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South Houston |
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Code of Ordinances |
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CODE OF ORDINANCES |
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Appendix B. FRANCHISES |
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Article I. CATV FRANCHISE |
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ORDINANCE NO. 2004-04 AN ORDINANCE OF THE CITY OF SOUTH HOUSTON, TEXAS, GRANTING TO TEXAS CABLE PARTNERS, L.P., D/B/A TIME WARNER CABLE, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AND FRANCHISE FOR THE TERM OF FIFTEEN YEARS TO ERECT, MAINTAIN, AND OPERATE A CABLE SYSTEM IN THE CITY OF SOUTH HOUSTON, TEXAS; TO ERECT, MAINTAIN, AND OPERATE ITS CABLE SYSTEM IN, OVER, UNDER, ALONG, AND ACROSS THE BRIDGES, EASEMENTS, AND OTHER PUBLIC WAYS AND PLACES IN THE CITY; PRESCRIBING COMPENSATION FOR THE RIGHTS, PRIVILEGES, AND FRANCHISE CONFERRED HEREUNDER; PRESCRIBING THE CONDITIONS GOVERNING THE OPERATION OF THE BUSINESS INSOFAR AS IT AFFECTS THE USE OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH BUSINESS; INSTALLATION, UPGRADE AND OPERATION OF SAID SYSTEM AND BUSINESS; CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT; AND PROVIDING FOR SEVERABILITY. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTH HOUSTON, TEXAS:
ARTICLE I
1.01. Recitals. The facts and recitations set forth in the preamble of this Franchise Ordinance are hereby adopted, ratified, and confirmed.
ARTICLE II
2.01. General. The following terms, phrases, words, abbreviations, and their derivations shall have the meanings hereafter set forth. Terms, phrases, words, and abbreviations not defined herein shall be construed in accordance with the ordinances of the City or their customary usage and meaning. When not inconsistent with the context, words used in the singular shall include the plural, words in the plural shall include the singular, and words used or defined in one tense or form shall include other tenses or derivative forms. The headings contained in this Franchise Ordinance are to facilitate reference only, and do not form a part of this Franchise Ordinance, and shall not in any way affect the construction or interpretation hereof. The words "shall," "will," and "must" are mandatory, and the word "may" is permissive or directory: A. Anniversary Date. The date on which this Franchise Ordinance was passed and approved by the City Council of the City of South Houston. B. Basic Cable Service. The lowest level of cable service offered by Grantee to all subscribers that includes, at a minimum, the retransmission of any local (Greater Houston Metropolitan Area) television broadcast signals. C. Cable Act. Title VI of the Communications Act of 1934, as amended. D. Cable Service. The transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection of such video programming or other programming service. Notwithstanding any provision of this Franchise Ordinance to the contrary, in the event a final ruling from a court of competent jurisdiction determines or federal or state legislation specifies that Cable Modem Service provided over a Cable System is a Cable Service or otherwise authorizes the City to regulate and to assess and collect a fee from Grantee for the right, the privilege, and the franchise to use the City's rights-of-way to provide Cable Modem Service over the Cable system, then the provision of cable modem service shall be considered as a cable service and revenues therefrom shall be included as part of Gross Revenues as herein defined. E. Cable System. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include: 1. A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; 2. A facility that serves subscribers without using any public right-of-way; 3. A facility of common carrier which is subject, in whole or in part, to the provisions of Subchapter II of this chapter, except that such facility shall be considered a cable system (other than for purposes of 621 (c) of Title 47 of the U. S. Code) to the extent such facility is used in the transmission of video programming directly to subscribers; unless the extent of such use is solely to provide interactive on-demand services; 4. An open video system that complies with Section 653 of Title 47 of the U. S. Code; or 5. Any facilities of any electric utility used solely for operating its electric utility system. F. Channels. A frequency band capable of carrying a video programming service or other service on a twenty-four (24) hour per day basis. G. City. The City of South Houston, Texas, a municipal corporation of the State of Texas. H. City Council. The present governing body of the City or any successor to the legislative powers of the present City Council. I. Converter. An electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber and which, by an appropriate Channel selector, also permits a Subscriber to view all signals delivered at designated dial locations. J. Expanded Subscriber Service. The Basic Cable Service tier plus the addition of one or more clusters of cable programming services which may or may not be offered for an additional monthly charge. K. Federal Communications Commission or FCC. The agency as presently constituted by the United States Congress or any successor agency with jurisdiction over cable matters. L. Franchise Year. Any twelve-month period commencing on an Anniversary Date and extending to the day immediately preceding the next subsequent Anniversary Date. M. Franchise Area. The incorporated area of the City and such additional areas as may be included in the corporate limits of the City during the term of this franchise. N. Grantee. Texas Cable Partners, L.P., d/b/a Time Warner Communications or any person who succeeds Texas Cable Partners, L.P. in accordance with the provisions of this franchise. O. Gross Revenues. All revenues collected by the Grantee from or as a result of the operation of its Cable System to provide cable services including, but not limited to, Basic Cable Service revenues, Standard/Expanded Tier revenue, Pay Television revenues, advertising revenues, revenues resulting from the lease of channels, and installation fees. If it is determined in the future that cable modem service is a cable service, Grantee shall include revenue received from cable modem service in its calculation of Gross Revenues for the purposes of paying franchise fees to the City. Gross revenues shall not include: 1. Any taxes which are imposed on any Subscriber or user of the system by any governmental unit and collected by the Grantee for such governmental unit; 2. Revenues resulting from the sale of Cable system equipment which are available from retail providers; 3. Revenues resulting from the studio production of programming used on the Public, Educational, and Government Access Channels; or 4. Franchise fees paid to the City pursuant to this Franchise Ordinance. P. Interconnect. When a Cable system is connected to an adjacent Cable System or Systems by coaxial cable, fiber optic cable, microwave, or other means and provides the capacity for simultaneous carriage of signals, such as access programming. Q. Pay Television. The delivery over the Cable system of Programming to Subscribers for a fee or charge over and above the charge for Basic Cable Service or Expanded Subscriber Service on a per-program or per-channel basis. R. Person. Any person, firm, partnership, association, corporation, company, or organization of any kind. S. Public Utility Commission of Texas. The agency as presently constituted by the laws of the State of Texas or any successor agency. T. "State-of-the-Art". State-of-the-Art shall mean Cable System equipment that is readily available with reasonable delivery schedules from two (2) or more sources of supply with the capability to perform the intended functions demonstrated in the field under actual operating conditions by several unrelated operators for purposes other than test or experimentation and implementation by the Grantee is technically and economically feasible to both the Grantee and subscribers. U. Street. The surface and the space above and below any public street, road, highway, alley, bridge, sidewalk, or other public place or way now or hereafter held by the City for the purpose of public travel or purposes compatible with the installation of utility lines and shall include other easements or rights-of-way now held or hereafter held by City which shall, within their proper use and meaning, entitle City and Grantee to the use thereof for the purposes of installing or transmitting Cable System transmissions over poles, wires, cables, conductors, conduits, manholes, amplifiers, appurtenances, attachments, and other structures, equipment and facilities as may be ordinarily necessary and pertinent to a Cable System. V. Subscriber. Any person who lawfully receives any cable service delivered by the Cable System.
ARTICLE III
3.01. Use of Public Streets. There is hereby granted to Time Warner the right, privilege, and franchise to have, acquire, construct, reconstruct, maintain, use, and operate in the City a Cable system, and to have, acquire, construct, reconstruct, maintain, use, and operate in, over, under, and along the present and future streets of the city as well as other easements and rights-of-way held by the City all necessary or desirable poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes, and other structures and appurtenances necessary for the construction, maintenance, and operation of a Cable system in the City. 3.02 Use, Rental, or Lease of Utility Poles and Facilities. There is hereby granted to Grantee the authority to contract with the City or with the holder or owner of any utility franchise in the City for the use, rental, or lease of its or their poles, underground conduits, and other structures and facilities for the purpose of extending, carrying, or laying Grantee's wires, cables, electronic conductors, and other facilities and appurtenances necessary or desirable in conjunction with the operation of its Cable System. The City agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to its franchise, allow, and is encouraged to allow, Grantee to make such use thereof pursuant to any agreement reached between such utility and Grantee.
ARTICLE IV
4.01. Term of Franchise. Upon the filing with the City by Grantee of the written acceptance required herein, this franchise shall be in full force and effect for a term and period of fifteen (15) years commencing thirty (30) days after final passage and approval of this Franchise Ordinance. 4.02. Public Hearings. At least thirty (30) days prior to any public hearing on this franchise, the City Secretary shall notify the Grantee of the date, time and place of the hearing. At the hearing, the Grantee shall be entitled to all the rights of due process consistent with the City proceedings, including but not limited to, the right to present evidence and the right to be represented by counsel. 1. Upon request of the City and within sixty (60) days from receipt of such request, the Grantee shall file a report with the City secretary, in reasonable detail, specifically addressing, at a minimum the following areas or any other topic deemed material or relevant by the City occasioned by advances in technology; (i) compliance with the requirements regarding technical performance and testing, as provided in '11.02 of this franchise including a review of the most recent review of the most recent proof of performance testing and signal leakage testing (which includes the City service area); (ii) compliance with any plans or specifications submitted by the Grantee in connection with the System Replacement and Upgrade and sequence and system characteristics, as provided in Article X of this franchise; (iii) a summary of all service interruptions during the preceding calendar year (other than scheduled interruptions or interruptions of a duration less than two (2) hours for all Subscribers or any interruptions which affected fewer than ten percent (10%) of all Subscribers); (iv) a summary of written Subscriber complaints received during the latest twelve-month (12) period, the number of written Subscriber complaints received and the actions taken by the grantee in response thereto. For the purposes herein the term "complaints" shall mean a written inquiry from a subscriber which requires or results in subsequent corrective action on the part of the Grantee or any written communication from a subscriber received by the Grantee objecting to the rates, programming or other practices of the Grantee; (v) compliance with the customer service standards, as provided in '11.03 and Exhibit A of this franchise; (vi) written statement as to whether there has been any substantial change from information or plans previously provided to the City. 2. All reports to be prepared under this subsection and submitted by Grantee shall be based on information for at least a twelve-month (12) period ending with the most current quarter available, but not on information of twelve (12) months' data that ends more than six (6) months before the time of the performance evaluation hearing. 3. The Grantee shall make available to the City Council, or its designee, any records, documents, or other information as may be reasonably relevant to the City Council's review. 4. An audio recording of any public hearing regarding this franchise shall be made by the City and all records, minutes, and recordings thereof shall be retained by the City Secretary and be available for inspection throughout the term of this franchise. 5. The City Council shall hear any interested persons during such hearings and shall determine whether Grantee did reasonably comply with the terms and conditions imposed by this franchise. 4.03. Renewal. Grantee and City agree that the Cable Act or other law applicable at the time of renewal shall govern franchise renewal proceedings.
ARTICLE V
5.01. Publication Costs. Any and all costs of publication, which may be required by law or action of City Council shall be borne by Grantee.
ARTICLE VI
6.01. Compliance with Applicable Laws. Notwithstanding any other provision of this franchise to the contrary, the Grantee shall at all times comply with all lawful and generally applicable laws, rules, and regulations of the City, state and federal governments and any administrative agencies thereof. If any such state or federal law, rule, or regulation shall require or permit the Grantee to perform in conflict with this franchise or prohibit the performance of any service required by provisions of this franchise, then immediately following knowledge thereof, the Grantee shall notify the City Council or its designee in writing of the point of conflict believed to exist between such state or federal law, rule, or regulation and this franchise. If the City Council determines that a material provision of this franchise does in fact conflict with such state or federal law, rule, or regulation, the parties shall enter into good faith negotiations to modify any provision hereof to such reasonable extent as may be necessary to carry out the full intent and purpose of this franchise. 6.02. Subject to Police Power of the City. The construction, maintenance, and operation of Grantee's Cable System and all property of Grantee subject to the provisions of this franchise shall be subject to all lawful police powers, rules, and regulations of the City. The City shall have the power at any time to order and require Grantee to remove or abate any pole, line, tower, wire, cable, guy, conduit, electric conductor, or any other structure or facility that is dangerous to life or property. In the event Grantee, after written notice, fails or refuses to act, City shall have the power to remove or abate the same at the expense of Grantee, all without compensation or liability for damages to Grantee, unless caused by the negligence or willful misconduct of the City or its agents. 6.03. Modifications by FCC; Jurisdiction of FCC. It is specifically agreed by City and Grantee that any modification of the provisions of this franchise resulting from amendment of the rules and regulations of the FCC or other applicable state or federal governmental agency shall be automatically incorporated into this franchise unless: 1. Such modification provides for leniency in the provisions included in this franchise and such leniency is not required by law; or 2. The City Council specifically rejects such incorporation of said modifications within one (1) year of the adoption of such modification and such rejection is not in conflict with any City, state or federal laws, rules, or regulations.
ARTICLE VII
7.01. Use. All structures, wires, cables, equipment, and facilities erected or maintained by Grantee within the City shall be located as to cause minimum interference with the proper and intended use of the streets and with the rights or reasonable convenience of the owners or occupants of property which adjoins any of such streets. The location of all poles, towers, anchors, wires, cables, electronic conductors, conduits, manholes and other structures and appurtenances in, over, under, along, and across the present and future public streets, highways, alleys, bridges, easements, and other public ways and places in the City shall be fixed under the supervision of the City or an authorized agent appointed by the City. When the Grantee shall make or cause to be made excavations or shall place obstructions in any street, alley, or other public place, the public shall be protected by barriers and lights placed, erected, and maintained by the Grantee in accordance with any existing or future City, state, or federal requirements. 7.02. Restoration. The surface of any street disturbed by Grantee in laying, constructing, maintaining, operating, using, extending, removing, replacing, or repairing its Cable System shall be restored by Grantee immediately after the completion of the work, at its cost and expense, to as good a condition as before the commencement of the work and shall be maintained by Grantee to the satisfaction of the City for one (1) year from the date of completion of such restoration work. No street shall be encumbered by construction, maintenance, removal, restoration, or repair work by Grantee for a longer period than shall be necessary to execute such work. If there is an unreasonable delay by Grantee in restoring and maintaining streets after such excavations or repairs have been made, City shall have the right, following written notice to Grantee to which Grantee has forty-eight (48) hours in which to respond, to restore or repair the same and to require Grantee to pay to the city the reasonable cost of such restoration or repair, all without compensation or liability for damages to the Grantee unless the delay is due to the negligence or willful misconduct of the City or its agents. In the event City determines that Grantee's use of any of City's streets and rights-of-way as set forth in this agreement pose an immediate danger to the health, safety or general welfare of the public, City shall have the right to restore or repair same and shall require Grantee to pay to the City the reasonable costs incurred regarding same, all without compensation or liability for damages to the Grantee. 7.03. Relocation. Whenever by reason of the construction, repair, maintenance, relocation, widening, raising, or lowering of the grade of any street by the City or by the location or manner of construction, reconstruction, maintenance, or repair of any public property, structure, or facility by the City that is not to be used in competition with the facilities of the Grantee, it shall be deemed necessary by the City for Grantee to move, relocate, change, alter, or modify any of its facilities or structures, such change, relocation, alteration, or modification shall be promptly made by Grantee, at its cost and expense, when directed in writing to do so by the City, without claim for or right of reimbursement of cost or damages against the City. In the event Grantee, after such notice, fails or refuses to commence, pursue, or complete such relocation work within a reasonable time, the City shall have the authority, but not the obligation, to remove or abate such structures or facilities and to require Grantee to pay to the City the reasonable cost of such removal or abatement, all without compensation or liability for damages to Grantee. 7.04. Temporary Removal of Wire for Building Moving. Upon written request of any person holding a building moving permit issued by the City, Grantee shall remove, raise, or lower its wires and cables temporarily to permit the moving of houses, buildings, or other bulky structures. The reasonable expense of such temporary removal, raising, or lowering shall be paid by the benefitted person, and Grantee may require such payment in advance, Grantee being without obligation to remove, raise, or lower its wires and cables until such payment shall have been made. Grantee shall be given not fewer than seventy-two (72) hours advance written notice to arrange for such temporary wire and cable adjustments. 7.05. Tree Trimming. From time to time, the City Council may pass ordinances regulating the trimming or removal of trees on or along City property, and Grantee shall comply with these ordinances. 7.06. Placement of Fixtures. Grantee shall not place poles, towers, or similar fixtures where the same will interfere with any gas, electric, or telephone fixtures, water hydrant or main, drainage facility, or sanitary sewer, and all such poles, towers, and similar facilities shall be placed as directed by the City and in such manner as not to interfere with the usual travel, use, or visibility of the streets. 7.07. Approval of Plans and Specifications. Grantee shall provide complete plans and specifications for all construction within streets to the City for its review at least thirty (30) days prior to the start of construction unless otherwise allowed by general ordinance. Approval of plans and specifications shall not be unreasonably delayed or denied. In the event of rejection, Grantee shall submit revised plans and specifications for approval. This provision shall apply to each construction sequence if the construction is accomplished in phases. 7.08. Underground Installation. In those portions of the City having telephone lines and electric utility lines underground, whether required by ordinance or not, any and all of Grantee's lines, cables, and wires shall also be underground. It shall be the policy of the City that existing poles for electric and communications purposes be utilized whenever possible and that underground installation, even when not required, is preferable to the placing of additional poles. 7.09. Facilities Location. From time to time, the City or its representatives may request identification of the specific location of certain Grantee facilities. The Grantee agrees to respond in writing to such request within ten (10) days of the receipt of the request. If, in the event that Grantee fails to provide the necessary information, damage is caused to Grantee facilities as a direct result of withholding said information, the Grantee shall hold the City harmless from all liability, damage, cost or expense resulting from any City action in this regard. The City shall have the right to be informed as to matters in connection with or affecting the construction, reconstruction, maintenance, operations, and repair of the facilities of the Grantee within the streets including, but not necessarily limited to, the identification and location of the Grantee's Facilities within the right-of-way and to periodical updates of such information as changes regarding same occur. Upon request from the City, the Grantee shall furnish the City information relevant to such matters, which is prepared, maintained, and available in the ordinary course of business. The Grantee does not warrant the accuracy of any information regarding the exact location or depth of its Facilities within the streets and disclaims any and all liability whatsoever based on the accuracy of such information.
ARTICLE VIII
8.01. Grantee's Obligation. Grantee shall pay, and by the acceptance of this franchise specifically agrees that it will pay, the following: A. Damages and Penalties. All damages or penalties which the City, its officers, agents, employees, or contractors may legally be required to pay as a result of damages arising out of the Grantee's installation, maintenance, or operation of Cable System, whether or not any act or omission complained of is authorized, allowed, or prohibited by this franchise. B. Expenses. If any action or proceeding is brought against the City or any of its officers, agents, employees, or contractors with respect to which payment may be sought for claims for damages or penalties described in this Article, the Grantee, upon written notice from the City, shall assume the investigation of defense and fully control any resolution or compromise thereof, including the employment of counsel and the payment of all expenses including the reasonable value of any services rendered by any officers, agents or employees of the City. C. Separate Counsel. The City shall have the right to employ separate counsel in any action or proceeding and to participate in the investigation and defense thereof, and the Grantee shall pay the reasonable fees and expenses of such separate counsel if employed with the approval and consent of the Grantee or if representation of both the Grantee and the City by the same attorney would be inconsistent with accepted canons of professional ethics.
ARTICLE IX
9.01. Minimum Coverage. Within thirty (30) days after the effective date of this franchise, Grantee shall file with the City Secretary and shall maintain on file throughout the term of this franchise a certificate of insurance evidencing liability insurance policy issued by a company duly authorized to do business in the State of Texas insuring City and grantee with respect to the installation, maintenance, and operation of Grantee's Cable system in the following minimum amounts: A. One Person: One Million Dollars ($1,000,000) for bodily injury or death to any one person. B. One Accident: One Million Dollars ($1,000,000) for bodily injury or death resulting from any one accident. C. Property Damage: One Million Dollars ($1,000,000) for property damage resulting from any one occurrence. D. All Other Types of Liability: One Million Dollars ($1,000,000) for all other types of liability per occurrence. 9.02. Notice of Cancellation or Reduction. Such policy of liability insurance shall contain the provision that written notice of expiration, cancellation, or reduction in coverage of the policy shall be delivered to the City Secretary and to Grantee at least thirty (30) days in advance of the effective date thereof. 9.03. Term. Such liability insurance shall be kept in full force and effect by Grantee during the existence of this franchise and thereafter until after the removal of all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures incident to the maintenance and operation of Grantee's Cable System, should such removal be required by City Council or undertaken by Grantee. 9.04. Worker's Compensation. The Grantee shall maintain throughout the term of this franchise, workers' compensation in the amount required by all applicable federal and state laws.
ARTICLE X
10.01. Plan for Replacement and Upgrade of System. Grantee has upgraded the cable system in the City of South Houston to a 750 MGHZ two-way fiber optic system in conformance with the rest of the system serving the Houston metropolitan area. The City of South Houston now has a cable system that is comparable, if not more advanced, than the rest of the country.
ARTICLE XI
11.01. Compliance with FCC Rules. Grantee shall comply with present and future rules and regulations of the FCC including, but not limited to, technical standards, testing requirements, consumer protection standards and consumer electronics compatibility regulations and all other present and future rules and regulations of the FCC in connection with and relating to the operation of Grantee's Cable System. 11.02. Technical Performance. Throughout the term of this Franchise Ordinance, the Grantee shall, at a minimum, operate and maintain the System in accordance with all applicable technical performance standards, regulations, and guidelines of the FCC. Grantee shall periodically test the technical performance of the system in accordance with all regulations and guidelines of the FCC. 11.03. Customer Service. The Grantee shall provide good customer service in accordance with all regulations and guidelines of the FCC and the City's customer service standards set forth in Exhibit A to this Franchise Ordinance, and any future requirements promulgated by the FCC, provided that such future requirements do not establish leniency with regard to those customer service standards identified in Exhibit A. 11.04. Interference with Reception. Grantee shall maintain and operate its Cable system in such a manner that it will not interfere with reception of television sets not connected to or served by such System, or other electronic devices, in accordance with any regulations promulgated by the FCC as amended from time to time related to cumulative leakage interference. 11.05. State-of-the-Art. Grantee shall undertake all construction and installation necessary to keep current with the latest developments in the state-of-the-art of Cable, as defined in this Franchise Ordinance whether with respect to increasing Channel capacity, developing and offering to Subscribers new services, instituting more extensive two-way service, or such other industry developments as may become available during the term of this franchise. 11.06. No Obscenity. Grantee shall comply in all regards with all federal, state and local laws regarding obscenity and shall not broadcast or transmit any picture, signal or sound or provide any service, which is obscene or otherwise, unprotected by the Constitution of the United States of America. 11.07. Quality of Service. Throughout the term of this franchise, the Grantee shall maintain the quality of service and meet operational standards in the maintenance and operation of its Cable system as are required herein. Should the City find that the Grantee has failed to maintain such quality of service or operational standards, the City shall notify the Grantee in writing following the procedures of Section 26.02 of this franchise.
ARTICLE XII
12.01. Required Programming Categories. Grantee's cable System shall carry at a minimum, a broad spectrum of programming comparable to other areas of the country and this spectrum of programming will conform to other communities served by Grantee's cable system. 12.02. Service for the Hearing Impaired. Grantee shall take any and all reasonable steps necessary to comply with any FCC or other federal or state requirements regarding altering or adapting programming for the hearing impaired. Grantee shall not take any action to remove or alter closed captioning provided for the hearing impaired as a part of any programming. Grantee shall deliver intact such closed captioning in the manner in which it arrives at the head-end or from another origination source to the Cable System. 12.03. Interconnection. Grantee's Cable system shall have the capability to interconnect with any other contiguous Cable Systems operated by Grantee.
ARTICLE XIII
13.01. All Prior Ordinances: This Franchise Ordinance shall supersede all prior Ordinances enacted by the City. All prior Ordinances in conflict with this Franchise Ordinance are hereby expressly repealed.
ARTICLE XIV
14.01. Emergency or Disaster. Grantee shall comply with all FCC regulations with regard to its Emergency Alert System.
ARTICLE XV
15.01. Equal Opportunity in Employment. Grantee shall afford equal opportunity in employment to all qualified persons. No person shall be discriminated against in employment because of race, color, religion, national origin, or sex.
ARTICLE XVI
16.01. Amount and Time. As compensation for the right, privilege, and franchise herein conferred, Grantee shall pay to City each year during the term of this franchise a sum equal to five percent (5%) of the Grantee's Gross Revenues for each year. Such payments shall be made quarterly. The payment shall be accompanied by a statement of gross revenues prepared according to accepted accounting practice showing in detail the Gross Revenues of Grantee during the preceding quarter of the calendar year. An authorized representative of the Grantee shall sign such statement. Upon the expiration of eight (8) years from the effective date of this franchise, the franchise fee percentage shall be adjusted to the maximum permitted by law at that time. 16.02. Right of Inspection of Records. The City shall have the right to inspect Grantee's records showing the Gross Revenues from which payments to the City are computed and to audit and re-compute any and all amounts paid under this franchise. No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this franchise or for the performance of any other obligation hereunder. 16.03. Other Payments to City. The franchise fee payable hereunder shall be exclusive of and in addition to all ad valorem taxes, special assessments for municipal improvements, and other lawful obligations of Grantee to City.
ARTICLE XVII
17.01. Books of Account. Grantee shall keep complete and accurate books of accounts and records of its business and operations under and in connection with this franchise. All such books of accounts and records shall be maintained at Grantee's principal office for a period of three (3) years. 17.02. Access by City. The City, through its duly designated officers, agents, or representatives, upon thirty (30) days' written notice, shall be given access to Grantee's principal office location in order to inspect all books of accounts and records of Grantee for ascertaining the correctness of Grantee's Franchise Fee calculation. 17.03. False Entry. Any false entry in the books of accounts and records of Grantee or false statement in the reports to City or its duly designated officers, agents, or representatives as to a material fact knowingly made by Grantee shall constitute a violation of a material provision of this Franchise Ordinance. 17.04. FCC Filings. Upon written request of the City, Grantee shall file copies of any and all reports and filings made to the FCC by the grantee, which directly relate to the City with the City Secretary.
ARTICLE XVIII
18.01. Authority and Obligation. Grantee shall have the authority and obligation to promulgate such rules, regulations, terms, and conditions governing the conduct of its business as shall be reasonably necessary to enable Grantee to exercise its rights and to perform its obligations under this franchise and to assure an uninterrupted service to all Subscribers; provided, however, such rules, regulations, terms, and conditions shall not be in conflict with any of the provisions of this franchise or any ordinance of City, the laws of the State of Texas and the United States of America, and the rules and regulations of the FCC and any other agency having jurisdiction. A copy of Grantee's rules, regulations, terms, and conditions shall be filed with the City Secretary and shall thereafter be maintained current by Grantee.
ARTICLE XIX
19.01. City Regulation of Grantee's Rates. The City Council shall be empowered to fix, alter, and regulate, by ordinance, the rates for any and all of those services, installations, and equipment, of Grantee subject to regulation by the City, consistent with FCC rules governing rate regulation. In such event the City Council shall first prescribe by ordinance the procedure and standards to be followed and the extent and scope of such rate regulations, all of which matters shall be consistent with due process and shall conform to any and all of those federal and state laws, rules, and regulations then applicable.
ARTICLE XX
20.01. Failure to Pay Bill. Grantee may disconnect installations and discontinue cable service to a Subscriber upon the Subscriber's failure to pay his/her bill within thirty (30) days of its rendition; provided, however, Grantee shall give the Subscriber at least eight (8) days written notice, delivered either by mail or served in person, that his/her service will be discontinued unless all monies due are paid to grantee before the expiration of such eight-day (8) period.
ARTICLE XXI
21.01. Drops. Upon written request from the City, Grantee shall provide one (1) free drop to each of the facilities identified in Exhibit B and to any and all future public buildings or facilities located in the City and designated by such written request or requests. Grantee shall bear any and all costs pertaining to installation of such drop when the facility is within 300 feet for underground installation or within 500 feet for aerial installation of Grantee's existing system. Any costs associated with providing the free drop in excess of the aforesaid distances shall not be the responsibility of Grantee. In addition, the cost of maintaining the drop once the installation is completed shall be borne by the City whether or not it is located within the aforesaid distances. 21.02. Basic Cable Service. Upon written request, Grantee shall provide free Basic Cable Service and, if needed, one (1) free converter to the principal facility of any and all present public schools and City owned buildings.
ARTICLE XXII
22.01. Rates, Charges, and Services. In its rates or charges, or in making available the services or facilities of the Cable System or in its rules or regulations, or in any other respect, Grantee shall not make or grant any illegal preference or advantage to any Subscriber or potential Subscriber and shall not subject any such person to any illegal prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the Cable System. Notwithstanding the foregoing, wherever new construction is taking place, service shall be made available on a non-discriminatory basis with respect to each sequence of construction if the construction is accomplished in phases.
ARTICLE XXIII
23.01. Franchise Non-Exclusive. The rights, privileges, and franchise granted hereby are not exclusive and nothing herein contained shall be construed to prevent City from granting any like or similar rights, privileges, and franchise to any other person within all of the City; provided, however, any such franchise shall not be on terms or conditions more favorable or less burdensome than those contained herein with respect to the following requirements: Upgraded Construction Service areas Franchise fees Insurance, performance bonds and similar instruments Customer service standards Reports and related record keeping
ARTICLE XXIV
24.01. Material Breach of Franchise. In addition to all rights and powers of the City by virtue of this franchise or otherwise, the City reserves as an additional and as a separate and distinct power the right to take any of the actions described in '24.02 in accordance with the procedures specified therein if any of the following events occur or for any of the following reasons: 1. The Grantee, by act or omission, violates any term, condition, or provision of this franchise; 2. The Grantee knowingly or willingly attempts to evade any material provision of this Franchise Ordinance; 3. The occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or non-judicial sale of all or any material part of the System; 4. In the event that the Grantee suspends or discontinues its business, fails to pay its debts due, becomes insolvent (howsoever such insolvency may be evidenced), is adjudicated insolvent, petitions, or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a receiver, custodian, liquidator or trustee or similar official or a similar process is undertaken by any tribunal against all or a material part of the System; or 5. The Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this franchise with the City, Subscribers or potential Subscribers. 24.02. Notice of Default; Opportunity to Cure. A. Notice of Default. The City Council shall exercise the right provided in '25.01 (D) hereof in accordance with the procedures set forth below: 1. The City shall notify the Grantee, in writing, of an alleged failure to comply with a material provision of this Franchise Ordinance, which notice shall specify the alleged failure with reasonable particularity. The Grantee shall within thirty (30) days after receipt of such notice or such longer period of time as the City may specify in such notice, either cure such alleged failure or, in a written response to the City, either present facts and arguments in refutation or excuse of such alleged failure or state that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure. 2. The City shall determine (i) whether a failure to comply with a material provision has occurred, (ii) whether such failure is excusable, and (iii) whether such failure has been cured or will be cured by the Grantee. The Grantee shall make available to the City, if requested, any records, documents or other information necessary to make the determination. 3. If the City determines that a failure to comply with a material provision has occurred and that such failure is not excusable and has not been or will not be cured by the Grantee in a manner and in accordance with a schedule reasonably satisfactory to the City, then the City may take any actions provided in '24.02 (B) hereof, provided that if the City Council acts on its own motion it shall follow the procedural steps set forth in '24.02 (A. 1-3) hereof. B. City Council Action in Event of Breach. In the event that grounds exist which give the City reason to believe that the Grantee fails to comply with a material provision of this Franchise Ordinance, as provided in 24.01 hereof, then, in accordance with the procedures provided in 24.02 (A) hereof, the City Council may, at any time during the term of this Franchise Ordinance, to the extent lawful: (i) Seek monetary damages from the Grantee as compensation for such material breach; and/or (ii) In the event that the Grantee does not cure the breach of the franchise agreement, or the City council does not elect to seek monetary damages from the Grantee or the Grantee does not agree to pay such damages, then, as an alternative to taking the action referred to above, the City council may revoke the franchise granted pursuant to this Franchise Ordinance by termination of this Franchise Ordinance.
ARTICLE XXV
25.01. General. In addition to all other rights and powers of City by virtue of this franchise or otherwise, City reserves as an additional and as a separate and distinct power the right to terminate and cancel this franchise and all rights and privileges of Grantee hereunder in any of the following events or for any of the following reasons: A. Violation of Provisions. Grantee shall by act or omission violate any term, condition, or provision of this franchise and shall fail or refuse to effect compliance within thirty (30) days following written demand by City to do so. B. Insolvent or Bankrupt. Grantee becomes insolvent or is adjudged bankrupt or all or any part of Grantee's facilities are sold under an instrument to secure a debt and are not redeemed by Grantee within thirty (30) days from the date of such sale; provided, however, this shall not be an event of termination or cancellation in the event of bankruptcy proceeding and the trustee, receiver, or debtor in possession agrees in writing to be bound by the terms of this franchise. C. Fraud or Deceit. Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this franchise with the City, Subscribers, or potential Subscribers. D. Method of Termination and Cancellation. Any such termination and cancellation of this franchise shall be by ordinance adopted by City Council; provided, however, before any such ordinance is adopted, Grantee must be given at least sixty (60) days' advance written notice, which notice shall set forth the causes and reasons for the proposed termination and cancellation, shall advise Grantee that it will be provided an opportunity to be heard by City Council regarding such proposed action before any such action is taken, and shall set forth the time, date, and place of the hearing. In no event shall such hearing be held fewer than thirty (30) days following delivery of such notice to Grantee. At the hearing, the Grantee shall be entitled to all rights of due process consistent with the City procedures, including but not limited to the right to present evidence and the right to be represented by counsel. If the City Council adopts such ordinance to revoke, the ordinance will be sent to Grantee, who shall have the right to have the Council decision reviewed by a court of competent jurisdiction. E. Force Majeure. Other than its failure, refusal, or inability to pay its debts and obligations, including, specifically, the payments to City required by this franchise, Grantee shall not be declared in default or be subject to any sanction under any provision of this franchise in those cases in which performance of such provision is prevented by reasons beyond its control.
ARTICLE XXVI
26.01. City Approval of Assignment Required. The rights, privileges, and franchise granted hereunder may not be assigned, in whole or in part, without the prior consent of the City expressed by resolution or ordinance, which consent shall not be unreasonably withheld. No assignment in law or otherwise shall be effective until the assignee has filed with the City an instrument, duly executed, reciting the fact of such assignment, accepting the terms of this franchise, and agreeing to comply with all of the provisions hereof. A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment.
ARTICLE XXVII
27.01. No Waiver of Terms. The grantee shall not be excused from complying with each and all of the terms, conditions, and provisions of this Franchise Ordinance even though the City should upon one or more occasions fail to insist upon, to require, or to seek compliance with any such term, condition, or provision.
ARTICLE XXVIII
28.01. Service Availability. The Grantee may provide cable service throughout the entire franchise area pursuant to the provisions of this franchise. 28.02. Annexations. Grantee shall have the right, but not the obligation, to extend its Cable System to annexed areas, which are either already serviced by a cable operator or which are not contiguous to the existing franchise area. 28.03. Extension Policy. Grantee shall extend its Cable System upon request to any contiguous area where service is not provided at the time of the request when potential Subscribers can be serviced by extension of the Cable System past occupied dwelling units equivalent to a density of thirty-five (35) homes per mile of street. Extension shall be at Grantee's cost. Extensions made to a developing subdivision shall be complete to all requesting cable service within twelve (12) months from the time construction begins within the subdivision boundaries. Notwithstanding the foregoing provisions within this Section, Grantee shall provide service upon request to potential subscribers in subdivisions that do not meet the foregoing provisions where the subscriber is willing to contribute to the cost of the system expansion. The Grantee shall incur at least the cost of providing the service as if the 35 homes per mile density were met. The City shall not assume any of the costs related to expansion of said service.
ARTICLE XXIX
29.01. City's Right to Purchase Cable System. In the event the Grantee forfeits or City terminates this franchise pursuant to the provision of this Franchise Ordinance, or at the normal expiration of the franchise term and at which time a franchise renewal is denied, the City shall have the right to purchase the Cable System. If City should elect to exercise its right to purchase such System, payment of a fair valuation, which shall be the then current fair market value, shall be required. Should the parties fail to agree upon the then current fair market value, the same shall be determined in an appropriate proceeding filed in any court having jurisdiction.
ARTICLE XXX
30.01. Requirements and Enforcement. Except as expressly provided herein, Grantee shall have no monetary recourse whatsoever against City of any loss, cost, expense, or damage arising out of the provisions or requirements of this franchise or because of the enforcement thereof by City or because of the lack of City's authority to grant all or any part of this franchise. 30.02. Grantee's Understanding. Grantee expressly acknowledges that in accepting this franchise, it relied solely upon its own investigation and understanding of the power and authority of City to grant this franchise and that Grantee was not induced to accept this franchise by any understanding, promise, or other statement, verbal or written, by or on behalf of City or by any third person concerning any term or condition not expressed herein. 30.03. Construction of Franchise. By acceptance of this franchise, Grantee acknowledges that it has carefully read the provisions hereof and is willing to and does accept all of the risks of the meanings of such provisions and agrees that in the event of any ambiguity herein or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against Grantee and in favor of City. 30.04. Non-waiver of Pass Through. Grantee shall have the right to pass through as an external cost any and all costs associated with meeting the requirements of its franchise to the extent provided in applicable laws and regulations. Nothing in this Franchise Ordinance shall be construed as a waiver of such right or requirement to waive such right.
ARTICLE XXXI
31.01. Method of Acceptance. Within thirty (30) days from the effective date of this franchise, Grantee shall file with the City Secretary a written statement in the following form signed in its name and behalf: "To the Honorable Mayor and City Council of the City of South Houston, Texas: For itself, its successors, and assigns, Texas Cable Partners, L.P., d/b/a Time Warner Communications, a limited partnership duly authorized to do business in the State of Texas, hereby accepts the attached franchise and agrees to be bound by all of its terms, conditions, and provisions." TEXAS CABLE PARTNERS, L.P. By: ____________ Its: ____________ "Dated this the ____________ day of ____________ , 2004." 31.02. Acceptance of Franchise Not a Waiver. Acceptance of this franchise by Grantee shall not constitute a waiver by it of any of its rights.
ARTICLE XXXII
32.01. Provisions Severable. If any provision, section, subsection, sentence, clause, or phrase of this franchise is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of the remaining portions of this franchise. It is the intent of City in adopting this franchise that no portion or provision thereof shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other portion or provision, and to this end all provisions of this franchise are declared to be severable. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SOUTH HOUSTON, TEXAS, ON THE 2 nd DAY OF MARCH 2004.
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