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ORD 1997-02 - Cable Franchise - TCSI (2nd Read) 01-21-1997ORDINANCE NO. 97-02 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, EXTENDING A NONEXCLUSIVE FRANCHISE TO TCSI HUNTSVILLE, 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. 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. 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 territory within its present and future boundaries and shall include enlargements thereof and additions thereto. 3) "Company" shall mean TCSI Huntsville, 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, operation, 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 the Company; b) capital costs which are required by the franchise to be incurred by the Company for public, educational or 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. 7) "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 that has a financial interest in the Company, arising from or attributable to operation or 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 8) "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. 9) "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. 10) "Subscriber" means any person who legally receives any one or more of the services provided by the cable communications system. 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 dedication, 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, operation, 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. NQN- 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. 2 SECTION 5. TERM OF FRANCHISE. This franchise shall take effect upon the final passage, or November 1, 1996, 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 communication system in the City, the Company may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets within the City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the cable system, 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, the 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 the City through the completion of such construction or alteration. 3) Code Compliance. The CATV system shall be constructed and operation in compliance with all City, State and National construction and electrical codes 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 done. 5) 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. 6) Interference of Use. The cable communication 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. 7) 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. The expenses 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. The 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. 3 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. 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 the Company in any street, provided such use by the City does not interfere with the use by the Company. The City shall indemnify and hold harmless the 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 the Company's poles or conduits. 12) Under grounding. 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, the Company 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 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 the Company if the 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; 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; and 4) have a present, activated technical capacity for downstream communications. The downstream system shall be capable of operating between 50 and 300 MHZ. SECTION 8. 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. rd 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 move 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 fourteen (14) days written notice of any proposed programming changes. SECTION 9: 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, government 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 Communication Act of 1984, 47 U.S.C. § 521 -559. SECTION 10. BUSINESS OFFICE. COMPLAINTS. The Company shall maintain a business office or agent which subscribers may telephone during regular business hours without incurring added message or toll charges, so that complaints regarding cable television operations may be promptly reported to the Company. 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. 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 5 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. 3) The cable television committee shall have authority to review and determine reasonableness of requests for extension of service and costs for extension of service. SECTION 12. SYSTEM CONSTRUCTION AND EXT 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 13. PUBLIC. EDUCATIONAL AND GOVERNMENTAL ACCESS. 1) The Company shall provide one basic subscriber service to every public governmental building and each public school plant at no cost to the City or the governmental unit involved, subject to the extension policy of Section 12; provided such building is in the Company's service area. 2) Grantee shall make available one public, government, and education access programming (PEG) channel on one hundred eighty (180) days notice from the City that programming is available. Allocation of this channel shall be at the sole discretion of the City. Grantee shall only be responsible for the costs associated with the provision of the channel, and shall not be responsible for the costs associated either with the programming or the delivery of the programming to the headend of the Grantee's system. SECTION 14. SUPPORT FOR 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. Such payments are, however, 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 15. PREFERENTIAL/DISCRIMINATORY PRACTICES PROH 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. SECTION 16. 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. Franchise fees will only be collected from revenues derived from subscribers with the City limits of Huntsville. SECTION 17. AMOUNT OF PAYMENT OF FRA The Company shall pay to the City, within sixty (60) days of the end of each calendar year, a tax of four (4) percent re of all gross revenues derived from basic cable service and pay TV subscriptions from the previous calendar year. Not later than the date of each payment, the Company shall provide the City a statement 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 year for which payment is made. The statement 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 18. INTEREST ON DELINQUENT FRANCHISE FEES Any franchise fees which remain unpaid after the dates specified in Section 17 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 19. COMMUNICATIONS WITH RF_G1 TLATOR Upon the request of the City Manager, copies of all petitions, applications, communications, and reports submitted by the 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 the Company likewise shall be filed immediately on receipt with the City. SECTION 20. 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 the 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 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 of waiving of charges in conjunction with promotional campaigns for the purpose of attracting subscribers or users. b) 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 communication services. 7) The Company shall neither impose nor collect any additional charge for the disconnection of any basic cable service. 8) 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. 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 prorated 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 21. REMOVAL. Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the City no 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. 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. The 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. S SECTION 22. 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, or sublet the system in any manner, without the consent of the City. 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 City Council as expressed by resolution. The City shall be deemed to have denied a proposed transfer or assignment in the event that its consent is not communicated in writing to the Company within sixty (60) 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 be its terms, be expressly subordinate to the terms and conditions of a franchise. SECTION 23. 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 17 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 the Company. SECTION 24. 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 occurring within the City limits: 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 damaged for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, 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, the 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. 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 9 any circumstances relieve the Company from its duty of defense against liability or of paying any judgment entered against such party. SECTION 25. NEW DEVELOPMENT 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 26. 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 27. 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 28. VIOLATIONS -- USE OF STREET FOR CABLE Y T M 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, 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 29. 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. SECTION 30. 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 phase 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 31. FEDERAL RE (',ULATI 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 32. REPEALING CLAU E 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. 10 SECTION 33. PUBLICATI 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, a descriptive caption 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. SECTION 34. EFFECTIVE DA This ordinance shall take effect and be in force from and after its passage on second reading. PASSED UNANIMOUSLY FIRST READING this 17th day of December, 1996. PASSED SECOND READING this r day of Ja4ct O--4 , 1997. APPROVED this c:)-4 day of -v , 1997. ATTEST: Danna Welter, City Secretary APP ROVED AS TO FORM: 1 Scott Bounds, City Attorney 11 THE CITY OF HUNTSVILLE, TEXAS William B. Green, Mayor