HomeMy WebLinkAboutOrdinance 13978~~ _
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ORDINANCE NO. ~ ~Jl ~~
AN ORDINANCE GRANTING A FRANCHISE TO MILLENNIUM
TELCOM, L.L.C. FOR USE OF PUBLIC RIGHTS-OF-WAY IN THE
CITY OF FORT WORTH FOR THE PURPOSE OF CONSTRUCTING,
MAINTAINING AND OPERATING A CABLE TELEVISION SYSTEM;
REQUIRING EXECUTION OF A FRANCHISE AGREEMENT
BETWEEN THE CITY OF FORT WORTH AND MILLENNIUM
TELCOM, L.L.C. REGARDING CONDITIONS, AND REQUIREMENTS
RELATED TO THE USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY
OF FORT WORTH AND TO THE CONSTRUCTION, MAINTENANCE
AND OPERATION OF A CABLE TELEVISION SYSTEM AND TO THE
PROVISION OF CABLE SERVICES TO RESIDENTS OF THE CITY OF
FORT WORTH AND TO REASONABLE COMPENSATION TO THE
CITY OF FORT WORTH FOR THE USE OF THE PUBLIC RIGHTS-OF-
WAY; PROVIDING FOR PUBLICATION; AND PROVIDING AN
EFFECTIVE DATE.
The following statements are true and correct and constitute the basis upon which the
City Council of the City of Fort Worth ("City") has adopted this Ordinance
A. Millennium Telcom, L.L.C ("Company") wishes to construct a cable television
system and to provide cable television services in the City of Fort Worth. In accordance with the
City Charter and ordinances of the City, Company has applied for a franchise from the City m
order to carry out those purposes.
B. Company is a Texas limited liability company owned equally by Value Choke,
Inc. and One Source Communications, L.L.C. Value Choice, Inc. is a wholly-owned subsidiary
of Tn-County Electnc Cooperative, Inc., a Texas corporation. One Source Communications,
L.L.C. is owned by First Amencan Communications Enterpnses, Inc., a-~e~s corporatio , C.
Roger Hutton, an individual, and Conley L. Cathey, an individual. JIN Orcg~fl~,q
C. The City has reviewed Company's franclise application and determined that the
granting of a franchise, on the terms and conditions set forth herein, will assist the cable-related
needs and interests of the community, including, but not hnrited to, the provision of necessary
competition in cable services and participation in the provision of valuable public, educational
and govenunental programming.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS:
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Ordinance
Section 1. The City hereby grants Company a franchise to erect, construct, install and
maintain a cable television system in, over, under, along and across the public nghts-of--way and
to transact business related to the provision of cable services over such cable television system
subject to the execution by Company, Tn-County Electric Cooperative, Inc., Fust Amencan
Commumcations Enterpnses, Inc., Value Choice, Inc. and One Source Commumcations, L.L.C.
of a Franchise Agreement in the form attached hereto as Exhibit 1, which is hereby made a part
of this Ordinance for all purposes.
ec ' n 2. In accordance with and as required by Section 2 of Chapter XXV of the Crty's
Charter, the City Secretary is hereby directed to publish this Ordinance in its entuety once each
week for four (4) consecutive weeks within a penod of thurty (30) days following adoption by the
City Council in the official newspapers of the City Company shall pay for or reimburse the City
for all expenses incurred from such publication.
ecti n This Ordinance shall be m full force and effect following (i) its adoption, and (ii)
its publication in accordance with Section 2, and (iii) in accordance with Section 1, the execution
of the Franchise Agreement attached hereto as Exhibit 1
ADOPTED )D ",~(v "~~ ~,"Iaro~
Date M & C Number
EFFECTIVE DATE _f/- 2 ~- y
APPROVED AS TO FORM AND LEGALITY
By•
Peter Vaky
Assistant City Attorney
City of Fort Worth
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Exhibit 1
FRANCHISE AGREEMENT
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Franchise Agreement.
A. The City Council of the City of Fort Worth has adopted an ordmance that grants
Millennium Telcom, L.L.C. a franchise to erect, construct, mstall and maintain a cable television
system m, over, under, along and across the public rights-of--way nn the City of Fort Worth and to
transact business related to the provision of cable services over such cable television system
"Franchise Ordinance"), subject to the execution by Company, Tn-County Electric
Cooperative, Inc., First American Communications Enterprises, Inc., Value Choice, Inc. and One
Source Communications, L.L.C of this Franchise.
B. In accordance with the Franchise Ordinance, Millennium Telcom, L.L.C desires
to enter mto this Franchise. Tn-County Electric Cooperative, Inc., First American
Communications Enterprises, Inc., Value Choice, Inc. and One Source Communications, L.L.C
consent to Millennium Telcom, L.L.C.'s entering into this Franchise and desire, ~omtly and
severally, to guarantee unconditional performance of Millennium Telcom, L.L.C.'s performance
of its duties and obligations under this Franchise.
Agreement
1. DEFINITIONS.
Capitalized terms used in thus Franclise and not otherwise defined within thus Franchise
shall have the following meanings
Act shall mean the federal Communications Act of 1934, as amended.
Affiliate shall mean any individual, partnership, association, point stock company, lmuted
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
wrath, the entity m question.
Cable Business shall mean the provision by Company of Cable Services solely by means
of Company's Cable Television System.
Cable Services shall mean only
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• The one-way transmission to subscribers of (i) Video Programming or (ii)
other program_m~ng services, such as digital audio, by which is meant
information which Company makes available generally to all subscribers of
Company's Cable Services, such as digital cable radio service; and
• Subscriber interaction, if any, including, but not lirruted to, that which is used
for the selection or use of (i) Video Programming or other programming
services; (ii) various on-screen options; (iii) Enhanced Cable Services; (iv)
game channels; and (v) interactive services, such as the ordering of
merchandise and the downloading of programs or data access; and
• Enhanced Cable Services; and
• Institutional Network Services.
Cable Television System or System shall mean a facility consisting of a set of closed
transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Services which are provided to
multiple subscribers within the City, but shall not include (i) a facility that serves
only to re-transmit the television signals of one or more television broadcast
stations, (ii) a facility that serves subscribers without occupying any portion of the
Public right-of--way; (iii) a facility of a common carver which is subject, in whole
or in part, to the provisions of Title II of the Act, except that, other than for
purposes of Section 621(c) of the Act, such a facility shall be considered a Cable
Television System to the extent that such facility is used m the transmission of
Video Programming directly to subscribers, unless the extent of such use is solely
to provide interactive on-demand services, (iv) an open video system that
complies with Section 653 of the Act; or (v) any facilities of any electric utility
used solely for operating its electric utility systems.
Company shall mean Milleruuum Telcom, L.L.C
City shall mean the area within the corporate limits of the City of Fort Worth, Texas.
Complaint shall mean a telephone call or written commumcation from a customer
notifying Company of a problem relating to Company's billing or bilking
practices, Company's equipment, picture quality, failure to receive one or more
channels, a change in Company's practice or policy, Company advertising or
other business practice, the conduct of a Company employee or contractor, or the
failure of Company or a service representative to comply v~nth customer service
regulations.
Drop shall mean the cable or wire that connects the distribution portion of Company's
Cable Television System to a customer's premises.
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Enhanced Cable Services shall mean (i) information services, (ii) Internet protocol (IP)
telephony; (iii) high speed data service; and (iv) Internet access and Internet
service, such as that of an Internet service provider
Facilities shall mean all duct spaces, manholes, poles, conduits, underground and
overhead passageways, and other equipment, structures and appurtenances and all
associated transmission media in the Public Rights-of--Way used by Company in
the provision of Cable Services.
Franchise shall mean the authorization issued to Company by the City for the
construction and operation of Company's Cable Television System, as provided
by Title VI of the Act and pursuant to and in accordance with the Franchise
Ordinance and thus Franchise Agreement.
FCC shall mean the Federal Commumcations Commission.
Gross Revenue shall mean all of the amounts earned or accrued by Company, or by an
entity m any way affiliated with Company, m whatever form and from all sources
which are in connection with or attributable to (i) the operation of the Cable
Television System with m the City's corporate limits or (ii) Company's provision
of Cable Services wrthun the City's corporate limits. Gross Revenue shall include,
but not be limited to, all subscriber and customer revenues earned or accrued net
of bad debts, including revenues for (i) basic cable services, (ii) additional tiers of
service; (iii) premium services, (iv) pay-per-view programs and services, program
guides, (v) cable modem, high speed data, IP telephony and Internet access and
services; fees for (vi) the installation or disconnection of Cable Services; (vii)
service calls, (viii) the provision, sale, rental or lease of converters, remote
controls, additional outlets and other customer premises equipment; (ix) revenues
from the use of leased access channels, (x) advertising revenues from the Cable
Television System, and (xi) revenues in compensation from home shopping
programming. Advertising revenues and other revenues whose source cannot be
identified with a specific subscriber shall be allocated to the City based upon the
percentage of subscribers residing in the City compared to that served from the
head-end serving the City
Institutional Network or I-NET shall mean the fiber optic commumcations network
described in Section 5.2 and Exhibit "B" to be constructed and operated by
Company for the provision of Institutional Network Services to I-NET Users.
Institutional Network Services shall mean the provision of usable bandwidth capacity
to I-NET Users through fiber optic lines for applications including, but not limited
to, (i) two-way dedicated voice, data, video and telephony channels connecting
and interconnecting facilities owned, leased or used by the City, schools, counties,
road commissions or other amts of state or local government; (ii) computenzed
traffic control systems for coordinated traffic control on an area-wide basis, (iii)
Supervisory Control and Data Acquisition (SCADA) systems for mumcipally
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owned water, sewer, gas and electnc systems (including street lighting systems),
(iv) interconnection of facilities serving police, fire and other public safety
systems; (v) interconnection of libranes and other government buildings for the
one-way or two-way interchange of video signals, and (vi) local azea networks or
wide-azea networks connecting governmental buildings, such as for geographucal
informational systems purposes.
I-NET User shall mean the City and any school or umt of state or local government
designated by the City to receive Institutional Network Services under this
Franchise Agreement.
Normal Operating Conditions shall mean those service conditions which aze within the
control of Company Those conditions which are not within the control of
Company include, but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which are within the control of Company include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regulaz or seasonal demand penods, changes in the billing cycle, changes in the
form of bills and other billing matters, changes in channel lineups or services that
are within Company's control, and repairs, rebuilds, maintenance and upgrade of
the cable system including computer softwaze and hardware.
Public Right-of--Way shall mean all dedicated public streets, highways, alleys and
nghts-of--way in the City ,but shall not include any property of the City that is not
a dedicated public street, highway, alley or nght-of--way
Telecommunications Service shall mean the offering of any type of telecommunications
service, other than Cable Services, to the public, or to such classes of users as to
be effectively available directly to the public, regardless of the facilities used, by
means of the transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or content of the
information as sent and received.
Transfer or Transferred shall mean, in addition to supplements set forth in Section 13
of this Franchise, (i) any form of sale, conveyance, assignment, lease, sublease or
merger involving Company as to this Franchise or the Cable Television System or
(ii) any change in the effective control of Company, such as, by way of example
only, that described in 47 C.F.R. § 76.501 et seq and the notes thereto
Video Programming shall mean programming provided by, or generally considered
compazable to programming provided by, a television broadcast station.
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2. GRANT OF RIGHTS.
2.1. General Use of Public Rights-of--Way for Provision of Cable Service .
Subject to the terms and conditions set forth in this Franchise and the City Charter
and ordinances, the City hereby grants Company the nght to erect, construct, install and
maintain a Cable Television System in, over, under, along and across the Public Rights-
of-Way and to provide Cable Services and transact a Cable Business m the City
Company hereby acknowledges and agrees that thus Franclise does not allow Company
to provide any Telecommumcations Service m or through the City If Company or an
Affiliate of Company contends that Company or an Affiliate of Company is penmtted or
mtends to provide any Tehecommumcations Service in or through the City, Company
shall first notify the City m venting and shall obtain a franclise or other permit or
agreement for the use of the Public Rights-of--Way if requued by the City
2.2. Scone.
2.2.1. Initial Service Area.
If Company will not make its Cable Services available m all parts of the
City on the Effective Date of this Franchise, Company shall outline the area
wrtlin the City m which Company will imhally offer its Cable Services, a map of
which area shall be attached hereto as Exhibit "A" and made a part of tlis
Franchise for all purposes ("Initial Service Area") The Initial Service Area and
any other portion of the City in which Company, in accordance with thus
Franchise, is authonzed to provide Cable Service shall be collectively referred to
as the "Authorized Area"
2.2.2. Extensions of System.
The City believes that competition between providers of Cable Services
will benefit citizens and desires Company to provide Cable Service to all areas of
the City regardless of marketing attractiveness. As a result, the City cannot
endorse or condone any plan by Company to provide Cable Service in
geographically disparate areas of the City that aright be favored by Company, At
the same time, the City understands Company's financial mabihty to construct a
City-wide cable system in a short amount of lime. Therefore, the City is willing
to allow Company to provide Cable Service immediately in the Initial Service
Area and beyond the Imhal Service Area as follows.
2.2.2.1. If Company wishes to provide Cable Service to an area of the
City beyond the Initial Service Area ("New Service Area"), Company
shall provide the City with a wntten request to extend the Authonzed Area
and a detailed map that specifically depicts the New Service Area.
Company may not provide Cable Service or engage in construction work
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on or to the System or another cable or video system or facilities outside
the then-current Authonzed Area without the advance wntten consent of
the City Council.
2.2.2.2. If the New Service Area is not completely geographically
adjacent to the existing Authonzed Area, Company must provide the City
with a plan to extend the System to the area of the City between the then-
current Authonzed Area and the New Sernce Area ("In-fill Area") if the
In-fill Area has a density of fifty (50) occupied residences, whether single-
family homes, duplexes or multi-family dwellings, per square mile and
regardless of whether the residents of the In-fill Area have personally
requested Cable Service from Company The City and Company shall
negotiate in good Earth the parameters of a given In-fill Area, but in the
event of a disagreement as to the parameters of a given In-fill Area, the
City's sole decision shall be final and binding. The City shall not consent
to an extension of the then-current Authonzed Area unless Company
agrees to provide Cable Service to all parts of the In-fill Area as well as to
the New Service Area. Company may not offer Cable Service in a New
Service Area before rt offers Cable Service m a corresponding In-fill Area.
2.3. Nonexclusive.
This Franchise and all nghts granted to Company herein are stnctly nonexclusive.
The City reserves the right to grant other and future Cable Television System franchises
to other persons and entities as the City deems appropriate. This Franchise does not
establish any pnonty for the use of the Public Rights-of--Way by Company or by any
present or future franchisees or other pennrt holders. In the event of any dispute as to the
pnonty of use of the Public Rights-of--Way, the first pnonty shall be to the public
generally, the second pnonty to the City in the performance of its vanous functions, and
thereafter, as between franchisees and other pernit holders, as determined by the City in
the exercise of its powers, including the police power and other powers reserved to and
conferred on it by the State of Texas.
2.4. Other Permits.
This Franchise does not relieve Company of any obligation to obtain .permits,
licenses and other approvals from the City necessary for the construction, repair or
maintenance of the System or the provision of Cable Services.
2.5. onds.
Pnor to the commencement of any construction work in the Public Rights-of--Way
in the City that requires a cut, opemng or other excavation, Company shall deliver to the
City bonds executed by a corporate surety authonzed to do business in the State of Texas
and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed m the City's corporate
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liirits. The bonds shall guazantee (i) satisfactory compliance by Company with all
regtirements, terms and conditions of this Franchuse Agreement and (ii) full payments to
all persons, firms, corporations or other entiries with whom Company has a duect
relarionship for the performance of such construction, maintenance or repaus.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company, Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed by the contractor in
the City's corporate lurits. The bonds shall guazantee (i) the faithful performance and
completion of all construction, maintenance or repau work in accordance with the
contract between Company and the contractor and (ii) full payment for all wages for
labor and services and of all bills for matenals, supplies and equipment used in the
performance of that contract. Such bonds shall name both the City and Company as dual
obligees.
3. FEES AND PAYMENTS TO CITY.
3.1. Franchise Fee.
Company shall pay the City throughout the term of this Franchise an amount
equal to five percent (5%) of Company's Gross Revenue ("Franchise Fee").
3.1.1. When .Due.
Company shall pay the Franchise Fee to the City on a calendar quarterly
basis. The Franchise Fee shall be due within forty-five (45) days following the
last day of each quarter
3.1.2. AccompanyingReport.
Company shall submit with its Franchise Fee payment a wntten report m a
form acceptable to the City and venfied by an officer of the Company that
summanzes Company's Gross Revenue for the previous quarter and computes the
amount of the Franchise Fee due the City for that quarter
3.1.3. udit .
The City may audit Company at any time to venfy the accuracy of
Franchise Fees paid to the City Company shall pay any additional amounts due
the City as reported m any City audit within thuty (30) days following the City's
submission to Company of an invoice for such sum. If this amount exceeds ten
percent (10%) of the Franchise Fee which the audit shows should have been paid
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to the City for the penod in which the audit covered, Company shall pay the
City's costs for the audit. Otherwise, the City shall pay its own costs for the audit.
3.2. Qther Payments.
In addition to the Franchise Fee, Company shall pay the City all sums which may
be due the City for property taxes, license fees, perrmt fees, or other taxes, charges or fees
that the City may from tune to time unpose. Company shall reunburse the City for
publication of thus Franchise as required by the City's Charter
3.3. t res
All sums not paid when due shall bear interest at the rate often percent (10%) per
annum or the maxunum amount allowed by law, whichever is less, computed monthly If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such sums by their respective due dates
shall not, in and of itself, constitute an Event of Default under Section 15 of this
Franchise.
3.4. Letter of Credit.
Within thirty (30) days following the Effective Date of this Franchise, Company
shall provide the City with a Letter of Credit in favor of the City m the amount of Five
Thousand Dollars ($5,000 00) issued by a financial institution in the City's corporate
hmrts and m a form acceptable to the City Company shall increase the amount of this
Letter of Credit to $10,000 once Company has two thousand (2,000) or more subscribers
in the City; $25,000 00 once Company has fifteen thousand (15,000) or more subscribers
in the City; $50,000 00 once Company has thirty thousand (30,000) or more subscribers
in the City; and $100,000 00 once Company has sixty thousand (60,000) or more
subscribers m the City Tlns Letter of Credit shall serve a secunty to the City for the
faithful performance by Company of the provisions of this Franchise. The Letter of
Credit shall provide that the City may draw down an amount owed by Company to the
City under the provisions of this Franchise or applicable law by presenting the issuer with
(i) a wntten statement, signed by the City Manager, that sets forth the basis of the City's
demand and contains an appropnate reference to the applicable law, ordinance or
Franchise provision under which the City is due the sum demanded and (ii) a copy of the
Letter of Credit. Company shall keep in effect and maintain this Letter of Credit at the
amount specified herein at all times dunng the term of this Franchise. The Letter of
Credit shall provide that the Letter of Credit shall not expire and that the issuer shall not
cancel the Letter of Credit unless the issuer provides wntten notice to the City in advance
of such expiration or tennmation.
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4.
This Franchise shall become effective on the Effective Date, as established m the
Franchise Ordinance, and shall expire at 11.59 P.M. CDT on August 31, 2006 This Franchise
and all nghts of Company hereunder shall automatically terminate upon the expiration of this
Franchise. The City or Company, at either party's option, may reopen this Franchise within six
(6) months following the date of adoption of federal or state legislation or FCC rules or
regulations if such affect the City's ability to (i) regulate rates for any Cable Services provided by
Company or (ii) protect subscribers within the City on matters such as customer service or
consumer protection. This Franchise may not be reopened for any reason other than as set forth
in the immediately preceding sentence.
5. ACCESS TO THE SYSTEM.
5.1. PEG Channels.
Company shall provide non-commercial public access, educational and
government channels ("PEG Channels") on its System in the basic or lowest tier of
service as follows.
5.1.1. Public Access Channel.
Company shall designate Channe146 as a public access channel for use by
members of the general public which will be admiistered by the City or by an
institution or institutions designated by the City in the City's sole discretion.
5.1.2. Educational Channels.
Company shall designate Channels 43 and 50 as educational channels for
use by educational entities located m the Dallas-Fort Worth metropolitan area
designated by the City in the City's sole discretion.
5.1.3. Government Channels.
Company shall designate Channels 7 and 45 as government channels
admiistered by the City for programming provided by the City, a designee of the
City or such other units of state or local government as the City may appoint from
time to time.
5.1.4. PEG Programming Support.
The City already owns and operates its own community access studio and
produces programming for all PEG channels on its own or on its behalf.
Although federal law allows the City to require a cable operator to provide
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facilities for PEG programming, the City is willing to forgo any such requirement
in return for Company's assistance in the City's production of and admiistration
over PEG programming as provided in this Section 5 1 4 In order for the City to
continue rts production of and admuistration over PEG programming, Company
shall pay to the City each month during the term of this Franchise a payment
equal to One Dollar ($1 00) for each subscriber of the Company that resides in the
City ("PEG Fee"). In accordance with federal law, Company may elect, but is
not required, to pass through this PEG Fee to rts subscribers in the City In the
event that Company does elect to pass through the PEG Fee to rts subscribers in
the City, Company shall list the PEG Fee as a separate line charge on its
subscribers' monthly bills.
5.1.5. Allocation of PEG Channels.
Upon at least six (6) months' advance wntten notice to Company, the City
may allocate or reallocate the usage of the PEG Channels among and between
different uses and users of such PEG Channels, including, but not limted to, the
City's removing a PEG Channel or a user of a PEG Channel, replacing a PEG
Channel or a user of a PEG Channel, requiring several different users to shaze or
jointly use a given PEG Channel, or allowing one or more users currently shanng
a PEG Channel to have a PEG Channel in which they are the sole User
5.1.6. Temporary Additional PEG Channels,
After the date on which Company begins to provide at least fifty (50)
channels m a high definition television format (or technological successor
thereof), Company shall provide, upon wntten request by the City, one addrtonal
PEG Channel so as to allow, to the extent deemed appropriate by the City, PEG
Channel simulcasting in both 6 MHz analog NTSC format and m an HDTV
format. If Company ceases to provide any channel of programming on its System
in 6 MHz NTSC analog format, Company shall not be required to provide such
additional PEG Channel.
5.2. Institutional Network.
Company shall provide, construct, operate and maintain an Institutional Network
(excluding coders/decoders, interface and other terminal equipment which will be
supplied by I-NET Users) that will provide I-NET Users with Institutional Network
Sernces. Unless the City agrees otherwise m writing with Company, the I-NET,
including the individual fiber optic fibers constituting all or any portion of the I-NET,
shall by owned and maintained by Company but provided for the sole and exclusive use
of I-NET Users. Upon wntten request by the City, Company will provide the City with a
wntten final cost estimate and other information that the City may reasonably require of
installing I-NET fiber from Company's fiber optic Faciirties to the locations to be served
are set forth on Exhibit "B" ("I-NET Sites"), attached hereto and hereby made a part of
this Franchise Agreement for all purposes. Company shall pay (i) all costs and expenses
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associated v~nth connecting the I-NET from Company's head end to the City's Municipal
Building located at 1000 Throckmorton and (ii) the City's Cable Communications Office
located at 401 W Second St. plus (iii) the actual cost of the first five hundred (500) feet
of fiber optic fiber installation from Company's fiber optic Facilities to any respective I-
NET Site. The City shall pay the for the installation of fiber optic fiber over five hundred
(500) feet from Company's fiber optic Facilities to any I-NET Site based on the written
final cost estivate provided to the City In addition, the City agrees to use its best efforts
to negotiate an arrangement with E-5p~re Communications, Inc. ("E-Spire") under
which E-Spire will allow Company to use a portion of E-Spire's fiber optic system at no
charge to the City or Company for purposes of the I-NET In the event that the City
cannot negotiate such an agreement with E-Spire or if a material provision of any
agreement between the City and E-Spire is lawfully terminated by E-Spire or preempted
by law, the City and Millennium shall use their best efforts to negotiate a satisfactory
remedy
5.3. I-NET Design.
5.3.1. For each I-NET Srte, Company shall purchase and have installed within
the fiber optic cable packet or in a separate fiber optic cable packet a minimum of six (6)
dazk optical fibers interconnecting each of the I-NET Sites m a star or hybrid network
azchitecture, as requested and approved by the City in writing.
5.3.2. Within thirty (30) days following receipt of the architecture and design for
the I-NET, the City shall respond to Company with approval or a reasonable request for
re-design~*~If the City approves the design, the City shall advise Company of the portions
of the I-NET that the Company shall construct, activate and connect. If the City
reasonably requests a re-design, the City shall provide a wrtten reason therefor and
Company shall accordingly revise and resubmit the architecture and design and resubmit
within thity (30) days following receipt of the City's request. This procedure shall be
repeated until agreement as to the azchitecture and design of the I-NET is reached.
5.3.3. Company shall purchase and install termination hardware at each I-NET
Srte, including standard connectors designated by the City and appropriately labeled.
Company shall terminate the fibers on the tennmation hazdwaze. Site equipment other
than termination hazdwaze shall be provided and maintained by the Crty for I-NET Users.
5.4. Incremental I-NET Fiber.
Company shall install and terminate additional fiber optic pairs ("Incremental I-
NET Fiber") in Company's future new and replacement fiber optic installations for use
as an I-NET in the following manner
5.4.1. The City will inform Company in writing from time to tune of the
additional facilities it would like to have served by an I-NET Company will use
such information in its plans for future fiber optic installations, where, for
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example, one routing will pass a facility the City would like to have served and
another routing of compazable cost would not.
5.4.2. By January 31 of each yeaz, Company will provide the City with its
conceptual plans for new and replacement fiber optic construction for that
calendar yeaz Company will also provide the City from tune to tune with
wntten notice of conceptual plans for additional fiber optic construction as soon
as is feasible, but not less than thuty (30) days pnor to the vitiation of such
construction.
5.4.3. Upon wntten request by the City, Company will provide the City with a
conceptual cost estirriate, and other information that the City may reasonably
require, of mstalling Incremental I-NET fiber along all or any portion of a route or
routes that aze part of Company's conceptual plans. Such estunates shall be
provided as soon as possible after the City's request so that the City may have
time to obtain City Council approval or to amend its budget.
5.4.4. As to any route where the City has requested a conceptual cost estvnate,
Company shall provide the City with the final cost estimate of installing
Incremental I-NET Fiber, and other information that the City may reasonably
require, as soon as Company's design of the fiber for such route is reasonably
complete. The City will have thirty (30) days following receipt of the final cost
figure to notify Company to install Incremental I-NET Fiber
5.4.5. The cost of the installation of Incremental I-NET Fiber shall be computed
on an incremental basis, meaning the cost to Company of constructing and
installing fiber on a given route with the Incremental I-NET Fiber less the cost to
Company of constructing and mstalling fiber on a given route without the
Incremental I-NET Fiber
5.5. 1-NET Maintenance.
Company shall provide I-NET Users with a reliable level of service, repair and
maintenance that, at a mvumum, meets the following performance standazds.
5.5.1. Company shall maintain of 99.5 percent service availability to I-NET
Users measured over a penod of twelve (12) months.
5.5.2. Company shall respond to repair requests from I-NET Users for circuits
identified as cntical pursuant to Section 5.5 4 within two (2) hours of the request.
Company shall respond to other repair requests within four (4) hours of the
request.
5.5.3. Company shall provide ongoing maintenance of the I-NET at its discretion
and as it deems necessary Except in emergency situations, Company shall
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provide at least one (1) week's advance nonce to any affected I-NET User of any
maintenance requiring temporary interruption of services.
5.5.4. Company and the City shall develop a mutually agreeable priority fisting
of critical cuctuts and their terminal locations. When notifying Company of
service complaints, an I-NET User shall identify critical cucuits requiring priority
repair Company shall escalate the repair of critical cucurts to the extent
reasonable under the circumstances.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. No Undue Burden.
The System shall not be erected, installed, constructed, repaired, replaced or
maintained in any manner that places an undue burden on the present or future use of the
Public Rights-of--Way by the City and the public If the City, in its sole and reasonable
judgment, determines that any portion of the System does place an undue burden on a
portion of the Public Rights-of--Way, Company, at Company's sole cost and expense and
within a reasonable time period specified by the City, shall modify the System or take
other actions determined by the City to be m the public interest to remove or alleviate the
burden.
6.2. Minimal Interference.
The System shall be erected and maintained in a manner that causes rrummal
interference with the public's use of the Public Rights-of--Way and with the rights or
reasonable convemence of the owners of property which adjoins any of the Public
Rights-of--Way
6.3. Underground Facilities.
In any azea of the City where the City currently or may m the future require public
utilities to place their cables, wires or other equipment underground, then Company shall
also place its existing and future cables, woes and other equipment underground. In any
such azea where Company may have existing cables, woes and other equipment above
ground, Company shall install such cables, wires acid other equipment underground
within six (6) months following written notification from the City and at no expense, cost
or liability to the City In this event, Company shall coordinate with other utilities
serving such azea of the City so that only one or as few possible trenches as necessary aze
utilized for the underground installation of Facilities and other equipment.
6.4. Restoration of Prope~y.
Company, at Company's sole cost and expense, and in a manner approved by the
City, shall promptly restore any portion of the Public Rights-of--Way that are in any way
13
disturbed or damaged by the construction, operation, maintenance or removal of the
System to, at Company's option, as good or better a condition as such property was in
immediately pnor to the disturbance or damage. Company shall diligently commence
such restoration within fifteen (15) calendar days following the date that Company first
became aware of the disturbance or damage or, if the System is being removed, wrthtn
fifteen (15) calendar days followmg removal of the System.
6.5. oin e.
Company shall penrut the point use of its poles, conduits and Facilities located in
the Public Rights-of--Way by other utilities and by the City or other governmental
entities, provided that (i) the I-NET shall be for the exclusive use, free of charge, by I-
NET Users and (ii) for Facilities other than the I-NET, Company may require such users
to enter into a reasonable agreement with Company for such use.
6.6. Tree Trimming.
Upon receipt of and m accordance with the City's ordinances and applicable
permits, Company may tnm trees in or overhanging the Public Rights-of--Way so as to
prevent the branches of such trees from coming into contact with the System in a manner
that affects the integnty of the System. Except in an emergency, Company shall tnm
trees m or overhanging the Public Rights-of--Way or City property only after rt has
notified the City and received a penrut for tree tnmming as required by City ordinances.
Company shall not trim trees on privately owned property unless rt has obtained the
consent of the property's owner
6.7. Relocation of Facilities.
Company, at Company's sole cost and expense, shall protect, support, disconnect
or remove from the Public Rights-of--Way any portion of its System when required by the
City due to street or other public excavation, construction, repair, grading, regrading or
traffic conditions, the installation of sewers, drains, water pipes or municipally-owned
facilities of any kind, the vacation, construction or relocation of streets or any other type
of structure or improvement of a public agency; or any other type of improvement
necessary for the public health, safety or welfare.
6.8. Temporary Relocation of Facilities.
Upon advance nonce of at least fifteen (15) business days, Company shall
temporarily raise or lower its woes, cables or other equipment upon the reasonable
request of any person or entity, including, but not lirnited to, a person or entity with a
building moving permit issued by the City Company may charge a reasonable fee for
this service, but such fee shall not exceed the actual and direct costs incurred by
Company in the temporary relocation of such Facilities.
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6.9. Removal of System.
Upon the revocation, termination or expiration without extension or renewal of
this Franchise, Company's right to use Public Rights-of--Way under this Franchise shall
cease and Company shall immediately discontinue the provision of Cable Services in the
City and the use of the System. Within six (6) months following such revocation,
termination or expiration and in accordance with directions from the City, Company shall
remove the System, including, but not lunited to, all supporting structures, poles,
transrrussion and distribution systems and other appurtenances, fixtures or property from
the Public Rights-of--Way If Company has not removed all Facilities from the Public
Rights-of--Way within six (6) months following revocation, termination or expiration of
this Franchise, the City may deem all of Company's Facilities remaining in the Public
Rights-of--Way abandoned and, at the City's sole option, (i) take possession of and title to
such property or (ii) take any and all legal action necessary to compel Company to
remove such property
Within six (6) months following revocation, terrrunation or expiration of this
Franchise and in accordance with Section 3.3 of this Franchise, Company shall also
restore any property, public or private, that is disturbed or damaged by removal of the
System. If Company has not restored all such property within this time, the City, at the
City's sole option, may perform or have performed any necessary restoration work, in
which case Company shall immediately reimburse the City for any and all costs incurred
in performing or having performed such restoration work.
7. CUSTOMER SERVICE AND CONSUMER PROTECTION.
7.1. General Standards.
Company shall comply with the more stringent of the customer service and
consumer protection provisions of (i) this Franchise or (ii) the FCC, as may be set forth
from tune to time in FCC rules and regulations, such as the current FCC Rule 76.309
7.2. Scrambling locking.
If at any time the System operates at 860 MHz, Company shall at all times
scramble both the audio and video portions of all channels with predominately adult-
onented programming. Upon request by a subscriber, Company shall entirely block such
subscriber from receiving both the audio and video portion of any channel with
predominantly adult-oriented programming with devices, such as, by way of example,
notch filters, which prevent the frequencies containing a specific channel or channels
from being transmitted into the subscriber's premises.
15
7.3. Pay Per View Options.
Subscribers shall be given the option of (i) not having pay per view or per
program service available at all or (ii) only having such services provided upon the
subscriber's provision of a secunty number selected by an adult representative of the
subscriber
7.4. Customer Notifications.
Company shall provide all subscribers with wntten information on at least each of
the following matters. (i) products and services offered, (ii) pnces (rates) and options for
Cable Services and the conditions of a subscription to such Cable Services, including, but
not linuted to, pnces for programming, equipment rental, program guides, installation,
disconnection, processing charges for late payment and other fees charged by Company;
(iii) Company's installation and service maintenance policies, (iv) Instructions on how to
use Cable Services, including procedures and options for pay per view, premium
channels and connection to a VCR, (v) channel positions of programming carved on the
System, including a listing specific to the City showing the channel names and numbers
actually available to subscribers in the City; (vi) billing and Complaint procedures with a
notice for a subscriber to contact Company initially with Complaints and questions, (vii)
applicable pnvacy requirements as set forth nn thus Franchnse or provided for by law;
(vui) the availability of lockout devices and the abilnty to have a channel entirely blocked
or trapped, and (ix) the procedure for resolving signal quality problems as set forth in
Section 10.3 Company shall provide such wntten information to subscribers (i) at the
time of installation or reinstallation of service; (ii) annually to all subscribers, and (iii) at
any tame upon request of a subscriber or the City The information shall be dated wrath
the punting, revision, or effective date.
7.5. Notifications Pertaining to Cable Services-related Changes.
Company shall notify subscribers of any changes in rates, Cable Services or
channel posntnons as soon as possible through announcements on the cable system or nn
wntnng. Company will provide wntten notice of such changes to the City m advance of
rats notifying subscribers and will make every effort to notify the Cnty forty-five (45) days
in advance of any such change. Unless a longer tame penod is required by applicable law
or regulatnon, notice must be given to subscribers a mimmum of thirty (30) days in
advance of the inplementation of any such change if the change is wrtlun the control of
Company and as soon as possible if the change ns not wrtlun the control of Company In
addrtnon, Company shall notify subscribers and the City at least thirty (30) days m
advance of any sigrificant changes m the matters covered in Section 7 4
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7.6. Telephone Service Standards.
7.6.1. Customer Service Telephone Number.
Company shall have a local or toll-free telephone number available for
use by subscribers in the City twenty-four (24) hours per day, seven (7) days per
week. The local or toll-free numbers shall be fisted, with appropriate
explanations, in the directory published by each local telephone company and m
any significant directories published by others.
7.6.2. Customer Service Representatives.
Once Company has two thousand (2,000) subscribers located m the City,
Company shall ensure that Trained Company Representatives will be available to
respond to subscriber telephone inquiries twenty-four (24) hours per day, seven
(7) days per week. As to video service matters, the. tenn "Trained Company
Representatives" shall mean employees of Company who have the authority and
capability while speaking with a subscriber to, among other things, answer billing
questions, adjust bills, and schedule service and installation calls.
7.6.3. Response Time.
Under Normal Operating Conditions, a Trained Company Representative
shall personally answer a telephone call wrtlun thirty (30) seconds from the time
that the telephone connection is made. If the telephone call needs to be
transferred, the time to complete the transfer shall not exceed thirty (30) seconds.
These standards shall be met no less than mnety percent (90%) of the time under
Normal Operating Conditions, measured on a quarterly basis.
7.6.4. Busy Signals.
Under Normal Operating Conditions, the subscriber shall receive a busy
signal less than three percent (3%) of the time, measured on a quarterly basis.
7.7. Company Office.
Company shall maintain a physical office wrtlin the City or wrtlun ten (10) miles
of the Authorized Area, which shall include a place where subscribers may pay their bills,
pickup and return converter boxes and comparable items and receive information on
Company and its services. The office shall be open at least from 8.00 A.M. to 6 00 P.M.
Monday through Friday and 9.00 A.M. to 1.00 P.M. on Saturdays.
17
7.8. Standards for Installations and Service Calls.
Company shall meet the follov~nng standards for installations and service calls not
less than ninety-five percent (95%) of the tune, measured on a quarterly basis
7.8.1. Installations Made within Sevten Business Davs.
Under Normal Operating Conditions, installations located up to one
hundred fifty (150) aenal feet from the existing distribution cable system shall be
performed within seven (7) business days after an order has been placed.
7.8.2. Scheduling.
Installations and service calls shall be available at a rrimmum from 8.00
A.M. to6.00 P.M. Monday through Fnday and 9.00 A.M. to 1.00 P.M. on
Saturdays. Company shall, at the subscriber's option, either (i) schedule the
subscriber to be the first call of the day or last call of the day on a first come, first
served basis, (ii) schedule the appointment for a date certain on a "call to meet"
basis where as the service techuucian fimshes his/her pnor task, the techiucian
calls the subscriber and arranges to meet the subscriber shortly thereafter; or (iii)
establish an appointment window of no more than three (3) hours with the
subscriber (or adult representative of the subscriber) or another appointment
window mutually agreed upon between the subscriber and Company
7.9. Qperating Procedures for Installations and Service Calls.
Company shall comply with the following operating procedures for all
installations and service calls. If Company fails to comply with any operating procedure
set forth m thus Section 7.9, Company shall provide an affected subscriber with (i) a free
installation if the call is for a Cable Service installation or (ii) at least twenty dollars
($20 00), which may be in the form of a credit, if the call is for any matter other than a
Cable Service installation.
7.9.1. Nature of Response.
Company shall respond to the request for service in accordance with the
option selected by the subscriber
7.9.2. Cancellations or Rescheduling_Requests y CompanX
Company shall not cancel or request the rescheduling of an appointment
with a subscriber after 5.00 P.M. on the business day pnor to the scheduled
appointment. If, on the day of a given appointment with a subscriber, Company's
techmcian is running late for such appointment and will not be able to keep the
appointment as scheduled, the subscriber shall promptly be contacted. The
18
appointment shall be rescheduled, as necessary. , at a time which is convement for
the subscriber
7.9.3. Cancellations or ReschedulingRequests by Customers.
In the event access to the subscriber's prerruses is not made available to
Company's techmcian when the techmcian amves during the established
appointment window, the technician shall leave wntten notification stating the
tune of arrival and requesting that Company be contacted again to establish a new
appointment window Notwithstanding the foregoing, if Company's techmcian
or service representative telephones the subscriber during or pnor to the
appointment window and is advised that the techmcian will not be given access to
the subscriber's premises during the appointment window, then the techmcian
shall not be obliged to travel to the subscriber's prerruses or to leave the written
notification referred to above, and the burden shall again be upon the subscriber
(or adult representative of the subscriber) to contact Company to arrange for a
new appointment.
7.9.4. Length of Service Calls.
Company's service techmcians and service representatives shall take
adequate time on each service call to address or correct the problem in question
and shall not be held to a quota of calls per day or an established lunitation on
time invested per call.
7.9.5. Charges for Service to Company Equipment.
Company shall not charge a subscriber for any service call relating to
Company owned and Company maintained equipment after the initial installation
of Cable Services unless the problem giving nse to the service request can be
demonstrated by Company to have been caused by tfie negligence or intentional
misconduct of the subscriber
7.10. Service Interruptions and Signal Quality Impairments.
Company shall meet the standards set forth in Sections 7 10 1 and 7 10.2 not less
than ninety-five percent (95%) of the time, measured on a quarterly basis. In addition,
Company shall comply with the conditions of Section 7 10.3 at all times.
7.10.1. Service Interruptions.
Under Normal Operating Conditions, Company shall diligently begin
working on a Service Interruption promptly and in no event later than twenty-four
(24) hours after the Service Interruption becomes known to Company "Service
Interruption" shall mean the loss of picture or sound on one or more cable
channels that affects one or more subscribers.
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7.10.2. Signal Quality Impairments.
Under Normal Operating Conditions, Company shall begin diligently
begin working on subscriber Complaints involving unpaument or degradation of
signal quality (other than a Service Interruption) promptly and in no event later
than the next business day after the problem becomes known to Company
7.10.3. Redress for Service Interruptions and Signal uality Impairments
Company shall provide affected subscribers, upon request by the City or
the subscriber, with one day's free service (equivalent to the service they were
receiving at the time of the interruption) for each day or portion thereof of Service
Interruption.
7.11. Log of Customer Complaints.
Company shall maintain a wntten log, or an equivalent stored in computer
memory and capable of access and reproduction in pruned form, of all Cable Service-
related customer Complaints onginatmg within the City Such log shall be m form and
substance acceptable to the City and at minimum list the date and tune of each such
Complaint, identify the customer to the extent allowed by law, and describe the nature of
the Complaint and when and what actions were taken by Company in response thereto
The log shall be organized by City The log shall be kept at Company's office in or near
the City for a penod of at least two (2) years and shall be available for inspection dunng
regular business hours by the City upon request.
7.12 Bills.
7.12.1. ormat.
Company's bills to customers for Cable Services shall be issued monthly
to each subscriber with a balance due or change of service. Bills shall be clear,
concise and understandable. Bills shall be fully itemized, with rterruzahons
including, but not lirniteci to, basic service, cable programrning service, prernium
service charges, equipment charges and processing fees for late payments as
further specified in Section 7 14 Bills shall also clearly delineate all activity
dunng the billing penod, including optional charges, rebates, credits, and late
charges. The City shall be given thu-ty (30) days advance notice of any change in
the format of bills.
Each bill shall prominently display Company's. local or toll-free telephone
numbers available for use by subscribers. If a bill has more than one portion (for
example, one portion that is kept by the customer and one portion that is sent to
Company) such telephone numbers shall prominently appear on the front side of
the portion of the bill retained by the customer
20
7.12.2. ~~mplaints and Disputes.
Company shall respond in venting to all wntten complaints from
subscribers regarding billing matters within thirty (30) days of receipt. Company
shall not disconnect a subscriber for failure to pay legntinately contested chazges
during a bilking dispute. However, during a billing dispute Company may
disconnect a subscriber for failure to pay charges that are not contested.
7.13. Refunds and Credits.
Refund checks for Cable Service shall be issued to subscribers promptly
and in no event later than either (i) the subscriber's next billing cycle following
resolution of the request or thirty (30) days, whichever is earlier, or (ii) if service
is tennunated, thirty (30) days after return of equipment owned by Company or at
the tune of the next bilking cycle, whichever is earlier Credits for Cable Service
shall be issued no later than the subscriber's next bilking cycle following a
determination that a credit is warranted.
7.14. Late Payments.
7.14.1. Notification of Additional Fee on Bills.
Each bill shall specify on its face in a fashion emphasizing same (such as
bold face type, underlined type or a lazger font) "For payments received after
[date] a $ processing fee for late payment maybe charged."
7.14.2. Process for Assessment of Additional Fee.
No processing fee for a late payment, however denominated, shall be
assessed or added to a subscriber's bill less than twenty-one (21) calendar days
after the mailing of the bill to the subscriber In the event any such fee is assessed
or added, Company shall sepazately state the charge on the subscriber's bill and
shall include the word "late" in the descnphon of such fee.
7.15. Disconnection of Cable Services.
Company shall comply with the following standards and procedures pertaining to
the drsconnechon of Cable Services to any of Company's subscribers m the City
7.15.1. disconnection for Non-Payment.
Company shall not disconnect a subscriber for failure to pay until at least
forty-five (45) calendaz days have elapsed after the due date for payment of the
subscriber's bill and Company has provided at least ten (10) calendar days'
written notice separate from the monthly bill to the subscriber prior to
21
disconnection, specifying the effective date after which Cable Services are subject
to disconnection.
7.15.2. Disconnection for Illegal Practices.
Company may disconnect a subscriber at any tune if Company in good
faith believes that the subscriber has tampered with or abused Company's
equipment, that there is a signal leakage problem (or other non-compliance v~nth
FCC rules or other standards which poses a nsk to hues or property) on the
subscriber's premises, or that the subscriber is or may be engaged in the theft of
Cable Services.
7.15.3. Disconnection at Subscriber's Request.
Company shall promptly disconnect any subscriber who so requests
disconnection, including those subscribers who elect to cease receiving Cable
Services from Company in order to receive Cable Services or other multi-channel
video services from another person or entity No penod of notice pnor to
requested termination of service shall be required of subscribers by Company No
charge shall be imposed upon the subscriber for or related to disconnection or for
any Cable Service delivered after the effective date of the disconnect request
(unless there is a delay by the subscriber m the return of Company equipment) If
the subscriber fails to specify an effective date for disconnection, the effective
date shall be deemed to be the day following the date the disconnect request is
received by Company provided that Company equipment has been returned by the
subscriber
7.16. Truth In Advertising.
Company's bills, advertising and communications to its current or potential
subscribers shall be truthful and shall not contain any false or misleading statement. For
the purposes of the precednng, a statement is false or misleading if rt contains an untrue
statement of any matenal fact or omits to state a matenal fact necessary nn order to make
the statements made, in the light of the circumstances under which they were made, not
misleading.
7.17. ~Jnderground Facilities Requested by Customer
If a subscriber requests Company to install Cable Services to a subscriber's
property through underground facilities, Company shall comply with the subscriber's
request but may charge the subscriber the actual difference m cost between the aenal
installation of the Drop and the underground installation of the Drop This provnsion
shall not apply if the subscriber hues m an area of the City m which underground utilities
and facilities are required, inn which case Company may only charge the subscriber its
normal installation charge.
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7.18. identification of Company Personnel.
All service personnel of Company, including contractors and subcontractors,
whose normal duties involve contact with the general public shall wear on their clothing a
clearly visible identification card bearing then name and photograph. Company shall
account for all identification cards at all tunes. Every service vehicle of Company shall
be clearly identifiable by the public.
7.19. Subscriber Information.
Company shall not record or retain any uiformation as to the programming
actually watched by a subscriber Company shall destroy all subscriber information of a
personally identifiable nature after a reasonable period of time unless otherwise requested
by the affected subscriber This Section 7 19 shall not prohibit Company from its
conducting system wide or individually addressed "sweeps" solely for the purpose of (i)
verifying system integrity, (ii)checking for illegal taps or (iii) billing.
8. REPORTS TO CITY.
8.1. Service-Related Reports.
Company shall provide the following reports to the City monthly (by the 15th
business day of the following month) and quarterly (by the 15th business day of the
following quarter These reports shall in forms currently used by Company or otherwise
in form and substance acceptable to the City, showing on a consistent basis, fairly
applied, Company's compliance with the customer service standards set forth in this
Franchise.
• Number of Subscribers,
• Report of Monthly Report of Service Calls by Reason, which shall include an
explanation of the categories of reported reasons,
• Monthly Outage Summary by Franchise;
Once Company has two thousand (2,000) subscribers located in the City, the City may
require Company to provide the following additional reports.
• System Statistics Report;
• Monthly Service Call Availability Analysis and Installation Call Availability
Analysis,
• Monthly Customer Call Sample Report, showing the results of a random
sampling of customer complaints, and
• Monthly Call Center Performance Report.
23
8.2. Format of Reports.
Company's sernce-related reports to the City shall show Company's performance
for the respective tune penod, excluding penods that were not Normal Operating
Conditions ("Abnormal Operating Conditions") and, if Company contends any
Abnormal Operating Conditions occurred during the penod in question, rt shall describe
the nature and extent of such Abnormal Operating Conditions and show Company's
performance both including and excluding the tune penods Company contends such
conditions were in effect. At the City's request, Company will provide additional
infonnation and existing reports reasonably related to the measurement and evaluation of
Company's compliance with the customer service requirements set forth in this
Franchise.
8.3. Audits Pertaining to Service-Related Reports.
The City, by itself or in combination with other municipalities with whom
Company has a franchise or other agreement to use public nghts-of--way for the provision
of Cable Services, reserves the nght to audit Company or any Affiliate of Company to
verify the accuracy of the service-related reports required under this Section 8 In the
event of any such audit, Company shall make available at a location in Tarrant County,
Texas that is convenient to the City all records of Company or an Affiliate of Company
reasonably necessary to conduct such audit. If the audit discloses performance that is
three (3) percentage points worse than any of the standards of the referenced sections
(such as compliance 92% of the tune versus 95% of the time), Company shall pay the
City's costs in connection with the audit within thu-ty (30) days of submission of an
invoice. Otherwise, the City shall pay the costs of such audit.
8.4. Construction-Related Reports.
Company shall provide the City with a written quarterly report that outlines
Company's plans for construction to the System and for expansion of the System alto
areas of the City beyond the Initial Service Area and other areas of the City previously
approved by the City Council for service by Company This report shall be a public
document and kept on file in the City Secretary's Office for inspection by the public.
9. ~QUIDATED DAMAGE FOR VIOLATIONS OF CUSTOMER SERVICE
STANDARDS.
9.1. Telephone Service.
Company acknowledges and agrees that its failure to comply with the telephone
service standards set forth in Sections 7 6.2, 7 6.3, and/or 7 6 4 of this Franchise will
harm subscribers and the City and that the amounts of actual damages will be difficult or
impossible to ascertain. Therefore, for each quarter following the Effective Date of this
24
Franchise, the City may assess the following liquidated damages against Company for
non-compliance with the customer service standards set forth m Sections 7 6.2, 7 6.3 and
7 6.4 (measured on a quarterly basis). Company acknowledges and agrees that the
liquidated damages set forth below are a reasonable approxunation of actual damages and
that this Section 9 1 is intended to provide compensation and is not a penalty
Subject to Section 9.3 of this Franchise, the damages for non-compliance with one
or more of the standards in Sections 7 6.2, 7 6.3, and/or 7 6 4 during a calendar quarter
are as follows.
• Fust quarter of non-compliance: $1 00 per subscriber or $5,000 00, whichever is
more.
• Second quarter of non-compliance wrtlin three (3) consecutive calendar quarters.
$2.00 per subscriber or $5,000 00, whichever is more.
• Third quarter of non-compliance within six (6) consecutive calendar quarters and
each subsequent non-compliance: $3 00 per subscriber or $5,000 00, whichever is
more.
9.2. Installations, Service Calls and Service Interruutions.
Company acknowledges and agrees that its failure to comply with the standards
for installations, service calls and service interruptions set forth m Section 7 8 1, 7 8.2,
7 10 1, and/or 7 10.2 of thus Franchise will harm subscribers and the City and that the
amounts of actual damages will be difficult or impossible to ascertain. Therefore, for
each quarter following the Effective Date of this Franchise, the City may assess the
following liquidated damages against Company for non-compliance with the customer
service standards set forth in Sections 7 8 1, 7 8.2, 7 10 1 and/or 7 10.2 (measured on a
quarterly basis). Company acknowledges and agrees that the liquidated damages set
forth below are a reasonable approximation of actual damages and that this Section 9.2 is
mtended to provide compensation and is not a penalty
Subject to Section 9.3, the damages for non-compliance with one or more of the
standards in Sections 7 6.2, 7 6.3, and/or 7 6 4 dunng a calendar quarter are as follows
• First quarter of non-compliance: $1 00 per subscriber or $5,000 00, whichever is
more.
• Second quarter of non-compliance wrtlin three (3) consecutive calendar quarters.
$2 00 per subscriber or $5,000 00, whichever is more.
• Third quarter of non-compliance vcntlin six (6) consecutive calendar quarters and
each subsequent non-compliance: $3 00 per subscriber or $5,000 00, whichever is
more.
25
9.3. Effect of Extended Periods of Compliance.
If Company complies with all of the standards identified m Sections 9 1 and 9.2
for eight (8) consecutive calendar quarters, the damages for the first subsequent non-
compliance with any and each of those standards will be $0.25 per subscriber or $3,000,
whichever is more. Thereafter, the damages provided in Sections 9 1 and 9.2 will agam
be applicable so that the next non-compliance withm three (3) and/or six (6) consecutive
calendar quarters, as the case may be, will be subject to the damages set forth for such
quarters m Sections 9 1 and/or 9.2, respectively
9.4. Calculation of Number of Subscribers.
For purposes of calculatmg liquidated damages under Sections 9 1 or 9.2, the
number of subscribers shall be that reflected on Company's report to the City pertaining
to subscriber numbers for the quarter m which liquidated damages are subject to
assessment or, if Company fails to provide such report, as reasonably calculated by the
City
9.5. Failure to Submit Quarterly Reports.
Company acknowledges and agrees that its failure to submit quarterly reports to
the City as required by Sections 8 1 and 8.2 will harm the City and its ability to serve its
citizens who subscribe to Company's Cable Services, and that the amounts of actual
damages will be difficult or impossible to ascertam. Therefore, for each quarter following
the Effective Date of this Franchise, the City may assess liquidated damages against
Company for Company's failure to submit quarterly reports as required by Sections 8 1
and 8.2 in the amount of $1 00 per subscriber or $5,000 00, whichever is more.
Company acknowledges and agrees that such liquidated damages are a reasonable
approximation of actual damages and that this Section 10.5 is intended to provide
compensation and is not a penalty
9.6. No Waiver.
An event of non-compliance will be taken mto account m determmmg whether a
later event of non-compliance is a second, third or subsequent event without regard to
whether City has assessed liquidated damages or taken any other action with respect to
the non-compliance.
9.7. Procedure for Assessment.
Liquidated damages shall be assessed by the City Manager or his or her designee.
Company may obtain a review of the assessment by the City Council by making a wntten
request within ten (10) business days after receipt of notice in wasting of the assessment
and its basis. Company shall have an opportunity to be heard at a meeting of the City
Council or by a person designated by the City Council as a hearing officer pnor to the
actual assessment of liquidated damages by the City Manager or his or her designee. The
26
City Council may adopt additional procedures, including appointment of a City official or
other person to act as a hearing officer. The City Council's decision may be based upon
the record of proceedings conducted by the hearing officer or a proposal for decision
submitted by the hearing officer
9.8. payment and Classification of Liquidated Damages.
Liquidated damages shall be paid on or before the tenth (10th) business day
following assessment. Company acknowledges and agrees that liquidated damages paid
under this Franchise do not constitute franchise fees, do not reduce the amounts otherwise
payable as franchise fees and will not be passed through to subscribers in the City
10. TECH CAL STANDARDS.
The following provisions shall apply to Company's implementation of and compliance
with the FCC's rules and regulations relating to cable television techmcal standards for signal
quality, currently set forth at 47 C.F.R. § 76 601 and following, and subsequent amendments to
any such rules and regulations.
10.1. Testing by C'o ~pany.
Company shall notify the City in advance of testing for compliance with FCC
standards. The City may have a representative present to observe such tests and may
designate one location to be tested. Company shall provide the City with a report of
testing for compliance with such standards upon written request (but not more than twice
a year) Such report to City shall state, in pertinent part, that the person doing the testing
has reviewed the applicable rules and regulations of the FCC, the industry standards and
other materials referenced therein, and that such testing was done fairly and either shows
full compliance with such rules and regulations or sets forth with specificity and in detail
all areas of non-compliance, then actual or likely scope and causes, and Company's
professional recommendation of the best corrective measures to immediately and
permanently correct the non-compliance.
10.2. Testing by CitX.
The City at its expense (no more than twice per year, bamng unusual
circumstances) upon thirty (30) days written notice to Company may test the System for
compliance with the FCC techmcal standards. Company shall cooperate in such tests and
provide access to the System. Company shall reimburse the City for the full expense of
any test which shows a material non-compliance with such standards.
10.3. Subscriber Complaints Regarding Signal Qpality.
Company shall establish and notify subscribers of the following procedure for the
resolution of complaints from subscribers about the quality of the television signal
27
delivered to them. (i) All complaints shall go iitially to Company; (ii) All matters not
resolved by Company shall at Company's or the subscriber's option be referred to the
City for the City to resolve; and (iii) All matters not resolved by the City maybe referred
to the FCC for the FCC to resolve.
11. RATES AND REGULAT ON.
11.1. General Rights of the City.
The City reserves the nght to regulate Company, the Cable Television System, the
provision of Cable Services authonzed under this Franchise, Company's rates and
charges for the provision of Cable Services and for related services, such as, without
limitation, rental deposits and downgrade fees, as expressly pernitted by federal, state
and/or local laws, ordinances, rules and regulations.
11.2. ~rgcl,~ncy of Rate Increases.
Company will not increase or file any form or notification with the FCC related to
an increase m Company's rates for basic cable service, equipment, service calls or other
services over which the City has regulatory authonty under federal, state ancUor local
laws, ordinances, rules and regulations more than once in each calendar year
11.3. Rate Orders.
Unless a final order of the FCC, affirmed on appeal if an appeal is taken,
determines that a rate order of the City, as a franchise authonty, is automatically stayed
by the filing of an appeal by Company to the FCC, Company will unplement each rate
order adopted by the City unless and until Company obtains an order of the FCC or a
court of competent ~unsdiction staying or overruling the effectiveness of the rate order
Company will reimburse the City for all reasonable attorneys' fees and other expenses
incurred by the City as a result of Company's violation of this Section 11.3
11.4. Notice of Certain Costs.
On at least an annual basis and at any other time when requested by the City,
Company shall identify to the City m venting the costs wlich Company claims are
external costs that Company potentially may pass through to subscribers under rules and
regulations of the FCC or successor rules with a similar effect. Company's notice to the
City shall state the individual amounts of such costs and the approximate amount that
subscribers may be billed as a result and shall contain a calculation to justify such
amount.
28
12. I.,IABILITY A_ND INDEMNIFICATION.
12.1. Disclaimer of LiabilitX.
The City shall not at any tune be liable for any injury or damage occumng to any
person or property from any cause whatsoever that arises out of the construction,
maintenance, repair, use, operation, condition or dismantling of the System or Company's
provision of Cable Services.
12.2. Indemnification.
Company, at Company's sole cost and expense, shall indemmfy and hold harmless
the City, its officers, boards, commissions, agents, employees and volunteers
("Indemnitees"), from .and against any and all liabilities, obligations, damages,
penalties, claims, liens, costs, charges, losses and expenses, whether legal or equitable,
which may be imposed upon, incurred by or asserted against any Indemnttees by reason
of any personal injury or property damage or any act or omission of Company, its
personnel, employees, agents, contractors or subcontractors which may arse out of or be
in any way connected with (i) the construction, installation, operation, maintenance or
condition of the System, (ii) the transmission of any programming over the System, (iii)
any clairri or lien ansing out of work, labor, materials or supplies provided or supplied to
Company, its contractors or subcontractors, (iv) the provision of Cable Services, or (v)
Company's failure to comply with any federal, state or local law, ordinance, franchise,
rule or regulation.
12.3. Assumption of Risk.
Company hereby undertakes and assumes, for and on behalf of Company, its
officers, agents, contractors, subcontractors, agents and employees, all nsk of dangerous
conditions, if any, on or about any City-owned or -controlled property, including, but not
limited to, the Public Rights-of--Way In addition, Company hereby agrees to and shall
indemmfy and hold harmless any Indemmtee against and from any claim asserted or
liability imposed upon any Indemmtee for any personal injury or property damage
incurred or asserted by Company or any of its employees, agents, servants, contractors or
subcontractors, and ansing from the installation, operation, maintenance or condition of
the System.
12.4. Defense of Indemnitees.
In the event any action, lawsuit or other proceeding is brought against any
Indemmtee by reason of any matter for which the Indemmtees are indemmfied under
Sections 12.2 or 12.3, the City shall give Company prompt notice of the making of any
claim or commencement of any such action, lawsuit or other proceeding, and Company,
at Company's sole cost and expense, shall resist and defend the same with legal counsel
selected by the City and reasonably acceptable to Company and with reasonable
29
participation by the City In such an event, Company shall not admit liability in any
matter on behalf of any Indemnitee without the advance written consent of the City
13. INSURANCE.
Company shall procure and maintain at all tunes, in full force and effect, a policy or policies
of insurance to provide coverages as specified herein, naming the City as an additional insured and
covering all public nsks related to the use, occupancy, condition, maintenance, existence or location
of the Public Rights-of--Way and the construction, installation, operation, maintenance or condition
of the System.
13.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence;
• Property Damage Liability:
$1,000,000 per occurrence;
• ®ufomobile Liability:
$1,000,000 per accident,
mcludmg, but not limited to, all owned, hired or non-owned motor vehicles used
m conjunction with the nghts granted under this Franchise
• Worker's Compensation:
As required bylaw; and, Employer's Liability as follows.
$1,000,000 per accident.
13.2. Excess Liability Insurance Umbrella.
$10,000,000, mcludmg Pnmary Coverage, for each coverage listed m § 13 1
13.3. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
tune revise insurance coverage requirements and limits required by this Franchise.
Company agrees that within thirty (30) days of receipt of wntten notice from the City,
Company will unplement all such revisions requested by the City The policy or policies of
insurance shall be endorsed to provide that no matenal changes in coverage, mcludmg, but
not lunited to, cancellation, tennuiation, non-renewal or amendment, shall be made without
thirty (30) days' pnor wntten notice to the City
30
i
13.4. IInderwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thuty (30) days following adoption of this Franchise by the
City Council, Company shall famish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
13.5. peductibles.
Deductible or self-uisured retention limits on any lute of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City
13.6. No i imitation of Liabil~.
The insurance requirements set forth in this Section 13 and any recovery by the City
of any sum by reason of any insurance policy required under this Franchise shall in no way
be construed or effected to limit or m any way affect Company's liability to the City or other
persons as provided by this Franchise or law
14. TRANSFERS, OWNERSHIP AND CONTROL.
14.1. Management of Oable Television System.
Company shall personally manage the Cable Television System and the provision
of Cable Services within the City Company shall not, directly or indirectly, contract for,
subcontract or assign, in whole or in part, the management of the Cable Television
System or the provision of Cable Services within the City unless the City provides
advance written consent.
14.2. Transfers.
This Franchise and the Cable Television System shall not be sold, Transferred,
assigned or otherwise encumbered without the prior written consent of the City For
purposes of this Franchise, m addition to the definition provided in Section 1, a
"Transfer" shall specifically include (i) any change in lunited partnership interests, non-
managing lunrted liability company interests, or non voting stock representing thirty
percent (30%) or more of the equity interests in the entity in question and (ii) any option,
right of conversion or similar right to acquire interests constituting control without
substantial additional consideration. If Company seeks to obtain the consent of the City
for any kind of Transfer, sale, assignment or other encumbrance, Company shall submit
31
an application for such consent in the form requested by the City and shall subnut or
cause to be submitted to the City all such documents and information that the City may
reasonably need for its consideration of the application. Company shall pay on the City's
behalf or reunburse the City for all costs reasonably incurred by the City due to any
proposed sale, Transfer, assignment or other encumbrance.
15. DEFAULTS.
The occurrence at any tune during the term of this Franchise of one or more of the
following events shall constitute an "Event of Default" under thus Franchise:
15.1. failure to Pay Franchise Fees.
An Event of Default shall occur if Company fails to pay any Franchise Fee on or
before the respective due date.
15.2. each.
An Event of Default shall occur if Company materially breaches or violates any
of the terms, covenants, representations or warranties set forth in this Franchise or fails to
perform any obligation required by thus Franchise.
15.3. Bankru~tcX, Insolvency or Receivership.
An Event of Default shall occur if Company (i) files a voluntary petition in
bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any
petition filed against rt seeking any reorgamzation, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any laws relating to
bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property, franchises, or any revenues, issues, earnings or profits thereof;
(v) makes an assignment for the benefit of creditors, or (vi) fails to pay Company's debts
generally as they become due.
15.4. Violations. of the Law.
An Event of Default shall occur if Company violates any existing or future federal,
state or local laws or any existing or future orduiances, rules and regulations of the City
32
16. i1NCURED DEFAULTS AND REMEDIES.
16.1. Notice of Default and O~~ortunitX o Cure.
If an Event of Default occurs, the City shall provide Company v~nth wntten notice
and shall give Company the opportunity to cure such Event of Default. For an Event of
Default which can be cured by the immednate payment of money to the City, Company
shall have thirty (30) days from the date rt receives wntten notice from the City to cure
the Event of Default. For any other Event of Default, Company shall have sixty (60)
days from the date it receives wntten notice from the City to cure the Event of Default. If
any Event of Default is not cured wnthin the time penod specified herein, such Event of
Default shall, without further notice from the City, become an "Uncured Default" and
the City immediately may exercise the remedies provided m Sectnon 16.2.
16.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City shall be entitled to exercise,
at the same tune or at different tunes, any of the following remedies, all of which shall be
cumulative of and without limitation to any other rghts or remedies the Cnty may have:
16.2.1. Termination of Franchise.
Upon the occurrence of an Uncured Default, the City may terminate this
Franchise. Upon such termination, Company shall forfent all nghts granted to nt
under this Franchise, and, except as to Company's unperformed obligations and
existing liabilities as of the date of termination, thus Franchise shall automatncally
be deemed null and void and shall have no further force or effect. Company shall
remain obligated to pay and the City shall retain the nght to receive Franchise
Fees and any other payments due up to the date of termination. Company shall
remove the System from the City as and when requested by the City The City's
nght to terminate thus Franchise under this Section 16.2.1 shall does not and shall
not be construed to constitute any kind of limitation on the City's nght to
terminate tlis Franchise for other reasons as provided by and in accordance with
this Franchise.
16.2.2. Legal Action Against Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company an action at law for monetary damages or in equity for
injunctive relief or specific performance of any of the provisions of thus Franchise
which, as a matter of equity, are specifically enforceable.
33
17. RTruT4 AND RESERVATIONS OF TAE CITY.
in addition to the nghts reserved to the City under this Franchise, the City shall have the
following rights and reservations
17.1. To requue proper and adequate extensions of the System and Cable Services and
maintenance thereof at the highest practicable standards of efficiency;
17.2. To establish reasonable standards of Cable Service and product quality and to
prevent un1ust discnminahon in Company's provision of Cable Services and/or
rates for Cable Seances;
17.3. To require continuous and uninterrupted service to the public in accordance with
the terms and conditions of this Franchise throughout the entue term of tlis
Franchise; '
17.4. To control and regulate the use of the Cry's Public Rights-of--Way, public places
and other City-owned property and the spaces above and beneath them,
17.5. To install and maintain, without charge, City equipment upon Company's poles
and in Company's conduit upon the condition that such equipment does not
actually and unreasonably interfere with Company's provision of Cable Services
and is not used by the City to provided seances in competition with Company;
17.6. Through representatives designated by the City, to inspect all construction,
Facility-installation or other work performed by Company in the Crty, and to
make any inspections that the City reasonably finds necessary to ensure
compliance with the terms of this Franchise and applicable laws, ordinances, rules
and regulations.
18. PROVISION OF INFORMATION.
18.1. Filings.
Company shall provide copies of all documents which Company files with or
sends to the FCC and, upon the City's request, copies of records that Company is required
to maintain under FCC regulations (currently 47 C.F.R. § 76)
18.2. Lawsuits.
Company shall provide the City with copies of ahl pleadings m all lawsuits to
which Company is a party and that pertain to the granting of this Franchise and/or the
operation of the Cable Television System within thirty (30) days of Company's receipt of
same.
34
18.3. Books and Records.
From time to time, dunng normal business .hours and on anon-disruptive basis,
the City may review all portions of Company's books and records that are reasonably
necessary to monitor compliance by Company with the terms and conditions of this
Franchise. Such records shall include, but shall not be limited to, records that Company
is required to maintain under FCC .and financial infarmation underlying reports provided
to the City in accordance with this Franchise. However, Company shall not be required
to release (i) personally identifiable subscriber information if prohibited by applicable
law (such as § 631 of the Cable Act, codified at 47 U.S C. § 551) or (ii) Company's
income tax returns or information directly underlying the preparation of any such returns.
To the extent permitted by law, the City shall treat any information released to it by
Company on a confidential basis if requested by Company and upon execution of a City-
signed wntten agreement or letter to that effect.
19. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all nghts and pnvileges granted by this Franchise, and not as an agent,
representative or employee of the City Company shall have the exclusive nght to control the
details of its Cable Business and operation, in accordance with the terms and conditions of this
Franchise, and shall be solely responsible for the acts and onussions of its officers, agents, servants,
employees, contractors and subcontractors. Company acknowledges that the doctnuze of respondeat
superior shall not apply as between the City and Company, its officers, agents, employees,
contractors and subcontractors. Company further agrees that nothing herein shall be construed as
the creation of a partnership or~omt enterpnse between the City and Company
20. NOTICES.
Notices required pursuant to the provisions of this Franchise shall be conclusively
determined to have been delivered when (1)hand-delivered to the other party, its agents, employees,
servants or representatives, or (2) received by the other party by United States Mail, postage
prepaid, return receipt requested, addressed as follows:
To THE CITY:
City of Fort Worth
Cable Communications Office
Attn. Director
401 W Second St.
Fort Worth, TX 76.102
To COMPANY:
Millennium Telcom, L.L.C.
891 E. Pnce St., Suite 200
Keller, TX 76248
35
with a copy to:
City of Fort Worth
Department of Law
Attn. Attorney for Telecommunications
1000 Throckmorton
Fort Worth, TX 76102
21. NON-DISC;RINIINATION COVENANT.
Company shall not discriminate against any person on the basis of race, color, national
origin, religion, handicap, sex, sexual orientation or familial status in the provision of Cable
Services, in the receipt of benefits from Company's Cable Business, in any opportunities for
employment with Company that Company may offer or in the construction or installation of
Company's Cable Television System or other Facilities.
22. X10 WAIVER
The failure of the City to insist upon the performance of any term or provision of this
Franchise or to exercise any rights that the City may have, either under this Franchise or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
23. GOVERNING LAW AND VENUE.
This Franchise shall be construed pursuant to and in accordance with the laws of the United
States of America and the State of Texas. If any action, whether real or asserted, at law or in equity,
arse out of the terms of this Franchise, Company's provision of Cable Services or Company's use of
the Public Rights-of--Way, venue for such action shall he exclusively in state courts located m
Tarrant County, Texas or the United States Distract Court for the Northern District of Texas, Fort
Worth Division.
24. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable tunes and upon reasonable notice to discuss any aspect of this Franchise, Company's
provision of Cable Sernces, Company's Systems or Cable Business or Company's use of Public
Rights-of--Way
36
,~ ~
25. SEVERABILITY.
If any provision of this Franchise is held to be mvahd, illegal or unenforceable by a final
order entered by a court of competent ~unsdiction, the validity, legality and enforceability of the
remauung provisions shall not in any way be affected or unpaired. For purposes of this Franchise, a
court order shall be final only to the extent that all available legal rights and remedies pertauing to
such order, mchudmg, without lumitation all available appeals, have been exhausted. In such an
event, the City and Company agree that they shall amend or have amended this Franchise to comply
with such final order entered by a court of competent~urisdiction.
26. FORCE MAJEURE.
In the event Company's performance of any of the terms, conditions or obligations required
by this Franchise is prevented by a cause or event that is not within Company's reasonable control,
Company's non-performance shall be deemed excused for the period of such mabihty Causes or
events that are not withm the Company's control shall mchude, but not be limited to, acts of God,
strikes, sabotage, Hots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
27. NF A~INGS NOT CONTROLLING.
Headmgs and titles, other than those captions in Section 1, that are used m this Franchise are
for reference purposes only and shall not be deemed a part of this Franchise.
28. ENTIRETY OF AGREEMENT.
This Franchise, including the schedule of exhibits attached hereto and any documents
mcorporated herem by reference, contains the entire understanding and agreement between the City
and Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent m conflict with the terms and conditions of
this Agreement. This Franchise shall not be amended unless agreed to m wntirig by both parties
and approved by the City Council of the City
29. GUARANTEE OF PERFORMANCE.
Company hereby acknowledges that it carefully has read the terms and conditions of this
Franchise and accepts and agrees to perform the duties and obligations set forth m this Franchise.
Tn-County Electric Cooperative, Inc., First American Communications Enterprises, Inc., Value
Choice, Inc. and One Source Communications, L.L.C. hereby ~omtly and severally guarantee
unconditional performance of Company's dunes and obligations under this Franchise.
37
MILLENNNM TELCOM, L.L.C.
By
Name. Tom J ns
Title. Presid t
TRI-COUNTY ELECTRIC COOPERATIVE, INC.
By
Name.A. Cr night
Title. Exec ive Vice President
FIRST AMERICAN COMMUNICATIONS ENTERPRISES, INC.
By
Name. To JOh son
Title. ~~,g s ~ ~--
VALUE CHOICE, INC.
By•
Name. A. ig Kni
Title. P esident
ONE SOURCE COMMUNICATIONS, L.L.C.
B
Y
Name. Tom Jg
Title. ,Q~ s~
n
~,,~.
38
t. ~, ~?.
.~ 'r
Exhibit "A"
E7~~iIBIT "B"
I-NET Site Number Location Address
1 Fire Station No 31 4209 Longstraw
2 Fire Station No. 35 2250 Alliance Blvd.
3 Fire Station No 37 4721 Ray White Rd.
4 Fire Station No 38 'Hwy 170 @ Old Denton Rd.
5 Police Storefront (Summerfields) 6901 N Beach St.
6 Police Storefront (Alliance) 2421 Westport Pkwy ,Suite 900
7 Summerglen Branch Library 4209 Basswood Blvd.
STATE OF TEXAS §
COUNTIES OF TARRANT AND DENTON §
I, GLORIA PEARSON, City Secretary of the City of Fort Worth, Texas do
hereby certify that the above and foregoing is a true and correct copy of
Ordinance No 13978, requiring execution of a Franchise Agreement between
the City of Fort Worth and Millennium Telcom, L.L.C which ordinance was duly
presented and adopted by the City Council of the City of Fort Worth, Texas, at a
regular session held on the 26th day of October, A. D 1999, as same appears of
record in the Office of the City Secretary
WITNESS MY HAND and the Official Seal of the City of Fort Worth,
Texas, this the 5th day of November, A. D 1999
~~'!~
'~
~;` ~ ~ loria Pearson City Secretary
~;;
.:.. ~ Y
~" City of Fort Worth, Texas
~, k
,,
-~
~~~ ~_
~~`
i
City of Fort Worth, Texas
M'Ayor and Council CammunicAtion
~...,`
DATE REFERENCE NUMBER LOG NAME PAGE
10/5/99 G-12686 02MILL 1 of 1
suB~ECT ORDINANCE GRANTING A FRANCHISE TO MILLENNIUM TELCOM, L.L.C FOR USE
OF PUBLIC RIGHTS-OF-WAY FOR THE PURPOSE OF CONSTRUCTING,
MAINTAINING AND OPERATING A CABLE TELEVISION SYSTEM AND RELATED
FRANCHISE AGREEMENT
RECOMMENDATION
~~ It is recommended that the City Council adopt the attached ordinance granting a franchise to
Millennium Telcom, L.L.C for the use of the public rights-of-way for the purpose of constructing,
maintaining and operating a cable television system in the City of Fort Worth
DISCUSSION
On September 9, 1998, Millennium Telcom, L.L.C (Millennium) filed an application with the City of Fort
Worth At the time, the City was in the process of negotiating a consent agreement with Charter
Communications, Inc. (Charter) regarding the proposed transfer of the cable system owned by Marcus
Cable Associates, L P (Marcus) to Charter Millennium agreed to postpone the award of its cable
franchise until the terms and conditions of the revised franchise with Charter were established
The City began negotiations with Millennium in April 1999, following the City's adoption of an ordinance
consenting to the transfer of Marcus's franchise to Charter Millennium will initially provide cable
service in far north Fort Worth from the Alliance corridor east to the Keller city limit. The proposed
ordinance requires Millennium to expand its facilities in a systematic fashion so that it will be able to
serve a geographically coherent area of the City instead of various pockets of the City
Millennium will pay the City a quarterly franchise fee equal to 5% of its gross revenue derived from the
portion of its cable system located in the City Millennium will also construct an institutional network for
the City which will enable the City to expand its communications system to various police storefronts,
fire stations and the Summerglen branch library Millennium will have materially the same customer
service requirements as Charter and will be subject to the assessment by the City of liquidated
damages, calculated in the same manner as with Charter, for violations of those customer service
requirements Once Millennium has a customer base of 2,000 subscribers or more, its customer
service requirements will be exactly the same as Charter's.
FISCAL INFORMATION/CERTIFICATION
The City Manager's Office will be responsible for the collection of the franchise fee
MGj
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
APPROVED
Ramon Guajardo 6140 CITY COUNCIL
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es
as
Adopted Ord~narlce No, j~„~