ORD 1989-31 - Telecable Franchise Renewal, Cable Television System 10-24-19894 ti 1.0 �N
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ORDINANCE NO. 89 -/
AN ORDINANCE OF THE CITY OF HUNTSVILLE, TEXAS
EXTENDING A NONEXCLUSIVE FRANCHISE TO TEXAS
TELECABLE, INC. OF HUNTSVILLE, TEXAS, TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM IN THE CITY; SETTING FORTH
CONDITIONS ACCOMPANYING THE EXTENSION OF
FRANCHISE; PROVIDING FOR CITY REGULATION, USE, AND
ADMINISTRATION OF THE CABLE COMMUNICATIONS SYSTEM;
PRESCRIBING PENALTIES FOR VIOLATION OF THE
FRANCHISE PROVISIONS; AND REQUIRING PUBLICATION.
WHEREAS: The City Council of the City of Huntsville, Texas, has
granted a Franchise to Telecable, Inc. of Huntsville
under the Franchise Ordinance No. 76 -12, dated August
11, 1976; and
WHEREAS: The City Council of the City of Huntsville, Texas, did
on the 26th day of January, 1977, through Resolution
No. 77 -4, transfer the rights and obligations under
said Franchise from Telecable, Inc. of Huntsville to
Community Tele- Communications, Inc.; and
WHEREAS: The City Council of the City of Huntsville, Texas did
on the 13th day of November, 1984, through Ordinance
No. 84 -28, transfer the rights to Texas Telecable,
Inc.; and
WHEREAS: The present franchise expires on the 10th day of
September, 1991;
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of
Huntsville, Texas, that:
Section 1. 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.
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(1) "Cable Communications System" or "System," also
referred to as "Cable Television System," "Cable
System," "CATV System," or "Community Antenna TV
System," shall mean, without limitation, a system
of antennae, cables, wires, lines, towers,
waveguides, or other conductors, converters,
amplifiers, headend equipment, master controls,
earth stations, 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.
(2) "City" shall mean the City of Huntsville [a home
rule charter city] of the State of Texas and all
the territory within its present and future
boundaries and shall include enlargements thereof
and additions thereto.
(3) "Company" shall mean Texas Telecable, Inc. of
Huntsville, Texas, its agents, employees, lawful
successors, transferees or assignees.
(4) "Council" shall mean the governing body of the
City.
(5) "Franchise" shall mean the right granted through a
contractual agreement between the City and a
person by which the City authorizes such person to
erect, construct, reconstruct, operate, dismantle,
test, use and maintain a cable communications
system in the City. Any franchise awarded by an
agreement in accordance herewith shall be a
non - exclusive, revocable franchise.
(6) "Franchise fees" means any tax, fee or assessment
of any kind imposed by a franchising authority or
other governmental entity on a Company 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 Company;
(b) Capital costs which are required by the
franchise to be incurred by Company for
public, educational or governmental access
facilities;
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(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.
"Gross Revenues" shall mean all cash, credits,
property of any kind or nature or other
consideration derived directly or indirectly by a
Company, its affiliates, subsidiaries, parents,
and any other person or entity in which the
Company has a financial interest or which has a
financial interest in the Company, arising from or
attributable to operation of the Cable Television
System inside the City of Huntsville, including
but not limited to, revenues from all charges for
services provided to subscribers of entertainment
and non - entertainment services.
Gross revenues shall not, however, include:
a) revenue from charges for the insertion of
commercial advertisements upon the cable
television system;
b) revenue from all charges for the
installation, connection and reinstatement of
equipment necessary for the utilization of
the Cable Television System; nor
c) revenue from the cable video store, pay per
view movies and pay per view events.
"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.
"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.
"Subscriber" means any person who legally receives
any one or more of the services provided by the
Cable Communications System.
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Section 2. POLICE POWERS -- COMPLIANCE WITH APPLICABLE LAWS AND
ORDINANCES.
Nothing in this ordinance shall be construed as an
abrogation by the City of any of its police powers.
The City reserves the right to adopt in addition to the
provisions, such ordinances as may be deemed necessary
to the exercise of police power. Such regulation shall
be reasonable and not destructive to the rights herein
granted and not in conflict with the laws of the State.
Section 3. GRANT OF AUTHORITY.
The City grants to the Company the right and privilege
to engage in the business of operating and providing a
CATV system in the City, and for that purpose to erect,
install, construct, repair, replace, reconstruct,
maintain and retain in, on, over, under, upon, across
and along any public street or public way, now laid out
or dedicated, and all extensions thereof and additions
thereto in the Franchise Area, such poles, wires,
cable, conductors, ducts, conduit vaults, manholes,
amplifiers, appliances, attachments, and other property
as may be necessary and appurtenant to the CATV system;
and in addition, so to use, operate, and provide
similar facilities or properties rented or leased from
other persons, firms, or corporations including but not
limited to any public utility or other company
franchised or permitted to do business in the City.
Section 4. NON - EXCLUSIVE GRANT.
The right to use and occupy the street and public ways
for cable communication system shall not be exclusive,
and the city reserves the right to grant a similar use
in its streets and public ways to any other person.
Section 5. TERM OF FRANCHISE.
This franchise shall take effect upon the final
passage, or August 10, 1991, whichever is later, and
shall continue in force and effect for a term of 10
years after that effective date.
Section 6. AUTHORITY FOR USE OF STREETS.
(1) Permit Required. For the purposes of operating and
maintaining a Cable Communications System in the City,
Company 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
oter property and equipment as are necessary and
appurtenant to the operation of the Cable System,
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provided that all applicable permits are applied for
and granted, all fees paid and there is compliance with
all other City codes and ordinances.
(2) Plans and Reports Required. Prior to construction or
alteration of trunk cable within the city, Company
shall in each case file plans with all appropriate City
agencies and receive written approval of such plans
which approval shall not be unreasonably withheld. Upon
written request of the City Manager, the company shall
provide a monthly progress report to City through the
completion of such construction or alteration.
(3) Code Compliance. The CATV system shall be constructed
and operated in compliance with all City, State and
National construction and electrical code and shall be
kept current with new codes so as not to interfere with
other uses of streets.
(4) Disturbance of Street. In case of disturbance of any
street, public way, or paved area, the Company shall,
at its own cost and expense and in a manner approved by
the City, replace and restore such street, public way
or paved area in as good a condition as before the work
involving such disturbance was done.
City Facility Alterations. If at any time during the
period of franchise the City shall lawfully elect to
alter or change the grade of any street, sidewalk,
alley, or other public way, the Company, upon
reasonable notice by the City, shall remove, relay and
relocate its poles, wires, cables, underground
conduits, manholes, and other fixtures at its own
expense.
(5)
(6) Interference of Use. The Cable Communications System
within the franchise area shall be located so as to
cause minimum interference: a) with the proper use of
streets, alleys, and other public ways and places; b)
with any installations of the City or of a public
utility serving the City; and c) with the rights and
reasonable convenience of property owners who join any
of the said street or other public ways and places.
Any poles or other fixtures placed in any public way by
the Company shall be placed in such manner as not to
interfere with the usual travel on such public way.
Moving of Buildings. The Company shall, on the request
of any person holding a building moving permit issued
by the City, temporarily raise or lower its wires to
permit the moving of buildings.
(7)
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The expense of such temporary removal or raising or
lowering of wires shall be paid by the person
requesting the same, and the Company shall have the
authority to require such payment, in advance. The
Company shall be given not less than forty -eight (48)
hours' notice to arrange for such temporary wire
changes.
(8) Tree Trimming. The Company shall have the authority to
trim trees upon and overhanging streets and public
ways and places of the franchise area so as to prevent
the branches of such trees from coming in contact with
the wires and cables of the Company, except that at
the option of the City, such trimming may be done by it
or under its supervision and direction at the expense
of the Company.
Company shall be responsible for, and shall indemnify,
defend and hold harmless the City and its officers,
agents and employees from and against any and all
damages arising out of or resulting from the removal,
trimming, mutilation of or any injury to any tree or
trees proximately caused by the Franchise or its
officers, agents, employees, contractors or
subcontractors.
9) Relocation. If, during the term of the Franchise,
the City elects, by reason of traffic conditions,
public safety, street vacation, freeway and street
construction, to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any
street, power lines, signal lines, and tracts 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 Company, shall, except as
otherwise hereinafter provided, at its sole expense,
protect, support, temporarily disconnect, remove or
relocate as necessary, its poles, wires, cables,
underground conduits, manholes and any other facilities
which it has installed; provided, however, that the
Company shall in all such cases have the rights and
obligations of abandonment of property of the Company,
subject to City ordinances.
(10) Erection of Poles. This franchise shall not express or
imply authority to the Company to construct or install
poles or wire - holding structures within streets for the
purpose of placing cables, wires, lines or otherwise,
without the written consent of the City, within which
the street is situated.
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Such consent shall be given upon such terms and
conditions as the City Council in its sole discretion,
may prescribe which shall include a requirement that
the Company perform, at its sole expense, all tree
trimming required to maintain the poles clear of
obstructions.
(11) Additional Use of Poles. The City shall have the right
to make additional use for any public or municipal
purpose any poles or conduits controlled or maintained
exclusively by or for Company in any street, provided
such use by City does not interfere with the use by
Company. The City shall indemnify and hold harmless
Company against and from any and all claims, demands,
causes of actions, actions, suits, proceedings,
damages, costs or liabilities of every kind and nature
whatsoever arising out of such use of Company's poles
or conduits.
(12) Undergrounding. Except as hereinafter provided, in all
areas of the City where the cables, wires and other
like facilities of a public utility are placed
underground, Company shall construct and install its
cables, wires and other facilities underground.
Amplifiers 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 underground and at least one operable
cable, wire or like facility of a public utility
suspended above the ground from poles a Company may
construct and install its cables, wires and other
facilities from the same pole.
(13) Street Use Reservations. Notwithstanding the above
grant to use streets, no street shall be used by
Company 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.
Section 7. GENERAL CAPABILITY.
The Cable Television System shall, at minimum:
(1) Relay to subscriber terminals those broadcast signals
required by the FCC;
(2) Distribute in color all television signals which it
receives in color;
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(3) Make available upon request by any subscribers
receiving channels showing premium services and pay per
view events, a lockout device which prevents the
unauthorized viewing of such channels;
(4) Have a present, activated technical capacity for
upstream and downstream communications. The downstream
system shall be capable of operating between 50 and 300
MHz. The upstream system shall be capable of operating
between 5 and 30 MHz.
Section 8. STANDBY POWER.
The Company shall construct and maintain equipment
capable of providing standby power for headend,
principle transportation and trunk amplifiers for a
minimum of two (2) hours. The system shall incorporate
safeguards necessary to prevent injury to line workers
resulting from a standby generator powering a "dead"
utility line.
Section 9. BASIC SERVICES.
(1) The company shall provide a minimum of twenty channels
of basic (non -pay) television programming available to
all subscribers at one minimum rate. Basic (non -pay)
programming available on Channels 2 -13 shall include
the three major networks (ABC, CBS, NBC), and one
public broadcasting station. Cable Channel 7, or
another VHF channel, shall be made available to the
City or its designee for local programming.
Programming shall be provided on all available channels
from 2 through 13. Additional non -pay programming shall
include inspirational programming (such as CBN or PTL),
sports programming (such as ESPN), and news programming
(such as CNN).
(2) Pay programming shall include at least two services.
The Company shall offer a first run movie pay service
(such as HBO) and a family oriented pay service (such
as The Disney Channel). The company shall not carry a
pay service on Channels 2 -13.
(3)
The Company shall provide a broad selection of FM radio
choices from the Houston area.
(4) The Company shall file with the City Manager a copy of
all programming. The Company shall give the City
Manager 14 days written notice of any proposed
programming changes.
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Section 10. TECHNICAL STANDARDS.
(1) The Company shall construct, install and maintain its
Cable Television System in a manner consistent and in
compliance with all applicable laws, ordinances,
construction standards, governmental requirements, and
technical standards equivalent to those established by
the FCC. The company shall provide to the City
Council, upon request, written reports of the Company's
annual proof of performance tests conducted pursuant to
FCC standards and requirements.
(2) The Company shall at all times comply with the National
Electrical Safety Code (National Bureau of Standards);
National Electrical Code (National Bureau of Fire
Underwriters); applicable FCC and other federal, State
and local regulations; and codes and other ordinances
of the City.
(3) Construction, installation and maintenance of the Cable
Television System shall be performed in an orderly and
workmanlike manner, and in close coordination with
public and private utilities serving the City following
accepted construction procedures and practices and
working through existing committees and organizations.
(4) All cable and wires shall be installed, where possible,
parallel with electric and telephone lines, and
multiple cable configurations shall be arranged in
parallel and bundled with due respect for engineering
consideration.
(5) Any antenna structure used in the Cable Television
System shall comply with construction, marking and
lighting of antennae structures, required by the United
States Department of Transportation.
(6) RF leakage shall be checked at reception locations for
emergency radio services to prove no interference
signal combinations are possible. Radiation shall be
measured adjacent to any proposed aeronautical
navigation or communication radio sites to prove no
interference to air navigational reception.
(7) Nothing in this Ordinance shall be deemed to require
standards of signal quality more stringent than those
adopted by the F.C.C. under authority of the Cable
Communications Act of 1984, 47 USC §§ 521 -559.
Section 11. LOCAL OFFICE; COMPLAINTS.
The Company shall maintain a local business office or
agent which subscribers may telephone during regular
business hours without incurring added message or toll
ciarges, so that complaints regarding cable television
operations may be promptly reported to the company.
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The Company shall keep a complaint log showing all
complainants' names, time and nature of complaint,
action taken to resolve complaint, and time complaint
resolved. If a complaint is not resolved within
twenty -four (24) hours of notice to the company, it
shall advise subscriber of the complaint procedure. The
complaint log shall be kept for two (2) years.
Section 12. COMPLAINT COMMITTEE, REFUNDS.
(1) A standing cable television committee shall be
established consisting of a representative of the City,
a representative of the Company, and a third party
selected by both the Company representative and the
City representative jointly. The third party shall
serve a two -year term. This committee shall hear
complaints, if and when requested to do so.
(2) In the event that any subscriber service is interrupted
or of inferior quality on a substantial number of
channels for more than twenty four (24) hours, except
for acts of God or in circumstances for which prior
approval of interruption is obtained from the City, the
Company may be required by the committee to rebate all
or part of the applicable bill to the affected
subscriber; provided, however, that no refund shall
ever be required for service prior to the company
receiving notice of the service interruption.
The cable television committee shall have authority to
review and determine reasonableness of requests for
extension of service and costs for extensions of
service.
(3)
Section 13. SYSTEM CONSTRUCTION AND EXTENSION.
In addition to provisions contained within this
Franchise, the Company shall serve all persons within
the City that request cable television service, but the
Company shall not be required to extend to any
subscriber more than 250 feet from an existing
distribution cable except upon payment of costs as
installation cost by person requesting such service.
Extensions of service shall be subject to the
complaints procedure; the Company shall inform any
person denied service of the complaint procedure.
Section 14. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.
(1) The Company shall provide not less than the
following for public, educational and governmental
access pursuant to the provisions of the Cable
Communications Policy Act of 1984, Section 611 (47
USC 531):
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(a) one basic subscriber service to every public
governmental building, including City Hall,
the Police Department, the City Library, Fire
Stations, the Courthouse, and each public
school plant at no cost to the City or the
governmental unit involved, subject to the
extension policy of Section 13.
(b) maintain a system that would allow live
television programming at City Hall, Walker
County Courthouse, City Library, Pritchett
Field, Holloman Field and the University
Coliseum all as presently located and
transmit it to a point designated by the City
so that it can be fully integrated into the
system upstream.
(c) Channel 7.
(2) A board appointed by the City, and including a
representative of Huntsville Cable TV, will
recommend policies for the use of Channel 7 to the
City. The provision shall be made for the City
and Huntsville Cable TV to be held harmless from
any slander or libel claims related to the
channel's use.
Section 15. SUPPORT FOR USE OF ACCESS.
Nothing contained in this ordinance shall be construed
to limit the authority of the Company to make payments
in support of the use of public, educational and /or
governmental access programming. However, such
payments are expressly not a requirement of any
Franchise granted hereunder and shall in no event be
considered in the calculation of Franchise Fees
pursuant to this ordinance.
Section 16. PREFERENTIAL /DISCRIMINATORY PRACTICES PROHIBITED.
The Company shall not as to rates, charges, service
facilities, rules, regulations or in any other respect
make or grant any preference or advantage to any person
nor subject any person to any prejudice or disadvantage
based on age, race, creed, color, religion, national
origin, sex or marital status; provided that nothing in
this franchise shall be deemed to prohibit the
establishment of a graduated scale of charges under
which anyone in that classification would be entitled.
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Section 17. 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, the Company shall pay franchise fees.
Section 18. AMOUNT AND PAYMENT OF FRANCHISE FEES.
The Company shall pay to the City, within sixty (60)
days of the end of each calendar quarter, a tax of four
(4) percent of all gross revenues derived from basic
cable service and pay TV subscriptions from the
previous calendar quarter. Not later than the date of
each payment, the Company shall provide the City a
statement verified by a certified public accountant
certifying the accuracy of the franchise fee payments
paid within the preceding period, disclosing the
amount of franchise payment, detailing the method of
calculation, and stating that it represents four (4)
percent of gross revenues from within the City system,
for the quarter for which payment is made. The
certification shall be prepared in accordance with
generally accepted accounting standards as established
by the Financial Accounting Standards Board (FASB).
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.
Section 19. INTEREST ON DELINQUENT FRANCHISE FEES.
Any Franchise fees which remain unpaid after the dates
specified in Section 19 above shall be delinquent and
shall thereafter accrue interest at the legal rate of
one percent per month or maximum legal rate (whichever
is lower) until paid.
Section 20. COMMUNICATIONS WITH REGULATORY AGENCIES.
Upon request of the City Manager, copies of all
petitions, applications, communications, and reports
submitted by Company 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, shall be
filed with the City. Copies of responses or any other
communications from the regulatory agencies to a
kr
Cdmpany likewise shall be filed immediately on receipt
with City.
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Section 21. RATES.
(1) City Council expressly reserves the right to
approve the rates which the Company charges its
subscribers for basic service and the rates for
such other services as City Council may hereafter
be permitted to regulate by law. The Company
shall not deny, delay, interrupt or terminate
cable communications services or the use of
community communications facilities to subscribers
or users because City Council denies a request for
a rate increase, provided, however, that nothing
herein shall be construed to limit the Company's
right to seek judicial review of such action.
(2) No rate, fee or charge of any kind shall be
charged or collected from subscribers by the
Company for basic service without the written
authorization of City Council, unless authorized
by the Cable Communications Act.
(3) The Company may request rate increases or
decreases at any time.
(4) In addition to other filing requirements, the
Company shall file with the City 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
upon any change in cost or selection of
programming.
(5)
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.
(6) The Company may require all subscribers to pay for
basic service not more than two (2) months in
advance. The Company 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.
(7)
(8)
The Company shall neither impose nor collect any
additional charge for the disconnection of any
installation or outlet and related to basic cable
service.
In the event that a subscriber fails to pay as
properly due and owing a fee or charge, the
Company may disconnect the subscriber's service
outlet, upon giving at least seven (7) days
written notice thereof.
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(9) The Company shall establish and conform to the
following policy regarding refunds to subscribers
and users:
(a) If the Company collects a deposit or advance
charge on any service or equipment requested
by a subscriber or user, the Company shall
provide such service or equipment within
thirty (30) days of the collection of the
deposit or charge or it shall refund such
deposit or charge within five (5) days
thereafter.
(i) Nothing in this Section shall be
construed to relieve the Company of any
responsibility to subscribers or users
under any contractual agreements into
which it enters with them.
(ii) Nothing in this section shall be
construed as limiting the Company's
liability for fines or penalties which
may be imposed under this ordinance or
any agreement awarded in accordance
herewith for violation or breach of any
of their provisions.
(iii) Nothing in this section shall be
construed to limit the company's
liability for damages because of its
failure to provide the service for which
the deposit or charge was made.
(b) In the event that a subscriber terminates
basic service prior to the end of a prepaid
period, the pro -rated portion of any prepaid
subscribe fee which represents payment for
services which are no longer to be rendered
shall be refunded promptly, but in no case
more than forty -five (45) days after receipt
of the request for termination.
(10) The Company shall not charge a converter security
deposit greater than such converter's actual cost
to the Company.
Section 22. 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
Company 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.
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The Company shall not remove any underground cable or
conduit which requires trenching or other opening of
the streets along the extension of cable to be removed,
except as hereinafter provided. The Company 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 City Council based 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 City Council to remove cable or conduit
shall be mailed to the Company not later than thirty
(30) calendar days following the date of expiration of
the franchise. A Company shall file written notice
with the City 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 Director
of Public Works of the City. Removal shall be
completed not later than twelve (12) months following
the date of expiration of the franchise. Underground
cable and conduit in the streets which is not removed
shall be deemed abandoned and title thereto shall be
vested in the City.
The Company 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 23. OVERRIDE CAPABILITY--EMERGENCY AND DISASTER
ASSISTANCE.
If requested in writing by the City, the Cable
Television System shall, at City expense, include an
"Emergency Alert Capability" which will permit the
City, in times of emergency, to override by remote
control alternatively the audio and video of all
channels simultaneously. The Cable Television System
shall include the capability to broadcast from the
City's headquarters for Civil Defense, Disaster and
Emergency Services.
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Section 24. APPROVAL OF TRANSFER.
(1) The Company shall not sell, assign or transfer its
CATV System to another, either in whole or in
part, or lease, sublet, or mortgage the system in
any manner, without the prior written consent of
the City.
No such consent shall be required for a transfer
in trust, mortgage, or other hypothecation as a
whole or in part to secure an indebtedness, except
that when such hypothecation shall exceed fifty
(50 %) percent of the market value of the property
used by the Company in conducting the business of
the franchise. Such consent shall not be withheld
unreasonably.
(2) The proposed assignee must show technical ability,
financial capability, legal qualifications and
general character qualifications as determined by
the City and must agree to comply with all
provisions of the franchise and such conditions as
may be prescribed by Council expressed by
resolution. City shall be deemed to have denied a
proposed transfer or assignment in the event that
its consent is not communicated in writing to
Company within one hundred twenty (120) days
following receipt of written notice of the
proposed transfer or assignment.
(3)
The Company shall promptly notify the City of any
actual or proposed change in, or transfer of, or
acquisition by any other party of, control of the
Company. The word "control" as used herein is not
limited to major stockholders but includes actual
working control in whatever manner exercised.
Every change, transfer, or acquisition of control
of the Company shall make the franchise subject to
cancellation unless and until the City shall have
consented thereto, which consent will not be
unreasonably withheld. For the purpose of
determining whether it shall consent to such
change, transfer or acquisition of control, the
City may inquire into the qualifications of the
prospective controlling party and the company
shall assist the City in any such inquiry.
(4) The consent or approval of the City Council to any
transfer of the franchise shall not constitute a
waiver or release of the rights of the City in and
to the streets, and any transfer shall by its
terms, be expressly subordinate to the terms and
conditions of a franchise.
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(5) The City Council reserves the right to "first
refusal" to purchase a cable system at the market
value price if and when it is placed on the market
for sale.
Section 25. AUDITING AND FINANCIAL RECORDS.
During the term of this franchise, the City may, not
more frequently than once each year, conduct an audit
of the books, records and accounts of the Company for
the purpose of determining whether the Company has paid
franchise fees in the amounts prescribed by Section 19
above. The audit may be conducted by the Auditor of
the City or by 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 Company.
Section 26. INDEMNIFICATION BY COMPANY.
The Company 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:
(1) 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 Company
or its officers, agents, employees, or contractors
or to which the Company's or its officers, agents,
employees or contractors acts or omissions in any
way contribute;
(2) Arising out of or alleged to arise out of any
claim for damages for invasion 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
(3) Arising out of or alleged to arise out of
Company'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 Company in its business.
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Nothing herein shall be deemed to prevent the
parties indemnified and held harmless herein from
participation in the defense of any litigation by
their own counsel at the Company's sole expense.
Such participation shall not under any
circumstances relieve the Company from its duty
of defense against liability or of paying any
judgment entered against such party.
Section 27. NEW DEVELOPMENTS.
It shall be the policy of the City liberally to amend
this franchise upon application of the Company, when
necessary to enable the Company to take advantage of
any developments in the field of transmission of
television and radio signals which will afford it an
opportunity more effectively or economically to serve
its customers.
Section 28. FILING AUTHORITY.
When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be
filed with the City Secretary.
Section 29. PUBLICATION COSTS.
The Company shall assume the cost of publication of
this franchise as such publication is required by law.
A bill for publication costs shall be presented to the
Company by the City Secretary upon the Company's
filing of acceptance and shall be paid at that time.
Section 30. VIOLATIONS--USE OF STREET FOR CABLE SYSTEM WITHOUT
PERMIT.
A person commits an offense if the person intentionally
or knowingly constructs, installs or maintains within
any public street in the City, or within any other
public property of the City, any equipment or
facilities for distributing any television signals or
radio signals through a CATV system, unless a City
franchise authorizing such use of such street or
property has first been obtained and is in full force
and effect.
Section 31. PENALTIES.
Any person violating or failing to comply with any
penal provision of this ordinance shall be guilty of a
misdemeanor and for each day of violation or failure to
comply may be punished by a fine not to exceed $200.00.
•
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Section 32. SEVERABILITY.
If any section, subsection, sentence, clause or phrase
of this ordinance is for any reason held illegal,
invalid or unconstitutional by the decision of any
court or regulatory body of competent jurisdiction,
such decision shall not affect the validity of the
remaining portions hereof. The Council hereby declares
that it would have passed this ordinance and each
section, subsection,sentence, clause, and phrase
hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses, or phrases
be declared illegal, invalid or unconstitutional. The
invalidity of any portion of this ordinance shall not
abate, reduce or otherwise affect any consideration or
other obligation required of the Company. All
ordinances and parts of ordinances in conflict with the
provisions of this ordinance are hereby repealed.
Section 33. FEDERAL REGULATION.
Any modification resulting from amendment of Section
76.31 ( "Franchise Standards ") of the Rules and
Regulations of the Federal Communications Commission
shall be incorporated into this franchise as of the
date such modifications become obligatory under FCC
regulations, or in the event no obligatory date is
established, within one year of adoption or at the time
of franchise renewal, whichever occurs first.
Section 34. REPEALING CLAUSE.
All Ordinance and parts of Ordinances in conflict with
the provisions of this Ordinance are hereby repealed;
provided, however, that such repeal shall be only to
the extent of such inconsistency and in all other
respects this ordinance shall be cumulative of other
Ordinances regulating and governing the subject matter
covered by this Ordinance.
Section 35. PUBLICATION.
Every ordinance granting, renewing, extending, or
amending a public utility franchise shall be presented
in writing at two regular meetings of the Council and
shall not be finally acted upon until thirty (30) days
after the first presentation thereof. Within five (5)
days following each of the two presentations of the
ordinance, the full text thereof shall be published one
time in the official newspaper of the City, and the
expense of such publication shall be borne by the
prospective franchise holder.
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Section 36. EFFECTIVE DATE.
This ordinance shall take effect and be in force from
and after its passage on second reading. [
PASSED UNANIMOUSLY FIRST READING this /2 day of �p�t_a „4 1 1989.
PASSED SECOND READING this 2,9f7lay of 0L;e1[ 6 .i , 1989.
APPROVED this 07” day of Q , 1989.
THE CITY OF HUNTSVILLE
BY:
(SEAL)
Ja ►e Monday, Mayor
Published: cAp'ajg � / 9 t
Published: (911-60.1.0,,,) 28 /9".
f
APPROVED AS TO FORM:
Scott Bot'inds, City Attorney