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HomeMy WebLinkAboutOrdinances (O-94-966)-11/01/1994 ORDINANCE 0-94-966 I 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 1 --.-.--------------r.-.~-..-... - r . 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 2 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 3 -- ------------.--------. --"""'T.---------------- 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 4 ._--- . .-.--.......,-..---.----....-.- - 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. 5 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. 6 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. 7 -.------...----,---..-.......-- I I 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 8 -r----.-. '--" -. . ...-.-. . ..-....---.- ...r---..-.--.----.........--. 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 9 .---.----.---...---r.. ...-.... . .. .-.-. --..... --r -..- I I I 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 10 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 11 .... ------~--~-".,.._._----,.--- 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 12 .. __._~1_~..~_ 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. 13 "'..--"-----0---.-<-4"------.- .~_._-_.--.~.-._--~..--..---.-.".--.,.--.."... 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. 14 .n._._~.... ...... ._.___.....___..._. .__. 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. 15 ......~._----'~.._..-.,---... . ..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. 16 --...-..........--........,....--. 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. 17 ---~,._-".....,.-~-".----_._~----'--_._-"- 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 18 -----.-.----,--....-....... 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, 19 ....._"~.____._..__~.,_,.___~.___....,._.__..w.__ "-_._-,...--,._-_._-_....,_.,.,..~_.,-,.,~--_..._...,._. .. 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. 22 .. ._-~------_.._----_.- 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. 23 . ___._^.~___._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 .. __._________0___________. ----Th- 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 25 .-------_..... -~.-.-- 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 26 ------"--"."--~ " ATTEST: (},V-- ;)~ Je~arris, CMC City Secretary APPROVED AS TO FORM AND LEGALITY: ~7~ Ross T. Foster City Attorney 28 .-------~.----.--.'_r_---- ._ __"_"~____._"___"_"'M"'.~__.__~___"""-'-" "-", 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 27 ..---------..... ""-T ......-...-...