Ordinance 2005-05
ORDINANCE NO. 2005-05
AN ORDINANCE OF THE CITY OF WYLIE, TEXAS GRANTING A CABLE
FRANCHISE GRANTED TO GTE SOUHWEST, INC. D/B/A VERIZON
SOUTHWEST SETTING FORTH THE TERMS AND CONDITIONS TO
CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE
CITY OF WYLIE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Council has conducted a public hearing in regards to the adoption of
this Ordinance; and
WHEREAS, the City Council of the City of Wylie has investigated and determined that it
will be advantageous, beneficial and in the best interest of the citizens of Wylie to provide free
competition and to provide citizens a choice of cable service providers; and
WHEREAS, the City Council desires to grant, and GTE Southwest, Inc d/b/a Verizon
Southwest ("Verizon") desires to accept the Cable Franchise Agreement adopted by this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
WYLIE, TEXAS:
SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the
body of this Ordinance as if fully set forth herein.
SECTION 2: Franchise Granted. A cable franchise is hereby granted to Verizon subject to,
and in accordance with, all of the terms and conditions set forth in the Cable Franchise Agreement
attached hereto as Exhibit 1 and incorporated as if fully set forth herein for all purposes.
SECTION 3: Effective Date. This Ordinance shall become effective on the Effective Date,
as defined in Exhibit 1, which shall be a date after the adoption and publication of this Ordinance as
required by the City Charter and by law.
Ordinance No. 2005-05
Verizon Cable Franchise
DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS on this 25th day of January, 2005.
ATTESTED TO AND CORRECTLY
RECORDED BY:
~L~~
CAROLE EH ICH
City Secretary
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Date ofoublication in The Wylie News- February 2. 2005
Ordinance No. 2005-05
Verizon Cable Franchise
2
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ver'70fl
6665 N. Mac Arthur Blvd.
HQK02BI8
Irving, TX 75039
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February 14,2006
City of Wylie
Mark Roath
City Manager
2000 Highway 78 North
Wylie, TX 75098
RE C""'.,,",,(,
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FEB 1 7 2006
OFFICE OF Tf-:E CiTY //L4W,Gi::H
Re: Notice ofBegimling Service Date
Dear Mr. Roath,
Pursuant to Section 2.3 "Term" ofVerizon's Franchise Agreement with the City of
Wylie, TX, we hereby notify the City of Wylie that the "Beginning Service Date" of the
Agreement was January 5, 2006.
If you should have any questions, please contact me at 972-465-4442.
Sincerely,
?f(lek{&
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Michelle Lawson
Franchise Service Manager - West Region
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6665 N. Mac Arthur Blvd.
HQK02BI8
Irving, TX 75039
February 23,2006
City of Wylie
2000 Highway 78 North
Wylie, Texas 75098
Attention: City Manager
VIA CERTIFIED MAIL
Subject: Notice Pursuant to Section 14.5 of the Cable Franchise Agreement between
Verizon Southwest, Inc. and the City of Wylie, Texas
Dear Mr. Roath:
Pursuant to Section 14.5 of the Agreement, the City is required to send copies of notices
to Randal Milch. Effective immediately, such copies of notices should be instead sent to:
Jack White
Senior VP and General Counse1- Verizon Telecom
One Verizon Way
Room VC243E010
Basking Ridge, NJ 07920-1097
Please continue to mail original notices to:
Steve Banta
Verizon - Group President, NW and SW
600 Hidden Ridge
HQE04GO
Irving, TX 75038
If you have any questions, please do not hesitate to contact me at 972-465-4442.
Sincerely, ~
1t1L;;~~m
Franchise Service Manager - West Region
Cable Franchise A2reement
by and between
City of Wylie, Texas
and
GTE Southwest, Inc. d/b/a Verizon Southwest
Dated: January 25. 2005
TABLE OF CONTENTS
ARTICLE
PAGE
1. DEFINITIONS................................................................................................................... 4
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS ....................................... 9
3. PROVISION OF CABLE SERVICE .............................................................................. 11
4. S YSTEM OPERATION.................................. ......................................................... ....... 13
5. CABLE SySTEM............................................................................................................ 13
6. EG S ER VI C E S ................................................................................................................ 14
7. FRANCHISE FEES.. ................... .............. ............. ...... ...... .................. ........... ......... ....... 15
8. CUSTOMER SERVICE.................................................................................................. 16
9 . REPORTS AND RECORDS....................................... .................................................... 16
10. INSURAN CE AND INDEMNIFI CA TI ON.......... .......................................................... 17
11. TRANSFER OF FRANCHISE........................................................................................ 20
12 . RENEWAL OF FltA.NCHISE............................................................................... .......... 20
13. ENFORCEMENT AND TERMINATION OF FRANCHISE ........................................ 20
14. MISCELLANEOUS PROVISIONS ..... ............................................ ...............................22
15 PU C W..t\IVER................................................................................................................. 25
EXHIBITS
Exhibit A: Initial Service Area, Extended Service Area and Additional Service Areas
Exhibit B: Municipal Buildings to be Provided Free Cable Service
Exhibit C: EG Channels
Exhibit D: Customer Service Standards
Exhibit E: Franchise Fee SchedulelReport
2
THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered
into by and between the City of Wylie, a duly organized city under the applicable laws of the State
of Texas (the Local Franchising Authority or "LF A") and GTE Southwest, Inc. d/b/a V erizon
Southwest, ("Verizon Southwest") a corporation duly organized under the applicable laws of the
State of Texas (the "Franchisee").
WHEREAS, LF A wishes to grant Franchisee a nonexclusive franchise to construct, install,
maintain, extend and operate a Cable System in the Franchise Area as designated in this Franchise;
and
WHEREAS, LF A is a "franchising authority" and, following the installation of the FTTP
Network (defined below), Franchisee will become a "cable operator" in accordance with Title VI
ofthe Communications Act (see 47 D.S.C. S 522(10) and S 522(5)) and is authorized to grant one
or more nonexclusive cable franchises; and
WHEREAS, Franchisee is in the process of installing a Fiber to the Premise Network
("FTTP Network" as further defined below) in the Franchise Area for the transmission of
Telecommunication Services pursuant to authority granted by the State of Texas under Chapter
283 of the Texas Local Government Code and Information Services pursuant to federal law; and
WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within LFA, and
Franchisee desires to use portions of the FTTP Network once installed to provide Cable Services
(as hereinafter defined), for which a franchise is required pursuant to 47 D.S.C. S 541(b)(1), in the
Franchise Area; and
WHER BAS, LF A has identified the future cable-related needs and interests of LF A and its
citizens and has determined that Franchisee's plans for its Cable System are adequate, in a full
public proceeding affording due process to all parties; and
WHEREAS, LFA has found Franchisee to provide assurances as set forth in 47 D.S.C.
s541(a) to operate the Cable System; and
WHEREAS, LF A has determined that the grant of a nonexclusive franchise to Franchisee
is consistent with the public interest; and
WHEREAS, LF A and Franchisee have reached agreement on the terms and conditions set
forth herein and the parties have agreed to be bound by those terms and conditions.
NOW, THEREFORE, in consideration of LFA's grant of a franchise to Franchisee,
Franchisee's promise to provide Cable Service to residents of the Franchise/Service Area of LF A
pursuant to the terms and conditions set forth herein, the promises and undertakings herein, and
other good and valuable consideration, the receipt and the adequacy of which are hereby
acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
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1. DEFINITIONS
Except as otherwise provided herein, the definitions and word usages set forth herein shall
apply in this Agreement. In addition, the following definitions shall apply:
1.1. Access Channel: A video Channel, which Franchisee shall make available to
LF A without charge for public, educational, or governmental use for the transmission of video
programming as directed by LF A.
1.2. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned
or controlled by, or is under common ownership or control with, Franchisee.
1.3. Basic Service: Any service tier, which includes the retransmISSIOn of
television broadcast signals within the Dallas-Fort Worth Metroplex as well as the EG Channels
required by this Franchise.
1.4. Cable Service or Cable Services: Shall be defined herein as it is defined under
Section 602 of the Communications Act, 47 D.S.C. S 522(6).
1.5. Cable System or System: Shall be defined herein as it is defined under Section
602 of the Communications Act, 47 D.S.C. S 522(7), which shall be controlling, meaning
Franchisee's facility, consisting of a set of closed transmission paths and associated signal
generation, reception, and control equipment that is designed to provide Cable Service which
includes Video Programming and which is provided to multiple Subscribers within the Service
Area. The Cable System shall consist solely of the optical spectrum wavelength(s), bandwidth or
future technolC\gical capacity used for the transmission of Cable Services directly to Subscribers
within the Franchise/Service Area.
1.6. Channel: Shall be defined herein as it is defined under Section 602 of the
Communications Act, 47 D.S.C. S 522(4).
1. 7. Communications Act: The Communications Act of 1934, as amended.
1.8. Control: The ability to exercise de facto or de jure control over day-to-day
policies and operations or the management of corporate affairs.
1.9.Educational Access Channel: An Access Channel available for the use solely
of all local public schools in Wylie, Texas that are part of an independent school district which is a
political subdivision of the State of Texas and higher education institutions located within the
Franchise Area.
1.10. EG Channels: The Educational Access Channel and the Government
Access Channel.
-
1.11. Expanded Service: The Basic Service tier plus the addition of one or more
clusters of video programming services which may or may not be offered for an additional
monthly charge.
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1.12. Extended Service Area: The portion of the Franchise Area as set forth in
Exhibit A.
1.13. FCC: The United States Federal Communications Commission, or
successor governmental entity thereto.
1.14. FTTP Network: Franchisee's communications network which utilizes fiber
optic technology to deliver a variety of nanometer frequencies for services originating or
terminating over fiber facilities placed to residential premises or other locations using like network
facilities.
1.15. Force Majeure: Acts of God, incidences of terrorism, war or riots, labor
strikes or civil disturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes,
tornadoes, governmental actions and restrictions and other like events. To the extent not
reasonably avoidable by Franchisee, Force Majeure also includes work delays caused by waiting
for utility providers to service or monitor utility poles to which Franchisee's Cable System is
attached, as well as the unavailability of materials and/or qualified labor to perform the work
necessary, so long as Franchisee can upon request present written evidence in good faith attesting
to the length of such delay and that such delay was reasonably unavoidable.
1.16. Franchise Area: The incorporated area (entire existing territorial limits ) of
LF A as of the Effective Date of this Franchise, excluding Additional Service Areas reflected on
Exhibit A suhject to Section 3.1.3 below.
1.17. Franchisee: Verizon Southwest, and its lawful and permitted successors,
assigns and transferees.
1.18. Government Access Channel: An Access Channel available for the use
solely of LF A, or as provided herein, including the Dedicated Government Access Channel and
the Reserved Government Access Channel, as defined herein.
1.19. Gross Revenue: All revenue that Franchisee and its Affiliates (to the extent
that either is acting as a provider of Cable Service authorized by this Franchise) derives from the
operation of Franchisee's Cable System to provide Cable Service in the Service Area, including
but not limited to all Subscriber and customer revenues earned or accrued net of bad debts
including revenue for: (i) Basic Service; (ii) Expanded Service; (iii) Pay Television Service; (iv)
all fees charged to any Subscribers for any and all Cable Service provided by Franchisee, including
without limitation Cable Service related program guides, the installation, disconnection or
reconnection of Cable Service; revenues from late or delinquent charge fees; Cable Service related
service or repair calls; the provision of converters, remote controls, additional outlets and/or other
Cable Service related Subscriber premises equipment, whether by sale, lease or otherwise; (v)
revenues from the sale or lease of access channel(s) or channel capacity; (vi) advertising revenues
(as described below); and (vii) revenues from home shopping channel providers. Gross Revenue
also includes franchise fees imposed on Franchisee by LF A that are passed through from
Franchisee as a line item paid by Subscribers. Revenue of an Affiliate derived from the Affiliate's
provision of Cable Services shall be Gross Revenue to the extent the treatment of such revenue as
revenue of the Affiliate and not of Franchisee has the intentional or unintentional effect of evading
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the payment of Franchise fees that would otherwise be payable to LF A hereunder. In no event
shall revenue of an Affiliate be Gross Revenue of Franchisee if such revenue is subject to franchise
fees to be paid to LF A for Cable Services. Advertising revenue is based upon the ratio of the
number of Subscribers as of the last day of the period for which Gross Revenue is being
calculated to the number of Franchisee's subscribers within all areas covered by the particular
advertising source as of the last day of such period, e.g., Franchisee sells two ads: Ad "A" is
broadcast nationwide; Ad "B" is broadcast only within Texas. Franchisee has 1 00 Subscribers in
LF A, 500 subscribers in Texas, and 1000 subscribers nationwide. Gross Revenue as to LF A from
Ad "A" is 10% of Franchisee' s revenue therefrom. Gross Revenue as to LF A from Ad "B" is 20%
of Franchisee's revenue therefrom.
Gross Revenue shall not include:
1.19.1. Revenues received by any Affiliate or other Person in exchange for
supplying goods or services used by Franchisee to provide Cable Service over the Cable System;
1.19.2. Refunds, rebates or discounts made to Subscribers, leased access
providers, advertisers, or any party receiving Cable Service pursuant to Section 3.3 below;
1.19.3. Any revenues classified, in whole or in part, as Non-Cable Services
revenue under federal or state law including without limitation revenue received from
Telecommunications Services; revenue received from Information Services, including without
limitation Internet Access service, electronic mail service, electronic bulletin board service, or
similar online computer services; charges made to the public for two-way communication; and any
other revenues attributed by Franchisee to Non-Cable Services in accordance with FCC or state
public utility regulatory commission rules, regulations, standards or orders except that any
revenues listed in this paragraph 1.19.3 that are later determined not to be Non-Cable Service
revenues pursuant to case law and FCC or state public utility regulatory commission rules,
regulations, standards or orders shall be considered Cable Services shall be included in gross
revenues accordingly;
1.19.4. Any revenue of Franchisee or any other Person that is received
directly from the Subscriber for the sale of merchandise through any Cable Service distributed
over the Cable System, notwithstanding that portion of such revenue which represents or can be
attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such
merchandise, which portion shall be included in Gross Revenue of Franchisee;
1.19.5. The sale of Cable Service for resale in which the purchaser is
required to collect cable franchise fees from purchaser's customer;
1.19.6. The provision of Cable Service to customers at no cost to the
extent required or allowed by LF A including without limitation the provision of Cable Services to
public institutions as required or permitted in Section 3.3 herein;
1.19.7. Any tax that is imposed upon Franchisee, any Subscriber and/or
user of the Cable Service by any governmental unit and collected by Franchisee for such
governmental unit including without limitation sales/use tax, gross receipts tax, excise tax, utility
users tax, public service tax and communication taxes;
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1.19.8. Any foregone revenue which Franchisee chooses not to receive in
exchange for its provision of free or reduced cost cable services to any Person, including without
limitation, employees of Franchisee and public institutions or other institutions designated in the
Franchise; provided, however, that such foregone revenue which Franchisee chooses not to
receive in exchange for trades, barters, services or other items of value shall be included in Gross
Revenue;
1.19.9. Sales of capital assets or sales of surplus equipment;
1.19.10. Reimbursement by programmers to Franchisee of marketing
costs incurred by Franchisee for the introduction of new programming; and
1.19.11. Any fees or charges collected from Subscribers or leased access
providers for an EG grant, pursuant to Section 6.3 herein, or INET payments, pursuant to Section
3.4 herein.
1.20. Initial Service Area: The portion of the Franchise Area as set forth in
Exhibit A.
1.21. Information Services: Shall be defined herein as it is defined under Section
3 of the Communications Act, 47 V.S.C. 9153(20) and shall include without limitation any service
that provides Subscribers with access to the world wide web.
1.22. Interconnect: When Franchisee's FTTP Network is physically connected
to an adj acent cable system or cable systems to provide capacity for carriage of EG Channels and
to meet EAS requirements set forth in Section 5.3.1 below.
1.23. Internet Access: Dial-up or broadband access servIce that enables
Subscribers to access the Internet.
1.24. Local Franchise Authority (LFA): The City of Wylie, Texas or the lawful
successor, transferee, or assignee thereof.
1.25. Non-Cable Service: Any service that does not constitute the provision of
Cable Service to multiple Subscribers in the Service Area over the Cable System.
1.26. Pay Television Service: Video programming at predetermined times to
Subscribers for a fee or charge on a per program or per channel basis, which charge is over and
above the charge for Basic Service or Expanded Service.
1.27. Person: An individual, partnership, association, entity, limited liability
company, joint stock company, trust, corporation, or governmental entity.
1.28. Public Rights-ol-Way: The surface and the area across, in, over, along,
upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways,
alleys, and boulevards, including, public utility easements and public lands and waterways used as
Public Rights-of-Way, as the same now or may thereafter exist, which are under the jurisdiction or
7
control of LFA. Public Rights-of-Way do not include the airwaves above a right-of-way with
regard to cellular or other nonwire communications or broadcast services.
1.29. Service Area: All portions of the Franchise Area where Cable Service must
be provided pursuant to this Agreement, including the Initial Service Area, the Extended Service
Area and Additional Service Areas subject to Section 3.1.3 below.
1.30. Subscriber: A Person who lawfully receives Cable Service with
Franchisee's express permission within the City of Wylie, Texas.
1.31. Telecommunications Facilities: Franchisee's existing Telecommunications
Services facilities and Information Services facilities including the FTTP Network facilities to the
extent not used for the Cable System.
1.32. Telecommunication Services: Shall be defined herein as it is defined under
Section 3 of the Communications Act, 47 US.c. S 153(46).
1.33. Title II: Title II of the Communications Act.
1.34. Title VI: Title VI of the Communications Act.
1.35. Tran4er of the Franchise:
1.35.1. Any transaction in which:
1.35.1.1. an ownership or other interest in Franchisee is
transferred, directly or indirectly, from one Person or group of Persons to another Person or group
of Persons, so that control of Franchisee is transferred; or
the rights held by Franchisee under the Franchise are transferred or assigned to another Person or
group of Persons.
1.35.1.2. However, notwithstanding subsection 1.35.1.1
above, a Transfer of the Franchise shall not include (i) transfer of an ownership or other interest in
Franchisee to the Parent of Franchisee or to another Affiliate of Franchisee when such Affiliate is
Controlled by Franchisee or the Parent of Franchisee; (ii) transfer of an interest in the Franchise or
the rights held by Franchisee under the Franchise to the Parent of Franchisee or to another Affiliate
of Franchisee when such Affiliate is Controlled by Franchisee or the Parent of Franchisee; (iii) any
action which is the result of a merger of the Parent of Franchisee; or (iv) any action which is the
result of a merger of another Affiliate of Franchisee when such Affiliate is Controlled by
Franchisee or the Parent of Franchisee. For purposes of this subsection, "Parent" shall mean any
corporation that directly or indirectly owns or Controls Franchisee or Franchisee and the Affiliate.
1.36 Video Programming: Shall be defined herein as it is defined under Section
602 of the Communications. Act, 47 D.S.C. S 522(20).
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
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2.1. Grant of Authority: Subject to the terms and conditions of this Agreement,
LF A hereby grants Franchisee the right to own, construct, operate and maintain a Cable System
along the Public Rights-of-Way within the Franchise Area in order to provide Cable Service. No
privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power
bestowed by this Agreement.
2.2. Additional Compensation; FTTP Network (Title II); Title VI.
2.2.1. Additional Compensation. By granting this Franchise, LF A does
not waive and specifically retains any right to regulate and receive compensation as allowed by
state and federal law for all services offered over the FTTP Network that are Non-Cable Services
including without limitation access line fees on Telecommunication Services pursuant to Chapter
283 of the Texas Local Government Code. Nothing in this Franchise shall be construed to limit
any lawful authority of LF A to impose a tax, fee, or other assessment of any kind on any Person
(other than the Franchisee or its Affiliates) with respect to cable service provided by such Person
over Franchisee's FTTP Network for which charges are assessed to Subscribers but not received
by the Franchisee and/or its Affiliates. The parties agree that no term in this Franchise shall
preempt or prevent LF A's right to bring a claim under Chapter 283 of the Texas Local
Government Code, the Communication Act or other applicable federal or state law.
2.2.2. FTTP Network. Notwithstanding LFA's reservation of rights
pursuant to Section 2.2.1 above, the parties recognize that Franchisee elected to construct the
FTTP Network prior to seeking this Franchise from LF A for Cable Services, and that the FTTP
Network will be operated as an upgrade to and/or extension of Franchisee's existing
Telecommunications Facilities, pursuant to Chapter 283 of the Texas Local Government Code and
Title II, it will be used to provide Information Services, and it will also be used to provide Cable
Services as permitted by this Franchise. The FTTP Network includes the tangible facilities of a
common carrier subject in whole or in part to Title II of the Communications Act or of an
Information Services provider. Notwithstanding the definition of Cable Service in Section 1.5
herein, in the event that the FTTP Network is used solely for the provision of Cable Service, the
FTTP Network shall be deemed a "Cable System" as defined under Section 602 of the
Communications Act, 47 V.S.C. S 522(7).
2.2.3. LFA Does Not Regulate Telecommunications. LFA acknowledges
that its jurisdiction over Telecommunications Facilities is restricted by federal and state law, and
LF A does not assert jurisdiction over Franchisee's FTTP Network in contravention of these
limitations, but may assert jurisdiction as allowed by law. LF A's regulatory authority under Title
VI of the Communications Act is not applicable to the construction, installation, maintenance or
operation of Franchisee's FTTP Network to the extent the FTTP Network is constructed, installed,
maintained or operated for the purpose of upgrading and/or extending Verizon's existing
Telecommunications Facilities for the provision of Non-Cable Services.
2.3 Term: This Franchise shall become effective on the date set forth on the
signature page below (the "Effective Date"); provided, however, that Franchisee agrees to
commence providing Cable Service on a commercial basis directly to multiple Subscribers in the
Service Area within eighteen (18) months of the Effective Date (the "Beginning Service Date").
The term of this Franchise shall be fifteen (15) years from the Effective Date unless the Franchise
9
is earlier revoked as provided herein. Franchisee shall memorialize the Beginning Service Date by
notifying LF A in writing of the same, which notification shall become a part of this Agreement.
2.4 Grant Not Exclusive: The Franchise and the right it grants to use and
occupy the Public Rights-of-Way to provide Cable Services shall not be exclusive and nothing
herein shall be construed to prevent LF A from granting other franchises for similar uses or for
other uses ofthe Public Rights-of-Way, or any portions thereof, to any Person, or to make any such
use themselves, at any time during the term of this Franchise. Any such rights which are granted
shall not adversely impact the authority as granted under this Franchise and shall not interfere with
existing facilities of the Cable System or Franchisee's FTTP Network.
2.5 Franchise Subject to Federal Law: Notwithstanding any provision to the
contrary herein, this Franchise is subject to and shall be governed by all applicable provisions of
federal law as it may be amended, including but not limited to the Communications Act.
2.6 No Waiver:
2.6.1 The failure of LF A on one or more occasions to exercise a
right or to require compliance or performance under this Franchise or any other applicable law
shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance
by LF A, nor to excuse Franchisee from complying or performing, unless such right or such
compliance or performance has been specifically waived in writing.
2.6.2 The failure of Franchisee on one or more occasions to
exercise a right under this Franchise or applicable law, or to require performance under this
Franchise, shall not be deemed to constitute a waiver of such right or of performance of this
Agreement, nor shall it excuse LF A from performance, unless such right or performance has been
specifically waived in writing.
2.7 Construction of Franchise:
2.7.1. The provisions of this Franchise shall be liberally construed to
effectuate their objectives.
2.7.2. Nothing herein shall be construed to limit the scope or applicability
of Section 625 Communications Act, 47 V.S.C. S 545.
2.7.3. Should any change to state law have the lawful effect of materially
altering the terms and conditions of this Franchise, then the parties shall modify this Franchise to
the mutual satisfaction of both parties to ameliorate the negative effects on the Franchisee of the
material alteration. If the parties cannot reach agreement on the above-referenced modification to
the Franchise, then Franchisee may terminate this Agreement without further obligation to the
LF A or, at Franchisee's option, the parties agree to submit the matter to binding arbitration in
accordance with the commercial arbitration rules of the American Arbitration Association.
2.8 Police Powers: Nothing in the Franchise shall be construed to prohibit the
reasonable, necessary and lawful exercise of LF A's police powers. However, if the reasonable,
necessary and lawful exercise of LF A's police power results in any material alteration of the terms
10
and conditions of this Franchise, which material alteration has a material negative financial effect
on Franchisee's provision of Cable Service in the Service Area, then the parties shall modify this
Franchise to the mutual satisfaction of both parties to ameliorate the negative effects on Franchisee
of the material alteration. If the parties cannot reach agreement on the above-referenced
modification to the Franchise, then Franchisee may terminate this Agreement without further
obligation to LF A or, at Franchisee's option, the parties agree to submit the matter to binding
arbitration in accordance with the commercial arbitration rules of the American Arbitration
Association.
2.9 Franchisee's Use ofGAAP. Franchisee represents and warrants that all of its
financial and accounting records and books are maintained in accordance with generally accepted
accounting principles.
3. PROVISION OF CABLE SERVICE
3.1. Service Areas:
3.1.1. Initial Service Area: Franchisee shall provide Cable Service to all
residential areas of the Initial Service Area and may make Cable Service available to businesses in
the Initial Service Area, vv'ithin eighteen (18) months of the Effective Date of this Franchise,
except: (A) for periods of Force Majeure; (B) for periods of delay caused by LF A; (C) for periods
of delay resulting from Franchisee's inability to obtain authority to access rights-of-way in the
Service Area; CD) in areas where developments or buildings are subject to claimed exclusive
arrangements with other providers; (E) in developments or buildings that Franchisee cannot access
under reasonable terms and conditions after good faith negotiation, as determined by Franchisee;
and (F) in developments or buildings that Franchisee is unable to provide Cable Service for
technical reasons or which require non-standard facilities which are not available on a
commercially reasonable basis; and (G) in areas where the occupied residential household density
does not meet the density requirement set forth in Subsection 3.1.1.1.
3.1.1.1. Density Requirement: Franchisee shall make Cable
Services available to residential dwelling units in all areas of the Service Area (including the Initial
Service Area, the Extended Service Area and the Additional Service Areas pursuant to the terms
set forth herein,) where the average density is equal to or greater than thirty (30) occupied
residential dwelling units per mile as measured in strand footage from the nearest point on the
active FTTP Network trunk or feeder line. Should, through new construction, an area within the
Initial Service Area or the Extended Service Area meet the density requirements after the time
stated for providing Cable Service as set forth in Subsections 3.1.1, 3.1.2 and 3.1.3 respectively,
Franchisee shall provide Cable Service to such area within six (6) months of receiving notice that
the density requirements have been met. Upon written request from LF A, Franchisee agrees to
confirm within thirty (30) days whether a density requirement has been met within the portion of
the Service Area that is the subject of the required notice. LF A may request to meet with
Franchisee annually regarding customer service requests for service where density under this
Section 3.1.1.1 is in question or requires resolution by Franchisee.
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3.1.2. Extended Service Area: Within seven (7) years following the
Effective Date, Franchisee shall provide Cable Service in the Extended Service Area subject to the
conditions of Subsection 3.1.1 above and the other terms set forth herein.
3.1.3. Additional Service Areas: Aside from the Initial Service Area and
the Extended Service Area, Franchisee shall not be required to extend its Cable System or to
provide Cable Services to any other area within the Franchise Area ("Additional Service Areas")
as delineated in Exhibit A. The parties agree that land annexed by the City of Wylie, Texas during
the term of this Franchise shall be Additional Service Areas; provided, however, that such annexed
areas shall be part of the Franchise Area and Franchisee shall be required to extend Cable Service
within a reasonable time to such annexed areas that (a) are contiguous to LF A, (b) within
Franchisee's Title II service territory served by the FTTP Network and (c) meet the density
requirement set forth in Section 3.1.1 above.
3.2. Availability of Cable Service: Franchisee shall make Cable Service available
to all residential dwelling units and may make Cable Service available to businesses within the
Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or
among any individuals in the availability of Cable Service. In the areas in which Franchisee shall
provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense, all
residential dwelling units that are within one hundred fifty (150) feet of trunk or feeder lines not
otherwise already served by Franchisee's FTTP Network. Franchisee shall be allowed to recover,
from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit
connections that exceed one hundred fifty (150) feet and actual costs incurred to connect any
non-residential dwelling unit Subscriber.
3.3. Cable Service to Public Buildings: Franchisee shall provide, within thirty (30)
days of a written request thereof and without charge within the Service Area, one service outlet
activated for Basic Service to each fire station, police station, public library, city hall, other public
buildings, and public school building or facility operated by an independent school district that is
located in Wylie, Texas, as may be initially designated or in the future designated by LF A in
Exhibit B (the "Public Facility(ies)"); provided, however, that if it is necessary to extend
Franchisee's trunk or feeder lines more than one hundred fifty (150) feet solely to provide service
to any such Public Facility, LF A or local independent school districts shall have the option either
of paying Franchisee's direct costs for such extension in excess of one hundred fifty (150) feet, or
of releasing Franchisee from the obligation to provide service to such Public Facility. Furthermore,
Franchisee shall be permitted to recover, from any Public Facility owner entitled to free service,
the direct cost of installing, when requested to do so, more than one outlet, or concealed inside
wiring, or a service outlet requiring more than one hundred fifty (150) feet of drop cable; provided,
however, that Franchisee shall not charge for the provision of Basic Service to the additional
service outlets once installed. Franchisee will make one (1) service outlet available at city hall
without charge for the purpose of monitoring Basic Service and Expanded Service. In the event
that LF A or any local school authority referenced herein constructs or leases new Public Facilities
within Franchisee's Title II service territory and served by the FTTP Network during the term of
this Franchise, Franchisee agrees that it will provide one (1) free service outlet to such in
accordance with the terms of this Section 3.3; provided, however, that Franchisee shall not be
required to provide any such free service outlet if the new Public Facility is located outside
Franchisee's Title II service territory and not served by the FTTP Network.
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3.4. INET If, during the term of the Franchise, another cable operator provides
LF A with an institutional network, as defined in Section 611 (c) of the Communications Act
("INET"), Franchisee agrees to enter into good faith negotiations, within sixty (60) days of being
requested to do so, with LF A as to Franchisee's provision of a pro rata, per Subscriber grant to
LF A in relation to Franchisee's proportional share (in relation to other cable operators) of the
incremental, verifiable cost to the cable operator of such an INET; provided, however, that LF A
agrees that it will require all cable operators within the Franchise Area to make equitable pro rata
contributions toward the construction of any such INET. LF A further agrees to reimburse such
cable operator for any pro rata, per Subscriber payments made by Franchisee.
4. OPERATION
Franchisee shall provide Cable Service III full compliance with this Franchise and
applicable law.
5. CABLE SYSTEM
5.1. Cable System Characteristics: Franchisee's Cable System shall meet or
exceed the following requirements:
5.1.1. The Cable System shall be designed with an initial analog passband
of 860 MHz.
5.1.2. The Cable System shall be designed to be an active two-way plant
utilizing the return bandwidth to permit such services as impulse pay-per-view and
other interactive services.
5.2. Interconnection: Franchisee's Cable System may interconnect with other
cable systems in the Franchise Area subject to Section 6.1.3 below. Interconnection of systems
may be made by direct cable connection, microwave link, satellite, or other appropriate methods.
5.3. Emergency Alert System:
5.3.1'- Franchisee shall comply with the Emergency Alert System ("EAS")
requirements of the FCC in order that emergency messages may be distributed over the System.
5.3.2. LFA shall permit only appropriately trained and authorized Persons
to operate the EAS equipment and shall take reasonable precautions to prevent any use of the
Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the
Cable System. Except to the extent expressly prohibited by law, LF A shall hold Franchisee, its
employees, officers and assigns harmless from any claims arising out of use of the EAS including
without limitation reasonable attorneys' fees and costs.
5.3.3. Service for Hearing Impaired: Franchisee shall take any and all
reasonable steps necessary to comply with any FCC or other federal or state requirements
regarding altering or adapting programming for the hearing impaired. Franchisee shall not take
any action to remove or alter closed captioned programming provided for the hearing impaired as
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part of any programming. Franchisee shall deliver intact such closed captioning in the manner in
which it arrives at the headend or from another origination source to the Cable Service.
6. EG SERVICES
6.1. EG Set Aside
6.1.1. In order to ensure universal availability of educational and
government programming, Franchisee shall provide on the Basic Service Tier one (1) dedicated
Educational Access Channel and one (1) dedicated Government Access Channel for LF A's
exclusive use (the "Dedicated Government Access Channel"). In addition, Franchisee will reserve,
to be on a Basic Service Tier, digital service tier or other technology tier that may exist as
permissible under federal law, one (1) government access channel which the LF A may use or
which the LFA may allow either (a) any County of the State of Texas in which LFA is located or
(b) any institution of higher education located within LF A to use; provided, however, that
Franchisee consents in writing to such use, which consent Franchisee shall not unreasonably
withhold (the "Reserved Government Access Channel").
6.1.2. At least sixty (60) days prior to beginning use of an EG Channel,
LF A, or the entity authorized under the terms of this Franchise to use such channel ("Authorized
User"), shall notify Franchisee of the programming to be carried on such EG Channel set aside by
Franchisee. Thereafter, Franchisee shall assign the EG Channels on its channel line-up as set forth
in such notice. In the event that the requested channel assignment is in conflict with a pre-existing
cham1el assignment, LF A and Franchisee with jointly determine what available channel
assignment will be used. If the Educational Access Channel or the Reserved Government Access
Channel provided under this Article is not being utilized by the Authorized User or LF A,
respectively, Franchisee may utilize such Educational Access Channel and Reserved Government
Access Channel, in its sole discretion, until such time as LF A elects to utilize the Educational
Access Channel and/or Reserved Government Access Channel for its intended purpose. If, after
twelve (12) months following the Beginning Service Date, the Dedicated Government Access
Channel provided under this Article is not being utilized by the LF A, Franchisee may utilize such
Dedicated Government Access Channel, in its sole discretion, until such time as LF A elects to
utilize the Dedicated Goveriunent Access Channel for its intended purpose. Franchisee shall not
permit any other governmental entity to utilize LFA's Government Access Channels during the
term of this Franchise without LF A's prior written permission.
6.1.3. Franchisee shall use reasonable efforts to interconnect its Cable
System with the existing cable operator(s). Promptly after LF A grants the Franchise, the
Franchisee shall initiate interconnection negotiations with the existing cable operator(s) to
cablecast, on a live basis, public, educational and governmental access programming consistent
with this Franchise. Interconnection may be accomplished by direct cable, microwave link,
satellite or other reasonable method of connection. Franchisee shall negotiate in good faith with
existing cable operator(s) respecting reasonable, mutually convenient, cost-effective, and
technically viable interconnection points, methods, terms and conditions. The LF A shall require
the existing cable operator(s) to provide such interconnection to the Franchisee on reasonable
terms and conditions. The construction costs and ongoing expenses of interconnection shall be
fairly shared between the Franchisee and the existing cable operator(s). The Franchisee and the
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existing cable operator(s) shall negotiate the precise terms and conditions of an interconnection
agreement. The LF A shall use its best efforts to facilitate these negotiations. If Franchisee is
unable to reach such an agreement within thirty (30) days after requesting in writing to
interconnect with other local cable operator(s), LFA shall use its best efforts to aid in discussions
and resolution of such dispute. If no agreement is reached within an additional thirty (30) days,
Franchisee agrees that LF A shall designate the point of interconnection. If the cost of
interconnection would be umeasonable, interconnection is not technically feasible or would cause
an unacceptable increase in Subscriber rates, or if an existing cable operator will not agree to
reasonable terms and conditions of interconnection, the Franchisee will be under no obligation to
carry EG programming originating on the cable system of the existing cable operator or to
interconnect the Cable System.
6.2 All local producers and users of any of the EG facilities or Channels shall agree
in writing to hold harmless Franchisee, LF A, from any and all liability or other injury, including
the reasonable cost of defending claims or litigation, arising from or in connection with claims for
failure to comply with applicable federal laws, rules, regulations or other requirements of local,
state or federal authorities; for claims oflibel, slander, invasion of privacy, or the infringement of
common law or statutory copyright; for unauthorized use of any trademark, trade name or service
mark; for breach of contractual or other obligations owing to third parties by the producer or user;
and for any other injury or damage in law or equity, which result from the use of a EG facility or
Channel.
6.3 If, during the term of this Franchise, any other cable operator within the
Franchise Area provides LJ:A with an EG grant, Franchisee agrees to negotiate in good faith with
LF A to compensate LF A on an equitably comparable pro rata, per Subscriber basis for such EG
grant; provided, however, that Franchisee shall not be required to make such EG grant
compensation unless all cable operators within the Franchise Area provide comparable EG grant
compensation.
7. FRANCHISE FEES
7.1 Payment to LFA: Franchisee shall pay to LFA a Franchise fee of five
percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications Act,
the twelve (12) month period applicable under the Franchise for the computation of the Franchise
fee shall be a calendar year. Such payments shall be made no later than forty five (45) days
following the end of each calendar quarter. Franchisee shall be allowed to submit or correct any
payments that were incorrectly omitted, and shall be refunded any payments that were incorrectly
submitted, in connection with the quarterly Franchise fee remittances within ninety (90) days
following the close of the calendar year for which such payments were applicable. Franchisee
agrees to wire Franchisee fee payments to LFA upon LFA's prior written request. A copy of
Franchisee's proposed Franchise Fee Schedule/Report is attached hereto as Exhibit E.
7. 2 Supporting Information: Each Franchise fee payment shall be accompanied
by a brief report prepared by a representative of Franchisee showing the basis for the computation.
7. 3 Limitation on Franchise Fee Actions: The period of limitation for recovery
of any Franchise fee payable hereunder shall be four (4) years from the date on which payment by
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Franchisee is received by LFA (the "Limitations Period"). During any such four (4) year period,
the Limitations Period shall be tolled beginning on the date that LF A mails written notice to
Franchisee that LF A intends to conduct an inspection of the books and records of Franchisee as
permitted by Article 9 herein to determine compliance with this Article 7, and ending on the date
LF A asserts a claim as to any unpaid fees hereunder or provides notice that it does not intend to
assert a claim, such claim to be asserted within twelve (12) months from the date of production of
all the records reasonably requested; provided however, that the completion date for review may
be extended by mutual agreement ofLF A and Franchisee. The parties intend that the tolling of the
Limitations Period is to allow LF A to complete its review in a timely and efficient manner and the
parties do not intend for the Limitations Period to be unreasonably tolled. During the tolling
period, Franchisee shall maintain its books and records related to the inspection of unpaid fees
being conducted by LF A until final resolution of any claim asserted by LF A as a result of the
inspection, notwithstanding the four (4) year provisions contained in Article 9 of this Franchise.
7. 4 Bundled Services: If Franchisee bundles Cable Service with Non-Cable
Service, Franchisee agrees that it will not unlawfully allocate such revenue for the purpose of
evading Franchise fee payments under this Franchise. The parties agree that tariffed
Telecommunication Services that cannot be discounted by state or federal law or regulation are to
be excluded from the bundled discount allocation basis. For the purpose of calculating the
Franchise fee due to LF A, bundled discounts will be allocated consistent with the allocation of
discounts on the customer bill. Any non-service apportioned bundled discount appearing on the
customer bill will be allocated proportionately between the discountable services provided in the
bundle for the purpose of calculating franchise fees. If a dispute arises between LF A and
Franchisee as to the proper allocation of bundled services revenue, such records pertaining to the
allocation shall be maintained by Franchisee until the dispute is resolved.
7.5 Late Payments: If any payments due under this Franchise remain unpaid
after the due date ("Past Due Amounts"), Franchisee shall pay LF A interest on such Past Due
Amounts in addition to the Past Due Amounts. The interest shall accrue on the Past Due Amounts
from the due date until paid in full ("Period of Delinquency"). Franchisee shall pay LF A interest at
a rate per annum equal to the highest Bank Prime Rate during the Period of Delinquency plus 1 %.
The "Bank Prime Rate" sheill mean the prime lending rate from U.S. Banks as it appears in the
Wall Street Journal during the Period of Delinquency. LFA's acceptance of payment shall not be
construed as an agreement that the amount paid was correct, nor shall acceptance be construed as a
release of any claim, which LF A may have for additional sums payable under provisions of this
Article 7.
8. CUSTOMER SERVICE
Customer Service Requirements are set forth in Exhibit D and shall be binding unless
amended by written consent of the parties. IfLF A submits a proposal requesting an amendment in
Customer Service Requirements, Franchisee shall respond in writing within sixty (60) days stating
whether it will either consent to such a proposal or its reasons for declining LF A's proposal.
9. REPORTS AND RECORDS
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9.1 Open Books and Records: Upon reasonable written notice to Franchisee
and with no less than thirty (30) days written notice to Franchisee, LF A shall have the right to
inspect Franchisee's books and records pertaining to Franchisee's provision of Cable Service in
the Franchise Area at any time during Normal Business Hours and on a nondisruptive basis, as are
reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall
specifically reference the article, section or subsection ofthe Franchise that is under review, so that
Franchisee may organize the necessary books and records for appropriate access by LF A.
Franchisee shall not be required to maintain any books and records for Franchise compliance
purposes longer than four (4) years except that any records relevant or related to an unresolved,
ongoing dispute shall be maintained until final resolution of such dispute including records
provided pursuant to Section 7.4 herein. Notwithstanding anything to the contrary set forth herein,
Franchisee shall not be required to disclose information that it reasonably deems to be proprietary
or confidential in nature, nor disclose any of its or an Affiliate's books and records not relating to
the provision of Cable Service in the Service Area, LF A agrees to treat any information disclosed
by Franchisee as confidential and only to disclose it to employees, representatives, and agents
thereof that have a need to know, or in order to enforce the provisions hereof and as may be
required by the Texas open records or freedom of information laws, with notice to Franchisee if
any request for such information is made, as may be provided under the circumstances. Franchisee
shall not be required to provide Subscriber information in violation of Section 631 of the
Communications Act, 47 FS.C. 9551.
9.2. Records Required: Franchisee shall at all times maintain:
9.2.1. Records of all written complaints for a period of four (4) years after
receipt by Franchisee. The term "complaint" as used herein refers to complaints about any aspect
of the Cable System or Franchisee's cable operations, including without limitation complaints
about employee courtesy. Complaints recorded will not be limited to complaints requiring an
employee service call;
9.2.2. Records of outages for a period of four (4) years after occurrence,
indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause;
9.2.3. Records of service calls for repair and maintenance for a period of
four (4) years after resolution by Franchisee, indicating the date and time service was required, the
date of acknowledgment and date and time service was scheduled (if it was scheduled), and the
date and time service was provided, and (if different) the date and time the problem was resolved;
9.2.4. Records of installation/reconnection and requests for service
extension for a period of four (4) years after the request was fulfilled by Franchisee, indicating the
date of request, date of acknowledgment, and the date and time service was extended; and
9.2.5. A public file showing the area of coverage for the provisioning of
Cable Services and estimated timetable to commence providing Cable Service.
10. INSURANCE AND INDEMNIFICATION
10.1 Insurance:
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10.1.1. Franchisee shall maintain in full force and effect, at its own cost and
expense, during the Franchise Term, the following insurance coverage:
10.1.1.1. Commercial General Liability Insurance in the
amount of three million dollars ($3,000,000) combined single limit for
property damage and bodily injury. Such insurance shall cover the
construction, operation and maintenance of the Cable System, and the
conduct of Franchisee's Cable Service business in LF A.
10.1.1.2. Automobile Liability Insurance in the amount of
three million dollars ($3,000,000) combined single limit for bodily injury
and property damage coverage.
10.1.1.3 . Workers' Compensation Insurance meeting all legal
requirements of the State of Texas.
10.1.1.4. Employers' Liability Insurance in the following
amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury
by Disease: $100,000 employee limit; $500,000 policy limit.
10.1.:2. LF A shall be designated as an additional insured under each of the
insurance policies required in this Article 10 except Worker's Compensation and Employer's
Liability Insurance.
10.1.3. Each of the required insurance policies shall not be cancelled,
reduced or expired except upon thirty (30) days prior written notice to LF A. Franchisee shall not
cancel any required insurance policy without submitting documentation to LF A verifying that
Franchisee has obtained alternative insurance in conformance with this Franchise.
10.1.4. Each of the required insurance policies shall be with sureties
qualified to do business in the State of Texas, with an A or better rating for financial condition and
financial performance by Best's Key Rating Guide, Property/Casualty Edition.
10.1.5. Within thirty (30) days after the Effective Date of this Franchise,
Franchisee shall deliver to LF A Certificates of Insurance showing evidence of the required
coverage.
1 0.2. Indemn~fication:
10.2.1. Franchisee shall indemnify, save and hold harmless LF A, its officers,
agents, boards, employees, and contractors from and against any liability for damages and for any
liability, cost or damage arising from tangible property damage or bodily injury (including
accidental death), to the extent proximately caused by Franchisee's negligent act, error or omission
in its=construction, operation, or maintenance of its Cable System, provided that LF A shall give
Franchisee written notice of its obligation to indemnify LF A within fourteen (14) days of receipt
of a claim or action pursuant to this subsection; provided, however, that LF A may provide written
notice after such fourteen (14) day period so long as Franchisee is not prejudiced by such late
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notice. Notwithstanding the foregoing, Franchisee shall not indemnify LF A, for any damages,
liability or claims resulting from the willful misconduct or negligence of LF A, its officers, agents,
employees, attorneys, consultants, independent contractors or third parties or for any activity or
function conducted by any Person other than Franchisee in connection with EG Channels or EAS,
or the distribution of any Cable Service over the Cable System.
10.2.2. With respect to Franchisee's indemnification obligations set forth in
subsection 10.2.1, Franchisee shall provide the defense of any claims brought against LF A, its
officers, agents, boards, employees, and contractors under this Section 10.2 of the Franchise by
selecting counsel of Franchisee's choice to defend the claim, subject to the consent ofLFA, which
shall not unreasonably be withheld. Nothing herein shall be deemed to prevent LF A from
cooperating with Franchisee and participating in the defense of any litigation by its own counsel at
its own cost and expense, provided however, that after consultation with LF A, Franchisee shall
have the right to defend, settle or compromise any claim or action arising hereunder, and
Franchisee shall have the authority to decide the appropriateness and the amount of any such
settlement as to both LF A and Franchisee, with full releases as to LF A and Franchisee included in
such settlement, only in the event that the amount of such settlement is within Franchisee's
insurance policy limits or if Franchisee agrees to pay all excess amounts above insurance policy
limits.
10.2.3 }Jotwithstanding anything to the contrary in this Article 10, if
representation of both LF A and Franchisee by the same attorney would be inconsistent with
accepted canons of professional ethics, LF A shall have the right to employ separate counsel in any
action or proceeding and to participate in the investigation and defense thereof, and Franchisee
shall pay the resulting reasonable attorneys' fees and expenses.
10.2.4. LF A shall hold Franchisee harmless and shall be responsible for damages,
liability or claims resulting from willful misconduct of LF A.
10.2.5. LF A shall be responsible for its own acts of willful misconduct or
negligence, or breach of obligation committed by LF A for which LF A is legally responsible,
subject to any and all defenses and limitations ofliability provided by law. Franchisee shall not be
required to indemnify LF A for acts of LF A which constitute willful misconduct or negligence, on
the part of LF A, its officers, employees, agents, attorneys, consultants, independent contractors or
third parties. Franchisee shall be responsible for its own acts of willful misconduct or negligence,
or breach of obligation committed by Franchisee for which Franchisee is legally responsible,
subject to any and all defenses and limitations ofliability provided by law. Franchisee shall not be
required to indemnify LF A for acts of Franchisee which constitute willful misconduct or
negligence on the part of Franchisee, its officers, employees, agents, attorneys, consultants,
independent contractors or third parties.
10.2.6. The provisions of Section 10.2 shall survIve the termination of this
Franchise.
10.2.7 The provisions of this Section 10.2 are solely for the benefit of LF A and
Franchisee and do not create or grant any rights, contractual or otherwise, to any other Person or
entity.
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11. TRANSFER OF FRANCHISE
Subject to Section 617 of the Communications Act, 47 D.S.C. 9537, no Transfer ofthe
Franchise shall occur without the prior consent of LF A, provided that such consent shall not be
unreasonably withheld, delayed or conditioned. No such consent shall be required, however, for a
transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest
of Franchisee in the Franchise or Cable System in order to secure indebtedness, or otherwise
excluded under Section 1.35 above. To the extent that LF A's consent to a Transfer of Franchise is
required, Franchisee (or transferee) shall reimburse LF A for reasonable expenses incurred in
reviewing that the transferee has the technical, legal, financial and operational ability to operate
the Cable System to provide Cable Service. In no case shall Franchisee reimburse LF A for
expenses exceeding $5,000.
12. RENEWAL OF FRANCHISE
12.1. LF A and Franchisee agree that any proceedings undertaken by LF A that
relate to the renewal of this Franchise shall be governed by and comply with the provisions of
Section 626 ofthe Communications Act, 47 U.S.c. 9 546. LF A and Franchisee agree that the term
of any future cable franchise agreement between the parties shall be determined during renewal
negotiations p:lrsuant to the provisions of Section 626.
12.2. In addition to the procedures set forth in said Section 626 of the
Communications Act, LF A agrees to notify Franchisee of all of its assessments regarding the
identity of future cable-related community needs and interests, as well as the past performance of
Franchisee under the then current Franchise term. LF A further agrees that such assessments shall
be provided to Franchisee within ninety (90) days following the completion of such assessment so
that Franchisee has adequate time to submit a proposal under Section 626 and complete renewal of
the Franchise prior to expiration of its term.
12.3. Notwithstanding anything to the contrary set forth herein, Franchisee and
LF A agree that at any time during the term ofthe then current Franchise, while affording the public
appropriate notice and opportunity to comment, LF A and Franchisee may agree to undertake and
finalize informal negotiations regarding renewal of the then current Franchise and LF A may grant
a renewal thereof.
12.4. Franchisee and LF A agree that they may simultaneously pursue informal
and formal franchise renewal processes pursuant to this Article 12 and Section 626 of the
Communications Act.
13. ENFORCEMENT AND TERMINATION OF FRANCHISE
13.1. Notice of Violation: In the event that LF A believes that Franchisee has not
complied with the terms of the Franchise, LF A shall informally discuss the matter with Franchisee.
If these discussions do not lead to resolution of the problem, LF A shall notify Franchisee in
writing of the exact nature of the alleged noncompliance.
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13.2. Franchisee's Right to Cure or Respond: Franchisee shall have thirty (30)
days from receipt of the written notice described in Section 13.1 to: (i) respond to LF A, if
Franchisee contests (in whole or in part) the assertion of noncompliance; (ii) cure such default; or
(iii) in the event that, by the nature of default, such default cannot be cured within the thirty (30)
day period, initiate reasonable steps to remedy such default and notify LF A of the steps being
taken and the projected date that they will be completed and request from LFA an extension of the
time to cure, which shall not be unreasonably denied by LF A, but which in no event shall the cure
period exceed a total of ninety (90) days unless Franchisee demonstrates to LF A in good faith that
additional delay is unavoidable.
13.3. Public Hearing: In the event that Franchisee fails to respond to the written
notice described in Section 13.1 pursuant to the procedures set forth in Section 13.2, or in the event
that the alleged default is not remedied within thirty (30) days or the extension date granted by
LF A pursuant to Section 13.2(iii) above, if LF A intends to continue its investigation into the
default, then LF A shall schedule a public hearing. LF A shall provide Franchisee at least thirty (30)
calendar days prior written notice of such hearing, which will specify the time, place and purpose
of such hearing, and provide Franchisee the opportunity to be heard.
13.4. Enforcement: Subject to applicable federal and state law, in the event LF A,
after the hearing set forth in Section 13.3, determines that Franchisee is in default of any provision
of the Franchise, LFA may:
13.4 .1. Seek specific performance of any provision, which reasonably lends
itself to such remedy, as an alternative to damages; or
13.4.2. Commence an action at law for monetary damages or seek other
equitable relief: or
13.4.3. In the case of a substantial material default of a material provision of
the Franchise, seek to revoke the Franchise in accordance with Section 13.5.
13.5. Revocation: Should LFA seek to revoke the Franchise after following the
procedures set forth in Sections 13.1 through 13.4 above, LF A shall give written notice to
Franchisee of its intent. The notice shall set forth the exact nature of the noncompliance.
Franchisee shall have twenty (20) business days from such notice to object in writing and to state
its reasons for such objection. In the event LF A has not received a satisfactory response from
Franchisee, it may then seek termination of the Franchise at a public hearing. LF A shall cause to
be served upon Franchisee, .at least ten (10) business days prior to such public hearing, a written
notice specifying the time and place of such hearing and stating its intent to revoke the Franchise.
13.5.1. At the designated hearing, Franchisee shall be provided a fair
opportunity for full participation, including the right to be represented by legal counsel, to
introduce relevant evidence, to require the production of evidence, and to question and/or cross
examine witnesses. Franchisee shall be allowed to record a verbatim record and/or transcript of
such hearing at Franchisee's sole cost and expense and Franchisee shall provide a copy thereof to
LFA within thirty (30) days of Franchisee's receipt thereof.
21
13.5.2. Following the public hearing, Franchisee shall be provided up to
twenty (20) business days to submit its proposed findings and conclusions in writing and thereafter
LF A shall determine (i) whether an Event of Default has occurred; (ii) whether such Event of
Default is excusable; and (iii) whether such Event of Default has been cured or will be cured by
Franchisee. LF A shall also determine whether to revoke the Franchise based on the information
presented, or, where applicable, grant additional time to Franchisee to effect any cure. If LF A
determines that ~he Franchise shall be revoked, LF A shall promptly provide Franchisee with a
written decision setting forth its reasoning. Franchisee may appeal such determination of LF A to
an appropriate court, which shall have the power to review the decision of LF A de novo as may be
permitted by law. Franchisee shall be entitled to such relief as the court finds appropriate.
13.5.3. LFA may, at its sole discretion, take any lawful action which it
deems appropriate to enforce LF A's rights under the Franchise in lieu of revocation of the
Franchise.
13.6 Franchisee Termination: Franchisee shall have the right to terminate this Franchise
and all obligations hereunder within ninety (90) days after the end of three (3) years from the
Effective Date of this Franchise, if at the end of such three (3) year period Franchisee does not then
in good faith believe it has achieved a commercially reasonable level of Subscriber penetration on
its Cable System. Franchisee may consider Subscriber penetration levels outside the Franchise
Area in this determination. l'-.Jotice to terminate under this Section 13.6 shall be given to the City in
writing, with such terminat;on to take effect no sooner than one hundred and twenty (120) days
after giving such notice. Franchisee shall also be required to give its then current Subscribers not
less than ninety (90) days prior written notice of termination.
14. MISCELLANEOUS PROVISIONS
14.1. Recoupment of Costs by LF A: Franchisee shall bear all reasonable costs of
publication that may be required by law, by this Agreement or by action of the City of Wylie's City
Council.
14.2. Actions of Parties: In any action by LF A or Franchisee that is mandated or
pem1itted under the terms hereof, such party shall act in a reasonable, expeditious, and timely
manner. Furthermore, in any instance where approval or consent is required under the terms
hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned.
14.3. Rate Regulation: If, during the term of this Franchise, Franchisee is not
subject to effective competition and federal law or regulation permits LF A to regulate Franchisee's
rates for Basic Services under such circumstances, LF A reserves the right to regulate such rates
consistent with law.
14.4. Binding Acceptance: This Franchise shall bind and benefit the parties
hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees,
successors and assigns, and the promises and obligations herein shall survive the expiration date
hereof.
22
14.5. Preemption: In the event that federal or state law, rules, or regulations
preempt a provision or limit the enforceability of a provision of this Franchise, the provision shall
be read to be preempted to the extent, and for the time, but only to the extent and for the time,
required by law. In the event such federal or state law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed so that the provision hereof that had been preempted is
no longer preempted, such provision shall thereupon return to full force and effect, and shall
thereafter be binding on the parties hereto, without the requirement of further action on the part of
LF A or Franchisee.
14.6. Force Majeure: Franchisee and LF A_shall not be held in default under, or
in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty
relating to noncompliance or default, where such noncompliance or alleged defaults occurred or
were caused by a Force Majeure.
14.6.1. Furthermore, the parties hereby agree that it is not LFA's intention
to subject Franchisee to penalties, fines, forfeitures or revocation of the Franchise for violations of
the Franchise where the violation was a good faith error that resulted in no or minimal negative
impact on Subscribers, or where strict performance would result in practical difficulties and
hardship being placed upon Franchisee which outweigh the benefit to be derived by LF A and/or
Subscribers. Nothing in this paragraph shall be construed as waiving any rights of LF A existing
under this Agr~ement or under law.
: 4.7. Notices: Unless otherwise expressly stated herein, notices required under
the Franchise shall be transmitted via certified mail to the addresses below. Mailed notices are
assumed received three (3) business days after mailing. The address below is the address for
mailing of such notice, unless a party changes its contract information by providing written notice
to the other party.
14.7.1. Notices to Franchisee shall be mailed via certified mail to:
Steve Banta
Verizon - Group President, NW and SW
600 Hidden Ridge
HQE04GO
Irving, TX 75038
With a copy to:
Randal Milch
Senior VP and Deputy General Counsel
1 095 Avenue of Americas
New York, NY 92223
14.7.2 Notices to LFA shall be mailed via certified mail to:
Attn: City Manager
City of Wylie
23
2000 Highway 78 North
Wylie, Texas 75098
14.8 Entire Agreement: This Franchise and the Exhibits hereto constitute the
entire agreement between Franchisee and LF A and all Exhibits are incorporated as iffully set forth
in the body of this Agreement. Amendments to this Franchise shall be mutually agreed to in
writing by the parties.
14.9 Captions: The captions and headings of articles and sections throughout this
Agreement are intended solely to facilitate reading and reference to the sections and provisions of
this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement.
14.10 Severability: If any section, subsection, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent
jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such
determination shall have no effect on the validity of any other section, subsection, sentence,
paragraph, term or provision hereof, all of which will remain in full force and effect for the term of
the Franchise.
14.11 Recitals: The recitals set forth in this Agreement are incorporated into the
body of this Agreement as if they had been originally set forth herein.
14.12 Modification. This Franchise shall not be modified except by written
instrument executed by both parties.
) 4.13 FTTP Network Transfer Prohibition. Under no circumstance including
without limitation upon expiration, revocation, termination, denial of renewal of the Franchise or
any other action to forbid or disallow Franchisee from providing Cable Services, shall Franchisee
or its assignees be required to sell any right, title, interest, use or control of any portion of
Franchisee's FTTP Network including without limitation any spectrum capacity used for Cable
Service or otherwise, to LF A or any third party. Franchisee shall not be required to remove the
FTTP Network(s) or to relocate the FTTP Network(s) as a result of revocation, expiration,
termination, denial of renewal or any other action to forbid or disallow Franchisee from providing
Cable Services.
14.14 Acceptance of Franchise
Within thirty (30) days from the Effective Date of this Franchise, Franchisee shall file with
LFA's City Secretary a written statement in the following form signed in its name and behalf:
"To the Honorable Mayor and City Council of the City
of Wylie, Texas: For itself, its successors, and assigns,
GTE Southwest, Inc. d/b/a Verizon Southwest, a
corporation duly authorized to do business in the State
of Texas, hereby accepts the attached franchise and
agrees to be bound by all of its terms, conditions, and
provisions. Acceptance of this franchise by
24
Franchisee shall not constitute a waiver by it of any of
its rights; however, Franchisee acknowledges that the
terms of this franchise are contractual and not merely
recitals and that Franchisee shall be bound by the terms
and conditions stated herein."
GTE Southwest, Inc. d/b/a Verizon Southwest
BY~ ~Q
Its: CtC:51{)€N~
Dated this the 4'/41 day of f e-(o r (,Ul (Y ,2005
14.15 Sovereign Immunity. The parties agree that LF A has not waived its
sovereign immunity as to third parties by entering into and performing its obligations under
this Franchise.
15. pue WAIVER
This Agreement shdl be void and Verizon shall not be obligated to provide Cable Service
in the City of Wylie, Texas pursuant to the terms hereunder in the event that a court reverses the
effect ofVerizon's October 13,2004 Waiver (Docket No. 29879) of 962.072 of The Public Utility
Regulato:'y Ac' ("PURA"), Tex. UtiI. Code. Ann. 99 11.001-64.158 (Vernon 1998 & Supp. 2004)
granted by the Public Utilit~v Commission of Texas.
[execution page follows]
25
AGREED TO THIS 26th DAY OF January, 2005.
CITY OF WYLIE, TEXAS
By:
l~ 0. t?tl
Mark B. Roath
Title: City Manager
Acknowledgments:
State of Texas S
County of Collin S
This instrument was acknowledged before me on the 26th day of January, 2005 by
Mark B. Roath of the CITY OF WYLIE on behalf of said corporation.
e CAROLE '"RUC" ~~~
Notary Public, State of Texas
· 'Ji · Commlu'on "pf'.. Notary Public -. !:rOT the
AUGUST 03, 2006 State of Texas
GTE SOUTHWEST, INC. d/b/a/ VERlZON SOUTHWEST
BY:~~
Title: 7~rSI OEvV"--
Acknowledgments:
State of Texas S
County of Collin S
-
This instrument was acknowledged before me on the ~day of t-di;rllil% '
2005 by 3te.-ve." '&t.~ ,:Pfe~lcieid of GTE SOUTHWEST, C.
d/b/a VERIZON SOUTHWEST, on behalf of said corporation.
G . oJu~
Not~ubliC in d for the
State of Texas
<; ~VED
lJ,ttorney
Date~ lOr
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'''t:rl~t1~''\''
ELIZABETH J. CHIlDRESS
MY COMMISSION EXPIRES
March 15, 2005
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EXHIBIT B
MUNICIP AL BUILDINGS TO BE PROVIDED
FREE CABLE SERVICE
(All Locations are in Wylie, Texas 75098, except as noted below)
Municipal Complex
2000 Highway 78 North
Fire Administration
801-A Highway 78 South #204
Fire Station #1
1400 South Ballard Street
Fire Station #2
555 Country Club Drive/FM1378
Public Works Service Center
949 Hensley Lane
Smith Public Library & Akin Pavilion
800 Thomas Street
Bart Peddicord Community Center
100 West Oak Street
P.M. Akin Elementary
1100 Springwood
T.F. Birn1ingham Elementary
700 West Brown
Cheri L. Cox Elementary
7009 Woodbridge Parkway
Sachse, Texas 75048
Dodd Elementary
1500 Park Boulevard
R.V. Groves Elementary
1100 McCreary Road
R.F. Hartman Elementary
510 South Birmingham Street
Bill F. Davis Intermediate
950 Park Boulevard
Ab Harrison Intermediate
1001 South Ballard Street
Grady Burnett Junior High
516 Hilltop Lane
Frank McMillan Junior High
1050 Park Boulevard
Wylie High
2250 West FM 544
Wylie ISD Administration Building
951 South Ballard Street
28
Education Channel:
EXHIBIT C
EG CHANNELS
(Point of Origination for EG Programming)
Wylie Independent School District
Wylie, Texas 75098
Government Channels:
Dedicated (TBD)
Reserved (TBD)
29
EXHIBIT D
CUSTOMER SERVICE STANDARDS
These standards shall, starting six (6) months after the Beginning Service Date, apply to
Franchisee to the extent it is providing Cable Services over the Cable System in the Franchise area.
1. DEFINITIONS: In addition to the definitions contained in this Franchise, the following
words shall have the meanings set forth below when used in this Exhibit D:
A. Normal Business Hours: Those hours during which most similar businesses in the
community are open to serve customers. In all cases, "normal business hours" must
include some evening hours at least one night per week and/or some weekend hours
and include being open to serve customers at least eight (8) hours each weekday.
B. Normal Operating Conditions: Those service conditions which are within the
control of Franchisee. Those conditions which are not within the control of
Franchisee 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 Franchisee include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance, installation, expansion
or rebuild of the Cable System. See 47 C.F.R. S 309(c)(4)(ii).
C. Respond: Franchisee's investigation of a Service Interruption initiated by
receiving a Subscriber call and opening a trouble ticket, if required
D. Service Call: The action taken by Franchisee to correct a Service Interruption the
effect of which is limited to an individual Subscriber.
E. Service Interruption: The loss of picture or sound on one or more cable channels.
F. Significant Outage: A significant outage of the Cable Service shall mean any
Service Interruption lasting at least four (4) continuous hours that affects at least ten
percent (10%) of the Subscribers in the Service Area.
G. Standard Installation: Installations where the Subscriber is within one hundred
fifty (150) feet of trunk or feeder lines.
2. TELEPHONE AVAILABILITY
A. Franchisee shall maintain a toll-free number to receive all calls and inquiries from
Subscribers in the Franchise Area and/or residents regarding Cable Service. Franchisee
representatives trained and qualified to answer questions related to Cable Service in the Service
Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day,
30
seven (7) days a week, and other inquiries at least forty-five (45) hours per week. Franchisee
representatives shall identify themselves by name when answering this number.
B. Franchisee's telephone numbers shall be listed, with appropriate description (e.g.
administration, customer service, billing, repair, etc.), in the directory published by the local
telephone company or companies serving the Service Area, beginning with the next publication
cycle after acceptance of this Franchise by Franchisee and appear on Subscriber bills.
C. Franchisee may use an Automated Response Unit ("ARU") or a Voice Response
Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the
Subscriber does not enter an option, the menu will default to the first tier menu of English options.
After the first tier menu (not including a foreign language rollout) has run through three
times, if customers do not select any option, the ARU or VRU will forward the call to a queue for
a live representative. Franchisee may reasonably substitute this requirement with another method
of handling calls from customers who do not have touch-tone telephones.
D. Under Normal Operating Conditions, calls received by Franchisee shall be
answered within thirty (30) seconds. Franchisee shall meet this standard for ninety percent (90%)
of the calls it receives at all call centers receiving calls from Subscribers, as measured on a
cumulative quarterly calendar basis. Measurement of this standard shall include all calls received
by Franchisee at all call centers receiving calls from Subscribers, whether they are answered by a
live representative, by an automated attendant, or abandoned after 30 seconds of call waiting.
E. Under Normal Operating Conditions, callers to Franchisee shall receive a busy
signal no more than three (3%) percent of the time during any calendar quarter.
F. At Franchisee's option, the measurements and reporting above may be changed
from calendar quarters to billing or accounting quarters. Franchisee shall notify LF A of such a
change at least thirty (30) days in advance of any implementation.
3. INSTALLATIONS AND SERVICE APPOINTMENTS
A. All installations will be in accordance with FCC rules, including but not limited to,
appropriate grounding, connection of equipment to ensure reception of Cable Service, and the
provision of required consumer information and literature to adequately inform the Subscriber in
the utilization of Franchisee-supplied equipment and Cable Service.
B. The Standard Installation shall be performed within seven (7) days after the
placement of the Optical Network Terminal ("ONT") on the customer's premises.
Franchisee shall meet this standard for ninety-five percent (95%) ofthe Standard
Installations it performs, as measured on a calendar quarter basis, excluding customer requests for
connection later than seven (7) days after ONT placement.
31
C. Franchisee will offer Subscribers "appointment window" alternatives for arrival to
perform installations, Service Calls and other activities of a maximum four (4) hours scheduled
time block during appropriate daylight available hours, usually beginning at 8:00 AM unless it is
deemed appropriate to begin earlier by location exception. At Franchisee's discretion, Franchisee
may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if
agreeable to the Subscriber. These hour restrictions do not apply to weekends.
4. SERVICE INTERRUPTIONS AND OUTAGES
A.
Service.
Franchisee shall promptly notify LF A of any Significant Outage of the Cable
B. Franchisee shall exercise commercially reasonable efforts to limit any Service
Interruption for the purpose of maintaining, repairing, or constructing the Cable System. Except in
an emergency or other situation necessitating a more expedited or alternative notification
procedure, Franchisee may schedule a Significant Outage for a period of more than four (4) hours
during any twenty-four (24) hour period only after LF A and each affected Subscriber in the
Service Area have been given fifteen (15) days prior notice of the proposed Service Interruption.
C. Franchisee representatives who are capable of responding to Service Interruptions
must be available to Respond twenty-four (24) hours a day, seven (7) days a week.
D. Under Normal Operating Conditions, Franchisee must Respond to a call from a
Subscriber regarding a Service Interruption or other service problems within the following time
frames:
(1) Within twenty-four (24) hours, including weekends, of receiving subscriber
calls respecting Service Interruptions in the Service Area;
(2) Franchisee must begin actions to correct all other Cable Service
problems the next business day after notification by the Subscriber or LF A of a Cable Service
problem.
E. Under Normal Operating Conditions, Franchisee shall complete Service
Calls within seventy-two (72) hours of the time Franchisee commences to Respond to the Service
Interruption, not including weekends and situations where the Subscriber is not reasonably
available for a Service Call to correct the Service Interruption within the seventy-two (72) hour
period.
F. Franchisee shall meet the standard in Subsection E. ofthis Section for ninety
percent (90%) of the Service Calls it completes within the Service Area, as measured on a
quarterly basis.
G. Under Normal Operating Conditions, Franchisee shall provide a credit upon
Subscriber request when all Channels received by that Subscriber are out of service for a period of
four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount
32
of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber
must promptly report the problem and allow Franchisee to verify the problem if requested by
Franchisee. If Subscriber availability is required for repair, a credit will not be provided for such
time, if any, that the Subscriber is not reasonably available.
H. Under Normal Operating Conditions, if a Significant Outage affects all Video
Programming Cable Services for more than twenty-four (24) consecutive hours, Franchisee shall
issue an automatic credit to the affected Subscribers in the amount equal to their monthly recurring
charges for the proportionate time the Cable Service was out, or a credit to the affected Subscribers
in the amount equal to the charge for the basic plus enhanced basic level of service for the
proportionate time the Cable Service was out, whichever is technically feasible or, if both are
technically feasible, as determined by Franchisee provided such determination is
non-Discriminatory. Such credit shall be reflected on Subscriber billing statements within the
next available billing cycle following the outage.
1. With respect to service issues concerning Cable Services provided to LF A facilities,
Franchisee shall Respond to all inquiries from LF A within four (4) hours and shall commence
necessary repairs within twenty-four (24) hours under Normal Operating Conditions. If such
repairs cannot be completed within twenty-four (24) hours, Franchisee shall notify LF A in writing
as to the reason( s) for the delay and provide an estimated time of repair.
5. CUSTOMER COMPLAINTS
Under Normal Operating Conditions, Franchisee shall investigate Subscriber
complaints referred by LF A within seventy-two (72) hours. Franchisee shall notify LF A of those
matters that necessitate an excess of seventy-two (72) hours to resolve, but those matters must be
resolved within fifteen (15) days ofthe initial complaint. LF A may require reasonable
documentation to be provided by Franchisee to substantiate the request for additional time to
resolve the problem. For purposes of this Section, "resolve" means that Franchisee shall perform
those actions, which, in the normal course of business, are necessary to investigate the
Subscriber's complaint and advise the Subscriber of the results of that investigation.
6. BILLING
A. Subscriber bills must be itemized to describe Cable Services purchased by
Subscribers and related equipment charges. Bills shall clearly delineate activity during the billing
period, including optional charges, rebates, credits, and aggregate late charges. Franchisee shall,
without limitation as to additional line items, be allowed to itemize as separate line items,
Franchise fees, taxes and/or.other governmentally imposed fees. Franchisee shall maintain records
of the date and place of mailing of bills.
B. Every Subscriber with a current account balance sending payment directly to
Franchisee shall be given at least twenty (20) days from the date statements are mailed to the
Subscriber until the payment due date.
33
C. A specific due date shall be listed on the bill of every Subscriber whose account is
current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however,
the current portion of that bill shall not be considered past due except in accordance with 6.B.
above.
D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the
option of withholding the disputed amount without disconnect or late fee being assessed until the
dispute is resolved provided that:
(1) The Subscriber pays all undisputed charges;
(2) The Subscriber provides notification ofthe dispute to Franchisee prior to the due date;
and
(3) The Subscriber cooperates in determining the accuracy and/or appropriateness of the
charges in dispute.
(4) It shall be within Franchisee's sole discretion to determine when the dispute has been
resolved.
E. Under Normal Operating Conditions, Franchisee shall initiate investigation and
resolution of all billing complaints received from Subscribers within five (5) business days of
receipt of the complaint. Final resolution shall not be unreasonably delayed.
F. Franchisee shall provide a telephone number and address on the bill for
Subscribers to contact Franchisee.
G. Franchisee shall forward a copy of any Cable Service related billing inserts or other
mailing sent to Subscribers to LF A upon request.
H. Franchisee shall provide all Subscribers with the option of paying for Cable Service
by check or an automatic payment option where the amount of the bill is automatically deducted
from a checking account designated by the Subscriber. Franchisee may in the future, at its
discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit
history, at the option of Franchisee, the payment alternative may be limited.
7. DEPOSITS. REFUNDS AND CREDITS
A. Franchisee may require refundable deposits from Subscribers with 1) a poor credit
or poor payment history, 2) who refuse to provide credit history information to Franchisee, or 3)
who rent Subscriber equipment from Franchisee, so long as such deposits are applied on a
non-Discriminatory basis. The deposit Franchisee may charge Subscribers with poor credit or poor
payment history or who refuse to provide credit information may not exceed an amount equal to an
average Subscriber's monthly charge multiplied by six (6). The maximum deposit Franchisee may
charge for Subscriber equipment is the cost of the equipment which Franchisee would need to
purchase to replace the equipment rented to the Subscriber.
34
B. Franchisee shall refund or credit the Subscriber for the amount ofthe deposit
collected for equipment, which is unrelated to poor credit or poor payment history, after one year
and provided the Subscriber has demonstrated good payment history during this period.
Franchisee shall pay interest on other deposits if required law.
C. Under Normal Operating Conditions, refund checks will be issued within next
available billing cycle following the resolution of the event giving rise to the refund, (e.g.
equipment return and final bill payment).
D. Credits for Cable Service will be issued no later than the Subscriber's next available
billing cycle, following the determination that a credit is warranted, and the credit is approved and
processed. Such approval and processing shall not be unreasonably delayed.
E. Bills shall be considered paid when appropriate payment is received by Franchisee
or its' authorized agent. Appropriate time considerations shall be included in Franchisee's
collection procedures to assure that payments due have been received before late notices or
termination notices are sent.
8. RATES, FEES AND CHARGES
A. Franchisee shall not, except to the extent expressly permitted by law, impose any
fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance
work related to Franchisee equipment necessary to receive Cable Service, except where such
problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a
situation in which the Subscriber reconnects Franchisee equipment incorrectly) or by the failure of
the Subscriber to take reasonable precautions to protect Franchisee's equipment (for example, a
dog chew).
B. Franchisee shall provide reasonable notice to Subscribers ofthe possible
assessment of a late fee on bills or by separate notice.
9. DISCONNECTION /DENIAL OF SERVICE
A. Franchisee shall not terminate Cable Service for nonpayment of a delinquent
account unless Franchisee provides a notice ofthe delinquency and impending termination at least
ten (10) days prior to service suspension and twenty (20) days prior to the proposed final
termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The
notice of delinquency and impending termination may be part of a billing statement.
B. Cable Service terminated in error must be restored without charge within
twenty-four (24) hours of notice. If a Subscriber was billed for the period during which Cable
Service was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption
was reported by the Subscriber.
35
C. Nothing in these standards shall limit the right of Franchisee to deny Cable Service
for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft
of Cable Service, damage to Franchisee's equipment, abusive and/or threatening behavior toward
Franchisee's employees or representatives, or refusal to provide credit history information or
refusal to allow Franchisee to validate the identity, credit history and credit worthiness via an
external credit agency.
D. Charges for cable service will be discontinued at the time ofthe requested
termination of service by the Subscriber, except equipment charges may by applied until
equipment has been returned. No period of notice prior to requested termination of service can be
required of Subscribers by Franchisee. No charge shall be imposed upon the Subscriber for or
related to total disconnection of Cable Service or for any Cable Service delivered after the
effective date of the disconnect request, unless there is a delay in returning Franchisee equipment
or early termination charges apply pursuant to the Subscriber's service contract. If the Subscriber
fails to specify an effective date for disconnection, the Subscriber shall not be responsible for
Cable Services received after the day following the date the disconnect request is received by
Franchisee. For purposes of this subsection, the term "disconnect" shall include Subscribers who
elect to cease receiving Cable Service from Franchisee.
10. COMMUNICATIONS WITH SUBSCRIBERS
A. All Franchisee personnel, contractors and subcontractors contacting Subscribers or
potential Subscribers outside the office of Franchisee shall wear a clearly visible identification
card bearing their name and photograph. Franchisee shall make reasonable effort to account for all
identification cards at all times. In addition, all Franchisee representatives shall wear appropriate
clothing while working at a Subscriber's premises. Every service vehicle of Franchisee and its
contractors or subcontractors shall be clearly identified as such to the public. Specifically,
Franchisee vehicles shall have Franchisee's logo plainly visible. The vehicles of those contractors
and subcontractors working for Franchisee shall have the contractor's / subcontractor's name plus
markings (such as a magnetic door sign) indicating they are under contract to Franchisee.
B. All contact with a Subscriber or potential Subscriber by a Person representing
Franchisee shall be conducted in a courteous manner.
C. Franchisee shall send annual notices to all Subscriber informing them that any
complaints or inquiries not satisfactorily handled by Franchisee may be referred to LF A.
D. All notices identified in this Section shall be by either:
(1) A separate document included with a billing statement or included on the
portion of the monthly bill that is to be retained by the Subscriber; or
(2) A separate electronic notification
E. Franchisee shall provide reasonable notice to Subscribers of any pricing changes
(excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in
36
Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum
of thirty (30) days in advance of such changes if within the control of Franchisee, and Franchisee
shall provide a copy of the notice to LF A including how and where the notice was given to
Subscribers.
F. Franchisee shall provide information to all Subscribers about each ofthe following
items at the time of installation of Cable Services, annually to all Subscribers, at any time upon
request, and, subject to Subsection 10.E., at least thirty (30) days prior to making significant
changes in the information required by this Section if within the control of Franchisee:
(1) Products and Cable Service offered;
(2) Prices and options for Cable Services and condition of subscription to Cable
Services. Prices shall include those for Cable Service options, equipment rentals,
program guides, installation, downgrades, late fees and other fees charged by
Franchisee related to Cable Service;
(3) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's in-home wiring rights during the period Cable
Service is being provided;
(4) Channel positions of Cable Services offered on the Cable System;
(5) Complaint procedures, including the name, address and telephone number
of LF A, but with a notice advising the Subscriber to initially contact Franchisee about
all complaints and questions;
(6) Procedures for requesting Cable Service credit;
(7) The availability of a parental control device;
(8) Franchisee practices and procedures for protecting against invasion of
privacy; and
(9) The address and telephone number of Franchisee's office to which
complaints may be reported.
A copy of notices required in this Subsection 10.F., will be given to LFA at least fifteen
(15) days prior to distribution to Subscribers if the reason for notice is due to a change that is
within the control of Franchisee and as soon as possible if not with the control of Franchisee.
G. Notices of changes in rates shall indicate the Cable Service new rates and old rates,
if applicable.
H. Notices of changes of Cable Services and/or Channel locations shall include a
description of the new Cable Service, the specific channel location, and the hours of operation of
37
the Cable Service ifthe Cable Service is only offered on a part-time basis. In addition, should the
channel location, hours of operation, or existence of other Cable Services be affected by the
introduction of a new Cable Service, such information must be included in the notice.
1. Every notice of termination of Cable Service shall include all of the following
information:
(1) The name and address of the Subscriber whose account is delinquent;
(2) The amount of the delinquency;
(3) The date by which payment is required in order to avoid termination of Cable Service;
and
(4) The telephone number for Franchisee where the Subscriber can receive additional
information about their account and discuss the pending termination.
38
EXHIBIT E
FRANCHISE FEE SCHEDULEIREPORT
For the Month of
1.
2.
3.
4.
Less:
Monthly Recurring Cable Service Charges
(e.g., Basic, Enhanced Basic, Premium and Equipment Rental)
U sage Based Charges
(e.g, Pay Per View, Installation)
Other Misc.
Revenue
(e.g., Late Charges, Advertising, Leased Access)
Franchise Fees Collected
1.
Sales Tax Collected
$
2.
Uncol1ectibles
$
Total Roxeipts Subject to Franchise Fee Calculation
Franchise Fee Rate (5%)
Franchise Fee Due
39
$
$
$
$
$
$
$
THE WYLIE NEWS
t:overmg Wylie, Sachse, Murphy and the surroundmg area
110 N. Ballard
P.O. Box 369
Wylie, Texas 75098
(972) 442-5515
Fax (972) 442-4318
STATE OF TEXAS
COUNTY OF COLLIN
Before me, the undersigned authority, on this day personally appeared Chad Engbrock, publisher of
The Wylie News, a newspaper regularly published in Collin County, Texas and having general
circulation in Collin County, Texas, who being by me duly sworn, deposed and says that the
foregoing attached
City of Wylie
Ord. No. 2005-05, Ord. No. 2005-06,
Ord. No. 2005-07, Ord. No. 2005-08
was published in said newspaper on the following date(s), to-wit: Feb. 2, 2005
~
Chad Engbrock, Publisher
Subscribed and sworn before me on this, the (M
day of ~~
, 2005
to certify which witness my hand and seal of office.
~~..~;.~
(:(:f\~'
~j.' ~):,l
..,...............:::0/
.~::...
ADA L. MOONEY
Notary Public
State of Texas
My Oomm Exp. 01-02,07
~X?JJ.
~otary Public in a~
The State of Texas
My commission expires 01102/07
RECtQ MAR 0 7 2005
..-- -~--- -~.-
r -.--------
Page ;'1 - Section C - C&S MEDIA PUBLICATIONS - February 2-3, 2005
Pub Ii c Notices Continued from page C 7
(
INVITATION FOR BIDS
The North Texas
Municipal Water District is
soliciting proposals for the
construction of the follow-
ing project:
Little Elm Pipeline
NTMWD Project No.
LEWCF 03-1
This project includes con-
struction of approximately
18,800 feet of 30" potable
water transmission
pipeline, connections to
existing pipelines, flow
meter vault and associated
yard piping, electrical and
instrumentation, and
appurtenances.
Proposals must be deliv-
ered to the President and
Board of Director~ of the
North Texas Municipal
Water District at 505 East
Brown Street, Wylie, Texas
75098 until 11:00 a.Ill.
local time, February 16,
2005 to be accepted. The
proposals will be publicly
opened and read aloud at
this time and place. Bids
received after this time will
be returned unopened.
Contract Documents may
be examined or purchased
at the offices of Freese and
Nichols, Inc., Consulting
Engineers at the following
address:
Freese and Nichols, Inc.
1701 North Market Street
Suite 500, LB51
Dallas, Texas 75202
Attention: Paul Lyons
The cost for Contract
Documents is $75 per set
for full-size documents and
$50 for half-size docu-
ments.
als are to be received, or at
the offices of Freese and
Nichols at the address list-
ed above. Contract
Documents are also on file
in the following Plan
Rooms:
McGraw Hill
Construction Dodge
9155 Sterling Street,
Suite 160
Irving, Texas 75063
Phone (972)819-1400
North Texas Construction
Reports
11325 Pegasus #233W
Dallas, TX 75238
Phone (214) 342-9200
Direct questions regarding
distribution of Contract
Documents for this project
to Mr. Paul Lyons, (214)
920-2500. Direct que
tions related to the desi
of the project to Mr.
Carleton Sherrer, P.E.,
(214) 920-2500 or Mr.
Nick Lester, E.Ii!T. '9't7)
735-7300. Wri ~'4ues-
tions may be su . d to
Freese and Nichols at the
address shown above or
you may fax questions to
(214) 920-2565 or email
questions to Mr. Sherrer
(jcs@freese.com).
Bidders must submit a
cashier's check, certified
check, or acceptable bid-
der's bond with their pro-
posal as a guarantee that
the Bidder will enter into a
contract for the project
with the Owner within fif-
teen (15) days of Notice of
Award of the contract.
The security must be
payable to the North Texas
Municipal Water District in
the amount of five percent
(5%) of the bid submitted.
Contractor must execute
the contract, bonds and
certificates of insurance on
OF NEW TARIFFS AS
FEBRUARY 1, 2005;
FINDING CITIES' RATE
CASE EXPENSES REA-
SONABLE; SEVERING
THE DETERMINATION
OF THE REASONABLE-
NESS OF COSERV GAS
LTD.'S RATE CASE
EXPENSE FROM
APPROVAL OF THE
REVISED TARIFFS;
RETAINING JURISDIC-
TION OVER THE
DETERMINATION OF
THE REASONABLE-
NESS OF COSERV GAS
NORTH TEXAS MUNIC- LTD.'S RATE CASE
IPALWATER DISTRICT EXPENSE ISSUE UNTIL
MARCH 1, 2005;
Joe Farmer ADOPTING A BASE
President, Board of RATE CASE MORATO-
rectors 37-3t-~_ RIUM; FINDING THAT
ANY RELIEF REQUEST-
ORDINANCE NO. D BY COSERV GAS
2005-05 LTD. NOT SPECIFICAL-
LY GRANTED HEREIN
IS DENIED; ADOPTING
A MOST FAVORED
NATIONS PROVISION;
FINDING THAT THE
MEETING AT WHICH
THIS ORDINANCE IS
PASSED IS OPEN TO
THE PUBLIC AS
REQUIRED BY LAW;
AND PROVIDING FOR
NOTICE OF THIS ORD~
NANCE TO COSERV
GAS LTD.
also
The North Texas
Municipal Water District
reserves the right to adopt
the most advantageous
interpretation of the bids
submitted in the case of
ambiguity or lack of clear-
ness in stating proposal
prices, to reject any or all
bids, and/or waive formali-
ties. Bids may not be with-
drawn within sixty (60)
days from date on which
bids are opened.
AN ORDINANCE OF
THE CITY OF WYLIE,
TEXAS GRANTING A
CABLE FRANCHISE
'GRANTED TO GTE
SOUTHWEST, INC.
D/B/A VERIZON
SOUTHWEST SETTING
FORTH THE TERMS
AND CONDITIONS TO
CONSTRUCT, OPER-
ATE, AND MAINTAIN A
CABLE SYSTEM IN THE
CITY OF WYLIE; AND
PROVIDING FOR AN
EFFECTIVE DATE.
ORDINANCE NO.
2005-06
AN ORDINANCE OF
THE CITY OF WYLIE,
TEXAS, FINDING THAT
THE CURRENT RATES
OF COSERV GAS LTD.
ARE UNREASONABLE;
APPROVING COSERV
GAS LTD.'S REVISED
AND UNCONTESTED
TARIFFS: APPROVING A
ORDINANCE NO.
2005-07
AN ORDINANCE
ADOPTING AND
ENACTING A NEW
CODE FOR THE CITY
OF WYLIE, TEXAS;
PROVIDING FOR THE
REPEAL OF CERTAIN
ORDINANCES NOT
INCLUDED THEREIN;
PROVIDING A PENAL-
TY FOR THE VIOLA-
TION THEREOF; PRO-
VIDING FOR THE MAN"