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HomeMy WebLinkAboutPR12875: CABLE FRANCHISEinteroffice MEMORANDUM TO: Mayor, city Council, City Manager From: Mark T. Sokolow, City Attorney /~ ~ Date: October 22, 2004 Subject: P. R. No. 12875; Council Meeting of October 26, 2004 Attached is P. R. No. 12875 authorizing the City Manager to execute a Franchise Agreement with Texas & Kansas City Cable Partners, L. P. MTS/ts Attacb3~ent cc: VIA FACSIMILE (409) 727-5050 Gary Underwood TIME WARNER CABLE z .Dr12875 .memo P. K. No. 12875 10/22/0~ ts RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A FRANCHISE AOl~EEMENT WITH TEXAS & KANSAS CITY CABLE PARTNERS, L. P. WHEREAS, the City Council deems it in the best interest of the citizens to authorize the City Manager to execute a Franchise Agreement with Texas & Kansas City Cable Partners, L. P. in substantially the same form as attached as Exhibit ~A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS= Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is herein authorized to execute a Franchise Agreement with Texas & Kansas City Cable Partners, L. P., in substantially the same form as delineated in the attached Exhibit ~A". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this __ day of , A.D., 2004, ~t a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers ; NOES- MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FOEM: SEE CONFIDENTIAL MEMO CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr12875 RECITALS THIS FRANCHISE AGREEMENT (this "Agreement") is made and entered between the City of Port Arthur, Texas (the "City") and Texas & Kansas City Cable Partners, L.P. ("Grantee"), a limited partnership organized and existing in good standing under the laws of Delaware. AGREEMENT SECTION 1. STATEMENT OF INTENT AND PURPOSE. 1.1 Statement of Intent and Purpose. The City and Grantee intend, by entering into this Agreement, to establish the terms, conditions, and responsibilities for the development, continued maintenance and operation of a cable television system. The cable television system is intended to satisfy the cable television needs and desires of the City's residents and institutions. 1.2 General Application of FCC Rules and Regulations. Unless specifically stated to the contrary in this Agreement, Grantee is obligated to fully comply with all applicable federal, state, and generally applicable local laws, rules, and regulations, including, without limitation, the Federal Communications Commission regulations ("FCC-Regulations") contained in Title 47 of the Code of Federal Regulations ("CFR"). SECTION 2. SHORT TITLE. This Agreement shall be known and cited as the "City of Port Arthur Cable Franchise Agreement." Within this document it shall also be referred to as "this Agreement." SECTION 3. DEFINITIONS. For the purpose of this Agreement, the following terms, phrases, words, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section 3. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3.1 ~'Basic Service" shall have the meaning assigned to it under 47 CFR § 76.901 (a), as may be amended by subsequent statute or regulation. 3.2 "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. § § 521-611) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385,106 Stat. 1460 (1992) and the Telecommunications Act of 1996, Pub. Law No. 104-104, 110 Stat. 56 (1996), as each act might be further amended. 3.3 "Cable Programming Service" shall have the meaning assigned to it under 47 CFR §76.901 (b), as may be amended by subsequent statute or regulation. 3.4 "Cable Service" means: (A) the one-way transmission to Subscribers within the City 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 or other programming services; or as Section 602(6) of the Cable Act (47 U.S.C. § 522(6)) may be amended by subsequent statute or regulation. 3.5 "Cable System" means Grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service, which includes video progranuning and which is provided to multiple Subscribers within the City, but such term does not include (A) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of- way; (C) a facility of common carder which is subject, in whole or in part, to the provisions of title II of the Cable Act (47 U.S.C. § §201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. §541(c)) to the extent such facility is used in the transmission of video programming directly to subscribers; unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with 47 Id.S.C. §573; or (E) any facilities of any electric utility used solely for operating its electric utility system. 3.6 "Channel" means a portion of the electromagnetic frequency spectrum or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available) which is used in a cable television system and is capable of delivering a television channel as television channel is defined by FCC regulation. 3.7 "City" means the City of Port Arthur, Texas. 3.8 "City Council" means the governing body of the City. 3.9 "City Franchise Fees" means those fees paid by Grantee to the City for use of Streets and Public Property and for supervision of this Agreement. 3.10 "Complaint" means any written inquiry made by a Subscriber that requires subsequent corrective action by Grantee. 3.11 "Default by Grantee" means the failure of Grantee to comply with any material term of this Agreement in accordance with the specifications set forth in this Agreement. 3.12 "Drop" means the aerial cable that connects the Subscriber's home, office, or building (as the case may be) to the nearest feeder cable of the Cable System, not to exceed 125 feet. 3.13 "Effective Date" has the meaning given to it in Section 15.7 of this Agreement. 3.14 "FCC" means the Federal Communications Commission, its designee, or any successor thereto. 3.15 "Force Majeure" means a strike, acts of God, acts of public enemies, orders of any kind of a government of the United States of America or of the State or any of their departments, agencies, political subdivisions; riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, volcanic activity, storms, floods, washouts, droughts, civil disturbances, explosions, labor unrest, shortage of materials or supplies, partial or entire failure of utilities or any other cause or event not reasonably within the control of the disabled party. 3.16 "Franchise" has the meaning given to it in this Agreement. 3.17 "Franchise Area" shall mean the territorial area of the City. Such area shall include all areas annexed by the City, not to include areas within the City's Extraterritorial Jurisdiction. The City shall give notice of annexation to Grantee as it is required to give notice to utility service providers in accordance with Section 43.0561 Vemon's Texas Codes, Local Government Code. 3.18 "Grantee" means Texas & Kansas City Cable Partners, L.P. its agents, employees, officers, designees, or any successor thereto. 3.19 "Gross Revenues" means all revenue received by Grantee from, in connection with or as a result of the provision of Cable Service over the Cable System within the City, which includes but is not limited to standard cable service, digital basic, digital value, Digipic 1000, Digipic 2000, Digipic 3000, Digipic 4000, pay-per-view, late fees, local advertising, installation and equipment rental. The term Gross Revenues shall not include items that are exempted by state or federal law. Gross Revenues shall be computed in accordance with generally accepted accounting principals ('GAAP'). 3.20 "Performance Bond" has the meaning given to it in Section 10.2 of this Agreement. 3.21 "Person" means any natural person or any association, firm, partnership, joint venture, corporation, limited liability company, or other legally recognized entity, private or public, whether for profit or not-for-profit 4 3.22 "Public Property" means any real property owned by the city of Port Arthur. 3.23 "Street" means the surface of and the space above and below any public street, public road, public highway, public freeway, public lane, public path, public way, public alley, public sidewalk, public boulevard, public parkway, public drive or any public easement or right-of-way now or hereafter held by the City. 3.24 "Subscriber" means any Person who lawfully subscribes to Cable Service provided by Grantee by means of or in connection with the Cable System. SECTION 4. GRANT OF AUTHORITY AND GENERAL PROVISIONS. 4.1 Grant of Franchise. Upon the Effective Date and subject to the terms and conditions of this Agreement, Grantee is granted a non-exclusive franchise for the occupation and use of the City's Streets for the operation, maintenance, construction, repair, upgrade, and removal of the Cable System (the "Franchise"). 4.2 Authority for Use of Streets. A. For the purpose of operating, maintaining, and constructing a Cable System in the City, Grantee may erect, install, construct, repair, replace, relocate, reconstruct and retain in, on, over, under, upon, across and along the City Streets such lines, cables, concluders, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System. B. Grantee shall operate and maintain the Cable System so as not to interfere with other users of Streets. Grantee shall make use of existing poles and other facilities available to Grantee provided Grantee is able to obtain access to such facilities on reasonable terms and conditions. Grantee shall take reasonable steps to notify affected Persons (whether by posting signs, direct mail, advertisement in newspaper of general circulation, or other means reasonably calculated to provide notice to the general public and to other utility companies) of proposed construction work. Further, Grantee shall participate and cooperate in any "one-call" or similar system for the exchange of information on the utility location or work to be conducted. 4.3 Franchise Term. The Franchise shall commence on the Effective Date as defmed in Section 15.7 and shall expire on October 31, 2029 (the "Franchise Term") unless renewed, revoked or terminated sooner as herein provided. 4.4 Area Covered. The Franchise is granted for the territorial boundary of the City (the "Franchise Area"). Grantee will continue to provide service to those areas presently served as identified on the map attached hereto as Exhibit A 5 A. Line Extension Policy. Grantee shall extend its Cable System in the Franchise Area pursuant to the following requirements: 1. Grantee shall extend its Cable System and make Cable Service available to every residential area within the Franchise Area whenever density of at least thirty (30) residential dwelling units per strand mile (or any proportionate amount thereof measured over a shorter or longer distance) is realized, as measured from the existing facilities of Grantee's Cable System in the Franchise Area. For purposes of this Section, density per strand mile shall be computed by dividing the number of residential dwelling units in the area by the length, in miles or fractions thereof, of the total amount of aerial or underground strand necessary to make service available to the residential dwelling units in such area in accordance with Grantee's system design parameters. The strand length shall be measured from the nearest point of access to the then-existing system, provided that extension is technically feasible from that point of access, and located within the public fights-of-way. The total strand length shall exclude the drop cable necessary to serve individual Subscriber premises. 2. Notwithstanding the provisions of Section 4.4. A. 1 hereof, within six (6) months of the Effective Date of this Agreement, Grantee agrees to extend its Cable System and make service available to La Fitte's Landing 1 and 2, located at the southern end of Pleasure Island. The residents will not be required to pay for the extension of cable to La Fitte's Landing I and II; however residents who request service from Grantee shall be responsible for any costs related to the provision of services to their home in accordance with Grantee's standard billing policies. Grantee shall maintain such service throughout the term of this Agreement provided Grantee is able to maintain all necessary authorizations and access to existing easements and poles on reasonable terms and conditions. 3. If an area except that described in 4.4 A.2, above does not meet the density requirements of subsection 4.4 A. 1 above, the Grantee shall only be required to extend the Cable System to Subscriber(s) in that area if the Subscriber(s) are willing to share the capital costs of extending the Cable System. Specifically, the Grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per cable mile from the nearest usable point in the Grantee's trunk or distribution cable, and whose denominator equals 30. Subscribers who request service hereunder shall bear the remaining cost to extend the Cable System on apro rata basis. The Grantee may require that payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. Subscribers shall also be responsible for 6 any Standard/non-Standard Installation charges to extend the Cable SyStem from the tap to the residence. 4.5 Police Powers. Grantee's rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all generally applicable laws and ordinances duly enacted by the City pursuant to that power not in conflict with this Agreement. 4.6 Use of Grantee Facilities. The City shall have the right to install and maintain, on negotiated terms and conditions, upon the poles and within the underground pipes and conduits of Grantee, any wires and fixtures desired by the City to the extent that such use and maintenance does not unreasonably interfere with existing and future operations of Grantee. 4.7 Written Notice. All notices, reports or demands shall be given in writing and shall be deposited in the United States mail in a sealed envelope, with certified mail postage prepaid thereon, or by express mail or overnight air courier addressed to the party to which notice is being given, as follows: If to City: City of Port Arthur Port Arthur 444 4th St., 4th Floor Port Arthur, TX 77641 Attn: City Manager With a copy to: City Attorney Point Arthur 444 4th St., 4th Floor Port Arthur, TX 77641 If to Grantee: Time Warner Cable 300 Parker Square Suite 210 Flower Mound, TX 75028 Attn: Government and Public Affairs with a copy to: Time Warner Cable 290 Harbor Drive Stamford, CT 06902 Attn: Law Department Such addresses may be changed by either party upon notice to the other party given as provided in this Section. 4.8 Franchise Non-Exclusive. The Franchise granted herein is non-exclusive. The City specifically reserves the right to grant, at any time, additional franchises for a cable television system in accordance with state and federal law. The City agrees that any grant of additional franchises by the City to any other entity to provide cable or video service shall not be on terms and conditions that are materially more favorable or less burdensome to the franchisee of any such additional franchise, than those which are set forth herein. 4.9 Compliance with Laws. The Franchise is granted as an exercise of the City's govemmental powers pursuant to Texas law and the City's authority as a Home Rule city. SECTION 5. DESIGN PROVISIONS. 5.1 System Upgrade. Grantee shall, maintain and operate the Cable System as a hybrid fiber coaxial system with a minimum frequency capacity of 750 MHZ. 5.2 Two-Way System. The Cable System shall have the technical capability for return communications. 5.3 Technical Standards. The Cable System shall be designed, constructed, and operated so as to meet the technical standards promulgated by the FCC relating to Cable Communications Systems contained in part 76 of the FCC's rules and regulations relating to Cable Communications Systems and found in the Code of Federal Regulations, Title 47, as may be amended from time to time. The City may, upon written request, witness tests of the Cable System being conducted pursuant to FCC rules and regulations, and the results of those tests shall be made available to the City free of charge within ten (10) days of completion of the tests if the City requests them in writing. 5.4 Signal Quality. The Cable System shall produce signals that comply with all FCC technical standards. SECTION 6. SERVICE PROVISIONS: 6.1 Programming. Grantee will continue to provide a diverse mix of programming. Grantee's current programming channel line up is attached hereto as Exhibit B. 6.2 Emergency Alert System. Grantee shall install and thereafter maintain an emergency alert system that meets FCC requirements. 6.3 Access Channels. Grantee shall make available to the City two (2) Channels for noncommercial, locally produced municipal government and educational programming. 6.4 Production Equipment. Grantee shall provide to Grantor a one-time equipment grant of $10,000 for the purchase of production equipment as is necessary for use in production of programming for the Government Access Channel. Additionally, Grantee shall install playback equipment at the Port Ar~hur Public Library, 4615 Ninth Avenue, Port Arthur, for the purpose of enabling City staff to perform playback of programming for the Government Access Channel. Such payment shall be payable, and such installation shall be completed, within six months of the effective date of this Franchise. 6.5 Closed Captioning and Descriptive Audio Service. Grantee will make audio descriptive service and closed captioning capabilities available to the extent required by state and federal law. 6.6 Service to Public Buildings. Grantee shall provide and maintain installation of Cable Drops and outlets as described in Exhibit C, and provide monthly Cable Service as described in Exhibit C without charge, so long as such service tiers are provided by Grantee to customers in general. Grantor may request service to additional administrative buildings owned and occupied by the City, and K-12 state accredited schools, with the drop length not to exceed one hundred and fifty (150) feet and capable of an aerial installation. For all other locations where the drop length exceeds one hundred fifty (I 50) aerial feet, the requesting entity shall pay the additional incremental costs of time and material for such drop beyond the cost ora one hundred and fifty (150) feet drop capable of an aerial installation. At such a public institution's request, the institution may add outlets at its own expense, as long as such installation meets the Grantee's reasonable standards. SECTION 7. CONSTRUCTION PROVISIONS. 7.1 Construction Standards. A. All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, as well as all state and generally applicable local codes, as adopted by the City. B. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the applicable National Electrical and Safety Code and National Electrical Code. C. Antennas and their supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state codes and regulations. 9 D. All of Grantee's plant and equipment, including, but not limited to, the antenna site, headand and distribution Cable System, towers, house connections, structures, poles, wire, fiber optic, coaxial cable, fixtures and appurtenances: (a) shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices; and (b) all such work must be performed by experienced maintenance and construction personnel so as not (i) to endanger or interfere with improvements of the City, (ii) to interfere in any manner with the rights of any property owner, or (iii) to unnecessarily hinder or obstruct pedestrian or vehicular traffic. E. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. 7.2 Construction Codes. A. Grantee shall adhere to all generally applicable, non-discriminatory building and zoning codes currently or hereafter applicable to construction in the City. B. Nothing contained in this Agreement shall be construed to give Grantee the authority to enter upon or work on private property in areas not encumbered with public easements without the permission of the property owner. 7.3 Repair of Streets and Property. A. Any and all Streets, Public Property, or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the Cable System shall be promptly repaired by Grantee, at its expense, to a condition as good as that prevailing prior to Grantee's disturbance of, or damage to, the property. If Grantee fails to repair, replace, or otherwise correct a Street or property following written notice by the City, the City may complete any repair, replacement, restoration or other correction and invoice Grantee for the same. B. Notwithstanding paragraph A above, the City shall allow Grantee a reasonable period of time in which to restore property. 7.4 Use of Existinz Poles. 10 A. No poles shall be erected by Grantee without prior approval of the City with regard to location, height, type, and any other pertinent aspect. Such approval shall not be unreasonably withheld. The City Manager shall coasider the availability of poles and the need to avoid pole proliferation in approving new poles. However, no location of any pole of Grantee shall be a vested interest and such poles shall be removed or modified by Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Nothing herein shall be construed as granting to Grantee any right or interest in any pole or conduit of any other utility, including any utility owned by the City. It is the responsibility of Grantee to secure agreements for use of such poles or conduits. B. Where poles already exist for use by Grantee to serve the City and are available for use by Grantee on reasonable terms and conditions, Grantee agrees to use such poles. 7.5 Undergrounding of Cable. A. New cable shall be installed underground at Grantee's expense where the existing telephone and electrical utilities are already underground. Grantee shall place cable underground in newly platted areas in concert with both the telephone and electrical utilities, unless this requirement is waived by the City. In the event the City reimburses any utility for undergrounding, Grantee shall be similarly reimbursed. B. In the event an underground installation is required and the ground is frozen, saturated, or otherwise unable to immediately facilitate underground installation, such installation shall be performed on a temporary basis in compliance with all state and federal roles, regulations, codes, or other generally applicable standards. As soon as conditions change to permit proper underground installation of the cable, Grantee shall after such conditions have changed to allow underground installation, undertake all necessary steps to install the cable underground pursuant to the terms and conditions of this Agreement. 7.6 Reservation of Street Rights. A. Nothing in this Agreement shall be construed to prevent the City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Street; coustmcting, laying down, repairing, maintaining or 11 relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. B. All such work shall be done, insofar as practicable in such a manner as not to obstruct, injure or prevent the flee use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of Grantee. C. If any such property of Grantee shall interfere with the construction or relocation, maintenance or repair of any Street or public improvement, whether it be construction, repair, maintenance, removal or relocation of a sewer, public sidewalk, or water main, Street or any other public improvement, thirty (30) days written notice shall be given to Grantee by the City and all such poles, wires, conduits or other appliances and facilities shall be removed or replaced by Grantee in such manner as shall be directed by the City so that the same shall not interfere with the said public work of the City, as reasonably determined by the City Manager and such removal or replacement shall be at the expense of Grantee. Provided, however, in no event shall Grantee be required to relocate its facilities if all other utilities and users of the fights of way are permitted to remain in their original location and provided further, if any other right-of-way user is compensated for such work by the City, then Grantee shall be similarly compensated excepting those instances where a user of the right-of-way is compensated because of the existence of a pre-existing deed or easement. D. Nothing contained in this Agreement shall relieve any Person fi.om liability for the cost to repair the lines arising out of the failure to exercise reasonable care to avoid injuring Grantee's facilities while performing any work connected with grading, regrading, or changing the line of any Street or public place or with the construction or reconstruction of any sewer or water system. 7.7 Trimming of Trees. Grantee shall have the authority to trim trees, in accordance with all applicable utility restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys, sidewalks, and public places of the City so as to prevent the branches of such trees fi-om interfering with the Cable System. 7.8 Movement of Facilities. In the event it is necessary temporarily to move or remove any of Grantee's wires, cables, poles, or other facilities placed pursuant to this Agreement, in order to lawfully move a large object, vehicle, building or other structure over the Streets of the City, upon two (2) weeks written notice by the City to Grantee, Grantee shall move at the expense of thc Person requesting the temporary removal, such of its facilities as may be required to facilitate such movements. Any service disruption provisions of this Agreement shall not apply in the event that the removal of Grantee's 12 wires, cables, poles or other facilities pursuant to this Section 7.8 results in temporary service disruptions. In the event the City relocates a facility requiring such temporary relocation, Grantee agrees to provide such relocation at no cost, provided the same is technologically and financially feasible. SECTION 8. AUDIT PROVISION. 8.1 Audit and Inspection. The City, its agents and its representatives shall have the authority, during normal business hours, to arrange for and conduct an inspection of the books and records of Grantee where such inspection is necessary to ascertain Grantee's compliance with the material terms of this Franchise. Grantee will be given ten (10) business days advance written notice of such inspection request and a description, to the best of thc City's ability, of the books and records it wants to inspect. Grantee shall retain applicable records for three (3) years following the close of its fiscal year. SECTION 9. CONSUMER PROTECTION PROVISIONS. 9.1 Rate Regulation. The City reserves the fight to regulate rates for Basic Service and any other Cable Services to the extent provided by federal or state law. Grantee shall maintain on file with the City at all times a current schedule of all rates and charges for all Cable Services, equipme~t, and installation and other services offered by Grantee. 9.2 Customer Se~wice Center. Grantee shall maintain a customer service center or payment center within the City which shall operate during normal business hours. 9.3 Customer Service Standards. Grantee shall comply with the following customer service standards or customer service standards of the FCC as established in Sec. 47 C.F.R. § 76.309(c) as may be amended. A. Cable System Office Hours and Telephone Availability. (1) The Grantee will ~naintain a local, toll-fi'ce or collect call telephone access li~e which will be available to its subscribers 24 hours a day, seven days a week. (2) Trained Grantee representatives will be available to respond to customer telephonic inquiries during Normal Business Hours. (3) After Normal Business Hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business day. (4) Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs ~3 to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met not less than ninety (90) pement of the time under Normal Operating Conditions, measured on a quarterly basis. (5) The Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (6) Under Normal Operating conditions, the customer will receive a busy signal less tl~an three (3) percent of the time. (7) Customer service center and bill payment locations will be open at least during Normal Business Hours and will be conveniently located. B. Installations, Outages and Service Calls. Under Normal Operating Conditions, each of the following standards will be met no less than ninety-five (95) percent of the time measured on a quarterly bas i s: (1) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet from the existing distribution system. (2) Excluding conditions beyond the control of the Grantee, the Grantee will begin working on "Service Interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. (3) The "appointment window" alternatives for installations, service calls, anti other installation activities will be either a specific time or, at maximum, a four-hour time block during Normal Business Hours. The Grantee may schedule service calls and other installation activities outside of Normal Business Hours for the express convenience of the customer. (4) The Grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. (5) If a Grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as schednlcd, the customer will be contacted. The appointment will be rcscheduled, as necessary, at a time which is convenient for the customer. C. Communications Between the Grantee and Subscribers. (1) Notifications to Subscribers. 14 (a) The Grantee shall provide written information on each of the following areas at the time of installation of service, at least annually to all Subscribers, and at any time upon request: (i) Products and services offered; (ii) Prices and options for programming services and conditions of subscription to programming and other services; (iii)Installation and service maintenance policies; (iv)Instructions on how to use the cable service; (v) Channel positions of programming carded on the Cable System; and (vi) Billing and Complaint procedures, including the address and telephone number of the City's office. (2) Subscribers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must he given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, the Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the other information required by paragraph 3(a)(i) of this section. Notwithstanding anything in this Section to the contrary, the Grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State or the City on the transaction between the Grantee and the Subscriber. (3) Billing. (a) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (b) in case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. (4) Refunds. Refund checks will be issued promptly, but no later than either- (a) Tire customer's next billing cycle following resolution of risc request or thirty (30) days, whichever is earlier, or (b) ~I'be return of the equipment supplied by the Grantee if scrvice is terminated. (5) Credits. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. 15 SECTION 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS. 10.1 Payment to City. A. Grantee shall pay to the City an annual mount equal to five percent (5%) of Grantee's Gross Revenue as defined in section 3.19 as compensation for use of Streets and other Public Property and for supervision and regulation of this Agreement, with such limitations or exceptions thereof as provided by state or federal law. B. Payments due the City under this provision shall be computed at the end of each calendar quarter. Payments shall be due and payable not later than May 30 for January through March; August 31 for April through June; November 30 for July through September; and February 28 for October through December. Each payment shall be accompanied by a report of Grantee's Gross Revenues, listed by type of revenue, for the period covered. Regarding the transition to this Franchise, Grantee shall remit Franchise Fees for January 2004 through October 2004 not later than December 30, 2004. C. No acceptance of any payment shall be construed as an accord that the amou,t paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to audit and recomputation by the City. 10.2 Performance Bond. A. On or before the Effective Date, Grantee shall furnish and file with the City a performance bond (the "Performance Bond"). The Performance Bond shall nm to the City in the amount of Fifty Thousand Dollars ($50,000). The Performance Bond shall be conditioned upon and insure the faithful performance by Grantee of the material terms and conditions of the Franchise and the payment by Grantee of any claim, liens, costs and expenses due the City that arise by reason of the operation or maintenance of the Cable System. B. The Perlbrmancc Bond shall contain the following or a similar endorsenncnt: "It is hercby understood and agreed that this bond may not be canceled without the consent of the 16 City of Port Arthur until thirty (30) days after receipt by the City by registered mail, return receipt requested, ora written notice of intent to cancel or not to renew." 10.3 Damages and Defense. A. Grantee shall indemnify, defend, and hold harmless the City for all damages and penalties incurred as a result of Grantee's conduct or performance under this Agreement or exercise of the Franchise. These damages and penalties shall include, but shall not be limited to, damages arising out of personal injury, property damage, copyright infringement, defamation, antitrust, errors and omission, theft, fire, and all other damages arising out of Grantee's exemise of the Franchise, whether or not any act or omission complained of is authorized, allowed or prohibited by this Agreement; such indemnification shall include, but not be limited to, reasonable attorney's fees and costs. Grantee's obligations hereunder shall not extend to any claim or loss arising from the City's negligence; misconduct; the content of programming carried on any channel set aside for public educational or governmental use. B. Grantee shall indemnify, defend and hold harmless the City for all damages and penalties, at all times during the term of this Franchise, as a result of or due to Grantee's construction or operation of the Cable System. C. In order 23r the City to assert its rights to be indemnified and held harmless, the City must: (1) promptly notify Grantee of any claim or legal proceeding which gives rise to such right; (2) a fiord Grantee the opportunity to participate in and fully control any compromise, settlement, resolution or disposition of such claim or proceeding; and (3) fully cooperate in the defense of such claim and make ax ailable to Grantee all such information under its control relating thereto. 10.4 Liability Insurance. A. Grantee shall maintain, throughout the term of the Franchise, liability insurance with a company licensed to do business in the State of Texas insuring Grantee and the City (wherein the City is named as additional insured), in the following minimum amounts: 17 1. One Million Dollars ($1,000.000.00) for bodily injury or death to any one (1) person; 2. Three Million Dollars ($3,000,000.00) for bodily injury or death resulting from any one (1) accident or occurrence; 3. One Million Dollars ($1,000,000.00) for all other types of liability. 4. Five Million Dollars ($5,000,000.00) excess liability or umbrella coverage. B. Grantee shall maintain in force, during the term of this Agreement and any renewal thereof, Workers' Compensation Insurance, covering its obligations under the Workers' Compensation statute. C. On or before the Effective Date, Grantee shall furnish to the City a certificate evidencing that a satisfactory insurance policy has been obtained. Such insurance policy shall require that the City be notified thirty (30) days prior to any expiration or cancellation. D. All insurance policies maintained pursuant to this Section 10.4 shall contain thc following or similar endorsement: "It is hereby understood and agreed that this insurance policy may not be canceled by the surety, nor may the intention not to renew be stated by the surety until thirty (30) days after receipt by the City of Port Arthnr, by registered mail, of a written notice of such intention to cancel or not to renew." 10.5. City's Right to Revoke. In addition to all other rights which the City has pursuant to law or equity, the City reserves the fight to revoke, terminate or cancel this Agreement and the Franchisc and all rights and privileges pertaining thereto, after following the procedures outlined herein this Agreement, in the event that: A. Grantce repeatedly violates any material provision of this Agreement; or B. Grantee attempts to evade any of the material provisions of this Agreement and refuses to cure such evasion; or C. Grantec practices any fraud or deceit upon the City; or D. Grantee becomes insolvent or unable or unwilling to pay its debts, or makes an assignment for the benefit of creditors or a preferential transfer under Texas law; or 18 E. An order fbr relief in the name of Grantee is entered, or a case is commenced by Grantee, under Title 11 of the United States Code, as an~cnded from time to time (the "'Bankruptcy Code"); or Whenever the City finds that Grantee has allegedly violated one or more material terms, conditions or provisions 0fthis Franchise, a written notice shall be given to Grantee, The written notice shall describe in reasonable dctail the alleged violation so as to afford the Grantee an opportunity to remedy the violation. Grantee shall have thirty (30) days subsequent to receipt of the notice in which to correct the violation. Grantee may, within ten (10) days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee shall specify with particularity the matters disputed by Grantee and stay the running of thc above-described time. 1. City shall hear Grantee's dispnte at the next regularly scheduled or specially scheduled Council meeting. Grantee shall be afforded due process with the opportunity to be heard and present its case that it is not in material violation of the franchise. The City shall determine if Grantee has committed a violation and shall make written findings of fi~ct relative to its determination. 2. If after hearing the dispntc, the claim is upheld by the City, then Grantee shall have thirty (30) days within which to remedy the violation. 3. The time for Grantee to cot t-cct any alleged violation shall be extended by the City if the necessary action to correct the alleged violation is of such a nature or character as to require more than thirty (30) days within which to perform provided Grantee commences corrective action within fifteen (15) days and thereafter exercises due diligence to correct the violation. Grantee shall have the right to appeal any final determination of the City to a court of competent jurisdiction. SECTION 11. FORECLOSURE, RISC I~;[VERSHIP AND ABANDONMENT. 11.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System, Grantee shall promptly notify the City of such fact and such notification shall be treated as a notification that the Franchise has been transferred. 11.2 Receivership. Thc City has the right to cancel this Agreement and revoke the Franchise, subject to any applicable provisions of federal and state law, including the Bankruptcy Code, one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of Grantee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: A. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied 19 with all the provisions of this Agreement and remedied all defaults thereunder; and B. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Agreement. SECTION 12. REMOVAL, TRANSFF. R AND PURCHASE. 12.1. Removal After P, cvocation or Termination. A. At thc termination of the Franchise Term and non-renewal in accordance with the procedures outlined under Federal law, or upon its revocation, as provided for, the City shall have the right to require Grantee to remove, at Grantee's expense, all or any portion of the Cable System from all Streets and Public Property within the City. In so removing the Cable System, Grantee shall refill and compact at its own expense any excavation that shall be made and shall leax¢ all Streets, Public Property and private property in as good a condition as that prevailing prior to Grantee's removal of the Cable System, and without affecting, altering or disturbing in anyway electric, telephone or utility, cables wires or attachments. The City, or its delegate, shall have the right to inspect and approve the condition of such Streets and Public Property after removal. The Performance Bond, insurance, indemnity and penalty provision of this Agreement shall remain in full fome and effect during the entire term of removal. The insurance and indemnity provisions of this Agreement in Section 10 shall survive any termination or revocation. B. If Grantee has riled to substantially commence removal of the Cable System, or such part thereof as was designated within thirty (30) days after written notice of the City' s demand for removal is given, or if Grantee has failed to complete such removal within one (1) year' after written notice of the City's demand for removal is given, thc City shall have the right to exercise one of the following options: 1. Declare all right, title and interest to the Cable System to be in thc City or its designee with all rights of ownership including, but not limited to, the right to operate the Cable System or transfer the Cable System to another for operation by it; or 20 2. Dcclare the Cable System abandoned and cause the Cable System, or such part thereof as the City shall designate, to be removed at no cost to the City. The cost of said removal shall be recoverable (at the City's discretion) fi.om the Performance Bond, from Grantee directly, or any combination thereof. 12.2 Sale or Transfer of Franchise. A. The Franchise shall not be sold, assigned or otherwise transferred, (a "Franct~ise Transfer") without the consent of the City, which consent shall not be unreasonably withheld. A Franchise Transfer shall be deemed to have occurred where the franchise or ownership is transferred to an unaffiliated entity. No consent shall be required lbr any transfer of the Franchise or any interest in Grantee to any other entity controlling, controlled by or under common control with Grantee; provided that the transferee certifies to the City at the time of such transfer that the transferee (1) is duly authorized to do business in Texas,. and (2) shall assume the obligations and liabilities of the transferor with respect to the Franchise. C. The City shall have one hundred twenty (120) days, from the date of receiving Grantee's FCC Form 394, together with exhibits, to act upon tt~e request for transfer. If the City fails to act upon the request for- transfer within such time period, such request shall be deemed grantcd. D. Within thirty (30) days of the consummation of any Franchise Transfer subject to the provisions of this Section, Grantee shall notify the City of the closing of such Franchise Transfer. E. In revicwing a request for approval of a Franchise Transfer, the City may inquire into the legal, technical and financial qualifications of the prospective Franchisee. The City shall not unreasonably withhold its approval. In no event shall a Franchise Transfer subject to this Section be approved by the City without the new Franchisee agreeit~g in writing to be subject to and bound by this Agreement. SECTION 13. RIGHTS OF INDIVIDUALS PROTECTED. 13.1 Discriminatory Practices Prohibited. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers or general citizens on the basis of race, color, religion, creed, national origin, sex, disability or age. Grantee shall comply at all times with all applicable fedcral and state laws relating to non-discrimination. 21 13.2 Subscriber Privacy. Grantee shall comply xvith thc subscriber privacy provisions contained in 47 U.S.C. §551 as the same may bc amct~ded. SECTION 14. PARENTAL CONTROL DEVICES. Upon the request of a Subscriber, Grantee shall provide Subscribers a device by which the Subscriber can prohibit viewing of a particular cable service during periods selected by that Subscriber. Such device shall be provided for sale or lease at a reasonable charge unless otherwise required u~clcr applicable federal law. The Grantee may in all instances impose a reasonable security deposit requirement for the use of such devices. SECTION 15. MISCELLANEOUS ?I2OVISIONS. 15.1 Compliance with Laws. Grantee shall conform to all state and federal laws and rules regarding cable television as they become effective, unless otherwise stated. Grantee shall also conform with all generally applicable, non-discriminatory City ordinances, resolutions, rulc~ and regulations heretofore or hereafter adopted or established during the entire tct'm of the Franchise adopted pursuant to the City's police power. In the event of a contlict between City ordinances, resolutions, rules or regulations and the specific pr~)visions of this Agreement, the specific provisions of this Agreement shall goven~. 15.2 Continuity of Sca'vice Mandatory. Upon expiration (and denial of renewal) or the revocation of this Agreement, the City may require Grantee to continue to operate the Cable System for an extended period of time not to exceed six (6) months. Grantee shall, as trustee for its successor in interest, continue to operate the Cable System under the terms and conditions of ~l~is Agreement. 15.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be ineffective but the remainder of this Agreement will not be affected, and it will in ~II other respects, continue to be effective and enforceable. If the holding of invalidity or t,~c~£orceability is subsequently repealed, unenforceable or otherwise changed so that the provision which had been held invalid is no longer in conflict with the law, roles a~d regulations then in effect, the provision will return to full force and effect. 15.4 Controlling Law. This Agreement shall be construed and enforced in accordance with the laws of thc State of Texas. 22 15.5 Captions. The paragraph captions and headings in this Agreement are for convenience and reference purpose only and shall not affect in any way the meaning of interpretation of this Agreement. 15.6 Repeal of Prior Ordinances. The prior franchise and all amendments thereto are repealed and supercedcd by this Agreement and of no further force and effect. 15.7 Effective Date. This Agreement shall be executed by the authorized officials and officers of the parties and will take effect on October 30, 2004 (the "Effective Date"), subject to acceptance by Grantee as evidenced by signature below. 15.8 Binding Effect. Upon execution of this Agreement, Grantee shall be bound by all the terms and conditions contained in this Agreement and shall be deemed to have accepted the Franchise. Grantee shall provide all services and offerings set forth herein. 15.9 Amendments. This Agreement may be amended only by the mutual consent of the City and Grantc¢. Any amendment must be in writing and executed by the City and Grantee. 15.10 Reservation of Right~. Acceptance of the terms and conditions of this franchise will not constitute, or bc deemed to constitute, a waiver, either expressly or impliedly, by the City or Grantee, of any constitutional or legal right which either party may have or may be subsequently determined to have, either by subsequent legislation or court decisions. The City and Grantee acknowledge that each reserves all of their respective rights under applicable Federal and State Constitutions and law. 23 Signed on the day of 2004 CITY OF PORT ARTHUR By: City Manager Signed on the day of 2004 TEXAS & KANSAS CITY CABLE PARTNERS, L.P. By: Southwest Division President Approved as to form: 24 EXHIBIT A - Areas Served 25 EXHIBIT A - Areas Served //, ~.... ,,..~v CAB [.Ig PORT ARTHUR NODE KEY M~ PROPRIETARY INFORMATION EXHIBIT B - Programming Lineup 2 KBTV (NBC) 58 Texas Cable News 368 Canal Sur 3 KFDM (CBS/UPN} 59 Sci-FI Channel 370 Puma TV 4 Government Access 60 A&E 374 MTV en Espanol 5 KBMT (ABC) 61 BET 376 Video Rola 6 TV Guide 62 MTV 378 CNN en Espanol 7 Educational Access 63 VH1 380 FOX Sports en Espanol 8 KUHT (PBS) 64 Great American Country 402 ESPNEWS 9 WGN 65 CMT 403 FUEL 10KWBB 0NB) 66 TV Land 404 NBA TV 11KUIL (Fox) 67 El Entertainment 405 FOX Sports Net - Atlantic 12 C-SPAN 68 Soap Net 406 FOX Sports Net- Central 13C-SPAN2 69 Bravo 407 FOXSports Net- Pacific 16 KITU (Trinity Broadcast Network) 70 WE 408 Speed Channel 17HomeShopplngNetwork 71 Golf Channel 409 Outdoor Channel 18Local Access Peg 72 Oxygen 410 The Tennis Channel 19 ShopNBC (Value Vision) 73 PAX 411-446 Sports PaY Per View 22QVC 74 Lifetime Movie Network 476 Fuse 23American Movie Classics 75 National Geographic 503 Independent Film Channel 24Turner Classic Movies 76 Style 504 FOX Movie Channel 25USA 77 Outdoor Life Network 505 Lifetime Real Women 26FOX Sports Southwest 78 Disney Channel 516 Encore E 27The Weather Channel 121 Discovery Kids 517 Encore True Stories E 28 Lifetime 123 Noggin 518 Encore Action E 29ABC Family Channel 125 G4 Video Game Network 519 Encore Love Stories E 30 FX 127 Toon Disney 520 Encore Mystery E 31 Nickelodeon 128 Family Net 521 Encore Westerns E 32CNN 12g Nick GAS 522 Encore WAMf E 33 ESPN 131 Bloomberg TV 526 Encore W 34 ESPN 2 135 CNBC World 527 Encore True Stories W 35 ESPN Classic 140 24-Hour Weather Radar 528 Encore Action W 36 FOX News Channel 161 Game Show Network 529 Encore Love Stories W 37 Headline News 162BBCAmerica 530 Encore Mystery W 38Food Network 163 Newsworld International 531 Encore Westerns W 39SplkeTV 164 America's Store 532 Encore WAM! W 40 Hallmark 183 Biography 533 Sundance E 41 TNT 185 Trio 534-548 STARZl Premiums 42TBS 187 History Channel International 550-568 HBO Premiums 43 History Channel 190 M TV 2 570-589 $howtime Premiums 44 Cartoon Network 'i 92 VH1 Classic 590-593 The Movie Channel Premiums 45Comedy Central 193 BET on Jazz 600-817 Cinemax Premiums 46 FIT TV 201 Discovery Home & Leisure 755 Discovery HD Theater 47Galavlslon 202 Tech TV 761 HBO HDTV E 48 EWTN 210DIY 763 ShowtlmeHDTVE 49 Court TV 212 Fine Living 766 iNHD 50HGTV 220 Discovery Health 767 iNHD 2 51 The Learning Channel 271 Discovery Times 769 FOX Sports HD 52 Encore MovlePlex 272 The Science Channel 770 HD Net 53A~imal Planet 273 FOX Sporls World 771 HD Net Movies 54Discovery Channel 274 Discovery Wings 800-810iNDEMAND Movies 55CNBC 360 La Familia 812-817 Soorts Pay Per View 56 MSNBC 362 Boomerang en Espanol 850-854 iNDEMAND Adult M vies 57 Travel Channel 3L:6 Discovery en Espanol 900 iCONTROL Video on Demand 903-948 Digital Music Basic Expanded Basic Digital premium Pay Per V~ew 26 EXHIBIT C - Service To Public Buildings As of July 15, 2004 Location Level of Service Address CITY HALL Basic + Expanded 444 4TH ST PORT ARTHUR 16 total outlets CITY OF PA TRANSIT Basic + Expanded 301 4TH ST PORT ARTHUR 2 Outlets CITY OF PA, ELECTRIC Basic + Expanded 320 AUSTIN AVE PORT ARTHUR CiViC CENTER,P A Basic + Expanded 3401 CULTURAL DR PORT ARTHUR FIRE DEPT - SABINE PASS Basic + Expanded 5030 S GULFWAY DR SABINE PASS 2 Outlets FIRE DEPT MAIN Basic + Expanded 2232 CANAL ST PORT ARTHUR FIRE STATION # lA Basic + Expanded 1215 WOODWORTH BLVD PORT ARTHUR FIRE STATION # 2 Basic + Expanded 1201 GRANNIS AVE PORT ARTHUR FIRE STATION # 5 Basic + Expanded 6099 LEWIS DR PORT ARTHUR FIRE STATION # 6 Basic + Expanded 3300 MEMORIAL BLVD PORT ARTHUR FIRE STATION # 7 Basic + Expanded 6554 GULFWAY DR PORT ARTHUR FIRE STATION # 8 Basic + Expanded 7800 9TH AVE PORT ARTHUR JB MATTHEW CENTER Basic + Expanded 740 W 7TH ST PORT ARTHUR PA ACTIVITY CENTER Basic + Expanded 920 Dequeen PORT ARTHUR PARK & REC - PEARRIDGE Basic + Expanded 3540 9TH AVE PORT ARTHUR POLICE DEPT Basic + Expanded 645 4TH ST PORT ARTHUR PUBLIC LIBRARY Basic + Expanded 4615 9TH AVE PORT ARTHUR 2 Outlets PUMP STATION Basic + Expanded 1601 19TH ST PORT ARTHUR WATER DEPARTMENT Basic + Expanded 201 H O MILLS BLVD PORT ARTHUR WATER DEPARTMENT Basic + Expanded 111 H O MILLS BLVD PORT ARTHUR HEALTH DEPARTMENT, 1~t floorBasic + Expanded 441 Austin Avenue PORT ARTHUR LAKEVlEW COMMUNITY CNTR Basic + Expanded 649 Stadium Road PORT ARTHUR PLEASURE ISLAND CMSN OFC Basic + Expanded 520 Pleasure Pier BIvd PORT ARTHUR 2?