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HomeMy WebLinkAboutOrdinance No. 94-15 . , • � ,� ,,..� ' ' , , � � � ���� ORDINANCE NO. 94-15 Y ��:=� !�P � G1 � AN ORDINANCE OF THE CITY OF FRIENDSWOOD , TEXAS, GRANTING TO TCI TKR OF HOUSTON, INC. , A COLORADO 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. * * * * * WHF.REAS, by Ordinance No. 79-18 , passed and approved on Auc�ust 20 , 197� , 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 fifte�n (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 December 31 , 1994 ; and WHEREAS, TCI has r,iade 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 � F�ND\TCI FIN AL.ORD\101 394 - , ' , � � � , ' . . 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 through 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, the 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 confirmed. §1. 02 . Short Title. This Ordinance shall be known and may be cited as "The City of Friendswood - TCI Cable Television Franchise Ordinance. " ARTICLE II DEFINITIONS §2 . 01. General. The following 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 meaning. 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 "must" 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 FWDITCIFINAL.ORD\101394 -2- , � � - . , . . � . . 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. hWD\TCI FINAL.OR01101394 -3- ' . � ,�•'� :'^, , • , - 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 Date. N. Grantee. TCI TKR of Houston, Inc. , or any person who succeeds TCI TKR of Houston, Inc. , in accordance with the provisions of this franchise. O. 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 a�y 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. FWD\TCI FINAL.ORD\7 01394 -C}- . , • � l'� v� ' . � � 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 Utilit.y 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 FWDITCIFINAL.ORO\101384 -�j- . , ' , , .i� f . ' r � a period and term which shall expire at midnight, December 31, 2009 . §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 (1) 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 FWD\TCIFINAL.ORD\701394 -(- � � • 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 conditipns 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 AUplicable 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 . Sub�ect to Police Powers of City. 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. All 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, FWD\TCIFINAL.ORD\t01394 -7- � � . 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 . Temporarv 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 FWD\TCIFINAL.ORD\701394 -8- � _ � ' , . 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 phases. ARTICLE VIII INDEMNIFICATION AND LIABILITY �8 . 01. Grantee's Obliaation. 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 franchise. §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 the 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 FWD\TCI FINAL.ORD\101394 -9- �... ^ . . � , , � . following knowledge thereof by City. If, after proper notice is given 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 Coveraqe. 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 In�ury and General Aggregate Three Million Property Damage: Dollars ($3 , 000, 000) per occurrence. B. All Other Types Of Liability includin� but not limited to, contractual liabilitv: One Million Dollars ($1, 000, 000) . §9 . 02 . Increased Coveraqe. 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 FWDITCIFINAL.ORO\707 394 -1 O- � ,-�, 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 service. All 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 def ined 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 timely complete any such requirement shall be deemed a violation of this franchise ordinance. §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 XI OPERATIONAL STANDARDS §11. 01. Hiahest 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 FWDITCIFINAL.ORD\101394 -11- , � � � � . . 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 . Quality of Color Siqnals. 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. Quality of Picture. Grantee's CATV System 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. Qualitv 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 FWD\TCIFINAL.ORD\701394 -12- ' ,�^. ,.-., . 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 Range. 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, FWD\TCIFINAL.ORD\101394 -13- <--. .... � . • � . . 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 Grantee. 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 FWD\TCIFINAI.ORD\101394 -14- , � . � �^., � � � � . such tests and, when requested by City to do so, shall prepare a written report reflecting the results and findings of such test and analysis and deliver the same to City within thirty (30) days after such request is delivered by City to Grante.e. 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 Use. 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 testing 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. FWD\TCIFINAL.ORO\101394 -1-rj- , . '"', �,,,,,� " - . � §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 capa�ity, 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 . ualit 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 Ordinance. §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. Underaround 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 . Reauired 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 service. 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 FWDITCIFINAI.ORD\7 07 394 -1 6- .-, � _ • ° �` . � 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 XIV 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 provision of this franchise does in fact conflict with such state or federal law, rule, or regulation, it shall have the right to modify any provision hereof to such reasonable extent as may be necessary to carry out the full intent and purpose of this franchise. §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 constitutional rights. FWD\TCIFINAL.ORD\101394 -1�]� . "_, �...� . ARTICLE XV MODIFICATIONS BY FCC; JURISDZCTION OF FCC §15. 01. Modifications by FCC: Jurisdiction of FCC. It is specifically agreed by City and Grantee that any modification of the provisions of this franchise resulting from amendment of the rules and regulations of the FCC or other applicable state or federal governmental agency shall be automatically incorporated into this franchise unless: l. Such modification provides for leniency in the provisions included in this franchise and such leniency is not required by law; or 2 . The City Council specifically rejects such incorporation of said modifications within one (1) year of the adoption of such modification and such rejection is not in conflict with any City, state or federal laws, rules, or regulations. ARTICLE XVI EMPLOYMENT REQUIREMENTS �16 . 01. Eaual Opportunitv 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 X�7II 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 . Riaht 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 FWD\TCIFINAL.ORD\101 394 -1 8- -r- .�-. . , � �. 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. , §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 XVIII 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 Citv. 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 FWD\TCIFINAL.ORD\101394 -19- ,-.. �„� . , , . . 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 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 FWD\TCIFINAI.ORD\101394 -2 Q- � � 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. ARTICLE XX 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 Filina 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 regulations. 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 XXII 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 FWD\TCIFINAL.ORD\101394 -2 1- ,-� � , 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 technically feasible and so long as it will not adversely affect the operation, financial condition, or market development of the 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 XXIII 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 XXIV 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 City. 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 FWD\TCIFINAL.ORD\701394 -2 2- .�.. � ' . . 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; 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. FWD\TCIFINAL.ORD\101394 -2 3- --_. �-, . 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. 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. Citv Council Action in Event of Breach. In the event grounds exist which give City reason to believe that Grantee failed to 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. 03 . Liauidated 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 FWD\TCIFINAL.ORD\101394 -2 4- _,.�.. ,,,� 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: 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 Damaqes. 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. B. 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 FWD\TCIFINAL.ORD\101394 -2�j- ,,.�. ,�, . 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. 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 XXVI 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 so. B. Insolvent or Bankrupt. 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 hWD\TCIFINAL.ORD\101394 -2 '()- �... ,.� . . 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 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_ WillnwiCk FriPnd� •�nn� , Texas 77546 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 FWD\TCIFINAL.ORD\101394 -2 7- � � 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 ma.y designate such other address or addresses from time to time by giving notice to the other. ARTICLE XXIX ASSIGNMENT OF FRANCHISE §29 . 01. Citv Approval of Assianment 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 . Assianment or Transfer Durina Period of CATV Svstem Replacement and Upqrade. 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. FWD\TCIfINAI.ORD\101394 -2 8� ARTICLE XXX 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 one or more occasions fail to insist upon, to require, or to seek compliance with any such term, condition, or provision. ARTICLE XXXI 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 XXXII 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 XXXIII 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: FWD\TCIFINAL.ORD\101394 -2 9- ,..�. .-.., , , . , , . "To 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. TCI TKR OF HOUSTON, INC. By: Its: "Dated this the day of , 199 " ARTICLE XXXIV EFFECTIVE DATE §34 . 03 . Effective Date of Ordinance. This Ordinance shall take effect the �th day of November , 1994 . ARTICLE XXXV 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 17th day of October , 1994 . PASSED, APPROVED, AND ADOPTED on second and final reading this 7th day of November , 1994 . FWD\TCIFINAL.ORD\701394 -3 O- �-. ,,.�. • ' . . � Evely B. Ne , an Mayor ATTEST: . � Deloris McKenzie, T C City Secretary ord. 94-15 FWD\TCIFINAL.ORD\101394 -3],-