HomeMy WebLinkAboutOrdinances (O-94-966)-11/01/1994
ORDINANCE 0-94-966
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AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF
COLLEYVILLE BY THE REPLACEMENT OF CHAPTER 10, CABLE TELEVISION
REGULATIONS; MAKING THIS ORDINANCE CUMULATIVE; PROVIDING CABLE
OPERATORS THE TERMS UNDER WHICH A FRANCHISE MAY BE GRANTED TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY;
PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR PUBLICATION AND NAM ING
OF AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS:
That the Code of Ordinances of the City of Colleyville is hereby amended by this
replacement of Chapter 10, Cable Television Regulations, which shall read in its entirety
as follows:
TABLE OF CONTENTS
A. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
1. Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
2. Basic Cable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
3. Cable Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
4. Cable Services ............................................ 3
5. Cable System ............................................. 3
6. City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
7. City Council .............................................. 3
8. City Manager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
9. Converter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
10. Expanded Basic ........................................... 3
11. Federal Communications Commission or FCC . . . . . . . . . . . . . . . . . . .. 3
12. Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
13. Grantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
14. Gross Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
15. Head end . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
16. Non-Cable Communications Services. . . . . . . . . . . . . . . . . . . . . . . . . .. 5
17. PEG Channel ............................................. 6
18. Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
19. Public Way ............................................... 6
20. Service Area ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
21 . State of the Art ............................................ 6
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22. Subscriber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
23. System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
24. Telephony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
B. Franchise Required to Operate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
C. Authority to Grant; Criteria for Granting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
D. Application Fees and Payment Upon New Franchise. . . . . . . . . . . . . . . . . . .. 7
E. Required Services and Facilities to Be Included in Franchise Agreement .... 8
F. State of the Art Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
G. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
H. Use of Streets .................................................. 9
I. Franchise Fees ................................................ 11
J. Books and Records .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
K. Fiscal Reports ................................................. 13
L. Special Licenses to Traverse Franchise Area. . . . . . . . . . . . . . . . . . . . . . . .. 13
M. Operating Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
N. Maintenance of the System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
O. Construction Schedule and Reports ................................ 15
P. Tests and Performance Monitoring ................................. 16
a. Grantee's Employment Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
R. Service, Adjustment and Complaint Procedures . . . . . . . . . . . . . . . . . . . . . .. 17
S. Subscriber Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
T. Notification to Subscribers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
U. Disconnection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
V. Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
W. Protection of Subscriber Privacy .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
X. Liability for Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
Y. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
Z. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
AA. Performance Evaluation Sessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
BB. Termination Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CC. Failure of City to Enforce Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
DD. Limits on a Grantee's Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
EE. Unlawful Acts; Penalties ......................................... 24
FF. Foreclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
GG. Transfer of Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
HH. Renewal of Franchise ........................................... 25
II. Arbitrary and Capricious Action by a Grantee. . . . . . . . . . . . . . . . . . . . . . . .. 25
JJ. Rights Reserved to City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
KK. Additional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
LL. Acceptance of Terms and Conditions by a Grantee .................... 27
MM. Time is of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
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A. Definitions.
For the purposes of this ordinance, the following terms, phrases, words, abbreviations and
their derivations will have the meaning given herein. When not inconsistent with the
context, words used in the singular number include the plural number:
1. Affiliate. Shall mean an entity which owns or controls, is owned or controlled
by, or is under common ownership with grantee.
2. Basic Cable. Shall mean the lowest priced tier of service which is available
to all subscribers, that includes the retransmission of local broadcast television
signals, UHF and VHF, and public, educational, and government access channels.
3. Cable Act. Shall mean the Communications Act of 1934, the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
Competition Act of 1992, and any other federal laws or amendments to those laws
associated with cable television.
4. Cable Services. Shall mean (i) the one-way transmission to subscribers of
video programming or other programming service and (ii) subscriber interaction, if
any, that is required for the selection of video programming or any other lawful
communication service.
5. Cable System. Shall mean any facility consisting of a set of closed
transmission paths and associated signal generation, reception and control
equipment that is designed to provide cable service that includes video
programming and is provided to multiple subscribers within the City.
6. City. Shall mean the City of Colleyville, Texas.
7. City Council. Shall mean the governing body of the City of Colleyville,
Texas.
8. Citv Manaaer. Shall mean the chief executive officer of the City or any
person designated by the City Manager to act in his or her behalf.
9. Converter. Shall mean an interface device that may be available to
subscribers in order that non-standard television channels carried on a cable
system may be received on a conventional home television receiver or to prevent
interference from strong broadcast signals.
10. Expanded Basic. Shall mean the tier of service that is available to all
subscribers that is in addition to basic cable services but excludes the pay-per-Yiew
and premium channels and other optional services.
11. Federal Communications Commission or FCC. Shall mean that federal
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agency as presently constituted by the Communications Act of 1934, as amended,
or any successor agency.
12. Franchise. Shall mean the right, whether an initial authorization or a
renewal, to construct and operate a cable system along the public ways in the City
or within specified areas in the City. It is not intended to include or supersede or
otherwise affect any license or permit required for the privilege of transacting and
carrying on a business within the City as may be required by other ordinances and
or laws of the City.
13. Grantee. Shall mean a natural person, partnership, domestic and/or foreign
corporation or entity, association, joint venture or organization of any kind granted
a franchise by the City Council under this ordinance, and such grantee's lawful
successor, transferee or assignee.
14. Gross Revenues. Shall mean all amounts, which are charged and received,
directly or indirectly, by a grantee from or in connection with the operation of the
system including, without limitation:
a. Any revenue received from subscribers, including but not limited to
revenue for basic service, tier service, music service, commercial service,
premium service, pay-per-view service and related per-event services, or for
the distribution of any service over the system or the provision of any
service-related activity in connection with the operation of the system.
b. Until such time as a separate ordinance has been passed which
regulates non-cable communication services or telephony, any revenues
derived from the use of the cable system shall be included in the term 'gross
revenues' .
c. Revenue received from subscribers for installation, change in service,
reconnection charges and similar fees.
d. Revenue received from subscribers for converters, remote controls
or other equipment leased or rented to subscribers in connection with the
delivery of cable services to such subscribers.
e. Revenue received from subscribers for service charges and fees
attributable to delinquent accounts.
f. Revenue received from third parties, including advertising revenue,
home shopping commissions, guide commissions, leased access payments,
and studio and other facilities or equipment rentals pertaining to the
production of cable programs.
g. Revenue shall include any payment or consideration, excluding any
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utility users' tax or new sales tax imposed by the City or the state or federal
government, collected for direct payment to a third party. Franchise fees
paid to the City are not deemed to be taxes and are not to be deducted from
the total gross revenue figure on which gross revenues are paid.
h. Revenue shall also include the gross revenue of any other person
which is derived directly or indirectly from or in connection with the operation
of a system to the extent that said revenue is derived through a means which
has the effect of avoiding the payment of franchise fees to the City that
would otherwise be paid herein.
i. In computing gross revenue from sources other than a grantee's
subscribers, including without limitation revenue derived from the sale of
advertising, home shopping services, guide sales, the lease of channel
capacity over its cable system, or any other gross revenues attributable or
allocated to grantee in accordance with generally accepted accounting
principles but received by another entity affiliated with grantee, the
aggregate revenue received by grantee from such other sources during the
period in question shall be multiplied by a fraction, the numerator of which
shall be the number of grantee's subscribers in the City as of the last day of
such period and the denominator of which shall be the number of
subscribers within the physical system served by grantee as of the last day
of such period.
There shall be deducted from gross revenue:
j. Bad debts written off by grantee in the normal course of its business,
provided, however that bad debt recoveries shall be included in gross
revenue.
k. Refunds made to subscribers or other third parties.
15. Head end. Shall mean the central signal receiving and signal distribution
point of the cable system. It will include such other signal receiving and signal
distribution points grantee erects to better serve the needs of its subscribers.
16. Non-Cable Communications Services. Shall mean all services offered over
a cable system that go beyond providing generally available video programming or
other programming. Non-cable communications services may include private line
data transmission and services providing subscribers with the capacity to transact,
store, transform, forward, manipulate, or otherwise process information or data.
Examples of non-cable services would include, but not be limited to: shop at home
and bank at home services; electronic mail; one-way and two-way transmission of
non-video data and information not offered to all subscribers; and data processing.
Telephony is not a non-cable communication service, but a separate service as
defined below.
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17. PEG Channel.. Shall mean a public, educational or governmental channel(s)
dedicated to non-commercial transmission of signals of a public access,
educational, or governmental nature.
18. Person. Shall mean associations, firms, partnerships and bodies political
and corporate as well as individuals.
19. Public Way. Shall mean the surface of, and the space above and below, any
public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way, including,
but not limited to, public utility easements, dedicated utility strips, or rights-of-way
dedicated for compatible uses and any temporary or permanent fixtures or I
improvements located thereon now or hereafter held by the City in the service area
which shall entitle the City and the grantee to the use thereof for the purpose of
installing, operating, repairing, and maintaining the cable system. Public way shall
also mean any easement now or hereafter held by the City within the service area
for the purpose of public travel, or for utility or public service use dedicated for
compatible uses, and shall include other easements or rights-of-way as shall within I
their proper use and meaning entitle the City and the grantee to the use thereof for
the purposes of installing or transmitting grantee's cable service or other service
over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary and
pertinent to the system.
20. Service Area. Shall mean the present municipal boundaries of the City, and
shall include any contiguous additions thereto by annexation or other legal means.
21. State of the Art. Shall mean a cable system with production facilities,
technical performance, capacity, equipment, components and service (equal to that
which has been developed and demonstrated to be more modern than generally
accepted and used) in the cable television industry for comparable areas of
equivalent population.
22. Subscriber. Shall mean any person or user of the system who lawfully
receives communications or other services from Grantee with Grantee's express
permission.
23. System. Shall mean a system of antennas, cables, wires, lines, fiber optic
cable, towers, wave guides or other conductors, converters, equipment or facilities,
used for producing, receiving, amplifying, storing, processing, or distributing audio,
video, digital, or other forms of signals to and from subscribers.
24. Telephony. Shall mean voice communications and video conferencing that
compete with services provided by telephone companies.
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B. Franchise Required to Operate.
A franchise to construct, operate and maintain a cable system within all or any
portion of the City is required of any person desiring to provide cable television
service in the City. A franchise may be granted by the City Council to any person
whether operating under an existing franchise or not, which offers to furnish and
provide such cable system services under the terms and provisions of this
ordinance and a franchise approved by the City Council in accordance with federal
or state law.
C. Authoritv to Grant; Criteria for GrantinQ.
1. After the City Council examines all applications to assure the legal, financial,
technical, and character qualifications of an applicant to provide cable service, the
City Council may, after a full hearing, grant a franchise conveying the right to
construct and operate a cable system within the City's public ways. A franchise will
be awarded to any applicant who in the City Council's judgment will serve the public
interest and whose construction and financial plans and arrangements are both
feasible and adequate to fulfill the conditions set forth in this ordinance and
incorporated into any franchise granted.
2. Additional franchises will be awarded based upon testimony concerning
economic considerations, the impact on public convenience, public needs, potential
benefit and other relevant factors.
3. No provisions in this ordinance shall be deemed or construed to require the
City Council to grant a franchise.
4. In the event the City enters into a franchise, permit, license, authorization or
other agreement of any kind with any other person or entity other than grantee to
enter into the City's streets and public ways for the purpose of constructing or
operating a cable system or providing cable service to any part of the service area,
the material provisions thereof shall be reasonably comparable to those contained
herein, in order that one operation not be granted an unfair competitive advantage
over another.
D. Application Fees and Payment Upon New Franchise.
1. The request for a new cable television franchise (not a renewal) shall be
submitted to the City in writing. The written request will be submitted in accordance
with procedures and schedules to be established by the City. Written requests
shall be accompanied by a nonrefundable application fee of one thousand dollars
($1,000.00) payable to "The City of Colleyville". The fee will be used by the City to
offset direct expenses incurred in the franchising and evaluation procedures,
including, but not limited to, staff time and consulting assistance.
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2. A new applicant to whom the City Council grants a franchise, in addition to I
the nonrefundable fee specified herein above, shall pay to the City, within thirty (30)
days of receipt of notice of the amount, an amount sufficient to allow the City to
recoup the City's remaining out-of-pocket costs associated with granting the
franchise which were not defrayed by fees collected in subsection 1 of this section.
Costs as defined in the franchise which shall always be recoverable for the
franchising process are: (i) publication costs; (ii) copying costs, and; (iii) reasonable
staff time and costs (including mileage and travel expenses) devoted to the
franchising process.
E. Required Services and Facilities to Be Included in Franchise AQreement.
1. A franchise agreement shall include a description of the grantee's cable
system design. The grantee will furnish, within a reasonable time to the City,
without cost to the City, a general map outlining serviceable and non-serviceable
areas. A grantee will continue to extend and upgrade its cable system as set forth
in the franchise.
2. A grantee shall provide, without charge, within the initial franchise area and
any extension made thereto, multiple service outlets to each fire station, police
station, public library, public school and such buildings as used for municipal
purposes unless the franchise otherwise specifies.
3. A grantee shall maintain the mix and quality of programming within the broad
categories of video programming or other services set forth in a grantee's franchise.
Where there has been a substantial failure to maintain the mix or quality of services
within the broad categories of video programming or other services as set forth in
a grantee's franchise, the City Council may, following notice and a public hearing,
direct the grantee to comply with its obligations regarding the mix or quality of
services within the broad categories of video programming or other services as set
forth in a grantee's franchise. Written notice of such hearing shall be provided to
the grantee and the public at least thirty (30) days prior to such hearing.
4. A grantee will provide dedicated channels for programming for public,
educational and government access, in accordance with the franchise agreement.
The cost of these channels shall be borne solely by the grantee and shall not be
passed on to subscribers.
5. A grantee will provide equipment and editing facilities for public use,
including training and support for use of equipment by the public.
F. State of the Art Modifications.
1. The City Council shall have the authority to order a public hearing on the
provision of additional channel capacity by a grantee or on the inclusion in a
grantee's cable system of state of the art technology or upgraded facilities. Notice
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of such hearing shall be provided to the grantee and the public not later than
seventy-two (72) hours prior to such hearing.
2. If, after such hearing, the City Council determines that:
a. A reasonable need and demand for additional channel capacity
and/or state of the art technology or upgraded facilities exists; or
b. Provision has been made or will be made for adequate rates that will
not preclude a grantee from achieving a positive net present value on its
investment in the City over the term of the franchise and will allow a grantee
a fair rate of retum on its total investment (including the investment required
to provide the additional channel capacity and/or the state of the art
technology or upgraded facilities); or
c. The additional channel capacity and/or state of the art technology or
upgraded facilities will not result in economic waste for the grantee; then the
City Council may order the grantee to provide additional channel capacity
and/or specified state of the art technology or upgraded facilities.
3. In considering the economic feasibility of required cable system
improvements, the City shall consider whether to extend the term of the franchise
to permit the recovery of the cost of the improvements. Any proposed extension of
the franchise shall be treated in accordance with the procedure for franchise
renewal.
G. Term.
The term of a franchise shall be as determined in the franchise agreement.
H. Use of Streets.
1. A grantee shall have the right to use the streets and public ways of the City
for construction, operation and maintenance of a cable system as prescribed,
regulated, and limited by provisions of this ordinance and a franchise, and state,
local and federal law, both present and future.
2. The rights granted shall allow a grantee to construct, erect, maintain, and
operate poles, conduits, towers, manholes, subways, wires, cables, appliances, and
equipment necessary for the safe and efficient operation of the cable system,
provided that:
a. A grantee uses the poles or conduits of utilities and subways
wherever possible.
b. A grantee installs new poles or towers in conformity with all provisions
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of the National Electric Safety Code, paying special note to ensure straight I
poles or towers.
c. Nothing in this section shall be construed to act as a waiver of the
power of the City to require by ordinance or otherwise the substitution of
underground service for overhead service provided such requirement is
applied to all owners of overhead service facilities.
d. Nothing in this section shall be construed to relieve a grantee from its
obligation to pay any fees or rents for its use of facilities of the City, utility
companies, or other legal entities.
e. When grantee is performing construction and maintenance activities
within the public right-of-way, all work zones are to be protected in
accordance with the standards and provisions set forth in Part VI "Traffic
Controls for Street and Highway Construction and Maintenance Operations"
of the Texas Manual on Uniform Traffic Control Devices.
3. Grantee shall advise the public works department of the City at least twenty-
four (24) hours prior to the beginning installation of, or removal of, equipment or
construction facilities. All installations and attachments will conform to local
ordinances and be subject to all inspections required by the City.
4. If, in the sole opinion of the City, grantee's property must be removed,
altered, or relocated in order for the City to use and enjoy any of the City's property,
a grantee, upon reasonable notice from the City, will remove, alter, or relocate its
property, at its own cost and expense, and within a time specified by the City but
which shall in no event exceed thirty (30) days. Should a grantee fail, refuse, or
neglect to remove, alter, or relocate its property within the time specified by the
City, the City may remove, alter, or relocate the property at the cost of a grantee
and the City shall not be liable to a grantee for damages resulting from such
removal, alteration or relocation.
5. A grantee shall have the right to remove, trim, cut and keep clear of its poles,
towers, wires and other overhead appliances and equipment the trees along the
streets, alleys and other public places of the City. A grantee shall not cut, remove,
trim or otherwise injure trees to any greater extent than is reasonably necessary for
the installation, maintenance and use of such poles, towers, wires and other
overhead appliance. The grantee shall be responsible and dependable and hold
the City harmless for any and all damages to any tree as a result of trimming, or to
the land surrounding any tree, whether such tree is trimmed or removed.
6. A grantee in the exercise of any right granted to it by the City shall at no cost
to the City promptly reconstruct, replace, restore or repair any facility or service of
the City that is damaged, disturbed, or destroyed by the exercise of any such right,
and shall do all work necessary to complete restoration of streets, sidewalks or
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grounds to a condition equally as good or better as when disturbed, to the
reasonable satisfaction of the City. A grantee shall guarantee and maintain such
restoration for a period of one (1) year against defective materials or workmanship,
excluding landscaping. If a grantee fails to comply with these requirements, the
City shall have the right to repair its property and a grantee shall reimburse the City I
for all expenses the City incurred in carrying out the repair.
7. All transmission lines, equipment and structures shall be so installed and
located as to cause minimum interference with the rights and access of property
owners. No pole or other fixture of the grantee may be placed so that it interferes
with pedestrian, vehicular, aviation or other travel. At all times a grantee shall keep
and maintain in a safe and satisfactory condition all transmission lines, equipment
and structures in good order and repair.
8. Wherever all electrical and telephone utility distribution wiring is located
underground, either at the time of initial construction or subsequently, at the
direction of the City the cable shall also be located underground, at a grantee's
expense. If the distribution facilities of the electric or the telephone utility are aerial,
the cable television facilities may be located underground at the request of the
property owner. The excess cost of the installation, labor and material of
underground over aerial location shall be paid by the property owner making the
request to a grantee.
9. Underground cable in the public right of way will have at least twenty four
(24") inches of cover to the finished grade. If the cable has less than twenty four
(24") inches of cover to the finished grade, then there will be no cost to the City or
a utility company franchised with the City for damage to the cable including cut
cable in the course of normal construction and work. Underground cable on private
property will have at least six (6") inches of cover to the finished grade.
10. Whenever, in case of fire, disaster or emergency, it becomes necessary in
the judgment of the City Manager, or the chief of the fire or police departments, to
remove or damage any of a grantee's facilities, no charge shall be made by a
grantee against the City for restoration and repair.
I. Franchise Fees.
1. A grantee shall pay a quarterly franchise fee to the City in consideration of
the granting of a franchise to use the public ways for the operation of a cable
system, as set out by and between the City and the grantee in the franchise
agreement. The franchise fee will be due and payable within forty-five (45) days
of the end of each quarter.
2. A grantee shall file with the City within forty-five (45) days after the end of the
grantee's fiscal year, a statement reporting gross revenues earned during the
current fiscal quarter and gross revenues earned for the fiscal year to date by the
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grantee, setting forth each revenue source with details on how each revenue source
was calculated.
3. The City shall have the right to inspect a grantee's books and records
necessary for the enforcement of the provisions of the franchise. The City may
order an audit and recomputation of any of grantee's payments to the City at any
time for any period of the franchise. In the event the City hires an outside
consultant to audit the books of the grantee and such outside consultant discovers
unpaid or underpaid franchise fees in excess of five percent (5%) of total amount
due, then the grantee agrees to immediately reimburse the City for the reasonable
cost of hiring such consultant. Grantee shall immediately pay to the City, upon
determination of underpayment, the underpaid amount plus interest at the rate
equal to the previous 26 week average of the treasury bill rates at the time of
underpayment.
4. If any franchise payment or computed amount is not made by the dates
specified, interest shall be charged from the due date at the rate equal to the
previous twenty-six (26) week average of the treasury bill rates at the time of the
due date.
5. If the franchise is legally terminated prior to its expiration date the grantee
shall file with the City, within sixty (60) days of the termination date a certified
audited financial statement clearly showing the gross revenues received by the
grantee since the end of the previous fiscal quarter. The grantee shall pay the
franchise fee due when the statement is filed.
6. No acceptance of any payment shall be construed as a release of any claim
the City may have for further sums payable under this ordinance.
7. Nothing contained in this ordinance shall be construed to exempt the grantee
from any tax, business license tax, levy, or assessment that is authorized by law.
8. The City reserves the right to require the grantee to collect any consumer or
other tax of general applicability or other fee of general applicability that may be
imposed on subscribers by the City.
J. Books and Records.
1. A grantee shall provide within twenty (20) business days a current list of its
shareholders holding ten percent (10%) or more of the outstanding stock or
equivalent ownership interest as well as a roster of its principals or officers and
directors and their addresses upon request by the City.
2. A grantee shall keep a complete and accurate set of books of accounts and
records of its business and operations in the City in accordance with generally
accepted accounting principles, under and in accordance with this ordinance and
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franchise for the preceding four (4) years under the franchise.
3. The City shall have reasonable access to all books of accounts and records
of a grantee necessary for the purpose of ascertaining the accuracy of any and all
reports required under this ordinance. The City shall be given reasonable access
to all other records of the grantee necessary to the enforcement of the franchise or
ordinance.
4. Any willfully false entry in the books of account or records of a grantee, or
false statement in the reports to the City knowingly made by a grantee shall
constitute the breach of a material provision of the ordinance and franchise.
5. Upon request, copies of grantee's schedule of charges, contract or
application forms for basic cable service, policies regarding the processing of
subscriber complaints, delinquent subscriber disconnect and reconnect procedures
and any other terms and condition, adopted as a grantee's policy in connection with
its subscribers shall be provided to the City.
6. In determining what is proprietary and confidential material, the grantee will
rely on decisions by the FCC as to what constitutes proprietary and confidential
material, and the City may rely on such decisions in challenging any conclusion
reached by grantee.
K. Fiscal Reports.
1. A grantee shall file annually with the City Manager, no later than one
hundred twenty (120) days after the grantee's fiscal year end:
a. A copy of the grantee's certified comptroller's statement applicable to
the cable system serving the City, including a detailed revenue statement
applicable to its operation during the preceding twelve(12) month period.
b. An operational report including the following information, specific to
the City: number of homes passed, number of cable plant miles, number of
subscribers for each level of cable service offered, penetration rates, and the
gross revenue from each revenue source attributable to the operations of
grantee from within the City.
L. Special Licenses to Traverse Franchise Area.
The City reserves the right to authorize other persons to traverse any portion of a
grantee's franchise area within the City in order to provide cable services outside
the City. Such authorization does not permit such person to provide cable
television service of any nature to any home or place of business within the City or
to render any service or connect any subscriber within the City to a grantee's cable
system.
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M. Operatina Procedures.
1. A grantee shall construct, operate and maintain its cable system in full
compliance with the rules and regulations, including applicable amendments, of the
FCC and all other applicable federal, state or City laws and regulations. This will
include, but is not limited to, the latest editions of the National Electrical Safety
Code, Bell System Code of Pole Line Construction and the detailed standards
submitted by grantee as part of its application, proposal and/or franchise
agreement. The cable system and all its parts shall be subject to inspection by the
City.
2. The system shall not endanger or unreasonably interfere with the safety of
persons or property in the franchise area or other areas where a grantee may have
equipment located.
3. Any antenna structure used in the cable television system shall comply with
construction, marking, and lighting of antenna structures required by the United
States Department of Transportation.
4. All working facilities and conditions used during construction, installation and
maintenance of the cable system shall comply with the standards of the
Occupational Safety and Health Administration.
5. A grantee shall maintain equipment capable of providing standby power for
head end, transportation and trunk amplifiers for a minimum of one and one-half (1-
1/2) hours.
6. A grantee shall incorporate into its cable television system the capacity to
permit the City, in times of emergency, to override simultaneously, by remote
access, the audio of all channels not digitally compressed. A grantee shall
cooperate with the City in the use and operation of the emergency alert override
system. The City agrees to indemnify the grantee for emergency use of grantee's
system.
N. Maintenance of the System.
1. A grantee shall at all times employ ordinary care and shall install and
maintain devices or systems for preventing failures and accidents which are likely
to cause damage, injuries, or nuisances to the public.
2. A grantee shall install and maintain its wire, cable, fixtures, and other
equipment so as not to interfere with the equipment of any utility of the City, or any
other entity lawfully and rightfully using the conduit, pole, subway or other part of
the right of way.
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3. The cable system shall at all times conform to the construction and
maintenance standards set forth in the ordinance and!or franchise agreement.
4. A grantee shall not allow its cable or other operations to interfere with
television reception of persons not served by grantee.
O. Construction Schedule and Reports.
1. Upon accepting a franchise, a grantee shall, within sixty (60) days, file the
documents required to obtain all necessary federal, state and local licenses,
permits and authorizations required for the conduct of its business.
2. A grantee shall submit a construction plan or reconstruction plan which shall
be incorporated by reference and made a part of a franchise agreement.
Construction reports will be submitted to the City Manager quarterly, with maps
delineating serviceable and non-serviceable areas. A grantee will submit strand
maps, which provide accurate detail of where coaxial cable and! or fiber optic cable
are laid, to the City Manager yearly.
3. Every three (3) months after the start of construction or reconstruction, a
grantee shall furnish the City Manager a report on the progress of construction or
reconstruction until complete. The report shall include a map that clearly defines
the areas where cable service is and is not available.
4. Copies of any agreements, reports, petitions, correspondence or other
documents filed with any local, state or federal government relating to a grantee's
construction operations within the City shall be filed within five (5) business days
with the City Manager; as provided by all utility company construction operations
operating in City easements.
5. A grantee or its authorized contractors shall obtain permits from the public
works, building inspections or other appropriate departments prior to any physical
work being performed in the City's rights-of-way, or on City-owned property, as
obtained by all utility companies or their agents operating within or on City property
or utility easements. Permits will be issued to a grantee or approved contractors
only on approved plans, including detailed strand maps of the cable system within
the City limits, which must be submitted twenty-four (24) hours before the request
for the construction permit. All work will be done in accordance with the City's
specifications.
6. At all times during the life of a franchise a grantee shall comply with any and
all safety regulations with regard to the use of public streets, particularly those
regulations relating to "visibility triangles" and associated regulations.
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..1-."'--'--- . ....... ,...
P. Tests and Performance MonitorinQ.
1. Not later than one hundred eighty (180) days after any new portion of the
system, or not later than ninety (90) days after any substantially rebuilt portion of
the system, is made available for service to subscribers and at least twice each
calendar year thereafter, technical performance tests shall be conducted by a
grantee to demonstrate full compliance with the technical standards of the FCC and
this ordinance. Such tests shall be performed by or under the supervision of a
qualified registered professional engineer or an engineer with proper training and
experience. A copy of the report shall be submitted to City Manager, describing test
results, instrumentation, calibration, test procedures and the qualifications of the
engineer responsible for the tests.
2. In the event that FCC rules on the frequency of testing and monitoring should
be modified to allow the City to require more frequent testing, the grantee shall
automatically increase its technical performance tests to the maximum number
allowable by the FCC rules.
3. At any time after commencement of service to subscribers, the City may
require additional tests, full or partial repeat tests or tests involving a specific
subscriber's terminal. Requests for such additional tests will be made on the basis
of complaints received or other evidence indicating an unresolved controversy or
significant noncompliance and will be the responsibility of the grantee. The tests
will be limited to the particular matter in controversy. The City will make its requests
for such special tests so as to minimize hardship or inconvenience to a grantee or
subscri bers.
4. A grantee shall continue, through the term of its franchise, to at least
maintain or improve the technical, operational, and maintenance standards and
quality of cable service set by the City in its franchise with grantee or by ordinance.
Should the City find that the grantee has failed to maintain these standards and
quality of cable service, then the City may list improvements to be made and the
grantee shall make such improvements. Failure to do so within a reasonable time
period, established by the City after consultation with the grantee, will constitute a
material breach of the franchise.
Q. Grantee's Emplovment Practices.
Equal opportunity in employment shall be afforded by grantees to all qualified
persons. No person shall be discriminated against in employment by a grantee
because of race, color, religion, national origin, age, disability or sex. A grantee
shall establish, maintain and carry out a positive and continuing program of specific
practices designed to assure equal opportunity to every aspect of cable system
employment policy and practice. Compliance with FCC's equal opportunity
regulations and policies will as be deemed as compliance with this ordinance.
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R. Service, Adiustment and Complaint Procedures.
1. Customer service requirements of the grantee, consumer protection rights
of subscribers, construction schedules and other construction-related requirements
of the grantee and other health, safety and welfare measures related to the
grantee's operation of the cable system and its provision of cable services shall be
in conformance with the requirements of the cable act and FCC regulations related
thereto as they now exist or may hereafter be amended, specifically including 47
C.F.R. Part 76, Subpart H.
2. A grantee shall not deny cable service, deny access or otherwise
discriminate against subscribers, channel users, or general citizens on the basis of
race, color, religion, national origin, sex, age or disability. A grantee shall comply
at all times with all other applicable federal, state and local laws and regulations
relating to nondiscrimination.
3. In accordance with section 623 (f) of the cable act, grantee shall not charge
a subscriber for any service or equipment that the subscriber has not affirmatively
requested by name. For purposes of this subsection, a subscriber's failure to
refuse a cable operator's proposal to provide such service or equipment shall not
be deemed to be an affirmative request for such service or equipment.
4. Except for circumstances beyond a grantee's control such as acts of God,
weather, wars, riots and civil disturbances, a grantee shall establish a maintenance
service capable of locating and correcting system malfunctions promptly.
5. A listed toll-free telephone number shall be made available to subscribers
for service calls twenty-four (24) hours a day, seven days a week. Corrective action
shall be initiated as set forth in !he cable act and shall be completed a~ promptly
as practicable. Appropriate records shall be made of service calls, showing when
and what corrective actions were completed. Such records shall be available to the
City during normal business hours and shall be reported in summary form at least
monthly and retained for not less than one (1) year.
6. A grantee shall furnish each subscriber at the time service is installed written
instructions that clearly set forth procedures for placing a service call.
7. A grantee shall interrupt system service after 6:00 AM and before 12:01 AM
only with good cause and for the shortest time possible.
8. A grantee shall comply with all other customer service guidelines detailed in
the cable act and any changes or revisions made thereto.
9. The grantee shall resolve all complaints received at the City's office within
seventy-two (72) hours from the time the grantee is notified by the City.
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S. Subscriber Fees.
By accepting a franchise granted pursuant to the terms and conditions imposed by
this ordinance, the City shall have the authority and right to regulate the grantee's
fees or rates subject to the extent to which this authority may be allowed by federal,
state or local law, rules or regulations.
T. Notification to Subscribers.
1. The grantee shall provide written information, at least annually, on products
and services offered, prices and options for services and conditions of subscription
to programming and other services, installation and service maintenance policies,
instructions on how to use the service, channel positions of programming carried
on the system and bill and complaint procedures.
2. Subscribers will be notified of any changes in rates, programming services
or channel positions as soon as possible in writing. Notice will be given to
subscribers a minimum of thirty (30) days in advance of such changes if the change
is within the control of the grantee. In addition, the grantee shall notify subscribers
thirty (30) days in advance of any significant changes in the other information
required by the proceeding paragraph.
U. Disconnection. Subject to federal, state and local law and/or ordinance, there
shall be no charge for full disconnection of service. If any subscriber fails to pay
the properly due monthly subscription fee, or any other properly due fee or charge,
the grantee may disconnect the subscriber's service, provided that such
disconnection shall not be effected until after the latter to occur of: (i) thirty (30)
days after the due date of such delinquent fees or charge; or (ii) five (5) days after
delivery to such subscriber of a written notice of the intent to disconnect. If a
subscriber pays all amounts due before the expiration of the later to occur of either
of the foregoing dates, then the grantee shall not disconnect service to such
subscriber. After disconnection, upon payment in full of the delinquent fee or
charge and the payment of a reconnection charge, the grantee shall promptly
reinstate the subscriber's service.
V. Refunds. Refunds to subscribers shall be made or determined in the following
manner:
1 . If the grantee fails, upon request of a subscriber, to provide any service then
being offered, the grantee shall promptly refund all deposits or advance charges
paid for such service to that subscriber. This provision does not alter the grantee's
responsibility to subscribers under any separate contractual agreement or relieve
the grantee of any other liability or obligation;
2. If any subscriber terminates any service prior to the end of a prepaid period,
a proportionate portion of any prepaid subscriber service fee, using the number of
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days as a basis, shall be promptly refunded to the subscriber by the grantee, upon
request by the subscriber. Refunds may be made by check or by credit if the
subscriber changes to another location within the grantee's service area. This
notice shall be provided to subscribers as part of the grantee's subscriber
information materials and will be placed on the monthly billing statement.
3. If any subscriber is without service for any reason for a period exceeding
twenty-four (24) hours after the grantee receives notice of such outage, excluding
where a subscriber has damaged the system's equipment, upon the request of the
subscriber, the subscriber's account shall be credited. This notice shall be provided
to subscribers as a part of the grantee's subscriber information materials and will
be placed on the monthly billing statement.
4. Refund checks will be issued promptly, but no later than either (i) the
subscriber's next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or (ii) the return of the equipment supplied by the grantee if
service is terminated.
w. Protection of Subscriber Privacy.
Protection of subscriber privacy shall be as mandated by federal law. See United
States Code Annotated Title 47 Part IV, Miscellaneous Provisions, Section 551.
X. Liabilitv for Damaaes.
1. A grantee shall pay all damages and penalties that the City may legally be
required to pay as a result of granting a franchise.
2. All costs and expenses, including court costs and attorney's fees, incurred
as a result of actions brought between grantee and the City, shall be borne by the
parties incurring such costs and expenses, except in the event the City institutes
an action against the grantee for the payment of franchise fees under the franchise
which results in the payment of additional franchise fees to the City, the grantee
shall be liable for all reasonable costs incurred by the City in bringing such an
action, included, but not limited to, reasonable attorney's and other fees.
3. A grantee shall pay all expenses incurred by the City in defending itself with
regard to all damages and penalties mentioned in this ordinance. These expenses
shall include all out-of-pocket expenses, such as reasonable attorney fees, and
shall also include the reasonable value of any services rendered by the City
attorney, the attorney's assistants, or any representative of the City.
Y. Insurance.
Upon the granting of a franchise and during the term of the franchise, including the
time for removal of facilities or management as a trustee, a grantee shall obtain,
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"-_._-,...--,._-_._-_....,_.,.,..~_.,-,.,~--_..._...,._. ..
maintain, pay all premiums for, and file with the City Manager written evidence of
premium payment and certificates of insurance for the following types of insurance:
1. Comprehensive general liability insurance in the amount of one million
dollars ($1,000,000) for bodily injury or death to each person, one million dollars
($1,000,000) for property damage resulting from anyone accident, three million
dollars ($3,000,000) in an umbrella policy covering bodily injury, death and property ,
claims, and one million dollars ($1,000,000) for all other types of liability.
2. Workers' Compensation and Employer's Liability in accordance with state
statutes.
3. Comprehensive automotive liability insurance with bodily injury limits of not
less than five hundred thousand dollars ($500,000) per occurrence and property
damage limits of not less than five hundred thousand dollars ($500,000).
4. Other Insurance Provisions:
a. The City, its officers, boards, commiSSions, elected officials and
employees shall be named as an additional insured on the commercial
general liability policy. This insurance policy shall contain the appropriate
additional insured endorsement signed by a person authorized by that
insurer to bind coverage on its behalf.
b. Each insurance policy shall be endorsed to state that coverage shall
not be suspended, voided, canceled, reduced in coverage or in limits except
after thirty (30) days prior written notice has been provided to the City.
Should insurance requirements not be maintained, the City reserves the right
to cause insurance to be in effect and charge the grantee for cost of
designated coverage.
c. Insurance is to be placed with insurers rated A or better by A & M
Best. The insurers must also be duly authorized to transact business in the
State of Texas.
d. Certificates of Insurance and endorsements reflecting coverage shall
be forwarded to:
City Manager
City of Colleyville
P. O. Box 185
Colleyville, Texas 76034
Z. Indemnification.
A grantee shall, at its sole cost and expense, fully indemnify, defend and hold
harmless the City, its officers, boards, commissions, agents and employees against
20
any and all claims, suits, actions, liability and judgments for damages (including but
not limited to expenses for reasonable legal fees and disbursements and liabilities
assumed by the City in connection therewith):
1. To persons or property, in any way arising out of or through the acts or
omissions of grantee, its servants, agents or employees, or to which a grantee's
negligence shall in any way contribute;
2. Arising out of any claim for invasion of the right of privacy, for 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 (excluding claims arising out of or relating to City programming);
and
3. Arising out of grantee's failure to comply with the provisions of any federal,
state, or local statute, ordinance or regulation applicable to grantee in its business
hereunder.
AA. Performance Evaluation Sessions.
1. The City and a grantee may hold scheduled performance evaluation
sessions every year from the anniversary date of a grantee's award of a franchise
or as may be required by federal and state law.
2. Special evaluation sessions may be held at any time during the term of a
franchise at the request of the City or a grantee, and upon thirty (30) days written
notice.
3. Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, service rate structures, franchise fee,
liquidated damages, free or discounted services, application of new technologies,
system performance, services provided, programming offered, customer complaints,
privacy, amendments to this ordinance, judicial and FCC rulings, line extension
policies, and City or grantee rules.
4. Nothing herein shall require the grantee to reopen this contract to
negotiations for changes.
BB. Termination Procedures.
1. The City reserves the right to terminate a franchise and all rights and
privileges of the grantee in the event of a substantial breach of its terms and
conditions. A substantial breach by a grantee shall include, but shall not be limited
to, the following:
a. A grantee refuses, neglects, or fails to construct, operate or maintain
21
its cable system in accordance with the terms of this ordinance and its
franchise; or
b. Fails to comply with the conditions of occupancy of any public ways;
or
c. Fails to make required extensions of service after notice and cure
period; or
d. Willfully or knowingly makes false statements on or in connection with
its franchise application or proposal for renewal; or
e. Fails or refuses to remit to the City its franchise fee in a timely
manner; or
f. In any other way substantially violates the material terms or the
material conditions of this ordinance or its franchise; or
g. Attempts to evade any material provision of a franchise or commit or
attempts to commit any fraud or deceit upon the City or grantee's
subscribers.
2. The foregoing shall not constitute a major breach if the violation occurs but
is without fault of a grantee or occurs as a result of circumstances beyond its
control. A grantee shall not be excused by mere economic hardship nor by
misfeasance or malfeasance or omissions of its directors, officers, or employees.
3. Prior to invoking termination procedures, the City Manager shall make a
written demand that a grantee comply with any such provision, rule, order, or
determination under or pursuant to a franchise. If the violation by a grantee
continues for a period of thirty (30) days following such written demand without
written proof that corrective action has been taken or is being actively and
expeditiously pursued, the City Manager may place the issue of termination of the
franchise before the City Council. The City shall serve on the grantee, at least
fifteen (15) days prior to the date of such City Council meeting, a written notice of
intent to request such termination and the time and place of the meeting. Public
notice shall be given of the meeting and issue which the City Council is to consider.
4. The City Council shall hear and consider the issue and shall determine in its
discretion whether or not any violation by the grantee has occurred.
5. If the City Council determines the violation by a grantee was the fault of
grantee and within its control, the City Council may, by resolution, declare that the
franchise of the grantee shall be terminated. The City Council may order a
compliance period of thirty (30) days or more. Opportunity for compliance does not
need to be granted for intentional fraud or misrepresentation.
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6. The issue of termination shall automatically be placed upon the City Council
agenda if compliance is not met by the expiration date. At the designated meeting,
the City shall give the grantee an opportunity to state its position on the matter.
The City Council then may terminate the franchise upon a finding that the grantee
has failed to achieve compliance or may further extend the period.
7. The City may, at its sole discretion, take any lawful action which it deems
appropriate to enforce the City's rights under the franchise in lieu of termination of
the franchise.
8. The grantee may appeal such determination to an appropriate court, which
shall have the power to review the decision of the City de novo and to modify or
reverse such decision as justice may require. Such appeal to the appropriate court
must be taken within sixty (60) days of the issuance of determination by the City.
CC. Failure of City to Enforce Compliance.
A grantee shall not be excused from complying with any of the terms and conditions
of this ordinance or a franchise by any failure of the City to insist upon the grantee's
performance or any failure of the City to seek grantee's compliance with any terms
or conditions of either the franchise or this ordinance.
DD. Limits on a Grantee's Recourse.
1. A grantee, by accepting a franchise, shall acknowledge that:
a. It has not been induced to accept the franchise by any promise, oral
or written, by or on behalf of the City or by any third person regarding any
term or condition of this ordinance or the franchise not expressed therein.
b. No promise or inducement, oral or written, has been made to any City
employee or official regarding receipt of a cable television franchise.
c. It has carefully read the terms and conditions of this ordinance and
accepts those terms and conditions regardless of whether they are
contained in the franchise document(s).
d. It shall not apply for any waivers, exceptions or declaratory rulings
from the FCC or any other federal or state regulatory agency which would
materially and directly affect the franchise granted by the City to the cable
system grantee without providing the City Manager with copies of all filings.
2. Nothing in this section or in section 635A of the cable act shall be construed
as creating or authorizing liability of any kind, under any law, for any action or
failure to act relating to cable service or the granting of a franchise by the City or
any official, member, employee or agent of such authority or entity.
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. ___._^.~___._M___~__~'_4_ __._.~..__....._...~_.,_ .........._._
EE. Unlawful Acts: Penalties.
It shall be unlawful for any person, firm or corporation to:
1. Establish, operate or carry on the business of distributing to any subscriber
location in the City any television signals or radio signals by means of a cable
system unless a franchise has first been obtained.
2. Construct, install or maintain within any public street or property in the City
any equipment or facilities for distributing television signals or radio signals through
a cable system unless a franchise authorizing use of the street or property or area
has first been obtained.
3. Intake any unauthorized connection with any part of a franchised cable
system within the City for the purpose of receiving any television signal, radio
signal, picture, program or sound, without making proper payment to the cable
system owner.
4. Intentionally tamper with, remove or injure any cables, wires or equipment
used for distribution of television signals, radio signals, pictures, programs or
sound.
FF. Foreclosure.
Upon the foreclosure or other judicial sale of all or a substantial part of the system
or upon the termination of any lease covering all or a substantial part of the system,
a grantee shall notify the City Manager of such fact, and such notification shall be
treated as a notification that a change in control of a grantee has taken place.
GG. Transfer of Franchise.
1. No franchise shall be transferable except with the approval of the Council as
expressed by ordinance. The term "transferable", as used herein, shall not be
construed in such a manner as to prevent the franchise holder from pledging said
franchise as security for a valid debt or mortgage.
2. In the absence of extraordinary circumstances, the City Council will not
approve any transfer or assignment of a franchise within thirty-six (36) months after
initial construction or acquisition of the system.
3. A transferee, in addition to a nonrefundable fee of one thousand dollars
($1,000.00), shall pay to the City, within thirty (30) days of receipt of notice of the
amount, an amount sufficient to allow the City to recoup the City's remaining out of
pocket costs associated with granting the transfer of franchise which were not
defrayed by fees collected in this subsection (excluding pro forma transfers).
These out of pocket costs may be defined in the franchise; those which shall always
24
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be recoverable for the transferring of franchise process are: (i) publication costs;
and (ii) copying costs.
4. Approval of a transfer shall not constitute a release of the original franchisee
from its obligations. The original franchisee shall continue to be bound by the
original franchise agreement.
HH. Renewal of Franchise.
1. Renewal of cable franchises shall be accomplished in the manner and form
set out in Section 626 of the Cable Communications Act of 1992, or in any
successor provisions.
2. A renewed applicant to whom the City Council grants a franchise, shall pay
to the City, within thirty (30) days of receipt of notice of the amount, an amount
sufficient to allow the City to recoup the City's out-of-pocket costs associated with
renewing the franchise. These out of pocket expenses may be defined in the
franchise; those which shall always be recoverable for the renewal process are: (i).
publication costs; and (ii) copying costs.
II. Arbitrary and Capricious Action bv a Grantee.
If, as a result of a dispute between a grantee and the City and prior to a settlement
of that dispute, the grantee arbitrarily or capriciously discontinues cable services
to its subscribers, the City Council shall declare the grantee's franchise immediately
canceled. The City shall seek appropriate judicial injunctive relief and shall
proceed to exercise its rights and powers as provided for in the ordinance and
franchise.
JJ. RiQhts Reserved to City.
The City reserves the right to:
1. Exercise its governmental powers to the full extent that such powers may
now or hereafter be vested in or granted to the City.
2. Adopt and promulgate ordinances as it shall find reasonably necessary in the
lawful exercise of its police power, including regulations relating to the City's control
over its streets and public ways.
3. Amend this ordinance as well as enact other ordinances and regulations
affecting the cable system in accordance with federal or state law or the franchise.
KK. Additional Provisions.
1. Every direction, notice or order to be served upon a grantee shall be
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delivered or sent by registered mail to grantee's designated office. Every notice
served upon the City shall be delivered or sent by registered mail to:
City Manager
City of Colleyville
P.O. Box 185
Colleyville, Texas 76034;
or at such other address as the City may, from time to time, designate in writing.
2. All provisions of this ordinance shall apply to a grantee, its successors, and
assigns, as such may be approved by City Council in accordance with this
ordinance.
3. The rights granted by this ordinance are subject to all franchises and permits
heretofore or hereafter granted by the City Council to use the streets of the City by
other public utility or public service corporations. It is not intended by the grant of
a franchise to abridge the exercise of the police power heretofore or hereafter
granted to the City by the state legislature. The grant of a franchise is subject to all
ordinances and resolutions of the City Council of the City as the same now exist or
may be hereafter amended, revised or codified, in the lawful exercise of any other
power granted to the City by the state legislature.
4. Specific mention of the materiality of any of the provisions herein is not
intended to be exclusive of any others for the purpose of determining whether any
failure of compliance hereunder is material and substantial.
5. The grantee, upon its acceptance of a franchise, shall be bound by the
provisions of this ordinance, and all matters agreed upon in a franchise agreement.
6. A grantee shall assume the cost of any publications required by law and
such is payable when a grantee signs a franchise.
7. This ordinance shall be and is hereby declared to be cumulative of all other
ordinances of the City of Colleyville, Texas, and this ordinance shall not operate to
repeal or affect any other ordinance except insofar as the provisions thereof might
be inconsistent or in conflict with the provisions of this ordinance, in which event
such conflicting provisions, if any, in such other ordinance or ordinances are hereby
repealed.
8. If any section, subsection, sentence, clause or phrase of this ordinance is for
any reason held unconstitutional, such holding shall not affect the validity of the
remaining portions of this ordinance.
9. All of the regulations provided in this ordinance are hereby declared to be
governmental and for the health, safety and welfare of the general public. Any
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ATTEST:
(},V-- ;)~
Je~arris, CMC
City Secretary
APPROVED AS TO FORM AND LEGALITY:
~7~
Ross T. Foster
City Attorney
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CITY OF COLLEYVILLE
4; /--Y /'
al<A~;4<-/
Cher1l FeigeV
Mayor
member of the City Councilor any City official or employee charged with the
enforcement of this ordinance, acting for the City of Colleyville, Texas, in the
discharge of his duties, shall not thereby render himself personally liable; and he
is hereby relieved from all personal liability for any damage that might accrue to
persons or property as a result of any act required or permitted in the discharge of
his said duties.
10. This ordinance shall become effective from and after its passage as provided
by law.
LL. Acceptance of Terms and Conditions bv a Grantee.
The grantee, by accepting the franchise, shall agree to accept the validity under
present law of the terms and conditions of the franchise. The grantee will not, at
any time, proceed against the City in any claim or proceeding under present law
challenging any term or provision of the franchise as unreasonable, arbitrary or
void. The grantee and City each reserve the right to challenge the rights and
obligations set forth in this ordinance and any franchise as they may be affected by
state and federal law passed and established after the date of this ordinance and/or
the franchise as appropriate
MM. Time is of the Essence.
Whenever this ordinance or a franchise agreement sets forth any time for any act
to be performed by or on behalf of a grantee, such time shall be deemed of the
essence. A grantee's willful failure to perform within the time allotted, in any case,
shall be sufficient grounds for the City to invoke liquidated damages, default
proceedings, or revocation of a franchise.
AND IT IS SO ORDERED
The first reading and public hearing being conducted on the 4ti- day of O!JIJber
1994.
The second reading and public hearing being conducted on the -1i!!:.. day of~,
1994.
The third reading and public hearing being conducted on the Jt!
1994.
day of NoVt-m hif ,
Tabled at the third reading
Passed and adopted this 6th day of December, 1994
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