Ordinance No. 8,113971023 -4
ORDINANCE NO. 8113
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'AN -ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, ESTABLISHING
A PROCEDURE FOR THE FRANCHISING OF CABLE TELEVISION
SYSTEMS, SETTING FORTH RULES AND REGULATIONS GOVERNING
THE OPERATION OF SUCH SYSTEMS, PROVIDING A REPEALING
CLAUSE; CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR
THE PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS, the City Council has determined it is in the best interest and consistent with
the convenience and necessity of the City to grant Franchises to one or more Persons desiring to
provide Cable Service within the confines of the City and on the terms and conditions hereinafter
set forth, and as may later be amended, and as may be further described in each Franchise; and
WHEREAS, the City Council has identified the purpose of this Ordinance to be as
follows:
I. To provide procedures for the granting, renewal, transfer and acquisition by the
City of Franchises for providing Cable Service in the City;
2. To regulate the erection, construction, reconstruction, installation, operation,
maintenance, dismantling, testing, repair and use of Cable Systems in, upon, along, across,
above, over or under or in any manner connected with Public Ways or public places within the
jurisdiction of the City as now or in the future may exist;
3. To provide for the payment of certain Franchise fees and other valuable
considerations to the City which, among other purposes, may be used to pay for the rental and
use of Public Ways and to regulate the construction, reconstruction and operation, use and
development of such Cable Systems within the City;
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4. To provide conditions under which such Franchised Cable Systems will serve
present and future needs of government, public institutions, commercial enterprises, public and
private organizations, and the citizens and general public of the City; and
5. To provide remedies and prescribe penalties and liquidated damages for any
violation of this Ordinance and/or the terms and conditions of Franchises granted pursuant
thereto.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
BAYTOWN, TEXAS:
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Section 1: In order to establish a procedure for the granting of cable television
Franchises and renewals thereof and to establish rules and regulations governing the operation of
such Cable Systems, the following provisions are hereby adopted:
1. Definitions.
As used in this Ordinance, the following words and terms have the meanings set forth
below. The definitions contained in this Ordinance rely on those contained in the Cable
Act. Any ambiguity shall be resolved by reference to the federal statutes, regulations and
the decisions interpreting the same.
1.1 Cable Act. The Communications Act of 1934, as amended by Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
Competition Act of 1992, the Telecommunications Act of 1996, and as may be further
amended from time to time.
1.2 Cable Service. Means (a) the one -way transmission to Subscribers of video
programming, or other programming service, and (b) Subscriber interaction, if any,
which is required for the selection or use of such video programming or other
programming service.
1.3 Cable System. Means any facility, consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is designed
to provide Cable Service which includes video programming and is provided to multiple
Subscribers within the City. Such terms shall not include (a) a facility that serves only to
retransmit the television signals of one or more television broadcast stations; (b) a facility
that serves Subscribers without using any public right -of -way; (c) a facility of a common
carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act,
except that such facility shall be considered a Cable System to the extent such facility is
used in the transmission of video programming directly to Subscribers, unless the extent
of such use is solely to provide interactive on -demand services; (d) an open video system
that complies with Section 653 of the Cable Act; or (e) facilities of any electric utility
used solely for operating its electric utility system.
1.4 Cable Operator. Means any Person or group of Persons (a) who provides Cable
Service over a Cable System and directly or through one or more affiliates owns a
significant interest in such Cable System, or (b) who otherwise controls or is responsible
for, through any arrangement, the management and operation of such Cable System.
1.5 City. Means the City of Baytown, organized and existing under the laws of the
State of Texas and the area within its territorial limits, as such area may be hereinafter
amended.
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0 1.6 City Council. The City Council of the City of Baytown, Texas.
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1.7 Federal Communications Commission or FCC. That federal agency as
presently constituted, or any successor agency.
1.8 Franchise. The nonexclusive privilege, whether an initial authorization or
renewal thereof, to construct and operate a Cable System along the Public Ways in the
Service Area. It is not intended to include or supersede or otherwise affect any license or
permit required for the privilege of transacting and carrying on a business within the City
as may be required by other ordinances or laws of the City.
1.9 Grantee. A Person or group of Persons and its /their lawful successor, transferee
or assignee granted a Franchise by the City Council pursuant to this Ordinance.
1.10 Gross Revenues. Shall mean all amounts from whatever source which are
received by a Grantee from or in connection with the operation of the Cable System to
provide Cable Service within the Service Area, including, without limitation:
1.10.1 Revenue received from Subscribers, including, but not limited to, revenue
for basic service, tier service, additional outlets, FM service, music service,
commercial service, premium service, pay - per -view service, and related event
services, or for the distribution of any Cable Service over the Cable System or the
provision of any Cable Service - related activity in connection with the operation of
the Cable System.
1. 10.2 Revenue received from Subscribers for installation, change in service and
re- connection charges and similar fees.
1.10.3 Revenue received from Subscribers for converters, remote controls or
other equipment leased or rented to Subscribers.
1. 10.4 Revenue received from Subscribers for service charges and fees
attributable to delinquent accounts.
1.10.5 Revenue received from third parties, including advertising revenue, home
shopping commissions, and leased access payments.
1. 10.6 To the extent consistent with law, any payment or consideration (including
Franchise fees, but excluding any utility users tax or other tax imposed by the
City or the state or federal government) collected for direct payment to a third
party.
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• 1.10.7 Revenue received by any other Person which is derived from or in
connection with the operation of a Cable System to provide Cable Service to the
extent that said revenue is derived through a means which has the effect of
avoiding the payment of Franchise fees to the City that would otherwise be paid
herein.
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There shall be deducted from Gross Revenue:
Bad debts written off by Grantee in the normal course of its business;
provided, however, that bad debt recoveries shall be included in Gross
Revenue, and
b. Refunds made to Subscribers or other third parties.
In computing Gross Revenue from sources other than a Grantee's Subscribers, including,
without limitation, revenue derived from the sale of advertising, home shopping services,
leased access or any other revenues attributable or allocated to Grantee in accordance
with generally accepted accounting principles but received by another entity affiliated
with Grantee, the aggregate revenue received by Grantee from such other sources during
the period in question shall be multiplied by a fraction, the numerator of which shall be
the number of Grantee's Subscribers in the City as of the last day of such period and the
denominator of which shall be the number of Subscribers represented in the general
ledger where the revenue was allocated as of the last day of such period.
1.11 In. Shall mean in, under, across, above, over, upon, through, among, or in any
manner connected with.
1.12 Local Area Office. A Grantee's business office or service center located within
the City or in close proximity thereof, as specified in each Franchise.
1.13 Person. Means an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
1.14 Public Way(s). Shall include, but not be limited to in any way the surface
of, and the space above and below, any public street, highway, freeway, bridge, land
path, alley, court, boulevard, sidewalk, parkway, lane, drive, circle, or other public right -
of -way, including but not limited to, public utility easements, dedicated utility strips,
parks, streams, tunnels, or rights -of -way dedicated for compatible uses for the purpose of
installing, operating, repairing, and maintaining the Cable System.
1.15 Service Area. Means the area within the municipal boundaries of the City in
which the Grantee is authorized pursuant to a Franchise to operate its Cable System.
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® 1.16 Subscriber. Any Person who lawfully receives Cable Service provided by a
Grantee's Cable System.
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2. General Provisions.
2.1 Franchise Required. A nonexclusive Franchise to construct, operate and
maintain a Cable System within all or any portion of the City is required of any Person
desiring to provide Cable Service in the City. A Franchise may be granted by the City
Council to any Person, whether operating under an existing Franchise or not, who offers
to furnish and provide such Cable Services pursuant to the terms and provisions of this
Ordinance and a Franchise acceptable to the City Council.
2.2 To the extent allowed by law, the City Council shall retain all authority to
regulate non -Cable Systems and non -Cable Services as necessary to protect the public
health, safety and welfare and to ensure compliance with all applicable federal, state,
and/or local laws and regulations. If Grantee is allowed by law and chooses to provide
non -Cable Services, Grantee and the City will negotiate the terms and Franchise fees in
accordance with federal and state law.
2.3 Rights Reserved to City. The City hereby expressly reserves the following
rights:
2.3.1 To exercise its governmental powers, now or hereafter existing, to the
fullest extent that such powers may be vested in or granted to the City;
2.3.2 To adopt and promulgate ordinances as it shall find reasonably necessary
in the exercise of its lawful police power. Such power shall include the lawful
right of the City to maintain control over its Public Ways, and to adopt such
reasonable and nondiscriminatory regulations relating to Public Ways as the City
and/or its departments shall hereinafter provide; and
2.3.3 To exercise the lawful police powers of the City through amendment of
this Ordinance as well as through enactment of separate ordinances and
regulations.
2.4 Limits on a Grantee's Recourse.
2.4.1 The City shall have the immunity from damages afforded by the Cable
Act, as well as all other applicable immunities to which it may be entitled.
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® 2.4.2 All Franchises granted by the City shall require an acknowledgment from
the Grantee that the Grantee has not been induced to accept the Franchise by any
promise, oral or written, by or on behalf of the City or any third person regarding
any term or condition of this Ordinance or the Franchise not expressed therein. A
Grantee further shall pledge that no promise or inducement, oral or written, has
been made to any City employee or official regarding receipt of a Franchise.
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2.4.3 All Franchises granted by the City shall require an acknowledgment from
Grantee that Grantee has carefully read the terms and conditions of this Ordinance
and the Franchise. Grantee's acceptance of the obligations imposed by the terms
and conditions of this Ordinance shall be as specified in the Franchise.
2.4.4 A Grantee agrees, by the acceptance of a Franchise, to accept the validity
under present law of the terms and conditions of the Franchise and this Ordinance
in their entireties, and that it will not, at any time, proceed against the City in any
claim or proceeding under present law challenging any term or provision of this
Ordinance or a Franchise as unreasonable, arbitrary or void or that the City did
not have the authority to impose such term or condition.
2.4.5 The decision or decisions of the City Council concerning the selection of
one or more Grantees and the award of one or more Franchises is final, and all
applicants shall agree as a condition of application not to contest the City
Council's decision in any court of law or before the Federal Communications
Commission.
2.4.6 Nothing in this Ordinance or in Section 635A of the Cable Act shall be
construed as creating or authorizing liability of any kind, under any law, for any
action or failure to act relating to Cable Service or the granting of a Franchise by
the City or any official, member, employee or agent of such authority or entity.
2.5 Unlawful Acts; Penalties.
2.5.1 It shall be unlawful for any Person to establish, operate or carry on the
business of distributing to any Person in the City any Cable Service by means of a
Cable System unless a Franchise therefore has first been obtained pursuant to the
provisions of this Ordinance and unless such Franchise is in full force and effect.
2.5.2 It shall be unlawful for any Person to construct, install or maintain within
any Public Way in the City, or within any other public property of the City, or
within any privately -owned area within the City which has not yet become a
Public Way but is designated or delineated as a proposed Public Way on any
tentative subdivision map approved by the City, any equipment or facilities for
distributing any Cable Service through a Cable System, unless a Franchise
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® authorizing such use of such Public Way, or property or area has first been
obtained pursuant to the provisions of this Ordinance, and unless such Franchise
is in full force and effect.
2.5.3 It shall be unlawful for any Person to make any unauthorized connection,
whether physically, electrically, acoustically, inductively or otherwise, with any
part of a Franchised Cable System within the City for the purpose of enabling
himself or herself or others to receive any Cable Service without payment to the
owner of the Cable System.
2.5.4 It shall be unlawful for any Person without the consent of a Grantee to
willfully tamper with, remove or injure any portion of the Cable System.
2.5.5 Any Person violating any subsection of this section shall be punished by a
fine or by imprisonment or by both fine .and imprisonment in accordance with
federal, state or local law.
2.6 Failure of City to Enforce Compliance. A Grantee shall not be excused from
complying with any of the terms and conditions of this Ordinance or a Franchise by any
failure of the City, upon any one or more occasions, to insist upon the Grantee's
performance or to seek Grantee's compliance with any one or more of such terms or
conditions.
3. Franchising Requirements.
3.1 Application for New Franchise.
3. 1.1 Application Non - Refundable Fee. An application for a new Franchise
shall be submitted to the City Council, or its designee, on a written application
form furnished by the City, and in accordance with the procedures and schedule to
be established and published by the City Council. The application will require the
facts and information detailed in subsection 3.1.3 hereof Applications shall be
accompanied by a non - refundable application fee of five thousand dollars
($5,000.00) to the order of the "City of Baytown" which amount shall be used by
the City to offset direct expenses incurred in the franchising and evaluation
procedures, including, but not limited to, staff time and consulting assistance.
3.1.2 Grantee to Pay Costs of Granting Franchise. An applicant to whom the
City Council grants a nonexclusive Franchise in addition to the non - refundable
fee specified hereinabove, shall pay to the City, within thirty (30) days of receipt
of notice of the amount, an amount set by the City Council or its designee, which
shall represent the remaining out -of pocket costs incurred by the City, in granting
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® the Franchise and not defrayed by fees forthcoming from the provisions of
subsection 3.1.1 of this section.
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3.1.3 Application Requirements. Ten (10) copies of the application shall be
filed with the City Clerk and shall contain such information as the City may
require, including, but not limited to:
3.1.3.1 A general description of the applicant's proposed
operation;
3.1.3.2 A statement detailing its business or corporate organization,
including, but not limited to, the identification of any Person holding. a ten
percent (10 %) or greater interest in the applicant's business and a
statement disclosing ten percent (10 %) or greater interest that the applicant
has in any other business;
3.1.3.3 A written commitment to timely service and restoration of
property;
3.1.3.4 A schedule of proposed charges;
3.1.3.5 A statement setting forth the channels to be allocated for
community, municipal, education and leased access; a description of the
production facilities and equipment to be made available by the applicant
for access; and a statement establishing any additional revenues to be
designated for programming or programming assistance for the access
channels.
3.1.3.6 If applicant is a corporation, audited financial statement for
the five (5) previous fiscal years. If applicant is.a partnership, copies of
the "U.S. Partnership Return of Income" (IRS Form 1065) for the five (5)
previous fiscal years. If applicant is sole proprietorship, copies of
personal financial statements for the five (5) previous fiscal years;
3.1.3.7 An estimated five (5) year operations pro forma which shall
include the initial and continuing plant investment, annual profit and loss
statements detailing income and expenses, annual balance sheets, and
annual levels of Subscriber penetration. The pro forma shall also state the
average return on investment anticipated by the applicant for the five (5)
year operations period and shall state the method of computation thereof.
Costs anticipated for voluntary services or contributions shall, if present,
be incorporated in the pro forma as required in this article, but shall be
separately identified in the pro formas;
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3. 1.3.8 A listing of existing Franchises held by the applicant
indicating when the Franchises were issued and when the networks were
constructed in each respective governmental unit, together with the name
and address and phone number of a responsible governmental official
knowledgeable of the applicant;
3.1.3.9 A statement detailing the applicant's prior experience in a
Cable System and/or microwave service, including that of its officers,
management and any staff to be associated with the proposed operation;
3.1.3.10 A general statement of the applicant's ability and intent to
incorporate technological improvements and advancements in the Cable
System as such improvements or advancements are generally available in
the industry; and
3.1.3.11 Any other reasonable and applicable information which the
City Council may request.
3.1.4 Evaluating Applications, Public Hearing.
3.1.4.1 Upon filing, any Franchise application and related
documents are public records, open to inspection by the public during
reasonable hours, including specifically the regular business hours of the
City Clerk.
3.1.4.2 Following reasonable notice to the public, any Franchise
application shall be available for inspection for a period of at least twenty
(20) days prior to the City Council taking action on the same. Any citizen
of the City shall have the right to comment in writing, filed in advance or
orally at any meeting at which a Franchise application is to be considered.
3.1.4.3 The City shall endeavor to send written notice to all Cable
Operators holding current Franchises with the City when a new Franchise
application is received. Such notice shall include the applicant's name, a
statement that the Franchise application is available for public inspection,
and the date of any public hearing on same, if known at the time of the
sending of the notice. The City shall have no obligation to supplement
any notice given pursuant to this subsection.
3.1.4.4 Before authorizing the issuance of any such Franchise, the
City Council shall review the applicant's legal, character, financial and
technical qualifications and the adequacy and feasibility of the applicant's
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qualifications to operate a Cable System within the City based upon
information provided to the City Council by the applicant and by other
sources in writing, or at any public hearing or meeting of the City Council
and shall conduct a public hearing thereon with at least seven (7) days'
advertised notice prior to said public hearing.
3.1.5 Awarding a New Franchise.
3.1.5.1 After examining any application submitted pursuant to
procedures established herein and as hereafter amended by the City
Council designed to assure the legal, financial, technical and character
qualifications of an applicant to provide Cable Service, the City Council is
authorized after a full hearing affording due process, to grant a
nonexclusive Franchise conveying the privilege to construct and operate a
Cable System within the Public Ways of the City. A Franchise may be
awarded to any applicant which in the City Council's judgment will
appropriately serve the public interest and whose construction and
financial plans and arrangement are both feasible and adequate to fulfill
the conditions set forth in this Ordinance and incorporated into any
Franchise granted.
3.1.5.2 No provisions in this Ordinance shall be deemed or
construed to require the City Council to grant a Franchise following
receipt of any Franchise application.
3.1.6 Franchise Term. The length of term of a Franchise shall be
determined in the Franchise; however, such term shall not exceed fifteen (15)
years from the date the Franchise is accepted by the Grantee by written agreement
with the City or from the expiration of a Grantee's previously existing Franchise,
whichever is later, unless terminated earlier in accordance with this Ordinance or
the Franchise.
3.2 Franchise Fees.
3.2.1 Grantee to Pay City Five Percent (5 %) of Gross Revenue as a
Franchise Fee. For the reason that the Public Ways which are used by the
Grantee in the operation of its Cable System within the boundaries of the City are
valuable public properties acquired and maintained by the City at great expense to
its taxpayers, and that the grant of the privilege to the Grantee to use said Public
Ways is a valuable property right without which the Grantee would be required to
invest substantial capital in right -of -way costs and acquisitions, and because the
City will incur costs in regulating and administering the Franchise, the Grantee
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• shall pay to the City an amount equal to five percent (5 %) of Grantee's Gross
Revenues.
3.2.2 Franchise Fee to Be Paid Annually with Statement Verifying All
Collected Gross Revenues. The Franchise fee shall be payable annually to the
City, and sent to the City's Director of Finance. Such payment shall be made on
or before the sixtieth (60'') day after (1) the last day of each calendar year during
which a Franchise is in effect or (ii) the date of expiration or termination of a
Franchise, whichever occurs first. The payment shall be accompanied by a
statement of Gross Revenues prepared by an independent certified public
accountant, accounting firm, or the Grantee's chief financial officer verifying that
the Grantee's total Gross Revenues as herein defined were fairly stated and that
the Franchise fees were calculated in accordance with this Ordinance and the
Franchise.
12.3 City May Examine All Grantee's Records to Determine Accuracy of
Amounts Payable to the City. Upon thirty (30) days' written notice to Grantee,
the City shall have the right to audit and to recompute any amounts determined to
be payable under this Ordinance and the Franchise. Any additional amount due to
the City as a result of the audit, which amount shall include interest as proscribed
in Section 3.2.4 from the date such amounts should have been paid, shall be paid
within forty -five (45) days following written notice to the Grantee by the City,
said notice shall include a copy of the audit report. The cost of such audit shall be
borne by the Grantee if it is determined that the Grantee's annual payment to the
City for any year was underpaid by more than five percent (5 %).
3.2.4 Late Payment of Franchise Fee to Be Charged Interest at Twelve
Percent (12 %). In the event that any Franchise payment or recomputed amount
is not made on or before the applicable dates heretofore specified, and following
ten (10) days' written notice by the City to a Grantee, interest shall be charged
daily from such date at the annual rate of twelve percent (12 %) or at the
maximum rate allowed by law, whichever is less.
3.2.5 Acceptance of Any Payment Does Not Constitute Release of All
Payments Due. No acceptance of any payment shall be construed as a release or
as an accord and satisfaction of any claim the City may have for further or
additional sums payable under this Ordinance and/or the Franchise.
3.2.6 Reserve Right to Increase Franchise Fee. The City reserves the right to
increase the Franchise fee rate in the event that the current federal limitations as to
the Franchise fee rate are changed as a result of superseding regulations, laws or
court action. Any change in the Franchise fee rate shall be accomplished by
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® amendment to this Ordinance and each Franchise, provided that such amendments
shall be preceded by a public hearing affording due process.
3.2.7 Nothing contained in this Ordinance shall be construed to exempt the
Grantee from any lawful tax, business license, levy or assessment which is now or
which hereafter be authorized by law.
3.2.8 The City reserves the right to require the Grantee to collect any consumer
or other tax or other fee of that may be lawfully imposed on Subscribers by the
City.
4. Grantee to be Bound by Terms and Conditions of Cable Ordinance and Franchise.
Procedure if Conflict.
4.1 Grantee's acceptance of the obligations imposed by the terms and conditions of
this Ordinance shall be as specified in the Franchise. A Grantee shall also agree to
provide the Cable System and all of the Cable Services specifically set forth in a
Franchise. In the event of a conflict between the Franchise and the provisions of this
Ordinance, the provisions of the Franchise shall prevail. Failure to provide Cable
Services as promised in Grantee's Franchise shall be deemed a breach of the Franchise to
which the provisions of Section 15 and Section 16 of this Ordinance shall apply.
5. Transfers and Assignments.
5.1 The City is hereby empowered to take legal equitable action to set aside, annul,
revoke or cancel a Franchise or the transfer of a Franchise, if such transfer is not made
according to the procedures set forth in this Ordinance, or is not in the best interest of the
City or the public.
5.2 Transfer of a Franchise means any transaction in which an ownership or interest
in a Grantee or its Cable System is transferred from one Person or group of Persons to
another Person or group of Persons so that control of the Grantee is transferred, or the
rights and/or obligations held by the Grantee under a Franchise are transferred or
assigned to another Person or group of Persons.
5.2.1 A rebuttable presumption that transfer of control has occurred shall arise
upon the acquisition or accumulation by any Person, or group of Persons, of
thirty -five percent (35 %) of the voting interest of the Grantee or of the Person
exercising management authority over the Grantee. Any purchases or
acquisitions of Grantee's stock made by a Person other than an officer or director
of the Grantee over a stock exchange or in the over - the - counter market of which
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Grantee or any affiliate of Grantee has no control, shall not be subject to the
requirements of subsection 5.2.4 below.
5.2.2 A transfer is pro forma when it involves no substantial change in the
ultimate ownership or control of the Franchise.
5.2.3 No transfer of a Franchise shall occur without prior approval of the City,
and such approval shall not be unreasonably withheld.
5.2.4 Grantee shall promptly notify the City in writing of a proposed transfer
and shall file with the City Clerk an application for transfer of a Franchise. The
transfer application shall provide complete information of the proposed
transaction, including a copy of the proposed agreement, details on the legal,
financial and technical qualifications of the transferee as well as any other
qualifications the City can lawfully evaluate, and on the potential impact of the
transfer on Subscriber rates and service.
5.2.5 An application for approval of a pro forma transfer of a Franchise shall be
considered granted on the thirty -first (31 st) calendar day following the filing of
such application with the City unless, prior to that date, the City notifies the
Grantee to the contrary or the City extends such period of time for an addition
thirty (30) days. An application for approval of a pro forma transfer of a Franchise
shall clearly identify the application as such.
5.2.6 In making a determination on whether to grant an application for transfer
of a Franchise, the City Council shall consider the legal, financial and technical
qualifications of the transferee to operate the Cable System, as well as any other
qualifications the City can lawfully consider; whether the Grantee is in
compliance with its Franchise and the applicable provisions of this Ordinance
and, if not, the Grantee and/or the proposed transferee's commitment and plan to
cure such noncompliance; and whether operation by the transferee would
adversely affect Cable Services to Subscribers or otherwise be contrary to the
public interest to the extent the City can lawfully consider such matters.
5.2.7 No application for a transfer of a Franchise shall be granted unless the
transferee agrees in writing that it will abide by and accept all applicable terms of
this Ordinance and the Franchise and that it will assume the obligations and
liability of the previous Grantee under this Ordinance and the Franchise, including
whatever conditions that may be necessary to be prescribed by the City Council
that will assure said terms, obligations and liabilities will be honored and carried
out by the transfer.
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5.2.8 Approval by the City of a transfer of a Franchise does not constitute a
waiver or release of any of the rights of the City under this Ordinance or the
Franchise whether arising before or after the date of the transfer.
5.2.9 The City shall have one hundred twenty (120) days to act upon any
transfer request that is accompanied by the information required in this Section 5.
If the City fails to act on d request within one hundred twenty (120) days of
receiving the requested information, the transfer request shall be deemed granted,
unless the requesting party and the City agree to an extension of time.
5.2. 10 The City may impose a reasonable and related processing fee to cover its
costs of considering and evaluating an application for transfer of a Franchise, such
fee not to exceed fifteen hundred dollars ($1,500).
6. Liability and Indemnification.
6.1 Indemnification of City in Franchise Operation.
6.1.1
It shall be expressly understood and agreed by and between the City and
any Grantee that the Grantee shall defend, indemnify and hold the City, its
officers, agents and employees (collectively the "City"), harmless against
any and all claims, lawsuits, judgments, costs and expenses (including
attorneys' fees) for personal injury, death, property damage or other harm
for which recovery of damages is sought, suffered by any Person(s), that
may arise out of or be occasioned in any way by the granting of a Franchise
or the enactment and enforcement of the Franchise and /or this Ordinance,
where such injuries, death or damages are caused by the joint negligence of
the City and the Grantee, its officers, agents, and /or employees and /or by
the joint or sole negligence of the Grantee, its officers, agents, and /or
employees. It is the expressed intention of the parties hereto both the
Grantee and the City that the indemnity provided for in this subsection is
indemnity by the Grantee to indemnify, protect, and defend the City from
the consequences of (i) the City's own negligence where that negligence is a
concurring cause of the injury, death or damage with that of the Grantee,
its officers, agents and /or employees and /or (ii) the Grantee's joint and sole
negligence. Furthermore, the indemnity provided for in this
subsection shall have no application to any claim, loss, damage, cause of
action, suit and liability where the injury, death or damage results from the
sole or concurrent negligence of the City unmixed with the fault of the
Grantee.
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6.1.2 The indemnity provided for in this section 6 shall expressly include, but
not be limited to, indemnification by the Grantee for the use, occupancy and
maintenance of any of the Cable System; any act or omission of any
representative, agent, customer and/or employee of Grantee; the Grantee's breach
of any of the terms or provisions of the Franchise; and any negligent or strictly
liable act or omission of the Grantee, its officers, agents, representatives,
customers, employees or subcontractors in the use, occupancy and maintenance of
the Cable System. It is the expressed intention of the Grantee and the City
that the indemnity provided for herein includes an indemnity to protect and
defend the City from the Grantee's own negligence as well as the concurrent
negligence of the City when mixed with that of the Grantee. In the event that
any action or proceeding is brought against the City by reason of any of the
provisions contained in Section 6 of this Ordinance, Grantee further agrees
and covenants to defend the action or proceeding by legal counsel acceptable
to the City, such acceptance not to be unreasonably withheld.
6.1.3 In addition to the foregoing, the Grantee covenants and agrees never to
make a claim of any kind or character whatsoever against the City for damage of
any kind that it may suffer by reason of the installation, construction,
reconstruction, operation or maintenance of any public improvement, utility or
communication facility whether presently in place or which may in the future be
constructed or installed, including, but not limited to, any water or wastewater
mains or storm sewer facilities, regardless of whether such damage is due to
flooding, infiltration, backflow or seepage caused from the failure of any
installation, natural causes or City's negligence when such negligence is mixed
with that of the Grantee, its officers, agents and/or employees.
6.2 Reimbursement of Costs.
621 By acceptance of any Franchise, the Grantee agrees to assume
responsibility of the investigation, settlement or defense of any claim made or suit
brought against the City due to any liability or potential liability incurred per the
provisions of Section 6.1 above, provided that:
6.2.1.1 The City agrees to the extent allowed by law to cooperate
fully with the Grantee and its insurers, and to abide by any and all terms,
conditions and restrictions of the Grantee's commercial insurance policies;
and
6.2.1.2 The City will incur no defense expenses, nor will it make
any offers of settlement on any claim or suit included under Section 6.1 .1
above, unless so authorized by the Grantee and its insurer(s).
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6.2.1.3 The City provides the Grantee written notice of its
obligation to defend the City within twenty (20) days of receipt of a claim
or within ten (10) days of receipt of a citation or summons in connection
with a lawsuit.
The Grantee further agrees to assume all costs and expenses associated with
defending the City against any claim made or suit brought in accordance with the
provisions of Section 6.1 above, subject to Section 6.2.1.1, Section 6.2.1.2, and
Section 6.2.1.3.
6.2.2 The Grantee shall pay and by its acceptance of any Franchise agrees that it
will pay all expenses incurred by the City defending itself with regard to all
claims, lawsuits, judgments, costs and expenses mentioned in Section 6.1 above,
subject to Section 6.2.1.2.
6.3 Public Liability Insurance. A Cable Operator shall maintain and by its
acceptance of any Franchise agrees that it will maintain throughout the term of the
Franchise or any renewal or extension thereof, a commercial general liability insurance
policy, which coverage shall be at least as broad as ISO CG 00 01 10 93, protecting the
City and all Persons against liability for loss or damage for personal injury, death or
property damage, occasioned by the operations of the Cable Operator under any
Franchise granted hereinafter in the amounts of (a) five hundred thousand dollars
($500,000) for bodily injury or death to any one Person, within the limit within a twelve
(12) month period, however, of one million dollars ($1,000,000) for bodily injury or
death resulting from any one accident within a twelve month period, (b) two hundred
fifty thousand dollars ($250,000) for property damage resulting from any one accident
within a twelve month period, (c) automobile liability insurance with combined single
limits of five hundred thousand ($500,000) per accident within a twelve month period for
bodily injury and property damage, and (d) workers' compensation insurance in
compliance with all workers' compensation insurance and safety laws of the State of
Texas, and amendments thereto. All insurance carriers providing coverage should be
licensed and admitted to do business in the State of Texas. All Certificates of Insurance
shall designate the City, its officers, boards, commissions, agents, and employees as an
additional insured. All policies are to be of the occurrence form. Automobile coverage is
to include all owned and hired autos if applicable.
6.4 Notice of Cancellation or Reduction of Coverage. The insurance policies
mentioned above shall state that the policies are extended to cover the liability assumed
by the Cable Operator under the terms of any Franchise and shall contain an
endorsements that the policy may not be canceled nor the amount of coverage thereof
reduced below the limits required in the Franchise with the City until thirty (30) days
after receipt by the City by registered mail of written notice of such intent to cancel or
reduce the coverage.
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® 6.5 Evidence of Insurance Filed with the City. Grantee shall file and maintain with
the City, during the term of a Franchise or any renewal thereof, a Certificate of Insurance
evidencing coverage as required herein.
n
6.6 Insurance Company's Rating. Insurance is to be placed with insurers with a
Best rating of no less than A or equivalent.
6.7 Waiver of Subrogation on Workers' Compensation Policy. The insurer shall
agree to waive all rights of subrogation against the City, its officials, employees and
volunteers for losses arising from the activities under a Franchise.
6.8 No Waiver of Construction Performance and Payment Bonds or Letter of
Credit. Neither the provisions of this article nor any insurance accepted by the City
pursuant thereto, nor any damage recovered by the City thereafter, shall be construed to
excuse faithful performance by the Cable Operator or limit the liability of the Cable
Operator under this Ordinance or any Franchise granted pursuant hereto, or for damages,
either to the full amount of the bonds, letter of credit or otherwise.
6.9 Construction Performance and Payment Bonds.
6.9.1 Grantee Shall Be Required to Obtain Construction Performance and
Payment Bonds in an Amount Established in a Franchise. In conjunction with
Section 7.1, thirty (30) days prior to commencing construction or reconstruction
of the Cable System, Grantee shall be required to obtain and maintain throughout
the period of construction or reconstruction, at its cost and expense, and file with
the City Clerk, performance and payment bonds issued by a corporate surety bond
company authorized to do business in the State of Texas for an amount
established in the Franchise to guarantee the timely construction and activation or
reconstruction of the Cable System, the safeguarding of damage to private
property, restoration of damage incurred with utilities, and payment to all Persons
who performed services regarding the construction or reconstruction of the Cable
System.
The bonds shall include the following condition: There shall be recoverable by
the City, jointly and severally from the principal and surety, any and all damages,
losses or costs suffered by the City resulting from the failure of a Grantee to
satisfactorily complete and fully activate the Cable System throughout the Service
Area pursuant to the terms and conditions of this Ordinance and the Franchise.
6.9.2 Bond Must Be Maintained Through Any Extension of Construction
Time Limit Authorized by City Council. The construction performance and
payment bonds shall be available throughout any extension to the prescribed
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® construction or reconstruction time limit authorized by City Council pursuant to
Section 7.2 hereunder.
•
6.9.3 Termination of the Construction Bond. At such time as the initial
construction and activation or reconstruction of the Cable System is complete
pursuant to the terms and conditions of this Ordinance and the Franchise, Grantee
shall notify the City of its intent to cancel the construction bond. The
construction bond may be terminated by the Grantee six (6) months from the date
of notice unless (1) the City Council agrees that the bond may be terminated
sooner, or (2) the City Council finds that a Grantee has not satisfactorily
completed initial construction and activation or reconstruction of the Cable
System pursuant to the terms and conditions of this Ordinance and the Franchise.
In the latter event, the City shall notify Grantee in writing of their specific
findings, and Grantee shall maintain the construction bond until the City finds that
the construction has been satisfactory completed.
6.9.4 Rights with Respect to Construction Bond in Addition to All Other
Rights of City. The rights reserved to the City with respect to the construction
bond are in addition to all other rights of the City, whether reserved by this
Ordinance or authorized by law, and no action, proceeding or exercise of a right
with respect to such construction bond shall affect any other rights the City may
have.
6.9.5 Endorsement Required. The construction bond shall contain the an
endorsement that the bond may not be canceled by the surety nor the intention not
to renew be stated by the surety until thirty (30) days after receipt by the City, by
registered mail, of written notice of such intent to cancel or not to renew.
7. System Construction.
7.1 Construction or Reconstruction Plan and Strand Map to be Provided. A
Grantee shall submit a construction or reconstruction plan not less than thirty (30) days
prior to the date Grantee intends to commence construction or reconstruction.
The Grantee shall, if requested, permit the City Manager or the City Manager's designee
to examine the Cable System design details at the Grantee's office for the purpose of
ascertaining if the plan and design details are in compliance with the Franchise. The plan
shall include a strand map of the entire Service Area and shall clearly delineate the
following:
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®
7. 1.1 Areas within the Service Area,where the Cable System will be constructed
or reconstructed, including a time schedule of construction or reconstruction for
each year that construction or reconstruction is proposed; and
7.1.2 Areas within the Service Area where extension of the Cable System
cannot reasonably be done due to lack of present or planned development or other
similar reasons, with the areas and the reasons for not serving them clearly
indicted on the map.
7.2 Delay in System Construction or Reconstruction Requires Consent by City
Council. Any delay in the Cable System construction or reconstruction beyond the times
specified in the Franchise shall require application to and consent by the City Council.
Any delay beyond the terms of the construction timetable, unless approved by the City
Council, will be considered a violation of the Franchise for which the provisions of
Section 6.9 and Section 15 shall apply. However, nothing in this section shall prevent a
Grantee from constructing or reconstructing the Cable System earlier than required in the
Franchise.
7.3 Failure to Proceed with Construction And /or Reconstruction Expeditiously
Is Grounds for Liquidated Damages. Construction or reconstruction in accordance
with the Franchise shall occur according to the time schedule as agreed to therein.
Failure to meet the time schedule shall be grounds for liquidated damages.
7.4 Line Extension Policy. Extension of a Cable System into any area shall be
required to be accomplished within ninety (90) days from a potential Subscriber's request
if the terms of any of the following conditions are met:
7.4.1 Mandatory Extension Rule.
7.4.1.1 Residential. The Grantee shall extend its Cable System to any area
within its Service Area or to any area annexed by the City after the
effective date of a Franchise granted by the City if the same has a density
of at least sixty (60) potential Subscriber equivalent billing units per mile
and is not served by another cable operator. The Cable System extension
shall be at no cost to the Subscribers, other than the standard/nonstandard
rates for installation.
7.4.1.2 Commercial/Industrial. The Grantee shall be required to extend
the Cable System to any commercial /industrial property which has prepaid
for Grantee's costs of extending its Cable System.
7.4.2 Early Extension. In areas not meeting the requirements for
mandatory extension of Cable System, a Grantee shall provide, upon the request
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of one (1) or more potential Subscribers desiring Cable Service, an estimate of the
costs for time and material required to extend Cable Service to said Subscribers.
Cable Services may be made available on the basis of a capital contribution in aid
of construction, which shall include such estimates. For the purpose of
determining the amount of capital contribution in aid of construction to be borne
by a Grantee and Subscribers in the area in which service may be expanded, a
Grantee will contribute an amount equal to the construction and other costs per
mile, multiplied by a fraction whose numerator equals the actual number of
potential Subscriber equivalent billing units per mile of its trunk or distribution
cable, and whose denominator equals sixty (60). Subscribers who request service
hereunder will bear the remainder of the construction and other costs on a pro rata
basis. A Grantee may require that the payment of the capital contribution in aid
of construction borne by such Subscribers be paid in advance or that such
Subscribers give assurance of payment satisfactory to Grantee. Once the
requirements for service under this section are satisfied, the Grantee shall be
obligated to provide residential service to qualified areas within ninety (90) days
of a request.
7.4.3 Additional Coverage. Nothing in this section shall be construed to
prevent Grantee from serving areas not covered under this section upon
agreement with developers, property owners or residents.
7.5 Service Drops.
7.5.1 Grantee shall make Cable Service available to any Subscriber within the
Service Area upon request and at the standard installation charge if the installation
requires no more than one hundred twenty -five foot (125') aerial or underground
drop measured from the nearest point of a Subscriber's home or place of business
to the nearest active tap of the Cable System. A standard installation includes any
necessary street cutting or boring, one (1) outlet, and standard materials. A
standard installation does not include house amplifiers or a wall fish installation.
7.5.2 If making Cable Service available requires more than a standard
installation, Grantee may charge the Subscribers (i) the standard installation
charge and (ii) an amount equal to the reasonable actual labor and material costs
incurred by Grantee for the additional facilities and work.
7.5.3 Absent a showing by Grantee to the City Manager of unusual
circumstances (such as, but not limited to, street crossings), any standard
installation shall be accomplished within seven (7) business days of a
Subscriber's request, and a non - standard installation shall be accomplished within
fifteen (15) business days of a Subscriber's request.
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® 7.6 System Construction and Operation to Be Consistent with Federal, State and
City Code Requirements; City to Observe Semiannual Proof of Performance Tests.
Construction, installation and maintenance of the Cable System shall be performed in an
orderly and workmanlike manner. Grantee shall construct, install, operate and maintain
its Cable System in a manner such that it operates at all times consistent with all laws,
ordinances and construction standards of the City and State of Texas; the relevant
editions of the National Electric Safety Code and the National Electric Code, as they
affect the construction, maintenance of power supplies and communication lines,
attachments and supports; and Part 76 of the Rules and Regulations of the Federal
Communications Commission. In addition, a Grantee shall provide the City, upon a
written request of the City Manager, with the opportunity to observe the conduct of, and
receive a written report of the results of Grantee's semiannual proof of performance tests.
The Cable System shall not endanger or unreasonably interfere with the safety of Persons
or property in the Service Area or the unincorporated area located five thousand feet
(5000') beyond the Service Area which is not in another municipality's extraterritorial
jurisdiction. All equipment and maintenance will be of high quality.
7.7 Additional Specifications - Standby Power. A Grantee shall construct, install
and maintain the Cable System, subject to the supervision of the City, in an orderly and
professional manner using due diligence and materials of good and durably quality. All
cables and wires shall be installed, where possible, parallel with and in the same manner
as electric and telephone lines. Multiple cable configurations shall be arranged in parallel
and bundled with due respect for engineering considerations. Underground installations
shall be in conformance with all applicable codes.
In all Cable Systems constructed or reconstructed after the effective date of this
Ordinance, a Grantee shall maintain equipment capable of providing standby power to be
engaged automatically in the event of a power failure for twenty -four (24) hours at all
headend, tower and HVAC systems, and for a minimum of one and one -half (1 %) hours
at all trunk and distribution amplifiers or fiber optic nodes. All other Cable Systems shall
come into compliance with these standby power requirements on the schedule specified
in the Franchise.
7.8 Access to Grantee's Trenches by Other Utilities. During Cable System
construction or reconstruction, Grantee shall allow other entities reasonable access as
determined by the City to put other compatible facilities in Grantee's trenches while the
trenches are open and which do not delay or unreasonably interfere with Grantee's
construction process. Any utility desiring access to Grantee's trenches shall share equally
in the cost of opening and closing of trenches. Grantee shall be allowed access to the
open trenches of other entities on an equitable basis.
7.9 If City Determines Any Part of Facilities Are Harmful to Health and Safety
of Any Person, Grantee Shall Promptly Correct. If, at any time, it is determined by
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40 the City or any other agency or authority of competent jurisdiction that any part of the
Cable System is endangering the public, including, without limitation, missing vault or
pedestal covers, temporary drop cables that cross walkways, driveways or other areas,
and low cables, riser problems and other violations of local or state codes and laws that
are harmful to the health or safety of any Person, then a Grantee shall correct all such
conditions, at its own cost and expense, immediately, or no later than twenty -four (24)
hours of receipt of notice from the City or any other agency or authority of competent
jurisdiction. Until such conditions are corrected, Grantee shall issue suitable warnings to
ensure that the health and safety of Persons possibly affected are ensured.
7.14 Grantee's Cable System Not to Interfere with Subscribers' Ability to Use
Television Receiver. A Grantee shall not interfere with the ability of any Subscriber to
utilize his or her television receiver for any lawful purpose. The connection of any cable
input selector device or any converter to a Subscriber's terminal shall not be considered
as interference with the Subscriber's ability to utilize his or her television receiver.
7.11 Grantee to Take All Necessary Setups to Prevent Accidents. A Grantee shall,
at its own cost and expense, take all necessary efforts to prevent accidents at its work
sites, including the placing and maintenance of proper guards, fences, barricades, and
security personnel and, at night, suitable and sufficient lighting.
7.12 Notice of Cable Construction/Repair. Grantee will notify residents and
businesses on affected streets of pending construction or major repairs, including any
which require street or sidewalk trenching, at least forty -eight (48) hours prior to
commencement of such work. Notification shall be by leaving an appropriate notice at
the affected residence (i.e., door hanger notice), or mailing a notice to the affected
residences and businesses. In the event of any construction possibly affecting businesses
and/or residences throughout the Service Area, a Grantee shall notify the same by first -
class mail, stating the scope and duration of the proposed construction and its impacts at
least fourteen (14) days prior to commencement of such work.
8. Regulations Pertaining to Use of Public Ways.
8.1 All Grantee's Facilities to Be Installed Only at Locations Approved by City
Engineer. All poles, wires, cables, lines, conduits, or other properties of a Grantee to be
constructed or installed in Public Ways shall be so constructed or installed only at such
locations and in such manner as shall be approved in writing by the City Engineer in the
exercise of his or her reasonable discretion.
A Grantee or its contractors must obtain permits from the City Engineer and/or other
appropriate departments of the City prior to any physical work being performed on the
Public Ways or on City -owned property. Permits will be issued to a Grantee or its
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contractors only on approved plans which must be submitted on or before the request of
the construction permit. All work will be done in accordance with the City's
specifications and must comply with all applicable City construction codes and
procedures. A Grantee shall not place its Cable System, or any part thereof, where the
same will interfere with any gas, electric, or telephone fixtures, water hydrant or main,
drainage facility or sanitary sewer.
In those areas of the Service Area where all of the transmission or distribution facilities
of the respective public utilities providing telephone communications and/or electric
services are underground, the Grantee likewise shall construct, operate and maintain all
of its Cable System. For aesthetic purposes, a Grantee will make every effort to utilize
present utility poles and shall bury as much as possible of its Cable System underground.
However, for installations occurring after the effective date of a Grantee's Franchise, and
at the time a Grantee rebuilds or upgrades the Cable System, all affected trunk or feeder
cable. (coaxial, fiber, or functional equivalent) must be placed underground if electric
and/or telephone services are also placed underground at the time of the new installation.
The aesthetics of the property will be deemed a high priority in the installation,
maintenance and repairs.
8.2 During Construction, Reconstruction or Maintenance of System Grantee
Shall Not Obstruct Public Ways Without Prior Consent of Authorities. In
connection with the construction, reconstruction, operation, maintenance, repair or
removal of the Cable System, a Grantee shall give due regard to the aesthetics of the
Service Area and shall not obstruct, endanger or interfere with the proper use of the
Public Ways, railways, passenger travel, or other traffic to, from or within the City
without prior written consent of the appropriate authorities, except, in cases of emergency
repairs where Grantee shall use its best efforts to minimize disruption and shall provide
prompt notice to the City as soon as practicable, and, in any event, no later than twenty-
four (24) hours after the commencement of the emergency repair. In addition:
a. All transmission and distribution structures, lines and equipment erected
by a Grantee within the City shall be so located as to cause minimum
interference with the rights and reasonable convenience of property
owners who adjoin any Public Way.
b. In case of any disturbance to any Public Way, a Grantee, at its own cost
and expense and in a manner and time period approved by the City
Manager, shall replace and restore such Public Way to a condition better
than or reasonably comparable to that in existence before the work
involving such disturbance was done as determined by the City Engineer.
Restoration must be completed within a reasonable time after
commencement of the restoration project. Failure to timely restore the
Public Way(s) shall constitute a material default of this Ordinance and will
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subject any Franchise granted to a Grantee to the procedures for
termination set forth in Section 16 herein.
C. In the event a Grantee's Cable System creates a hazardous or unsafe
condition or an interference with a Public Way, then at its own expense,
the Grantee shall voluntarily, or upon the request of the City or its City
Manager, remove that part of the Cable System that creates the hazardous
condition from the subject property. Failure to timely remove the Cable
System as required herein will be considered a material default of this
Ordinance and will subject any Franchise granted to a Grantee to the
procedures for termination set forth in Section 16 herein.
d. If at any time, the Grantee disturbs the yard, residence, or other real or
personal property of a resident of the City, the Grantee shall ensure that
the resident's yard, residence, or other personal property is returned,
replaced, and/or restored to a condition better than or reasonably
comparable to that in existence before the disturbance as determined by
the City Engineer. The cost associated with both the disturbance and the
return, replacement, and/or restoration shall be borne by the Grantee. The
requirements imposed upon Grantee shall extend to any subcontractor or
independent contractor that Grantee might employ to perform the tasks
outlined in this section.
8.3 Grantee to Provide Strand Maps to Affected Utility Companies of Entire
System Prior to Issuance of Permit for Construction or Reconstruction. Strand maps
are to be filed with affected utility companies. Prior to requesting the issuance of a permit
for the installation of any facility or apparatus in accordance with the provisions of this
section, a Grantee shall file such maps with all utility companies and public agencies
whose facilities are affected by such installation.
8.4 Upon Undergrounding of Utility Lines, Grantee Shall Concurrently Place
Lines Underground at Depth Approved by City Engineer. All underground facilities
of a Grantee in any Public Way or in any private easement, shall be installed at such
depths and locations as shall be approved by the City Engineer, except with respect to
such cable service lines where Grantee uses existing poles with permission from their
owner, and where and so long as electric and telephone lines to the Subscribers are
overhead. Upon the undergrounding of the utility lines of the owner of said poles, a
Grantee shall concurrently (or earlier) place its facilities underground at depths and
locations approved by the City Engineer. Reasonable written notice of the
undergrounding of wires will be sent to affected Cable Operators; and when possible,
reasonable access to open trenches at such time as the utility lines are being placed
underground will be granted.
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8.5 Relocation at Request of the City. When requested to do so by the City
Manager for the safety or convenience of the City, its Franchise holders or citizens
affected thereby, or any other governmental entity, a Grantee, at its own expense, shall
protect, support, temporarily dislocate, or temporarily or permanently remove or relocate
any facilities or portion of the Cable System installed, used or maintained under a
Franchise. It is expressly provided that whenever by reason of the construction, repair, or
maintenance of the relocation, lowering of the grade, widening, raising of any Public
Way by the City or by the location or manner of construction, reconstruction,
maintenance, or repair of any public structure or facility by the City, it shall be deemed
necessary by the City Manager to relocate, move, change, alter, or modify any of its
facilities, such change, relocation, alteration, or modification shall be promptly made by
the Grantee when ordered in writing by the City or its City Manager without claim for
reimbursement or damages against the City. Upon notification to Grantee, as herein
provided, the Grantee shall remove and relocate that portion of the Cable System at its
own expense as directed by the City. In non- emergency situations, the Grantee is entitled
to forty -eight (48) hours' advance written notice to arrange for such temporary wire
changes. However, no such notice shall be required by the City in emergency situations.
Emergencies will be determined by the City Manager at his sole discretion. Failure to
timely perform will be considered a material default of this Ordinance and will subject
any Franchise granted to a Grantee to the procedures for termination set forth in Section
16 herein.
8.6 Grantee Shall Obtain Prior Approval Before Altering Any Municipal
Facility; Alternations to Be at Cost of Grantee. In connection with the construction,
operation, maintenance, inspection, repair or removal of the Cable System, a Grantee
shall, at its own cost and expense, protect any and all existing structures belonging to the
City. A Grantee shall obtain the prior approval of the City before altering any water
main, sewage or drainage system or any other municipal structure in a Public Way,
because of the presence of the system in the Public Ways. Any such alteration shall be
made by a Grantee, at its sole cost and expense, and in a mariner reasonably prescribed by
the City. A Grantee shall also be liable, at its own cost and expense, to replace or repair
and restore to a condition better than or reasonably comparable to that which existed
before any such alteration as determined by the City Engineer and in a manner reasonably
specified by the City, any Public Way or other public place, or any municipal structure
involved in the construction of the Cable System that may become disturbed or damaged
as a result of any work thereon by or on behalf of the Grantee pursuant to a Franchise.
8.7 Grantee Shall Temporarily Move Its Wires to Permit Moving of Buildings or
Structures by Third Persons. Grantee shall, at the request of any Person holding a
moving permit issued by the City, temporarily remove, raise or lower its wires to permit
the moving of buildings or structures; provided, (a) -the reasonable expense of such
temporary raising or lowering of wires is paid by said person, including, if required by
the Grantee, making such payment in advance; and (b) the Grantee is given not less than
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® seven (7) calendar days advance written notice to arrange for such temporary wire
changes in non - emergency situations. However, no such notice shall be required by a
benefited person in emergency situations. Emergencies will be determined by the City
Manager.
•
8.8 Failure by Grantee to Complete Required Work in Any Public Way Can
Result in City Causing Work to be Done at Expense of Grantee. Upon failure of the
Grantee to complete any work required by law, or by the provisions of this Ordinance or
a Franchise, to be done in any Public Way or other public place within ten (10) days
following due notice and to the reasonable satisfaction of the City Engineer, the City
may, at its option, cause such work to be done and a Grantee shall pay to the City the
reasonable cost thereof in the itemized amounts reported by the City Engineer to the
Grantee within thirty (30) days after receipt of such itemized report. Or, at the City's
option, the City may demand of Grantee the estimated cost of such work as estimated by
the City Engineer, and such shall be paid by Grantee to City with thirty (30) days of such
demand; upon award of any contract or contracts for such work, Grantee shall pay to the
City within thirty (30) days of demand any additional amount necessary to provide for
cost of such work. Upon completion of such work, Grantee shall pay to the City or the
City shall refund to Grantee such sums of that total received and retained by City shall
equal the cost of such work. Cost as used herein shall include fifteen percent (15 %) of
other costs for the City's overhead.
8.9 City May Remove Grantee's Facilities as May Be Required During
Emergencies. The City reserves the right to remove any portion of a Grantee's
equipment and facilities as may be required in the case of fire, disaster or any emergency
as determined by the City's onsite designee without liability for interruption of Cable
Service and the City shall not be obligated to restore Cable Service or to pay the costs of
expenses of restoring Cable Service.
8.10 Cost of Tree Trimming Is to Be at Expense of Grantee; City Has Option to
Decide Whether City or Grantee Does the Trimming. A Grantee shall notify the City
regarding the need to trim trees upon and overhanging Public Ways of the City so as to
prevent the branches of such trees from coming into contact with the wires and cables of
the Grantee; at the option of the City, such trimming may be done by the City at the
expense of the Grantee, or by the Grantee under the City's supervision and direction at
the expense of the Grantee. When authorized, such trimming shall be limited to the area
required for clear cable passage and shall not include major structural branches which
materially alter the appearance and natural growth habits of the tree. The Grantee shall
be responsible for any and all damages to any tree as a result of trimming or to the land
surrounding any tree whether such tree is trimmed or removed, or for damage to property
or Person caused by such trimming and removal of any tree. Additionally, the Grantee
shall, at its own cost and expense, at the request of the City, replace all trees or shrubs
damaged as a result of any construction or maintenance of the Cable System undertaken
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by the Grantee with trees and shrubs of a reasonably comparable size and type, as
determined in the sole discretion of the City Manager.
8.11 Grantee Shall Remove System from Any Public Street Following
Termination or Expiration of Franchise. In the event that the use of a part of the Cable
System is discontinued for any reason for a continuous period of twelve (12) months, or
in the event such Cable System or property has been installed in any Public Way or
public place without complying with the requirements of the Franchise or the Franchise
has been terminated, canceled or has expired without renewal, or without having been
sold to a qualified new Grantee, upon being given thirty (30) days' written notice from
the City Engineer a Grantee shall promptly at its own expense remove from the Public
Ways or public places all such property and poles of such Cable System other than that
which the City Engineer may permit to be abandoned ' in place. In the event of such
removal, a Grantee shall promptly restore the Public Way or other area from which such
property has been removed to a condition satisfactory to the City Engineer.
8.12 Grantee's Property May Be Considered Abandoned Sixty (60) Days after
Termination or Expiration of Franchise. Any property of a Grantee remaining in place
sixty (60) days after the lawful termination or expiration of a Franchise shall be, at the
option of the City Council, considered permanently abandoned unless such property has
been sold or conveyed to a new City- approved and - qualified Grantee. The City
Engineer may extend such time as the City, in its sole opinion, deems to be necessary or
prudent.
8.13 Abandonment in Place Shall Be Done at Direction of City Engineer;
Ownership of Property Shall Be Transferred to City. Any property of a Grantee
permitted to be abandoned in place shall be abandoned in such a manner as the City
Engineer shall reasonably prescribe. Upon permanent abandonment of the property of a
Grantee in place, the Grantee shall submit to the City an instrument in writing to be
approved by the City Attorney transferring to the City the ownership of such property. If
such an instrument is not received within thirty (30) days of the abandonment, the
property shall automatically become that of the City.
9. System Operation.
9.1 Type and Scope of System. A Grantee shall install and maintain the Cable
System agreed upon in the Franchise and this Ordinance.
9. 1.1 Service to Schools, Public Buildings, Etc. A Grantee shall provide,
without charge, within its Service Area and any extension thereof, one standard
installation and basic Cable Service to each fire station, public and/or private
school, police station, public library, emergency management office, and all other
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971023 -4aa
publicly owned and occupied buildings and facilities when requested in writing
by the City Manager. For the purposes of this Section, standard installations shall
be as defined in Section 7.5.1.
If making Cable Service available requires more than a standard installation, or if
additional outlets are desired in any school or public building, Grantee is entitled
to charge the building owner or occupier an amount equal to the reasonable actual
labor and material costs incurred by Grantee for the additional facilities and work.
Further, the City agrees to take reasonable precautions to prevent the illegal
and/or improper use of Cable Service within public buildings. Grantee shall not .
be obligated to provide free Cable Service to any school unless the school agrees
to take reasonable precautions to prevent any illegal and /or inappropriate use of
Cable Service within the school.
9.1.2 Emergency Alert Override System. A Grantee shall comply with all
requirements of the FCC regarding installation, maintenance and use of an
emergency alert system. A Grantee shall cooperate with the City in the use and
operation of the emergency alert override system. The City shall take reasonable
precautions to prevent the improper use of the emergency alert system.
9.2 Access Channels.
9.2.1 A Grantee shall provide and maintain the number and type of access
channels as are set forth in the Franchise.
9.2.2 Underutilized Access Channels to Be Used by Grantee Under Rules
Established by City. Whenever any access channel, is utilized less than an
average of eight (8) hours per day for six (6) days per week for a continuous
period of not less than twelve (12) consecutive weeks, the Grantee may utilize
the unused access channel capacity; however, no access capacity shall be utilized
by the Grantee until all other channel capacity on the Cable System has been
programmed. Programs shown more than twice during the twelve (12) week
period, non - locally produced programming, and character generated programming
shall not count toward utilization of the access channels.
9.2.3 If each access channel is being used for nonrepetitive locally produced
programming (excluding character generated programming) more than twelve
(12) hours per day, seven (7) days a week for twelve (12) consecutive weeks, a
Grantee shall, upon receipt of written notice from the City, make an additional
new channel available for the same purpose(s) within one hundred twenty (120)
days, up to the maximum number of channels specified in the Franchise for access
use.
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® 9.3 Supervision and Regulation of Franchises. The City Manager or his or her
designee may do all things necessary and lawful to supervise, inspect and regulate the
construction and operation of Cable Systems Franchised under this Ordinance and
implement complaint procedures.
9.4 Grantee to Maintain a Local Area Office. A Grantee shall maintain a Local
Area Office which shall be open during the business hours stated in the Franchise and
shall maintain a publicly listed telephone number with a toll -free number and sufficient
lines which shall be so operated and staffed to respond to customers in at least five (5)
ways: (i) accept payments and resolve billing difficulties; (ii) to give out and exchange or
accept return converters; (iii) schedule and conduct service or technician calls; (iv)
answer Subscriber inquiries; and (v) resolve complaints. The City as well as all
Subscribers shall be promptly noticed of the location of the office and of any change of
address of such office or of telephone number(s). Grantee shall also prepare a
promotional notice to familiarize residents with the location of said office, the services
available and complaint procedures. This notice is to be given to each new Subscriber
upon installation of service and is to be distributed at least once per year to all
Subscribers.
9.5 Repair and Maintenance Crews to Be Maintained That Is Capable of
Responding to Subscriber Complaints. Grantee shall maintain sufficient repair and
maintenance crews capable of responding to Subscriber complaints or requests for
service in accordance with Subscriber service standards described in Section 10.
9.6 Outage Log to Be Maintained Showing Details of Service Failure. A Grantee
shall maintain an outage log showing the date, approximate time, location, duration,
estimated number of Subscribers affected, type and probable cause of all headend, trunk,
or distribution failures due to causes other than routine testing or maintenance at
reasonable times. A copy of such log shall be filed with the City Manager within fifteen
(15) calendar days of a written request therefor by the City Manager and shall be retained
by a Grantee at its Local Area Office for at least a period of three (3) years.
9.7 Planned Service Interruption. The need for periodic Cable Service
interruptions by Grantee to perform preventive maintenance, repair and reconstruction of
the Cable System is hereby acknowledged. All such interruptions shall be planned during
minimum viewing hours when possible. The Grantee shall be sensitive to newsworthy
events of general public interest and modify such outage plans to allow maximum
Subscriber reception of the news of these events.
9.8 City Can Require Testing of Cable System and Report on Performance.
When there have been repeated complaints made which Grantee has failed to solve to the
satisfaction of the City, or when there exists other evidence which in the reasonable
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9.12 Written Report Required of Grantee -- Details Outlined. Sixty (60) days
following receipt of the written request for a performance evaluation session, the Grantee
shall submit to the City Council or such other entity as may be formed by the City, a
written report in reasonable detail covering the significant events related to the Grantee's
performance or nonperformance of the terms and conditions of its Franchise during the
period from the submission of the last such report. Such reports shall, if applicable, cover
significant events, including, but not limited to, those events related to the following
topics:
a. compliance with, and any modification necessary with respect to the
financial commitments required under the Franchise;
b. compliance with requirements regarding Cable System characteristics and
technical performance and testing requirements;
C. compliance with construction terms, standards, and schedules;
d. a description of the changes made or contemplated to the mix, level and
quality of programming the broad categories of video programming or
other Cable Services of the Cable System; nothing in this paragraph,
however shall imply any City regulatory authority or power of censorship
over the content of the programming on the Grantee's channels, the
community and education access channels or the leased channels;
e. compliance with, and any modification necessary with respect to the
Grantee's privacy protection policies;
f, a summary of all significant Cable Service interruptions;
g. a summary of all significant and representative Subscriber complaints and
the action taken by the Grantee in response thereto;
h. a summary of relevant developments in the law and regulatory constraints;
and
other events or areas of compliance with the terms of the Franchise and/or
Ordinance which the City or Grantee may find significant.
9.13 City May Request Additional Information and Clarification to Determine
Franchise Compliance. Within sixty (60) days after receipt of the Grantee's report, the
City may request additional reasonable and appropriate information on specified topics
which the Grantee shall supply within sixty (60) days of such request. The City may
review the Grantee's performance to determine whether the Grantee has complied with
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® judgment of the City Manager casts doubt on the reliability or quality of Cable Service,
the City Manager shall have the right and authority to compel a Grantee to test, analyze,
and report on the performance of the Cable System no more frequently than one (1) time
per Franchise year. Such tests shall be performed by or under the supervision of a
qualified, registered professional engineer or an engineer with proper training and
experience as determined by the City. The City shall have the opportunity to observe
testing. Such report as well as the qualifications of the engineer responsible for the tests
shall be delivered to the City Manager no later than fourteen (14) days after the City
Manager formally notifies the Grantee and shall include the following information: the
nature of the complaints which precipitated the special test(s); which Cable System
component(s) was /were tested, the equipment used, and the procedure(s) employed in
said testing; the results of such test(s); and the methods in which said complaints were or
will be resolved.
40
9.9 City May Cause Additional Tests to Be Performed by Independent
Professional Engineer at Cost of Grantee. If the technical problems continue to persist
following system testing by Grantee in subsection 9.8 above, and the technical problems
are within Grantee's control, the City Manager may require that additional testing and
analysis be conducted by the Grantee but supervised by an independent qualified
engineer selected by the City. The engineer shall sign all records of special tests and
forward to the City Manager such records with a report interpreting the results of the tests
and recommending actions to be taken by the Grantee and the City. The reasonable costs
of such expense shall be paid for by the Grantee within thirty (30) days after the City
submits the engineer's invoice, such costs not to exceed fifteen hundred dollars ($1,500)
per year.
9.10 Failure to Correct Technical Deficiencies May Result in Directive from City
Council. The Grantee shall continue, throughout the term of the Franchise, to maintain
the technical standards and quality of service set forth in this Ordinance and in the
Franchise. Should the City Council find by resolution that the Grantee has failed to
maintain these technical standards and quality of service, or to correct technical
deficiencies identified in subsections 9.8 and 9.9 above, the City Council by resolution
may specifically enumerate improvements recommended by the engineer and require the
Grantee to make such improvements. Failure of Grantee to make such improvements
within a reasonable period of time to be stated in the resolution will constitute a breach of
condition for which a remedy in liquidated damages and/or Franchise revocation is
applicable.
9.11 Performance Evaluation Sessions May Be Held Every Three (3) Years. Upon
written request by the City Manager, a Grantee shall cooperatively participate with the
City in a performance evaluation session of the Grantee, to be held no more often than
every three (3) years from the effective date of a Franchise.
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the terms and conditions of the Franchise and shall, following completion of any such
review, keep the Grantee's report on file. Nothing in this section shall affect the City's
remedies provided elsewhere in this Ordinance.
9.14 Special Evaluation Session Possible at Any Time. Special evaluation sessions
may be held at any time during the term of a Franchise at the request of the City or
Grantee with a thirty (30) day notice.
9.15 Public Notification of Performance Evaluation Sessions. All performance
evaluation sessions shall be open to the public and announced in a newspaper of general
circulation in accordance with the City's legal notice requirements at least ten (10) days
but no more than twenty (20) days preceding each session. A Grantee shall notify its
Subscribers of all performance evaluation sessions at least ten (10) days preceding each
session by any means Grantee deems reasonable. The City's cost of such notice shall be
reimbursed by the Grantee within thirty (30) days of receiving an invoice for the same.
9.16 Discussion Topics Listed. Topics which may be discussed at any scheduled or
special evaluation session may include, but not be limited to, Cable Service rate
structures; Franchise fees; liquidated damages; free or discounted services; application of
new technologies; system performance; Cable Service provided; access; programming
offered; Subscriber complaints; Subscriber privacy rights; amendments to this Ordinance;
judicial and FCC rulings; line extension policies; and Grantee or City rules.
9.17 City May Issue Report on Adequacy of System Performance and Require
Improvements Where Necessary. Within sixty (60) days after the conclusion of any
evaluation session, including the clarification period described, the City may prepare a
written report with respect to the adequacy of the Grantee's performance in comparison
to its obligations under its Franchise and this Ordinance. If inadequacies are found which
result in a violation of any of the material provisions of this Ordinance or a Franchise, the
Grantee shall have a minimum of thirty (30) days to respond and propose a plan for
implementing any improvement or correction. Additional time for cure may be allowed
by the City as appropriate.
10. Customer Service Standards.
10.1 Customer service standards shall be detailed in the Franchise and shall conform at
least to the standards established by the Federal Communication Commission.
10.2 A Grantee shall comply with all procedures established cooperatively by the City
and the Grantee regarding handling of all complaints received directly by the City from
City residents regarding Grantee's Cable Service.
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® 11. Reports and Records of Cable TV Operation.
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971023 -4ff
11.1 Annual Reports Required. The Cable Operator shall file annually with the City:
a. a statement of gross revenues prepared by an independent certified public
accountant, accounting firm, or the Cable Operator's chief financial
officer as required by Section 3.3.2; and
b. within one hundred twenty (120) days following the end of each calendar
year, an operational report, including, but not limited to, the following
information, specific to the City: number of dwelling /commercial units
passed, number of equivalent billing units passed in areas within the
Service Area not served by a Grantee, number of cable plant miles,
number of Subscribers and the penetration rate. This report shall be
certified as being correct by a responsible representative of the Grantee.
11.2 Customer Service Reports Required.
11.2.1 A Grantee shall submit to the City within thirty (30) days of a written
request of the City Manager a reasonable, statistical summary of the operations of
the Cable System and a detailed report showing compliance with customer service
standards.
11.2.2 The statistical summary shall include, but not be limited to: the number of
dwelling /commercial units passed; the number of basic Cable Service
Subscribers; the number of Subscribers for each additional Cable Service tier; the
penetration rates for basic Cable Service and other Cable Service tiers;; the
number of premium units purchased by Subscribers and the number of cable plant
miles.
11.2.3 The compliance report for customer service standards shall be developed
in consultation between the City Manager and a Grantee and shall provide the
detail necessary to monitor a Grantee's compliance with these standards. Such
report may include, but not be limited to:
• A summary of system outages and "down time ";
• Percent of telephone calls that were answered within thirty (30)
seconds during the past quarter;
• Percentage of time when all incoming trunk lines were in a busy
condition during the past quarter;
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i• Number of repair service requests received in the past quarter;
41
• Breakdown by cause of problem (e.g., subscriber equipment, drop,
converter, system, etc.); and
• Breakdown by time of response or resolution (e.g., within 24 hours
or same day, etc.)
11.2.4 Upon breach of a customer service standard and failure of a Grantee to
remedy such breach upon thirty (30) days' prior written notice from the City, the
City may invoke the liquidated damages provision of the Franchise without
prejudice to any other remedy otherwise available to the City.
11.3 Grantee Shall File Current Maps Showing Location of Equipment Installed.
The Grantee shall file with the City Engineer, within ninety (90) days of any change,
strand or trench maps or sets of maps drawn to scale showing the location of the Cable
System in place in the Public Ways and other public places of the City. Grantee shall
also file same maps within ten (10) days of receiving a written request from the City
Engineer.
11.4 Ownership Reports Required. The Cable Operator shall file with the City not
later than thirty (30) calendar days after the receipt of a written request from the City
Manager two (2) copies of the following supplemental information:
a. If a nonprofit corporation, a list of all current directors or trustees of
record. If a public corporation, a list of all shareholders who individually
or as a concerted group hold ten percent (10 %) or more of the voting stock
of the corporation;
b. A current list of all the Cable Operator's officers and directors, including
addresses and telephone numbers;
c. The names, business addresses and business and emergency phone
numbers of the Cable System manager and engineer; and
d. If the Cable Operator is a subsidiary, a copy of the annual report of the
parent firm.
11.5 Public Availability of Reports. Such reports as required under this Ordinance
shall be available to the public in the office of the City Clerk during normal business
hours, unless a Grantee claims such information is confidential, privileged or proprietary
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® and perfects the right to claim the same pursuant to the procedures established in a
Franchise.
•
11.6 Correspondence. A Grantee shall not apply for any waivers, exceptions or
declaratory rulings from the Federal Communications Commission or any other federal
or state regulatory agency which would materially and directly affect the Franchise
granted by the City to the Grantee without providing the City Manager with copies of all
filings within ten (10) days of the date that such filings were mailed or otherwise sent to
the FCC or other regulatory agency.
11.7 City's Access to Grantee's Records. The City shall have access to and may
request copies, at no expense to the City, of all of the Grantee's records reasonably
necessary to ensure compliance with the Franchise or this Ordinance, such access to be
made available during normal business hours at the Grantee's Local Area Office within
thirty (30) days of Grantee's receipt of a written request from the City for such records.
All books and records shall be made available for a period of at least three (3) years.
Grantee shall not be required to provide Subscriber information in violation of Section
631 of the Cable Act. Notwithstanding anything contained herein to the contrary, the
Grantee shall not be required to disclose information which it reasonably deems to be
proprietary or confidential in nature.
11.8 False Entries. Any false entry in the books of account or records of a Grantee or
false statement in the reports to the City knowingly made by a Grantee shall constitute
the breach of a material provision of the Ordinance and Franchise.
12. Rate Regulation.
12.1 City Reserves Right to Regulate Rates. To the fullest extent provided by
federal and state law, the City reserves the right to regulate and may regulate a Grantee's
fees, rates, and/or other charges for Cable Service.
12.2 Current Rate Schedule to Be Filed with the City: 30 Days' Notice Required
Prior to Rate Change. A Grantee, for information purposes, and for the City to ensure
nondiscrimination, shall provide the City with a complete schedule of all current Cable
Service charges, and shall give at least thirty (30) days' prior notice to the City and to all
affected Subscribers of any pricing changes or additional charges, excluding temporary
marketing and sales discounts or offers.
12.3 Grantee to Furnish Service to Each Person in Franchise Area Making
Request for Service. Grantee shall furnish and maintain Cable Services to each person
within the Service Area who makes a bona fide request to receive any Cable Service that
is based upon the requirements of this Ordinance. In the event Cable Service is denied,
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971023 -4ii
® the Grantee will give written response to the requestor of the Cable Service, if so
requested. Nothing in a Franchise shall limit the right of the Grantee to deny service to
any household or individual who has negative credit or service history with the Grantee,
which may include non- payment of bills or theft or damage to the Grantee's equipment or
who has threatened or assaulted employees of the Grantee in the course of their
employment.
13.
14.
•
12.4 Charges Must Be Applied on Nondiscriminatory Basis. All charges must be
applied on a nondiscriminatory basis. A Grantee may, however, conduct promotional
campaigns in which rates are discounted or waived, and may offer bulk rate discounts for
multiple unit dwellings, hotels motels, and similar institutions.
Franchise Renewal Process.
13.1 The Franchise renewal process of the City shall be in accordance with Section
626 of the Cable Act, and with all other applicable state and federal laws.
13.2 Notwithstanding anything to the contrary set forth in this section, the Grantee and
the City may at any time during the term of the then current Franchise, while affording
the public appropriate notice and opportunity to comment, agree to undertake and finalize
informal negotiations regarding renewal of the then current Franchise and the City may
grant a renewal thereof. The Grantee and the City consider the terms set forth in this
section to be consistent with the express provisions of Section 626 of the Cable Act.
13.3 No provisions in this
require the City Council to r,
13.4 The length of term of a
such term shall not exceed fifi
the Grantee by written agreer
previously existing Franchise,
with this Ordinance or the Frar
Letter of Credit.
14.1 Grantee Is Required
(30) days after the effective c
Director of Finance an Irrevc
Attorney and the Director of
($100,000), or of such other ;
insured commercial lending ir
inance or any Franchise shall be deemed or construed to
a Franchise.
Franchise shall be determined in the Franchise; however,
;en (15) years from the date the Franchise is accepted by
ent with the City or from the expiration of a Grantee's
vhichever is later, unless terminated earlier in accordance
,hise.
to File an Irrevocable Letter of Credit. Within thirty
ate of a Franchise, Grantee shall deposit with the City's
cable Letter of Credit in a form satisfactory to the City
Finance. in an amount of one hundred thousand dollars
unount as specified in a Franchise, issued by a federally
stitution with a credit rating of BAA or BBB+ or higher.
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The Grantee shall maintain the Irrevocable Letter of Credit at all times throughout the
term of the Franchise in the amount set forth herein or as set forth in the Franchise. Any
draw from the Letter of Credit shall cause the Grantee within thirty (30) days from
receipt of notice of the draw by the City to replenish the Letter of Credit to the amount
required by this Ordinance. The Letter of Credit shall be used to assure the faithful
performance by the Grantee of all provisions of the Franchise and this Ordinance and to
ensure compliance with all orders, permits and directions of any agency, commission,
board, department, division or office of the City having jurisdiction over the Grantee's
acts or defaults under a Franchise and this Ordinance, and the payment by the Grantee of
any penalties, liquidated damages, claims, liens, Franchise fees, taxes or other fees due to
the City which arise by reason of the construction, operation or maintenance of the Cable
System, including cost of removal or abandonment of any property of the Grantee.
14.2 Letter of Credit May Be Drawn upon by City Manager after Following Due
Process.
14.2.1 The Letter of Credit may be drawn upon by the City by presentation of a
draft at sight on the lending institution, accompanied by a written certificate
signed by the City Manager certifying the Grantee has failed to comply with the
Franchise and/or this Ordinance, stating the nature of the noncompliance and
stating the amount being withdrawn. Examples of the nature of the
noncompliance for drawing upon the Letter of Credit include, but are not limited
to, the following:
a. Failure of the Grantee to pay to the City any Franchise fees, taxes,
liens or other fees within ten (10) days of receiving written notice
of delinquency;
b. Failure of the Grantee to pay to the City, after ten (10) days'
written notice, any amounts due and owing the City by reason of
the indemnity provision of Section 6.2.2;
C. Failure of the Grantee to pay to the City any liquidated damages
due and owing to the City pursuant to the Franchise and/or this
Ordinance within thirty (30) days of receiving written notice from
the City;
d. Failure of the Grantee to pay to the City any other payment as
required by the Franchise, within ten (10) days of receiving written
notice of delinquency;
C. Failure of the Grantee to pay to the City within ten (10) working
days after receipt of written notice from the City, any damages,
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claims, costs or expenses which the City has been compelled to
pay or incur by the reason of any material act or default by the
Grantee;
£ Failure to comply within thirty (30) days after receipt of written
notice from the City with any material provisions of the Franchise
or this Ordinance which the City reasonably determines can be
remedied by an expenditure of amount from the letter or other
instrument.
14.2.2 In the event of such noncompliance, the City may order the withdrawal of
the amount thereof from the letter or other instrument for payment to the City,
provided that, prior to each such withdrawal: (i) the Grantee shall be afforded an
opportunity to cure any of said failures within thirty (30) days after written notice
from the City that the withdrawal is to be made; or (ii) if such cure cannot be
reasonably accomplished within such thirty (30) days, then the Grantee shall have
a reasonable time to cure as determined by the City, provided that the Grantee
commences such cure within such thirty (30) days and diligently pursues such
cure to completion.
14.3 Letter of Credit Shall Be Replenished to Original Amount Following Any
Draw Down. Grantee agrees that if the City at any time draws upon the Letter of Credit,
the amount of available credit shall, within thirty (30) days of the date Grantee receives
notice of the draw by the City, be increased to the extent necessary to replenish that
portion of the available credit exhausted by the honoring of the City's draft. If the
existing Letter of Credit cannot be replenished, a new Letter of Credit shall be issued in
the amount specified in this section or as stated in the Franchise.
14.4 City's Rights with Respect to Letter of Credit are in Addition to Other
Rights. The rights reserved to the City with respect to the Letter of Credit are in addition
to all other rights of the City, whether reserved by a Franchise, this Ordinance, or
authorized by law; and no action or proceeding against the Letter of Credit shall affect
any other right the City may have.
15. Liquidated Damages.
15.1 Liquidated Damages to Be Paid by Grantee for Certain Delays or
Nonperformance. Grantee shall comply with all requirements in its Franchise with the
City regarding liquidated damages related to delays or non - performance.
15.2 Procedures Established to Assure Grantee of Due Process and Opportunity
to Cure Problem Before Damages Assessed. If the City Manager, following prior
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971023 -411
® reasonable notice to a Grantee to cure any. problem that might result in liquidated
damages, concludes that a Grantee is, in fact, liable for liquidated damages pursuant to
the Franchise, he or she shall issue to a Grantee by certified mail a Notice of Intention to
Assess Liquidated Damages. The notice shall set forth the basis of the assessment and
shall inform the Grantee that liquidated damages will be assessed from the date of the
notice unless the Assessment Notice is appealed for hearing before the City Council and
the City Council rules (a) that the violation has been corrected, or (b) that an extension of
the time or other relief should be granted. If the Grantee desires a hearing before the City
Council, it shall send a written Notice of Appeal by certified mail to the City Manager
within ten (10) days of receiving the Notice of Intention to Assess Liquidated Damages.
After the hearing, if the City Council sustains in whole or in part the City Manager's
Assessment of Liquidated Damages, the City Manager may at any time thereafter draw
upon the Letter of Credit required by the Franchise. Unless the City Council indicates to
the contrary, said liquidated damages shall be assessed beginning with the date on which
the Grantee receives the Notice of Intention to Assess Liquidated Damages and
continuing thereafter until such time as the violation ceases, as reasonably determined by
the City Manager.
16. Forfeiture and Termination.
16.1 Franchise May Be Terminated for Material Breach of Terms and
Conditions. In addition to all other rights and powers retained by the City, the City
reserves the right to terminate the Franchise and all rights and privileges of the Grantee in
the event of a material breach of its terms and conditions. Material provisions shall
include all labeled as such and any other, which, under all the facts and circumstances
indicated, is a significant provision of the Franchise or this Ordinance. A material breach
by a Grantee may include, but shall not be limited to, the following:
a. Violation of any material and applicable provision of this Ordinance or the
Franchise or any other material rule, order, regulation or determination of
the City made pursuant to a Franchise;
b. Attempt to evade any material and applicable provisions of this Ordinance
and /or the Franchise or practice any fraud or deceit upon the City or
Subscribers;
C. Failure to begin or complete Cable System construction or reconstruction
as provided under the Franchise;
d. Failure to maintain insurance, bonds, and the Letter of Credit required by
the applicable provisions of this Ordinance or the Franchise;
39
971423 -4rm,
® e. Failure to restore Cable Service after forty -eight (48) consecutive hours of
interrupted Cable Service, except when there is just cause and when
approval of such interruption is obtained from the City;
f. Substantial failure to provide the financial information required by this
Ordinance and/or the Franchise;
g. Substantial failure to satisfy the requirements regarding Cable System
characteristics or repeated failure to meet the technical performance
standards specified in the Franchise;
h. Abandonment of the Cable System in whole or material part without the
prior written consent of the City;
Substantial failure to supply the access channels and other support and any
related services, equipment and facilities as required in the Franchise;
J. Substantial and repeated failure to comply with the customer service
standards and requirements set forth in this Ordinance and the Franchise;
k. Any material written misrepresentation, intentionally made by or on behalf
of a Grantee in its proposal to obtain a Franchise or in connection with the
negotiation or renegotiating of the Franchise or any amendment or other
modification to a Franchise, to the extent that any such misrepresentation
was relied upon by the City;
The Grantee's becoming insolvent, unable or unwilling to pay its debts, or
upon listing of an order for relief in favor of Grantee in a bankruptcy
proceeding to the extent such insolvency, failure to pay debts or
bankruptcy materially interferes with the operation of the Cable System in
Service Area; and /or
M. At any time where a pattern of similar actions by a Grantee has led to the
repeated assessment of liquidated damages for the same.
16.2 Violations That Occur Which Are Not the Fault of Grantee Shall Not
Constitute a Material Breach. The foregoing shall not constitute a material breach if
the violation occurs but is without fault of the Grantee or occurs as a result of
circumstance beyond its control. A Grantee shall not be excused by mere economic
hardship nor any misfeasance or malfeasance of its shareholders, partners, directors,
officers, or employees.
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® 16.3 Procedures Outlined Leading to Possible Termination of Franchise. The City
shall make a written demand that a Grantee comply with any provision, rule, order or
determination under or pursuant to this Ordinance or the Franchise. The demand shall set
forth the exact nature of the alleged noncompliance. If the violation, breach, failure,
refusal or negligence by a Grantee continues for a period of thirty (30) days following
such written demand without written proof that corrective action has been taken or is
being actively and expeditiously pursued, and. the violation is of a material Franchise
provision as detailed, in part, in Section 16.1 herein, the City may place the issue of
termination of the Franchise before the City Council. The City shall cause to be served
upon Grantee, at least twenty (20) days prior to the day of such City Council meeting, a
written notice of intent to request such termination and the time and place of the meeting.
Public notice shall be given of the meeting and the issue which the City Council is to
consider.
16.4 City Council Shall Hear and Consider Issues and Determine If a Violation
Has Occurred. The City Council shall (i) hear and consider the issue of whether a
material violation of this Ordinance or the Franchise has occurred; (ii) hear any person
interested therein, including the Grantee, and (iii) determine in its discretion, whether or
not any such material violation by the Grantee has occurred.
Any hearing by the City which concerns the assessment of substantial penalties or
liquidated damages against a Grantee, or the revocation of a Franchise, will be conducted
according to Texas' Administrative Procedures Act. Specifically, Grantee will be
provided with substantial due process, including the right to be represented by legal
counsel, to introduce relevant evidence, to require the production of evidence, , to compel
the testimony of other Persons as permitted by law, and to question witnesses. A
complete verbatim record and transcript shall be made of such proceeding and the cost of
the same shall be borne by the Grantee.
16.5 City Council May Declare Franchise Terminated If Compliance Does Not
Occur Within Specified Period. If the City Council shall determine the material
violation by a Grantee was the fault of the Grantee and within its control, the City
Council may, by ordinance, declare that the Franchise of the Grantee be terminated,
unless there is compliance within such period as the City Council may fix. Such decision
to terminate a Franchise shall be made in writing and transmitted to the Grantee within
five (5) days of the City Council's action.
16.6 Right to Appeal. If a Grantee is adversely affected by a decision of the City, it
may appeal the action within sixty (60) days of the City Council's action to any court of
competent jurisdiction. For the purposes of any action occurring in accordance with
Sections 16.4 and 16.5 herein, the parties stipulate that the record of the administrative
proceeding and the decision of the City shall constitute the entire factual record.
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® 17. Receivership and Foreclosure.
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17.1 Any Franchise granted shall, at the option of City, cease and terminate one
hundred twenty (120) days after the appointment of a receiver or receivers or trustee or
trustees to take over and conduct the business of Grantee whether in receivership,
reorganization, bankruptcy or other action or proceeding unless such receivership or
trusteeship shall have been vacated prior to the expiration of said one hundred twenty
days (120) days, or unless:
a. Such receivers or trustees shall have within one hundred twenty (120)
days; after their election or appointment fully complied with all the terms
and provisions of this Ordinance and the Franchise, and the receivers or
trustees within said one hundred twenty (120) days shall have remedied all
defaults under the Franchise; and
b. Such receivers or trustees shall have within one hundred twenty (120)
days executed a Franchise duly approved by the Court having jurisdiction
on the premise whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the Franchise,
including applicable provisions of this Ordinance.
17.2 In the case of a foreclosure or other involuntary sale of the plant, property or
equipment of Grantee, or any part thereof, Grantee shall notify the City Manager of such
foreclosure or involuntary sale. City may then serve notice of termination upon Grantee
and to purchaser at such sale, in which event the Franchise and rights and privileges of
Grantee shall cease and terminate within thirty (30) days after service of such notice
unless:
a. City has approved the transfer of the Franchise as provided for in this
Ordinance, and
b. Such successful purchaser shall have covenanted and agreed with City to
assume and be bound by all the terms and conditions of the Franchise.
18. Waivers.
18.1 Any provision of this Ordinance may be waived, at the sole discretion of the City
by resolution or ordinance of the City Council.
18.2 A Grantee may submit a written request for a waiver of the requirements of this
Ordinance to the City Council at any time during the Franchise term. Such request for a
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waiver, at the sole discretion of the City Council, may be set for a public hearing, and a
decision shall be made within one hundred twenty (120) days following the submission.
18.3 The City Council may authorize the economic, technical or legal evaluation of
Grantee's waiver request, and the Grantee shall be required to reimburse the City for any
reasonable expenditure incurred by the City in connection with such evaluation.
18.4 This section is enacted solely for the convenience and benefit of City and shall not
be construed in such a manner as to create any right or entitlement for the Grantee.
19. Time Is of the Essence.
19.1 Whenever this Ordinance or a Franchise sets forth any time for any act to be
performed by or on behalf of the Grantee such time shall be deemed to be of the essence
and any failure of Grantee to perform within the time allotted shall always be sufficient
grounds for the City to invoke liquidated damages or initiate procedures leading toward
the revocation of a Franchise.
20. Sundry Provisions.
20.1 Every direction, notice or order by the City to be served upon a Grantee shall be
delivered or sent by registered mail, certified mail, return receipt requested, or any such
other means as specified in the Franchise to the Grantee at the address detailed in the
Franchise.
20.2 The rights granted by this Ordinance are subject to all Franchises and permits
heretofore or hereafter granted by the City Council to use the Public Ways of the City by
other public utility or public service corporations. It is not intended by the Grantee of a
Franchise to abridge the exertion of the police power heretofore or hereafter granted to
the City by the State. The grant of a Franchise is subject to all ordinances and resolutions
or agreements adopted by the City Council as the same now exists or may be hereafter
amended, revised or codified, in the lawful exercise of any other power granted to the
City.
20.3 Specific mention of the materiality of any of the provisions herein is not intended
to be exclusive of any others for the purpose of determining whether any failure of
compliance hereunder is material and substantial.
20.4 A Grantee shall assume the cost of any publication required by law and such is
payable upon a Grantee's filing of Acceptance of a Franchise.
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® 20.5 In the event that any provision of the Cable Act or other statute, law or regulation,
which is relied upon herein or in any Franchise for any definition or requirement, is
repealed, then the language of such provision at the time of such repeal shall nevertheless
continue to apply for purposes of this Ordinance or any Franchise, regardless of such
repeal, except as otherwise provided herein or in any Franchise or as prohibited by such
subsequent repeal or amendment.
n
20.6 The rights and remedies of the parties pursuant to a Franchise are cumulative,
except as otherwise provided in a Franchise, and shall be in addition to and not in
derogation of any other rights or remedies which the parties may have with respect to the
subject matter of a Franchise. A waiver of any right or remedy by a party at one time
shall not affect the exercise of said right or remedy or any other right or other remedy by
such party at any other time. The failure of the City to take any action in the event of
material breach by the Grantee shall not be construed or otherwise be deemed to
constitute a waiver of the right of the City to take such action at any other time in the
event that said material breach has not been cured or with respect to any other material
breach by the Grantee.
20.7 In the event that, after the effective date of any Franchise, any court, agency,
commission, legislative body, or other authority of competent jurisdiction (i) declares a
Franchise invalid in whole or in part, or (ii) requires the Grantee either to (a) perform any
act which is inconsistent with any provision of a Franchise or (b) cease performing any
act required by any provision of a Franchise, the City shall reasonably determine whether
said declaration or requirement has a material and adverse affect on the Franchise. When
the Grantee intends to exercise its rights pursuant to such declaration, the Grantee shall so
notify the City of said declaration or requirement. If the City determines that said
declaration or requirement has a material and adverse affect on a Franchise, it may send a
written request to the Grantee to enter good faith negotiations with the City to amend the
Franchise. Nothing in this section shall be construed as a requirement for a Grantee to
agree to amend a Franchise in the event of said preemptive declaration or action.
20.8 The headings contained in this Ordinance and any Franchise are to facilitate
reference only, do not form a part of this Ordinance or a Franchise and shall not in any
way affect the construction or interpretation hereof.
Section 2: All Ordinances or parts of Ordinances inconsistent with the terms of this
Ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this Ordinance shall be cumulative of other
Ordinances regulating and governing the subject matter covered by this Ordinance.
Section 3: If any provision, section, exception, subsection, paragraph, sentence,
clause or phrase of this Ordinance or the application of same to any person or the set of
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circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall
not affect the validity of the remaining provisions of this Ordinance or their application to other
persons or sets of circumstances and to this end all provisions of this Ordinance are declared to
be severable.
Section 4: This Ordinance shall take effect from and after ten (10) days from its
passage by the City Council. The City Clerk -is hereby directed to give notice hereof by causing
the caption of this Ordinance to be published in the official newspaper of the City of Baytown at
least twice within ten (10) days after passage of this Ordinance.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 23rd day of October, 1997.
/,c,&
PETE C. ALFA O, Mayor
ATTEST:
"E&_e�p /_4/�
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, , City Attorney
c:klh66 \CityCounci I1 Ordinance\ Cablc Rep IatoryOrdinance Tina] Cab] cOrdinancc. 102397CIean
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