of materials and equipment incorrectly ordered or supplied, in making good damage to property not forming a part of the work. 4. "Incremental Cost" shall mean: That portion of the Direct Cost wholly attributable to the City's requirements; i.e., only that portion of the Direct Cost which would not have been incurred but for the obligation to construct, operate or maintain facilities required by the City in accordance with this Franchise. 61 EXHIBIT C POTENTIAL I-NET LOCATIONS City Hall, 5400 Bransford Road City Hall Annex, 5400 Bransford Road City Hall, 100 Main Street Police Station, 5201 Bransford Justice Center, 5201 Riverwalk Drive Community Center, 5301 Riverwalk Drive Parks Administration Building, 5109 Bransford Road LD Lockett House, 315 LD Lockett Webb House, 405 Shelton Fire Administration, 1900 Hall Johnson Road Fire Station #2, 1900 Hall Johnson Road Fire Station #3, 312 W. McDonwell School Road Marketing Center, 5100 Colleyville Boulevard Public Works Service Center, 1601 Hall Johnson Road ColleyYille Public Library, 110 Main Street nlSD Elementary Schools Bransford Elementary, 601 Glade Road Colleyville Elementary, 5800 Colleyville Boulevard Glenhope Elementary, 6600 Glenhope Circle OC Taylor Elementary, 5300 Pool Road --ISD Middle Schools Colleyville Middle, 1100 Bogart Drive Heritage Middle, 5300 Heritage Avenue nlSD High Schools Colleyville Heritage High, 5401 Heritage Avenue EXHIBIT D CITY AND SCHOOL FACILITIES TO HAVE CABLE CONNECTIONS WITHIN 120 DAYS OF EFFECTIVE DATE OF FRANCHISE City Hall, 5400 Bransford Road City Hall Annex, 5400 Bransford Road City Hall, 100 Main Street Police Station, 5201 Bransford Justice Center, 5201 Riverwalk Drive Community Center, 5301 Riverwalk Drive Parks Administration Building, 5109 Bransford Road LD Lockett House, 315 LD Lockett Webb House, 405 Shelton Fire Administration, 1900 Hall Johnson Road Fire Station #2, 1900 Hall Johnson Road Fire Station #3, 312 W. McDonwell School Road Marketing Center, 5100 Colleyville Boulevard Public Works Service Center, 1601 Hall Johnson Road Colleyville Public Library, 110 Main Street --ISD Elementary Schools Bransford Elementary, 601 Glade Road Colleyville Elementary, 5800 Colleyville Boulevard Glenhope Elementary, 6600 Glenhope Circle OC Taylor Elementary, 5300 Pool Road --ISD Middle Schools Colleyville Middle, 1100 Bogart Drive Heritage Middle, 5300 Heritage Avenue --ISD High Schools Colleyville Heritage High, 5401 Heritage Avenue