HomeMy WebLinkAboutOrdinance No. 95-06 . . . � ...a . , n q a `
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ORDINANCE NO. 95-6
AN ORDINANCE OF THE CITY OF FRIENDSWOOD, TEXAS, GRANTING
TO TCI TKR OF HOUSTON, INC. , A TEXAS CORPORATION, ITS
SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AND
FRANCHISE FOR A TERM OF FIFTEEN (15) YEARS TO ERECT,
MAINTAIN, AND OPERATE A COMMUNITY ANTENNA TELEVISION
SYSTEM IN THE CITY OF FRIENDSWOOD, TEXAS; TO ERECT,
MAINTAIN, AND OPERATE ITS POLES, TOWERS, ANCHORS, WIRES,
CABLES, ELECTRONIC CONDUCTORS, CONDUITS, MANHOLES, AND
OTHER STRUCTURES AND APPURTENANCES IN, OVER, UNDER,
ALONG, AND ACROSS THE PRESENT AND FUTURE PUBLIC STREETS,
HIGHWAYS, ALLEYS, BRIDGES, EASEMENTS, AND OTHER PUBLIC
WAYS AND PLACES IN THE CITY; PRESCRIBING COMPENSATION FOR
THE RIGHTS, PRIVILEGES, AND FRANCHISE CONFERRED
HEREUNDER; PRESCRIBING THE CONDITIONS GOVERNING THE
OPERATION OF THE BUSINESS INSOFAR AS IT AFFECTS THE USE
OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH BUSINESS;
PRESCRIBING RULES AND REGULATIONS GENERALLY FOR THE
INSTALLATION, UPGRADE, MAINTENANCE, AND OPERATION OF SAID
SYSTEM AND BUSINESS; CONTAINING OTHER PROVISIONS RELATING
TO THE SUBJECT; AND PROVIDING FOR SEVERABILITY.
* * * * *
WHEREAS, by Ordinance No. 79-18 , passed and approved on
August 20, 1979 , the City of Friendswood, Texas ("City") ,
granted to The MECA Corporation ("MECA") , a Texas corporation, the
right, privilege, and franchise to erect, maintain, and operate for
a term of fifteen (15) years a community antenna television system
in said City; and
WHEREAS, as of February 19, 1993, MECA changed its name to TCI
TKR of Houston, Inc. ("TCI") ;
WHEREAS, TCI (formerly named MECA) has provided cable
television services within the City under such franchise; and
WHEREAS, pursuant to its terms and provisions, said franchise
will expire on July l , 1995; and
WHEREAS, TCI has made a formal request to the City that it
(TCI) be granted a renewal of its right, privilege, and franchise
to erect, �upgrade, maintain, and operate a community antenna
television system (cable communications system) within the
jurisdictional boundaries of said City; and
WHEREAS, following proper notice the City Council of the City
held a public hearing on TCI's application, at which time
representatives of TCI and interested citizens were heard in a full
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public proceeding affording opportunity for comment by any and all
persons desiring to be heard; and
WHEREAS, from information presented at such public hearing,
from facts and circumstances developed or discovered throuqh
independent study and investigation, and because of TCI's
commitment to timely initiate and complete the replacement and
upgrade of such community antenna television system to a level
equal to the state of the art of cable television and to maintain
and operate the same in accordance with the highest accepted
standards of the industry, �he City Council now deems it
appropriate and in the best interest of the City and its
inhabitants that the cable television franchise be renewed with
TCI; now, therefore
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD,
STATE OF TEXAS:
ARTICLE I
ENACTMENT
§1. 01. Recitals. The facts and matters set forth in the
preamble of this Ordinance are hereby adopted, ratified, and
confirmede
§1.02 . Short Title. This Ordinance shall be known and may
be cited as "The City of Friendswood - TCI Cable Television
Franchise Ordinance. "
ARTICLE ia
DEFINITIONS
§2 . 01. General. The fol�owing terms, phrases, words,
abbreviations, and their derivations shall have the meanings
hereafter set forth. Terms, phrases, words, and abbreviations not
defined herein shall be construed in accordance with the ordinances
of the City or their customary usage and meaningo When not
inconsistent with the context, words used in the singular shall
include the plural, words in the plural shall include the singular,
and words used or defined in one tense or form shall include other
tenses or derivative forms. The words "shall, " "will, " and "must1°
are mandatory, and the word "may" is permissive or directory:
A. Additional Subscriber Services. Any communications
services other than Basic Subscriber Service, Expanded Subscriber
Service, and Pay Television provided by Grantee over the CATV
System either directly or as a carrier for its subsidiaries,
affiliates, or any other person engaged in communications services
including, but not limited to, burglar alarm, data or other
electronic intelligence transmission, facsimile reproduction, meter
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reading and home shopping, and program guides. Additional Services
shall not include the delivery by the CATV System of any
programming on an Educational Access Channel or Public Access
Channel. Such programming, if provided, shall be included in Basic
Subscriber Service. Additional Services shall not include two-way
switch communications (telephone services) .
B. Affiliate. An entity which owns or controls, is owned or
controlled by, or is under common ownership with Grantee.
C. Anniversary Date. The date on which this franchise
ordinance was passed and approved by the City Council of the City.
D. Basic Subscriber Service. The simultaneous delivery by
Grantee to television receivers or other suitable type of
audio—video communication receivers of that service regularly
offered or provided to all of its Subscribers, which shall include
the authorized retransmission of any and all local (Greater
Houston—Galveston Metropolitan Area) television broadcast signals
and public, educational and governmental access channels.
E. CATV. Community antenna television.
F. CATV System. A system of cables, wires, lines, towers,
fiber optics, wave guides, microwave and laser beams, and any
associated converters, equipment, or facilities designed and
constructed for the purpose of producing, receiving, amplifying,
and distributing audio, video, and other forms of electronic or
electric signals to and/or from subscribers and locations in the
City, but shall not include two-way switch communications
(telephone services) .
G. Channels. A band of frequencies, six (6) megahertz wide,
in the electro—magnetic spectrum, or which by any other means, is
capable of carrying both (1) audio—video television signals and
non—video signals and (2) non—video signals, or the equivalent
thereof utilizing current technology.
H. Citv. The City of Friendswood, Texas, a municipal
corporation of the State of Texas.
I. City Council. The present governing body of City or any
successor to the legislative powers of the present City Council.
J. Converter. An electronic device which converts signals
to a frequency not susceptible to interference within the
television receiver of a Subscriber and which, by an appropriate
channel selector, also permits a Subscriber to view all signals
delivered at dial locations designated by Grantee.
K. Expanded Subscriber Service. One or more clusters of
programming services which may or may not be offered for an
additional monthly charge.
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L. Federal Communications Commission or FCC. That agency as
presently constituted by the United States Congress or any
successor agency with jurisdiction over CATV matters.
M. Franchise Year. Any twelve—month period commencing on an
Anniversary Date and extending to the day immediately preceding the
next subsequent Anniversary Datee
N. Grantee. TCI TKR of Houston, Inc. , or any person who
succeeds TCI TKR of Houston, Inc. , in accordance with the
provisions of this franchisee
Oe Gross Revenues. All revenues collected by Grantee, or
any affiliate of Grantee, from or as a result of the operation of
its CATV System including, but not limited to, Basic Subscriber
Service revenues, Expanded Subscriber Service revenues, Additional
Subscriber Service revenues, Pay Television revenues, advertising
revenues including, but not limited to, those resulting from
transmission over Grantee's CATV system, from display on equipment,
facilities, or vehicles, and those from mailings or publications,
revenues resulting from connection or reconnection fees of any
kind, revenues resulting from the sale, lease, rental, use, repair,
or servicing of equipment of any kind, revenues resulting from the
sale, lease, use, or rental of Channels or channel capacity,
revenues resulting from commissions on sales from shopping
channels, revenues resulting from late or delinquent charges fees,
and any and all other forms of administration fee revenue. Gross
revenues shall not include any taxes which are imposed on any
Subscriber or User of Grantee's CATV System by any governmental
unit and collected by Grantee for such governmental unit.
Franchise fees collected from subscribers shall not be considered
a "tax" in the definition of taxes that are to be excluded when
calculating gross revenues.
P. Interconnect. When a CATV System is physically connected
to an adjacent CATV System or Systems by cable, microwave, or other
means and provides the capacity for simultaneous carriage of
signals, such as an emergency override.
Q. Pay Television. The delivery over the CATV System of
programming, computer access, or any other service to Subscribers
for a fee or charge over and above the charge for Basic Subscriber
Service or Expanded Subscriber Service on a per—program,
per—Channel basis, or per-time period of connection basis.
R. Person. Any person, firm, partnership, association,
corporation, company, or organization of any kind.
S. Public Utility Commission of Texas or PUC. That agency
as presently constituted by the laws of the State of Texas or any
successor agency.
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T. Street. The surface and the space above and below any
public street, road, highway, alley, bridge, sidewalk, or other
public place or way now or hereafter held by City for the purpose
of public travel and shall include other easements or rights—of—way
now held or hereafter held by City which shall, within their proper
use and meaning, entitle City and Grantee to the use thereof for
the purposes of installing or transmitting CATV System
transmissions over poles, wires, cables, conductors, conduits,
manholes, amplifiers, appurtenances, attachments, and other
structures, equipment and facilities as may be ordinarily necessary
and pertinent to a CATV System.
U. Subscriber. Any person lawfully receiving any service
delivered by the CATV System.
ARTICLE III
GRANT OF AUTHORITY
§3.01. Use of Public Streets and Easements. There is
hereby granted to TCI the right, privilege, and franchise to have,
acquire, construct, reconstruct, maintain, use, and operate in City
a CATV System, and to have, acquire, construct, reconstruct,
maintain, use, and operate in, over, under, and along the present
and future streets of City, as well as other easements and
rights—of—way held by City, all necessary or desirable poles,
towers, anchors, wires, cables, electronic conductors, underground
conduits, manholes, and other structures and appurtenances
necessary for the construction, maintenance, and operation of a
CATV System in City.
§3 . 02. Use, Rental, or Lease of Utility Poles and
Facilities. There is hereby granted to Grantee the authority to
contract with City or with the holder or owner of any utility
franchise in City for the use, rental, or lease of its or their
poles, underground conduits, and other structures and facilities
for the purpose of extending, carrying, or laying Grantee's wires,
cables, electronic conductors, and other facilities and
appurtenances necessary or desirable in conjunction with the
operation of its CATV System. City agrees that any public utility
owning or controlling such poles or underground conduits may,
without amendment to its franchise, allow, and is encouraged to
allow, Grantee to make such use thereof pursuant to any agreement
reached between such utility and Grantee.
ARTICLE IV
TERM, EVALUATION, AND RENEWAL
§4. 01. Term of Franchise. Upon the date of filing with
City by Grantee of the written acceptance required herein, this
franchise shall be in full force and effect and shall continue for
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a period and term which shall expire at midnight, December 31,
20090
§4. 02 . Performance Evaluation. In order to assure that
Grantee is complying with the provisions of this franchise, on or
within thirty (30) days of the third (3rd) , sixth (6th) , ninth
(9th) , and twelfth (12th) Anniversary Dates of this franchise, City
Council shall hold a public hearing or hearings for the purpose of
reviewing the performance of Grantee under this franchise. Unless
specifically waived by the City Council, attendance of Grantee's
duly authorized representative at these hearings shall be
mandatory. The subject of the hearings shall include, but not be
limited to, a presentation by Grantee of Grantee's performance
under the franchise, Grantee's development of new services, the
utilization of new technologies, a review of rates and comparisons
of such rates and performance benchmarks and standards set by
federal, state, or local agencies having jurisdiction, and a review
of any other federal, state, or local rule or regulation relevant
to the franchise. Grantee shall make available to the City
Council, if requested, any records, documents, or other information
which may be relevant to the City Council's review. At least
ninety (90) days prior to the date set for each such performance
evaluation hearing, the City Secretary shall notify Grantee of the
date and time of the hearing. At such hearing Grantee shall be
entitled to all of the rights of due process including, but not
limited to, the right to present evidence, the right to
cross—examine witnesses, and the right to be represented by
counsel. An audio recording of each performance evaluation
hearing shall be made and all records, minutes, and recordings
thereof shall be retained by the City Secretary and be available
for inspection throughout the term of this franchise. The
foregoing notwithstanding, the City Council may initiate and
conduct such additional performance evaluation hearings regarding
Grantee's performance under this franchise as the City Council, in
its sole discretion, may deem justified or necessary under the
circumstances. Grantee shall be given reasonable notice of the
date and time of any such additional hearings.
§4 . 03 . Renewal. Proceedings relating to the possible
further renewal of this franchise shall be conducted in accordance
with any federal or state laws, rules, and regulations then in
effect relating to such matters. Further, to the extent not in
conflict with the provisions of any such federal and state laws,
rules, and regulations, City Council may hold a public hearing not
less than six (6) months prior to the expiration of this franchise,
the purpose of which will be (i) to review Grantee's performance
during the entire term of its franchise; (2) to consider the
adequacy of this franchise from the standpoint of City, Grantee,
and FCC rules and regulations relating to cable television; and (3)
to determine the advisability of renewing Grantee's franchise for
an additional period of years. The City Council shall hear all
interested persons who wish to be heard during the course of such
hearing. Following such hearing, the City Council may determine
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whether Grantee's performance has been satisfactory in accordance
with the terms and conditions imposed by this franchise. If the
City Council finds that Grantee's performance has been satisfactory
in accordance with the terms and conditions hereof, the City
Council may renew Grantee's franchise for such additional period as
may be deemed appropriate at that time.
ARTICLE V
RECOUPMENT OF COSTS BY CITY
§ 5.01 Publication Costs. Any and all costs of publication
which may be required by law, ordinance, Charter, or action of City
Council shall be borne by Grantee.
ARTICLE VI
COMPLIANCE STANDARDS
§6.01. Compliance With Applicable Laws. The work done and
activity in connection with the construction, reconstruction,
maintenance, operation, or repair of Grantee's CATV System shall be
subject to and governed by all present and future laws, rules, and
regulations of City, the State of Texas, and the United States of
America, including the FCC, the PUC, and any and all other federal
or state agencies having jurisdiction.
§6.02 . Subiect to Police Powers of Citv. The construction,
maintenance, and operation of Grantee's CATV System and all
property of Grantee subject to the provisions of this franchise
shall be subject to all lawful police powers, rules, and
regulations of City. City shall have the power at any time to
order and require Grantee to remove or abate any pole, line, tower,
wire, cable, guy, conduit, electric conductor, or any other
structure or facility that is dangerous to life or property. In
the event Grantee, after written notice, fails or refuses to act,
City shall have the power to remove or abate the same at the
expense of Grantee, all without compensation or liability for
damages to Grantee.
ARTICLE VII
CONDITIONS OF STREET AND EASEMENT OCCUPANCY
�7. 01. Use. Al1 structures, wires, cables, equipment, and
facilities erected or maintained by Grantee within City shall be
located so as to cause minimum interference with the proper and
intended use of streets or easements and with the rights or
reasonable convenience of the owners or occupiers of property which
adjoins any such street or easement. Any excavation or obstruction
made or erected in any street, easement, or public place shall be
protected by barriers and lights placed and maintained by Grantee,
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at its expense, in accordance with any applicable federal state, or
local law.
§7. 02 . Restoration. The surface of any street or easement
disturbed by Grantee in laying, constructing, maintaining,
operating, using, extending, removing, replacing, or repairing its
CATV System shall be restored by Grantee immediately after the
completion of the work, at its cost and expense, to as good a
condition as before the commencement of the work. Any such
restoration work performed in streets or street rights-of-way shall
be maintained by Grantee to the satisfaction of City for a period
of one (1) year from the date of completion of such restoration
work. No street or easement shall be encumbered by construction;
maintenance, removal, restoration, or repair work by Grantee for a
longer period than shall be necessary to execute such work. If
there is an unreasonable delay by Grantee in restoring and
maintaining streets or restoring easements after such excavations
or repairs have been made, City shall have the right without
further notice to Grantee to restore or repair the same and to
require Grantee to pay the reasonable cost of such restoration or
repair. Grantee shall provide City written notice of any proposed
disturbance to streets or street rights-of-way prior to the
commencement thereof, and to City and to the owner or occupant of
the underlying property prior to the disturbance of any easement.
Such notice shall be given by Grantee as early as is reasonably
practicable.
§7.03 . Relocation. Whenever by reason of the construction,
repair, maintenance, relocation, widening, raising, or lowering of
the grade of any street by City or by the location or manner of
construction, reconstruction, maintenance, or repair of any public
property, structure, or facility by City, it shall be deemed
necessary by City for Grantee to move, relocate, change, alter, or
modify any of its facilities or structures, such change,
relocation, alteration, or modification shall be promptly made by
Grantee, at its cost and expense, when directed in writing to do so
by City, without claim for or right of reimbursement of cost or
damages against City. In the event Grantee, after such notice,
fails or refuses to commence, pursue, or complete such relocation
work within a reasonable time, City shall have the authority, but
not the obligation, to remove or abate such structures or
facilities and to require Grantee to pay to City the reasonable
cost of such removal or abatement, all without compensation or
liability for damages to Grantee.
§7. 04. Temporary Removal of Wire for Building Movinq. Upon
written request of any person holding a building moving permit
issued by City, Grantee shall remove, raise, or lower its wires and
cables temporarily to permit the moving of houses, buildings, or
other bulky structures. The reasonable expense of such temporary
removal, raising, or lowering shall be paid by the benefited
person, and Grantee may require such payment in advance, Grantee
being without obligation to remove, raise, or lower its wires and
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cables until such payment shall have been made. Grantee shall be
given not less than five (5) working days advance written notice to
arrange for such temporary wire and cable adjustments.
§7. 05. Tree Trimminq. From time to time, the City Council
may pass ordinances regulating the trimming or removal of trees on
or along City property.
§7. 06. Placement of Fixtures. Grantee shall not place
poles, towers, or similar fixtures where the same will interfere
with any gas, electric, or telephone fixtures, water hydrant or
main, drainage facility, or sanitary sewer, and all such poles,
towers, and similar facilities shall be placed as directed by City
and in such manner as not to interfere with the usual travel or use
of the streets.
§7. 07. Approval of Plans and Specifications. Grantee shall
provide complete plans and specifications for all construction
within streets to City for its review at least fifteen (15) days
prior to the start of construction. Approval of plans and
specifications shall not be unreasonably delayed or denied. In the
event of rejection, Grantee shall submit revised plans and
specifications for approval. This provision shall apply to each
construction sequence if the construction is accomplished in
phasese
ARTICLE VIII
INDEMNIFICATION AND LIABILITY
§8. 01. Grantee's Obligation. Grantee shall pay, and by the
acceptance of this franchise specifically agrees that it will pay
all damages or penalties which City, its officers, agents, or
employees may legally be required to pay as a result of damages
arising out of copyright infringements and all other damages
arising out of the installation, maintenance, or operation of
Grantee's CATV System, whether or not any act or omission
complained of is authorized, allowed, or prohibited by this
franchiseo
§8. 02 . Indemnitv. By its acceptance of this franchise
Grantee specifically agrees, that Grantee shall indemnify and hold
City, its officers, agents, and employees, harmless from all
liability, damage, cost, or expense arising from claims for injury
to persons, damage to property, or penalties occasioned by reason
of any wrongful or negligent act or omission by Grantee, or by any
officer, agent, or employee of Grantee, which may arise out of �he
granting of this Franchise, or the construction, operation, or
maintenance of Grantee's CATV System. City shall not and does not
by reason of the granting of this franchise assume any liability of
Grantee whatsoever for injury to persons, damage to property, or
penalties of any kind whatsoever. City shall cause notice of any
such claim to be given to Grantee as soon as is reasonably possible
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following knowledge thereof by City. If, after proper notice is
qiven by City to Grantee, Grantee should fail or refuse to defend
City, its officers, agents, employees, or contractors against any
and all claims for damages or penalties described in this Article,
City may assume such defense, and Grantee shall pay, and by the
acceptance of this franchise specifically agrees that it will pay,
all reasonable expenses incurred by City in providing such defense.
These expenses shall include out-of-pocket expenses such as, but
not limited to, reasonable attorneys fees, witness fees, and court
costs, and the reasonable value of any services rendered by any
officers or employees of City and others retained by City in its
behalf which are reasonably necessary for the preparation of City's
defense.
ARTICLE IX
INSURANCE REQUIREMENTS
§9. 01. Minimum Coveracte. Within thirty (30) days after the
effective date of this franchise, Grantee shall file with City
Secretary and shall maintain on file throughout the term of this
franchise a liability insurance policy, or certificates of
insurance evidencing such policies of insurance issued by a company
duly authorized to do business in the State of Texas insuring City
and Grantee with respect to the installation, maintenance, and
operation of Grantee's CATV System in the following minimum
amounts:
A. Bodily Injury and General Aggregate Three Million
Property Damacte: Dollars ($3, 000, 000) per occurrence.
B. All Other Types Of
Liability includinct,
but not limited to,
contractual
liabilitv: One Million Dollars ($1, 000, 000) .
§9.02 . Increased Coveracte. The City Council may require
Grantee to increase the minimum amounts of liability insurance
coverage to such amounts as are deemed by City Council to be
reasonably necessary at such time. Such requirement shall be
expressed by resolution or ordinance.
§9.03 . Notice of Cancellation or Reduction. Such policy of
liability insurance shall contain the provision that written notice
of expiration, cancellation, or reduction in coverage of the policy
shall be delivered to the City Secretary and to Grantee at least
thirty (30) days in advance of the effective date thereof.
§9. 04. Term. Such liability insurance shall be kept in
full force and effect by Grantee during the existence of this
franchise and thereafter until after the removal of all poles,
wires, cables, underground conduits, manholes, and other conductors
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and fixtures incident to the maintenance and operation of Grantee's
CATV System, should such removal be required by City Council or
undertaken by Grantee.
ARTICLE X
REPLACEMENT AND UPGRADE OF SYSTEM
§10. 01. Plan for Replacement and Upgrade of System. Grantee
has submitted a Plan for the replacement and upgrade of its CATV
System in City and other jurisdictions served by the System. Such
Plan includes a construction schedule, designation of each area of
City where the CATV System is to be replaced or upgraded, the dates
such replacements and upgrades are to be initiated and completed in
each such area, and the procedure or method Grantee will employ in
effecting such replacement or upgrade in each such area to ensure
no or minimal interruption of serviceo Al1 construction and
technical specifications contemplated by and included in such Plan
shall be in conformity with the provisions of this franchise
ordinance. Grantee shall submit to City each calendar quarter
during the replacement and upgrade, a written report regarding the
current status and progress of its work as compared to that defined
and projected in the Plan.
§10. 02 . Compliance. Failure of Grantee to timely commence
and pursue any of the foregoing requirements or to abide by or
�imely complete any such requirement shall be deemed a violation of
this franchise ordinancee
§10. 03 . Impossibility of Performance. Grantee shall not be
held in default or noncompliance with the provisions of this
Franchise Ordinance, nor suffer any enforcement or penalty related
thereto, where such noncompliance or alleged defaults are caused by
strikes, acts of God, power outages, or other events reasonably
beyond the ability of Grantee to control.
ARTICLE %I
OPERATIONAL STANDARDS
�11. 01. Highest Accepted Standards of the Industry.
Grantee's CATV System shall be installed, replaced, upgraded,
maintained, and operated in accordance with the highest accepted
standards of the cable television industry to the end that
Subscribers to the System may receive the best and most desirable
form of service. Toward accomplishment of this purpose, Grantee
shall provide City with a written report of the results of any
system performance tests required by the FCC and, upon written
request by City, any other proof of performance tests conducted by
Grantee or by any agent or contractor of Grantee. Grantee shall
pay the costs incurred by City for any technical assistance deemed
necessary by City for obtaining independent verification of
compliance with the technical standards required hereby if such
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testing demonstrates that Grantee has failed to substantially
comply with a material requirement hereof. In addition, Grantee
and its CATV System shall meet the minimum standards and service
offerings hereafter set forth in this Article.
§11. 02. Compliance with FCC Rules. Grantee shall comply
with present and future rules and regulations of the FCC including,
but not limited to, technical standards, testing requirements,
consumer protection standards, and consumer electronics
compatibility regulations, and all other present and future rules
and regulations of the FCC in connection with and relating to the
operation of its CATV System.
§11. 03 . 4uality of Color Signals. Grantee's CATV System
shall be capable of transmitting and passing the entire color
television spectrum without the introduction of material
degradation of color intelligence and fidelity.
§11. 04. Rated for Continuous Operation. Grantee's CATV
System shall be designed and rated for twenty—four (24) hours a day
continuous operation.
§11. 05. 4uality of Picture. Grantee's CATV 5ystem shall be
capable of and shall produce a picture upon any Subscriber's
television screen in black and white or color, provided the
Subscriber's television set is capable of producing a color
picture, that is undistorted and free from ghost images, assuming
the technical, standard production television set is in good repair
and the television broadcast signal transmission is satisfactory.
In any event, the picture produced shall be as good as the state of
the art allows.
§11. 06. 4uality of Audio. Upon completion of Grantee's
upgrade, Grantee's CATV System shall be capable of and shall
produce audio through any Subscriber's television set that is clear
and free of interference, and shall be capable of producing stereo
sound on each Channel which offers eight (8) hours or more of
stereo programming by the Channel provider during any calendar day,
assuming the technical, standard production television set is in
good repair, is capable of receiving and producing such stereo
sound, and the broadcast signal transmission provided Grantee is
satisfactory. In any event, the audio portion of the transmission
produced shall be as good as the state of the art allows.
§11. 07. No Cross Modulation or Interference. Grantee's CATV
System shall transmit or distribute signals of adequate strength to
produce state of the art pictures with state of the art sound in
all television receivers of all Subscribers without causing
cross-modulation in the cables or interference with other
electrical or electronic systems.
§11. 08. Channel Capacity. Upon completion of Grantee's
upgrade, Grantee's CATV System shall have a minimum Channel
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capacity of seventy-five (75) video Channels. Grantee's CATV
System shall have available to Subscribers not less than sixty (60)
Channels within five (5) years from the effective date hereof.
§11.09. Programming Categories. Grantee shall carry on its
CATV System broad categories of programming which shall include,
but not be limited to, news, movies, sports, religion, educational,
governmental (including federal congressional coverage) , services
for the hearing impaired as provided to the CATV System at its
headend, Spanish, weather, music, and other standard entertainment
programming typically provided by independent commercial stations.
Provided however, nothing herein shall be construed to require
Grantee to provide any category of programming which is not
available from two or more programming sources.
§11. 10. Converter—Parental Guidance Control. Grantee shall
provide Converters that can be equipped with a parental guidance
control capable of securing one Channel or all Channels to any
subscriber who so requests.
§11. 11. Temperature Ranqe. Grantee's CATV System shall be
capable of operating throughout the air temperature range of 0 to
110 degrees Fahrenheit without degradation of audio or video
fidelity.
§11. 12 . Educational and Governmental Access Channels. Upon
completion of Grantee°s upgrade, upon not less than ninety (90)
days advance written notice by City, Grantee shall provide up to
three (3) Channels for educational and governmental access.
Grantee shall provide physical access and reasonable space for City
owned head-end equipment to input programming for each such Channel
at Grantee's head-end. Grantee shall ensure that each such Channel
is of comparable quality, which includes the level of ingress
interference, as with any other Channel in VHF, UHF, or FM
frequency band. Educational and governmental access channels
provided on the effective date hereof shall be continued until
otherwise directed by City. Channel access by the Friendswood
Independent School District and City shall be provided free of
charge to City or the District. If authorized by FCC regulation,
Grantee shall be entitled to recover costs for such channel access,
if any, from subscribers.
To receive additional educational and government access
channels, other than as provided above, all three access channels
previously allotted must be in use and be providing at least
sixteen (16) hours of locally produced video programming per day,
of which no more than four (4) hours can be repetitive programming.
This condition shall be met prior to allotment of any
additional access channels. At the time of the request for an
additional channel, Grantee, within sixty (60) days, shall estimate
the additional cost of the channel. Upon agreement, City will
order the channel to be implemented and, as part of the agreement,
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will not challenge the impact of the rate for the addition of each
such access channel when analyzing rate findings, provided the
estimate does not differ from the actual cost by more than five
percent (5�) .
§11. 13 . Standard of Care. Grantee shall at all times employ
a high standard of care and shall install, maintain, and use
industry approved methods and devices for preventing failures or
accidents which are likely to cause damages, injuries, or nuisances
to the public.
§11. 14. No Obscenitv. Grantee shall comply in all respects
with all federal, state, and local laws regarding obscenity and
shall not broadcast or transmit any picture, signal, or sound or
provide any service which is obscene or otherwise unprotected by
the Constitution of the United States of America.
§11. 15. Service and Repair. Grantee shall render efficient
service, make repairs promptly, and interrupt service only for good
cause and for the shortest time possible. Insofar as possible,
such interruptions shall be preceded by forty-eight (48) hours
notice to City and to affected Subscribers and shall occur during
periods of minimum use of the CATV System.
§11.16. Grantee's Office. Grantee shall maintain in or near
City at least one (1) customer service office, which office shall
be open during all normal business hours, have a listed telephone,
be capable of accepting current payments, and be capable of
receiving equipment rented to customers by Granteeo In addition,
Grantee shall maintain such offices within the metropolitan area
that are equipped, staffed, and operated so as to receive
complaints and requests for service, installations, repairs, or
billing adjustments twenty four hours a day, seven days a week.
Such offices shall also maintain complete and updated maps of
Grantee's CATV System and the construction plans and specifications
therefor.
�11. 17. Retention of Correspondence. Copies of all
correspondence from Grantee to Subscribers and from Subscribers to
Grantee, including Subscriber complaints, shall be date stamped by
Grantee and retained by it for at least three (3) years.
§11. 18. Complaints. All complaints received by City,
whether in writing or through verbal communication, relative to
Grantee's CATV System or the method of its operation shall be
forwarded by City to Grantee for handling. Where there is a
pattern to complaints made, or where there exists other evidence
which in the reasonable judgment of City casts doubt on the
reliability or quality of Grantee's cable television service, City
shall have the right and authority with respect to the specific
complaint or complaints received to require Grantee, at its
expense, to test, analyze, and report on the performance of its
CATV System. Grantee shall fully cooperate with City in performing
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such tests and, when requested by City to do so, shall prepare a
written report ref lecting the results and f indings of such test and
analysis and deliver the same to City within thirty (30) days after
such request is delivered by City to Grantee. Such report shall
include the following information:
A. Nature of Complaint. The nature of the complaint or
problem which precipitated the special test or tests.
B. What Was Tested. What System component was tested.
C. Equipment Usea The equipment used and the procedures
followed in making such tests.
D. Resolution of Problem. The method, if any, by which such
complaint or problem was resolved and the date of such resolution.
E. Additional Information. Any other information pertinent
to said tests and analysis which may be requested by City or
required under the circumstances.
Grantee shall maintain a complaint log, to be kept at the
offices of Grantee, that includes a listing and resolution of all
complaints received directly by Grantee and complaints that have
been forwarded to Grantee from City.
§11. 19. Supervision of Tests. City may require that such
tests be supervised by a registered professional engineer not an
officer or employee of Grantee. In such an event, the engineer
shall sign all records of special tests and timely forward to City
such records with his report interpreting the results of such tests
and setting forth his recommendations regarding remedial action, if
any, which has or should be taken to correct the problem. City's
rights under this Section shall be limited to requiring tests,
analyses, and reports covering specific subjects, characteristics,
or problems based on such complaints or evidence of such a nature
as to constitute reasonable grounds for City to believe that tests
are required to be performed in order to protect the public from
substandard cable television service. City's request for such
�esting shall be in writing and shall provide Grantee with the
grounds or basis for such request. If the test results indicate
that Grantee's CATV System is in compliance with applicable rules,
regulations, or standards contained herein or promulgated by
applicable governmental agencies, then the costs for such testing
shall be borne by City, otherwise the costs therefor shall be borne
by Grantee.
§11.20. Interference With Reception. Grantee shall maintain
and operate its CATV System in such a manner that it will not
interfere with reception on television sets not connected to or
served by such System, or other electronic devices.
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§11.21. State of the Art. Grantee shall undertake any and
all construction and installation necessary to keep current with
the latest developments in the state of the art of CATV, whether
with respect to increasing Channel capacity, developing and
offering to subscribers new services, instituting more extensive
two—way service, or such other industry developments as may become
available during the term of this franchise. Provided, however,
nothing contained in this §11.21 shall be construed as requiring
Grantee to commit economic waste.
§11.22. Quality of Service. Throughout the term of this
franchise, Grantee shall maintain the quality of service and meet
operational standards in the maintenance and operation of its CATV
System as are required herein. Should City find that Grantee has
failed to maintain such quality of service or operational
standards, City may notify Grantee in writing and specifically set
forth therein the improvements required to rectify such
deficiencies. Failure of Grantee to make such improvements within
thirty (30) days of the receipt of such notification by Grantee
shall be deemed a violation of a material provision of this
franchise ordinance and subject Grantee to revocation of this
franchise pursuant to §25. 02 below.
§11. 23. Customer Service Standards. Grantee shall comply
with such customer service standards as may be adopted from time to
time by City not inconsistent with federal or state law, or this
Ordinancee
§11.24. Economic Waste. Notwithstanding any other provision
contained in this Article XI to the contrary, upon completion of
Grantee's upgrade, nothing herein shall be construed as requiring
Grantee to commit economic waste.
ARTICLE XII
INSTALLATIONS
§12 . 01. Underqround Installation. In those portions of City
having telephone lines and electric utility lines underground,
whether required by ordinance or not, any and all of Grantee's
lines, cables, and wires shall also be placed underground. It
shall be the policy of City that existing poles for electric and
communication purposes be utilized whenever possible and that
underground installation, even when not required, is preferable to
the placing of additional poles.
§12 . 02 . Required Extensions of Service; Subscriber Charges.
Grantee shall extend its CATV System to any lot or tract of
land for which the owner or occupant thereof has requested servicee
Provided, however, if more than one hundred fifty feet (150' ) of
distance lies between the nearest distribution cable and the point
of connection of service to the property for which service is
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requested, and there exists a density of less than one (1)
residence per one hundred fifty (150' ) cable-bearing strand feet of
trunk or distribution cable between the nearest distribution cable
and the point of connection of service to such property, Grantee
may require a capital contribution in aid of construction from the
person requesting such service. The calculation of such capital
contribution shall be as follows: the first one hundred fifty feet
(150' ) of extension shall be provided free of charge to the
requesting party; one-half of the cost of extending the following
two hundred feet (200' ) may be required to be paid by the
requesting party; all costs of the extension in excess of three
hundred fifty feet (350' ) may be required to be paid by the
requesting party. Any applicable costs of any such extension shall
be calculated using the most direct route for such extension.
ARTICLE XIII
EMERGENCY USE OF THE CATV SYSTEM
§13. 01. Emergency or Disaster. For use in the event of an
emergency or disaster, Grantee shall provide City with procedures
to be used for coordinating with other jurisdictions served by the
CATV System for audio override access to the CATV headend for
purposes of delivery of emergency information via the CATV System.
To the extent reasonably possible, Grantee shall provide such
emergency personnel as may be necessary to operate its equipment
and facilities under the circumstances.
ARTICLE %IV
COMPLIANCE WITH STATE AND FEDERAL LAWS
§14. 01. Standard of Compliance. Notwithstanding any other
provision of this franchise to the contrary, Grantee shall at all
times comply with all laws, rules, and regulations of the state and
federal governments and any administrative agencies thereof. If
any such state or federal law, rule, or regulation shall require or
permit Grantee to perform any service or shall prohibit Grantee
from performing any service in conflict with the provisions of this
franchise or any other ordinance, rule, or regulation of City, then
immediately following knowledge thereof Grantee shall notify the
City Council in writing of the point of conflict believed to exist
between such state or federal law, rule, or regulation, and this
franchise or any other ordinance, rule, or regulation of City. If
City Council determines that a material provision of this franchise
does in fact conflict with such state or federal law, rule, or
regulation, then the Grantee and the City shall enter into good-
faith negotiations to modify such material provision hereof to such
reasonable extent as may be necessary, and to the extent lawfully
allowed, to carry out the full intent and purpose of this
franchise.
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Section 14. 02 . Acceptance of Franchise Not a Waiver.
Acceptance of this franchise by Grantee shall not constitute a
waiver by it of any of its rights, including any rights it may have
under the Constitution of the United States.
ARTICLE XV
MODIFICATIONS BY FCC; JURISDICTION OF FCC
§15.01. Preemption by FCC. No amendment of any rule or
regulation of the FCC or other applicable state or federal
governmental agency shall act to deprive City of regulatory
authority over Grantee hereunder, or modify or revoke any right
retained by City hereby, unless such amendment provides for
preemption of such authority or right of City.
ARTICLE XVI
EMPLOYMENT REQUIREMENTS
§16. 01. Equal Opportunity in Employment. Grantee shall
afford equal opportunity in employment to all qualified persons.
No person shall be discriminated against in employment because of
race, color, religion, national origin, or sex. Further, Grantee
shall comply in all respects with the requirements of the Americans
with Disabilities Act.
ARTICLE XVII
PAYMENT TO CITY
§17. 01. Amount and Time. As compensation for the right,
privilege, and franchise herein conferred, Grantee shall pay to
City for each calendar quarter, or portion thereof, during the term
of this franchise a sum equal to five percent ( 5 %) of Grantee's
Gross Revenues for such calendar quarter. Such payments shall be
due and payable within sixty (60) days following the end of each
calendar quarter, or portion thereof, to which such payment
applies. Each payment shall be accompanied by Grantee's revenue
report as set forth in Section 18. 03 below. Any payment not
received by City on or before the due date shall accrue interest at
the rate of nine percent (9%) per annum or at the highest
nonusurious percentage rate allowed by law, whichever is lower.
§17. 02 . Riqht of Inspection of Records. City shall have the
right to inspect Grantee's records showing the Gross Revenues from
which payments to City are computed and to audit and recompute any
and all amounts paid under this franchise. No acceptance of
payment shall be construed as a release or as an accord and
satisfaction of any claim City may have for further or additional
sums payable under this franchise or for the performance of any
other obligation hereunder.
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§17. 03 . Other Payments to City. The franchise fee payable
hereunder shall be exclusive of and in addition to all ad valorem
taxes, special assessments for municipal improvements, and other
lawful obligations of Grantee to City.
ARTICLE BVIII
RECORDS AND REPORTS
§18. 01. Books of Account. Grantee shall keep complete and
accurate books of accounts and records of its business and
operations under and in connection with this franchise. All such
books of accounts and records shall be maintained at Grantee's
customer service office in or near City or at Grantee's corporate
office.
§18. 02 . Access by City. City, through its duly designated
officers, agents, or representatives, shall have access to all
books of accounts and records of Grantee for ascertaining the
correctness of any and all reports relating to the enforcement of
or compliance with this franchise and may examine its officers and
employees under oath with respect thereto. In the event such books
of accounts and records are stored at a location other than
Grantee's customer service office in or near City, Grantee shall,
within a reasonable time following City's written request to do so,
produce such books of accounts and records at a geographic location
convenient to City. Access shall be given by Grantee to such
officers, agents, or representatives of City at all reasonable
times not only to Grantee's records of Gross Revenues, but also to
all of Grantee's plans, contracts, engineering, planning,
financial, statistical, customer, and Subscriber service records
relating to the properties and operation of its CATV System and to
all other records and reports required to be kept or which are kept
by Grantee in connection with the operation of its CATV System in
City. Notwithstanding any other provision contained herein to the
contrary, City agrees that any information disclosed by Grantee
which is reasonably deemed by Grantee to be proprietary or
confidential shall be treated by City as confidential and City
agrees to disclose such information only to officers, employees,
representatives, or agents of City that "need to know" in order to
enforce the provisions of this franchise. This covenant of
confidentiality shall be subject, however, to applicable provisions
of this franchise and of law.
§18. 03 . Revenue and Financial Reporting Requirements. A
revenue report shall be filed by Grantee with City within sixty
(60) days following the end of each calendar quarter, or portion
thereof, during which this franchise is in effect. Such report
shall include the number of Subscribers as of the last day of the
preceding calendar quarter, the Gross Revenue, Basic Subscriber
Services revenue, Expanded Subscriber Service revenue, Additional
Subscriber Services revenue, Pay Television Services revenue, and
all other revenue for the preceding calendar quarter and such other
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information City may request with respect to the revenues,
properties, expenses, operations, and services of Grantee's CATV
System as may be reasonably required to establish compliance with
the provisions of this franchise ordinance. Such report shall be
in the form attached hereto, and include all information provided
for by the Gross Revenue and Franchise Computation Quarterly Report
attached hereto as Exhibit "A" and for all things made a part
hereof. Such report shall be certified to by an independent
certified public accountant or an officer of Grantee. If such
report is not certified to by an independent certified public
accountant, City shall be entitled to audit the reported revenues
at the cost of City. Provided, however, if any such audit of a
quarterly revenue report discloses a material error or
misrepresentation in the report being audited, Grantee shall
reimburse City for the costs of such audit.
In addition to the quarterly revenue report, Grantee shall
supply an annual financial report with a full income statement and
statement of properties for the smallest accounting level at which
Grantee compiles such information and within which City is
included. Such revenue report shall be filed with City not later
than the one hundred eightieth (180th) day following the expiration
of each calendar year or portion thereof, during which this
franchise is in effect.
§18. 04 . False Entrv. Any false entry in the books of
accounts and records of Grantee or false statement in the reports
to City or its duly designated officers, agents, or representatives
as to a fact knowingly made by Grantee shall constitute a violation
of this franchise ordinance.
§18. 05. FCC Filinas. Upon written request of City, Grantee
shall file copies of any and all reports and filings made to the
FCC with the City Secretary.
ARTICLE XIX
GRANTEE'S RULES
§19. 01. Authority and Obligation. Grantee shall have the
authority and obligation to promulgate such rules, regulations,
terms, and conditions governing the conduct of its business as
shall be reasonably necessary to enable Grantee to exercise its
rights and to perform its obligations under this franchise and to
assure an uninterrupted service to all Subscribers; provided,
however, such rules, regulations, terms, and conditions shall not
be in conflict with any of the provisions of this franchise or any
ordinance of City, the laws of the State of Texas and the United
States of America, and the rules and regulations of the FCC and any
other federal agency having jurisdiction. A copy of Grantee's
rules, regulations, terms, and conditions shall be filed with the
City Secretary and shall thereafter be maintained current by
Grantee.
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ARTICLE X8
REGULATION OF RATES
§20.01. City Regulation of Grantee's Rates. The City
Council shall be empowered to fix, alter, and regulate, by
ordinance, the rates for any and all of those services,
installations, and equipment of Grantee subject to regulation by
City, consistent with FCC rules governing rate regulation. If the
City Council of City elects to exercise its powers of rate
regulation, it shall first prescribe by ordinance or resolution the
procedure and standards to be followed and the extent and scope of
such rate regulation, all of which matters shall be consistent with
due process and shall conform to any and all federal and state
laws, rules, and regulations then applicable.
§20. 02 . Posting and Filing of Rates. Grantee shall provide
schedules of its then current rates and charges for any and all of
its cable television services in City, shall post the same in its
main office, shall file five (5) copies thereof with the City
Secretary of City in compliance with any timing requirements
prescribed by FCC regulations, and shall serve subscribers with
copies thereof in accordance with FCC regulationse
ARTICLE XXI
DISCONTINUANCE OF SERVICE
§21. 01. Failure to Pay Bill. Grantee may disconnect
installations and discontinue service to a Subscriber upon the
Subscriber's failure to pay his bill within thirty (30) days of its
rendition; provided, however, Grantee shall give the Subscriber at
least fifteen (15) days written notice, delivered either by mail or
served in person, that his service will be discontinued unless all
arrearages are paid to Grantee before the expiration of such
fifteen (15) day period. Any such notice prominently displayed on
a Subscriber's bill shall be deemed as a sufficient method of
notification hereunder.
ARTICLE X%II
FREE DROPS AND SERVICE
�22 . 01. Free Drops and Service. The Grantee shall provide
without charge one (1) outlet of Basic Service to the City's office
building(s) , fire station(s) , police station(s) , and public school
building(s) that are passed by its CATV System. Notwithstanding
anything to the contrary set forth in this §22 . 01, Grantee shall
not be required to provide an outlet to such buildings where the
drop line from the feeder cable to said buildings or premises
exceeds one hundred fifty (150) cable feet, unless it is
�echnically feasible and so long as it will not adversely affect
the operation, financial condition, or market development of the
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CATV System to do so, and the appropriate governmental entity
agrees to pay the incremental cost of such drop line in excess of
one hundred fifty (150) cable feet. In the event that additional
outlets of Basic Service are provided to such buildings, the
building owner shall pay the usual installation fees associated
therewith, including, but not limited to, labor and materials.
ARTICLE %RIII
PROHIBITION OF DISCRIMINATORY OR PREFERENTIAL PRACTICES
§23 . 01. Rates, Charges, and Services. In its rates or
charges, or in making available the services or facilities of the
CATV System, or in its rules or regulations, or in any other
respect, Grantee shall not make or grant preference or advantage to
any Subscriber or potential Subscriber or to the User of the CATV
System or potential User of the CATV System and shall not subject
any such person to any prejudice or disadvantage. This provision
shall not be deemed to prohibit promotional campaigns to stimulate
subscriptions to the CATV System or other legitimate uses thereof,
nor shall it be deemed to prohibit the offering by Grantee of
reasonable discounts to senior citizens or the economically
disadvantaged. Provided further, nothing herein shall be construed
to prohibit Grantee from entering into "bulk agreements" with
owners of multi-dwelling buildings whereby the owner provides
Grantee's service to all tenants under a preferential bulk rate,
and any such "bulk agreement" shall not be deemed discriminatory
hereunder.
ARTICLE %XIV
NON-EXCLUSIVE FRANCHISE
§24. 01. Franchise Non—Exclusive. The rights, privileges,
and franchise granted hereby are not exclusive and nothing herein
contained shall be construed to prevent City from granting any like
or similar rights, privileges, and franchise to any other person
within all or any portion of Cityo
ARTICLE XXV
MATERIAL BREACH OF FRANCHISE, NOTICE,
AND LIQUIDATED DAMAGES
§25. 01. Material Breach of Franchise. In addition to all
rights and powers of City by virtue of this franchise or otherwise,
City reserves as an additional and as a separate and distinct power
the right to take any of the actions described in §25. 02 in
accordance with the procedures specified therein if any of the
following events occur or for any of the following reasons:
1. Grantee, by act or omission, violates any term,
condition, or provision of this franchise;
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2. Grantee knowingly or willingly attempts to evade
any material provision of this Ordinance;
3 . The occurrence of any event which may reasonably
lead to the foreclosure or other similar judicial
or nonjudicial sale of all or any material part of
the System;
4. Grantee suspends or discontinues its business,
makes an assignment for the benefit of creditors,
fails to pay its debts generally as they become
due, becomes insolvent (howsoever such insolvency
may be evidenced) , is adjudicated insolvent,
petitions or applies to any tribunal for, or
consents to, the appointment of, or taking
possession by, a receiver, custodian, liquidator,
or trustee or similar official, or a similar
process is undertaken by any tribunal against all
or a material part of the System; or
5. Grantee attempts to or does practice any fraud or
deceit in its conduct or relations under this
franchise with City, Subscribers or potential
Subscribers.
§25.02 . Notice of Default; Opportunity to Cure.
A. Notice of Default. The City Council shall exercise the
rights provided in §25. 02 (B) hereof in accordance with the
procedures set forth below:
1. City shall notify Grantee, in writing, of an
alleged failure to comply with a material provision
of this Ordinance, which notice shall specify the
alleged failure with reasonable particularity.
Grantee shall, within thirty (30) days after
receipt of such notice or such longer period of
time as City may specify in such notice, either
cure such alleged failure or, in a written response
to City, either present facts and arguments in
refutation or excuse of such alleged failure or
state that such alleged failure will be cured and
set forth the method and time schedule for
accomplishing such cure.
2. City shall determine (i) whether a failure to
comply with a material provision has occurred; (ii)
whether such failure is excusable; and (iii)
whether such failure has been cured or will be
cured by Grantee. Grantee shall make available to
City, if requested, any records, documents, or
other information necessary to make the
determination.
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3. If City determines that a failure to comply with a
material provision has occurred and that such
failure is not excusable and has not been or will
not be cured by Grantee in a manner and in
accordance with a schedule reasonably satisfactory
to City, then City may take any actions provided in
§25.02 (C) hereof, provided that if the City
Council acts on its own motion it shall follow the
procedural steps set forth in §25. 02 (A. 1-3)
hereof.
B. Method of Revocation. Any such termination and
cancellation of this franchise shall be by ordinance adopted by the
City Council; provided, however, before any such ordinance is
adopted, Grantee must be given at least forty-five (45) days
advance written notice, which notice shall set forth the causes and
reasons for the proposed termination and cancellation, shall advise
Grantee that it will be provided an opportunity to be heard by the
City Council regarding such proposed action before any such action
is taken, and shall set forth the time, date, and place of hearing.
In no event shall such hearing be held less than forty-five (45)
days following delivery of such notice to Grantee. At the hearing,
Grantee shall be entitled to all rights of due process consistent
with City procedures, including, but not limited to, the right to
present evidence and the right to be represented by counsel.
C. City Council Action in Event of Breach. In the event
grounds exist which give City reason to believe that Grantee failed
�o comply with a provision of this Ordinance, as provided in §25.01
hereof, then, in accordance with the procedures provided in §25.02
(A) hereof, the City Council may, at any time during the term of
this Ordinance, to the extent lawful, (i) Seek monetary damages
from Grantee as compensation for such material breach; and/or (ii)
In the event that Grantee does not cure the breach of the franchise
agreement, or the City Council does not elect to seek monetary
damages from Grantee or Grantee does not agree to pay such damages,
then, as an alternative to taking the action referred to above, the
City Council may revoke the franchise granted pursuant to this
Ordinance by termination of this Ordinance.
§25. 03e Liquidated Damages. In addition to any other
remedies provided herein, City may assess liquidated damages for
violations of this franchise as set forth below. Such sums of
money shall be considered and treated not as a penalty, but as
liquidated damages due City by Grantee by reason of inconvenience
to the public and because of public works supervision and
maintenance and other City administrative time and involvement
which resulted in the expenditure of public funds due to Grantee's
failure to comply with certain provisions in this franchise. As a
result of any acts or omissions by Grantee pursuant to the
franchise, City may charge to and collect from Grantee the
following liquidated damages:
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A. For failure to provide data, documents, reports, or
information which is required hereunder or required to establish
compliance herewith, or to participate with the City during a
System review and evaluation, the damage shall be One Hundred
Dollars ($100.00) per day.
B. For failure of Grantee to comply with the construction,
technical, or customer service standards required by this
Ordinance, the damage shall be One Hundred Dollars ($100. 00) per
day.
C. For failure to comply with all conditions relating to
destruction, restoration, and maintenance of City streets or street
rights-of-way, or destruction or restoration of easements, or other
terms or conditions of City, the damage shall be One Hundred
Dollars ($100. 00) per day.
D. For failure to comply with any of the provisions of this
franchise for which liquidated damages are not otherwise
specifically provided, the damage shall be One Hundred Dollars
($100. 00) per day.
§25.04. Procedure for Imposing Liquidated Damages.
A. Notice. Whenever City believes that Grantee has violated
one (1) or more terms, conditions, or provisions of this franchise,
and liquidated damages will be sought, a written notice shall be
given to Grantee informing it of such alleged violation or
liability. The written notice shall describe in reasonable detail
the specific violation so as to afford Grantee an opportunity to
remedy the violation. Grantee shall have thirty (30) days
subsequent to receipt of the notice in which to correct the
violation before the City may impose liquidated damages unless the
violation is of such a nature so as to require more than thirty
(30) days and Grantee proceeds diligently within the thirty (30)
day period to correct the violation.
Be Dispute of Violation. Grantee may, within ten (10) days
of receipt of notice, notify City that there is a dispute as to
whether a violation or failure has, in fact, occurred. Such notice
by Grantee to City shall specify with particularity the matters
disputed by Grantee. City Council shall hear Grantee's dispute at
a public hearing called for such purpose. Grantee shall be given
not less than ten (10) days advance notice of such hearing. At
such hearing, Grantee shall be entitled to all rights of due
process consistent with City procedures, including, but not limited
to, the right to present evidence and the right to be represented
by counsel. After such hearing, Grantee shall be provided with a
copy of the City Council's action, along with supporting documents.
If after hearing the dispute the claim is upheld by the City
Council, City may impose liquidated damages against Grantee as
provided herein.
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C. Reservation of Rights. The rights reserved to City under
this Section are in addition to all other rights of City whether
reserved by this franchise or authorized by law, and no action,
proceeding, or exercise of a right with respect to liquidated
damages shall affect any other right City may have.
ARTICLE XRVI
REVOCATION OF FRANCHISE
§26. 01. General. In addition to all other rights and powers
of City by virtue of this franchise or otherwise, City reserves as
an additional and as a separate and distinct power the right to
terminate and cancel this franchise and all rights and privileges
of Grantee hereunder in any of the following events or for any of
the following reasons:
A. Violation of Provisions. Grantee shall by act or
omission violate any term, condition, or provision of this
franchise and shall fail or refuse to effect compliance within
thirty (30) days following written demand by City to do soe
B. Insolvent or Bankrut�t. Grantee becomes insolvent or is
adjudged bankrupt or all or any part of Grantee's facilities are
sold under an instrument to secure a debt and are not redeemed by
Grantee within thirty (30) days from the date of such sale;
provided, however, this shall not be an event of termination or
cancellation in the event of bankruptcy proceeding and the trustee,
receiver, or debtor in possession agrees in writing to be bound by
the terms of this franchise.
C. Fraud or Deceit. Grantee attempts to or does practice
any fraud or deceit in its conduct or relations under this
franchise with City, Subscribers, or potential subscribers.
D. Method of Termination and Cancellation. Any such
termination and cancellation of this franchise shall be by
ordinance adopted by City Council; provided, however, before any
such ordinance is adopted, Grantee must be given at least sixty
(60) days advance written notice, which notice shall set forth the
causes and reasons for the proposed termination and cancellation,
shall advise Grantee that it will be provided an opportunity to be
heard by City Council regarding such proposed action before any
such action is taken, and shall set forth the time, date, and place
of the hearing. In no event shall such hearing be held less than
thirty (30) days following delivery of such notice to Grantee.
ARTICLE XXVII
FORCE MAJEURE
§27.01. Other than its failure, refusal, or inability to pay
its debts and obligations, including, specifically, the payments to
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City required by this franchise, Grantee shall not be declared in
default or be subject to any penalty or sanction, or liable for
liquidated damages under any provision of this franchise in those
cases in which performance of such provision is prevented by
strikes, acts of God, power outages, or other event reasonably
beyond Grantee's ability to control.
ARTICLE XXVIII
NOTICES
�28. 01. Unless expressly otherwise agreed between the
parties, every notice, direction, order, request, or response to be
served upon City or Grantee shall be in writing, and shall be
deemed to have been duly given to the required party three (3)
business days after having been posted in a property sealed and
correctly addressed envelope by certified or registered mail,
postage prepaid, at a Post Office or branch thereof regularly
maintained by the U.S. Postal Service.
The notices or responses to the City shall be addressed as
follows:
City of Friendswood
109 E. Willowick
Friendswood , Texas '7'7546
Attention: Mayor
The notices or responses to Grantee shall be addressed as
follows:
TCI Cablevision of Houston
1010 Lawrence Road
Kemah, Texas 77565
Attn: General Manager
With a copy to:
TCI TKR of Houston, Inc.
4700 South Syracuse Parkway, Suite 1100
Denver, Colorado 80237-2722
Attn: Legal Department
Notwithstanding the foregoing, any such written notice, direction,
order, request, or response shall be deemed given upon hand
delivery to an officer or agent of either party at the respective
address described above. City and Grantee may designate such other
address or addresses from time to time by giving notice to the
othero
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ARTICLE BRIX
ASSIGNMENT OF FRANCHISE
§29. 01. City Approval of Assi�nment Required. This
franchise shall be a privilege personal to Grantee and shall not be
assigned or transferred, in whole or in part, or leased, or sublet,
in any manner or shall title thereto, legal or equitable, or any
right, interest, or property therein pass to or vest in any person
or entity other than an affiliate without the prior consent of the
City Council expressed by resolution or ordinance, and then only
under such conditions as may be prescribed therein. No such
consent shall be required, however, for a transfer in trust, by
mortgage, by other hypothecation, or by assignment of any right,
title, or interest of Grantee in this franchise or Grantee's CATV
System, for the purpose of securing indebtedness related solely to
the acquisition of capital. No assignment to any person shall be
effective until the assignee has filed with the City Secretary an
instrument in writing, duly executed, reciting the fact of such
assignment, accepting the terms of this franchise, and agreeing to
comply with all of the provisions hereof.
§29. 02. City Approval of Transfer of Control Required.
Grantee shall promptly notify City of any actual or proposed change
in, or transfer of, or disposition or acquisition by any other
person of control in Grantee. As used herein, the word "control"
is not limited to major stockholders but includes actual working
control in whatever manner exercised. Every change, transfer, or
acquisition of control of Grantee shall make the franchise subject
to cancellation unless and until the City Council shall have
consented thereto by resolution or ordinance. Such consent shall
not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer, disposition, or
acquisition of control, City may inquire into the qualifications of
the prospective controlling party and Grantee shall assist City in
such inquiry.
§29.03 . Assignment or Transfer Durinq Period of CATV System
Replacement and U�arade. In the absence of extraordinary
circumstances, City shall not consent to any assignment or transfer
of this franchise prior to substantial completion of the
replacement and upgrade of Grantee's CATV System, as provided for
herein, except under circumstances where such transfer or
assignment would not change control of said CATV System and the
result would benefit both System and Subscribers.
ARTICLE RXX
FAILURE OF CITY TO ENFORCE FRANCHISE
§30. 01. No Waiver of Terms. Grantee shall not be excused
from complying with each and all of the terms, conditions, and
provisions of this franchise ordinance even though City should upon
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one or more occasions fail to insist upon, to require, or to seek
compliance with any such term, condition, or provision.
ARTICLE xxxa
VALUATION
§31.01. City's Right to Purchase CATV System. In the event
Grantee forfeits or City lawfully terminates this franchise
pursuant to the provisions of this Ordinance, City shall have such
purchase rights in Grantee's CATV System as set forth in the Cable
Television Consumer Protection and Competition Act of 1992.
ARTICLE XXRII
RECOURSE, UNDERSTANDING, AND CONSTRUCTION
§32.01. Requirements and Enforcement. Except as expressly
provided herein, Grantee shall have no recourse whatsoever against
City for any loss, cost, expense, or damage arising out of the
provisions or requirements of this franchise or because of the
enforcement thereof by City or because of the lack of City's
authority to grant all or any part of this franchise.
§32.02 . Grantee's Understandina. Grantee represents and
warrants that it has read and understands all provisions of this
franchise. Grantee expressly acknowledges that in accepting this
franchise, it relied solely upon its own investigation and
understanding of the power and authority of City to grant this
franchise and that Grantee was not induced to accept this franchise
by any understanding, promise, or other statement, verbal or
written, by or on behalf of City or by any third person concerning
any term or condition not expressed herein.
ARTICLE %XXIII
ACCEPTANCE OF FRANCHISE
§33 . 01. Method of Acceptance. Within thirty (30) days from
the effective date of this Ordinance, Grantee shall file with the
City Secretary a written statement in the following form signed in
its name and behalf:
11To the Honorable Mayor and City Council of the City of
Friendswood
"For itself, its successors, and assigns, TCI TKR of
Houston, Inc. , a corporation duly authorized to do
business in the State of Texas, hereby accepts the
attached ordinance and agrees to be bound by all of its
terms, conditions, and provisions.
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TCI TKR OF HOUSTON, INC.
By:
Its:
"Dated this the day of , 199_ "
ARTICLE XXRIV
EFFECTIVE DATE
§34 . 03 . Effective Date of Ordinance. This Ordinance shall
take effect the 20th day of March , 1995.
ARTICLE XXBV
SEVERABILITY
§35. 01. Provisions Severable. If any provision, section,
subsection, sentence, clause, or phrase of this franchise ordinance
is for any reason held to be invalid or unconstitutional, such
invalidity or unconstitutionality shall not affect the validity of
the remaining portions of this franchise ordinance. It is the
intent of City in adopting this franchise ordinance that no portion
or provision thereof shall become inoperative or fail by reason of
any invalidity or unconstitutionality of any other portion or
provision, and to this end all provisions of this franchise
ordinance are declared to be severable.
PASSED AND APPROVED on first reading this 6th day of
March , 1995.
PASSED, APPROVED, AND ADOPTED on second and final reading this
20th day of March , 1995.
Ev lyn B. Newman
Mayor
ATTEST:
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Del ris M Kenz e, C
City Secretary
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