HomeMy WebLinkAboutOrd 171 Granting a Franchise Agreement to County Cable Limited PartnershipORDINANCE NO. 171
AN ORDINANCE GRANTING A FRANCHISE TO COUNTY CABLE
LIMITED PARTNERSHIP, AN ARKANSAS LIMITED PARTNERSHIP,
DOING BUSINESS AS PLANNED CABLE SYSTEMS, OF WHICH THE
GENERAL PARTNER IS CABLEVISION MANAGEMENT, INC., AN
ARKANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, TO
OPERATE AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM IN
THE TOWN; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF FRANCHISE; PROVIDING FOR TOWN REGULATION AND
ADMINISTRATION OF THE CABLE COMMUNICATIONS SYSTEM; AND
PRESCRIBING PENALTIES FOR VIOLATION OF THE FRANCHISE
PROVISIONS.
The Board of Aldermen of the Town of Westlake does
hereby ordain as follows:
Section 1 INTENT.
The Town of Westlake finds that the development of cable
television and communications systems has the potential of
having great benefit and impact upon the residents of
Westlake. Because of the complex and rapidly changing
technology associated with cable television, the Town
further finds that the public convenience, safety and
general welfare can best be served by establishing
regulatory powers which should be vested in the Town or such
persons as the Town shall designate. It is the intent of
this ordinance and subsequent amendments to provide for and
specify the means to attain the best possible public
interest and public purpose in these matters and any
franchise issued pursuant to this ordinance shall be deemed
to include this finding as an integral part thereof.
Section 2 SHORT TITLE.
This ordinance shall be known and may be cited as the
"Westlake Cable Communications Ordinance."
Section 3 DEFINITIONS.
For the purposes of this ordinance the following terms,
phrases, words, and their derivations shall have the meaning
given herein. when not inconsistent with the context, words
used in the present tense include the future, words in the
plural number include the singular number, words in the
singular number include the plural number, and the use of
any gender shall be applicable to all genders whenever the
sense requires. The words "shall" and "will" are mandatory
and the word "may" is permissive. Words not defined shall
be given their common and ordinary meaning.
(1) "City" shall mean the Town of Westlake, a
municipal corporation of the State of Texas and all the
territory within its present and future boundaries and
including any area over which the Town exercises
jurisdiction. The Board of Aldermen is authority of the
Town.
(2) "Cable Communications System" or "System," also
referred to as "Cable Television System," "Cable System, "
"CATV System," or "Community Antenna TV System," shall mean
a system of antennae, cables, wires, lines, towers,
waveguides, or other conductors, converters, amplifiers,
headend equipment and facilities designed and constructed
for the purpose of producing, receiving, transmitting,
amplifying and distributing audio, video and other forms of
electronic or electrical signals within the City.
(3) "Franchise" shall mean the right granted through
this ordinance to erect, construct, reconstruct, operate,
dismantle, test, use and maintain a cable communications
system in the City. The franchise awarded by this ordinance
shall be a nonexclusive franchise.
(4) "Franchise Agreement" shall mean an agreement
entitled "Franchise Agreement" entered into between the City
and Grantee which is enforceable by City and Grantee and
which sets forth the rights and obligations between City and
Grantee arising out of the Franchise.
(5) "Grantee" shall mean County Cable Limited
Partnership, an Arkansas limited partnership, of which
Cablevision Management, Inc, an Arkansas corporation, is
general partner, doing business as Planned Cable Systems
Corporation, its agents, employees, lawful successors,
transferees or assignees.
(6) "Grantor" or "City" means the Town of Westlake as
represented by the Board of Aldermen or any delegate acting
within the scope of its jurisdiction.
(7) "Franchise Fees" means any tax, fee or assessment
of any kind imposed by a franchising authority or other
governmental entity on a Grantee solely because of its
status as such. The term "franchise fee" does not include:
(a) Any tax, fee, or assessment of
general applicability (including any
such tax, fee, or assessment imposed on
both utilities and cable operators or
their services but not including a tax,
fee or assessment which is unduly
discriminatory against Grantee;
(b) Capital costs which are required by
the franchise to be incurred by Grantee
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for public, educational and governmental
access facilities;
(c) Requirements or charges incidental
to the awarding or enforcing of the
franchise, including payments for bonds,
security funds, letters of credit,
insurance, indemnification, penalties,
or liquidated damages; or
(d) Any fee imposed under Title 17,
United States Code.
(8) "Gross Revenues" shall mean all cash, credits,
property of any kind or nature or other consideration
received directly or indirectly by a Grantee, its
affiliates, subsidiaries, parents and any other person or
entity in which the Grantee has a financial interest or
which has a financial interest in the Grantee, arising from
or attributable to operation of the Cable Television System
within the City, including, but -act limited tc.
(a) revenue from all charges for
services provided to subscribers of
entertainment and non -entertainment
services (including leased access fees);
(b) revenue from all charges for the
insertion of commercial advertisements
upon the Cable Television system;
(c) revenue from all charges for the
leased use of studios;
(d) revenue from all charges for the
installation, connection and
reinstatement of equipment necessary for
the utilization of the Cable Television
System and the provision of subscriber
and other services; and
(e) the sale, exchange or use or
cablecast of any programming developed
for community use or institutional
users.
"Gross Revenues" shall not include the franchise fee
imposed pursuant to Section 29 and 30 of this Ordinance, nor
any taxes on services furnished by the Grantee which are
imposed directly on any subscriber or user by any city,
state or other governmental unit and collected by the
Grantee for such governmental unit.
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(9) "Initial Service Area" means the area of the City
in which Grantee shall first make cable television service
available as provided in this Ordinance.
(10) "Initial Service Area Map" means the map to be
filed by the Grantee on or before Grantee's acceptance of
this Franchise Ordinance pursuant to Section 43 of this
Ordinance showing the Initial Service Area and shall show
the proposed trunk lines and initial homes for which cable
television service shall be available.
(11) "Leased Access" shall mean the use on a
fee-for-service basis of the Cable Television System by
business enterprises (whether profit, non-profit or
governmental) to render services to the citizens of the City
and shall include without limitation all use pursuant to
Section 612 of the Cable Communications Policy Act of 1984
(47 USC 521 et. seq.)
(12) "Person" means any individual, corporation,
partnership, association, joint venture or organization of
any kind and the lawful trustee, successor, assignee,
transferee or personal representative thereof.
(13) "Subscriber" means any person who legally receives
any one or more of the services provided by the Cable
Communications System.
(14) "Street" shall mean the surface of and the space
above and below any public street, road, highway, freeway,
easement, lane, path, alley, court, sidewalk, parkway, or
driveway now or hereafter existing as such within the City.
Section 4 POLICE POWERS.
Nothing in this ordinance shall be construed as an
abrogation by the City of any of its police powers.
Section 5 GRANT OF AUTHORITY/EFFECTIVE DATE.
(1) There is hereby granted to County Cable Limited
Partnership, an Arkansas limited partnership, doing business
as Planned Cable Systems, whose general partner is
Cablevision Management, Inc., and Arkansas corporation, and
its successors and assigns, hereinafter called "Grantee",
subject to the provisions of sub paragraph (2) hereof, for
the term of fifteen years from September 1, 1988, the right,
privilege and franchise to have, acquire, construct,
reconstruct, maintain, use and operate in, over, under,
along and across the present and future streets, highways,
alleys, bridges, and public ways and places of the City all
necessary or desirable poles, towers, anchors, wires,
cables, electronic conductors, underground conduits,
manholes and other structures and appurtenances necessary
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for the construction, maintenance and operation of a system
and service for receiving, amplifying and/or distributing
television, radio, and other electronic signals, hereinafter
called a "community antenna or cable television system", in
the Town of Westlake, Texas. This Ordinance and all
authority granted herein shall be effective from and after
its passage and approval; provided, all rights contained
herein shall be void if Grantee fails to file an acceptance
as required by Section 43 hereof or if the Initial Service
Area Map is disapproved by the Board of Aldermen Council on
or before thirty (30) days after filing of the map by
Grantee.
(2) Within six months of the effective date of this
Ordinance and at all subsequent times, Grantee shall have
basic and premium cable service available to 100% of the
residential homes and households in the City within the area
shown on the Initial Service Area Map.
(3) Grantee shall at least annually, report in writing
to the Board of Aldermen Council as to those areas within
the Town limits that are not then served by cable television
service. To the extent Grantee can serve all or any portion
of such areas, such area shall be known as Subsequent
Designated Service Area and Grantee shall promptly provide a
map of such area to the Council and shall immediately
commence construction of a cable plant to serve all homes
within such area.
(4) Grantee understands, acknowledges and agrees that
Grantee shall have basic and premium service available for
reception by 100% of all residential homes and households
within each Subsequent Designated Service Areas within one
year from creation of such area and that upon failure of
Grantee to have provided such service, the then existing
Board of Aldermen of City shall have the right under this
Agreement and this provision to cancel this Franchise upon
sixty (60) days written notice to Grantee.
Section 6 AUTHORITY FOR USE OF STREETS.
(1) For the pur^c3es t ,--erat®ng and maintaining a
Cable Communications System in City, Grantee may erect,
install, construct, repair, replace, reconstruct and retain
in, on, over, under, upon, across and along the streets
within City such lines, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are
necessary and apparent to the operation of the Cable System,
provided that all applicable permits are applied for and
granted, all fees paid and all other City codes and
ordinances are otherwise complied with.
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(2) Prior to construction or material alteration,
Grantee shall in each case file plans with the City and all
affected utility companies. Grantee shall provide a monthly
progress report to City through the completion of
construction or alteration.
(3) Grantee shall construct and maintain a Cable
Communications System so as not to interfere with other uses
of streets. Grantee shall make use of existing poles and
other facilities available to Grantee. Grantee shall
individually notify all residents affected by proposed
construction prior to the commencement of that work.
(4) Notwithstanding the above grant to use streets, no
street shall be used by Grantee if City, in its sole
opinion, determines that such use is inconsistent with the
terms, conditions or provisions by which such street was
created or dedicated, or presently used. The City reserves
the right to disapprove any proposed construction or
alteration provided such disapproval is in writing and
provided to Grantee within five (5) days of filing with the
City. The City shall not act unreasonably in any such
disapproval.
Section 7 CONDITIONS ON STREET OCCUPANCY.
(1) All transmissions and distributions structures,
lines, and equipment erected by the Grantee within the City
shall be so located as to cause minimum interference with
the proper use of streets, alleys, and other public ways and
places, and to cause minimum interference with the rights
and reasonable convenience of property owners who join any
of the said streets, alleys or other public ways and places.
(2) In case of disturbance of any street, sidewalk,
alley, public way, or paved area, the grantee shall, at its
own cost and expense and in a manner approved by the City
Engineer, replace and restore such street, sidewalk, alley,
public way, or paved area in as good a condition as before
the work involving such disturbance was done.
(3) The Grantee shall have the authority to trim trees
upon and overhanging streets, alleys, sidewalks, and public
ways and places of the City so as to prevent the branches of
such trees from coming in contact with the wires and cables
of the Grantee, except that the option of the City, such
trimming may be done by it or under is supervision and
direction at the expense of the Grantee.
Section 8 ERECTION OF POLES.
No Franchise shall be deemed to expressly or impliedly
authorize the Grantee to construct or install poles or
wire -holding structures within streets for the purpose of
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placing cables, wires, lines or otherwise, without the
written consent of the City within which the street is
situated. Such consent shall be given upon such terms and
conditions as the Board of Aldermen in its sole discretion
may prescribe which shall include a requirement that the
Grantee perform, at its sole expense, all tree trimming
required to maintain the poles clear of obstructions.
With respect to any poles or wire -holding structures
which a Grantee is authorized to construct and install
within streets, a public utility or public utility district
serving the City may, if denied the privilege of utilizing
such poles or wire -holding structures by the Grantee, apply
for such permission to the Board of Aldermen. If the Board
of Aldermen finds that such use would enhance the public
convenience and would not unduly interfere with the
Grantee's operations, the Board may authorize such use
subject to such terms and conditions as it deems
appropriate. Such authorization shall include the condition
that the public utility or public utility district pay to
the Grantee reasonable compensation for permitting such use.
Section 9 UNDERGROUNDING.
Except as hereinafter provided, in all areas of the
City where the cables, wires and other like facilities of a
public utility or public utility district are placed
underground, each Grantee shall construct and install its
cables, wires and other facilities underground. Amplifier
boxes and pedestal mounted terminal boxes may be placed
above ground if existing technology reasonably requires, but
shall be of such size and design and shall be so located as
not to be unsightly or unsafe. In any area of the City
where there are certain cables, wires and other like
facilities of a public utility or public utility district
underground and at least one operable cable, wire or like
facility of a public utility or public utility district
suspended above the ground from poles a Grantee may
construct and install its cables, wires and other facilities
from the same pole.
With respect to any cables, wires and other like
facilities constructed and installed by a Grantee above
ground, the Grantee shall, at its sole expense, reconstruct
and reinstall such cables, wires or other facilities
underground pursuant to any project under which the cables,
wires or other like facilities of such utilities are placed
underground within an area. The duty of a Grantee to place
its cables, wires and other facilities underground shall
arise only if all like facilities of utilities which are
existing above ground are placed underground.
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Section 10 RELOCATION.
If during the term of a franchise the City, a public
utility district, a public water district, a public
sanitation district, a public drainage district or any other
similar special public district elects to alter, repair,
realign, abandon, improve, vacate, reroute or change the
grade of any street or to replace, repair, install,
maintain, or otherwise alter any above ground or underground
cable, wire conduit, pipe, line, pole, wire -holding
structure, structure, or other facility utilized for the
provision of utility or other services or transportation of
drainage, sewage or other liquids, the Grantee, shall,
except as otherwise hereinafter provided, at its sole
expense, remove or relocate as necessary its poles, wires,
cables, underground conduits, manholes and any other
facilities which it has installed. If such removal or
relocation is required within the subdivision in which all
utility lines, including those for the Cable Television
system were installed at the same time. The entities may
decide among themselves whc is to bear the cost of
relocation; provided that the City shall not be liable to a
Grantee for such costs. Regardless of who bears the costs,
a Grantee shall take action to remove or relocate at such
time or times _as are directed by the agency or company
undertaking the work. Reasonable advance written notice
shall be mailed to the Grantee advising the Grantee of the
date or dates removal or relocation is to be undertaken.
Section 11 MOVEMENT OF BUILDINGS.
Each Grantee shall, upon request by any person holding
a building moving permit, franchise or other approval issued
by the City or State of Texas, temporarily remove, raise or
lower its wire to permit the movement of buildings. The
expense of such removal, raising or lowering shall be paid
by the person requesting same, and a Grantee shall be
authorized to require such payment in advance. A Grantee
shall be given not less than forty-eight (48) hours oral or
written notice to arrange for such temporary wire changes.
Section 12 COMPLETION.
(1) A written notice of Completion shall be filed
by Grantee with the Town Secretary. The Notice of
Completion shall state the total number of dwelling units
available for occupancy within the Initial Service Area,
or the appropriate Subsequent Designated Service Area as
appropriate, as of the date forty-five (45) calendar days
in advance of the filing of the Notice, the total number
of dwelling units to which cable television service have
been made available within each such area as of the date
of filing, and shall otherwise certify completion as
defined by the first paragraph in this Section. Neither
the Notice of Completion nor the statement, assertions or
certifications contained therein shall be deemed to be
binding upon the City.
(a) construction of the Cable
Television System has been completed
within the area in compliance with
construction standards and the design
and other requirements of this
Ordinance;
(b) cable television services have been
made available to one hundred (100%)
percent of the dwelling units within the
area;
(c) any and all studio facilities,
equipment, channels and other services,
resources or benefits required for
public, educational, and governmental
access purposes pursuant to the
provisions of this Ordinance have been
completed and made available;
(d) complete and accurate "as built"
plans for the area pursuant to Section 6
have been filed by the Grantee with the
City.
(2) During the period of construction of the Cable
Television System and during the sixty (60) day period
following filing of the Notice of Completion, all elements
and components thereof, and all equipment and studio
facilities required by the Franchise documents shall be
subject to inspection by City employees or authorized agents
or representatives thereof, for the purpose of determining
whether the System and related facilities comply with the
Franchise and the provisions of this Ordinance. The Grantee
shall authorize such inspection and provide such information
and cooperation as is required in order to permit an
adequate investigation to determine the existence or
nonexistence of such compliance.
Section 13 REMOVAL.
Upon expiration or termination of a franchise, if the
franchise is not renewed and if neither the City nor an
assignee purchase the Cable Television System, the Grantee
may remove any underground cable from the streets which has
been installed in such a manner that it can be removed
without trenching or other opening of the streets along the
extension of cable to be removed. The Grantee shall not
remove any underground cable or conduit which requires
trenching or other opening of the streets along the
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extension of cable to be removed, except as hereinafter
provided. The Grantee shall remove, at its sole cost and
expense, any underground cable or conduit
by trenching or opening of the streets along the extension
thereof or otherwise which is ordered to be removed by the
Board of Aldermen bases upon a determination, in the sole
discretion of the Council, that removal is required in order
to eliminate or prevent a hazardous condition or promote
future utilization of the streets for public purposes. Any
order by the Board to remove cable or conduit shall be
mailed to the Grantee not later than thirty (30) calendar
days following the date of expiration of the franchise. A
Grantee shall file written notice with the Town Secretary
not later than thirty (30) calendar days following the date
of expiration or termination of the franchise of its
intention to remove cable intended to be removed and a
schedule for removal by location. The schedule and timing
of removal shall be subject to approval and regulation by
the City. Removal shall be completed not later than twelve
(12) months following the date of expiration of the
franchise. Tsndery •51,nti n3bl e an COC�?;?it in _. _._ "..0 TSS
which is not removed shall be deemed abandoned and title
thereto shall be vested in the City.
Upon expiration or termination of a franchise, if the
franchise is not renewed and if neither the City nor an
assignee purchase the System, the Grantee, at its sole
expense, shall, unless relieved of the obligation by the
City remove from the streets all above ground elements of
the Cable Television System, including but not limited to
amplifier boxes, pedestal mounted terminal boxes, and cable
attached to or suspended from poles, which are not purchased
by the City or its assignee.
The Grantee shall apply for and obtain such
encroachment permits, licenses, authorizations or other
approvals and pay such fees and deposit such security as
required by applicable ordinance of the City, shall conduct
and complete the work of removal in compliance with all such
applicable ordinances, and shall restore the streets to the
same condition they were in before the work of removal
commenced. The work of removal shall be completed not later
than one (1) year following the date of expiration of the
franchise.
Section 14 UNIVERSAL SERVICE.
The Grantee shall provide equal and uniform cable
television service, subject only to a reasonable
construction schedule established by the applicant to all
dwelling units within the Franchise Area defined by the
Grantee.
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Section 15 DESIGNATED SERVICE AREAS.
The Grantee and City agree to the Initial Designated
Services Area as shown on the map(s) attached hereto as
Exhibit "B", and Grantee shall make service available to the
residences and businesses within the Initial Designated
Service Area in accordance with the provisions of the
Ordinance. Thereafter, Subsequent Designated Service Areas
may be presented to the City by the Grantee from time to
time, and when approved, service will be provided to such
Subsequent Designated Service Areas in accordance with the
provisions of this Ordinance.
Section 16 GENERAL CAPABILITY AND OPERATIONAL STANDARDS.
Grantee's CATV system shall be installed, maintained
and operated in accordance with the accepted standards of
the industry to the end that the subscriber may receive the
best and most desirable form of service. Toward
accomplishment of this purpose, Grantee and its CATV system
mem _ �_ _ . ..... __.�u^ ._.^.
_dards a. l se •x re
offerings:
A. Compliance with FCC Rules. Grantee shall comply
with present and future rules and regulations of the FCC in
connection with and relating to the operation of its CATV
system.
B. Quality of Color Signals. Grantee's CATV system
shall be capable of transmitting and passing the entire
color television spectrum without the introduction of
material degradation of color intelligence and fidelity.
C. Rated for Continuance Operation. Grantee's CATV
system shall be designed for twenty-four (24) hours a day
continuous operation.
D. Quality of Picture. Grantee's CATV system shall
be capable of and shall produce a picture upon any
subscriber's television screen, in black and white or color,
provided the subscriber's television set is capable of
producing a c -1--r_ picture, that is undistorted and free from
ghost images and accompanied by proper sound, assuming the
technical, standard production television set is in good
repair and the television broadcast signal transmission is
satisfactory.
E. No Cross Modulation or Interference. Grantee's
CATV system shall transmit or distribute signals of adequate
strength to produce good pictures with good sound in all
television receivers of all subscribers without causing
cross modulation in the cables or interference with other
electrical or electronic systems.
F. Channel Capacity. Grantee's CATV system shall
have a minimum channel capacity of fifty plus (50+)
television channels.
G. Converter -Parental Loc:
Number. Any converter offered or
be equipped with a parental autho
of allowing parents to block or
Premium Service channels.
.on of Si
irovided by Grantee shall
.zation mechanism capable
limit access to certain
H. Educational Channels. One channel shall be
available for the use of the Public Schools located within
the City. Such charnel shall be provided free of charge.
I. Standard of Care. Grantee shall at all times
employ a high standard of care and shall install, maintain,
and use approved methods and devices for preventing failure
or accidents which are likely to cause damages, injuries, or
nuisances to the public.
Grantee's Office. Grantee shall maintain an
office within Southlake, Trophy Club, Roanoke or Westlake
and sufficient employees as are necessary to promote good
service and convenience to the public, and be so equipped
and operated that complaints and requests for installation,
repairs, or adjustments may be received and timely and
reasonably answered.
K. Service and Repair. Grantee shall render
efficient service, make repairs promptly, and interrupt
service only for good cause and for the shortest time
possible. Insofar as possible, such interruptions shall be
preceded by forty-eight (48) hours notice and shall occur
during periods of minimum use of the CATV system.
L. Service Calls. Grantee shall respond to all
service calls within twenty-four (24) hours and correct
malfunctions as promptly as possible, but, in all events,
within seventy-two (72) hours after notice thereof. For
that purpose, Grantee shall maintain a competent staff of
employees sufficient in size to provide adequate and prompt
service to subscribers.
M. Citv-School. Receiving and Transmittinq
Capabilities. Upon request, Grantee shall provide, without
charge, basic service to the City Hall, the Main Fire
Station, and each public school within the City. On
request, Grantee shall use its best efforts to make the
transmission path to City Hall capable of both receiving and
transmitting audio and video signals. City recognizes and
agrees this may require coordination with adjacent cities
which are interconnected with Grantee's cable system.
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N. Complaint Records. The Grantee shall maintain a
written record or "log", listing date and time of customer
complaints, identifying the subscriber and describing the
nature of the complaints and when and what actions were
taken by the Grantee in response thereto; such record shall
be kept at Grantee's local office, reflecting the operations
to date for a period of at least the preceding twelve (12)
months, and shall be available for inspection by the City
during regular business hours.
Section 17 EMERGENCY USE OF THE CATV SYSTEM.
By its acceptance of this Franchise, Grantee agrees to
negotiate in good faith an agreement that in the event of an
emergency or disaster, Grantee shall upon request of the
Board of Aldermen or its designated representative make
available its facilities to the City for emergency use
during the period of such emergency or disaster and shall
provide such personnel as may be necessary to operate its
facilities under the circumstances; and provide a
transmission path for an audio emergency interrupt whereby
the City, in time of crisis, may be able to introduce a
bulletin on all channels simultaneously. City recognizes
and agrees that accomplishment of this goal will require
coordination and cooperation with other adjacent cities.
Section 18 INTERCONNECTION.
The Cable Television System shall be interconnected
with other Cable Systems in Roanoke, Southlake and Trophy
Club so as to enable each system to carry and cablecast the
public, educational, and governmental access programming of
the other systems.
Section 19
;03 �UDOQIDIN K`1
(1) Except for individual service drops, the Grantee
shall not, within the City, run any line, make any
attachment, nor shall any construction of any kind be
commenced without five (5) day prior written notice to the
City by Grantee. The City shall not unreasonably disapprove
any such proposed action and any disapproval that occurs
must be communicated in writing to Grantee prior to
expiration of the five day notice period. Grantee shall be
able to make emergency repairs as needed. The City shall
have and maintain the right to inspect the construction,
operation and maintenance of the system by the Grantee to
insure the proper performance of the terms of this chapter.
(2) In the event the Grantee should violate any of the
terms of this ordinance or any federal, State or local law
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or regulation, or any of the rules and regulations as may
hereafter be from time to time lawfully adopted, or any
provision of the Franchise Agreement, the City shall
promptly give the Grantee fifteen (15) days written notice
of the violation, breach, default or noncompliance. The
Grantee shall within fifteen (15) days of receipt of written
notice from the City substantially undertake and promptly
correct such default, breach, violation or noncompliance and
certify the same to the City. In the event that the Grantee
fails to substantially undertake such corrective action
within fifteen (15) days of receipt of such written notice
and promptly complete the corrective action, the City may:
(a) Make such correction itself and
charge the cost of the same to the
Grantee; and/or
(b) Secure the proceeds from any
financial performance instrument
posted by the Grantee or impose the
sum of Fifty Dollars (550) per day
for each day breach or violation
following the cure date that Grantee
fails to meet an agreed upon limits
for such activity or its contractual
or legal obligations; and/or
(c) In the case of a material breach
of this Ordinance or the Franchise
Agreement, and, subject to the terms
of any governing federal law, declare
the Grantee in default and terminate
the franchise and rights granted
under the franchise.
(3) Upon any termination of the franchise by the City
or the City's refusal to renew the same pursuant to
applicable federal law, the Grantee shall within thirty (30)
days of receipt of notice of termination or refusal to renew
the franchise, remove its facilities and equipment and in
the event that the Grantee does not remove its facilities
and equipment W _.in the rime provided in this section, the
City may do so, the removal cost to be borne in any event by
the Grantee. Any enforcement action or remedy provided by
this section or this Ordinance or by the Franchise Agreement
shall not be deemed exclusive but shall be alternative or
cumulative in nature. Notwithstanding anything to the
contrary in this Ordinance, the City shall not impose any
penalty upon the Grantee where either the violation or
failure to cure the same result from force majeure, labor
dispute, declaration of war or other hostilities, Act of
God, or any other reason beyond the control of the Grantee.
Section 20 TRANSFERS.
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(1) The franchise granted under this ordinance may not
be assigned, transferred, sold or disposed of, in whole or
in part, by voluntary sale, merger, consolidation or
otherwise or by force or involuntary sale, except upon
written notice to and prior approval, expressed by
resolution of the Board of Aldermen of the Town, which
approval shall not be unreasonably withheld. As a condition
to such approval, the assignee or other successor to Grantee
shall file with the Town Secretary its unconditional
acceptance of the terms of this ordinance and promise to.
comply with and abide by all its provisions, terms, and
conditions. Such acceptance and promise shall be in writing
duly executed and sworn to, by and on behalf of the assignee
or successor to Grantee before a notary public or other
officer authorized by law to administer oaths. In the event
that such instrument as aforesaid shall not be filed within
thirty (30) days of the notice to the City of the said
assignment, transfer, sale or disposal, this ordinance and
the rights, privileges and franchise as hereby granted shall
ipso facto be, and become, terminated, null and void.
(2) Nothing in this Section shall be deemed to
prohibit the assignment, mortgage or pledge of the
franchise, system or any part thereof for the financing
purposes or require any approval of the Board of Aldermen of
the City for such mortgage or pledge.
Section 21 PERFORMANCE BOND.
(1) Each Grantee shall file with its application for a
franchise, and at all times thereafter until the filing of a
Final Notice of Completion pursuant to Section 12 of this
ordinance, maintain in full force and effect, an acceptable
corporate surety bond issued by a surety licensed therefor
by the State of Texas or cash or other form of surety
approved by the Mayor in an amount equal to the Grantee's
estimate of the total cost of construction of the Cable
Television System within the Initial Service Area, but in no
event less than $20,000.00.
(2) Unless within 30 days of the filing of the final
Notice of :lt _ Cn . : vO1InC 1 'TOt
disagree with the final Notice of Completion, the corporate
surety bond shall be cancelled or the surety refunded.
(3) Neither the provisions of this Section, any bond
accepted pursuant thereto, nor any damages recovered
thereunder shall be construed to excuse faithful performance
by the Grantee or to limit the liability of the Grantee
under the franchise or for damages.
Section 22 INDEMNIFICATION BY GRANTEE.
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(1) Grantee shall, at its sole expense, fully
indemnify, defend and hold harmless the City, and in their
capacity as such, the officers, agents and employees
thereof, from and against any and all claims, suits,
actions, liability and judgments for damages or otherwise:
(a) For actual or alleged injury to persons or
property, including loss of use of property
due to an occurrence, whether or not such
property is physically damaged or
destroyed, in any way arising out of or
through or alleged to arise out of or
through the acts or omissions of the
Grantee or its officers, agents, employees,
or contractors or to which the Grantee's or
its officers, agents, employees or
contractors acts or omissions in any way
contribute.
(b) Arising out of or alleged to arise out of
any claim for damages for invasin of the
right of privacy, defamation of any person,
firm or corporation, or the violation or
infringement of any copyright, trade mark,
trade name, service mark or patent, or of
any other right of any person, firm or
corporation; and
(c) Arising out of or alleged to arise out of
Grantee's failure to comply with the
provisions of any statute, regulation or
ordinance of the United States, State of
Texas, or any local agency applicable to
the Grantee in its business.
Nothing herein shall be deemed to prevent the parties
indemnified and held harmless herein from participating in
the defense of any litigation by their own counsel at the
Grantee's sole expense. Such participation shall not under
any circumstance relieve the Grantee from its duty of
defense against liability or of paying any judgment entered
against such party.
Section 23 GRANTEE INSURANCE.
As a part of the indemnification provided by Section
22, but without limiting the foregoing, Grantee shall file
with the City and at all times thereafter maintain in full
force and effect at its sole expense, an acceptable policy
or policies of personal and property damage liability
insurance, including comprehensive general liability
insurance products/completed operations liability, personal
injury liability, owners and contractors protective
liability, broad form property damage, contractual
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liability, automobile liability (owned; nonowned and hired
automobiles), workers compensation and employer liability.
The policy or policies shall carry the City as a co-insuree,
and in their capacity as such, their officers, agents and
employees. The Grantee and said city and officers, agents
and employees. Policies of insurance shall be in the
minimum single limit amount of one million dollars
($1,000,000.00) per occurrence.
The insurer or insurers writing the required insurance
shall be approved by the Insurance Commissioner of the State
of Texas.
The policy or policies of insurance shall be maintained
by the Grantee in full force and effect during the entire
term of the franchise. Each policy of insurance shall
contain a statement on its face that the insurer will not
cancel the policy or fail to renew the policy, whether for
nonpayment of premium, or otherwise, and whether at the
request of the Grantee or for other reason, except after
thirty (30) calendar days advance written notice mailed by
the insurer to the Town Secretary, and that such notice
shall be transmitted postage prepaid, with return receipt.
Section 24 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS
In the event that city determines that Grantee has
violated any material provision of the franchise, City may
make a written demand on Grantee that it remedy such
violation. If the violation is not remedied, or in the
process or being remedied, to the satisfaction of City with
thirty (30) days following such demands, City shall
determine whether or not such violation by Grantee was
excusable or inexcusable by conducting a hearing before the
Board of Aldermen. Upon conclusion of the hearing, the
Board of Aldermen shall adopt a decision which includes
findings of fact and conclusions.
If the decision by the Board is that there are grounds
for termination of the franchise and that the franchise
shall be terminated, the Board may adopt a resolution which
terminates the franchise and includes its decision. The
effective date of termination shall be such date as is
prescribed by the Board, within its sole discretion, in the
resolution.
Section 25 ALTERNATIVE REMEDIES.
No provision of this ordinance shall be deemed to bar
the right of the City to seek or obtain judicial relief from
a violation of any provision of the franchise or any rule,
regulation, requirement or directive promulgated thereunder.
Neither the existence of other remedies identified in said
ordinance nor the exercise thereof shall be deemed to bar or
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otherwise limit the right of the City to recover monetary
damages (except where liquidated damages are otherwise
prescribed) for such violation by the Grantee, or judicial
enforcement of the Grantee's obligations by means of
specific performance, injunction relief or mandate, or any
other judicial remedy at law or in equity.
Section 26 NON -ENFORCEMENT.
Grantee shall not be relieved of any obligation to
comply with any of the provisions of the franchise or any
rule, regulation, requirement or directive promulgated
thereunder by, reason of any failure of the City or its
officers, agents or employees to enforce prompt compliance.
Section 27 COMMUNICATIONS WITH REGULATORY AGENCIES.
Copies of all petitions, applications, communications,
and reports submitted by a Grantee to the FCC or any other
Federal or State regulatory commission or agency having
jurisdiction in respect to any matters affecting
construction or operation of a Cable Television. System or
services provided through such a System in the City, shall
be available for inspection by the City. Copies of
responses or any other communications from the regulatory
agencies to a Grantee likewise shall be available for
inspection by the City immediately upon receipt. The City
may, by subsequent resolution, require the filing of all
such communications with the City.
Section 28 RATES.
Rates charged by Grantee for basic service to
subscribers shall be fair, reasonable and
non-discriminatory. The initial rates to be charged by
Grantee for services shall be those contained in Exhibit "A"
attached.
(1) The Grantee shall file with the City on December
31 of each year a full schedule of all subscriber and user
rates and all other charges including, but not limited to,
pay TV, lease channel and discrete services, made in
connection with the cable communications system.
(a) All rates shall be on file with the
City.
(b) The Grantee shall not discriminate in
the assessment, levy, charge, imposition
or collection of rates on the basis of
age, race, creed, color, religion,
national origin, sex or marital status.
(2) Nothing in this chapter shall be construed to
prohibit the reduction or waiving of charges in conjunction
with promotional campaigns for the purpose of attracting
subscribers or users.
(3) The Grantee may require all subscribers to pay for
basic service not more than two (2) months in advance. The
Grantee shall require no other advancement of payment for
basic service, provided, however, that nothing herein shall
be construed to prohibit an advancement of payment for
installation of Cable Communications Services or a security
deposit for equipment of Grantee placed within a
subscriber's residence or business.
(4) The Grantee shall neither impose or collect any
additional charge for the disconnection of any installation
or outlet if subscriber is terminating service and is not
delinquent on his/her account.
Section 29 FRANCHISE FEE.
For the use of the streets and for the purposes of
providing revenue with which to defray the costs of
regulation arising out of the granting of franchises under
this ordinance and promoting, assisting and financing
public, educational, and governmental access programming,
each Grantee shall pay franchise fees in the amount
prescribed by Section 30 below.
Section 30 AMOUNT AND PAYMENT OF FRANCHISE FEES.
During the term of each franchise, the Grantee shall
pay to the City an amount equal to the greater of $250.00 or
five (5°s) percent per year of the Grantee's annual Gross
Revenue.
Said fees shall be paid quarterly not later than
September 1, December 1, March 1, and June 1, for the
preceding three-month period ending, respectively, June 30,
September 30, December 31, and March 31. Not later than
June 1 of each year, Grantee shall file with the Board, a
written statement Signed under penalty of perjury by an
officer of the Grantee, which identifies in detail the
sources and amounts of Gross Revenues received by Grantee
during each quarter of the preceding year for which payment
was made.
No acceptance of any payment shall be construed as an
accord that the amount paid is, in fact, the correct amount,
nor shall such acceptance of payment be construed as a
release of any claim which the City may have for further or
additional sums payable under the provisions of this
Section.
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Section 31 INTEREST ON DELINQUENT FRANCHISE FEES.
Any Franchise Fees which remain unpaid after the dates
specified in Section 30 above shall be delinquent and shall
thereafter accrue interest at the maximum legal rate until
paid.
Section 32 ACCOUNTING STANDARDS.
On or before June 1 of each year, the Grantee shall
provide the Board of Aldermen with an unqualified
certification of an independent certified public accountant
^ertifri... the accuracg of the F =zchise Fee payments paid
for preceding calendar year pursuant to Section 30 above.
Said certification shall be prepared in accordance with
generally accepted accounting standards as established by
the Financial Accounting Standards Board (FASB).
Section 33 GROSS REVENUE CALCULATIONS..
required
by Section _ 30 above, the phrase "arising from or
attributable to operation of the cable television system" as
used in Section 3 "Gross Revenues" above shall include but
not be limited to:
(a) Any activity, product or service which
generates revenue of any type whatsoever
and which is offered to the subscribers of
the system by means of the system or any
related service;
(b) Any activity, product or service which
is revenue producing and is offered to the
subscribers of the system by any medium
other than the system including but not
limited to direct mail and home delivery if
the system's subscriber list or any portion
thereof is utilized for purposes of
solicitation;
(c) Any activity, product or service in
the production or provision of which any of
the assets of the system including but not
limited to cable, production facilities,
and administrative facilities, are
included, unless reasonable consideration
is paid to the system for such utilization;
(d) Any television programming or other
services offered to the citizens of
Westlake within the term of the franchise
by any means of delivery whatsoever where
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such programming or services are or could
be offered by means of the system.
Section 34 AUDITING AND FINANCIAL RECORDS.
The City may, from time to time during the term of a
franchise, prescribe standards governing the nature, extent
and type of accounting system and accounting procedures
utilized by a Grantee, for the purpose of promoting the
efficient administration of the Franchise Fee requirements
of this ordinance. Any such standards shall be in writing,
shall be filed with the City, and shall be mailed to the
',inc r?.__ .,-_ :7.. _..,e_.s"ee shall_ Orcmptly comply
with all such standards.
During the term of each franchise, the City may, not
more frequently than one each year, conduct an audit of the
books, records and accounts of the Grantee for the purpose
of determining whether the Grantee has paid franchise fees
in the amounts prescribed by Section 30 above. The audit
ad;,.._'. , _zor of the Cier an
independent certified public accounting firm retained by the
City, and shall be conducted at the sole expense of the
City. The party conducting the audit shall prepare a
written report containing its findings, and the report shall
be filed with the City, and mailed to the City and Grantee.
Each Grantee shall make available for inspection by
authorized representatives of the City, its books, accounts,
and all other financial records at reasonable times and upon
reasonable advance notice for the purpose of permitting
exercise of the authorities conferred by this Section.
Section 35 FLOW-THROUGH OF REFUNDS.
(1) If during the term of this Franchise the Grantee
receives refunds of any payments made for television or
radio signals, it shall without delay notify the Board of
Aldermen, suggest a plan for flow-through of the refunds to
its subscribers, and retain such refunds pending order of
the Board. After considering the plan submitted by the
Grantee, the Board shall order the flow-through of the
refunds to the Grantee's subscribers in a fair and equitable
manner.
(2) By its acceptance of this franchise the Grantee
specifically grants and agrees that if, during the term
hereof, it received refunds of any payments made for
television or radio signals, it shall without delay notify
the Board, suggest a plan for flow-through of the refunds to
its subscribers, retain the refunds pending order of the
Board, and flow-through such refunds in accordance with the
order of the Board.
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Section 36 MODIFICATIONS BY FCC.
It is specifically agreed by the City and Grantee that
any modifications of the provisions of this ordinance
resulting from amendment of the Rules and Regulations of the
FCC shall be incorporated into this franchise ordinance by
the Board of Aldermen within one year of the adoption of the
amendment by the FCC, or at the time of the renewal of this
franchise, whichever occurs first.
Section 37 DISTANT EXTENSION OF DISTRIBUTION CABLE.
In the event that a potential subscriber's premises are
located at some distance from a distribution cable, Grantee
may charge in addition to its regular installation charges,
an additional fee to cover its cost of aerial extensions of
over 200 feet and underground extensions of over 100 feet
from the Company's distribution cable.
Section 38 COMPLIANCE WITH STATE AND FEDERAL LAWS.
Notwithstanding any other provisions of this ordinance
to the contrary, Grantee shall, both as to construction and
service, at all times comply with all laws, rules and
regulations of the state and federal governments and any
administrative agencies thereof. If any such state or
federal law, rule, or regulation shall require or permit
Grantee to perform any service or shall prohibit Grantee
from performing any service in conflict with the provisions
of this ordinance or any other ordinance, rule, or
regulation of the City, then immediately following knowledge
thereof Grantee shall notify the Board of Aldermen in
writing of the point of conflict believed to exist between
such state or federal law, rule or regulation and this or
other ordinance, rule, or regulation of the Town.
Section 39 PROTECTION OF SUBSCRIBER PRIVACY.
The Grantee shall not, without prior valid
authorization from each subscriber so affected, provide any
list designating subscriber's names or addresses to any
other party except where required under contract for billing
services or in accordance with laws of the United States or
the State of Texas.
Section 40 LIQUIDATED DAMAGES.
By acceptance of the franchise granted by the City,
Grantee understands and shall agree that failure to comply
with any time and performance requirements as stipulated in
this Ordinance and the franchise agreement will result in
damage to the City, and that it is and will be impracticable
to determine the actual amount of such damage in the event
of delay or non performance. It is agreed that Grantee
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shall pay the City Fifty Dollars ($50.00) per day for each
day, or part thereof, in which after notice it has failed to
comply with any of the time or performance requirements of
this ordinance unless the City specifically approves a delay
or excuses non-performance.
Section 41 REIMBURSEMENT OF COSTS.
Grantee agrees to reimburse the City for reasonable
costs, including attorney and consultant fees, for reviewing
the application and awarding the franchise.
Section 42 SEPARABILITY.
If any section, subsection, sentence, clause, phrase,
or portion of this ordinance is for any reason held invalid
or unconstitutional by any court of competent jurisdiction,
such portion shall be deemed a separate, distinct, and
independent provision and such holding shall not affect the
validity of the remaining portions hereof.
Section 43 ACCEPTANCE OF FRANCHISE ORDINANCE.
Within thirty (30) days from the effective date of this
ordinance, Grantee shall file with the City a written
statement in the following form signed its name and behalf:
"To the Honorable Mayor and Board
of Aldermen of the Town of Westlake,
Texas:
For itself, its successors and
assigns, County Cable Limited
Partnership hereby accepts the attached
ordinance and agrees to be bound by all
of its terms, conditions,- and
provisions. f°
d�
PASSED, ADOPTED AND APPROVED, thi the day of
September, 1988.
TOWN OF WESTLAKE, TE}
By. s fr
Dale White, Mayor
ATTEST-
Ger Whi e, Town Secretary
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CITY BASIC E?BO SHO MA:{ "_'MC DIS HSE A/0 ?.EM ?DDRESSABLE COMPANY
Irving 12 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon
Grapevine i2 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon
Lewisville 12 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon
Coppell 12. 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paragon
Dallas 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc Yes Heritage
Farmers Branch 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc `Les Heritage
Mesquite 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc Yes Heritage
Carrollton 14 . 95 1.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5. 00 No Storer
Grand Prairie 14 . 95 10 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 .00 No Storer
Euless 14. 95 1.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 . 00 No Storer
Bedford 14 . 95 10 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5. 00 No Storer
Garland 14 . 95 7.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 . 00 No Storer
Ft. Worth 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons
Hurst 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons
Keller 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons
Trophy/Roanoke 12 .00 9 . 75 9 . 75 9 . 75 9 . 75 9 .95 9 . 95 3 . 50 3 . 50 Yes Planned Cable
Southlake 12 .00 9 . 75 -9-:75 9 . 75 9 . 75 9 . 95 9 . 95 3 . 50 3 .50 Yes Planned Cable
o o .._n o o Q o o
Carrollton . 00 ,. _� 9 . 75 . 75 5 5 3 . 50 3 .50 y es Planned Cable
*4.'50 Basic, add 5 . 00 each additonal pav unit. ;example : Additional outlet would be 9 .50 with HBO
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