Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2003-2682 - Ordinance - 12/04/2003
ORDINANCE NO. 2682 A FRANCHISE ORDINANCE APPROVING A RENEWAL CABLE TELEVISION FRANCHISE WITH COX SOUTHWEST HOLDINGS, L.P. d/b/a COX COMMUNICATIONS, AND INCLUDING PROVISIONS FOR INSURANCE, REPORTS AND RECORDS, CONSUMER PRACTICES, CONSUMER PROTECTION MEASURES, CONSTRUCTION, AND CONSTRUCTION-RELATED PRACTICES, FRANCHISE FEES, AND OPERATION PROCEDURES, AND HEALTH, SAFETY, AND WELFARE MEASURES; PROVIDING AN EFFECTIVE DATE. WHEREAS, TCA Holdings II, L.P. d/b/a Cox Communications ("Cox"), the present holder of cable television franchise fights throughout the City of College Station ("City"), has notified the City of its desire to renew its franchise; and WHEREAS, TCA Holdings II, L.P., has requested City approval to assign the franchise and related rights and responsibilities to an affiliate, Cox Southwest Holdings, L.P., a Texas limited partnership, both of which partnerships are under common control, which approval City is willing to grant as set forth herein; and WHEREAS, with the resolution of certain issues, of which this franchise is a part, Cox's performance under its existing franchise has been satisfactory, has substantially complied with the material terms of the existing franchise and with applicable law; and WHEREAS, the City has determined that Cox's service has been reasonable in light of community needs; and WHEREAS, the public has had adequate notice and opportunity for comment on this proposed renewal franchise; and WHEREAS, The City has determined that this renewal cable television franchise is in the public interest and meets the cable television related community needs and interests of the City. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS. Section 1 Construction. This ordinance shall be construed in light of applicable Federal and State laws and regulations governing cable television. Section 2 Scope. This ordinance shall be effective within the geographical limits of the City, including any areas subsequently annexed by the City. Section 3 Severabilitv. If any word phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this ordinance, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect. The City declares that no invalid or proscribed provision or application was an inducement to this ordinance, and that it would have enacted this ordinance regardless of the invalid or proscribed provision or application. Section 4 Definitions. (1) "Additional lnsureds" shall have the meaning set forth in Section 11 (2). (2) "Basic Cable Television Service" means any service tier which includes the retransmission of local television broadcast signals. (3) "Bryan Channel" shall have the meaning set forth in Section 48. (4) "Cable Programming Service" shall have the meaning set forth in FCC Rule 76.901, 47 CFR Section 76.901. (5) "Cable System" or "System" shall mean Operator's system, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed and used to provide cable services which includes video programming to multiple subscribers within the City, but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way, (iii) a facility of a common carrier which is subject in whole or in part to the provisions of Title II of the Communications Act of 1934, as amended, except that such a facility shall be considered a Cable System to the extent such facility is used in the transmission of video programming directly to subscribers, except if the extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with 47 U.S.C. § 573; or (v) any facilities of any electric utility used solely for operating its electric utility systems. For the purpose of the preceding, the term "interactive on- demand services" means a service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include service providing video programming prescheduled by the programming provider. (6) "City" means the City of College Station, Texas or its lawful successor. (7) "City Manager" means City's manager, or his or her designee. (8) "Effective Date" shall have the meaning set forth in Section 54. (9) "EG Channels" shall have the meaning set forth in Section 48. (10) "FCC" or "Federal Communications Commission" means the Federal administrative agency, or lawful successor, authorized to oversee cable television and other multi- channel regulation on a national level. (11) "Force Majeure Event" shall mean (a) an event caused by riot, terrorism, war, earthquake, flood, unusually severe rain, dust storm, tornado or other catastrophic act of nature, governmental, administrative or judicial order or regulation or other event reasonably beyond the ability of Operator to anticipate or control, where (b) the event was not foreseeable, and (c) reasonable measures by Operator could not claims were caused by the event. have avoided or mitigated the effects it (12) "Franchise Fee" means the fee or charge that the City requires pursuant to Section 43 as payment for the privilege of using the streets, rights-of-way, public ways, and easements of the City in order to construct, maintain, and operate a cable television system. (13) "Franchise Ordinance" means this ordinance. (14) "Gross Revenues" means any and all revenues derived from the operation of the Cable System that are attributable to or occasioned by the grant of this Franchise Ordinance. However, "Gross Revenues" (a) does not mean any taxes imposed and/or assessed by law on subscribers (including State sales taxes), which a cable operator is obligated to collect and pay in full to the applicable authorities, but (b) (pursuant to City of Dallas v FCC, 118 F. 3d. 393 (Sth Cir. 1997)) does include Franchise Fees. (15) "Hazardous Substances" means polychlorinated biphenyls, asbestos and asbestos containing materials, and any material, substance or waste, which if released to the environment in amounts or concentrations above criteria established by any Federal, State or local laws and regulations, may result in harm to the public health or safety or adverse effects on the environment. (16) "Indemnitees" shall have the meaning set forth in Section 10. (17) "Multi-Channel prOvider Ordinance" February 13, 1992. means City ordinance number 1943 adopted (18) "Operator" means Cox Southwest Holdings, L.P., a Texas limited partnership d~/a Cox Communications. (19) "Pay Per View" means the delivery over the Cable System of audio and video signals in an unintelligible form for a set fee or cover charge and above the charge for standard or Basic Cable Television Service and in addition to any Premium Channel on a per event basis where said unintelligible or unusable form is made intelligible for viewing only to subscribers paying a separate fee or charge for the viewing of the event or events. (20) "Premium Channel" means the delivery over the Cable System of audio and video signals in an unintelligible form to subscribers for a monthly fee or charge (over and above the charge for standard or Basic Cable Television Service) on a per channel basis where said unintelligible or unusable form for viewing is made intelligible only to subscribers paying a separate fee or charge for the viewing or use of the signals. (21) "Prior Franchise" means the cable franchise approved in Ordinance No. 2058. (22) "Rate" means the monthly, bi-monthly, quarterly, semi-annual, annual, or other periodic price paid by a subscriber in order to receive cable service. (23) "Service Day" means those days the United States Post Office delivers regular mail (typically, Monday through Saturday, excluding Federal holidays). (24) "Service Outage" means the loss of picture or sound on all Basic Cable Television Service channels, or one (1) or more auxiliary programming channels (including tiers and Pay Per View programming), and which is not caused by the failure or malfunction of a subscriber's television receiver or by the error of the subscriber. Section 5 Failure of the City to Enforce this Ordinance. Operator shall not be excused from complying with any of the requirements of this Franchise Ordinance, or any subsequently adopted amendments to this Franchise Ordinance, by any failure of the City on any one (1) or more occasions to seek, or insist upon, compliance with such requirements or provisions. (2) This Ordinance and the fights and responsibilities it imposes on Operator may not be unilaterally amended without the prior written consent of Operator. Section 6 Effect of Subsequent Inconsistent Resolutions and Ordinances. Any amendments to the Multi-Channel Provider Ordinance, adopted after the effective date of this Franchise Ordinance shall not be applicable to the Operator until after the expiration of the term of this Franchise Ordinance. Section 7 Waiver of Multi-Channel Provider Ordinance. The Operator has requested, and City hereby grants a total exemption or waiver from sections 15, 16, 28, 42, 43, 44, 81, 92, 94, 106, 116, 118, 119 of the Multi-Channel Provider Ordinance. As such those sections of the Multi-Channel Provider Ordinance are inapplicable in their entirety to the Operator. (2) The Operator has requested partial relief and or clarification from sections 2, 5, 8, 10, 18, 26, 27, 29, 30, 31, 38, 39, 40, 41, 45, 47, 48, 49, 56, 57, 58, 59, 60, 61, 67, 68, 76, 77, 78, 79, 80, 82, 83, 90, 91, 93, 103, 104, 105, 107, 108, 109, 117 of the Multi-Channel Provider Ordinance. As such, to the extent that those sections of the Multi-Channel Provider Ordinance are in part or in whole, inconsistent with corresponding sections of this Franchise Ordinance then the inconsistent provisions of the Multi-Channel Provider Franchise Ordinance are deemed inapplicable to this Franchise Ordinance. (3) Those sections of the Multi-Channel Provider Ordinance not granted relief or exemption are, subject to Section 6 of this Franchise Ordinance, deemed applicable. Section 8 Resolution of Inconsistencies with Federal or State Rules, Re,relations or Laws. In any case of an actual inconsistency between any provision or section of this Franchise Ordinance, and any provision or section of a Federal or Texas role, regulation, or law, then the Federal or Texas role, regulation, or law shall not only supersede the effect of the Franchise Ordinance, but also control in any local application. This shall include Franchise Fees (other than the percentage rate used to determine them) decreasing or increasing so that they are paid at the maximum amount allowed by Federal law as from time to time in effect during the term of this Franchise Ordinance. Section 9 Notices. Both the City and Operator shall provide the other party with the name and address of the contact person designated to receive notices, filings, reports, records, documents, and other correspondence. All notices shall be delivered to each party's contact person by certified mail, remm receipt requested, personal service with a signed receipt of delivery, or overnight with receipt verification. All other filings, reports, records, documents, and other correspondence may be delivered by any permissible means including, but not limited to' facsimile transmission ("faxing"); personal service; overnight mail or package delivery; or delivery via cable. The delivery of all notices, reports, records, and other correspondence shall be deemed to have occurred at the time of receipt (unless otherwise designated by State law). Section 10 Indemnity. (1) Disclaimer of Liability: City shall not at any time be required to pay from its own funds for injury or damage occurring to any person or property from any cause whatsoever arising out of Operator's construction, reconstruction, maintenance, repair, use, operation, condition or dismantling of Operator's Cable System or Operator's provision of service. (2) Indemnification: Operator shall, at its sole cost and expense, indemnify, defend and hold harmless City and all associated, affiliated, allied and subsidiary entities of City, now existing or hereinafter created, and their respective officers, boards, commissions, councils, employees, agents, attorneys, and contractors (City and such other persons and entities being collectively referred to herein as "Indemnitees"), from and against: (a) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any act or omission of Operator, its personnel, employees, agents, contractors, subcontractors or affiliates, resulting in economic harm, personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, reconstruction, installation, operation, maintenance or condition of the Cable System or other property of Operator or its affiliates and any other facilities authorized by or permitted due to the issuance of this Franchise Ordinance (including those arising from any matter contained in or resulting from the transmission of programming over the Cable System, but excluding any programming provided by the Indemnitees which is transmitted over the Cable System); the provision of cable services or other services authorized by or permitted due to the issuance of this Franchise Ordinance, the release of Hazardous Substances, or; the failure to comply with any Federal, State or local statute, law, code, ordinance or regulation. (b) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert wimesses and other consultants), which are imposed upon, incurred by or asserted against the Indemnitees by reason of' any claim or lien arising out of work, labor, materials or supplies provided or supplied to Operator, its contractors or subcontractors, for the installation, construction, reconstruction, operation or maintenance of the Cable System (and any other facilities authorized by or permitted due to the passage of this Franchise Ordinance) or provision of cable services (or other services authorized by or permitted due to the passage of this Franchise Ordinance), and, upon the written request of City, Operator shall cause such claim or lien covering City's property to be discharged or bonded within thirty (30) days following such request. (c) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any financing or securities offering by Operator or its affiliates for violations of the common law or any laws, statutes, or regulations of the State of Texas or the United States, including those of the Federal Commission, whether by Operator or otherwise. Securities and Exchange (d) Operator's obligation to indemnify Indemnitees under this Franchise Ordinance shall not extend to claims, losses, and other matters covered hereunder that are caused or contributed to by the negligence of one or more Indemnitees. In such case the obligation to indemnify shall be reduced in proportion to the negligence of the Indemnitees. By entering into this Franchise Ordinance, City does not consent to suit, waive its governmental immunity or the limitations as to damages contained in the Texas Tort Claims Act. (3) Assumption of Risk: Operator undertakes and assumes for its officers, agents, contractors and subcontractors and employees (collectively "Operator" for the purpose of this Section), all risk of dangerous conditions, if any, on or about any City-owned or controlled property, the streets and public ways, and Operator hereby agrees to indemnify and hold harmless the Indemnitees against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person (other than from Indemnitees' gross negligence) arising out of Operator's installation, operation, maintenance or condition of the Cable System or other facilities or Operator's failure to comply with any Federal, State or local statute, law, code, ordinance or regulation. (4) Defense of Indemnitees' In the event any action or proceeding shall be brought against the lndemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Operator shall, upon notice from any of the Indemnitees, at Operator's sole cost and expense, resist and defend the same with legal counsel selected by Operator and consented to by City, such consent not to be unreasonably withheld; provided, however, that Operator shall not admit liability in any such matter on behalf of the Indemnitees without their written consent and provided further that Indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of Operator. (5) Notice, Cooperation and Expenses: The Indemnitees shall give Operator prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 10. Nothing herein shall be deemed to prevent the Indemnitees at their own expense from cooperating with Operator and participating in the defense of any litigation by their own counsel. Section 11 Insurance. (1) Insurance: During the term of this Franchise Ordinance, Operator shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance' (a) Worker's compensation insurance meeting Texas statutory requirements and employer's liability insurance with minimum limits of Two Million Dollars 10 ($2,000,000) for each accident, and any applicable Federal insurance (such as Jones Act) of a similar nature. (b) Commercial general liability insurance with minimum limits of Ten Million Dollars ($10,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall include coverage for: products and completed operations liability; independent contractor's liability; and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. (c) Pollution legal liability insurance (which provides coverage for sudden and accidental environmental contamination) with minimum limits of Five Million Dollars ($5,000,000) and providing coverage for claims discovered within three (3) years after the term of the policy. (d) Broadcasters liability coverage for loss or damage arising out of publications or utterances in the course of or related to advertising, broadcasting, telecasting or other communication activities conducted by or on behalf of Operator with minimum limits of Ten Million Dollars ($10,000,000) as the combined single limit for each occurrence. (e) Automobile liability insurance covering all owned, hired, and nonowned vehicles in use by Operator, its employees and agents to comply with the provisions of Texas law with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage. (f) All insurance policies other than those for worker's compensation and pollution legal liability insurance shall be written on an occurrence and not on a claims made basis. (g) The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. (h) All policies of insurance shall contain a waiver of subrogation clause consistent, however, with Section 10(2)(d). (2) Named Insureds: All policies, except for worker's compensation policies, shall name the "City of College Station, a municipal corporation of the State of Texas and all associated, affiliated, allied and subsidiary entities of City, now existing or hereafter created, and their respective officers, boards, commissions, councils, employees, agents, attorneys and contractors, as their respective interests may appear" as additional insureds (City and such other persons and entities being collectively referred to herein as the "Additional Insureds") and shall include cross-liability coverage. 11 (3) Evidence of Insurance: A certificate of insurance evidencing the preceding coverages is attached as Exhibit B. Certificates of insurance for each insurance policy required to be obtained by Operator in compliance with this Section, along with written evidence of payment of required premiums, shall be filed and maintained with City annually during the term of this Franchise Ordinance. Operator shall immediately advise the Additional Insureds of any claim or litigation that may result in liability to them. (4) Cancellation of Policies of Insurance' All insurance policies maintained pursuant to this Franchise Ordinance shall contain an endorsement in the form set forth on Exhibit C, or such subsequent form mutually agreed to between the parties, requiring prior written notice to be given to the City by the insurer of any intention to cancel or not renew such policy. (5) Insurance Companies: (a) All insurance shall be effected under valid and enforceable policies, insured by insurers licensed to do business by the State of Texas or surplus line carriers on the State of Texas Insurance Commissioner's approved list of companies qualified to do business in the State of Texas. (b) All insurance carriers and surplus line carriers shall be rated A- or better by A.M. Best Company. Should the rating of an insurance carrier fall below that set forth in the preceding sentence then Operator shall either immediately obtain policies from carriers complying with the preceding rating or the City may obtain at Operator's expense policies from carriers meeting the preceding rating requirement. (6) Deductibles' deductible). All insurance policies shall be written with a zero dollar deductible (no (7) Contractors: Operator shall either (a) require that each and every one of its contractors and their subcontractors carry, in full force and effect, workers' compensation, commercial general liability, pollution legal liability insurance, and automobile liability insurance which complies with all terms of this Section 11, or (b) Operator may provide such coverages for any or all its contractors or subcontractors (such as by adding them to Operator's policies). (8) Insurance Primary: As between the City and/or Additional Insureds on the one hand, and Operator on the other hand, if more than one policy of insurance does or may apply to a given claim or matter, then the policy maintained by Operator pursuant to this Franchise Ordinance shall be deemed the primary policy, and that policy shall contain a provision that states that it is the primary policy as opposed to any other policy of insurance that may apply to the City/Additional Insureds on any given claim or matter. The term "policy of insurance" as applied to the Additional Insureds shall include any self- insurance program, self-insured retention or deductible, or risk pooling program or an indemnification, defense, or other similar program purchased or maintained by the City/Additional Insureds. (9) Review of Limits' Once every year after 2004 during the term of this Franchise Ordinance, City may review the insurance coverages to be carried by Operator. If City 12 determines that higher limits of coverage are necessary to protect the health, safety or welfare of the public or the interests of the City or the Additional Insureds, Operator shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense. However, such higher limits of coverage shall not be more than twice the limits set forth above. Section 12 Fumishin~ of Revorts. (1) Operator shall timely submit those reports, Franchise Ordinance. statements, and logs required by this (2) Copies of renewal or replacement insurance policies or certificates shall be delivered to the City Manager at least fifteen (15) days before the expiration of the insurance which such policies are to renew or replace. Section 13 Books and Records. (1) Operator shall keep complete and accurate books of accounts, and records of the business and operations under, and in connection with the Cable System, provided however, that with respect to the obligation to maintain records related to Gross Revenues, Franchise Fees and the capital facilities grants set forth in Section 48, (1) such records shall be maintained for the preceding seven (7) years, and (2) Operator shall produce such records upon request by the City Manager or the accountant/business or financial expert described in Subsection (3) below. (a) Records for at least the preceding three (3) years shall be kept and produced at Operator's local office. (2) The City Manager shall have the right to review at Operator's local office all records, pertaining to City's regulation of Operator's cable operations in the City, on seven (7) days written notice. Also, Operator shall make available to the City Manager for review on seven (7) day advance written notice those records that pertain to its operation of the Cable System that may be required by any other Federal or State agency having jurisdiction over cable companies. Such review, unless mutually agreed upon, or judicially ordered, should occur within Operator's regular office hours. (3) The City shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of Operator. If after a financial audit it is determined that Operator has underpaid amounts owed to the City in excess of two percent (2%), then the City may require Operator to reimburse the City for the actual cost of the audit. Absent fraud, however, all audits shall be binding on the City. (4) A falsification of an entry into the books and/or records of Operator, made by Operator, of a material and substantial fact shall constitute a material violation of this Franchise 13 Ordinance. However, an erroneous entry, made in good faith, shall not constitute a violation of this Franchise Ordinance. Section 14 Cable Customer Service; FCC Customer Service Rules. (1) Operator shall comply with the cable customer service roles of the FCC which as of the date of this Franchise Ordinance appear at FCC Rules 76.309 and 76.1602, 1603 and 1619 being 47 C.F.R. § 76.309 and §§ 76.1602, 76.1603 and 76.1619. These roles are set forth in full in Exhibit A to this Franchise Ordinance. Upon request by the City Manager, Operator shall provide reports quarterly measuring on a consistent basis, fairly applied, its compliance with the standards of FCC Rules 47 CFR § 76.309(c)(1)(ii) and (iv), and 76.309(c)(2)(i), (ii), (iii), (iv) and (v). (2) Operator agrees that its signing the Acceptance attached to this Franchise Ordinance satisfies the requirement in the FCC Customer Service roles that the franchise authority provide affected cable operators ninety (90) days written notice of its intent to enforce the roles. Section 15 Notice of Customer's Contents. and Operator's Rights and Responsibilities; Minimum (1) In order to provide customers with the variety of information needed to make an informed decision, and to ensure that customers are notified of their, and the Operator's rights and responsibilities with respect to the Cable System, Operator shall provide customers with a written "Notice of a Customer's and Operator's Rights and Responsibilities." (2) Unless expressly prohibited by the State, Operator may comply with the "Notice" requirements by providing said "Notice" through newspaper publication or over the Cable System, on a channel clearly designated for the dissemination of such information - - (such a channel need not be solely designated for dissemination of such information, and may, in fact, be used at other times for any lawful purpose). (3) At the time Operator is required to furnish a "Notice", such "Notice" should contain the following: (a) (b) (c) (d) an up-to-date listing of services provided; notification of a subscriber's ability to purchase or lease, from the Operator, a lock box, parental control mechanism, or other device which will prohibit the viewing of a particular program service during a period selected by the subscriber; a listing and explanation of Rates and charges credit refund policy, connection and involuntary disconnection policies; the complaint resolution procedures; 14 (e) (0 (g) (h) a listing and explanation of billing options available (such as monthly, quarterly, or yearly, and/or discounts for pre-payments); the customer service office hours and telephone number(s); the method of securing a voluntary disconnection; and the equipment use and return policy together with any required security deposits. (4) The "Notice" shall be written in plain, simple understandable language. (5) The "Notice" may be delivered to a subscriber via an insert in the subscriber's periodic invoice, through a special mailing, by newspaper or publication or over a channel clearly designated for the dissemination of such information. Section 16 Billing Practices. (1) Whenever there is a change in Operator's billing practices or payment requirements, Operator shall notify subscribers not less than thirty (30) days prior to the effective date of such billing practices or payment requirements. (2) In any case where a subscriber requests a cancellation or reduction of service within thirty (30) days after the notification of a scheduled Rate or charge adjustment, then the subscriber's liability for the newly implemented Rate or charge shall cease from the moment that the Rate or charge adjustment becomes effective. Section 17 Billing Credit or Refunds for Service Outages,_ In_t.__e....rm.. ptions. Operator shall, upon request by a subscriber, provide that subscriber with a pro-rata credit for a Service Outage or interruption exceeding one Service Day in duration, provided that the outage is not caused or is not a result of matters beyond the immediate control of Operator. Section 18 Customer Service Hours; Capabilities of Customer Service Office; and Telephones. (1) Operator shall maintain a customer service office located within City or the City of Bryan which is easily accessible to customers. (2) The customer service office shall be open at least forty (40) hours per week (exclusive of holidays). (3) The customer service office should have an adequate and knowledgeable staff in order to handle the vast majority of customer service inquiries, specifically including, but not limited to: billing inquiries, refunds, Service Outages, equipment service and repair, payment of bills and other charges. (4) During any hours that the customer service office is open, Operator will make available in-house personnel to address a customer's inquiries. 15 (5) The rate of abandoned calls shall be less than five (5%) percent over a year's period of time. "Abandoned calls" shall in no event be deemed to include calls in which the caller hangs up within forty-five (45) seconds of making the call. Section 19 Preferential or Discriminatory Practices Prohibited. (1) Operator shall not, as to rules, regulations, Rates, charges, provision of service, or use of facilities and equipment, make, allow, or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage on the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location of residence. (2) Operator shall not deny cable service, or the extension of cable service, to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. (3) This Section, however, does not prohibit Operator from offering a promotional or incentive discount Rate or charge. (4) This Section does not prohibit Operator from denying service based on location of residence, if that residence is outside the parameters for line extension as detailed herein. (5) This Section, does not prohibit Operator from denying service to a subscriber who is more than thirty (30) days delinquent in the payment of any service bill. (6) This Section does not prohibit Operator from implementing a no-frills service tier for "lower income", and/or fixed income individuals. (7) This Section does not prohibit Operator from making agreements or entering into service agreements with multiple dwelling unit owners or commercial establishments (including hotel, motel, apartments, fraternities, sororities, and mobile home park owners) to provide service under a bulk billing or other type of arrangement. (8) City acknowledges that Operator's current practices, as of the date of this renewal, under its existing franchise are in compliance with this Section and with Section 621 of the Cable Act. Section 20 Use of Equipment, Return of Equipment, Security Deposits, ...a. nd their Return. (1) Operator may charge an appropriate security deposit provided that it shall comply with any, and all, applicable State roles concerning the imposition, retention, and return of security deposits and does not exceed the cost of replacement plus recovery. (2) Operator may charge an appropriate security deposit, which does not exceed twice the monthly fee, in those instances where a customer is re-connected after an involuntary disconnection for non-payment or prior history of unsatisfactory payment. 16 (3) Operator shall return a security deposit after the equipment is satisfactorily returned, or the subscriber maintains a satisfactory payment history (which is determined as no payment delinquencies within the preceding twelve (12) month period). (4) A customer shall totally and fully reimburse Operator for any damage or loss to any of Operator's equipment that is due to the customer's failure to properly maintain and operate such equipment. (5) A customer shall be relieved from any responsibility for reimbursing Operator for the repair of equipment which malfunctions or does not operate due to a hidden or latent defect in the equipment, or for equipment which fails to operate, or improperly operates due to natural occurrences conditioned by the normal wear and tear of such equipment, however, customer shall still be obligated to remm said equipment to Operator otherwise undamaged. Section 21 Service Logs. Operator shall be required to keep and maintain service logs, subject ~o any limitations imposed by State or Federal law, including any subscriber privacy limitations. (2) The purpose of the service logs is to assist the City in assessing (in the aggregate) the type, degree, and resolution of customer service requests, inquiries, and complaints. (3) In addition to any other right of inspection that the City may possess, the City Manager shall have the right to review and inspect a compilation of such logs, provided that Operator shall have no obligation to retain any log for more than three (3) years. However, the City shall not have the fight of access, review, or inspection for any service logs or any information contained within service logs that are otherwise protected from access, review, or inspection by State or Federal law. (4) This Section does not require Operator to maintain service logs on scheduled installations upgrades and changes of service. Section 22 Restoration of a Subscriber's Property. At any time Operator disturbs the yard, residence, or other real or personal property of a subscriber, Operator shall ensure that the subscriber's yard, residence, or other personal property is returned, replaced, and/or restored to a condition that is sufficiently comparable to the condition that existed prior to the disturbance. (2) The costs associated with both the disturbance and the return, replacement, and/or restoration shall be borne by Operator. (3) The requirements imposed upon Operator shall extend to any subcontractor or independent contractor that Operator might employ to perform the tasks outlined in this Section. 17 (4) Provided, however, Operator has the authority and responsibility to diligently trim trees of a private property owner (including a subscriber) which overhang or intrude into rights-of-way or easements, but only to the extent necessary to prevent the branches of the trees from coming in contact with Operator's Cable System or otherwise protect said Cable System. Section 23 Service Requests, Complaints, and Re..s. ponse Times. Operator shall schedule service calls and installations in accordance with the FCC cable customer service roles (a current copy of which is attached as Exhibit A). (2) In the case of a signal or service interruption, Operator shall respond, and make such repairs as are necessary and are capable of being made, to resume the signal or service to the subscriber within twenty four (24) hours from the time Operator first receives notification of the signal or service interruption. (3) In the case of a "blank" or "no-picture" situation of any given level of billing or service (except for Pay Per View events), Operator shall respond, and make such repairs as are necessary and are capable of being made, to remm the service within twenty four (24) hours from the time Operator first receives notification of the "blank" or "no-picture" situation. (4) In the case of a defective, improperly operating, or non-operating piece of equipment, Operator shall respond, and make such repairs as are necessary and are capable of being made, to correct the problem within forty-eight (48) hours from the time Operator first receives notification of the defective, improperly operating, or non-operating piece of equipment. (5) In no case shall a subscriber's service request or inquiry go un-responded or unattended to for more than one Service Day from the time Operator first receives notification of the service inquiry or request. Moreover, except in emergency situations, Operator shall handle or correct all requests within forty-eight (48) hours from the time Operator first receives notification. If a cancellation of a service call occurs, then Operator shall use its best efforts to re-schedule the call in a manner consistent with the guidelines expressed in this Section. (6) In case of a dispute concerning the precise time that Operator received notification, or the precise circumstances surrounding the Operator receiving the notification, or whether notification was received at all, the City shall reserve the fight and authority to settle such a dispute, provided, however, that Operator's regular business records shall be deemed clear evidence. (7) In the case of repair to a piece of equipment in a subscriber's residence, or repair to the cable (coaxial, fiber or its functional equivalent), the repair should be completed, and the situation resolved, at the conclusion of the first service visit. If the repair is not completed 18 and resolved within three (3) visits, and if as a result of the insufficient repair, a situation remains wherein there is a visually or audibly detected degradation of a multi-channel signal, then the Operator must immediately, and completely either replace all drop cable (coaxial, fiber or its functional equivalent), or isolate and correct the source of signal degradation in order to rectify the situation. (8) Operator may rank order service calls in order of severity. Total outages will take precedence over area outages, area outages take precedence over a single home; and a multichannel problem takes precedence over a single channel problem. Section 24 Operator Required to Maintain Sufficient Repair Parts and Sufficient Repair Personnel. Except in times of a natural or man-made emergency, Operator shall at all times, have access to, and be able to secure, sufficient maintenance and repair parts and equipment for the Cable System, so that Operator can respond to, and correct, all subscriber service interruptions within the time periods specified in this Franchise Ordinance. (2) Except in times of natural or man-made emergency, including severe weather conditions, or strike, Operator shall have sufficient maintenance and repair personnel, so that Operator can respond to, and correct, subscriber service interruptions within the time periods specified in this Franchise Ordinance. (3) Notwithstanding the other requirements and provisions contained in this Section, Operator shall maintain at least one (1) service technician on call twenty-four (24) hours per day. (4) Operator will keep copies of its training records at its office and shall make them available to the City upon request, to the extent permitted by law. Section 25 New Installations; Connections-Regular, Promotional, Seasonal,. Short-Term, and ..P. ay Per View; Re-Connections. (1) During non-rash periods new installations, promotional, short-term, or seasonal connections, re-connections, and upgrades of service by Operator shall be performed and completed within seven (7) days of a customer requesting such, if cable is built to the home. During rash periods new installations, promotional, short-term, or seasonal connections, re-connections, and upgrades of service by Operator shall be performed and completed within fourteen (14) days of a customer requesting such, if cable is built to the home. (2) While Operator may charge a customer for installing, connecting, or re-connecting service, such charge must be explained to customers. (3) In the case of a promotional, or seasonal connection, any limitations, or restrictions should be explained prior to the promotional, or seasonal connection. 19 (4) Operator may charge an appropriate re-connection charge or require a security deposit, in those instances where a customer is re-connected after an involuntary disconnection for non-payment or a prior history of unsatisfactory payment. (5) For purposes of this section "rash period" shall be defined as the period of time commencing 15 days prior to the start of undergraduate classes (for each semester, trimester or quarter as the case may be) at Texas A&M University and extending to 15 days after the start of undergraduate classes (for each semester, trimester or quarter as the case may be) at Texas A&M University. Section 26 Disconnection for Non-Payment. (1) A subscriber shall be considered delinquent in payment if payment is not made within ten (10) days after receipt of the bill. Operator shall not disconnect service prior to 30 days after a subscriber's receipt of the unpaid bill, however, Operator may charge a late fee for any payment which has not been made after the 30th day from receipt. (2) Before disconnection of a subscriber's service (either physically or electronically) takes place, the following must occur: (a) (b) (c) (d) the subscriber must in fact be delinquent in payment of service; and at least five (5) days have elapsed after a separate written notice of impending disconnection has been personally served upon the subscriber; or at least eight (8) days have elapsed after mailing a separate written notice of impending disconnection to the subscriber; or at least five (5) days have elapsed after the subscriber has either signed for or, refused to accept, a separate written notice of impending disconnection. (3) The written notice of disconnection must expressly and clearly state the amount that is owed by the subscriber to Operator, the minimum amount required to be paid to avoid disconnection, and the date and place where such payment must be made. (4) Receipt of a dishonored check from a subscriber, in response to a written notice of disconnection, does not constitute payment, and the Operator need not give the subscriber further notice prior to disconnecting service. (5) Operator may add a reasonable collection charge, subject to applicable state regulations, to the subscriber's bill. (6) Any refund due a subscriber after such a disconnection shall be made within sixty (60) days of the disconnection for non-payment. 20 Section 27 Voluntary Disconnections and Down~ades. (1) At any time, a subscriber, who does not have a separate contract with the Operator, may request that a particular service tier, Pay Per View channel, Premium Channel, informational service, or the entire service be disconnected. (2) A subscriber may request a downgrade from a particular level of service to a less comprehensive level of service, or a less expensive level of service. (3) From the date that such a subscriber makes such a request for either a disconnection or downgrade, the Operator shall have seventy-two (72) hours or three (3) Service Days, whichever is longer, to disconnect or downgrade the service tier, Pay Per View channel, Premium Channel, informational service, or entire service. In the event that Operator does not disconnect or downgrade service within this period, a subscriber's obligation to pay for such service shall cease, or in the case of a downgrade, a subscriber's obligation to pay for the more comprehensive and/or higher priced service shall cease seventy-two (72) hours or three (3) Service Days, whichever is longer, from the date of the customer request. (4) For a service tier, Premium Channel or informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of the monthly Rate for such service tier, Premium Channel or informational service. (5) Once a valid connection to a Pay Per View event occurs, then the Operator may collect the full advertised or quoted Rate, should the customer then attempt to disconnect the Pay Per View event. (6) Provided that, Operator does not have to make a trip or add additional equipment to the subscribers location to perform a change in service, no separate disconnect or downgrade charge may be passed onto a subscriber if it chooses to take advantage of a lower-priced or less comprehensive service tier. However, to prevent subscriber abuse of this voluntary disconnection, or downgrade policy, a subscriber shall be charged a minimum one (1) months full Rate for any one service tier which is disconnected and/or downgraded at least three (3) times within a span of one hundred eighty (180) days. (7) If Operator's equipment is, or has been damaged by a subscriber, prior to disconnection, then Operator may charge the subscriber with the entire cost for such damage, provided that Operator notify the subscriber within thirty (30) days of the disconnection. A subscriber shall not be required to pay for equipment failure, if the circumstances fall within the normal wear and tear guidelines established in this Franchise Ordinance. (8) Any refund due a subscriber after disconnection (both for non-payment and voluntary) shall be made within sixty (60) days after such disconnection. 21 Section 28 Resolution of Comolaints. _ In the event of a subscriber complaint, the complaint will be handled as follows: (a) Operator shall have the initial response to a complaint occur no later than one Service Day after receipt of the complaint; Every attempt will be made to resolve the complaint within seventy-two (72) hours or three (3) Service Days, which ever is longer, after receipt of the complaint; and (c) Complaints that fall into the category of service inquiries shall abide by the procedure set forth in this Franchise Ordinance. Section 29 Continued Use of Individual Antennas Protected. No person shall be required to receive cable service, or to physically connect to the Cable System. Section 30 Construction of Good Quality. During any phase of construction, installation, maintenance, and repair of the Cable System, Operator shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner. Section 31 Continuity of Multi-Channel Service. In any situation which threatens the City and subscribers with the loss or interruption in the continuity of multi-channel service, then the Operator shall provide the City with at least forty-five (45) days notice (except in extreme circumstances) prior to the effective date of any action which would cause a loss or interruption in the continuity of multi-channel service. The purpose of the notice is to apprise the City of the possibility of such loss or interruption in the continuity of multi-channel service, so that it might explore its options and take appropriate measures. (2) Whenever any situation occurs which threatens the City and subscribers with the loss or interruption in the continuity of multi-channel service, then the City may direct the Operator for a period of up to twelve (12) months to do everything reasonably within its power to ensure that all subscribers receive continuous, uninterrupted multi-channel service of the same quality, mix, and level(s) regardless of the circumstances. (3) During the interim period, the City shall work with the Operator in order to secure a new multi-channel system owner, or rectify the problem, so that the threat of loss of continuity is removed at the earliest possible instance. 22 (4) During any interim period in which the Operator continues to provide multi-channel service to subscribers, the Operator is entitled to all revenues collected, except any sums owed (including Franchise Fees, alternative user charges, and taxes) to the City or to other persons. (5) Nothing in this Section should be construed as requiring an Operator to operate a multi-channel system with negative cash flow, or while the system is in bankruptcy or insolvent. Section 32 Conditions on Use of Streets and Public Ways. All wires, conduits, cable (coaxial, fiber, or functional equivalent), and other property and facilities of Operator shall be so located, constructed installed, and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, rights-of-way, easements, and public ways of the City. (2) In the event Operator's Cable System creates a hazardous or unsafe condition or an unreasonable interference with property, then at its own expense Operator shall voluntarily, or upon the request of the City Manager, remove that part of the Cable System that creates the hazardous condition from the subject property. (3) Operator, at either its own expense or that of a private contractor, shall protect rights-of- way, easements, and support or temporarily disconnect or relocate in the same street or other public way, any property of Operator when necessitated by reason of: (a) (b) (c) (d) (e) (f) traffic conditions; public safety; a street closing; street construction or re-surfacing; change or establishment of street grade; or installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines. (4) It shall be the responsibility of Operator, upon request, (acting alone or in conjunction with another person) to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable (coaxial, fiber or functional equivalent) before employees, agents, or independent contractors of any entity with a valid permit installs cable in the marked-off area. (5) Operator shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and Operator may require payment in advance. Operator shall be given not less than twenty-one (21) days notice of a contemplated move to arrange for temporary wire changes. 23 (6) For any new installations occurring after the Effective Date of this Franchise Ordinance, and at the time that Operator rebuilds or upgrades the Cable System, all trunk or feeder cable (coaxial, fiber or functional equivalent) shall be placed underground if all electric and telephone lines are also placed underground at the time of the new installation. Section 33 Construction Standards; New Developments; Joint Trench. (1) Methods of construction, installation, maintenance repair of the Cable System shall comply with the most current editions of the National Electrical Safety Code, and the National Electric Code, as affects the construction, installation, and maintenance of electrical supply and communication lines and attachments and supports. To the extent that these are inconsistent with other provisions of this Franchise Ordinance, or State, or local law, then the State or local law shall govern. Provided however, that changes and updates to the National Electrical Safety Code and the National Electric Code shall be incorporated into existing cable facilities, at the same time the City also revises existing electrical plant to comply with the revised standards. (2) Operator shall comply with City's fight-of-way ordinance, a current copy of which is attached as Exhibit D. Pursuant to the City's police power authority, this fight-of-way ordinance may be superceded by a new or amended ordinance, which shall be of general application to all users of City rights-of-way other than the City. Operator shall have the opportunity to comment on the draft form of the ordinance prior to its finalization. In the event Operator believes that the new ordinance is contrary to the City's legitimate police power, and imposes obligations on Operator or deprives Operator of benefits conferred by this Franchise Ordinance, nothing in this Franchise Ordinance shall preclude Operator from taking any action it deems appropriate to preserve its rights. (3) For existing cable facilities, the provisions for underground construction shall apply only at the time a scheduled upgrade or rebuild of the Cable System is actually commenced, except that Operator shall place its lines underground whenever the City's electric utility places its lines underground. For newly served areas, the provisions of the underground provisions (i.e., Section 32(6) of this Franchise Ordinance) shall apply at the time of initial construction and/or installation. (4) The aesthetics of the property will be deemed to be a high priority in all installation, maintenance and repairs. Operator agrees that in some instances, a property owner's consent may be advisable prior to commencement of work. (5) When a residence or other structure is within one hundred fifty (150) feet of the Cable System and is served by a drop (from the pole span to the residence or other structure), then the length of the pole span accommodating such a drop shall be no greater than one hundred fifty (150) feet without the owner's permission. 24 (6) City will notify Operator's local general manager of all pre-plan review, plan review and site development plan review meetings for all new subdivisions, condominiums and developments in City. (7) In all new subdivisions, condominiums and developments, if underground installation of lines is required then Operator shall install its lines when other utilities are being installed, including drops to individual dwelling units. City shall be contacted to assess the feasibility of joint trenching in a public way or on private property, and projects that satisfy the technical considerations of joint trenching shall be installed. (8) The City's electric utility has a program to routinely replace (change out) deteriorated utility poles. To expedite such replacement, the City's electric utility may move Operator's lines from the old pole to the new pole, at City's actual cost of doing same. The preceding sentence shall not apply to complex or unusual situations, such as where Operator has power supplies, amplifiers or facilities other than the lines themselves on the pole in question. Section 34 Line Extension Policy. (1) Operator shall extend cable service to any area of the City that has a density of least twenty (20) homes per aerial mile of cable, or twenty-five (25) homes per underground mile of cable, or fractional equivalent thereof, as measured from the extremity of the trunk cable nearest the unserved area. Also, in such a case, a newly installed subscriber shall not be assessed or apportioned the cost for installation, except for the usual and normal connection fees paid by subscribers, so long as the Cable System expansion is technically feasible. (a) Once the aforementioned density requirements are satisfied, the Operator shall be obligated to provide residential service to qualified areas within ninety (90) Service Days of a request. If construction is not completed within said ninety (90) day period, due to circumstances not under the control of Operator, Operator will not be in violation of this Franchise Ordinance. (2) For City areas that do not have at least twenty (20) homes per aerial mile or twenty-five (25) homes per underground mile, potential subscribers located therein may receive cable service if arrangements are made for cost-sharing of construction costs for service to that area. Operator shall use the following cost-sharing formula: Operator shall bear its pro-rata share of the then current cost per mile of plant construction based on a multiple of the actual number of potential subscribers per mile, divided by twenty-five (25) dwellings per mile for underground areas or twenty (20) dwellings per mile for aerial areas. If, at the end of a twenty four (24) month period following completion of construction, the number of dwelling units completed within the line extension area is equal to or greater than the prescribed density, Operator will rebate fifty percent (50%) of the construction costs to the developer or subscribers, if any. The remaining construction cost will be borne equally by each applicant committing to at least one year's service 25 within the extension area. Operator will inform each potential subscriber of the computed pro rata share per subscriber before any agreements are signed or construction begun. The Operator will also contact all residents in the area under construction to involve as many homes as possible thereby reducing the costs to each. Mileage will be measured from the nearest point on the nearest trunk line, if applicable, or to the nearest feeder line if only feeder is required. Section 35 Permits and Licenses. Operator shall obtain, at its own expense, all permits and licenses required by law, role, regulation, or ordinance, and maintain the same, in full force and effect, for as long as required. Section 36 Stand-By,, Power. Operator shall install automatic, activated stand-by power on its trunk-cable and at its headends, hubs fiber nodes, all power supplies, and receive-sites associated with the distribution of cable service to, and throughout the City. Section 37 Emergency Alert/Emergency Override. (a) Operator shall install an emergency alert system on its Cable System which will alert subscribers in the event of an emergency. Such system shall provide audio and/or textual alert to all subscribers across all channels. The audio or textual alert may direct subscribers to mm to a specified channel for full information on the emergency. The emergency alert system shall have the capability to allow designated officials from the City to insert information on a designated emergency alert channel to all subscribers from any touch-tone phone. Provided, however, Operator shall only be required to provide access to the officials that the City has designated in writing as the responsible officials. (b) Both City and Operator shall publicize to City residents and cable subscribers that emergency information and alerts from City are provided on the Cable System. Section 38 Capacity for Signal Alert Technology. Operator shall make available to the City or to its designated agent, the necessary bandwidth, but not to exceed 100 KHz, on the Cable System for the transmission of a technology or service that provides instantaneous access into homes; does not require that the television be mined on or the volume mined up to receive the message; does not require the resident to be at home at the time of transmission to receive the message; stores the message in case no one is home at the time that the message is delivered; has an emergency audio alert intended to awaken the sleeping individual; can notify anyone or a combination of discrete segments of the City; provides different alert notification for emergency and non-emergency situations; and is tied directly into the local office, the National Weather Service's site selection weather warning service. Such bandwidth will be provided without charge to the City or its designated agent, however, the City or its designated agent shall be responsible for the purchase installation and 26 maintenance of all necessary additional electronics, amplification, and in-home subscriber equipment. Section 39 Preventive Maintenance Program. (1) The following shall be included as part of Operator's preventive maintenance program: (a) (b) (c) (d) (e) (f) (g) (h) (i) Periodic inspection, and repair if needed, of the headend; Periodic inspection, and repair if needed, of the antenna tower; Periodic weather-proofing and protection of the antenna lead connectors, and on any other exposed fittings if needed; Periodic conducting of signal leakage tests that are in accord with FCC requirements; Periodic servicing, testing, and calibration of equipment including service vehicles, and field test equipment; Periodic testing of the Operator's emergency alert system if any; and Periodic testing and recording of said test data for all signals (audio and video) at the headend and system extremity points; Periodic testing as required by Federal law and or regulations; and Compliance with all operating parameters required by FCC roles and regulations, as such may be changed or amended from time to time. (2) The City shall have the right to review and approve the Operator's preventative maintenance program, but no more frequently than annually. Such approval shall not be unreasonably withheld. Section 40 Extent of Grant of Franchise. (1) Operator may construct, erect, install, maintain, operate, repair, replace, remove, or restore its facilities within the geographical limits of the City, which facilities may be used to provide cable services. (2) The Cable System may be located in, upon, along, across, over, and under the streets, rights-of-way, easements, and public ways of the City. (3) Operator, through a separate pole or utility easement agreement with an affected utility, may locate the Cable System on, or within, the property of such utility. Section 41 Rate Regulation. (1) If City is permitted to regulate Rates, then the City shall hold a public hearing not less than ninety (90) days prior to any request for Rate certification. (2) The City reserves the fight not to regulate Rates should the City be permitted to do so. 27 Section 42 Term of Franchise Ordinance. The term of this renewal Franchise Ordinance shall be until midnight on February 28, 2014. The rights and privileges granted by this Franchise Ordinance to Operator are not exclusive and nothing herein is intended to or shall be construed so as to prevent the City from granting other and similar rights, privileges and franchises to any other person, firm, association or corporation, provided, however, that such rights, privileges and franchises shall contain substantially similar minimum terms and conditions as those granted to Operator herein. This Franchise renewal shall be in accordance with and subject to Section 626 of the Cable Act, 47 U.S.C. Section 546. Section 43 Franchise Fees. (1) Operator shall pay to the City for the privilege and use of the streets, fights-of-way, easements, and public ways, and other facilities of the City in the operation of the Cable System, and for the City's supervision thereof and of Operator and for responding to and protecting subscribers during the term of the Franchise Ordinance, a sum ("Franchise Fee") equal to four and one half percent (4.5%) of its Gross Revenues from the Effective Date through February 29, 2008, and thereafter five percent (5%) of its Gross Revenues. (2) Operator shall file with the City, within forty-five (45) days after the expiration of each calendar quarter, a detailed financial and revenue statement clearly showing the Gross Revenues received by Operator during the preceding quarter and certified by a certified public accountant or officer of Operator attesting to the accuracy, completeness, and veracity of the revenue figures. Such statement shall be in the form and format determined by the City. Such statement shall include all revenues subject to the Franchise Fee from whatever source. Revenue will be reported by service category, type, and level showing computations and using incremental billing Rates for all sources, levels, tiers, and types of service and other revenue sources of all kinds and types. (3) Payment of the quarterly portion of the Franchise Fee shall be rendered to the City at the time the financial and revenue statement is filed. (4) In the event that payment is not made within one hundred eighty (180) days after the date specified in this Section, then Operator may be declared in default of this Franchise Ordinance, and this Franchise Ordinance may be revoked, terminated, or canceled in the manner prescribed by this Franchise Ordinance. (5) The City reserves the right to audit Operator's books, if the City deems it necessary. It is specifically understood, that the right of audit and re-computation of any, and all, amounts paid under a Franchise Fee, shall always be accorded to the City. Provided, however, that the City shall be bound by the results of any audit it performs or causes to be performed, except for instances involving fraud. (6) If an audit, or other research discovers that Franchise Fees have been either underpaid or not paid for a period exceeding six (6) months from the original due date, then the City 28 (7) (8) may seek full recovery of the underpaid, or non-paid fees plus interest not to exceed ten percent (10%) or the maximum allowable under State law (whichever is lesser). The payment of such underpaid amount plus such interest by Operator shall be deemed satisfactory and timely payment by Operator and shall not be deemed a default. All annual reports due and pertaining to the payment of Franchise Fees, will be certified by an officer of the Operator, and Operator shall maintain records used in the preparation of said report, to be produced in their originality and totality upon request or demand by the City Manager. If Operator's subscribers are offered what is, in effect, a discount if they obtain both cable services and some other, non-cable services good or service, then for Franchise Fee Gross Revenues computation purposes, the discount shall be applied either (1) consistent with the prices published on Operator's marketing materials or rate card, or (2) proportionately to those cable services and non-cable services goods and services for which individual prices are not published, in accordance with the following examples: (a) Assume a subscriber's charge for a given month for cable services alone would be $40, for local telephone service alone would be $30, and for cable modem service alone would be $30, for a total of $100. In fact the three services are offered in effect at a combined rate of $80, where the subscriber receives what amounts to a twenty percent (20%) discount from the rates that would apply to a service if purchased individually. The discount for Franchise Fee computation purposes would be applied pro rata so that Gross Revenues would be deemed to be $32 ($40 less 20% of $40). The result would be the same if the subscriber received a $20 discount for cable modem service on the condition that he or she also subscribes for cable services at standard rates. (b) Assume the same facts as the preceding example, except that the subscriber also purchases a cable service such as HBO at a fixed fee of $15 a month, which is not included in the discounted service offering the discount (the effective discount effectively does not apply to this service), for a total of $95. Gross Revenues would be $47 ($32 from the prior example plus $15). (c) Where individual prices are not published, the amount of any discount on a group of services shall be determined on the basis of the sum of the lowest stand-alone rates available to a subscriber or class of subscribers for each of the goods and services which are offered at the combined rate. Nothing herein shall be construed to require Operator to offer any service at a price, where the price for that service is otherwise established by law or regulation. (d) If Operator offers a good or service, such as a subscriber wiring repair service, which applies to both cable services and non-cable services, then for Franchise Fee and Gross Revenues computation purposes the Franchise Fee for such good or service shall be allocated pro-rata between the cable services and non-cable services in question based on the number of services involved. 29 Section 44 Relief from this Franchise Ordinance. Operator may file a written petition, at any time, with the City seeking relief from one (1) or more provisions of this Franchise Ordinance. The relief requested may specifically include the delay in implementation of one (1) or more provisions of this Franchise Ordinance. Section 45 Assignment or Transfer of Franchise. (1) This Franchise Ordinance may not be assigned or transferred in whole, or in part, without the prior express written approval by the City. (2) Any attempted assignment or transfer without such prior written consent shall constitute a default of this Franchise Ordinance. (3) In the event of such a default, the City shall proceed according to the procedure set forth in this Franchise Ordinance, and any applicable State law. (4) Operator shall petition in writing for the City's written consent for a proposed assignment or transfer. (5) The City will not unreasonably withhold its consent to such an assignment or transfer. However, in making such a determination, the City may consider the following: (a) (b) (c) (d) (e) experience of proposed assignee or transferee (including conducting an investigation of proposed assignee or transferee's service record in other communities); qualifications of proposed assignee or transferee; financial ability and stability of the proposed assignee or transferee with regard to the ability of the transferee or assignee to operate under the terms and conditions of this Franchise Ordinance; the character of proposed assignee or transferee; and the corporate connection, if any, between the Operator, and proposed assignee or transferee. (6) As a condition of an assignment or transfer the proposed assignee or transferee shall execute an affidavit, acknowledging that it has read, understood, and intends to abide by this Franchise Ordinance, and that the assignee or transferee assumes all obligations and liabilities imposed by this Franchise Ordinance on the former franchisee. (7) Notwithstanding the foregoing, no consent shall be required for the Operator to hypothecate or mortgage Operator's assets. (8) On or about August 29, 2003, City was asked to consent to an assignment of the Prior Franchise to Operator. Such Prior Franchise will continue in effect for a short period of time between Council approval of this Franchise Ordinance and the Effective Date. 30 (a) Based upon the documents and representations provided to it, the City of College Station consents to the assignment of the Prior Franchise to Operator, subject to Operator's execution of the attached Acceptance. (b) By accepting this Ordinance, Operator agrees that the assignment will not in any way affect this renewal of the Prior Franchise with the City. Operator will step into the shoes of and be wholly responsible to the City for the actions of its predecessor as if no assignment had occurred, and will not contend to the contrary. (c) Operator acknowledges the statement in Part II of its Form 394 application to the City for consent to the assignment that it will use its best efforts to comply with the terms of the Prior Franchise and applicable state laws or local ordinances and related regulations, and to effect changes, as promptly as practicable, in the operation of the Cable System, if any changes are necessary to cure any violations thereof or defaults thereunder presently in effect or ongoing. (d) Cox Communications, Inc. or Cox Southwest Holdings, L.P. shall notify the City in writing once the assignment has occurred. Section 46 Default of Franchise; Revoc..a_t.i. on, Termination or Cancellation of Franchise. (1) When any event, act or omission (on the part of the Operator) occurs which represents a substantial violation of an integral provision of this Franchise Ordinance, or materially compromises the corporate character, or legal, financial or technical integrity and/or stability of the Cable System or the Operator to such a degree that the interests of the subscribers are negatively affected, then such event, act or omission may be considered a major breach of this Franchise Ordinance. Under such circumstances, the City Manager shall notify the Operator in writing, of the specific breach, and direct Operator to cure such breach and to comply with all such provisions of this Franchise Ordinance. (2) Provided, however, where Operator satisfactorily corrects any of the enumerated conditions, within sixty (60) days, then in no event shall the enumerated condition be weighted against Operator in any subsequent review of franchise performance so long as such enumerated condition(s) does not evidence a continuing course of conduct. (3) Provided, however, that if the enumerated conditions can not be corrected within sixty (60) days because of circumstances beyond Operator's control, then Operator shall not be deemed in violation of this Franchise Ordinance for the period of time attributable to such circumstances. (4) Within seventy-five (75) days, after such written notice is mailed to Operator, the Council shall conduct a public hearing on the matter. 31 (5) The City Manager shall provide written notice to an Operator, and any surety, of the time and place of said public hearing. (6) At the time of the hearing, the Operator may present information on the current stares of the alleged breach of this Franchise Ordinance. If the situation has been resolved, or steps are being taken to resolve the situation, then the Operator may present the information at the hearing. (7) If the affected Operator fails to attend the hearing, and has not requested a continuance of the hearing, then Operator shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of this Franchise Ordinance. (8) After the public hearing, the City Council may determine the Operator to be in compliance and dismiss the matter, or may determine that Operator has cured any non- compliance and thereby dismiss the matter. However, the Council may determine that a Franchise Ordinance violation exists and remains uncured. Consequently, upon a finding that Operator substantially violated an integral Franchise Ordinance provision, or failed to cure a material outstanding Franchise Ordinance violation, the Council shall direct the Operator to take corrective action within a specified period of time, and thereafter, if Operator has not taken such corrective action, may revoke, terminate, or cancel this Franchise Ordinance, unless the Operator presents sufficient mitigating circumstances or the corrective action cannot be reasonably taken in the time allotted. (9) When the Council directs corrective action to take place within a specified time or declares Operator in default of this Franchise Ordinance, that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed to Operator, and any surety, within fifteen (15) days of the Council's action. (10) If within forty-five (45) days after the specified time for corrective action has expired, the Operator, or surety does not take significant action to rectify the breach, or submit a plan detailing how the Operator or surety will eliminate the breach, then the Council may revoke Operator's Franchise Ordinance, and shall notify the affected Operator, and surety forthwith, unless there are mitigating circumstances. (11) Notwithstanding the above, should City notify Operator of its intention to revoke, Operator shall have the right to sell its assets to an independent third party. The City will not unreasonably withhold its consent to such assignment and shall grant its consent pursuant to the "Assignment or Transfer" section of this Franchise Ordinance. Upon assignment of this Franchise Ordinance, pursuant to this revocation section, assignee shall receive a franchise in full force and effect, free of default, for the term remaining on assignor's Franchise Ordinance. Provided, however, that such sale shall not relieve Operator of any liability for its default. (12) The City reserves the right to assess any charges incurred (including costs for consultants, wimesses, and hearing preparation) in a default and/or revocation proceeding to the Operator. 32 (13) Notwithstanding any other provision of this Franchise Ordinance or the Multi-Channel Provider Ordinance, it is the intent of the City not to subject the Operator to penalties, fines, forfeitures, or revocation of the Franchise Ordinance in any of the following instances: (a) In instances or for matters where a violation of the Multi-Channel Provider Ordinance or this Franchise Ordinance by the Operator was unintentional and of de minimis effect on subscribers, the public or the City; or (b) Where there existed circumstances reasonably beyond the control of the Operator that precipitated a violation of the Multi-Channel Provider Ordinance or this Franchise Ordinance, or were deemed to have prevented the Operator from complying with any term or condition of the Multi-Channel Provider Ordinance or this Franchise Ordinance; or (c) Where there is no pattern of violation or occurrence of repeated violations of the same matter over time after notification by the City. Section 47 Capacity of System; lntemet. (1) The Cable System shall provide: (a) (b) The EG Channels required by this Franchise Ordinance; and Fifty (50) full channels of video programming which may include from time to time, retransmitted broadcast channels, satellite delivered programming and locally produced programs. (2) Thereafter, Operator shall expand the channel capacity of the Cable System, within a reasonable period of time, so that it can meet all furore cable related needs of the community for which the cable subscribers are willing to pay. The desirability of additional channels shall be determined by a joint survey conducted by the Operator and the City of a representative sample of the then existing cable subscribers. However, in no event shall Operator be required to expand the channel capacity of the Cable System in an amount greater than the number of channels for which it can reasonably recover the cost of adding the channel capacity, plus a reasonable profit, over the remaining life of this Franchise Ordinance. (3) Operator shall continue to provide Intemet and cable modem services as follows: (a) Operator shall continue to provide two direct Intemet fiber optic connections and media converter equipment for City to use to connect its facilities and wide area network to the intemet. Unless otherwise agreed by City and Operator one connection and associated equipment shall connect to City facilities at 1101 Texas Avenue and the other at 310 Krenek Tap Road. Each connection shall have a 33 speed of at least five (5) Mbps upstream and five (5) Mbps downstream, increased to a speed of at least ten (10) Mbps upstream and ten (10) Mbps downstream five (5) years from the Effective Date of this Franchise Ordinance. (b) Operator shall continue to provide twenty five (25) City locations with cable modems with Cox Express cable modem service (or subsequent equivalent services). Such locations may be changed by City from time to time, such as when Council members change, or City buildings change. City shall be responsible for any excessive wear and tear on the cable modems. (c) Operator shall continue to provide Intemet cable modem service for public access with a speed of at least one (1) Mbps upstream and one (1) Mbps downstream to the College Station Public Library on Harvey Mitchell Parkway and the Teen Center on Rock Prairie Road. City will post signs at these locations stating that the service is provided by Operator. (d) After the Effective Date of this Franchise, Operator shall provide the preceding without any monthly charge, set up fee, installation fee, fee for changing cable modem locations, rental fee or activation fee. City shall be responsible for any network cards and line extension charges for any locations not qualifying under Section 49 to receive service without a line extension charge, or for drops to provide service to such locations that exceed 150 feet. Section 48 Educational and Governmental Access. (1) Operator shall provide on the Cable System in the Basic Cable Television Service tier (except as set forth in (d)) of service the following noncommercial channels collectively known as "EG Channels": (a) One ("Bryan Channel") government channel administered by the City of Bryan and shared by the City of Bryan and the Bryan Public Schools, all as the City of Bryan may from time to time determine; (b) One channel administered by the City of College Station and shared by the City of College Station and the College Station Public Schools, all as the City of College Station may from time to time determine; (c) One education channel administered by Texas A&M University. (d) Within three (3) years of the Effective Date, unless a later date applies due to a Force Majeure Event, Operator shall provide on the Cable Programming Service tier (or, at Operator's option, on the Basic Cable Television Service tier) one (1) additional EG Channel for joint use by the City of Bryan and the City of College Station. "Joint use" shall be as the two cities from time to time agree, and may include the cities or other entities sharing the usage of the channel or the channel being distributed by Operator such that residents of the two cities receive different 34 programming (Bryan residents receive Bryan oriented programming; College Station residents receive College Station oriented programming; sometimes called "channel reuse"). (2) Within six (6) months of the Effective Date the Bryan Channel will be put on a channel other than Channel 20. Thereafter, no EG Channel may be placed on Channel 20 without the prior consent of both the Cities of Bryan and College Station. (3) City may from time to time adopt and revise roles and procedures as to when and how Operator may use the EG Channels for the provision of video programming when the EG Channels are not being used for their respective purposes. (4) Operator shall provide and maintain at its expense all lines and facilities necessary for it to receive EG Channel programming from the studios of the EG Channels and distribute it simultaneously on the Cable System. (5) City may at any time on six (6) months notice to Operator allocate or reallocate the usage of the EG Channels among and between different persons. This expressly may include City requiring several different persons to share or jointly use a given EG Channel or conversely allowing one or more persons currently sharing such a channel to have sole usage of such a channel. Should this result in Operator being required to obtain the signal for an EG Channel from a new location, then City or a third party, as the case may be, but not Operator, shall pay any additional cost of new lines necessary to transmit the signal from such location. (6) Operator shall provide to City grants for capital facilities (where "capital facilities" means those facilities that qualify as same under Federal Cable Act Section 622(g)(2)(C); 47 U.S.C. Section 542(g)(2)(C)) in an amount equal to $0.15 per cable services customer per month payable quarterly on the same date on which Franchise Fee payments are due under Section 43 and subject to the same City rights of examination of Operator records, audit, interest and reimbursement of City's costs as set forth in Sections 13 and 43. For the purpose of computing the preceding grants, for multiple dwelling units or bulk service, the number of cable services customers shall be the number of dwelling units (or other ultimate, individual customers) actually served. These grants are in addition to and are not a deduction from Franchise Fees. Such grants shall be paid by check separate and apart from (or, in the case of electronic funds transfer, by a transfer separate and apart from) the payment of Franchise Fees, and shall be transmitted to the person designated by the City Manager. City shall use such grants for EG Channel(s) administered by City as the City determines is in the public interest, which may include placing such grants in an account or fund for such use in a subsequent year. Section 49 Service to Public Facilities. Operator shall provide, at no cost or charge Basic Cable Television Service and Cable Programming Service to one outlet each at the following facilities: 35 (1) All City offices passed by the Cable System; and (2) All public school buildings passed by the Cable System; (3) Subsections (1) and (2) are subject to the previously enumerated line extension policy; (4) In addition, one location (which shall be at 310 Krenek Tap Road, College Station unless otherwise specified by City) shall receive without charge all video programming provided by Operator whether of an analog or digital nature (analog or digital tiers) but excluding Premium Channels and Pay Per View channels. Such service shall be provided to assist City in responding to customer complaints and inquiries and monitoring the video programming and use of the Cable System for compliance with this Franchise Ordinance, the Multi-Channel Provider Ordinance, FCC technical standards, and other applicable law. The services provided according to the preceding sentences shall be in an office location and not in a location conducive to public viewing Section 50 Seamless or "See-through" Technology. Operator .agrees to abide by and comply with any subsequently adopted roles and regulations of the FCC as regards seamless or "see-through" technology. Section 51 Miscellaneous Provisions--Tamoerine and Unauthorized Recet~tion of Certain Services. (1) No person shall intercept or receive, or assist in intercepting or receiving any communications service offered over a Cable System, unless specifically authorized to do so by Operator, or as may otherwise be specifically authorized by law. (2) For the purpose of this Section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for the unauthorized reception of service as noted in subsection (1) of this Section. (3) Without securing permission from Operator, or making payment to Operator, then no person shall be authorized to make any connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the Cable System for the purpose of receiving or intercepting, or assisting others to receive or intercept any cable service provided lawfully by Operator. (4) No person shall be authorized to willfully tamper with, remove, or damage any cable, wires, equipment, or facilities used for the distribution of cable services. (5) This Franchise Ordinance, including the Exhibits attached hereto, contains the entire agreement between the parties and all prior negotiations and agreements are merged herein and hereby superseded. As of the Effective Date Operator's Prior Franchise, being 36 Ordinance 2058, is superceded, except that any obligation of Operator to indemnify City under the Prior Franchise shall be continuing as to those matters (if any) occurring during the term of said Prior Franchise on which Operator or its predecessors were obligated to indemnify City. (6) Within forty-five (45) days of the Effective Date Operator shall pay City any remaining Franchise Fees due under the Prior Franchise, such as for the last quarter of 2003 and the first two months of 2004. (7) City will advise people contacting City to establish or mm on water or electric service of the availability of Operator's services and how to contact Operator to establish or obtain its services. (8) As of the Effective Date of this Franchise Ordinance, Operator is not a "telecommunications provider" as such term is defined in Chapter 51.002 of the V.T.C.A. Utility Code, also known as the Public Utility Regulatory Act. Section 52 Duty to Remove Franchised Properties from the Public Streets. (1) Whenever the following occurs' (a) Operator ceases to operate all, or part, of the Cable System for a continuous period of six (6) months; (b) The City elects not to renew this Franchise Ordinance pursuant to the provisions set forth in this Franchise Ordinance or Federal law; or (c) The Operator's Franchise Ordinance is revoked pursuant to the provisions set forth in this Franchise Ordinance; (2) Then--Unless the City or another multi-channel provider uses such multi-channel system, under the continuity provisions outlined in this Franchise Ordinance, Operator shall promptly remove its Cable System property from the streets, public ways, and private property located within the City. (3) If not removed voluntarily by Operator, then the City Manager may notify Operator that if removal of the property is not accommodated within two hundred seventy (270) days, or substantial progress towards removal is not made within two hundred ten (210) days, then the City may direct officials or representatives of the City to remove Operator's Cable System at Operator's expense. (4) If officials or representatives of the City remove Operator's Cable System, and such Operator does not claim the property within ninety (90) days of its removal, then the City may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale (if permitted by State law) going to the City. 37 (5) When such Operator removes its Cable System from the streets, public ways, and private property located within the City, the Operator shall, at its own expense, and in a manner approved by the City Manager, replace and restore such public or private property in as good a condition as before the work causing the disturbance was done. Section 53 Nature of Franchise Ordinance. This "Franchise Ordinance" is a franchise to Operator and may not be unilaterally amended. Section 54 Effective Date. With the exception of Section 45(8), this Franchise Ordinance shall take effect and be in full force from and after March 1, 2004 (the "Effective Date"), which date is at least sixty (60) days from the date of third reading and final approval of this Franchise Ordinance, if within such sixty (60) days from third reading and final approval Operator signs and returns to the City Manager the Acceptance attached hereto. Section 45(8) shall take immediate effect sixty (60) days after third reading and final approval. PASSED AND APPROVED THIS THE 4th DAY OF December . ,2003 Ron Sii~ ~,a~Mayor APPROVED' · .: City Attomey ATTEST: Connie Hooks, City Secretary Date: November 13, 2003 First Reading Date: November 26, 2003 Second Reading Date: December 4, 2003 38 Third Reading and Final Approval 39 ACCEPTANCE TO THE CITY OF COLLEGE STATION, TEXAS' That Cox Southwest Holdings, L.P. d/b/a Cox Communications, hereby accepts the Franchise Ordinance granted to it by your City Council, on the y_ day of 200~, which said Franchise Ordinance is entitled as follows' A FRANCHISE ORDINANCE APPROVING A RENEWAL CABLE TELEVISION FRANCHISE WITH COX SOUTHWEST HOLDINGS, L.P. d/b/a COX COMMUNICATIONS, AND iNCLUDING PROVISIONS FOR INSURANCE, REPORTS AND RECORDS, CONSUMER PRACTICES, CONSUMER PROTECTION MEASURES, CONSTRUCTION, AND CONSTRUCTION-RELATED PRACTICES, FRANCHISE FEES, AND OPERATION PROCEDURES, AND HEALTH, SAFETY, AND WELFARE MEASURES; PROVIDING AN EFFECTIVE DATE. COX SOUTHWEST HOLDINGS,, L.P. d&/a COX COMMUNICATIONS Dated: Title: 40 EXHIBIT A FCC CUSTOMER SERVICE RULES § 76.309 Customer service obligations. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (c) of this section against cable operators. The franchise authority must provide affected cable operators ninety (90) days written notice of its intent to enforce the standards. (b) Nothing in this role should be construed to prevent or prohibit: (1) A franchising authority and a cable operator from agreeing to customer service requirements that exceed the standards set forth in paragraph (c) of this section; (2) A franchising authority from enforcing, through the end of the franchise term, pre- existing customer service requirements that exceed the standards set forth in paragraph (c) of this section and are contained in current franchise agreements; (3) Any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted herein; or (4) The establishment or enforcement of any State or municipal law or regulation concerning customer service that imposes customer service requirements that exceed, or address matters not addressed by the standards set forth in paragraph (c) of this section. (c) Effective July 1, 1993, a cable operator shall be subject to the following customer service standards: (1) Cable system office hours and telephone availability- (i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week. (A) Trained company representatives will be available to respond to customer telephone inquiries during normal business hours. (B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. 41 (ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. (iii) The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (iv) Under normal operating conditions, the customer will receive a busy signal less than three (3) percent of the time. (v) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located. (2) Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis: (i) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet from the existing distribution system. (ii) Excluding conditions beyond the control of the operator, the cable operator will begin working on "service interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem. (iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four- hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.) (iv) An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. (v) If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. 42 (3) Communications between cable operators and cable subscribers- (i) Refunds--Refund checks will be issued promptly, but no later than either- (A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) The remm of the equipment supplied by the cable operator if service is terminated. (ii) Credits--Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. (4) Definitions- (i) Normal business hours--The term "normal business hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. (ii) Normal operating conditions--The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. (iii) Service interruption--The term "service interruption" means the loss of picture or sound on one or more cable channels. [58 FR 21109, Apr. 19, 1993, as amended at 61 FR 18977, Apr. 30, 1996; 65 FR 53615, Sept. 5, 2000; 67 FR 1650, Jan 14, 2002] Effective Date Note: At 65 FR 53615, Sept. 5, 2000, Sec. 76.309 was amended by removing paragraphs (c)(3)(i) and (c)(3)(ii) [which now appear in Subpart T below] and by redesignating paragraphs (c)(3)(iii)and (iv) as paragraphs (c)(3)(i) and (c)(3)(ii), effective Oct. 5, 2000. For the convenience of the user, the superseded text is set forth as follows: Sec. 76.309 Customer service obligations. (c) * * * (3)*** 43 (i) Notifications to subscribers- (A) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request' (1) Products and services offered; (2) Prices and options for programming services and conditions of subscription to programming and other services; (3) Installation and service maintenance policies; (4) Instructions on how to use the cable service; (5) Channel positions programming carried on the system; and, (6) Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office. (B) Customers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. In addition, the cable operator shall notify subscribers thirty (30) days in advance of any significant changes in the other information required by paragraph (c)(3)(i)(A) of this section. Notwithstanding any other provision of Part 76, a cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or franchising authority on the transaction between the operator and the subscriber. (ii) Billing- (A) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (B) In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within 30 days. 44 SUBPART T--NOTiCES Selected Provisions on Customer Service Generally added by 66 FR 53 617, FCC 99-12, Effective October 5, 2000 Current through May 1,2001; 66 FR 21842 § 76.1602 Customer service--general information. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (b) of this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. (b) Effective July 1, 1993, the cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request: (1) Products and services offered; (2) Prices and options for programming services and conditions of subscription to programming and other services; (3) Installation and service maintenance policies; (4) Instructions on how to use the cable service; (5) Channel positions of programming carried on the system; and (6) Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office. (c) Subscribers shall be advised of the procedures for resolution of complaints about the quality of the television signal delivered by the cable system operator, including the address of the responsible officer of the local franchising authority. § 76.1603 Customer service--rate and service changes. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (b) of this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. (b) Customers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. In 45 addition, the cable operator shall notify subscribers 30 days in advance of any significant changes in the other information required by § 76.1602. <Information collection requirements for subsection (c) are not yet effective; OMB approval pending.> (c) In addition to the requirement of paragraph (b) of this section regarding advance notification to customers of any changes in rates, programming services or channel positions, cable systems shall give 30 days written notice to both subscribers and local franchising authorities before implementing any rate or service change. Such notice shall state the precise amount of any rate change and briefly explain in readily understandable fashion the cause of the rate change (e.g., inflation, change in external costs or the addition/deletion of channels). When the change involves the addition or deletion of channels, each channel added or deleted must be separately identified. For purposes of the carriage of digital broadcast signals, the operator need only identify for subscribers, the television signal added and not whether that signal may be multiplexed during certain dayparts. [Last sentence added by FCC 01-22, 66 FR 16554, March 26, 2001 ] (d) A cable operator shall provide written notice to a subscriber of any increase in the price to be charged for the basic service tier or associated equipment at least 30 days before any proposed increase is effective. The notice should include the name and address of the local franchising authority. (e) To the extent the operator is required to provide notice of service and rate changes to subscribers, the operator may provide such notice using any reasonable written means at its sole discretion. (f) Notwithstanding any other provision of part 76 of this chapter, a cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or franchising authority on the transaction between the operator and the subscriber. Note 1 to § 76.1603: Section 624(h) of the Communications Act, 47 U.S.C. 544(h), contains additional notification requirements which a franchising authority may enforce.[The statutory section states "A franchising authority may require a cable operator to do one or more of the following: (1) Provide thirty (30) day's advance written notice of any change in channel assignment or in the video programming service provided over any such channel. (2) Inform subscribers, via written notice, that comments on programming and channel position changes are being recorded by a designated office of the franchising authority."] Note 2 to § 76.1603' Section 624(d)(3) of the Communications Act, 47 U.S.C. 544(d)(3), contains additional notification provisions pertaining to cable operators who offer a premium channel without charge to cable subscribers who do not subscribe to such premium channel. 46 Note 3 to § 76.1603' Section 631 of the Communications Act, 47 U.S.C. 551, contains additional notification requirements pertaining to the protection of subscriber privacy. [65 FR 53617, Sept. 5, 2000, as amended at 66 FR 16554, Mar. 26, 2001] § 76.1619 Information on subscriber bills. (a) Effective July 1, 1993, bills must be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (b) In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within 30 days. (c) A cable franchise authority may enforce the customer service standards set forth in this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. [65 FR 53617, Sept. 5, 2000] 47 EXHIBIT B CERTIFICATE OF INSURANCE 48 Additional Background and Summary ]:nformation The City received a letter dated .lune 22, 2001 from Cox Communications requesting a renewal of the cable television franchise agreement. Negotiations followed procedures delineated in Section 626 of the Cable Communications Policy Act of 1984. The City conducted public hearings, a financial audit, a technical audit and a consumer market survey as part of the franchise renewal process. Key improvements to the existing franchise agreement include: Wordsmithing changes to clean up ambiguities and inconsistencies. · Franchise fee payments due 45 days after the end of each quarter. · City will include Cox in pre-development meetings. · City will include Cox in joint trenching. · Cox will comply with the City's existing Rights-Of-Way ordinance. · Cox will comply with FCC customer service standards. · Franchise agreement reflects improved insurance and indemnity requirements. · Franchise agreement reflects improved line extension provisions. · Cox will provide 25 cable modems and ]:nternet service to the City. · Within three years, Cox will provide one additional EG access channel to be shared by the City o¢ College Station and the City of Bryan. · Franchise fee will increase from 4% to 4.5% in years 1-4 (estimate at an additional $50,000 annually above current franchise fees) and then to 5% in years 5-Z0 (estimate at an additional $100,000 annually above current franchise fees). · Cox will collect from each subscriber and pay to the City a fee of $0.15 per month for the EG access programming which is consistent with Section 622(g)(2)(C) of the Cable Act. Annual revenues are estimated at $36,000. · The term of the franchise is for ten years. Section 120 of the City Charter states that "The City of College Station shall have the power by ordinance to grant any franchise or right mentioned in the preceding sections hereof, which ordinance, however, shall not be passed finally until it shall have been read at three (3) separate regular meetings of the City Council." This is a non-exclusive franchise agreement. A_CORD. PRODUCER DATE (MM/DD/YY) CERTIFICATE OF LIABILITY INSURANCE 1-678-393-'5":~00 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Arthur J. Gallagher & Co. of Georgia, Inc. 3440 Preston Ridge Road Suite 425 lph&retta~ GA 30005 · nd& Smith (678) 393-5228 INSURED Cox Communications, Inc. Middle America Cox PO Box 105357 Atlanta, ? 303~8 INSURERS AFFORDING COVERAGE INSURER A;NATIONAL ONION FIRE INSURANCE COMPANY INSURER B: AMERICAN HOME ASSURANCE COMPANY INSURER C: ILLINOIS NATIONAL INSURANCE COMPANY INSURER D:AMERICAN INT'L SOUTH INSURANCE CO. INSURER E: COVERAGES ~'HE POLICIES OF INSURANCE LISTED BELOV~IAVE BEEN IssUED TO THE INSURED NAMED ABOVE FOR THE I~OLICy I~ERIOD INOICATEI~'.'~C~i~'I~NDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. YNsR ........... POLICY EFFECTIVEPOLICY EXPIRATION LTR TYPE OF INSURAN~:E POLICY NUMBE. R .............. DATE IMM/DD/YYt DATE ;MlVl/DD/YYt LIMITS B GENERAL UABIMTY RMGL612 56 93 01/01/03 01/01/04 EACH OCCURRENCE $ 1,500,000 X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Any one fire) $ 1,500, 000 CLAIMS MADE OCCUR MED EXP (Any one pe~on)$ EXCLODED X EXCESS OF $500,000 PERSONAL&ADVINJURY $1,500,000 X SE1',F INSO'J~.I~D R~--TENTION GENERAL AGGREGATE ~ $:5,:000.Z,_0._0.0.~__' . GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2 , 000 , 000 ---~AU.___TOMOBILE UABILITY ~CA5349689 (ADS) 01/01/03 01/0i/04 COMBINED SINGLE UMIT $ 2,000,000 B X ANYAUTO RMCA5349690 (TX) 01/01/03 01/01/04 (Eeaccident) ..... B .._ALL OWNED ^UTOS RMCA5349691 (VA) 01/01/03 01/01/04 8ODiLYiNJURY SCHEDULED AUTOS (Per person) X HIREDAUTOS BODILY INJURY _ . X NON-OWNED AUTOS (Per accident) ....... .. I PROPERTY DAMAGE (Per accident) ............. ......... GARAGE MABIU'FY AUTO ONLY - EA ACCIDENT $ .... ANYAUTO OTHER THAN EAACC $ AUTO ONLY: AGG $ ......... ............ ' A EXCESS UABIMTY Bg2859960 01/01/03 01/01/04 EACH OCCURRENCE $10', 000,000 x_~ OCCUR L__J CLAIMS MADE AGGREGATE $10,000,000 , $ ........... __~ DEDUCTIBLE . ,$ .... / RETENTION $ ., '" ~ ~o~~o~^,,o~^~ ~¢/i,~-~-~os {~os~ o~)'~'~./o, o,/o~/o~ x ~cs~^~u-I ~ IORY LIMITS ER B EYPLO'~RS'Lt~BII-ITY R1~C33~-2806 {CA) 01/01/03 01/01/04 £.L ~¢HACC~DENT $ 1,000,000 t2 R1~C3322807 {FI.~) 01/01/0~ 01/01/04 E.L. DIS~:ASE- E^[MPt. OYE~ $ 1,000,000 ....... D It~IC3~805 {GA) 01/01/03 01/01/04 E.L. DISEAS£-POLICYLIMIT $1,000,000 .............. OILIER Cox Southwest Holdings, LP City of College Station , a municipal corporation of the State of Texas, and all associated, affiliated, allled and subsidiary entities of City, now existing or hereafter created, and their respective officers, boards, commissions, councils, employees, agents, attorneys and contractors, are additional insureds ATIMA. Waiver of subrogation applies on Workers Comp. , CERTIFICATE HOLDER ADDITIONAL INSURED; INSURER LETTER: I City of College Station Office of the Mayor Thomas Brymer, City Manager I ~,CdRD 25-S (7/97) kdemps.7 1437336 CANCELLATION USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Powered BYcertificatesNowm 4~ e ACORD CORPORATION t988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. I -ACbRD 25-S (719'~) 5O .............. I IIII ACORD. CERTIFICATE OF LIABILITY INSURANCE cox~-3. / ~.~/04/03 I~RoDu~ER ' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE B=ot~m & Bgown 3:ns. of Georgia HOLDER. THIS CERTIFICATE DOES NOTAMEND, EXTEND OR 111'7 Perimeter Ct= West N400 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Atlanta GA 30338 Phone: 770-512-5000 Fax: 770-512-5050 INSURERS AFFORDING COVERAGE NAIC # · .. INSURED INSURER A. *Ame=ican Int:ernationat Group Cox Ente.rprises, Inc. INSURERB: Cox _S__out_hwest Holdin. gs, LP ................................... (IV~ddle America Cox [ INSURER C: ........................................ ~. O. Box 105357 Atlanta GA 30348 INSURERD: ........... INSURER E: COVERAGES .. THE ~O~;~]~ OF INSURANCE LISTED B~'[ow HAVE BEEN ISSUED TO THE IN~UREO NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSI< ~ou'L .......... POLICY EFFECTIVEPOLICY EXPIRATION [ .... LTR NSRE TYPE OF INSURANCE POLICY NUMBER DAT..E..(_MM/DD/YY) DATE (MM/DD/YY) LIMITS GENERAL LIABIMTY EACH OCCURRENCE $ C_0_MMERCIAL GENERAL LIABILITY .... PREMISES (ER occurence) ,$ ,___ , i PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ ........................... GEN'L AGGREGAYE LIMIT APPLIES PER: PRODUCTS . COMP/OP AGG $ JECT ....... J .... AUTOMOBILE LIABILITY I COMBINED SINGLE LIMIT ANY AUTO I (ER accident) $ . ~ ALL OWNED AUTOS i BODILY INJURY $ SCHEDULED AUTOS (Per person) ................. HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) .... .................... . .... ...... GARAGE LIABILITY AUTO ONLY - EA ACCIDENT$ t ANY AUTO I EAACC $ i OTHER THAN .......... i AUTO ONLY: ~ AGG $ ..................... } : _. . . ... EXCESS/UMBRELLA LIABILITY I EACH OCCURRENCE _-._~ ocli, [--1 ~,,~^°~ _~S..~"~o^~ ....* ............... $ .... __ DEDUCTIBLE $ RETENTION $ .......... , ,, $ ........ I WC STA-I U;I 1 OTH- WORKERS COMPENSATION AND · I TORY LIMITS ! i ER .... EMPLOYERS' MABIUTY E.L. EACH ACCIDENT $ ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE $ ff yes, des~ibe under SPECIAL PROVISIONS below ........ E-L. DISEASE - POLICY LIMIT $ OTHER A Pollution CPLL9528293 12/31/00 01/01/05 Incident 10,000,000 10 000 000 Li~_~_ ilitv ,., Aggregate , , DESCRIPTION OF OPERATIONS"" I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Loc: 30.15 SSE Loop 323, Tyler, TX 75701; Add'l Insured' City of College Station, a municipal corporation of the state of TX & all associated, affiliated, allied & subsidiary entities of city, now existing or hereafter created, & their respective boards, commissions, councils, employees, agents, attorneys & contractors as their respective interests may appear. CERTIFICATE HOLDER ,, City of College Station Office of the Mayor Thomas Brymer, City Manager 1101 Texas Avenue South College Station TX 77804 ACOI~D 25'(2001/08)" CITYOFC CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLI~IEs BE CANC~'L'LED BEFORE THE EXPIRATI°N DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 0 DAYS WRITTEN NOTICE TO THE CERTIFIcATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. © ACOi~D C6~pORATION 1988 EXHIBIT C FORM OF CANCELLATION NOTICE THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT # This endorsement, effective 12:01 A.M. forms a part of Policy No. issued to by (The above "attaching clause" need be completed only when this endorsement is issued subsequent to the preparation of the policy). NOTICE OF CANCELLATION AND NONRENEWAL TO CERTIFICATE HOLDER This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM BUSINESS AUTO COVERAGE FORM TRUCKERS COVERAGE FORM GARAGE COVERAGE FORM We shall provide written notice in accordance with state law in the event this policy is cancelled or nonrenewed, for any reason other than non payment of premium, to those entities set out in the schedule below. Schedule: Notice will be mailed to' To the attention of: Contract, Permit or Job Number: 52 EXHIBIT D RIGHT-OF-WAY ORDINANCE 53 ORDINANCE NO. ~ AN ORDINANCE AMENDING CHAPTER 3, "BUILDING REGULATIONS", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMEND- ING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; AND DECLARING A PENALTY. BE IT ORDAINED BY THE CiTY COUNCIL OF THE CITY OF COLLEGE STATION~ TEXAS: PART l' That Chapter 3, "Building Regulations", o£ the Code of Ordinances of the City of' College Station, Texas, be amended as set out in Exhibit "A", attached hereto and made a part of this ordinance for all purposes. PART 2' That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the vaii~dity of the remaining provisions or sections of' this ordinance, which shall remain in full force and effect. PART 3' That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this 22nd day of Ig__~, 2000. .ATr_ EST: ~____ CONNIE HOOKS, City Secretary APPROVED: APPROVED. -L~ McILHANEY, MaYor O/group/legal/ordinances/cocs row ordS. doc 06/28/00 54 ORDINANCE NO. ~ Page 2 EXHIBIT A That Chapter 3 of the Code of Ordinances of the City of College Station, Texas, is hereby amended by amending Section 2 to read as follows' "SECTION 2' RIGHT-OF-WAY MAINTENANCE he GOVERNING LAW; LIMITATIONS; COMPLIANCE (1) This ordinance shall be construed in accordance with the City's Charter and Code in effect on the effective Date of this ordinance to the extent that such Charter and Code are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas. (2) This ordinance shall be governed in accordance with the laws of the State of Texas. B. CIVIL PENALTIES (1) Civil penalties may be imposed for the violation of any provision of this Chapter, as follows: (a) Up to One Thousand Dollars ($1,000.00) for each violation, and each day of a continuing violation may be considered a new violation; and/or (b) If applicable, default and revocation of any or all permits granted to allow work in the fight-of-way, subject to the procedural guidelines noted in this chapter and any agreement which applies to the fight-of-way user, and further subject to any limitations imposed by federal or state law. (c) In imposing the penalties and the amount, the City may weigh all applicable factors, such as damages caused by the violation, economic benefit to the violator, reasons for the violation, the seriousness of the violation, and all other factors. (2) Monetary civil penalties may be imposed in the manner prescribed by either local or state law. (3) In addition, the City Council may order specific performance of any actions required by this chapter or required by a franchise, license or permit, including the permit authorizing work to be performed in the fights-of-way, or any other agreement or authorization. O/group~qegal/ordinances/cocs row ordS.doc 06/28/00 55 ORDINANCE NO. 2457 Page 3 C~ D~ (4) Prior to initiation of enforcement litigation, the user shall be given the opportunity to correct the violation within time frame specified by the City. (5) For the purposes of this Ordinance, when not inconsistent with the context, words, used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined in this Ordinance shall be given their common and ordinary meaning. CRIMINAL PENALTIES That any person, firm, or corporation willfully and intentionally violates any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. DEFINITIONS Person shall include unless otherwise required in context, a natural person, a legal entity or other group or organization. Facilities means all the plant and equipment including all tangible and intangible real and personal property without limitation, and any and all means and instnlmentality in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with its business. Owner means the person who owns the facilities located in the City's fight-of-way. Permit means the document issued by the City to the owner of the facilities that authorizes the use of the fight-of-way by the owner to install and maintain its facilities. Permitee means the owner. User means a person who uses the City's rights-of-way to install its facilities. Right of Way means the surface of, and the space above and below a public street, road, highway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive, or other easement no or hereafter held by the City (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel and shall include other easements or rights-of-way now or hereat~er held by the City or in which the City O/group/legal/ordinances/cocs row ordS. doc O6/28/O0 56 ORDINANCE NO. ~ Page 4 E~ has an interest (including any easements or fights-of-way acquired by eminent domain) which shall, with their proper use and meaning, entitle the City and a utility to use thereof for the purpose of installing facilities, and other property as may ordinarily be necessary and pertinent to a utility system Easement means and shall include any public easement or other compatible use created by dedication, or by other means, to the City for public utility purposes or any other purpose whatsoever. City means the City of College Station, Texas, a home-role municipal corporation Applicant means the owner who submits an application to the City for a permit authorized under the terms and conditions set forth in this Ordinance. An application is not considered administratively complete if it is not signed by and submitted by the owner or the owner's authorized representative or if it does not contain all of the information required by the application or this ordinance or if the required fee has not been submitted with the application. Franchise means the user fee or charge that the City requires as payment for using its streets, fights-of-way, public ways, and easements of the City in order to construct, maintain, and operate a private utility system, and includes fees for permits or licenses. Invalid Permit- a permit will not be considered valid if it contains information that is incorrect at the time it was submitted or if it is executed by an unauthorized representative or if the applicant has made any misrepresentation of material fact in the application. RIGHT-OF-WAY CONSTRUCTION. No person shall commence or continue with the construction, installation or operation of facilities within the fight-of-way in the City except as provided by the ordinances of the City and the directives of the City. All construction activity in City right-of-way will be in accordance with this Chapter. REGISTRATION AND CONSTRUCTION PERMITS (1) Registration. In order to protect the public health, safety and welfare, all users of the fight-of-way will register with the City of College Station. Registration fees for fight-of-way users will be set by College Station City Council resolution. Right of way users who are telecommunications providers and pay annual blanket right-of-way fees pursuant to Chapter 283 of the Texas Local Government Code as amended or users who hold a valid franchise with the City are exempt from the payment of registration fees under this Ordianance O/group/legal/ordinances/cocs row ord§.doc 06/28/00 57 ORDINANCE NO. 2457 Page 5 Registration and permits will be issued in the name of the person who owns the facilities. Registration must be renewed every five (5) years. For utilities with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed, and subject to sixty (60)-day notification to the owner, the facilities of the user will be deemed to have been abandoned. When any information .provided for the registration changes, the user will inform the City of College Station of the change no more than thirty (30) days after the date the change is made. Registration shall include: (a) The name of the user of the fight-of-way; (b) The name, address and telephone number of people who will be contact person(s) for the user; (c) The name, address and telephone number of any contractor or subcontractor, if known, who will be working in the fight-of-way on behalf of the user; (d) The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day; (e) Proof of insurance and bonds: le An applicant must provide acceptable proof of liability insurance in the total amount of Three Million Dollars ($3,000,000.00); One Million Dollars ($1,000,000.00) primary plus Two Million Dollars ($2,000,000.00) umbrella if requested by the owner of the facilities, or other provisions as acceptable to the director of financial services or his/her designee. The City Manager or his / her designee may waive or reduce the bonding requirements in a non-discriminatory, competitively neutral manner, taking into consideration both that the person has furnished the City with documentation sufficient in the sole discretion of the Finance Director to evidence adequate financial resources substantially greater than the bonding requirements, has a Standard & Poor's A bond rating or better or a Moody's A bond rating or better, and has demonstrated in prior right-of-way construction activity, prompt resolution of any claims and substantial compliance with all required applicable building codes and ordinances. 2~ The coverage must be on an "occurrence" basis and must include coverage for personal injury, contractual liability, premise liability, medical damages, underground, explosion and collapse hazards. · O/group/legal/ordinances/cocs row ordS. doc 06/28/00 58 ORDINANCE NO. ~ Page 6 (2) 3~ Each policy must include a cancellation provision in which the insurance company is required to notify the City in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits. 4, The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name and address of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts. Applicant shall file an annual surety bond which will be valid each year construction will occur through one (1) full year after the completion of the construction from a surety company authorized to do business in the State of Texas in the amount of the estimated amount of the cost to restore the right-of-way for the work anticipated to be done in that year, in the event the applicant leaves a job site in the right-of-way unfinished, incomplete or unsafe or other provisions as acceptable to the director of financial services or his/her designee. 6, The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the City. Construction permits. (a) No person shall perform any construction or installation of facilities in the fight-of-way without first obtaining a construction permit, except as provided herein. The permit will be in the name of the person who will own the facilities to be constructed. The permit must be completed and signed by a representative of the owner of the facilities to be constructed. , The phrase "construction or installation of facilities" does not include the installation of facilities necessary to initiate service to a customer's property, or repair or maintenance of existing facilities unless such repair or maintenance requires the breaking of pavement; the closure of a nonresidential traffic lane for a time period greater than four (4) hours; excavation or boring. O/group/legal/ordinances/cocs row ordS. doc 06/28/00 59 ORDINANCE NO. ~ Page 7 (b) (c) ! Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however the City shall be notified in writing within two (2) business days of any construction related to an emergency response; including a reasonably detailed description of the work performed in the right- of-way and an updated map in a format prescribed by the City of any facilities that were relocated, if applicable. e Emergency response permits are required only if a permit is required pursuant to the applicable provisions herein. The permit shall state to whom it is issued, location of work, location of facilities, dates and times work is to take place and any other conditions established by the City. The person requesting a permit will provide the City with documentation in the format specified by the City describing: . The proposed, approximate location and route of all facilities to be constructed or installed and the applicant's plan for fight-of-way construction. , Engineering plans which will be on a scale of one inch (1") equals fifty feet (50') unless otherwise approved by the City. 3~ Detail of the location of all right-of-way and utility easements that applicant plans to use. . Detail of all existing City utilities in relationship to applicant's proposed route. 5~ Detail of what facilities the applicant proposes to install, such as pipe size, number of interducts, valves, etc. e Detail of plans to remove and replace asphalt or concrete in streets (include City of College Station standard construction details). e Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth located in public right-of-way. , Handhole and/or manhole typicals of type of manholes and/or handholes applicant plans to use or access. O/group/legal/ordinances/cocs row ordS. doc 06/28/00 60 ORDINANCE NO. 2457 Page 8 (d) (c) (f) (g) , Complete legend of drawings submitted otherwise approved by the City. by applicant unless 10. Four (4) sets of engineering plans must application. be submitted with permit 11. The name, address and phone numbers of the contractor or subcontractor who will perform the actual construction, including the name and telephone number of an individual employed by the contractor who will be available at all times during construction. Such information shall be required prior to the commencement of any work. 12. The construction and installation methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the fight-of-way, and the dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the City. 13. A statement that the requirements of Subsection E(1)(e)1 are met. All construction and installation in the right-of-way shall be in accordance with the permit for the facilities and any approved plans and specifications made in connection with it. The City shall be provided access to the worksite and to such further information as may be reasonably required to ensure compliance with the permit. A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the City at all times when construction or installation work is occurring. All construction or installation work authorized by permit must be completed in the time specified in the construction permit. If the work cannot be completed within the specified time periods, the permittee may request an extension from the City. Extension requests are to be made at the same location where permits are issued. The City will use its best efforts to approve or disapprove a request for extension as soon as possible. A copy of any permit or approval issued by federal or state authorities for work in federal or state right-of-way located in the City of College Station, if requested by the City. O/group/legal/ordinances/cocs row ordS. doc 06/28/00 61 ORDINANCE NO. ~ Page 9 Gt (h) A request for a permit must be submitted at least ten (10) working days before the proposed commencement of work in the request, unless waived by the City in writing. (i) Requests for permits will be approved or disapproved by the City within a five (5) business days of receiving all the necessary information. The City will use best efforts to approve or disapprove a request for permit as soon as possible. City will provide reason to permitee should permit be disapproved. (j) The City or the applicant can request a pre-construction meeting with the permittee and their construction contractor. (k) Permit applications are required for construction of new, replacement facilities or upgrading of the company's existing facilities in the right-of- way or public utility easement either aerial or underground. (1) Permit fees as adopted by College Station City Council resolution will apply to those fight-of-way users who do not pay annual blanket fight-of- way fees. CONSTRUCTION STANDARDS. (1) City must be notified twenty-four (24) hours in advance that construction is ready to proceed by either the fight-of-way user, their contractor or representative. At the time of notification, the fight-of-way user will inform the City of the number (or other information) assigned from the one-call system. (2) All construction shall be in conformance with all applicable City codes, local, state and federal laws. (3) Three-by-three (3 x 3) feet information signs identifying the name of the company doing the work, telephone number and permittee's identity and telephone number shall be placed at the location where construction is to occur prior to the beginning of work in the fight-of-way and shall continue to be posted at the location during the entire time the work is occurring. An informational sign will be posted in public fight-of-way one hundred feet (100') before the construction location commences and each one hundred feet (100') thereafter, unless other posting arrangements are approved or required by the City. (4) Erosion control measures (e.g. silt fence) and advance warning signs, markers, cones and barricades must be in place before work begins. The contractor will O/group/legal/ordinances/cocs row ordJ.doc 06/28/00 62 ORDINANCE NO. 245~ Page 10 (s) (6) (7) (8) (9) (lO) (11) (12) (13) contain and prevent all soil from migrating offsite by use of water suppression, vehicle cleaning areas, silt fences, hay bales, etc. The Contractor will maintain base material on streets under construction and on detours as required to maintain sufficient moisture content in surface layer for dust control. The Contractor will be responsible for cleaning mud and dust from roadways on a daily basis. Lane closures on major thoroughfares will be limited after 8:30 a.m. and before 4:00 p.m. unless the City grants prior written approval. Arrow boards will be required on lane closures, with all barricades, advance warning signs and thirty- six inch (36") reflector cones placed according to the specifications of the City. Permittee is responsible for the quality of the workmanship and any damage caused by its contractors or subcontractors. A designated representative of the permittee will be available to the City at all times during construction. Permittee shall be responsible for storm water management erosion control that complies with City, state and federal regulations and guidelines. Requirements shall include, but not be limited to, silt fencing around any excavation that will be left overnight, silt fencing in erosion areas until reasonable vegetation is established, barricade fencing around open holes, and high erosion areas will require wire-backed silt fencing. Upon request permittee may be required to furnish documentation submitted or received from federal or state government. Permittee, contractor or subcontractor will notify the City immediately of any damage to other utilities, either City or privately owned. It is the City's policy not to cut streets or sidewalks; however, when a street or sidewalk cut is necessary, prior written approval must be obtained from the City and all requirements of the City shall be followed. Repair of all street and sidewalk removals must be made promptly to avoid safety hazards to vehicle and pedestrian traffic. Installation of facilities must not interfere with City utilities, in particular, gravity dependent facilities. New facilities must be installed to a depth approved by the City. All directional boring shall have locator-place bore marks and depths while bore is in progress. Locator shall place mark at each stem with paint dot and depth at least every other stem. O/group/legal/ordinances/cocs row ord$.doc 06/28/00 63 ORDNANCE NO. 2457 __ Page I 1 H, (14) The working hours in the fights-of-way are 7:00 a.m. to thirty (30) minutes before sunset, Monday through Friday. Work that must be performed after thirty (30) minutes before sunset Monday through Friday must be approved in advance. Any work performed on Saturday must be pre-approved twenty-four (24) hours in advance by the City. Directional boring is permitted only Monday through Friday 7:00 a.m. to thirty (30) minutes before sunset, unless approved in advance. No work will be done, except for emergencies, on City holidays. (15) People working in the right-of-way are responsible for obtaining line locates from all affected utilities or others with facilities in the right-of-way prior to any excavation. Use of the Geographic Information System or the plans of record or both does not satisfy this requirement. (16) Permittee will be responsible for verifying the location, both horizontal and vertical, of all facilities. When required by the City, permittee shall verify locations by pot holing, hand digging or other method approved by the City prior to any excavation or boring with the exception of work involving lane closures, as discussed above. (17) Placement of all manholes and/or hand holes must be approved in advance by the City. Handholes or manholes will not be located in sidewalks, unless approved by the City. (18) Locate flags shall not constructed. be removed from a location while facilities are being (19) Construction which requires pumping of water or mud shall be contained in accordance with City of College Station ordinances, federal and state law. PLANS OF RECORD Right-of-way and public utility easement users will provide the City with "plans of record" (also called "as built " plans) within ninety (90) days of completion of facilities in the fight-of-way and/or public utility easement. Users who have existing facilities in the right-of-way and public utility easements as of the effective date of this ordinance who have not provided a copy of the "plans of record" shall provide one-fourth (¼) of the information concerning facilities in City right-of-way within one (1) year after the passage of the ordinance and one- fourth (¼) each six (6) months thereafter. The plans shall be provided to the City with as much detail and accuracy as required by the City. Plans that do not meet these requirements are incomplete and shall not be considered submitted to the City under this Ordinance All the requirements specified for the plans submitted for the initial permitshall be submitted and updated in the plans of record. The O/group/legal/ordinances/cocs row ordJ. doc 06/28/00 64 ORD~~CE NO. 2457 Page 12 detail and accuracy will concern issues such as loeationand any other health, safety and welfare concerns required to be included by City. The detail will not include matters such as capacity of lines, customers, or competitively sensitive details. Submittal of "plans of record" shall be in digital format. (2) This requirement, or portions of this requirement, may be waived by the City for good cause. RELOCATION OF FACILITIES REQUIRED; ABANDONMENT Whenever the City widens, or straightens, installs, relocates public streets, alleys, easements, bikeways, sidewalks, thoroughfares, highways, public ways, water lines, electric lines, fiber optic or sewer lines, the user shall relocate, at its own expense (unless otherwise provided otherwise by state law or a franchise in effect on August 26, 1999, until that franchise expires or is otherwise terminated), its facilities and other appurtenances in order to accommodate the installation, relocation, widening, or changing of the grade of same including if necessary relocating such poles wire cables anchors, manholes, conduits, or other facilities or appurtenances to a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way. Additionally, the user must relocate at its sole expense any facilities erected or maintained if said relocation is deemed necessary by the governing body or its designated representative for traffic safety purposes or the accommodation of other necessary utilities owned and/or operated by the City including traffic signals. Whenever by reason of changes in the grade of a thoroughfare or in the location or manner of constructing a water pipe, gas pipe sewer or other aboveground or underground structure it is deemed necessary by the City to remove, alter change adapt or conform the underground or aboveground facilities of the user, the user shall make the promptly but not later than ninety (90) days from the date that notice is sent to Owner unless a different schedule was approved by the City without claim for reimbursement or damages against the City. If Owner fails to move its facilities after ninety (90) days or the approved schedule, whichever is applicable, as same may be extended from time to time, the facilities shall be deemed abandoned and City may remove the facilities without liability therefore and charge the cost of removal to Owner. J. IMPROPERLY INSTALLED FACILITIES. Any person doing work in the City right-of-way shall install, repair, upgrade and maintain facilities in a good and workmanlike manner, and in accordance with the standards and specifications established herein as well as all applicable industry standards, and local, state, administrative and federal laws, rules, regulations and guidelines. O/group/legal/ordinances/cocs row ordS. doc 06/28/00 65 ORDINANCE NO. 2457 Page 13 (2) Facilities shall be considered to be improperly installed, repaired, upgraded or maintained if: (a) The installation, repairs, upgrade or maintenance endangers property or people; (b) The facilities do not meet the applicable City codes; (c) The facilities are not capable of being located using standard practices; (d) The facilities are not located in the proper place at the time of construction in accordance with the directions provided by the City. K. RESTORATION OF PROPERTY. (1) Users of the fight-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance of the work. Restoration must. be approved by the City. (2) Restoration must be to the reasonable satisfaction of the City. shall include, but not be limited to: The restoration (a) Replacing all ground cover with the type of ground cover damaged during work or better either by sodding or seeding, as directed by the City; Installation of all manholes and handholes, as required; (c) Backfilling all bore pits, potholes, trenches or any other holes shall be filled in daily, unless other safety requirements are approved by the City; (d) Leveling of all trenches and backhoe lines; (e) Restoration of excavation site to City specifications; (0 Restoration of all landscaping, and sprinkler systems. All locate flags shall be removed during the clean up process by the permittee or his/her contractor at the completion of the work. 2~ Restoration must be made promptly, as specified by approved City schedules and to the satisfaction of the City. if restoration is not performed promptly, all work-in-progress, except that related to O/group/legal/ordinances/cocs row ordS.doc O6/28/00 66 ORDINANCE NO. ~ Page 14 C~ m~ the problem, including all work previously permitted but incomplete may be halted and a hold may be placed on any permits in progress but not approved until all restoration is complete. REVOCATION OR DENIAL OF PERMIT. If any of the provisions of this ordinance are not followed, a permit may be revoked by the City. If a person has not complied with the terms and conditions of this ordinance in work done pursuant to a prior permit, new permits may be denied or additional terms and conditions required. APPEAL FROM DENIAL OR REVOCATION OF PERMIT. Appeal from denial or revocation of a permit or from the decision of the City staff shall be to the City Council. Appeal shall be filed with the City Secretary within fifteen (15) days from the date of the decision being appealed." O/group/legal/ordinances/coo row ordS. doc 06/28/OO 67