Ordinance No. 8,172980122 -1
ORDINANCE NO. 8172
AN ORDINANCE GRANTING TO TCI CABLEVISION OF TEXAS, INC.,
THE PRIVILEGE AND FRANCHISE TO CONSTRUCT, MAINTAIN AND
OPERATE WITHIN THE CITY OF BAYTOWN, TEXAS, A CABLE SYSTEM
FOR THE PURPOSE OF DELIVERING .CABLE SERVICE AND IN
FURTHERANCE THEREOF, TO ENTER UPON, ERECT, CONSTRUCT,
MAINTAIN, EXTEND, REPAIR, REPLACE AND REMOVE IN ANY AND
ALL OF THE PRESENT AND FUTURE PUBLIC WAYS OF THE CITY OF
BAYTOWN; PRESCRIBING THE CONDITIONS GOVERNING THE
OPERATION OF THE CABLE SYSTEM INSOFAR AS IT AFFECTS THE
USE OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH CABLE
SYSTEM, PRESCRIBING RULES AND REGULATIONS GENERALLY FOR
THE OPERATION OF SUCH CABLE SYSTEM UNDER THIS FRANCHISE;
PROVIDING FOR THE ACCEI' -FANCE OF THIS FRANCHISE BY THE
COMPANY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the Franchise Agreement (this "Franchise ") is between the City of Baytown,
Texas, hereinafter referred to as "Franchising Authority" and TCI Cablevision of Texas, Inc.,
hereinafter referred to as "Company "; and
WHEREAS, Company has requested renewal of its Franchise for the privilege of using
the Franchising Authority's Public Ways for the purpose of constructing, maintaining and
operating a Cable System to deliver Cable Service to Subscribers within the city limits of the
Franchising Authority who desire such service, and it is the opinion of the governing body of the
Franchising Authority that the granting of said Franchise under the terms and conditions
hereinafter set forth would be advantageous to the citizens of the City of Baytown, Texas; and
WHEREAS, Company has agreed to comply with the provisions of Ordinance No. 8113
of the City of Baytown, attached hereto as Attachment "A" ( "Cable Ordinance ") and
incorporated in this Franchise by this reference for all intents and purposes; and
WHEREAS, Company has proposed to upgrade the existing Cable System facilities and
to provide other benefits to the Franchising Authority, its residents and the Subscribers; and
WHEREAS, City hereby finds that it would serve the public interest to renew the
Franchise of Company and C0111pany voluntarily agrees to accept a Franchise under these
conditions; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
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SECTION 1
Definition of Terms
1.1 In General. For the purpose of this Franchise, the definitions .set forth in the Cable
Ordinance shall govern, unless it is apparent from the context that it has a different
meaning or unless such, word is specifically defined herein. Additionally, the following
terms, phrases, words and abbreviations shall have the meanings ascribed to them herein.
When not inconsistent with the context, words in the plural number include the singular
number, and words in the singular number include the plural number. The word "shall"
is always mandatory and not merely directory.
1.2 Terms.
1.2.1 "Company" means TCl Cablevision of Texas, Inc., or the lawful successors,
transferees or assignees thereof.
1.2.2 "Franchising Authority" means the City of Baytown, Texas, by and through its
governing body the City Council, its lawfiil successors, transferees or assignees
thereof
1.2.3 "Service Area" means the present municipal boundaries of the Franchising
Authority, and shall inCIUde any additions thereto by annexation or other legal
means.
SECTION 2
Grant of Authority to Operate
2.1 Grant. In consideration of its compliance with the terms agreed to between the
Company and the Franchising Authority, the Franchising Authority hereby grants to the
Company a non - exclusive .Franchise which authorizes the Company to install, construct,
operate, maintain, reconstruct and expand a Cable System in Public Ways within the
Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct,
maintain, or retain in Public Ways such poles, wires, or other Cable System equipment as
may be necessary for the proper operation of the Cable System; and in addition, so to use,
operate and provide similar facilities or properties rented or leased from other Persons,
including, but not limited to, any public utility or other Person franchised or permitted to
do business in the Service Area. This Franchise shall constitute both a privilege and an
obligation to provide the Cable System as required by the provisions of the Cable
Ordinance and this Franchise. The 1,ranchising Authority reserves the right, at its sole
discretion, to grant Franchises under the terms of the Cable Ordinance and approve
Franchises to other Cable Operators, subject to the equal protection requirements in
Section 20.2 herein.
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2.2 Term.. This grant of authority shall be for an initial term of ten (10) years-commencing
on the .effective date of this Franchise as set forth below, unless otherwise lawfully
terminated in accordance with the terms of this Franchise.
SECTION 3
Controlling Authorities
3.1 Compliance with Applicable Laws and Ordinances. The Company shall conform to
all applicable laws, rules, and regulations of the United States, the State of Texas, and the
Franchising Authority in the construction and operation of any of its Cable System
governed by this Franchise. The Company agrees that it shall at all times during the term
of this Franchise be subject to all lawful exercise of the police power of the Franchising
Authority and to the lawful right of the Franchising Authority to maintain control over its
Public Ways, and to such reasonable and nondiscriminatory regulations as the
Franchising Authority shall hereinafter provide. The police power of the Franchising
Authority may be exercised through amendment of the Cable Ordinance as well as
through enactment of separate ordinances and regulations. In the event of conflict
between the Cable Ordinance as of the effective date of this Franchise and this Franchise,
this Franchise shall control. However, in the event of a conflict between any amendment
to the Cable Ordinance and this Franchise, the amendment(s) shall control if exercised in
accordance with the lawful police power of the Franchising Authority or if related to the
Franchise fee rate unless preempted by federal law or regulation. Nothing herein shall be
construed as waiving the Company's rights to challenge any subsequent amendment to
the Cable Ordinance as contrary to any contractual or other right of the Company
contained in this Franchise. Furthermore; the Company shall not be excused from
complying with any of the requirements of this Franchise, or any subsequently adopted
amendments to this Franchise, by any failure of the Franchising Authority on any one (1)
or more occasions to seek or insist upon compliance with such requirements or
provisions.
3.2 Company's Rules. The Company shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be
reasonably necessary to enable the Company to exercise its rights and perform its
obligations under this Franchise, and to assure Cable Service to each and all of the
Subscribers. Provided, however, that such rules, regulations, terms and conditions shall
not be in conflict with the provisions hereof or with any applicable laws, rules and
regulations of the City of Baytown, the Counties of Harris and Chambers, the State of
Texas, or the United States, its bureaus, agencies and commissions.
3.3 Conflict with Federal Communication Commission ( "FCC ") Regulations. The
Company shall at all times operate in accordance with the rules and regulations of the
FCC. In the event there should be a conflict between any of the provisions of this
Franchise and the rules and regulations of the FCC, then the rules and regulations of the
FCC shall control.
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SECTION 4
Reservation of Franchising Authority's Rights
4.1 The Franchising Authority reserves the right to adopt and incorporate by reference
herein, such applicable terms, conditions or regulations as it shall find reasonably
necessary in the lawful exercise of its police powers in accordance with Section 3.1.
4.2 This Franchise is subject to the right of the Franchising Authority:
4.2.1 To revoke or cancel this Franchise for failure to comply with the material and
applicable provisions of this Franchise, the Cable Ordinance or any other local,
state or federal laws, or FCC rules or regulations in accordance with Section 18
below and Section 16 of the Cable Ordinance;
4.2.2 To require proper and adequate service and maintenance of the Cable System at
the highest practicable and commercially feasible standard of efficiency, and
specifically -to require extension of Cable Service to Subscribers in accordance
with the line extension policy requirements set out in Section 7.4 of the Cable
Ordinance;
4.4.3 To prevent unjust discrimination in service or rates;
4.4.4 To require reasonably continuous Cable Service to Subscribers in accordance with
the terms of this Franchise throughout the entire term thereof;
4.4.5 To impose such other lawful and nondiscriminatory regulations as may be
determined by the Franchising Authority to be conducive to the health, safety, and
welfare of the public and the Franchising Authority;
4.4.6 To control and regulate the use Of its Public Ways to the extent allowed by law;
4.4.7 To install and maintain without charge its own equipment upon the Company's
poles and conduits upon the conditions that (a) the Franchising Authority's
equipment shall not interfere with the current or future operations of the
Company; (b) such use is restricted to non - commercial municipal purposes; and
(c) the Franchising Authority does not use the poles or conduits for any purpose
that is in direct competition with any Cable Service offered by the Company
pursuant to this Franchise;
4.4.8 To inspect, through its appropriately designated representative, all construction or
installation work performed subject to the provisions of this Franchise and the
Cable Ordinance and make such inspections as it shall find necessary to ensure
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compliance with the terms of this Franchise, the Cable Ordinance and other
-.pertinent provisions of law;
4.4.9 To require the Company upon the expiration of the term of this Franchise and
non- renewal -- thereof or upon its lawful termination or-cancellation as -provided
herein or in the Cable Ordinance and subject to Section 627 of the Cable Act, to
remove at its own expense any and all visible, portions of the Cable System from
the Public Ways within the Service Area as designated by the Franchising
Authority in accordance with Sections 8.11, 8.12 and /or 8.13 of the Cable
Ordinance. To this accomplishment, if necessary, the City Manager of the
Franchising Authority may, make a claim on the Letter of Credit prescribed
hereinbelow, in accordance with Section 14.2 of the Cable Ordinance.
SECTION 5
Commitments by Company
5.1 -The Company accepts and agrees to all of the provisions of the Cable Ordinance and the
obligations imposed upon it thereby, to the same degree and extent as if each and every
such provision were repeated herein and irrespective of whether any such provision be so
repeated, subject to the limitations in Section 3.1.
5.2 The Company recognizes and acknowledges the right of the Franchising Authority to
make reasonable amendments to the Cable Ordinance, subject to the limitations in
Section 3.1.
5.3 Cable Service shall be extended and provided at standard rates and charges upon request
of any potential Subscriber, in accordance with the line extension policy in Section 7.4 of
the Cable Ordinance.
5.4 The Company agrees to use its best efforts, at its own expense, to actively and diligently
conduct the prosecution of all applications to the FCC or other governmental regulatory
bodies necessary to permit continuation and extension of its operations in accordance
with this Franchise and the Cable Ordinance.
5.5 The Company waives any right to claim confidential, privileged or proprietary rights to
any and all reports, documents, flings, correspondence or any other matter submitted to
the Franchising Authority pursuant to this Franchise or the Cable Ordinance unless (1)
such confidential rights are determined to be confidential by law or by practices of
federal or state agencies and (2) the Company marks "CONFIDENTIAL" on each page
in which it believes is confidential by law. The Company, however, understands and
acknowledges that should the Franchising Authority receive a public information request
for such documents, the Franchising Authority shall submit the requested documents to
the Texas Attorney General and notify the Company that it has or will be doing so. The
Franchising Authority will have no further responsibility regarding the determination of
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whether the documents contain public information; for the Company agrees that it will be
solely -responsible _and obligated to prove to the Texas. Attorney General that the
documents submitted are not subject to disclosure to the public. Both the Franchising
Authority and the.Company agree that it will comply with the decision of the Texas
Attorney General regarding the release of the requested information.
SECTION 6
Technical Requirements
6.1 Existing System Capacity to Continue. It is agreed that the Company shall continue to
provide, at minimum, the capacities and channels actually being provided as of the
effective date of this Franchise, and shall be in accordance with the technical standards
contained in Part 76 of the FCC's Rules and Regulations.
6.2 Additional Video Programming Services. On or before thirty -six (36) months from the
effective date of this Franchise, the Company shall have a Cable System capable of
providing at least seventy -fve (75) full -time video programming services available to all
Subscribers. The technical manner in which the additional video programming services
are made available is within the sole discretion of the Company, as long as the technical
performance standards required by this Franchise and the Cable Ordinance are
consistently maintained.
6.3 Parental Control Option. The Company shall make available at no cost or at a
reasonable cost a parental control option (filters or other appropriate devices) to
Subscribers requesting the capability of removing objectionable video and audio
programming from the Cable Service. The availability of this option shall be publicized
at least once each year by the Company through the use of a written notice mailed to all
Subscribers.
6.4 Stereo Availability. The Cable System shall offer and make available stereo audio as
part of all of the television broadcast signals delivered to Subscribers provided that those
signals are available for reception as stereo audio signals at the Company's headend.
6.5 Signal ingress Protection. The Company shall take all steps necessary to eliminate
interference visible to Subscribers, which interference is caused by among other things
signal ingress at the Company's headend, trunk and distribution system or other facilities
from either natural sources or from equipment of licensees of the FCC operating in
compliance with their authorizations.
6.6 Internet Access. Should the Company offer high -speed Internet access as a Cable
Service within the Service Area; the Company shall provide free of charge one cable
modem, installation of the cable modem, an ethernet card, and any software necessary for
access to such service, plus monthly service to each public school within the Service
Area as and when requested in writing by the City Manager, assuming the school
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qualifies for a standard installation as defined in Section 7.5.1. of the Cable Ordinance.
The..Company.sllall also provide one cable modem, an ethernet card, related software and
monthly service to the offices of the City Managerand the City Attorney upon written
request of the City Manager. The schools and the City shall be responsible for supplying,
maintaining, updating and replacing as necessary any other hardware, such as a personal
computer, required for access to such service. The City agrees to take reasonable
precautions to prevent the illegal and /or improper use of such service within the offices of
the City. Such access shall be provided within thirty (30) days of a written request by the
City Manager.
Further, the Company shall not be obligated to provide such service to any school unless
the school agrees to take reasonable precautions to prevent any inappropriate or illegal
use of such service.
6.7 Standby Power. The Company shall come into compliance with the standby
power supply requirements of Section 7.7 of the Cable Ordinance within thirty -six (36)
months of the effective date of this franchise.
SECTION 7
Service to be Provided to Subscribers
7.1 General Provision of Cable Service Throughout Service Area. The Company shall
provide the opportunity for all residents in existing dwelling units and apartment
complexes within the present corporate limits of the City of Baytown to subscribe to
Cable Service, subject to the standard installation and line extension provisions contained
in Section 7.4 and 7.5 of the Cable Ordinance, and subject to the limitations of Section
7.3 of this Franchise. Nothing herein shall be construed to require the Company to
provide Cable Service to residents Of multiple dwelling units where the owner of such
property will not allow the Company access to the premises on reasonable terms and
conditions. Failure to provide such Cable Service shall be a material breach of this
Franchise.
7.2 Billing Practices, Information and Procedures. The Company shall inform all
Subscribers at time of installation and annually thereafter of complete information
pertaining to billing and collection procedures, procedures for ordering changes in or
termination of services, and refund and credit policies.
7.2.1 Billing procedures shall be as follows:
7.2.1.1 The Company shall bill all Subscribers to its Cable System in a
nondiscriminatory manner, regardless of Subscriber's level of
Cable Service. In no case shall any Subscriber be required to pay
for Cable Services in excess of thirty (30) days prior to receipt of
such Cable Service. No administrative fee for processing of
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delinquent accounts shall be imposed for the first thirty (30) days
following the date of the invoice. The date of the invoice shall be
C011stI-ueCI as the date the invoice is placed in the mail and sent via
first class mail, postage prepaid.
7.2.1.2 The Company shall provide all Subscribers with an itemized
monthly bill which shall be clear, concise and understandable. The
bill shall contain, at a minimum, the following information:
7.2.1.2.1 A list of each service or package received for that billing
period showing individual charges for basic Cable Service,
other tiers of Cable Service, pay -per -view usage and
equipment rental charges;
7.2.1.2.2 The period of time over which said Cable Services are
billed;
7.2.1.2.3 The total charges due for the monthly period, including any
previous balance due; and
7.2.1.2.4 A specific date by which payment is due.
7.3 Disconnection and Termination of Cable Services. The Company shall only
disconnect or terminate a Subscriber's Cable Service for good and just cause. In no event
shall the Company disconnect said Cable Service for nonpayment without the prior
written notification to the affected Subscriber at least ten (10) days prior to such
disconnection or termination. In no event shall such disconnection or termination for
nonpayment occur less than thirty (30) days after a Subscriber's failure to pay a bill due.
Where the Company has improperly discontinued Cable Service to any such Subscriber,
the Company shall provide free reconnection to the Cable System to such Subscriber
within twenty -four (24) hours of being notified by Subscriber.
7.4 Subscriber Surveys on Programming, Service Quality and Operations. Once every
three (3) years, the Company at its expense shall perform a statically significant survey of
its Subscribers to evaluate the Company's performance and seek Subscriber
programming preferences. The Franchising Authority shall be permitted to review the
qualifications of the Person performing the survey, the form as well as the methodology
to be used, and shall also be consulted as to the questions being asked and for any other
suggestions that might assure the quality, fairness and statistical validity of the survey.
Copies of complete survey results shall be given to the City Manager within thirty (30)
days of completion of each survey.
7.5 Notices Given to Subscribers Regarding Complaint Procedures. The Company shall,
in compliance with Section 9.4 of the Cable Ordinance, furnish a notice to Subscribers on
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procedures for receiving Subscriber complaints, said notice to be provided at the time of
. initial subscription and annually thereafter.
7.6 Information Requirements to Subscribers. All information required by the Cable
Ordinance and this Franchise to be sent to Subscribers shall be -provided to the mailing
address listed on all Cable System Subscriber accounts.
7.7 Automatic Termination of Limited Term Premium Offerings. The Company shall
automatically terminate the Subscriber's billing for any limited -term Cable Service
offering at the end of the established promotional period unless (a) the Subscriber has
asked to retain and pay for said Cable Service, or (b) the Subscriber was made aware of
the termination of the offer and the return to the regular price at the time of initial
subscription.
SECTION 8
Services to Local Governmental and Educational Institutions
8.1 Service to Public Buildings and Facilities. The Company shall furnish its Cable
Service free of charge to all public, private and parochial schools as well as to all public
buildings and facilities in the Service Area in accordance with Section 9.1.1 of the Cable
Ordinance.
8.2 Access Channels Required on Cable System. Initially, the Company shall continue to
provide one (1) downstream channel on the Cable System for public, educational and/or
governmental access programming. Upon activation of the additional video programming
services described in Section 6.2 of this Franchise, the Company shall provide up to a
maximum of three (3) downstream channels on the Cable System for the provision of
public, educational, and /or government access programming, subject to the utilization
standards in Section 9.2.3 of the Cable Ordinance. The'City shall determine how the
access channels shall be specifically used (i.e. whether for public, educational, or
governmental use or sore mix thereof), and shall administer the policies and procedures
governing use and programming of the channels.
8.3 Program Origination Capability at Public Facilities. Live program origination
capability shall be provided by the Company to two public facilities to be designated by
the Franchising Authority within six (6) months of written notice by the Franchising
Authority to the Company of the selected buildings. The specific sites selected must be
within one hundred twenty -five (125) feet of an available tap of the Cable System, or the
Franchising Authority agrees to pay the direct cost of labor and materials necessary to
extend the Cable System beyond one hundred twenty -five (125) feet to the building. The
obligation of the Company herein is only to extend the Cable System facilities to
accommodate a live origination feed, not to provide cameras, audio equipment,
modulators, demodulators, or any other eduiprcnt necessary to generate the signal.
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8.4 - Franchise, Grant, Government and Educational Access Facilities. In order -to assist
the - Franchising Authority in acquiring and /or updating its video production and-cable
_ casting equipment, the Company agrees to provide a grant of up to fifty thousand dollars
($50;000) to the Franchising Authority for such purpose. Such grant shall be made
available to the Franchising Authority within'-one hundred twenty (120) days of the
Company's receipt of a written request, detailing the proposed equipment to be purchased
with the grant monies.
8.5 Emergency Use. The Company shall comply with Section 9.1.2 of the Cable Ordinance
regarding emergency alert systems.
8.6 Institutional Network. Upon written request of the City Manager, the Company agrees
to assist the Franchising Authority, Goose Creek Consolidated Independent School
District and Lee College in the evaluation of the creation of an Institutional Network that
would interconnect specific government buildings and /or school buildings for the
transmission and receipt of voice, data, video and other communications between specific
points in the discrete network within the Service Area. The Company further agrees that
if such an Institutional Network is constructed', the Company's charges to the
Franchising Authority for the use of such network shall be at comparable rates and on
similar terms and conditions as that offered by the Company to other educational and
municipal users in the State of Texas for similar services. Nothing herein should be
construed as a requirement for the Company to construct an Institutional Network
without fair reimbursement of the capital cost to provide such facilities.
SECTION 9
Compliance and Monitoring Testing
9.1 Semi - Annual Testing Performed by the Company. The Company agrees to conduct
the technical performance tests required semi - annually by the FCC and provide copies of
the test results to the Franchising Authority, upon written request by the City Manager.
SECTION 10
Customer Service Reports
10.1 Customer Service Reports. Customer Service Reports as required in Section 11.2 of the
Cable Ordinance shall be filed with the Office of the City Clerk when requested in
writing by the City Manager, provided such request shall be made no more than four (4)
times annually.
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SUCTION 11
Financial and Operational Reports and Audits
11.1 Annual Financial and Operational Report. Annual financial and operational reports
shall be filed as required in Section I 1 of the Cable Ordinance.
SECTION 12
Franchise Fee
12.1 During the term of this Franchise, the Company shall pay the Franchising Authority in
accordance with Section 3.3.2 of the Cable Ordinance for the use of its Public Ways, as
well as maintenance, improvements to and supervision thereof by the Franchising
Authority, a Franchise fee in an amount equal to a percentage of its annual Gross
Revenues in accordance with the following table:
Year of Franchise
Percentage
2
3%
3
3%
4
4%
5
4%
6
4%
7
5%
8
5%
9
5%
10
5%
For example, the Company shall pay the Franchising Authority a Franchise fee in an
amount equal to four percent (4 %) of its annual Gross Revenues during the fifth (5`h) year
of this Franchise and a Franchise fee equal to five percent (5 %) of its annual Gross
Revenues during the eighth (8 "') year of this Franchise.
12.2 Nothing contained in this Franchise shall be construed to limit the authority of the
Company to make payments in support of the use of community programming,
educational or governmental channels. However, in no event shall any payment for staff
support for community, education and govern -rnent channels be considered in the
calculation of the Franchise fees 1- myable to the Franchising Authority.
SECTION 13
Insurance, Letter of Credit and Bonds
13.1 Insurance Requirements. The Company shall maintain at all times insurance as
required in Section 6 of the Cable Ordinance and shall file with the City Attorney's office
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Certificates of Insurance evidencing the required coverage. The Company shall maintain
at all.times the capability to poly any amount which may be .deducted from insurance
claim payments pursuant to the tt;rms of the Company's insurance policy.
13.2 Letter of Credit. The Company shall maintain with - the. - Franchising Authority an
irrevocable Letter of Credit as described in Section 14 of the -Cable Ordinance, in the
amount of fifty thousand dollars ($50,000). The Letter of Credit shall be used to ensure
the faithful performance of all provisions of this Franchise and the Cable Ordinance and
shall be attached to and made a part of this Franchise.
SECTION 14
Customer Service Standards
14.1 General. The Company shall immediately initiate and conform its customer service
activities to be in compliance with the Customer Service Standards set forth in §76.309 of
the Rules and Regulations issued by the FCC. The Company, at a minimum, shall also
comply with the following local requirements:
14.1.1 Telephone Listing. A telephone number served through a toll free number in a
Baytown directory shall be obtained by the Company along with a directory
listing which includes the address of the local office.
14.1.2 Telephone Hours. The Company shall staff the local toll -free number for in
coming calls from Subscribers with live service representatives at least between
the hours of 9 a.m. to 7 p.m. Monday through Friday, and 9 a.m. to 5 p.m. on
Saturdays. During those hours when live service representatives are not available,
the Company will provide either an answering service or automated recording
machine so that Subscribers can leave messages. The Company will respond to
all non - emergency messages the following business day. The Company will also
monitor the messages so that Cable System outages and other emergencies can
and will be responded to immediately.
14.1.3 Local Office. The Company shall provide a Local Area Office which is capable
of assisting Subscribers in the Illanner described in Section 9.4 of the Cable
Ordinance, which is either within the City, or no further than five (5) miles from
the City limits. This office shall at least be open from 9 a.m. to 5 p.m. Monday
through Friday, and for at least four (4) hours on Saturday, and at least one (1)
evening until 7 p.m. during the week.
14.1.4 Repair Response. Response to isolated reports of Subscriber Cable Service
outages shall occur withill twenty -four (24) flours, seven (7) days per week,
II1Cludlllg holidays. All other isolated Cable Service problems shall be responded
to within thirty -six (36) hours of the Subscriber's call, excluding Sundays and
is holidays. Outage reports affecting at least three (3) Subscribers in the same
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general area-shall be responded to within one (1) hour of the third (3rd) report of
.. the incident if it is received between 8:00 a.m. and 5:00 p.m., or within four (4.)
hours, if received between 5:00 p.m. and 8:00 a.m.
15.1
14.1.5 Credits. The Company shall issue one day's credit for each period of four (4) or
more Consecutive hours, occurring in a period of twenty -four (24) consecutive
hours, when a service InLerrupt1011 OCCUPS, computed from the time the Grantee
receives notice of a service interruption from any Subscriber affected by a service
interruption. Credit shall be provided for the specific services affected by the
service interruption. No credit shall be given for any service interruption caused
by a Subscriber or his /her equipment. Further, a Subscriber requesting credit
must afford the Company the opportunity to verify the service interruption and
correct it, including allowing access to his /her premises as necessary.
SECTION 15
Defense and Indemnification
It is expressly understood and agreed that the Company shall defend, indemnify
and save harmless the Franchising Authority, its officers, boards, commissions,
agents and employees to the extent provided in Section 6 of the Cable Ordinance.
SECTION 1.6
Construction Bond
16.1 At least fifteen (15) days prior to the time when the Company undergoes reconstruction
of its Cable System, the Company shall furnish and maintain a construction bond in the
amount as reasonably determined by the City Manager, which amount shall not exceed
the sum of two hundred thousand dollars ($200,000), in the form required in Section 6.9
of the Cable Ordinance.
SECTION 17
Liquidated Damages
17.1 Liquidated Damages. The Company understands and agrees that failure to comply with
certain time and performance requirements as stipulated in this Franchise or the Cable
Ordinance will result in damage to the Franchising Authority, and that it is and will be
impracticable to determine the actual amount of such damage in the event of delay or
nonperformance; therefore, the parties hereby agree to the liquidated damages specified
below. Prior to the imposition of the liquidated damages, the Franchising Authority shall
give notice and an opportunity to cure in accordance with Sections 14 and 15 of the Cable
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Ordinance. if the Company fails to cure after following such procedures, then the
following amounts may be chargeable to the Letter of Credit for the following concerns:
17.1.1. .Failure to provide the additional video programming services in
accordance with Scction 6.2 of this Franchise, unless the City Council by
resolution specifically approves the delay; the Company shall pay two
hundred and fifty dollars ($250) per day for each day, or part thereof, the
delinquency continues;
17.1.2 Failure to provide, within a reasonable time period following a written
request, data, documents, reports or information; the Company shall pay
fifty dollars ($50) per clay for each day, or part thereof, that each violation
occurs or continues:
1713 Failure to test, analyze and report on the technical performance of the
Cable System as required herein and in the Cable Ordinance; the
Company shall pay fifty dollars ($50) per day for each day, or part thereof,
that such noncompliance continues;
17.1.4 Failure to provide Cable Service to schools and municipal facilities as and
when required by Section 9. 1.1 of the Cable Ordinance and Section 8.1 of
the Franchise and/or Internet access as required in Section 6.6 of the
Franchise, unless the City Council specifically approves a delay or change
or the Company has obtained modification of its obligation; the Company
shall pay fifty dollars ($50) per day for each day, or part thereof, that each
noncompliance continues;
17.1.5 Thirty (30) days following adoption of a resolution by the City Council
determining a failure of the Company to comply with operation,
maintenance or technical standards, the Company shall pay five hundred
dollars ($500) per day for each day or part thereof, that such
noncompliance continues;
17.1.6 for breach of any customer service standard, as set forth in Section 14
above, the Company shall pay two hundred and fifty dollars ($250) per
day for each day, or part thereof, that such noncompliance continues;
17.1.7 Failure to pay to the Franchising Authority any Franchise Fees, taxes,
liens or other fees after ten (10) days written notice of delinquency, five
hundred dollars ($500) per day each day, or part thereof, that each
violation occurs or continues;
17.1.8 Failure of the COMIX111y to pay the Franchising Authority, after ten (10)
clays notice, any amounts clue and owing to the Franchising Authority by
reason of the uulenlnity provision of Section 6 of the Cable Ordinance;
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failure of the Company to pay to the Franchising. Authority any liquidated
damages due and owing to the Franchising Authority; failure to make any
payment required by this Franchise not named in Section 17.1.7 within the
time fixed therein- the Company shall pay five hundred dollars ($500) per
day for each -day, or part thereof, such noncompliance occurs; and
17.1.9 Failure to pay to the Franchising Authority within ten (10) working days
after receipt of written notice from the Franchising Authority, any
damages, claims, costs or expenses which the Franchising Authority has
been compelled to pay or incur by the reason of any material act or default
by the Company; the Company shall pay five hundred dollars ($500) per
day for each day, or part thereof, that each noncompliance occurs
17.1.10 Failure to provide the institutional network as required in Section 8.6 of
the Franchise, unless the City Council specifically approves a delay or
change or the Company has obtained modification of its obligation; the
C0111pany shall pay three llrindred dollars ($300) per day for each day, or
part hereof, that each noncompliance continues.
17.1.11 Ten (10) clays following adoption of a resolution by the City Council
determining the failure of the Company to comply with any material
provisions of this Franchise or Cable Ordinance which the Franchising
Authority determines can be remedied by a cash expenditure; the
Company shall pay three hundred dollars ($300) per day for each day, or
part thereof, that each noncompliance occurs.
SECTION 18
Enforcement and Termination of Franchise
18.1 In addition to all other rights and powers retained by the Franchising Authority, the
Franchising Authority reserves the right to terminate, revoke or cancel this Franchise and
all rights and privileges of the Company in the event of a material breach of its terms and
conditions all as provided in Section 16 of the Cable Ordinance.
SECTION 19
Representations and Warranties
19.1 The Company hereby warrants, represents, acknowledges, and agrees that at or before the
effective date of this Franchise, it shall submit to the Franchising Authority an
appropriate document evidencing its warranties that, as of the effective date of this
Franchise:
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19.1.1 The Company is duly organized; validly existing, and in good standing under the
laws of the State of Texas,-
19.1.2 The Company has, the requisite power and authority under applicable-law and its
-by -laws and articles of incorporation or other organizational documents, is
authorized by resolutions of its Board of Directors or other governing body, and
has secured all consents which are required to be obtained as of the effective date
of this Franchise, to enter into and legally bind the Company to this Franchise and
to take all actions necessary to perform all of its obligations pursuant to this
Franchise:
19.1.3 The Company guarantees that, at the present time and in its best knowledge of the
foreseeable fiiture, it is financially able to perform all commitments made in this
Franchise;
19.1.4 The Franchising Authority upon accepting this Franchise does so relying upon its
own investigation and understanding of the power and authority of the
Franchising Authority to grant the Franchise;
19.1.5 The Company has carefully read the terms and conditions of this Franchise and
the Cable Ordinance and is willing to and does accept all of the risks of the
meaning of such terms and conditions;
19.1.6 To the best of its knowledge, there is no action or proceedings pending or
threatened against the Company which questions its performance under this
Franchise;
19.1,7 Insofar as the legal capacity of the Company to carry out any obligation pursuant
to this Franchise is concerned, the execution of and performance pursuant to this
Franchise will not result in the breach or violation of any provision of the articles
of incorporation or by -laws of the Company or of any statute, regulation,
agreement, judgment or decree to which it is subject;
19.1.8 None of the officers, directors, general partners or managers of the Company has
any ownership interests that would be in violation of section 613 of the Cable Act;
19.1.9 The Company enters into this Franchise willingly and without coercion, undue
influence or duress, has not misrepresented or omitted material facts, has not
entered into this Franchise with the intent to act contrary to their provisions, and
represents and warrants that, so long as it operates the Cable System, it will be
bound by the terms and conditions of this Franchise and the Cable Ordinance,
subject to applicable state and federal law; and
19. 1.10 The Company by acceptance of this Franchise acknowledges that it has not been
induced to enter into this Franchise by any understanding or promise or other
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statement whether oral or written by or on behalf of the Franchising Authority or
by any other Person concerning any term or condition of this Franchise not
expressed herein or in the Cable Ordinance.
SECTION 20
Miscell.ineous Provisions
20.1 Actions of Parties. In any action by the Franchising Authority or the Company that is
mandated or permitted under the terms hereof, such party shall act in- a reasonable,
expeditious and timely manner. Furthermore, in any instance where approval or consent
is required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
20.2 Equal Protection. In the event the Franchising Authority enters into a Franchise,
permit, license, authorization, or other agreement of any kind with any other Person other
than the Company to enter In the Franchising Authority's Public Ways for the purpose of
constructing or operating a Cable System for providing Cable Service to any part of the
Service Area, the material provisions thereof shall be reasonably comparable to those
contained herein, in order that one operator not be granted an unfair competitive
advantage over another, and to provide all parties equal protection under the law.
20.3 Filing Requirements. When not otherwise prescribed herein, all matters herein required
to be filed with the Franchising Authority shall be filed with the City Manager.
20.4 Force Majeure. With respect to any provisions of this Franchise or the Cable
Ordinance, the violation of or noncompliance with which could result in the imposition of
a financial penalty, liquidated damages; forfeiture or other sanction upon the Company,
such violation or noncompliance shall be excused where such violation or noncompliance
is the result of Acts of God, war, civil disturbance, strike or other labor unrest or similar
events, the occurrence of which was not reasonably foreseeable by Company and is
beyond its reasonable control.
20.5 Notice. Unless expressly otherwise agreed between the parties, every notice or response
required by this Franchise to be served upon the Franchising Authority or the Company
shall be in writing, and shall be deemed to have been duly given to the required party on
the day it is hand - delivered with a signature of receipt, or five (5) business days after
having been posted in it properly sealed and correctly addressed envelope and sent by
certified or registered mail; postage prepaid.
The notice or responses to the Franchising Authority shall be addressed as follows:
City of Baytown
Attn: City Manager
2401 Market Street
P.O. Box 424
® Baytown, TX 77522
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980122 -1q.
The notices or responses to the Company shall be addressed as follows:
TCl Cablevision of Texas, Inc.
Attn: General Manager
4201 FM 1960 West
Houston, "I-X 77060
The Franchising Authority and the Company may designate such other address or
addresses from time to time by giving at least thirty (30) days written notice to the other.
20.6 Amendments. This Franchise may be amended at any time by the mutual written
agreement of the Franchising Authority and the Company. The parties expressly agree to
all such amendments which affect the Franchise fee rate as well as those amendments
pertaining to the lawful exercise of the Franchising Authority's police powers.
20.7 Descriptive Headings. The captions to Sections contained herein are intended solely to
facilitate the reading thereof. Such captions shall not affect the meaning or interpretation
of the text herein.
20.8 Severability. If any section, sentence, paragraph, term or provision hereof is determined
to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any
state or federal regulatory authority having jurisdiction thereof, such determination shall
have no effect on the validity of any other section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the term of this Franchise, or
any renewal or renewals thereof.
20.9 Acceptance.
20.9.1 Company shall, within sixty (60) clays from the date of the final passage of this
Franchise by the City Council of the City of Baytown, file with the City Clerk of
Baytown a written statement signed in its name and behalf by an officer of the
Company duly authorized by its Board of Directors in the following form:
The Honorable Mayor and the City Council of the City of Baytown:
TCI Cablevision of Texas, Inc., for itself, its successors, and
assigns, hereby accepts the attached franchise finally passed by the
City Council of Baytown, the day of
19_, and agrees to be bound by all of
its terms and provisions.
By:
Officer
Dated:
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20.9.2 Along with the acceptance document mentioned in Section 20.9.1, the Company
shall tender to the City N /lanager the warranty document required in Section 19
above together with the Letter of Credit and Certificate of Insurance required.
Such acceptance shall be acknowledged by the Company before a Notary Public,
and shall in form and content be satisfactory to and approved by the City
Attorney.
20.10 Effective Date.
20.10.1 This Franchise shall be read at three (3) separate regular meetings of the
City Council and shall not be finally passed until at least thirty (30) days
after the first reading and shall not take effect until sixty (60) days after its
final passage, provided that the Company accepts the obligations under
this Franchise within such sixty (60) day period, and agrees and accepts all
of the terms herein in the manner provided, and pending such time, the full
text of this Franchise shall be published once each week for four (4)
consecutive .weeks in The Baytoivn Sun and expense of such publication
shall be borne by the Company.
20.10.2 This Franchise shall not become effective unless and until all provisions
required in this Section 20 are done and completed. All of such provisions
being hereby declared to be conditions precedent to the effectiveness of
this Franchise granted hereunder. In the event any such provisions are not
done and completed in the time and manner required, this Franchise shall
be null and void.
INTRODUCED, READ, AND PASSED on the FIRST READING by the City Council of
the City of Baytown, Texas, this the 22 "" day of January, 1998.
ATTEST:
EILEEN P. HALL, City Clerk
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O,A C a- �j
PETE C. ALFAR4, Mayor
980122 -1s
APPROVED AS TO FORM:
•
ACIO RAMIREZ, SR., Attorney
INTRODUCED, READ, AND PASSED on the SECOND READING by the City
Council of the City of Baytown, Texas, this the 12`I' day of February, 1998.
ZJA c g4jA
PETE C. ALFAR , Mayor
ATTEST:
3� " J /' -&" , " �
EILEEN P. HALL, City CIerk
APPROVED AS TO FORM:
Pi R r, 4", . •. w 4y ttorticy
INTRODUCED, READ, AND PASSED on the THIRD READING by the City Council
of the City of Baytown, Texas, this the 26`x' clay of February, 1998.
ATTEST:
i�
EILEEN P. HA11-L, City Clerk
APPROVED AS TO FORM:
ck7ACIO RAMIREZ, S Ity Attorney
0
c:klh67\ Contracts \CablcFranchisc \'rC1 Finril Fruichisc. 1201970can
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PETE C. ALFARO, Mayor
44,.. 11/
•
FRANCHISE ACCEPTANCE \\\
The Honorable Mayor and the CityCouncil of the Cityof Baytown:
Y Yt
TCI Cablevision of Texas, Inc. for itself, its successors, and assigns, hereby accepts the attached
Franchise finally passed by the City Council of Baytown, the 26th day of Feb , 9 8, d
agrees to be bound by all of its terms and provisions.
By:
Richard E. Franklin
President
Dated: April 6, 1998
STATE OF Colorado ,)
) ss.
COUNTY OF Denver )
This instrument was acknowledged before me on April 6 , 1998
by Richard E. Franklin as President 2
of TCI Cablevision of Texas, Inc.
Given under my hand and seal of office
My commission expires 9-5 00
is Notary Publ'c
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REPRESENTATIONS AND WARRANTIES
I hereby represent and warrantee that as of this date:
TCI Cablevision of Texas, Inc. ("Company") is duly organized, validly existing, and in good standing
under the laws of the State of Texas;
The Company has the requisite power and authority under applicable law and its by-laws and articles of
incorporation or other organizational documents, is authorized by resolutions of its Board of Directors or
other governing body, and has secured all consents which are required to be obtained, to enter into and
legally bind the Company to the attached Franchise and to take all actions necessary to perform all of its
obligations pursuant to this Franchise;
The Company is financially able to perform all commitments made in this Franchise at the present time
and in its best knowledge of the foreseeable future;
The Company accepts this Franchise relying upon its own investigation and understanding of the power
and authority of the Franchising Authority to grant the Franchise;
The Company has carefully read the terms and conditions of this Franchise and the Cable Ordinance and
is willing to and does accept all of the risks of the meaning of such terms and conditions;
To the best of its knowledge, there is no action or proceedings pending or threatened against the -
Company which questions its performance under this Franchise;
Insofar as the legal capacity of the Company to carry out any obligations pursuant to this Franchise is
concerned, the execution of and performance pursuant to this Franchise will not result in the breach or
violation of any provision of the articles of incorporation or by-laws of the Company or of any statute,
regulation, agreement,judgment or decree to which it is subject;
None of the officers, directors, general partners or managers of the Company have any ownership
interests that would be in violation of Section 613 of the Cable Act;
The Company enters into this Franchise willingly and without coercion, undue influence or duress, has
not misrepresented or omitted material facts, has not entered into this Franchise with the intent to act
contrary to its provisions, and represents and warrants that, so long as it operates the Cable System, it
will be bound by the terms and conditions of this Franchise and the Cable Ordinance, subject to
applicable state and federal law; and
The Company by acceptance of this Franchise acknowledges that it has not been induced to enter into
this Franchise by any understanding or promise or other statement whether oral or written by or on
behalf of the Franchising Authority or by any other Person concerning any term or condition of this
Franchise not expressed herein or in the Cable Ordinance.
TCI CAB i. I4 0 INC.tI► • S,
I
Richard E. Franklin, President
Dated: April 6, 1998