HomeMy WebLinkAbout1999-094FILE REFERENCE FORM 99-094
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Amended by Ordinance No. 2005-156 06/07/05 JR
ORDINANCE NO q-
AN ORDINANCE AMENDING ORDINANCE NOS 88-189 AND 95-191 AND CHAPTER 8
OF THE CODE OF ORDINANCES, WHICH RESPECTIVELY GRANTED A FRANCHISE
TO SAMMONS COMMUNICATIONS, INC AND AUTHORIZED THE TRANSFER OF
THAT FRANCHISE TO MARCUS CABLE ASSOCIATES, L P, GRANTING CONSENT TO
THE ASSIGNMENT AND TRANSFER OF CONTROL OF A CABLE TELEVISION SYS-
TEM ANT) FRANCHISE FROM MARCUS CABLE ASSOCIATES, L L C TO PAUL G AL-
LEN, AND APPROVING AN ACCEPTANCE AGREEMENT AND AN AGREEMENT IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE, PRO-
VIDING FOR A SAVINGS CLAUSE, PROVIDING FOR PUBLICATION, PROVIDING FOR
THE EFFECT OF THIS ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS,
AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of Denton granted a cable television franchise to Sammons Com-
munications, Inc ("Sammons") pursuant to Ordinance No 88-189 passed by the City Council on
November 5, 1988 and duly accepted by Sammons which incorporates the provisions of Chapter
8 "Cable Television" of the Code of Ordinances of the City of Denton, and
WHEREAS, the City's Ordinance No 95-191 consented to the transfer and assignment
of the Franchise and the cable television system in the City from Sammons to Marcus Cable As-
sociates, L P subject to the terms and conditions set forth in the Ordinance and in an Acceptance
Agreement dated September 12, 1995 (Ordinance Nos 88-189 and 95-191 and the Acceptance
Agreement of September 12, 1995 are hereinafter referred to collectively as the "Franchise"),
and
WHEREAS, performance of the obligations of the Franchise by Marcus Cable Associ-
ates, L P was unconditionally guaranteed by Marcus Cable Operating Company, L P , Marcus
Cable Company, L P and Marcus Cable Properties, L P , and
WHEREAS, Marcus Cable Associates, L P has converted to a Delaware limited liability
company named Marcus Cable Associates, L L C , which is the current grantee under the Fran-
chise, and
WHEREAS, the other Marcus entities that are guarantors of the performance of the Fran-
cluse have also converted to Delaware limited liability companies respectively named Marcus
Cable Operating Company, L L C ("MCOC"), Marcus Cable Company, L L C ("MCC") and
Marcus Cable Properties, L L C ("MCPLLC"), and
WHEREAS, Marcus Cable Associates, L L C is a wholly owned subsidiary of MCOC
which is in turn a wholly owned subsidiary of MCC, and
WHEREAS, Charter Communications Holdings, L L C , a Delaware limited liability
company ("CC Holdings") is or will be the sole owner of MCC, and
WHEREAS, CC Holdings is or will be wholly owned by the following entities
MCPLLC, Vulcan Cable, Inc, a Washington corporation ("Vulcan"), Vulcan Cable II, Inc, a
Washington corporation ("Vulcan II"), and Charter Communications, Inc ("Charter"), and
WHEREAS, MCPLLC is owned 74 36% by Marcus Cable Properties, Inc, a Delaware
corporation ("MCP Inc ") and 25 64% by Vulcan, and
WHEREAS, Paul G Allen is the sole owner of MCP Inc , Vulcan and Vulcan II and
owns 93 25% of Charter, and Allen thereby controls Marcus Cable Associates, L L C , the
grantee under the Franchise, and
WHEREAS, Vulcan is the Manager of MCC pursuant to First Amendment to Operating
Agreement dated as of August 25, 1998, and
WHEREAS, Charter is managing Marcus Cable Associates, L L C pursuant to a Man-
agement Consulting Agreement dated as of October 6, 1998, and
WHEREAS, the ownership and control structure as it will exist after the transfer of con-
trol is shown in Exhibit A, and
WHEREAS, the transfer of control of Marcus Cable Associates, L L C to Allen, the re-
structuring of the Marcus and Charter cable businesses, and the management of Marcus Cable
Associates, L L C by Charter are hereinafter referred to collectively as the "Transaction", and
WHEREAS, MCPLLC and Vulcan submitted an Application for Franchise Authority
Consent on FCC Form 394 providing certain information with respect to the parties and the pro-
posed transfer in accordance with Section 8-62 of the Code of Ordinances of the City of Denton,
and the City has joined with a number of other cities in the Dallas/Fort Worth region served by
Marcus Cable Associates, L L C to hire the law firm of Vamum, Riddenng, Schmidt & Howlett
L L P to iexamine and evaluate the transfer and to represent the cities in negotiations with Paul
G Allen and Marcus Cable Associates, L L C regarding the transfer, and
WHEREAS, MCPLLC, Charter and Vulcan submitted additional information and docu-
ments relating to the Transaction and its effect on the provision of cable television service within
the City in response to requests of the City, and
WHEREAS, the City is relying upon the foregoing information and documents in acting
upon the Application for Franchising Authority Consent, and
WHEREAS, the City Council, relying on the recommendation of Varnum, Riddenng, Schmidt &
Howlett, L L P and the City staff, in accordance with Section 8-62 of the Code of Ordinances
and applicable federal laws and regulations, has examined Paul G Allen's financial capabilities,
legal qualifications, general character qualifications, and technical ability to meet community
needs for cable television service and to comply with the provision of the Franchise, the current
Pole Lease and Cable Duct Use Agreements, the conchtions imposed by tlms ordinance, and with
all applicable local, state, and federal laws and regulations, and
Page 2
WHEREAS, the City intends to consent to the Transaction, subject to acceptance by
Marcus Cable Associates, L L C , MCP Inc, CC Holdings, Charter, Vulcan and Vulcan II of the
terms and conditions set forth herein, having determined that such consent is in the best interest
of and consistent with the public necessity and convenience of the City, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City Council hereby consents to the Transaction, including the
transfer of control of the Franchise and the cable television system from Marcus Cable Associ-
ates, L L C to Paul G Allen, subject to execution by Marcus Cable Associates, L L C, MCP
Inc, CC Holdings, Charter, Vulcan and Vulcan II of an Acceptance Agreement in the form at-
tached hereto and incorporated herein as Exhibit 1, and subject to execution by Paul G Allen of
an Agreement in the form attached hereto and incorporated herein as Exhibit 2
SECTION II. That the City Council hereby consents to and approves Marcus Cable As-
sociates, L L C 's continued operation under the terms and conditions of those certain Pole Lease
and Cable Duct Use Agreements, attached hereto and incorporated herein as Exhibits 3 and 4 for
the remaining terms of these agreements
SECTION III That to the extent that this ordinance or the attached Acceptance Agree-
ment and Agreement modify any of the terms and conditions of Ordinance No 88-189 and Ordi-
nance No 95-191 and Chapter 8 of the Code of Ordinances of the City of Denton, said ordi-
nances and Chapter 8 of the Code of Ordinances are hereby amended Save and except as hereby
amended, the remaining sections, sentences, paragraphs, and provisions of Ordinance Nos 88-
189 and 95-191 and Chapter 8 of the Code of Ordinances shall remain unchanged and in full
force and effect
SECTION IV. That in accordance with Section 13 02 of the City Charter, this ordinance
shall become effective twenty-one days after final approval, if, after that date, Vulcan and Char-
ter shall have their written acceptance of this ordinance by signing as provided below, and pro-
vided that, after final approval and before expiration of twenty-one days, the full text of this or-
dinance shall be published once each week for two consecutive weeks in the official newspaper
of the City, the entire expense of which shall be borne by Vulcan, Vulcan II, and Charter The
City Secretary is hereby directed to publish the full text of this ordinance in such official news-
paper of the City once each week for two consecutive weeks immediately following the passage
of this ordinance on second reading
SECTION V. That Vulcan Cable, Inc, Vulcan Cable II, Inc, Charter Communications,
Inc, and Charter Communications Holdings, L L C for themselves, their successors and assigns
shall accept this ordinance including the attached exhibits and agree to be bound by all of its
terms and conditions by executing the paragraph entitled "Acceptance" on page 4 of this ordi-
nance
SECTION VI. That this ordinance shall be in full force and effect from and after its pas-
sage, publication and written acceptance as above specified, provided however, that this ordi-
nance shall expire and be of no further force and effect on October 31, 1999 if the entire Trans-
action has not been consummated by that date
Page 3
PASSED AND APPROVED this the day of A 1999
ATTESTI
JENNIFER WALTERS, CITY SECRETARY
BY
APP VED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
IO-rd
ACCEPTANCE By the signature hereunder, Vulcan Cable, Inc, Vulcan Cable II, Inc, Charter
Communications, Inc, and Charter Communications Holdings, L L C , the transferee and
grantee, hereby represent that the officers signing below are fully authorized to bind the under-
signed corporations, and their signatures hereon constitute an acceptance and the undersigned
business entities' agreement to fully comply and abide by the terms and conditions of this Ordi-
nance, Ordnance Nos 88-189 and 95-191 as amended hereby, the attached Acceptance Agree-
ment and Pole Lease Agreement, the provisions of Chapter 8 of the Code of Ordinances of the
City of Denton, Article XIII "Franchises" of the City Charter, and all other applicable laws and
regulations
VULCAN CABLE, INC
BY
4udi c llum Foushee
Title Assistant 4acrP ary
Date of Execution March 23, 1999
Page 4
VULCAN CABLE II, INC
BY
Trud1 iCCollum Foushee
Title A.c .ci.ctnnt Rarrptary
Date of Execution March 23, 1999
CHARTER COMMUNICATIO)NS, INC
Tru�i cCollum Foushee
Title n
V e Pr ounse
Law & Regulatory Affairs
DateofExecution March 23, 1999
CHARTER COMMUNICATIONS
HOLDINGS, INC
BY fi�
Title M Celeste Vossmeyer
Relations
Date of Execution March —FAQ
\\CH LGL\V0L1l BARED\DBPTLGL\0w Dmumen%N0rdlnmcw\99\mmcm trmd. doc
Page 5
EXHIBIT 1
DENTON
ACCEPTANCE OF TERMS
AND CONDITIONS TO TRANSFER OF CONTROL OF A
CABLE TELEVISION SYSTEM AND FRANCHISE
("ACCEPTANCE AGREEMENT")
This Acceptance Agreement dated as of .45 1999 relates to a cable television
franchise granted by the City of Denton ("City") n Ordinance No 88-189, as amended by
Ordinance No 95-191 and an Acceptance Agreement dated September 12, 1995 The
foregoing Ordinances and the 1995 Acceptance Agreement are hereinafter referred to
collectively as the "Franchise " Marcus Cable Associates, L L C , formerly Marcus Cable
Associates, L P , is the current grantee under the Franchise and is referred to herein as
"Company"
Company is a wholly owned subsidiary of Marcus Cable Operating Company, L L C
Marcus Cable Operating Company, L L C is a wholly owned subsidiary of Marcus Cable
Company, L L C Marcus Cable Company, L L C is in turn wholly owned, directly or
indirectly, by Marcus Cable Properties, Inc ("MCP") and Vulcan Cable, Inc, a Washington
corporation ("Vulcan") MCP and Vulcan are wholly owned by Paul G Allen ("Allen")
The following matters are the subject of this Acceptance Agreement
• Vulcan will become the Manager of Marcus Cable Company, L L C pursuant
to First Amendment to Operating Agreement dated August 25, 1998
• Allen has acquired 93 25% ownership of Charter Communications, Inc,
("Charter"), a Delaware corporation that indirectly owns all of the Charter
cable television operating entities Charter has been conducting the day-to-day
operations of Company pursuant to a Management Consulting Agreement
dated as of October 6, 1998
• Charter Communications Holdings, L L C ("CC Holdings"), a Delaware
limited liability company, owns or will own 100% of Marcus Cable Company,
which will continue to own 100% of Marcus Cable Operating Company,
L L C, which in turn owns 100% of Company and 100% of all other Marcus
cable television operating entities CC Holdings will also have indirect 100%
ownership of all Charter cable television operating entities
• CC Holdings will be 100% owned directly or indirectly by MCP, Vulcan,
Charter and Vulcan Cable II, Inc ("Vulcan 11"), a Washington corporation
Allen owns 100% of Vulcan II in addition to his ownership of 100% of MCP
and Vulcan and 93 25% of Charter
Vulcan, Vulcan II, Charter, CC Holdings, MCP and Marcus Cable Associates, L L C
make this agreement for the purpose of accepting an Ordinance of the City consenting to the
transfer of control of the franchise to Allen and the restructuring set forth above, including
management of Company by Charter
The structure of ownership and control as it will exist after the transfer of control and
the restructuring is set forth in Exhibit A attached hereto The transfer of control of
Company to Allen and the foregoing restructuring, including Charter's management of
Company, are referred to collectively herein as the Transaction
Covenants Bmdme The promises, covenants, and conditions contained herein
inure to the benefit of the City and are binding on MCP, Charter, Vulcan,
Vulcan II, CC Holdings and Company
2 Acknowledgment CC Holdings, MCP, Charter and Vulcan acknowledge that
the transfer of control and restructuring are expressly subordinate to and will
not affect the binding nature of the Franchise and the obligations provided
therein, and that the consent of the City to the Transaction does not constitute
a waiver or release of any rights of the City
3 Reliance Company, CC Holdings, MCP, Charter and Vulcan acknowledge
that the City has consented to the Transaction in reliance upon the
representations, documents and information provided by Company, Charter
and Vulcan, all of which are incorporated herein by reference
4 Customer Service Company will comply with the customer service and
consumer protection provisions set forth in Exhibit B
Prior Defaults Company, MCP, Charter, Vulcan and CC Holdings agree that
they will not contend directly or indirectly that any defaults or failures to
comply with the franchise or other matters set forth in 47 USC § 546(c)(1)(A)
(Communications Act of 1934, Section 626(c)(1)(A) (collectively "Defaults")
occurring prior to the Transaction are waived, including but not limited to the
following
5 1 The ability of the City to obtain redress for prior Defaults, such as
recovery of any underpayment of franchise fees or obtain refunds for
periods prior to the Transaction
52 The ability of the City to enforce in the future any Franchise terms
which may not have been enforced in the past
53 The ability of the City to consider Defaults occurring prior to the
Transaction in connection with any renewal or nonrenewal of the
Franchise
54 This Section 5 is without prejudice to Company, MCP, Vulcan or CC
Holdings contending that the default or failure to comply has been
cured
6 Validity of Franchise, Charter, MCP, CC Holdings and Vulcan accept and
agree to be bound by the terms and conditions of the City Charter, the
Franchise and all ordinances applicable to Company's operations after the
transfer Charter, MCP, CC Holdings, Vulcan and Company do not contend
that any provision of the Franchise is unlawful or unenforceable, nor are they
aware of any ordinance or any provision in the City Charter which they
contend is unlawful or unenforceable The City acknowledges that the
Franchise is in full force and effect
7 Franchise for Cable Only Company, MCP, CC Holdings, Charter and Vulcan
acknowledge that the Franchise is granted solely for the provision of Cable
Service including services described in Section 12
8 Service and aurnment for Public Facilities
81 Following the transfer of control, Charter, MCP, CC Holdings and
Vulcan will cause Company to continue to provide the same
installations and service without charge to public facilities being
provided at the present time, but in all events no less than is required by
the Franchise, this Acceptance Agreement or any applicable city
ordinance
3
9, Access to Records The records and reports of the franchise grantee which are
to be submitted to the City or otherwise made available for the City (such as
for inspection by the City) pursuant to the Franchise or other ordinance or
charter provisions of the City shall include records maintained by Charter,
Vulcan, CC Holdings and their Affiliates to the extent necessary for the City
to discharge its responsibilities under the Franchise, FCC rules or state or local
law, or to insure compliance with the Franchise or this Acceptance Agreement
10 Transaction Transparent to Rates CC Holdings, Charter, MCP, Company and
Vulcan acknowledge that unless expressly provided elsewhere in this
Acceptance Agreement (a) the transfer, the consent process, the City's action
granting consent, and this Acceptance Agreement and the terms hereof (other
than Section 18 2 ) do not provide any basis for increasing the amounts paid
by subscribers through cost pass -through as so-called "external costs" or as
new franchise requirements, (b) the consent process, action, and this
Acceptance Agreement do not provide any basis for increasing the amounts
paid by subscribers in any other manner, and (c) Company will not separately
itemize costs or franchise requirements ansmg from this Acceptance
Agreement on subscriber bills
11 Review of Purchase Price Section 8-62(1) of the Cable Television Ordinance
contains provisions relating to review by the City of the price paid for the
cable system and the impact of that price on future rates In light of the
present limitations and uncertain future of rate regulation, the parties have
agreed not to address the interpretation, application and enforceability of these
provisions in the consent process All such matters may be raised and decided
in the future MCP, Charter and Vulcan agree that the City has not waived any
claims or rights it may have in that connection by failing to pursue them in the
transfer approval process and the City acknowledges that MCP, Charter and
Vulcan have not waived any rights in that connection
12 Cable Modem, High -Speed Data and Internet Services The Federal
Telecommunications Act of 1996 modified the definition of "cable services"
in the Federal Cable Act (Title VI of the Communications Act of 1934, 47
USC Section 115 and following) The change addresses cable companies'
ability to provide Enhanced, Advanced Cable Services over a Cable System
as a cable service (and not as a telephone service, with accompanying
telephone regulation ) The Franchise predates and does not reflect this
4
legislative change Company intends to provide Enhanced, Advanced Cable
Services where economically feasible
121 To remove any uncertainty on Company' authority to provide
Enhanced, Advanced Cable Services the parties agree that Company
has the authority to provide Enhanced, Advanced Cable Services under
the Franchise and that the revenues therefrom shall be included in gross
revenues for the purpose of computing and paying cable franchise fees
122 If Company provides any Enhanced, Advanced Cable Services to
residential subscribers within the City, then without any initial or
ongoing charge it shall provide the City cable modems and associated
access to the Internet with a speed of up to 250 kbs Such modems and
service shall be provided to each City library located within City and
to three (3) additional locations specified by the City in City buildings
13 System Upgrade, If Company has scheduled an upgrade of Company's
facilities in the City that has not yet been completed, the estimated completion
date is shown on Schedule 13 Company, CC Holdings, MCP, Charter and
Vulcan agree that the Transaction will not adversely affect the scope or timing
of the upgrade
14 Continuity of Management Company, CC Holdings, MCP, Charter and
Vulcan acknowledge that (a) at the time of submission of the Form 394
subscribers residing in the City were experiencing serious and on -going
deficiencies in service, (b) the provisions of Exhibit B are in response to these
problems, and (c) the City is approving the Transaction and the transfer of
control in reliance on the actions taken by Allen and Charter in the interim to
improve customer service and in the expectation of continuity of Charter's
management to assure that the problems will not recur Allen and Charter
have informed the City that they intend to keep the present Charter
management team in place Until the Transaction is completed, Charter will
continue to manage Company and the cable television system in the City
15 Frequency of Rate Increases Company will not file a submission to increase
its rates for basic cable service, equipment, or service calls regulated by the
City more than once in each calendar year
5
16 Other Matters
16 1 Conflic In the event of any conflict between the terms of this
Acceptance Agreement and the Franchise or any City Ordinance, that
provision which provides the greatest benefit to the City, in the opinion
of the City Council, shall prevail
16 2 Waivers The parties hereto will join the City in obtaining from the
FCC any waivers or other relief from time to time necessary to
effectuate the provisions of this Acceptance Agreement
163 Null and Void At the City's option this Acceptance Agreement and
the City's consent to the Transaction shall become null and void in
either of the following circumstances Such option may be exercised
prior to completion of the Transaction by the City giving written
notice to Company and Vulcan at the addresses designated in the Form
394
163 1 If the transfer of control of the Franchise or any other
part of the Transaction is not completed on or before
October 31, 1999
1632 If the Management Consulting Agreement dated as of
October 6, 1998 pursuant to which Charter is directing the
management of Company is terminated or if Charter's
control over Company's operations is materially reduced
164 Costs Vulcan will cause the City to be reimbursed for its reasonable
expenses in connection with the consent process including publication
costs and fees of consultants and attorneys Such reimbursement shall
not exceed the aggregate amount of $275,000 plus publication costs for
the City and the other municipalities which have acted with the City in
connection with the consent process Reimbursement of costs and fees
under this provision shall not be considered a payment of franchise
fees, shall not be passed through to subscribers and is subject to the
provisions of Section 10
16 5 Venue and Choice of Law Venue of any suit under or ansmg out of
this Acceptance Agreement shall be exclusively in Denton County,
Texas or in the United States District Court for the Northern District of
Texas This Acceptance Agreement shall be construed in accordance
with the laws of the State of Texas
166 Treatment of Liquidated Damages Company, CC Holdings, MCP and
Vulcan acknowledge and agree that liquidated damages under this
Acceptance Agreement (including its Exhibits) and the Franchise do
not constitute franchise fees, do not reduce the amounts otherwise
payable as franchise fees, and will not be passed through to subscribers
167 Y2K Compliance By September 30,1999 Company will become Y2K
compliant and will establish and provide the City with a copy of a
contingency plan to prevent disruption of mission critical components
including customer service matters
168 Wire Maintenance Fee Company has announced its intention to
discontinue the 99¢ optional wire maintenance fee program that
Company first implemented in 1998 ("Current Fee") and offer in its
place an optional program covering maintenance of both telephone and
cable wires for a monthly fee of approximately 99¢ ("New Program")
1681 If this occurs during or before March 1999 (a) the City will not
seek to obtain refunds of amounts collected under the Current
Fee, (b) if the City has adopted a Rate Order with respect to the
Current Fee, the Rate Order will be deemed to be withdrawn,
and (c) if there is a proceeding pending before the FCC with
respect to such a Rate Order Company and the City will jointly
request termination of the proceeding
16 8 2 The City will not challenge the New Program during 1999 if the
monthly charge remains under $1 00
169 Rate Orders Unless a final order of the FCC (affirmed on appeal if an
appeal is taken) determines that franchise authority rate orders are
automatically stayed by the filing of an appeal to the FCC, Company
will implement each rate order adopted by the City unless and until
Company obtains an order of the FCC or a court of competent
jurisdiction staying the effectiveness of the rate order Company will
7
reimburse all attorneys fees and other expenses incurred by the City as
a result of a violation of this Section 16 9
16 10 Franchise Fee Calculation Company will comply with the decision of
the United States Court of Appeals for the Fifth Circuit in City of
Dallas v FCC, 118 F3d 393 (1997)
16 10 1 Company will pay the additional franchise fees due
under the Fifth Circuit decision with interest and without
pass -through to subscribers for the time period from
September 1997 until Company implemented the
decision
16 10 2 Company will also pay the additional franchise fees due
under the Fifth Circuit decision for the period of time
from the FCC's decision in United Artists Cable of
Baltimore, 10 FCC Rcd 7250 (1995) to September 1997
together with interest thereon Company may pass
through payments under this Section 16 10 2 to
subscribers (other than interest) if and to the extent
Company reduced its charges to subscribers as a result of
the FCC's decision
17 Institutional Network Company shall provide, construct, operate and
maintain an Institutional Network (excluding coders/decoders, interface and
other terminal equipment which will be supplied by Users) that will provide
the City and other I -NET Users with Institutional Network Services The I -
NET shall be as set forth below Unless the City agrees otherwise in writing,
the I -NET, including the individual fiber optic fibers constituting all or a
portion of it, shall be owned and maintained by Company but provided for the
exclusive use of the City and other I -NET Users and shall be provided without
any charge to the City or I -NET Users
17 1 This Section is left blank
17 2 Company shall install and terminate additional fiber optic pairs
("Incremental I -NET Fiber") in Company's future new and replacement
fiber optic installations for use as an I -NET as follows
E
17 2 1 City will inform Company in writing from time to time of the
additional facilities it would like to have served by an I -NET
Company will use such information in its plans for future fiber
installations, where (for example) one routing will pass a facility
City would like to have served and another (of comparable cost)
would not
17 2 2 By January 31 of each year Company will provide City with its
conceptual plans for new and replacement fiber optic
construction for that calendar year
17 2 3 Company will also provide City from time to time during the
year with written notice of conceptual plans for any additional
fiber optic construction during that year (or January of the
following year) Such notice shall be provided as soon as is
feasible
17 2 4 Upon written request by City, Company will provide City with
a conceptual cost estimate (and other information City may
reasonably require) of installing Incremental I -Net Fiber along
all or a portion of the routes that are a part of such conceptual
plans Such estimates shall be provided as soon as possible after
request by City in order that City may have time to obtain
approval (such as from its legislative body) to install such
Incremental I -Net Fiber
17 2 5 As to any route where City has requested a conceptual cost
estimate, Company shall provide City with the final cost of
installing Incremental I -Net Fiber (and such other information
as City may reasonably request) as soon as Company's design
of the fiber for such route is reasonably complete City will
have 30 days after receipt of the final cost figure to notify
Company to install Incremental I -NET Fiber
17 2 6 The cost of installing Incremental I -NET Fiber shall be
computed on an incremental basis, meaning the difference in
cost to Company of constructing and installing fiber on a given
route (a) with, and (b) without, the Incremental I -NET Fiber
E
17 2 7 Company shall be reimbursed by City for the cost of installing
I -NET fibers under this Section 17 2 computed as set forth in
Section 17 2 6
17 3 I -NET Maintenance Company shall provide I -NET Users with a
reliable level of service, repair and maintenance that at a minimum,
meets the following performance standards
17 3 1 Company shall maintain a minimum of 99 5 percent service
availability to I -NET Users measured over a period of one year
17 3 2 Company shall respond to repair requests from an I -NET User
for circuits identified as critical pursuant to Section 17 3 4
within 2 (two) hours of the request Company shall respond to
other repair requests within four (4) hours of the request
17 3 3 Company shall provide ongoing maintenance at its discretion,
as it deems necessary Company shall provide at least one week
advance notice to any affected I -NET User of any maintenance
requiring temporary interruption of services, except in
emergency situations
17 3 4 Company and the City shall develop a mutually agreeable
priority listing of critical circuits and their terminal locations
When notifying Company of service complaints, an I -NET User
shall identify critical circuits requiring priority repair Company
shall escalate repair of critical circuits to the extent reasonable
under the circumstances
17 4 Definitions
17 4 1 Institutional Network or I -NET means the fiber optic
communications network described in Section 17 and Schedule
17 to be constructed and operated by Company for the provision
to I -NET Users (but not Cable Service subscribers) of
Institutional Network Services
17 4 2 Institutional Network Services means the provision of usable
bandwidth capacity to I -NET Users through fiber optic lines for
10
applications including but not limited to two-way dedicated
voice, data, video and telephony channels connecting and
interconnecting facilities owned, leased or used by the City,
schools, counties, road commissions or other units of state or
local government Other applications include but are not limited
to computerized traffic control systems for coordinated traffic
control on an area -wide basis, Supervisory Control and Data
Acquisition (SCADA) systems for municipally owned water,
sewer, gas and electric systems (including street lighting
systems), interconnection of facilities serving police, fire and
other public safety systems, video arraignment facilities for local
courts, interconnection of government buildings for the two or
one-way interchange of video signals, and local area networks
or wide -area networks connecting governmental buildings, such
as for GIS (Geographical Informational Systems) purposes
17 4 3 I -NET Use means and is limited to the City and any school or
unit of state or local government designated by the City to
receive Institutional Network Services under this Acceptance
Agreement
18 HDTV Broadcast and cable channels are likely to convert in whole or in part
to an HDTV (high definition television) format within the next few years, with
channels likely being delivered in both HDTV and conventional analog
formats during a transition period The following provisions address the
ability of the City to acquire additional PEG Channels such that one or more
Users may have their signals simultaneously delivered by the Cable System in
both an HDTV and conventional analog 6 MHz NTSC format for the transition
period, and provide funds for Users to convert to an HDTV format
181 ftports. Company shall provide quarterly reports to City on its plans
and progress for HDTV conversion, including the number of channels
to be converted, date, equipment changes, formats to be used and other
information reasonably necessary for the City to be able to plan an
appropriate and potentially concurrent conversion of PEG Channels and
facilities to HDTV format
18 2 Grant After the date when Company provides at least fifty (50)
channels in one or more of several high definition television (or
11
successor) formats, as such formats may from time to time be adopted
or in effect ("HDTV Format"), then upon request from City Company
shall provide a Capital Facilities grant to City sufficient for Users to
convert all their facilities and equipment (including but not limited to
studios, vans, video, audio, lighting, control, storage and editing
equipment) to the HDTV Format selected by City but with the amount
of such grant not to exceed 300 per customer per month when
amortized over Company's subscribers as of the end of the calendar
quarter preceding the date when the grant is made, using straight line
amortization without interest for the lesser of five (5) years or the
remaining term of the Franchise City shall allocate the grant among
Users for such purpose as City deems is in the public interest Company
shall modify the cable system whereby Company receives PEG signals
from each User (for redistribution on its Cable System) so as to be
capable of receiving and accepting the User's signals City shall co-
ordinate with Company to ensure that the HDTV Format selected by
City is compatible with the format employed by Company
183 Temporga Additional PEG Channels After the date when Company
provides at least fifty (50) channels in HDTV Format, City may from
time to time request, and Company shall provide, one additional PEG
Channel so as to allow, to the extent deemed appropriate by City, PEG
Channel simulcasting in both 6 MHz analog NTSC format and in an
HDTV Format Company need no longer provide the additional PEG
Channel described in the preceding sentence when Company no longer
provides any channel of programming on the Cable System in 6 MHz
NTSC analog format
184 Allocation of PEG Channels As of the effective date of this
Acceptance Agreement City may allocate and reallocate PEG Channels
as follows City may at any time on six (6) months notice to Company
allocate or reallocate the usage of the PEG Channels among and
between different uses and Users This expressly may include City
removing a User or PEG Channel, replacing a User or PEG Channel,
requiring several different persons to share orjointly use a given PEG
Channel or conversely allowing one or more persons currently sharing
such a channel to have a channel on which they are the sole User
12
19 Leased Access and PEG Channels The need for a PEG Channel can be
removed by Company providing the User designated by City of such current
or prospective PEG Channel with an otherwise identical leased access channel,
so long as the leased access rate for such User is One Dollar ($1 00) per year
In the event the preceding sentence is exercised it shall be applied first to
educational channels and then to public channels If applied to such channels
the channel number on which they are carried shall not be changed and such
channels shall be included in the basic tier of service and shall be listed in
Company's program guide or comparable listing with an appropriate
description, such as "City of Fort Worth Channel" or "Fort Worth Public
Schools Channel " The need for a PEG Channel is removed only so long as
the User in question to fact is provided with such leased access channel
20 Transfer City consent in advance shall be required for a transfer of control of
Company, which shall include, but is not limited to, any of the following
20 1 Any change in limited partnership interests, non -managing limited
liability company interests, or non voting stock representing thirty
percent or more of the equity interests in the entity to question
20 2 Any option, right of conversion or similar right to acquire interests
constituting control without substantial additional consideration (such
as compared to consideration previously provided)
20 3 Any change in the effective control of Company including that
described in 47 C F R § 76 501 and following (including the notes
thereto but excluding footnote 2f) as in effect on the date of this
Acceptance Agreement
20 4 A transfer by Paul G Allen of any interest in MCP, Vulcan, Vulcan II
or Charter other than to an entity at least 80% owned by him that
assumes the guarantees provided in Section 23
20 5 Any transfer or transfers such that the direct and indirect ownership of
Allen in CC Holdings is less than 70%
20 6 Any acquisition of more than 10% ownership of CC Holdings by a
person or entity (or a group of persons or entities acting together) other
than Allen or entities wholly or more than 80% owned by Allen
13
21 Special Provision Company will implement the refund plan in response to
FCC Order OA97-2441 upon approval of the plan by the FCC and without
filing a petition for reconsideration or other delaying action
22 Definitions The following definitions shall apply for the purpose of this
Acceptance Agreement and its Exhibits
22 1 Affili means any individual, partnership, association, joint stock
company, limited liability company, trust, corporation, or other person
or entity who owns or controls, or is owned or controlled by, or is under
common ownership or control with the entity in question
222 Capital Facilities means PEG Channel and I -NET related facilities and
equipment including fiber lines, studios, production facilities, vans and
cameras or other property having a useful life of more than one year, as
well as any expenditures which increase or add to the value of the
facilities or equipment, adapt the facilities or equipment to new or
different uses, or maintain, restore, extend or prolong the useful life of
such facilities or equipment
22 3 Cable Service means
22 3 1 The one-way transmission to all subscribers of (i) Video
Programming, or (n) other programming services, by which is
meant information which Company makes available to all
subscribers generally, such as digital cable radio service, and
22 3 2 Subscriber interaction, if any, including but not limited to that
which is used for the selection or use of such Video
Programming or other programming services, selecting from
various on -screen options, use of Enhanced, Advanced Cable
Services, game channels, interactive services, downloading
programs or data access, or ordering merchandise, and
22 3 3 Institutional Network Services
22 4 Cable System or S ste means a facility consisting of a set of closed
transmission paths and associated signal generation, reception, and
14
control equipment that is designed to provide Cable Services to
multiple subscribers within the franchised area, 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, (n) a facility that serves
subscribers without using any public right of way, (ni) 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 (other than for
purposes of Section 621(c) of such Act) to the extent such facility is
used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on -demand
services, (iv) an open video system that complies with Section 653 of
Title VI of the Communications Act of 1934, as amended, or (v) any
facilities of any electric utility used solely for operating its electric
utility system
22 5 Enhanced. Advanced Cable Services means enhanced services,
information services, Internet protocol (IP) telephony, high speed data
service, Internet access and Internet service (such as that of an Internet
service provider)
22 6 FCC means the Federal Communications Commission
22 7 I -NET User has the meaning set forth in Section 17 4 3
22 8 Institutional Network or I -NET has the meaning set forth in Section
1741
229 Institutional Network Services has the meaning set forth in Section
1742
2210 PEG Channels means the public channels, educational channels and
government channels provided by Company on the cable system under
the Franchise, this Acceptance Agreement, or applicable ordinance, and
shall include leased access channels provided pursuant to Section 19
herein
22 11 User means a person authorized to operate or use a PEG Channel (or a
leased access channel provided in lieu of a PEG Channel under Section
15
19) or the I -NET, and shall include City If several persons share the
operation of a PEG Channel each person shall be a separate User
22 12 Video Progiamming means programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station
23 Guarantee Marcus Cable Properties, Inc , Vulcan Cable, Inc , Vulcan Cable
II, Inc , Charter Communications, Inc and Charter Communications Holdings,
L L C hereby jointly and severally unconditionally guarantee performance of
the obligations of the Franchise and of this Acceptance Agreement by
Company
Vulcan Fable, Inc
By
rude` -4c ollum Foushee
Assistant Secretary
Vulcan Cable II, I c
By
udi�M ollum Foushee
Assistant Secretary
C
M. Celeste Vossmeyer
Vice President-Governmen Relations
Properties,
M Celeste Vossmeyer
Vice President-Governme t Relations
16
Charter Cfmmunications. Inc
By F b Yj j=U _
Trydi McCollum Foushee
Vice President & Senior Counsel
Law & Regulatory Affairs
Chart Coc mumcahon� Idmgs, L L C
By I
M Celeste Vossmeyer
Vice President -Government Relations
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EXHIBIT B TO ACCEPTANCE AGREEMENT
CUSTOMER SERVICE AND CONSUMER PROTECTION
1. Customer Service Standards Company shall at all times comply with the
more stringent of the customer service and consumer protection provisions of
this Exhibit B, the Franchise and the FCC This requirement is in addition to
the specific provisions of subsequent sections set forth below
1 1 Company shall continue to comply with the National Cable Television
Association's On -Time Customer Service Guarantee, a copy of which
is attached as Exhibit B 1 The guarantee promises on -time service calls
or the customer receives $20 00, and on -time installation calls or the
customer receives a free installation The $20 00 may be in the form of
a credit
12 Company may provide the Customer Bill of Rights of Charter to its
subscribers in the City
2 City Monitoring In addition to free outlets, free cable service or services
otherwise required by the Franchise, Company shall provide one service outlet
(which shall be at the Cable Administrator's office at City Hall, unless
otherwise specified by City) that shall receive without charge all programming
(and any other Cable Services) provided by Company, including services of
a premium, pay per view or other nature Such service shall be provided in
such a manner that City may monitor the programming and use of the cable
system for compliance with the Franchise, this Acceptance Agreement, FCC
technical standards, and applicable law The services provided pursuant to this
Section 2 shall be in a secure office location and not in a location open to
public viewing
Scrambling/Blocking Upon completion of the planned system upgrade to
860 MHz, Company shall at all times scramble both the audio and video
portions of all channels with predominately adult oriented programming
3 1 Upon request by a subscriber, Company shall entirely block such
subscriber from receiving both the audio and video portion of any
channel with predominantly adult oriented programming with devices
19
such as a notch filter which prevent the frequencies containing a
specific channel or channels from being transmitted into the
subscriber's premises
4 Pav Per View Subscribers shall be given the options of (a) not having pay per
view or per program service available at all or (b) only having such service
provided upon the subscriber providing a security number selected by an adult
representative of the subscriber
5 Notification Company shall provide written information on at least each of
the following matters (a) at the time of installation or reinstallation of service,
(b) annually to all subscribers, and (c) at any time upon request of a subscriber
or the City The information shall be dated with the printing, revision, or
effective date
5 1 Products and services offered
52 Prices (rates) and options for Cable Services and conditions of
subscription to Cable Service Prices shall include those for
programming, equipment rental, program guides, installation,
disconnection, processing charges for late payment and other fees
charged by Company
53 Installation and service maintenance policies
54 Instructions on how to use Cable Services, including procedures and
options for pay per view, premium ctiannels and connection to a VCR
55 Channel positions of programming carried on the cable system,
including a listing specific to the City showing the channel names and
numbers actually available to subscribers in the City
56 Billing and complaint procedures with a notice for the subscriber to
initially contact Company with complaints and questions
57 Applicable privacy requirements as set forth in the Franchise or
provided for by law
20
58 The availability of lockout devices and the ability to have a channel
entirely blocked or trapped (Section 3 1)
59 The refunds and free service available for violations of Sections 10 and
12 and how to obtain same
5 10 The procedure for resolving signal quality problems set forth in Section
202
6 Notice of Chanties Subscribers and the City shall be notified of any changes
in rates, Cable Services or channel positions as soon as possible through
announcements on the cable system or in writing Company will notify City
in advance of notifying subscribers and will make every effort to notify City
forth -five (45) days in advance of a change Unless a longer time period is
required by applicable law or regulation, 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 Company and as soon as possible if not within the control
of Company In addition, Company shall notify subscribers and the City thirty
(30) days in advance of any significant changes in the matters covered by the
preceding Section 5 Notifications provided pursuant to this Section shall be
dated with the printing, revision or effective date
7 Telephone Service Standards
7 1 Company shall have a local or toll -free telephone number available for
use by subscribers toll -free twenty-four (24) hours per day, seven (7)
days per week
72 The local or toll -free numbers shall be listed, with appropriate
explanations, in the directory published by each local telephone
company and in any significant directories published by others
73 Trained Company Representatives shall be available to respond to
subscriber telephone inquiries twenty-four (24) hours per day, seven (7)
days per week
7 3 1 As to video service matters, the term "Trained Company
Representatives" shall mean employees of Company who have
the authority and capability while speaking with a subscriber to,
21
among other things, answer billing questions, adjust bills, and
schedule service and installation calls
7 3 2 This Section 7 3 will take effect October 1, 1999
74 Under Normal Operating Conditions, telephone answer time by a
Trained Company Representative, including wait time, shall not exceed
thirty (30) seconds from when the connection is made If the call needs
to be transferred, the time to complete the transfer time shall not exceed
thirty (30) seconds These standards shall be met no less than ninety
percent (90%) of the time under Normal Operating Conditions,
measured on a quarterly basis
75 Under Normal Operating Conditions, the subscriber shall receive a
busy signal less than three percent (3%) of the time, measured on a
quarterly basis
Office/Home Delivery -Pick Un
8 1 Company shall maintain a physical office within the City, which shall
include a place where subscribers may pay their bills, pickup and return
converter boxes and comparable items and receive information on
Company and its services
8 1 1 The office shall be open at least from 8 AM to 5 PM Monday
through Friday plus an additional 8 hours in the evening and/or
on the weekend
Installation Standards Under Normal Operating Conditions, installations
located up to one hundred fifty (150) aerial feet from the existing distribution
cable system shall be performed within seven (7) business days after an order
has been placed no less than ninety-five percent (95%) of the time, measured
on a quarterly basis
10 Installations/Service Calls The following shall apply to subscribers (current
or new) requesting installations or service
22
101 Installations and service calls shall be available at a minimum from 8
AM to 7 PM Monday through Saturday Company shall at the
subscriber's option either (1) schedule the subscriber to be the first call
of the day or last call of the day on a first come, first served basis, (2)
schedule the appointment for a date certain on a "call to meet" basis
where as the service technician finishes his/her prior task, the
technician calls the subscriber and arranges to meet the subscriber
shortly thereafter, or (3) establish an appointment window of no more
than three (3) hours with the subscriber (or adult representative of the
subscriber) or another appointment window mutually agreed upon
between the subscriber and Company
102 Company shall respond to the request for service in accordance with the
option selected by the subscriber
10 3 Company shall not cancel an appointment with a subscriber after 5 PM
on the business day prior to the scheduled appointment
104 If Company's technician is running late for an appointment with a
subscriber and will not be able to keep the appointment as scheduled,
the subscriber shall promptly be contacted The appointment shall be
rescheduled, as necessary, at a time which is convenient for the
subscriber
105 In the event access to the subscriber's premises is not made available
to Company's technician when the technician arrives during the
established appointment window, the technician shall leave written
notification stating the time of amval and requesting that Company be
contacted again to establish a new appointment window
106 Notwithstanding the foregoing, if Company's technician or service
representative telephones the subscriber during or prior to the
appointment window and is advised that the technician will not be
given access to the subscriber's premises during the appointment
window, then the technician shall not be obliged to travel to the
subscriber's premises or to leave the written notification referred to
above, and the burden shall again be upon the subscriber (or adult
representative of the subscriber) to contact Company to arrange for a
new appointment
107 Except as otherwise provided above, Company shall be deemed to have
responded to a service or installation request under the provisions of
23
this section when a technician arrives at the service location or is
advised by telephone no access will be given
10 8 Company's service technician or service representative shall take
adequate time on each service call to address or correct the problem in
question
109 In the event that Company ceases to provide the NCTA On -Time
Customer Service Guarantee (Exhibit B 1) a violation by Company of
the provisions of this Section 10 shall automatically entitle the
subscribes to one month of free basic service and (if currently
purchased by the subscriber) one month of free cable programming
service (as defined in 47 C F R § 76 901)
10 10 Under Normal Operating Conditions, Company shall meet the
standards of Section 10 1 through 10 3 no less than mnety-five percent
(95%) of the time, measured on a quarterly basis
11 Service Call Charges No charge shall be made to the subscriber for any
service call relating to Company owned and Company maintained equipment
after the initial installation of Cable Service unless the problem giving rise to
the service request can be demonstrated by Company to have been
11 1 Caused by negligence of malicious destruction of cable equipment by
the subscriber, or
112 A problem established as having been non -cable in origin
12 Service Interruptions
121 Under Normal Operating Conditions, Company shall meet the
standards of Sections 12 2 and 12 4 no less than ninety-five percent
(95%) of the time measured on a quarterly basis
12 2 Under Normal Operating Conditions, Company shall begin working on
a Service Interruption promptly and in no event later than twenty-four
(24) hours after the interruption becomes known to Company
12 3 "Service Interruption" means the loss of picture or sound on one or
more cable channels, affecting one or more subscribers
24
124 Under Normal Operating Conditions, Company shall begin working on
subscriber complaints involving impairment or degradation of signal
quality (other than a Service Interruption) promptly and in no event
later than the next business day after the problem becomes known to
Company
12 5 Company shall be deemed to have begun work under the provisions of
this section when a technician arrives at the service location
12 6 Company shall provide affected subscribers, upon request by the City
or the subscriber, with one day's free service (equivalent to the service
they were receiving at the time of the interruption) for each day or
portion thereof of Service Interruption
13 Log of Complaints Company shall maintain a written log, or an equivalent
stored in computer memory and capable of access and reproduction in printed
form, of a random sampling of all cable -related customer Complaints within
the City that are referred to Company's Customer Care Group Such log shall
be in form and substance acceptable to the City and at minimum list the date
and time of each such Complaint, identify the customer to the extent allowed
by law, and describe the nature of the Complaint and when and what actions
were taken by Company in response thereto The log shall be organized by
City The log shall be kept at Company's office in or near the City for a
period of at least two (2) years and shall be available for inspection during
regular business hours by the City upon request
14 Bilk Company shall comply with the following on Cable Service billing
14 1 Bills shall be issued monthly to each subscriber with a balance due or
change of service
142 Bills shall be clear, concise and understandable Bills shall be fully
itemized, with itemizations including, but not limited to, basic service,
cable programming service, premium service charges and equipment
charges Bills shall also clearly delineate all activity during the billing
period, including optional charges, rebates, credits, and late charges
14 3 Each bill shall prominently display Company's local or toll -free
telephone numbers available for use by subscribers If a bill has more
than one portion (for example, one portion that is kept by the customer
and one portion that is sent to Company) the numbers shall prominently
25
appear on the front side of the portion of the bill retained by the
customer
14 4 Company shall respond in writing to all written complaints from
subscribers regarding billing matters within thirty (30) days
14 5 Company shall not disconnect a subscriber for failure to pay
legitimately contested charges during a billing dispute However,
during a billing dispute Company may disconnect a subscriber for
failure to pay charges that are not contested
14 6 The City shall be given thirty (30) days advance notice of any change
in the format of bills
15 Refunds and Credits Refund checks for Cable Service shall be issued
promptly, but no later than either
15 1 The subscriber's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier, or
15 2 If service is terminated, 30 days after return of equipment owned by
Company or at the time of the next billing cycle, whichever is earlier
15 3 Credits for Cable Service shall be issued no later than the subscriber's
next billing cycle following a determination that a credit is warranted
16 Late Payment for Cable Service
16 1 Each bill shall specify on its face in a fashion emphasizing same (such
as bold face type, underlined type or a larger font) "For payments
received after [date] a $ processing fee for late payment may be
charged "
16 2 No processing fees for late payment, however denominated, shall be
added to a subscriber's bill less than twenty-one (21) calendar days
after the mailing of the bill to the subscriber
163 No processing fees for late payment, however denominated, shall be
added to a subscriber's bill by reason of delay in payment other than
those described in this Section 16 All such charges shall be separately
stated on the subscriber's bill and include the word "late" in the
description of them
26
16 4 There have been negotiations in connection with this Acceptance
Agreement regarding the appropriate amount of fees that may be
charged for late payment The parties have agreed to withdraw this
issue from consideration without prejudice to any claims and defenses
17 Disconnection
171 Company shall not disconnect a subscriber for failure to pay until at
least forty-five (45) days have elapsed after the due date for payment
of the subscriber's bill and Company has provided at least ten (10) days
written notice separate from the monthly bill to the subscriber prior to
disconnection, specifying the effective date after which Cable Services
are subject to disconnection
172 Company may disconnect a subscriber at any time if Company in good
faith believes that the subscriber has tampered with or abused
Company's equipment, that there is a signal leakage problem (or other
non-compliance with FCC rules or other standards which poses a risk
to lives or property) on the subscriber's premises, or that the subscriber
is or may be engaged to the theft of Cable Services
173 Company shall promptly disconnect any subscriber who so requests
disconnection No period of notice prior to requested termination of
service shall be required of subscribers by Company No charge shall
be imposed upon the subscriber for or related to disconnection or for
any Cable Service delivered after the effective date of the disconnect
request (unless there is a delay in returning Company equipment) If
the subscriber fails to specify an effective date for disconnection, the
effective date shall be deemed to be the day following the date the
disconnect request is received by Company provided that Company
equipment has been returned
17 4 The term "disconnect" shall include customers who elect to cease
receiving Cable Service from Company and to receive Cable Service
or other multi -channel video service from another person or entity
18 Truth In Advertising Company's bills, advertising and communications to its
current or potential subscribers shall be truthful and shall not contain any false
or misleading statement For the purposes of the preceding, a statement is
false or misleading if it contains an untrue statement of any material fact or
omits to state a material fact necessary in order to make the statements made,
27
in the light of the circumstances under which they were made, not misleading
19 Reports Company shall provide reports to the City monthly (by the 15th
business day of the following month) and quarterly (by the 15th business day
of the following quarter) as follows
19 1 The reports shall include the following forms currently used by Charter
or otherwise in form and substance acceptable to the City, showing on
a consistent basis, fairly applied, Company's compliance with customer
service standards
19 1 1 System Statistics Report, Exhibit B2, which covers customer
service matters
19 12 Monthly Report of Service Calls by Reason, Exhibit B3, which
shall include an explanation of the categories of reported
reasons
19 13 Monthly Outage Summary by Franchise, Exhibit B4
19 14 Monthly Service Call Availability Analysis and Installation Call
Availability Analysis, Exhibit B5
19 1 5 Monthly Customer Call Sample Report, Exhibit B6, both by
City and on an overall basis, showing the results of a random
sampling of customer complaints referred to Company's
Customer Care Group
19 16 Monthly Call Center Performance Report, Exhibit B7
(excluding the 2% "assumed" adjustment)
192 Such reports shall show Company's performance excluding periods that
were not Normal Operating Conditions ("Abnormal Operating
Conditions") and if Company contends any such conditions occurred
during the period in question, it shall also describe the nature and extent
of Abnormal Operating Conditions and show Company's performance
both including and excluding the time periods Company contends such
conditions were in effect
19 3 At the City's request Company will provide additional information and
existing reports reasonably related to the measurement and evaluation
FM
of Company's compliance with the customer service requirements of
the Franchise, the Acceptance Agreement, and this Exhibit B
194 Reports of installations/service calls (Section 10) and service
interruptions (Section 12) shall report matters occurring within the City
Telephone reports may be for a larger area than the City if Company
can demonstrate that it is, in fact, representative of the phone service
provided within the City, such as where a call center receives calls from
numerous municipalities with no ability to distinguish between or give
preference to calls from one area or City over another
195 The City, by itself or in combination with other municipalities, reserves
the right to audit Company (or any Affiliate of Company) to verify the
accuracy of the reports required under this Section 19 All records
(including those of Affiliates) reasonably necessary to conduct the audit
shall be made available at a convenient location in the Fort Worth area
If the audit discloses performance that is three (3) percentage points
worse than any of the standards of the referenced sections (such as
compliance 92% of the time versus 95% of the time) Company shall
pay the City's costs in connection with the audit within thirty (30) days
of submission of an invoice
20 FCC Technical Standards The following shall apply to Company's
implementation of and compliance with the rules and regulations relating to
cable television technical standards for signal quality, currently set forth at 47
C F R § 76 601 and following, and subsequent amendments thereto
201 Company shall notify the City in advance of testing for compliance
with FCC standards The City may have a representative present to
observe such tests and may designate one location to be tested
Company shall provide the City with a report of testing for compliance
with such standards upon written request (but not more than twice a
year) Such report to City shall state, in pertinent part, that the person
doing the testing has reviewed the applicable rules and regulations of
the FCC, the industry standards and other materials referenced therein,
and that such testing was done fairly and either shows full compliance
with such rules and regulations or sets forth with specificity and in
detail all areas of non-compliance, their actual or likely scope and
causes, and Company's professional recommendation of the best
corrective measures to immediately and permanently correct the non-
compliance
29
202 Company shall establish the following procedure for resolving
complaints from subscribers about the quality of the television signal
delivered to them All complaints shall go initially to Company All
matters not resolved by Company shall at Company's or the
subscriber's option be referred to the City for it to resolve All matters
not resolved by the City may be referred to the FCC for it to resolve
203 The City at its expense (no more than twice per year, barring unusual
circumstances) upon thirty (30) days written notice to Company may
test the cable system for compliance with the FCC technical standards
Company shall cooperate in such tests and provide access to the cable
system Company shall reimburse the City for the full expense of any
test which shows a material non-compliance with such standards
21 Liquidated Damages - Telephone Service. Installation, Service Calls
Company acknowledges that non-compliance with the customer service
standards identified above will harm subscribers and the City and the amounts
of actual damages will be difficult or impossible to ascertain For the second
calendar quarter of 1999 and thereafter, the City may therefore assess the
following liquidated damages against Company for non-compliance with the
customer service standards set forth in Sections 7 3, 7 4, 7 5, 9, 10 1, 10 2,
10 3, 10 10, 12 1, 12 2 and 12 4 (measured on a quarterly basis) Company
acknowledges that the liquidated damages set forth below are a reasonable
approximation of actual damages and that this Section 21 is intended to
provide compensation and is not a penalty
21 1 Telephone Standards The damages for non-compliance with one or
more of the standards in Sections 7 3, 7 4 and 7 5 during a calendar
quarter are
21 1 1 First non-compliance $1 00 per subscriber
21 12 Second non-compliance within three (3) consecutive calendar
quarters $2 00 per subscriber
21 1 3 Third non-compliance within six (6) consecutive calendar
quarters and (subject to Section 21 4) each subsequent non-
compliance $3 00 per subscriber
212 Service and Installation Standards The damages for non-compliance
with one or more of the standards in Sections 9, 10 1, 10 2, 10 3, 10 10,
12 1, 12 2 and 12 4 during a calendar quarter are
30
212 1 First non-compliance $1 00 per subscriber
212 2 Second non-compliance within three (3) consecutive calendar
quarters $2 00 per subscriber
212 3 Third non-compliance within six (6) consecutive calendar
quarters and (subject to Section 21 4) each subsequent non-
compliance $3 00 per subscriber
213 Minimums The liquidated damages for the first and each subsequent
non-compliance under Section 21 1 or Section 212 shall be no less than
$5,000, unless modified as provided in Section 214
214 Effect of Extended Penods of Compliance If Company complies with
all of the standards identified in Sections 21 1 and 212 for eight
consecutive calendar quarters, the damages for the first subsequent non-
compliance with any of those standards will be the greater of 25¢ per
subscriber or $3,000
214 1 Following such a non-compliance the damages provided in
Sections 21 1 and 212 will again be applicable so that the next
non-compliance within four (4) consecutive calendar quarters
will be subject to Sections 21 12 and/or 212 2
215 An event of non-compliance will be taken into account in determining
whether a later event of non-compliance is a second, third or
subsequent event without regard to whether City has assessed
liquidated damages or taken any other action with respect to the non-
compliance
216 Company shall report the number of subscribers within the City on the
last day of the quarter by the 15th business day of the following quarter
22 Liquidated Damages - Other
22 1 Liquidated damages in the amount set forth in Section 21 1 1 (but not
less than the amount set forth in Section 21 3) may be assessed for
failure to timely submit the quarterly reports required by Section 19
31
22 2 Liquidated damages may be assessed for violation of the provision of
Section 26 4 for submission of reports within five (5) business days in
the amount of $1,000 per day
23 Procedure for Assessment of Liquidated Damages The procedure for
consideration and assessment of liquidated damages is as follows
23 1 Liquidated damages shall be assessed by the City Manager or his or her
designee
23 2 Company may obtain a review of the assessment by the City Council
by making a written request within ten (10) business days after receipt
of notice in writing of the assessment and its basis
23 3 Company shall have an opportunity to be heard at a meeting of the City
Council or by a person designated by the Council as a hearing officer
prior to action being taken by the Council
234 The City Council may adopt additional procedures, including
appointment of a City official or other person to act as a hearing officer
The Council's decision may be based upon the record of proceedings
conducted by the hearing officer or a proposal for decision submitted
by the hearing officer
24 Pament of Liquidated Damages Liquidated damages shall be paid on or
before the tenth (loth) business day following assessment or, if Company
requests review by the City Council, on or before the tenth (10th) business day
following issuance of the Council's decision
25 Ombudsman Company will provide a senior employee (at the Vice President
or Director level) as director of government affairs and ombudsman reporting
directly to a regional vice president of CC Holdings The director of
government affairs will have responsibility for working with the City and other
cities in the area to address problems that may anse under the Franchise and
shall be Company's ombudsman for both the City and subscribers Company
will give the City an opportunity to comment on the detailed job description
of the director of government affairs before the position is filled
26 Cqy Liaison Company shall continue to provide problem solving liaison
services for the City of the type being provided to the City of Fort Worth by
Charter's Customer Care Group in the Fall of 1998 The purpose of this
service is to provide the City with direct access to supervisory level personnel
32
who can obtain prompt action on customer service problems referred by the
City to Company This service shall include at least the following
26 1 The personnel providing the service shall be located in Tarrant County
26 2 The personnel providing the service shall have sufficient authority and
access to Company facilities and personnel in order to investigate and
take appropriate remedial action without delay
263 The City shall be given a special direct phone number to use (which
may also be used by other cities, but which will not be made available
to the general public) which will generally during normal business
hours be answered by a live person and will provide immediate access
to a person having the authority specified in the preceding section
26 4 Company shall investigate (including an attempt to contact the
subscriber) and respond to the City on each call, fax or written
complaint or request by the end of the next business day and shall
provide a written report within five (5) business days
26 5 Company shall give the City notice in writing of changes in the key
contact personnel or material changes in procedures involved in
providing this service
27 Definitions For the purposes of this Exhibit B, the following definitions shall
apply
27 1 Cable Administrator means the person designated by City as having
principle responsibility for cable matters
272 Co=Iamt means a telephone call or written communication from a
customer notifying Company of a problem relating to Company's
billing or billing practices, Company's equipment, picture quality,
failure to receive one or more channels, a change in Company's
practice or policy, Company advertising or other business practice, the
conduct of a Company employee or contractor, or the failure of
Company or a service representative to comply with customer service
regulations
273 Normal Operating Conditions means those service conditions which are
within the control of Company Those conditions which are not within
the control of Company include, but are not limited to, natural disasters,
33
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions Those conditions which are
within the control of Company include, but are not limited to, special
promotions, pay -per -view events, rate increases, regular or seasonal
demand periods, changes in the billing cycle, changes in the form of
bills and other billing matters, changes in channel lineups or services
that are within Company's control, and repairs, rebuilds, maintenance
and upgrade of the cable system including computer software and
hardware
27 3 1 Y2K Y2K problems involving systems of Company, CC
Holdings, Vulcan, Charter or Affiliates of any of them are not
within the control of Company for purposes of measuring
compliance with customer service standards during the period
January 1, 2000 through and including January 14, 2000 but are
within the control of Company before and after that period of
time
27 3 2 Labor Disputes Employee strikes, slowdowns and walkouts of
less than 30 days duration are not within the control of
Company
34
EXHIBIT 2
DENTON
AGREEMENT
Paul G Allen, as transferee of ultimate control of Marcus Cable Associates, L L C ,
makes the following agreement for the purpose of accepting an ordinance of the City of
Denton ("City") consenting to the transfer of control of the cable television franc ise in the
City and the restructuring described in an Acceptance Agreement dated 3.2 3
1999 Capitalized words and phrases in this Agreement have the meaning set forth in the
Acceptance Agreement
Covenants Binding The promises, covenants, and conditions
contained herein inure to the benefit of the City and are binding on
Allen
2 Acknowledgment Allen acknowledges that the transfer of control and
restructuring are expressly subordinate to and will not affect the
binding nature of the Franchise and the obligations provided therein,
and that the consent of the City to the Transaction does not constitute
a waiver or release of any rights of the City
3 Reliance Allen acknowledges that the City has consented to the
Transaction in reliance upon the representations, documents and
information provided by Company, Charter, Vulcan and Allen, all of
which are incorporated herein by reference
4 Alleged Prior Defaults Allen agrees that he will not contend directly
or indirectly that any defaults or failures to comply with the franchise
or other matters set forth in 47 USC § 546(c)(1)(A) (Communications
Act of 1934, Section 626(c)(1)(A) (collectively "Defaults") which may
have occurred prior to the Transaction are waived, including but not
limited to the following
41 The ability of the City to obtain redress for alleged prior
Defaults, such as recovery of any underpayment of franchise
fees or obtain refunds for periods prior to the Transaction
42 The ability of the City to enforce in the future any Franchise
terms which may not have been enforced in the past
43 The ability of the City to consider alleged Defaults occurring
prior to the Transaction in connection with any renewal or
nonrenewal of the Franchise
44 This Section 4 is without prejudice to Company contending that
an alleged default or failure to comply either did not occur or
has been cured
5 Continuity of Management Allen acknowledges that (a) at the time of
submission of the Form 394 subscribers residing in the City were
experiencing serious and on -going deficiencies in service, (b) the
provisions of Exhibit B are in response to these problems, and (c) the
City is approving the Transaction and the transfer of control in reliance
on the actions taken by Allen and Charter in the interim to improve
customer service and in the expectation of continuity of Charter's
management to assure that the problems will not recur Allen has
caused the City to be informed that he intends to keep the present
Charter management team in place
5 1 Allen agrees that if there is any substantial change in Charter's
senior management prior to December 31, 2001, then (a) Allen
or William D Savoy, and (b) a top officer of Charter, upon
request, will appear in person in a public forum in Tarrant
County, Texas (to be held jointly with other cities with whom
Allen has made a similar agreement) in advance of the change
for the purpose of explaining the change and answering
questions "Substantial change" for purposes of this Section
means a change of the CEO of Charter or the senior executive
reporting to him or her who is responsible for the systems in
Texas managed by Charter
Date As of 3/23/99
Paul G Allen
ODMA\PCDOCS\GRR\262010\1
EXHIBIT B1
LICHARTER
On -Time Customer Service Guarantee Program
Our On -Time Customer Service Guarantee Program underscores our
commitment to providuig our customers with the best service possible This
program is not about refunds; it is about making customer service a top
priority.
Simply stated, we pledge the following
✓ On -tune installation appointments or the mslallauon of the primary
outlet is free
✓ On -time service appointments or die customer receives S20
k5l
EXHIBIT B2
System Statistics for
Third Quarter 1999
City,
Homes Passed
11,719
Customers
4,937
Penetration
42%
installations
400
Disconnects
382
,,Net Gain
18
Technical Performance
Technical Service Calls
124
Technical Service Call Rate
2 5%
Service Interruption Response <24 hrs
98 7%
Service Call Availability for Next Business Day
96 5%
Installation Schedules <7 days
99 00/0
System Reliability
99 927%
Telephone Performance
Calls Received
110,000
Calls Answered <30 seconds
101,000
Percen a answered <30 seconds (unadjusted)
91 8%
Percen a answered <30 seconds (adjusted)*
93 7%
Reasons for adjustment
- ice storm
- Ctty power outage
12/17/98
12/25/98
Calls to City Referred to Charter
10
On -Time Performance
- Service calls - 95% next business day
- installations - 95% within 7 business days
99 8%
98 7%
- Service disruption - 95% within 24 hours
Trained Company Representative
available to respond to telephone
inquiries 24 hrs/day, 7 days/week
Percentage calls receiving busy signal
Total outages reported
' Adjustments are for Abnormal Operating Conditions as
defined in Sections 19 3 and 27.3 of Cxhlbit 6
Acceptance Agreement 36
IV
v
6
iz
14
EXHIBIT B3
37
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'TrAT"' En; I
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EXHIBIT B5
Page 1 of 2
Service CALAyallabihty Analysis
Month of j,0.ntMa
pate North Soudi uth Solake
i Availabthty Avadabdlty Trophy Club
01/01199
O
0
0
01/02/99
0
0
0
01103M
0
0
0
01/04/99
0
0
0
01IM9
1
1
1
011OW99
0
0
0
01 /07199
1
0
1
01/08/99
0
1
1
01109N9
0
0
0
OI/IO699
0
0
0
MAIM
0
0
0
01/12/99
1
0
0
01/13199
1
0
0
01/14/99
1
0
0
MOM
0
0
0
01/16/99
0
0
0
01/17/99
0
0
0
01/18/99
0
0
0
01/19/99
1
0
0
0120/99
0
0
0
0121/99
0
1
0
0122/99
0
0
1
0123199
0
0
0
O124/99
0
0
0
0125/99
0
0
0
01/26/99
l
0
0
01/27/99
1
0
0
01128/99
0
1
0
01/29/99
0
0
O
01/30/99
0
0
0
01131/99
0
0
0
Total
8
4
4
Standard
95%
95%
95%
YES -
YES
YEST t
Standard Metz
0 = SAME DAY < 12 Hts
1 - Naxt Day
2 —Two Days Out
EXHIBIT B5
Page 2 of 2
Indallatmn AvallaklUty_Analysis
Month of bquam
Date7- Avatlabtluy
01101199
0 "--T
O1JOW9
0
01/03/99
1
01104199
0
01/05/99
1
01/06M
0
01/07/99
0
01/0W9
0
01/09199
0
01/10199
0
0U11199
0
01112/99
0
01/13/99
0
01/14/99
0
01/15/99
0
01/16M
0
01/17/99
0
0111 "9
0
01/19M
0
01/2069
0
01/21/99
O
01/22/99
0
OIJ23/99
0
01/24/99
0
OU25199
0
O1J26199
0
Ol/27199
0
01/2W9
0
01/29/99
1
0184M
1
01/31/99 _ "
0
Total 4
Standard 95%
Standard Met? YES--1
0 W SAME DAY < 12 Hrs
1 = Mxt Day
2 = Two Days Out
41
EXHIBIT B6
customer Caii sample - January
Calls Sampled ]ll
�— Call
Number of
Percentage I
- 24
Rebuild
13
11.7%
Drop Duties
6
4 6%
Technical
35
315%
Reception
3
2 7%
Property Damage
7
6.3%
Pay fW View
3
2.7%
Collections
4
3 6%
Construction
6
7.296
Programming
4
3 6%
O"Orne
2
1 M
Installation
1
0.0%
Pedistal Problem
1
0 9%
[Customer Educatlon
1
_ 0 9%
F__ _ fAL
_ 111
106 ()%
42
£b
LS J IEIIHX1
EXHIBIT 3
CATV POLE LEASE AGREEMENT
BETWEEN
CITY OF DENTON, TEXAS
AND
GOLDEN TRIANGLE COMMUNICATIONS
( N�c. IjM✓c...r
CATV Pole Lease Agreement
Index
page
Application for Permission to Attach, Article III 3
Cost of Pole Replacements, Article VI 10
Definitions, Article I 2
Existing Contracts, Article XIV 19
General, Article XII 17
Indemnity and Insurance, Article X 14
Installation and Maintenance of Attachments and Poles, Article V 6
Notice, Article XV 19
Payment of Bills, Article XIII 18
Protection Against Claims for Libel and Slander, Copyright and
Patent Infringement, Article XI 17
Rentals, Article VIII 12
Rights -of -Way, Legal Authority and Default, Article VII 11
Scope of Agreement, Article II 2
Specifications, Article IV 5
Term and Termination of Agreement, Article IX 13
CATV POLE LEASE AGREEMENT
THIS AGREEMENT made as of the -7M, day of May, 1979, between the City
of Denton, Texas, a Home Rule Municipal Corporation, hereinafter called
Licensor, and Golden Triangle Communications, a partnership of the State of
Texas, having its principal office at Atlanta, Georgia, hereinafter called
Licensee,
WITNESSETH.
WHEREAS, Licensee proposes to furnish a CATV service (as hereinafter
defined) to residents of Denton, Texas, intends to erect and maintain an
antenna tower(s) located at Denton, Texas and proposes to install coaxial
television cables, amplifiers and drop wires, wires and appliances together
with associated cable messengers, anchors and other appurtenances (herein-
after sometimes collectively called "equipment") throughout the area to be
served and desires to attach such equipment to poles of Licensor and/or to
poles used jointly by Licensor and other companies; and
WHEREAS. Licensor is willing to permit, to the extent it may lawfully
do so, the attachment of said equipment ,to its poles where, in its judgment,
such use will not interfere with its own service requirements or, as it may
be advised, the service requirements of other joint users, including conside-
rations of economy and s,fety.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties hereto do mutually covenant and agree
as follows:
ARTICLE I
DEFINITIONS
1. All references herein to "Licensor's poles" or "its poles" shall
mean poles solely owned by the Licensor, jointly owned by Licensor or the pole
space rented or obtained by other arrangements by Licensor from another owner.
2. All references herein to "joint user" shall mean (1) a company or
municipality which together with Licensor has a percentage ownership in a pole,
(2) a public utility company or municipality which has attachment privileges on
Licensor's poles, or (3) a public utility company which owns poles on which
Licensor has attachment privileges.
3. All references herein to "CATV service" shall mean the trans-
mission to subscribers of off -the -air pickup of broadcast signals or the
transmission without separate charge of locally originated closed circuit
television to the subscribers of off -the -air service.
ARTICLE II
SCOPE OF AGREEMENT
1. Licensor hereby agrees to license and permit Licensee to attach
its equipment, for the primary purpose of furnishiag CATV service within the
area outlined in red on the map attached hereto as Exhibit A, to such of its
-2-
poles as are, in the judgment of the Licensor, suitable and available for such
attachments, subject to the conditions and limitations contained herein.
2. Licensee agrees that its equipment to be attached to Licensor's
poles shall be installed for the purpose of providing CATV service and shall be
used primarily for furnishing CATV service. Any residual channel capacity,
however, may be used by Licensee for any lawful purpose.
3. Licensee agrees to secure from the proper franchising authority,
a franchise to erect and maintain its equipment within public streets, highways
and other thoroughfares provided such franchising authority exists, and shall
secure any and all consents, permits or licenses that may be legally required
for its operations hereunder. Prior to the execution of the Agreement, Licensee
shall deliver to Licensor documentation satisfactory to Licensor evidencing
that all such franchises, consents, permits or licenses have been obtained.
4. Licensee agrees to assist in, and bear the expense of, securing
any consents, permits or licenses that may be required by Licensor by reason of
this Agreement.
ARTICLE III
APPLICATION FOR PMwIISSION TO ATTACH
I. At least thirty (30) days prior to the time Licensee desires to
attach its equipment to any of Licensor's poles, it shall make written appli-
cation on the form marked Exhibit B attached hereto and made a part hereof, in
the number of copies from time to time prescribed by Licensor. Upon approval of
-3-
said application, Licensor shall return one copy of Exhibit B to the Licensee
bearing the endorsemeat of its permission.
2. Upon receiving such endorsed copy of said application, but not
sooner, Licensee shall have the right, subject to Article IV herein, to install,
maintain and use its equipment described in said application upon the poles
identified therein, provided that Licensee shall complete each installation
within one (1) year from date of said approved application; provided, however,
that before commencing any such installation, Licensee shall notify Licensor of
the time when it proposes to do such work and that within thirty (30) days of
completion of such work, Licensee shall notify Licensor and, in the event
Licensor elects to have its representative present, Licensee shall reimburse
Licensor for the cost and expense thereof.
3. Where costs are involved in the rearrangement of Licensor's or
other facilities to accommodate Licensee's equipment, two signed copies of said
application shall be returned to Licensee detailing the costs in the space
provided thereon for that purpose. Approval of said application by Licensor is
subject to receiving authorization from Licensee, on said application in the
space provided thereon for that purpose, to make changes and rearrangements, at
Licensee's sole risk and expense, detailed by Licensor with said copies of said
application. _
4. Licensee shall not have the right to place, nor shall it place,
any additional equipment upon any pole used by it hereunder without first making
application therefor and receiving Licensor's permission to do so, all as
-4-
prescribed in paragraph 1 of this Article, nor shall Licensee change the
position of any equipment attached to any such pole without Licensor's prior
written approval. The provisions of this Article shall not restrict the
attachment of television drops to television crossarms or television cable
messenger. It is agreed that a charge equal to one and one half (1-1/2) times
the pole rental amount, as specified in Article VIII, per attachment shall be
levied against and paid by Licensee to Licensor for any unauthorized attachment
made by Licensee to Licensor's poles or facilities. This charge will be in
addition to rental charges from the time of said unauthorized attachment,
rearrangement costs, or other appropriate charges. In the event that the time
of the unauthorized attachment cannot be determined, it shall be deemed to have
occurred on the date succeeding the day on which the last joint survey was made
in accordance with Paragraph 1 of Article V.
. 5. It is agreed.and understood that in the case of jointly -used
poles, permission to attach thereto shall be subject to Licensor's obtaining
approval from such joint users and/or owners whenever necessary.
ARTICLE IV
SPECIFICATIONS
1. Licensee, at its own cost and expense, shall construct, maintain
and replace its attachments on Licensor's poles in accordance with (i) such
requirements and specifications as Licensor shall from time to time prescribe,
(ii) in compliance with any rules or orders now in effect or that hereafter may
1,e issued by any regulatory Commission or otter authority having jurisdiction,
-5-
and (iii) the requirements and specifications of the National Electrical Safety
Code, 1977 Edition, and any amendments or revisions of said specifications or
code. In addition, all attachments shall be made by Licensee in accordance with
this Agreement and Exhibits 1-10 attached hereto and made a part hereof.
Licensee agrees to comply, at its sole risk and expense, with the specifications
of all Exhibits attached hereto, as revised from time to time by Licensor in
accordance with the provisions of this Article IV.
ARTICLE V
INSTALLATIOV AND MAINTENANCE OF ATTACHMENTS AND POLES
I. The exact location of Licensee's attachments on poles shall be
determined from a joint survey to be made, at such times as shall be mutually
agreed upon, by representatives of Licensor, Licensee and, if desired by a joint
user Licensor may inspect each new installation of Licensee on its poles and
in the vicinity of its lanes or appliances and may make periodic inspections of
the entire plant of Licensee as plant conditions may warrant; and Licensee
shall, on demand, reimburse Licensor for the cost of such surveys and
inspections. Such inspections shall not operate to relieve Licensee of any
responsibility, obligation ur liability assumed under this Agreement.
2. Where Licensee's attachments can be accommodated on poles of
Licensor by rearranging or changing the facilities of Licensor or other joint
users, Licensee agrees to pay Licensor in advance the cost of making such
rearrangements or changes Strengthening of poles (guying) required to accom-
modate the attachments of Licensee and :he bonding of Licensee's strand to that
-6-
of Licensor shall be performed by Licensee at its sole risk and expense. Such
work, however, may be performed by Licensor at its option, and in such event
Licensee shall pay to Licensor in advance the cost of all such work.
3. Upon written notice from Licensor, Licensee shall relocate or
replace its equipment attached to Licensor's poles, or transfer the same to
substituted poles, or perform any other work in connection with said equipment
that may be requested ,by Licensor, at Licensee's sole risk and expense,
provided, however, that in cases of emergency Licensor may, at Licensee's sole
risk and expense, arrange to relocate or replace the facilities attached to said
poles by Licensee, transfer themoto substituted poles or perform any other work
in connection with said facilities that may be required in the maintenance, re-
placement, removal or relocation of said poles, the facilities thereon or the
equipment which may be placed thereon, or for the service needs of Licensor.
4. Licensee shall notify Licensgr in advanced of the time when it
proposes to replace any of its equipment'attached to Licensoe's poles.
5. All tree trimming required on account of Licensee's equipment
shall be done by Licensee at its sole risk and expense and in a manner satis-
factory to Licensor and any other joint users.
6. Licensee shall, at its mole risk and expense, maintain all of its
attachments on Licenser's poles in safe condition and in thorough repair.
-7-
7. Licensor reserves to itself, its successors and assigns the
right to maintain its poles and to operate its facilities thereon in such manner
as sill best enable it to fulfill its public service requirements. Licensor or
other joint users shall not be liable to Licensee for any interruption to the
service of Licensee or for interference with the operation of the equipment of
Licensee, unless the service interruption was created solely by acts of
Licensor.
8. Nothing herein contained shall give to the Licensee the right to
place a crossarm on any pole. Xf a crossarm is required to accommodate the
facilities of the Licensee, then Licensee shall so state the reasons therefore
in its application for attachment.
9. Licensee shall not at any time make any additions to, or changes
in, the location of its attachments on the poles covered by this Agreement
without the prior written consent of Licensor except, in cases of emergency,
when oral permission shall have been obtained from Licensor's authorized
representative at Denton. Texas
and subsequently confirmed in writing.
10. If Licensee should require the location of its equipment upon any
public thoroughfare or other public or private property in the conduct of its
business in the territory covered by this Agreement and Licensor shall not have
Pole facilities so located to fulfill Licensee's requirements, Licensee shall so
notify Licensor, and the parties shall thereupon determine who shall place such
-8-
pole facilities in such location. The pole facilities shall be erected in such
locations adequate to meet the service requirements of both Licensee and
Licensor, and if placed by the Licensor, the Licensee shall thereupon make
application for permission to place its equipment thereon as provided in this
Agreement. If the pole facilities are placed by Licensee, attachment privileges
shall be made available to Licensor at a rental not to exceed the rental being
charged Licensee hereunder.
11. Nothing in this Agreement shall be construed to obligate
Licensor to grant Licensee permission to use any particular pole and Licensor at
its discretion may revoke permission theretofore granted to Licensee with
respect to any particular pole. If such permission is refused, Licensee is free
to make any other arrangement not prohibited under the terms of this Agreement,
it may wish to provide for its equipment at the location in question.
12. Whenever, pursuant to the provisions of this Agreement, Licensee
shall be required to remove its attachments from any pole, such removal shall be
made, except as otherwise specifically provided, within thirty (30) days
following the giving of notice to Licensee by Licensor to so remove. Upon
failure of Licensee to remove such attachments within such thirty (30) days or
as otherwise required, Licensor may remove them and charge all costs associated
with such removal to -Licensee.
13. Licensee agrees that it shall not interset poles where
Licensor's facilities are located nor shall it locate poles, girys, or other
facilities where in either case they will interfere with access to Licensor's
poles or violate any provision of the National Electric Safety Code.
-9-
ARTICLE VI
COST OF POLE REPLACEIg.NTS
1. Whenever Licensee applies for permission to attach to a pole that
is considered by Licensor to be insufficient in height or strength for
accommodation of Licensee's attachments, or in the event that Licensor or a
joint user of the pole shall require the space occupied by Licensee's existing
attachments, Licensor stall notify Licensee of such fact and of the estimated
cost to Licensee of replacing such pole with a pole which will accommodate the
attachments of Licensee, Licensor and any such joint user. Within thirty (30)
days of such notification, Licensee shall either notify Licensor (i) of its
approval of such replacement or (ii) of its cancellation of the application with
respect to such pole or (iii) in the case of existing attachments, of its
election to remove its attachments from the pole.
2. In the event of Licensee's approval of such replacement,
Licensor shall replace the pole and Licensee shall pay to Licensor in advance
the charges therefore computed as follows:
The total cost of the new pole, the removal of the old pole, the
transferring of Licensoe's and any such joint user's attachments from the old to
the new pole and such other costs, if any, necessitated by Licensee's
requirements, less the total of the following: accrued depreciation on the old
pole, salvage, if any, and the cost of such portion of the new pole, if any,
which represents space reserved for the use of Licensor or any such joint user
greater than that provided for them on the old pole, less appropriate
contribution by any other licensee, if any
-10-
ARTICLE VII
RIGHTS -OF -WAY, LEGAL AUTHORITY AND DEFAULT
1. Upon execution of this Agreement, Licensee shall submit evidence
satisfactory to licensor of its authority to erect and maintain its equipment
within public streets, highways and other thoroughfares and shall secure any
necessary license, permit or consent from Federal, state or municipal
authorities and from the owneres of property now or hereafter required to
construct and maintain such equipment at the locations of poles of Licensor to
which it desires to attach. In the event any such franchise, licease, permit or
consent is revoked or is thereafter denied to Licensee for any reason,
permission to attach to licensor's poles shall immediately terminate, Licensee
shall within reasonable time remove its equipment from Licensor's poles and
Licensor at its option may forthwith terminate this Agreement.
2. • Upon notice from Licensor to Licensee that the cessation of the
use of any pole or poles has been requested or directed by Federal, state or
municipal authorities, or property owners, permission to attach to such pole or
poles shall immediately terminate and Licensee shall forthwith remove its
equipment therefrom.
3. If Licensee shall fail to comply with any of the provisions of
this Agreement, including the specifications hereinbefore referred to, or
defaults in any of its obligations under this Agreement, and shall fail within
thirty (30) days after written notice from Licensor to correct such default or
-11-
noncompliance, Licensor may, at its option forthwith terminate this
Agreement in its entirety or, at its election, revoke the permit
covering the pole or poles involved in such default or noncompliance,
or at Licensor's option, obtain service of an attorney to institute
suit or other judicial proceeding to remedy and default by Licensee
in its performance of the covenants, terms and conditions of this
Agreement and Licensee expressly agrees that the defeated party shall
pay reasonable attorney's fees and expenses of such legal counsel.
ARTICLE VIII
RENTALS
1. For the privilege of placing and maintaining attachments on
Licensor's poles, Licensee shall pay an annual rental rate of five
dollars ($5.00) per contract.
2. Rentals shall be payable annually in advance to the Licensor
on the first day of January each year during which this Agreement re-
mains in effect.
3. At anytime after two (2) years from the date of this Agreement
and at intervals of not less than two (2) years thereafter, the rentals
shall be subject to adjustment by Licensor upon written notice.
4. Rental payment shall be made within sixty (60) days of the
receipt of statement. Any late payment shall bear in interest rate of
ten percent (10%) per annum.
-12-
5. The Licensee and Licensor shall together maintain a perpetual
inventory of total Licensee contacts through the use of Exhibit 8, "Appli-
cation of Permit," and Exhibit C, "Notice of Removal," and all future
rental fees shall be based on such perpetual inventory. The Licensor may
at its option use a physical inventory in lieu of perpetual inventory
The cost of such physical inventory shall be shared proportionally among
the participating companies.
6. In the event Licensee makes an attachment to the Licensor's
pole at anytime after commencement of this Agreement and fails to comply
to Article III, Paragraph 1 hereof, then Article III, Paragraph 4, shall apply
7. In the event that Licensor files a tariff with the appropriate
regulatory authority during the term of this Agreement covering attachments
made to its poles, Licensor reserves the right to substitute the rates and
charges covered by such tariff in place of the rentals set forth in this
Article.
S. The Licensee shall reimburse the Licensor in advance for all
net capital costs incurred by Licensor as a result of replacing poles and
equipment as required by Licensee for the initial installation of Licensee's
attachments. Licensor shall credit such advance reimbursement by Licensee
to initial and subsequent rental lease fees. Licensor shall notify Licensee
of the estimated net costs of such replacements on the application forms.
Licensee shall make payments of such estimated costs and final adjustments
in payments or credits shall be made at the completion of the work nd shall
be based on actual costs incurred.
-13-
ARTICLE IX
TERM AND TERMINATION OF AGREEMENT
1. This Agreenent, if not previously terminated in accordance
with the provisions hereof, shall continue in effect for a term of five
(5) years and thereafter until terminated as provided herein. The Agree-
ment may be terminated at the and of said time or at any time thereafter
by either party giving to the other party at least ninety (90) days written
notice. Upon termination of the Agreement Lu accordance with any of its
termer, Licenses shall remove its said equipment from all poles of Licensor
within thirty (30) days thereafter.
-13a-
2. Licensee may at any time remove its equipment attached to any
pole or poles of Licensor, but shall immediately give Licensor written notice of
such removal in the form of Exhibit C attached hereto and made a part hereof.
No credit or refund of any rental shall be allowed Licensee on account of such
removal.
3. This Agreement shall be subject to termination by Licensor
without notice, or, where circumstances permit, upon five (S) days' written
notice to Licensee, upon objection being made by or on behalf of any
governmental authority asserting proper jurisdiction thereon.
ARTICLE X
INDEMNITY AND INSURANCE
1. Licensee shall indemnify, protect and hold harmless Licensor and
other joint users of said poles from and against any and all loss, costs,
claims, demands, damage and/or expense arising out of any demand, claim, suit or
judgment for damages to property and injury to or death of persons, including
the officers, agents and employees of either party hereto and other joint users
of said poles, including payment made under any Workmen's Compensation Law and
under any plan for employees' disability and death benefits, which may arise out
of or be caused by the erection, maintenance, presence, use or removal of said
equipment or by the proximity of the ,respective cables, wires, apparatus and
appliances of the parties hereto or other joint users of said poles, or arising
out of any act or omission or alleged act or omission of Licensee, including any
claims and demands of customers of Licensee.
-14-
2. Licensee shall carry insurance, at its sole cost and expense, to
protect the parties hereto and other joint users of said poles from and
against any and all such claims and demands and from and against any and
all actions, judgments, costs, expenses and liabilities of every name and
nature which may arise or result, directly or indirectly, from or by rea-
son of the acts or omissions of Licensee hereunder and irrespective of any
fault, failure, negligence or alleged negligence on the part of Licensor
or of any other joint user of said poles. The amounts of such insurance
are set out in Section 27-58 of Ordinance No. 78-21 of the City of Denton
ordinances, and the Licensee will comply with the provisions of that section.
Licensee shall promptly advise an authorized representative of Licensor of
all claims relating to damage to property or injury to or death of persons,
arising or alleged to have arisen in any manner by, or directly or indirectly
associated with, the erection, maintenance, presence, use or removal of
Licensee's equipment.
2. Licensee has furnished $30,000 in security as required by Section
27-43 of Ordinance No. 78-21 (Cable Television Franchise Ordinance) and such
sum shall also guarantee the performance of all the covenants, terms and
conditions of this agreement. ,
3. Licensee shall exercise special precautions to avoid damage to
facilities of Licensor and of other joint users on said poles and hereby
assumes all responsibility for any and all loss for such damage Licensee
shall make an immediate report to Licensor of the occurrence of any such
damage and hereby agrees to reimburse Licensor for the expense incurred in
making repairs necessitated thereby.
-15-
ARTICLE XI
PROTECTION AGAINST CLAIMS FOR LIBEL AND
SLANDER, COPYRIGHT AND PATENT INFRINGEMENT
1. Licensee shall indemnify, protect and hold harmless Licensor
from and against any and all claims for libel and slander, copyright and/or
patent infringement arising by reason of attachment by Licensee of its equipment
to Licensor's poles pursuant to this Agreement.
ARTICLE XII
• GENERAL
1. Licensee shall not assign, transfer or sublet this Agreement, or
any of the privileges hereby granted to it, without the prior written consent of
Licensor. Provided, however, that Licensor's consent shall not be required to
place mortgage or lien upon the facilities of Licensee for the purpose of
financing the installation, improvement, maintenance or estensiou of its
system.
2. No use, however extended, of Licensor's poles under this Agree -
meat shall create or vest in Licensee any ownership or property right in said
poles, but Licensee's rights therein shall be and remain a mere license.
Nothing herein contained shall be construed to compel Licensor to maintain any
of its poles for a period longer than that demanded by its own service require-
ments.
-16-
3. Nothing herein contained shall be construed as affecting the
rights or privileges previously conferred by Licensor to others, by contract or
otherwise, to use any poles covered by this Agreement, and Licensor shall have
the right to continue to extend such rights or privileges, the attachment
privileges granted hereunder shall at all times be subject to such contracts and
arrangements and nothing contained herein shall be construed as affecting the
right of Licensor to grapt attachment privileges to such other parties as it may
desire to do so.
4. Failure to enforce or insist upon compliance with any of the
terms or conditions of this Agreement shall not constitute a general waiver or
relinquishment of any such terms or conditions, but the same shall be and remain
at all tames in full force and effect.
5. Subject to the provisions of paragraph 1 of this Article, this
Agreement shall extend to and bind the successors and assigns of the parties
hereto.
6. Nothing contained herein shall be construed as affecting the
rights conferred or exercised by the parties under present or future
governmental authority or regulation.
ARTICLE XIII
PAYMENT OF BILLS
1. All amounts payable by Licensee to Licensor under the provisions
of this Agreement shall, unless otherwise specified, be payable within thirty
(30) days after presentation of bills therefor. Nonpayment of any such amounts
when due shall constitute a default under this Agreement.
ARTICLE XIV
EXISTING CONTRACTS
1. All existing Agreements between the parties hereto for the joint
use of facilities are by mutual consent hereby abrogated and superseded
by this Agreement.
Nothing in the foregoing shall preclude the parties to this
Agreement from preparing such supplemental operating routines or working
practices as they mutually agree to be necessary or desirable to effectively
administer the provisions of this Agreement.
ARTICLE XV
NOTICE
1. Any notice provided in this Agreement to be given by either party
hereto to the other shall be deemed to have been duly given when made in
wirting and deposited in the United States Mail, postage prepaid, addressed
as follows:
TO LICENSEE:
Golden Triangle Communications
53 Perimeter Center East
Suite 300
Atlanta, Georgia 30346
TO LICENSOR
City of Denton
215 East McKinney
Denton, Texas 76201
Attn: Director of Util°ties
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ATTES
:'CITr SECRETARY
ATTEST.
ASSr. MCKETARY
oil
CITY OF DENTON, TEXAS, LICENSOR
BY �Q
MRTUK
GOLDEN TRIANGLE COMMUNICATIONS, LICENSEE
BY: 41
VIC& Pacsl'DB"T
Cox Caisuc of 1'k%ws � mr4c ,
(� PenaxsnL)
-19-
EXHIBIT 4
CABLE DUCT USE AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS
AND SAMMONS COMMUNICATIONS, INC.
2095L
TABLE OF CONTENTS
Article
page
I.
Definitions
1
II.
Scope of Agreement
2
III.
Application for Permission to Install Cable
3
IV.
Specifications
4
V.
Installation and Maintenance of Cable and Duct
4
VI.
Rights -Of -Way, Legal Authority and Default
5
VII.
Fee
6
VIII.
Term and Termination of Agreement
6
IX.
Force Majeure
7
X.
Indemnity and Insurance
7
XI.
Limitation on Assignment and Transfer
8
XII.
Supplemental Operating Routines or Working Practices
9
XIII.
Notice
9
Attachment
Exhibit
A: Drawing No.
P.U.E.D.
132
Revision
Level 0, Dated
June 24,
1985
Attachment
Exhibit
B: Drawing No.
P.U.E.D.
133
Revision
Level 0, Dated
June 24,
1985
Attachment
Exhibit
C, Drawing No.
P.U.E.D.
134
Revision
Level 0, Dated
June 26,
1985
Attachment
Exhibit
D: Drawing No.
P.U.E.D
135
Revision
Level 0, Dated
July 5,
1985
-i-
2095L
CABLE DUCT USE AGREEMENT
This Cable Duct Use Agreement made and entered into effec-
tive and operative as of the day of , 1988
by and between the City of Denton, Texas, a omeRule—Municipal
Corporation, hereinafter referred to as "Licensor," and Sammons
Communications, Inc., a Texas Corporation, hereinafter referred
to as "Licensee,"
WITNESSETH•
WHEREAS, Licensee is franchised to furnish CATV Service (as
hereinafter defined) to residents of Denton, Texas and is the
assignee of and bound by a certain "CATV POLE LEASE AGREEMENT"
dated the 7th day of May, 1979, between the Licensor and Golden
Triangle Communications, which permits the Licensee to attach
equipment necessary to the provision of CATV Service to
Licensor's electric utility poles; and
WHEREAS, Licensor has caused poles to be removed and
underground cable duct to be installed for the purpose �� of
distribution of electricity in the area commonly known as The
Square" and further defined in Exhibit A, Drawing No. P.U.E.D.
#132, Revision Level 0, Dated June 24, 1985; Exhibit B, Drawing
No. P.U.E.D. #133, Revision Level 0, Dated June 24, 1985,
Exhibit C, Drawing No. P.U.E.D. #134, Revision Level 0, Dated
June 26, 1985; Exhibit D, Drawing No. P.U.E.D. #135, Revision
Level 0, Dated July 5, 1985; and
WHEREAS, Licensor has dedicated a duct within Licensor's
System of Ducts to be used for CATV Service to subscribers in
said area and is willing to permit, to the extent it may
lawfully do so, the use of said duct by Licensee where, in
Licensor's judgment, such use will not interfere with its own
service requirements or, as it may be advised, the service
requirements of the Joint Users, present or future, including
consideration of economy and safety.
NOW, THEREFORE, in consideration of the mutual covenants,
terms and conditions herein contained, the parties hereto do
mutually covenant and agree as follows.
ARTICLE I.
DEFINITIONS
1. All references herein to "Licensor's Duct" or "Licensor's
System of Ducts" or "Licensor's Duct System" shall mean duct
and related appurtenances consisting of vaults, manholes,
junction boxes, and pull boxes solely owned by the Licensor,
jointly owned by Licensor, or duct rented or obtained through
other arrangements by Licensor from another owner.
2. All references herein to "Joint User" shall mean (1) a
company or municipality which together with Licensor has a
percentage ownership in a duct or system of ducts, (2) a public
utility company or municipality which has use privileges for
Licensor's duct, or (3) a public utility company which owns
duct for which Licensor has use privileges.
3. All references herein to "CATV Service" shall mean all
services provided by Sammons Communications as defined in its
franchise agreement with the City of Denton.
4. All references herein to "Licensee's Cable" shall mean
the coaxial cable or Cables and associated joining fittings
used as the transmission media for CATV Service.
5. All reference herein to "Licensee's Equipment" shall
refer to amplifiers, power supplies and other similar support
equipment that is not suitable for inclusion in duct system
manholes, vaults, junction boxes and pull boxes.
ARTICLE II.
SCOPE OF AGREEMENT
1. Licensor hereby agrees to license and permit Licensee to
route Licensee's Cable, for the primary purpose of furnishing
CATV Service in accordance with its franchise, within the area
commonly known as "The Square," and further defined by Exhibits
A, B, C and D; to such of Licensor's Duct System of as are, in
the judgment of the Licensor, suitable and available for such
cable, subject to conditions and limitations contained herein.
2. Licensee agrees that only cable shall be routed through
Licensor's Duct and related manholes, vaults, pull boxes and
junction boxes and that Licensee shall install Licensee's
Equipment in above ground locations sited to prevent
interference with Licensor's access to said manholes, vaults,
pull boxes and junction boxes.
3 Licensee agrees that this Agreement extends only to the
use of the Licensor's Duct System as defined on Exhibits A, B,
C, and D, and that Licensee agrees to secure and maintain from
the proper franchising authority, a franchise to erect and
maintain its equipment within public streets, highways and
other thoroughfares provided such franchising authority exists,
PAGE 2
and shall secure any and all consents, permits or licenses that
may be required by law for its operations.
4. Licensee agrees to assist in and bear the expense of
securing any consents, permits or licenses that may be required
by Licensor by reason of this Agreement.
ARTICLE III.
APPLICATION FOR PERMISSION TO INSTALL CABLE
1. At least thirty (30) days prior to the time Licensee
desires to install cable in Licensor's Duct System, it shall
make written application to Licensor. Licensor shall review
Licensee's application and upon approval, shall supply Licensee
written approval to proceed with installation.
2. Upon receiving such written approval but not sooner,
Licensee shall have the right, subject to Article IV herein, to
install, maintain and use Licensee's Cable described in said
application in ducts identified therein, provided that Licensee
shall complete each installation within one (1) year from date
of said approved application; provided however, that before
commencing any such installation, Licensee shall notify
Licensor at least five days in advance of the time when it
proposes to do such work and, in the event Licensor elects to
have its representative present, Licensee shall reimburse
Licensor for the cost and expense thereof.
3. Where costs are involved in the rearrangement of
Licensor's Duct or other facilities to accommodate Licensee's
Cable, the Licensor shall notify Licensee of these estimated
costs and Licensee shall notify the Licensor in writing that
actual costs will be paid by Licensee to effect such rearrange-
ment. Licensor shall then make said changes and rearrangements,
at Licensee's sole risk and expense, and upon completion shall
notify the Licensee that installation of cable may proceed.
4. Licensee shall not have the right to place, nor shall it
place, any of Licensee's Equipment in Licensor's System of
Ducts and its associated manholes, vaults, pull boxes, and
junction boxes; and shall install only the Licensee's Cable and
fitting', required for its termination and assembly or connection
within the duct system. Licensee's Equipment necessary for the
full operation of and delivery of CATV Service shall be
constructed, housed, or mounted external to Licensor's System
of Ducts.
5. Licensee shall not change the position of any cable
routed through Licensor's Duct Systecr without Licensor's prior
PAGE 3
written approval. The provisions of this Article shall not
restrict the attachment of service drops from Licensee's Cable
installed in the Licensor's System of ducts.
ARTICLE IV.
SPECIFICATIONS
1 Licensee, at its own cost and expense, shall construct,
maintain and replace Licensee's Cable in accordance with (i)
such requirements and specifications as Licensor shall from
time to time prescribe, (ii) in compliance with any rules or
orders now in effect or that hereafter may be issued by a
regulatory Commission or other authority having jurisdiction,
and (iii) the requirements and specifications of the National
Electrical Safety Code, 1987 Edition, and any subsequent
amendments or revisions of said specifications or code.
ARTICLE V.
INSTALLATION AND MAINTENANCE OF CABLE AND DUCT
1. Upon written notice from Licensor, Licensee shall, within
thirty (?0) days of receipt of such notice, relocate or replace
Licensee's Cable or transfer the same to a substitute duct
system or perform any other work in connection with said Cable
that may be requested by Licensor, at Licensee's sole risk and
expense, provided, however, that in cases of emergency, Licensor
may, at Licensee's sole risk and expense, arrange to relocate
or replace the Licensee's Cable, transfer said Cable to a sub-
stitute duct system or perform any other work in connection
with said Cable that may be required in the maintenance,
replacement, removal or relocation of said duct system, for the
service needs of Licensor.
2. No additions to, or change of locations of Licensee's
Cable in Licensor's Duct System shall be undertaken without the
prior written consent of Licensor, except in cases of emergency,
when Licensee must obtain oral permission from Licensor s
authorized representative, presently designated as the City of
Denton, Director of Utilities and subsequently confirmed in
writing.
3. Licensee shall, of its sole risk and expense, maintain
all of Licensee's Cable in Licensor's Duct System in safe
condition and thorough repair. Licensor or its agents shall be
sole judge of suitability of such condition and repair.
4 Licensor reserves to itself, its successors and assigns
the right to maintain Licensor's Duct System and to operate its
facilities therein in such manner as will best enable it to
PAGE 4
fulfill its public service requirements. Licensor or the Joint
Users will make every reasonable effort to prevent interruption
to the service of the Licensee but shall not be liable to
Licensee for any interruption to the service of Licensee or for
interference with the operation of the Licensee's Equipment.
5. Nothing in this Agreement shall be construed to obligate
Licensor to grant Licensee permission to use any particular duct
and Licensor at its discretion may revoke permission therefore
granted to Licensee with respect to any particular duct if
Licensor can make a substitute duct system available. If such
permission is refused, Licensee is free to make any other
arrangement not prohibited under the terms of this Agreement it
may wish to provide for Licensee's Cable at the location in
question.
6. Whenever, pursuant to the provisions of this Agreement,
Licensee shall be required to remove Licensee's Cable from any
duct, such removal shall be made, except as otherwise specifi-
cally provided, within thirty (30) days following the giving of
notice to Licensee to so remove. Upon failure of Licensee to
remove Licensee's Cable within such thirty (30) days or as
otherwise required, Licensor may remove Licensee's Cable and
charge all costs associated with said removal to Licensee.
ARTICLE VI.
RIGHTS -OF WAY, LEGAL AUTHORITY AND DEFAULT
1. In the event any such franchise, license, permit or
consent necessary for the lawful provision of CATV Service is
revoked or is hereafter denied to Licensee for any reason,
permission to route Licensee's Cable through Licensoe's Duct
System shall immediately terminate, Licensee shall, within a
reasonable time, remove Licensee's Cable from Licenser's Duct
system and Licensor, at its option, may forthwith terminate
this Agreement.
2. Upon notice from Licensor to Licensee that the cessation
of the use of any duct system has been requested or directed by
Federal, state or municipal authorities, permission to route
Cable through such duct system shall immediately terminate and
Licensee shall forthwith remove Licensee's Cable therefrom.
3. If Licensee shall fail to comply with any of the
provisions of this Agreement, including the specification
heretofore referred to, or oefaults in any of its obligations
under this Agreement, and shall fail within thirty (30) days
after written notice from Licensor to correct such default or
noncompliance, Licensor may, at its option
PAGE 5
a) forthwith terminate this Agreement in its entirety,
or,
b) at its election, revoke the permit covering the duct
or ducts involved in such default or noncompliance,
or,
c) at Licensor's option, obtain service of an attorney
to institute suit of other judicial proceeding to
remedy any default by Licensee in its performance of
the covenants, terms and conditions of this Agreement.
Licensee expressly agrees that it shall pay reasonable
attorney's fees and expenses of such legal counsel.
ARTICLE VII.
FEES
1. For the privilege of placing and maintaining Licensee's
Cable in Licensor's Duct System as shown on Exhibits A, B, C
and D, Licensee shall pay an initial fee of $18,000, and the
sum of $20.00 per year for the next fourteen (14) years, due
and payable on October 1, of each year.
2. No additional fees will be paid by Licensee during the
term of this Agreement except as provided elsewhere herein.
3. Payment of the $18,000 fee shall be made within thirty
(30) days of the execution of this agreement. Failure to pay
such amount when due shall constitute a default under this
Agreement.
ARTICLE VIII.
TERM AND TERMINATION OF AGREEMENT
1. This agreement, if not previously terminated in accord-
ance with the provisions hereof, shall continue in effect for a
term of fifteen (15) years and thereafter until terminated as
provided herein. The Agreement may be terminated at the end of
said term or at any time thereafter by either party giving to
the other party at least (90) days written notice. Upon
termination of the agreement, Licensee shall remove Licensee's
Cable for the Licensor's Duct System within thirty (30) days of
the effective termination date.
2. Licensee may at any time remove Licensee's Cable from
Licensor's Duct System bait shall immediately give Licensor
written notice of intent of such removal and Licensee's intent
PAGE 6
to terminate this Agreement. No credit or refund of any fee
shall be allowed Licensee on account of such removal.
3. This Agreement shall be subject to termination by
Licensor without notice, or, where circumstances permit, upon
five (5) days written notice to Licensee, upon objection being
made by or on behalf of any governmental authority asserting
prior jurisdictions thereof.
ARTICLE IX.
FORCE MAJEURE
If either party is rendered unable, wholly or in part, by
force majeure or other causes herein specified, to carry out its
obligations under this Agreement, other than the obligation to
make ?ayment of amounts due hereunder, it is agreed that on such
party s giving notice and reasonable full particulars of such
force majeure in writing to the other party within a reasonable
time after the occurrence of the cause relied on, then the
obligations of the party giving such notice, so far as they are
affected by such force majeure or the causes herein specified,
shall be suspended during the continuance of any inability so
caused, but for no longer period, and such cause shall so far
as possible be remedied with all reasonable dispatch.
For purposes of this Article, force majeure means any cause
or event not reasonably within the control of either party,
including without limitation the following- acts of God,
strikes; lockouts; orders of any kind of the government of the
United States or of the State of Texas or of any of their
departments, agencies or officials, or civil or military auth-
orities, insurrectional civil disturbances, epidermis, land-
slides, lightning, earthquakes; fires; hurricanes, tornadoes,
storms, typhoons, cyclones, waterspouts, floods, washouts,
arrests, restraints of government and people, explosions,
breakage or accident to machinery and transmission lines or
poles.
ARTICLE X.
INDEMNITY AND INSURANCE
1. Licensee shall indemnify, protect and hold harmless
Licensor and other Joint Users of said duct system from and
against ar&y and all loss, costs, claims, demands, damage and/or
expense arising out of any demand, claim, suit or judgment for
damages to property and injury to or death of persons, including
the officers, agents and employees of either party hereto and
other Joint Users of said duct system, including paymen- made
PAGE 7
under any Workers' Compensation law and under any plan for
employees' disability and death benefits, which may arise out
of or be caused by the erection, maintenance, presence, use or
removal of Licensee's Cables or by the proximity of the respec-
tive cables, wires, apparatus and appliances of the parties
hereto or other Joint Users of said duct system, or arising out
of an act or omission of alleged act or omission of Licensee,
including any claims and demands of customers of Licensee.
2. Licensee shall carry insurance, at its sole cost and
expense, to protect the parties hereto and other Joint Users of
said duct system from and against any and all such claims and
demands and from and against any and all actions, judgments,
costs, expenses and liability of every name and nature which
may arise or result, directly or indirectly, from or by reason
of the acts or omissions of Licensee hereunder and irrespective
of any fault, failure, negligence or alleged negligence in the
part of Licensor or of any or the joint users of said duct
system. The minimum amounts of such insurance are set out in
Section 27-58 of Ordinance No. 78-21 of the City of Denton
Ordinances, and the Licensee will comply with the provisions of
that section, and as the same may be amended. Licensee shall
promptly advise the authorized representative or Licensor of
all claims relating to damage to property or injury to or death
of persons, arising or alleged to have arisen in any manner by,
or directly or indirectly associated with, the erection,
maintenance, presence, use or removal of Licensee's property.
3. Licensee shall exercise special precautions to avoid
damage to facilities of Licensor and or the Joint Users in said
ducts and hereby assumes all responsibility for any and all
loss for such damage, Licensee shall make an immediate report
to Licensor of the occurrence of any such damage and hereby
agrees to reimburse Licensor for the expense incurred in making
repairs necessitated thereby.
ARTICLE XI.
LIMITATION ON ASSIGNMENT AND TRANSFER
1 Licensee shall not assign, transfer or sublet this
Agreement, or any of the privileges hereby granted to it,
without the prior written consent of Licensor. Provided,
however, that Licensor's consent shall not be required to place
a mortgage or lien upon the facilities of Licensee for the
purp.,se of financing the installation, improvement, maintenance
or extension of its system.
2. No use, however extended, of Licensor's Duct System under
this Agreement shall create or vest in Licensee any ownership of
PAGE 8
property right in Licenser's Duct System, but Licensee's rights
therein shall be and remain nothing more than a License.
Nothing herein contained shall be construed to compel Licensor
to maintain any of its duct system for a period longer than
that demanded by its own service requirements.
3. Nothing herein contained shall be construed as affecting
the rights or privileges previously conferred by Licensor to
others, by contract or otherwise, to use any ducts covered by
this Agreement, and Licensor shall have the right to continue
to extend such rights or privileges; the use privileges granted
hereunder shall at all times be subject to such contracts and
arrangements and nothing contained herein shall be construed as
affecting the right of Licensor to grant use privileges to such
other parties as it may desire to do so.
4. Failure to enforce or insist upon compliance with any of
the terms or conditions of this Agreement shall not constitute
a general waiver or relinquishment of any such terms or
conditions, but the same shall be and remain at all times in
full force and effect.
5. Subject to the provisions
this Agreement shall extend to
assigns of the parties hereto.
of paragraph 1 of this Article,
and bind the successors and
6. Nothing contained herein shall be construed as affecting
the rights conferred or exercised by the parties under present
or future governmental authority or regulation.
ARTICLE XII.
SUPPLEMENTAL OPERATING ROUTINES OR WORKING PRACTICES
1. Nothing in the foregoing shall preclude the parties to
this Agreement from preparing such supplemental operating
routines or working practices as they may mutually agree to in
writing to be necessary or desirable to effectively administer
the provisions of this Agreement.
ARTICLE XIII.
NOTICE
1. Any notice provided in this Agreement ro be given by
either party hereto to the other shall be deemed to have been
duly gives when made in writing and deposited in the United
States Mail, postage prepaid, addressed as follows
PAGE 9
TO LICENSEE: TO LICENSOR:
Sammons Communications, Inc. City of Denton
205 Industrial Attn: Director of Utilities
Denton, Texas 76201 215 East McKinney
Denton, Texas 76201
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
above written.
CITY OF DENTON, TEXAS, LICENSOR
ATTEST:
TFIFERIUMTERS9
CITY SECRX=
APPROVED AS TO LEGAL FOP14:
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
BY:
ATTEST
SAMMONS COMMUNICATIONS, INC.,
LICENQVP
BY
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