Loading...
HomeMy WebLinkAboutORD 1980-072 ORDINANCE N0. 80-72 AN ORDINANCE GRANTING TO TELEPROMPTER COMMUNITY CABLEVISION A FRANCHISE TO CONSTRUCT, pPERATE AND MAINTAIN A TOTAL COMMUNICATIONS CABLE TELEVISION 5YSTEM WITHIN THE CITY OF GRAPEVINE, TEXAS; SETTING FORTH THE TERRITORIAL AREA IN- VOLVED AND THE TIME OF CONSTRUCTION; �" ESTABLISHING LIABILITY AND INDEMNIFI- CATION; ESTABLISHING OPERATIONAL STAND- ARDS AND STANDARDS OF SERVICE; ESTAB- �� LISHING CONDITIONS ON STREET OCCUPANCY; ESTABLISHING PAYMENT TO THE CITY; PRO- VIDING FOR PERIODIC REVIEW AND AMEND- MENTS; AND PRESCRIBING THE TERMS , CON- DITIONS , OBLIGATIONS , AND LIMITATIONS UNDER WHICH SUCH FRANCHISE SHALL BE EXERCI5ED; PROVIDING A PENALTY; AND PROVIDING A SEVERABILITY CLAUSE Section No. 1 - Definitions (a) "City Council" is the City Council of the City of Grapevine, Texas. (b) TOTAL COMMUNICATIONS CABLE TELEVISION SYSTEM, "TOTAL COMMUNICATIONS CATV SYSTEM" or "System" is a bi- directional, single cable or dual cable system of coaxial cables , microwave links, television origination studio, a central computer control terminal, remote transmitter re- ceivers that connect to ancilliary devices and other elec- trical conductors and equipment used or to be used primarily �`" to receive television, digital, or radio signals directly or indirectly by cable, microwave, or off the air, and to ,�� transmit the signals to subscribers, or from subscribers to the central computer control terminal with relay capabilities to remote receiving points. (c) "City" is the City of Grapevine in its present in- corporated form or as it may be changed by annexations , said City is also referred to as Grantor. (d) "Grantee" is the party or parties to which a fran- chise under this ordinance is granted by the City, and its or their lawful successors and assigns. The terms "Operator" and "Cable System Operator�� are synonymous with the definition of Grantee. (e) "Gross annual receipts" is any and all compensation and other consideration in any form whatsoever received directly or indirectly by the grantee from subscribers for use as a payment for television or FM radio signals or service received within the City from the grantee, including any installation charge and monthly charge, or from any other source related to the grantee ' s providing of Total Communications CATV service within the City, including but not limited to "��" scheduled and unscheduled rate� and charges , rates and charges rendered on a cost of labor and materials basis , receipts from advertising on the system-originated programs , receipts from �. subscriber payments for system publications , minus all sub= scriber refunds actually paid by the grantee to subscribers. (f) "Party is any person� firm, partnership, association, company, or organization of any kind. (g) "Public Access Channel" is a specially designated non- commercial public access channel available on a first-come non- (1) discriminatory basis for which the system shall maintain and have available for public use at least the minimal equipment and facilities necessary for the production of programming for such a channel. (h) "Education Access Channel" means a specially desig- nated channel for use by educational authorities within the City. �" (i) "Local Government Access Channel" means a specially designated channel for use by the City. +r�. (j ) "Leased Access Channel" means portions of the system' s non-broadcast bandwidth including unused portions of the special- ly designated channels for leased access services . (k) "Converter" means an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and by an appropriate channel selector also permits a subscriber to view all signals delivered at designated dial locations . (1) "Additional Services" shall mean any communications services other than Regular Subscriber Service and Pay Television provided by Grantee over the CATV System either directly or as a carrier for its subsidiaries , affiliates or any other person engaged in communications services , including, but not limited to, burglar alarm, fire alarm, data or other electronic intel- ligence transmission, facsimile reproduction, meter reading and home shipping. Additional Services shall not include the delivery by the CATV System of any programming on the Educational Access Channels or Public Access Channels , which programming is included in Regular Subscriber Service. (m) "Pay Television" shall mean the delivery over the CATV System of programming to Subscribers for a fee or charge � over and above the charge for Regular Subscriber Service, on a per-program, per-channel or other subscription basis. (n) "Regular Subscriber Service" shall mean the simultaneous delivery by Grantee to television receivers , or any other suit- able type of audio-video communication receivers , of that service regularly provided to all of its Subscribers, including all broad- cast signals authorized for carriage by the FCC and of all regular non-broadcast signals provided to all of its subscribers , but excluding Additional Services and Pay Television. (o) "Franchise, Franchise Ordinance, Franchise Contract , Agreement and Contract�� all refer to the subject ordinance grant- ing a Franchise to Teleprompter Community Cablevision. Section No. 2 - Grant of Nonexclusive Authority (a) There is hereby granted by the City to Teleprompter Community Cablevision the right and privilege to construct, erect, operate, maintain in, upon, along, across , above, over, and under the streets , alleys, public ways, and public places � now laid out or dedicated, and all extensions thereof, and additions thereto, in the City, poles , wires , cables, under- ground conduits , manholes, and other television conductors and fixtures necessary for the construction, maintenance and opera- �"'" tion in the City of a Total Communications Television System for the interception and distribution of television and radio signals, however, no overhead wires or cables may be installed where the City requires underground installation of other wire or cable (2) service or where existing wire and cable services are underground. (b) The right to use and occupy said streets , alleys , public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets , alleys, public ways and , places , to any party at any time during the period of the fran- chise. c Grantee shall be the o erator of all additional ser- �,�, ( ) P vices to be offered or in the event that grantee desires another party or parties to provide any portion of this service then and in that event the City reserves the right to approve the proposed operations and the operator. Section No. 3 - Compliance With Applicable Laws & Ordinances The grantee shall, at all times during the life of the fran- chise, be subject to all lawful exercise of the police power by the City and to such lawful regulations as the City shall here- after provide. Section No. 4 - Territorial Area Involved The franchise is for the present territorial limits of the City and for any area henceforth added thereto during the term of this franchise. Section No. 5 - Term Of This Franchise This franchise shall be in force and effect for a term �"" of fifteen (15) years from and after the effective date of the final passage of this ordinance, unless sooner terminated by reason of default of grantee under the terms of this franchise. Section No. 6 - Liability And Indemnification (a) The grantee by its acceptance of the franchise spe- cifically agrees that it shall hold the City harmless from all loss sustained by the City by reason of any suit, judgment, execution, claim, or demand resulting from the construction, operation, or maintenance by the grantee of its system in the City, and that it shall pay all damages and penalties which the City may legally be required to pay as a result of grant- ing the franchise. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright infringements and all other damages arising out of the instal- lation, operation, or maintenance of the system authorized here- in, whether or not any act or omission complained of is author- ized, allowed, or prohibited by the franchise. (b) The grantee shall maintain and by its acceptance of the franchise specifically agrees that it will maintain through- out the term of the franchise, liability insurance insuring the City and the Grantee with regard to all damages mentioned herein ""�'� or as may be otherwise specified to all damages mentioned initially in the minimum amount of: (1) $300 ,000 for property damage to any one person; (2) $500, 000 for property damage in any one accident; (3) (3) $500, 000 for personal injury to any one person; (4) $1, 000 , 000 for personal injury in any one accident; and (5) On each annual anniversary date of the effective date of the franchise and �' throughout the term of the franchise the minimum limits of liability insur- ance described above shall be adjusted �� to the nearest $100 , 000 increment to coincide with the percent of increase or decrease in the consumer price index as determined by the Department of Labor since the effective date of the franchise during the preceding twelve (12) month period. (c) The insurance policy or certifications thereof ob- tained by the grantee in compliance with this section must be filed with the Office of the City Secretary of the City. (d) Neither the provision of this section, nor any in- surance policy obtained in compliance herewith shall be con- strued to excuse faithful performance by the grantee or limit the liability of the grantee under the franchise issued here- under or for damages, either to the full amount of the policy or otherwise. Section No. 7 - Service �, (a) The grantee shall receive and distribute television and radio signals which are disseminated to the general public by broadcasting stations licensed by the Federal Communications +� Commission. Al1 Federal Communications Commission Regulations shall be complied with regarding the importation of distant signals and the carriage and non-duplication of the programming of any existing or future television broadcasting stations which cover the City of Grapevine in their principal broadcasting areas. The system shall originate programming on one channel; provide at least one channel for television broadcasting station (s) other than the national networks , and if no television signals are available to Grapevine residents except those transmitted by grantee, then grantee shall unless this requirement is later waived by the City, provide at least two channels for television broadcasts the contents of which are independent of the grantee or its affiliates; provide at least five (5) additional channels for local public educational broadcasting; provide at least one additional channel for local civic interest broadcasting; pro- vide at least one additional channel for a public access channel; and provide channel capacity to carry FM radio stations and such other channels as may be submitted in the application of Grantee. The grantee shall, in addition, provide all other services specifically set forth in its Application to provide Total Com- �:� munications Television services to the City of Grapevine, Texas , and by its acceptance of the franchise, the grantee specifically grants and agrees that its Application is hereby incorporated by reference and made a part of the franchise. (b) Service to Schools. The grantee shall provide one outlet and Regular Subscriber Service to all public elementary and secondary schools and institutions of higher learning located (4) within the areas being served for educational purposes upon request by the City at no cost to the City or the school or the institution of higher learning. (c) Service to the City. The Grantee shall provide the Local Government Access Channels necessary to provide capability to the City which will allow it to televise closed circuit programs to all fire and police stations , library, �., City Hall, School Facilities and other School and City fac- ilities; televise City and School programs to all downstream outlets; and perform such other City services as may be feas- � ible at reasonable cost by the then current technology, all at no cost to the City. The Grantee shall provide one outlet and Regular Sub- scriber service to all fire and police stations, city library and City Hall and other City facilities upon request at no cost to the City. (d) Emergency Use of Facilities. In the case of any emer- gency or disaster, the Grantee shall, upon request of the appro- priate city official, make available its facilities to the City for emergency use during the emergency or disaster period. The City shall indemnify and hold harmless the Grantee from any and all liabilities directly or indirectly arising from such emer- gency use of the Grantee ' s facilities by the City. Section No. 8 - Two-Way Capability The Grantee shall maintain a plant having technical capacity for upstream and downstream communications. Section No. 9 - Access Programming Facilities � All cable system franchises must provide reasonable equip- ment to be used by access cable casters with the aid of a tech- � nical and production staff to be provided by the operator. In- cluded should be equipment that can store programs for later showing. In addition, a centrally located studio must be made available to all access users on a first-come, first-served basis. Any applicant to operate the system will be expected to demon- strate in its application how it plans to make available the equipment, the studio, and production and technical staff. Ap- plicants will be given preference in the selection process for plans that will most adequately meet these requirements . A full schedule of rates for use of equipment, studio, and technical and production staff must be submitted. If separate rates are planned for mobile facilities, these must be also included. Rate pre- ference may be given to non-commercial users. Section No. 10 - HUB System If necessary to insure the quality of reception required by the Federal Communications Commission the cable system design shall incorporate the use of a HUB system with sufficient hubs to provide such quality. Section No. 11 - Emergency Override The cable system shall include an �'Emergency Alert" �,,, capability which will permit the mayor, or the mayor ' s designated representative, to override, by remote control, the audio and/ � or video of all channels involved in retransmission of television broadcast programming. The cable operator shall designate a channel which will be used for emergency broadcasts. (5) Section No. 12 - Standby Power The cable system operator shall maintain equipment capable of providing standby power for headend transportation and trunk amplifiers for a minimum of two hours. The equipment shall be constructed so as to automatically revert to the standby mode when the AC power returns. All utility safety regulations must be followed to prevent a standby generator from powering �,,, the "dead" utility line, with possible injury to an unwitting lineman. �r Section No. 13 - Privacy (a) Use of Data from Subscriber. A Grantee shall not initiate or use any form, procedure, or device for procuring information or data from cable subscribers ' premises by use of the cable system without prior valid written authorization from each subscriber so affected. Valid authorization shall mean written approval from the subscriber for a period of time not to exceed one (1) year, and said authorization shall not have been obtained from the subscriber as a condition of service. Further, it shall be unlawful for a grantee, without such authoriza- tion, to activate and/or utilize any "Class IV Cable Television Channel" in any manner from the subscriber ' s premises. In any case, the subscriber shall have the right and opportunity to de- activate the return path from his or her premises . (b) Identifying Subscribers. The City or a grantee shall ' not, without prior valid written authorization from each sub- scriber so affected, provide any data identifying subscriber' s names or addresses to any other party. Nothing in this section 13 shall be construed as limiting Grantee ' s (including its agents ' ) right to send monthly bills to, collect unpaid bills from and pro- � mote cable services to cable subscribers. � (c) Procurement of Information. It shall be unlawful for any firm, person, group, company, corporation, governmental body, or agency to procure information or data from cable subscribers ' pre- mises by use of the cable system without prior written authoriza- tion from each subscriber so affected. Valid authorization shall mean written approval from a subscriber for a period of time not to exceed one (1) year and shall not have been obtained as a con- dition of the grantee providing cable service to the subscriber. (d) 5pecific Authorization. No authorization for procurement or dissemination of subscriber identifiable information or data shall be valid unless it (1) specifies the type or types of in- formation or data covered, and (2) the parties authorized to collect, receive, store, record, transmit, or otherwise convey this information or data. Further, all authorizations shall specify the maximum period of time that any subscriber identi- fiable information or data shall be preserved in any manner or form. (e) Subscriber Copy Required. A written copy of all sub- scriber identifiable information or data which is retained and/or disclosed and the disposition of this information or data, to- �� gether with any explanation necessary to make it understandable to the subscriber, shall be provided to the affected subscriber within thirty (30) days of procurement. Further disclosures ;�„ shall be fully detailed in writing to the affected subscriber within thirty (30) days of such disclosure. The City shall receive on a quarterly basis , or more frequently upon request to grantee, a report on the type of information sought from said subscriber. (6) Section No. 14 - Antenna Switch For Alternative Use of Off-Air Antennas Grantee shall install an RF switch upon request by a subscriber. Section No. 15 � Methods of construction, installation, and maintenance of the City ' s cable television system shall comply with the National Electrical Safety Code, National Electrical Code �' of 1978, National Bureau of Standards Handbook 81 (Part 2) , National Bureau of Standards, U.S. Department of Commerce, November 1, 1961, to the extent that such Codes are consis- tent with local law affecting the construction, installation, and maintenance of electric supply and communications lines . To the extent that such Code is inconsistent with other pro- visions of this franchise or with local law, the latter shall govern. Section No. 16 Any tower constructed for use in the City' s cable tele- vision system shall comply with the standards contained in Structural Standards for Steel Antenna Towers and Antenna Sup- porting Structures, EIA Standards RS-222-A as published by the Engineering Department of the Electronic Industries Associa- tion, 2001 Eye Street, N.W. , Washington, D.C. 20006. Section No. 17 Installation and physical dimensions of any tower con- structed for use in the City's cable television system shall comply with all appropriate Federal Aviation Agency regulations including, but not limited to, Objectives Affecting Navigable �" Airs ace, 14 C.F.R. 77. 1 et se p q. , February, 1965. In addition, construction plans for such towers must receive approval of the Executive Director of the Dallas/Fort Worth Regional Airport, prior to commencement of construction. Section No. 18 Any antenna structure used in the City's cable television system shall comply with Construction Marking and Lighting of Antenna Structure, 46 C.F.R. 17 . 1 et seq. , September, 1967 . Section No. 19 Al1 working facilities and conditions used during construc- tion, installation, and maintenance of the City's cable television system shall comply with the standards of the Occupational Safety and Health Administration. Section No. 20 ��� The Company shall comply fully with the rules and standards for cable television operations as adopted by the Federal Com- munications Commission. 47 C.F.R. 76 . 601-76 . 613 (1972) . � Section No. 21 The Company shall comply fully with the rules and regulations contained and promulgated within this ordinance and all other (7) City ordinances which apply to the operation of the cable system. Section No. 22 Stray radiation (RF leakage) shall be checked at reception locations for emergency radio services to prove that FAA and FCC standards as to maximum acceptable radiation leakage are complied with. Stray radiation shall be measured adjacent to �,,, any proposed aeronautical navigation radio sites to prove no interference to airborne navigational reception in the normal flight patterns. `�"' Section No. 23 - Continuing Maintenance Of Standards And Service The Grantee shall continue, throughout the term of the franchise, to maintain the technical standards and quality of service set forth in this ordinance. Should the Council find, by resolution, that the Grantee has failed to maintain these technical standards and quality of service, and should it, by resolution, specifically enumerate reasonable improve- ments to be made, the grantee shall make such improvements. Failure to make such improvements within a reasonable time following such resolution shall constitute a breach of a con- dition for which the remedy of cancellation is applicable. Con- tinuing failure to make such improvements during any subsequent period shall constitute a breach of a condition for which the cancellation is applicable. Section No. 24 -Franchise Fee Grantee shall pay to the City of Grapevine an annual fran- chise fee equal to five (5�) percent of gross annual receipts and said receipts shall be paid on a quarterly basis thirty (30) days after the end of each quarter. A Gross Receipts Statement '�' as approved and signed by a Certified Public Accountant shall be provided to the City annually. Section No. 25 - Safety Requirements (a) The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. (b) The grantee shall maintain a force of one or more resident agents or employees at all times and shall have sufficient employees to provide safe, adequate, and prompt service for its facilities. Section No. 26 - State Of The Art Grantee shall undertake any and all construction and instal- lation necessary to keep current with the industry standards in comparable cable television systems, whether with respect to increasing Channel capacity; developing other new services , or � instituting more extensive two-way service or otherwise. Section No. 27 - Conditions On Street Occupancy � Al1 transmissions and distribution structures, lines and equipment erected by the grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places , and to cause mimimum interference with the rights and reasonable con- venience of property owners who join any of the said streets. (8) Section No. 28 - Removal of Facilities Upon Request Upon termination of service to any subscriber, the Grantee shall remove all of its facilities and equipment from the pre- mises of such subscriber upon his request within twenty (20) days from such request, without cost to the subscriber, repairing any damages that may be done. Such request shall be in writing to the Grantee. � Section No. 29 - Transfer of Franchise If the grantee shall at any time sell or assign its �"' rights and privileges under this ordinance and the cable television system located in the City of Grapevine to any other party, the assignment shall be in writing and a fully authenticated copy thereof shall be filed with the City Secretary provided such assignment shall not become effective until the assignee shall have agreed in writing to become responsible for the full performance of all the conditions , liabilities , covenants, and obligations contained in this ordinance and until such assignment shall have been approved by the City by passage of an ordinance. Section No. 30 - Filings And Communications With Regulatory Agencies Copies of all petitions, applications, and communications submitted by the Grantee to the Federal Communications Com- mission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting CATV operations authorized pur- suant to the franchise, shall also be submitted simultaneously �' to the City Council. � Section No. 31 - City Rights In Franchise (a) The right is hereby reserved to the City or the City Council to adopt, in addition to the provision contained herein and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall be lawful and not in conflict with the rights herein granted. (b) The City shall have the right to inspect the books , records, maps, plans, income tax returns, and other like materials of the grantee at any time during normal business hours. (c) The City shall have the right, during the life of the franchise, to install and maintain free of charge upon the poles of the grantee any wire and pole fixtures necessary for a police and fire alarm system, on the condition that such wire and pole fixtures do not interfere with the operations of the grantee. (d) The City shall have the right to supervise all con- �� struction or installation work performed subject to the pro- visions of the franchise and make such inspections as it shall find necessary to insure compliance with the terms of the franchise and other pertinent provisions of the law. (e) At the expiration of the term for which the franchise is granted or upon its termination and cancellation, as provided for herein, the City shall have the right to require the grantee to remove at its own expense all portions of the system from all public ways within the City. Grantee shall obtain a perfor- (9) mance bond to guarantee that the Grantee shall remove all wire, cables, poles and apparatus placed within the City of Grapevine including said items placed on or in public or private property should grantee fail to remove said equipment. Said bond shall be in the amount of $200 , 000. Section No. 32 - Remedies For Breaches (a) In the event that its service to any subscriber is "�' interrupted for twenty-four (24) consecutive hours, except for acts of God, and except in circumstances for which the prior approval of the interruption is obtained from the City Council, �r grantee shall provide a ten (10�) percent rebate of the monthly fees to affected subscribers. (b) In the event that its service to any subscriber is interrupted for forty-eight (48) consecutive hours, except for acts of God, and except in circumstances for which the prior approval of the interruption is obtained from the City Council, grantee shall provide a twenty (20�) percent rebate of the monthly fees to affected subscribers. (c) In the event that its service to any subscriber is inter- rupted for seventy-two (72) or more consecutive hours , except for acts of God, and except in circumstances for which the prior approval of the interruption is obtained from the City Council, grantee shall provide a one hundred percent (100�) rebate of the monthly fees to the affected subscribers. Section No. 33 - Security Fund (a) Within ten (10) days after the effective date of this Franchise ordinance the Grantee shall deposit with the City' s � Finance Director an irrevocable $100 , 000 letter of credit and maintain such letter of credit or substitute letter of credit on deposit through the term of this contract as security for +�w the faithful performance by it of all the provisions of this contract, and compliance with all orders , permits and directions of any agency of the City having jurisdiction over its acts or defaults under this contract, and the payment by the Grantee of any claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the system. (b) Within ten (10) days after notice to it that any amount has been drawn on the letter of credit pursuant to subdivision (a) of this section, the Grantee shall deposit with the Finance Director an amendment to the letter of credit or a new letter of credit sufficient to restore the aggregate undrawn amount to $100 ,000 Dollars. (c) If the Grantee fails to pay the City any compensation within the time fixed herein; or fails to repay to the City, within ten (10) days, any damages, costs , or expenses which the City shall be compelled to pay by reason of any act of default of the Grantee in connection with this franchise; or fails after ten (10) days notice of such failure by the City Manager, to comply with any provision of this contract which the City �� Manager reasonably determines can be remedied by an expenditure of the security, the Finance Director may immediately draw the amount thereof, with interest and any penalties , on the letter of credit. Upon such draw, the Finance Director shall notify ''�" the Grantee of the amount and date thereof. (d) In the event that the franchise is cancelled by reason of default of the Grantee, the City shall continue to have a lien against such fund to the extent provided in this franchise agreement. Upon satisfaction of such liens, the (10) balance of the fund, if any, shall be returned to the Grantee. The Grantee however, shall be entitled to the return of such letter (s) of credit including the undrawn balance thereunder, as remains on deposit with the Finance Director at the expiration of the term of this contract, provided that there is then no outstanding default on the part of the Grantee. �„ (e) The rights reserved to the City with respect to the letter of credit are in addition to all other rights of the City whether reserved by this contract or authorized by law, and no action, proceeding or exercise of a right � with respect to such security fund shall affect any other right the City may have. Section No. 34 - Construction Timetables Service shall be made available to thirty (30%) percent of the City within six (6) months of the date the Franchise ordinance is effective; fifty (50�) percent of the City within one (1) year of the date the Franchise ordinance is effective; and one hundred (100�) percent of the City within eighteen (18) months of the date the Franchise ordinance is effective. The terms and conditions of this Franchise ordi- nance are subject to reasonable delay to force majeure. Section No. 35 - Foreclosure, Receivership (a) 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, the Grantee shall notify the City of such fact, and such notification shall be treated as a notification that a change � in control of the Grantee has taken place, and the require- ments of this ordinance governing the consent of the City � Council to such change in control of the Grantee shall apply. (b) The City Council shall have the right to cancel the franchise one hundred twenty (120) days after the appointment of a recEiver, or trustee, to take over and conduct the business of the Grantee, whether in receivership, reorganization, bank- ruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of the said one hundred twenty (120) days, or unless : (1) Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this ordinance and remedied all defaults there- under; and (2) Such receiver or trustee, within said one hundred twenty (120) days shall have executed an agreement, duly approved by the Court having jurisdiction in the matter, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this ordinance. �� Section No. 36 - Installation and Maintenance �„ The servicesfurnished by the Grantee shall be first class services and the same shall be furnished to each person within reasonable time after demand for such service has been made, upon equal and exact terms for the same class of service, and the matter of whether or not a reasonable return on the cost of making extensions can be obtained shall be left exclusively to ,, , . the City Council after a fair hearing considering such matter. The Grantee' s obligation to make installations to any indivi- dual or multiple dwellings is subject to receiving reasonable and gratuitous rights of way from the Owners of all property crossed or affected by such installation. The Grantee shall comply with all rules and regulations now �,,, in force by the City or other proper authority, or which may hereafter be put into force, with respect to proper installation and construction of lines , cables , wiring and other electronic � equipment authorized by this franchise. Consistent with industry standards in comparable cable television systems, the Grantee shall use only new cables and equipment with such shielding and protective devices as may be necessary to insure the best possible service and with the least possible interference. The Grantee shall, at its own cost and expense, move its lines , cables, wiring, towers and other appurtenances to other locations when the City, through its authorities, may require such removal for the safety and convenience of said city and other franchise holders and inhabi- tants affected thereby, or when it is deemed necessary by City to widen, relocate, reconstruct or improve a street, way or public place. In the event the Grantee, after notice, fails or refuses to act, the City shall have the power to remove or abate the same at the expense of the Grantee, all without compen- sation or liability for damages from the City to Grantee. In those areas where telephone and electric service lines are underground, the Grantee shall place its cables and service lines underground. Where electric and telephone lines are being installed in a new subdivision within the City, Grantee shall install its cables in such new subdivision at the time the elec- tric and telephone utility lines are installed in the subdivision, such installation of cables to be at Grantee ' s expense. All �'' installations made b the Grantee shall be made in Y good, substan- tial and safe condition and shall be maintained in such condition at all times. The Grantee shall make no excavations in the streets , alleys or other public places without first obtaining a written permit from the City or its agent or representatives. The surface of any street, alley or other public place disturbed by the Grantee in constructing, erecting, maintaining, operating or repairing its sys�$��be restored immediately by the Grantee after completion of the to as good a condition as before the commencement of the work, and such surface shall be maintained at the cost of the Grantee to the satisfaction of the City for a period of (1) year from the date such surface of said street, alley or public place is broken or excavated for such construction or maintenance work, after which time responsibility for the normal maintenance of such surface shall become the duty of the City. The Grantee, by use or employment of qualified arborists, shall have the public ways and places of the City so as to prevent the branches of such trees from coming into contact with the wires and cables of the Grantee. It shall be the responsiblity of the Grantee to promptly remove and dispose of all such cuttings and trimmings. ��� No person, whether or not a subscriber to the cable system, shall willfully, maliciously, or otherwise damage or cause to be damaged any wire, conduit, apparatus , appurtenance, or equipment of the Grantee, or commit any act with the intent to cause damage, or to tap, tamper with or otherwise connect an� wire or device to a wire, cable, conduit, apparatus, appurtenance or equipment of the Grantee, with the intent to obtain a signal or impulse from (12) the cable system without authorization from or compensation to the Grantee, or to obtain cable television or other communica- tion service with intent to cheat or defraud the Grantee of any lawful charge to which it is entitled. Section No. 37 - Revocation The City Council may revoke the franchise conferred by this ordinance at any time prior to its expiration date upon a finding made after thirty (30) days notice of the proposed cancellation, that the Grantee has failed to cure one or more of the following ;�„ defects during a sixty (60) day period following written notice by the City Manager to the Grantee of such a defect. (a) Failure to complete the installation of the system as herein described, or failure to complete in accordance with the Construction Schedule. (b) Misrepresentation of fact in the application for or negotiation of the franchise. (c) Material breach, whether by act or omission, of any term or condition of this franchise ordinance. Section No. 38 - Continuity of Service (a) Continuity of Service Mandatory. The Grantee shall be required to provide continuous service to all subscribers in return for payment of the established fee. If the Grantee overbuilds, rebuilds, modifies or sells the system, or the Grantor revokes or fails to renew this franchise, or Grantor elects to purchase the system, the Grantee is required as part of this franchise to continue to operate the system until "�' an orderly change of operation is effectuated. In the event the Grantee fails to operate the system for five consecutive y„�, days without prior approval of the City Council, the City or its agent may operate the system until such time that a new operator is selected. (b) Grantor Purchase of System upon Revocation. In the event that the Grantor revokes this franchise, pursuant to appropriate provisions of this ordinance, the Grantor shall have the right to purchase the CATV System at a price not to exceed its then fair market value. Section No. 39 - Transfers and Assignments (a) The Grantee shall not be permitted to sell, transfer or otherwise change any of the ownership in Grantee without the prior written consent of the City, except that the fol- lowing transfers shall not require said consent: (1) Any transfer by any original existing partner of grantee to any other original existing partner as reflected in the grantees application, which application is hereby incorporated by reference, except this subsection shall not apply to a trans- fer from Teleprompter of Grapevine, Inc. , to any other original "'�' existing partner. (2) Transfers by an original existing partner to Tele- � prompter Corporation. (3) Transfer to a corporation which merges with Teleprompter Corporation, acquires substantially all of the assets of Teleprompter Corporation, owns over 500 of the stock (13) of Teleprompter Corporation, or over 50� of the stock of which is owned by the same persons or entities that own over 500 of Teleprompter Corporation. As to those transfers requiring the City' s consent said consent shall not be unreasonably withheld. (b) The Grantee shall not be permitted to sell, lease, sublease, transfer, or otherwise change working control of the "'�" franchise herein granted (except for transfers of ownership which : satisfy section 39 (a)) without prior written consent of the City of Grapevine. For the purpose of determining whether it shall �+ consent to such change, transfer or acquisition of control the City may inquire into the prospective controlling party and the Grantee shall assist in such inquiry. If the City Council does not schedule a hearing on the matter within sixty (60) days after notice of the change or proposed change and the filing of a petition requesting its consent, the City shall be deemed to have consented. In the event that the City adopts a resolution denying its consent, and such change, transfer, or acquisition or control has been effected, the City may terminate the franchise. (c) The consent or approval of the City to any assignment, lease, transfer, sublease, or mortgage of the Grantee granted to the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets. (d) In the absence of extraordinary circumstances , the City will not approve the assignment of the Grantee by the franchisee prior to completion of construction of the CATV System. (e) The City reserves the right to review the purchase price of any transfer or assignment of the system, and any �„ assignee to this franchise expressly agrees that any negotiated ` sale value which the City deems unreasonable will not be considered in the rate base for any subsequent request for rate increases. � Section No. 40 - City' s Expenses for Hiring Rate Consultants Grantee shall reimburse City for reasonable expenses incurred in employing rate consultants to evaluate Grantee ' s rate modifica- tion requests , to present evidence and to advise City Council on such rate modification requests under the terms of this Section. Section No. 41 - Parental Lock, and Obscenity (a) Converter-Parental Lock; Selection of Signal Number. Grantee shall offer to each subscriber a Converter that can be equipped with a parental lock capable of locking or securing one channel or all channels. Said parental lock shall be avail- able to every subscriber at any time without any extra or ad- ditional charges or fees. Further, the Channel selector of the Converter shall be numbered so that Grantee may carry all rele- vant over-the-air television signals on the Channel number of the station. City shall waive the requirement of this section �, if it is technically infeasible. (b) Temperature Range. Grantee' s CATV System shall be � capable of operating throughout the air temperature range of 0 to 110 degrees Fahrenheit without degradation of audio or video fidelity. (c) Educational Access Channels . At least two Channels shall be reserved for the use of the educational authorities (14) in City. Such Channels shall be provided free of charge. (d) Public Access Channels. At least two channels shall be reserved for the use of the public, one of which shall have nondiscriminatory access without charge on a first come, first serve basis, and the other of which shall be reserved for use by the City. ,�. (e) Standard of Care. Grantee shall at all times employ a high standard of care and shall install, maintain and use approved methods and devices for preventing failures or accidents which are likely to cause damages , injuries or nuisances to the `�`' pub l i c. (f) No Obscenity. (1) Grantee and all users of a CATV System shall comply in all respects with all federal, state and local laws regarding obscenity and shall not broadcast any movies, materials or any obscene, indecent or profane language or depiction as outlined in 18 U.S.C. Section 1464 and shall comply with all FCC rulings or declaratory orders relating to obscenity and indecency. (2) If Grantee transmits obscene or indecent programming which it has produced or acquired by sale, lease or otherwise, Grantee' s action shall be deemed a material violation hereof and shall subject Grantee to franchise revocation pursuant to this ordinance. (3) Grantee agrees not to broadcast any movies rated "x" . It shall not be deemed a material branch for Grantee to broadcast any movie rated "G" , "PG" , or "R" . Section No. 42 - Minimum Standards � Grantee shall construct and maintain the system in service � at the then current industry standards in comparable area television systems, and complying fully with FCC engineering spec- ifications. It is anticipated and agreed that the Grantee will upgrade, replace, and otherwise maintain the system and services provided in keeping with technological improvements within the industry. The following shall be minimum general standards for initial construction and provision of services : (a) System shall be a single two-way system capable of providing 52 television channels downstream (from the headend) and 4 television channels upstream (returning to the headend) . (b) Downstream system will be capable of operating bet- ween 50 and 300 MHz. (c) Upstream system will be capable of operating between 5 and 30 MHz. (d) All aerial cable used will be solid aluminum sheath coaxial cable with an outer jacket of high molecular weight �'°'� polyethylene. (e) All underground cable used will be flooded coaxial ;� cable with standard outer jacket, armored with second outer jacket or polyethylene. (f) Al1 trunk equipment will be modular construction. All amplifiers will be solid-state, integrated circuitry. (15) Distribution will be limited to two line extenders in cascade. (g) Power supplies shall be located throughout the system as required by system design, and cable will be grounded at each power supply location. (h) Subscriber drops will be grounded, and messengered drop-cable will be used from the strand to the grounding �,., block. (i) Subscriber taps will provide a minimum tap output of +12 dBmV at 300 MHz. (j) System will provide an earth receiving station for reception of satellite services. (k) System will provide a fully equipped broadcasting studio for public access , in accordance with FCC requirements. (1) System headend will have emergency override capability. (m) System will have stand-by power capable �of providing power for a minimum of two hours in the event of electrical power failure. (n) Both wired and cordless remotely-controlled converters will be made available for purchase by subscribers. (o) All construction and installation shall be in confor- mance with the National Electrical Code of the National Fire Protection Association, in the edition currently in use by the City. �-�� Section No. 43 - Rates � (a) The initial rates have been established through competitive bidding and set by a separate rate ordinance and are the rates bid and submitted by the Grantee. Such maximum rates shall remain in effect and not be increased for a minimum period of two (2) years from the effective date of franchise. (b) Absent actions reassigning jurisdiction for Basic Subscriber Service rates to some other authority, said rates shall be subject to modification only by the City and only in accordance with the following procedures: (1) The Grantee may petition the City for a change in rates by filing a revised rate schedule in- cluding its justifications for said proposed new schedule. (2) Within ten (10) days of notification by the City of the place and time established for a hearing on said petition, the Grantee shall notify its subscribers on the same day by announcement on at least two (2) channels of its system, between the hours of 7 : 00 and 9 : 00 P.M. , for five (5) � °� consecutive days. Following all proper notice, but in no event later than ninety (90) days from the date of said petition, the City shall hold an appropriate public hearing to consider the proposed new rates, at which hearing all parties desiring to be heard, including the Grantee, shall be heard on any matters relating to the perfor- mance of this franchise, the Grantee ' s services, and the proposed new rates. (16) (3) Within ninety (90) days after said hearing, the City shall render a written decision on the Grantee' s petition, either accepting, rejecting or modifying the same and reciting the basis of its decision. (4) If the City fails to act within six (6) months of the Grantee' s petition pursuant to paragraph ""'�' (a) above, the Grantee shall thereafter be en- titled to put its proposed new rates into effect on a provisional basis, provided that it shall � keep a full and accurate accounting of all in- come resulting from same provisional rates and shall be obliged for a period of up to six (6) months thereafter to refund the amount by which said provisional rates exceed the rates ultimately established by the City. Upon request by the City the Grantee shall provide a bond or other reason- able surety to ensure that possible refunds due under this subsection shall be promptly made. The bonds or surety shall be in an amount not to exceed the difference between the amount of revenues generated in six (6) months at the pre- viously existing rates and the amount of revenues expected to be generated in six (6) months at the provisional rates. (5) The criteria for the City decision in such matters shall be establishment of rates which are "fair and reasonable" to both the Grantee and its sub- � scribers and shall be generally defined as the minimum rates necessary to meet all applicable cost of service, including fair return on all invested capital, all assuming efficient and economical management. � (6) In order for the City to determine whether proposed rate changes comport with the criteria established in subsection (5) above, the Grantee ' s petition for a rate increase shall include the following financial reports , which reflect the operations of the Grapevine system only. (i) Balance Sheet (ii) Income Statement (iii) Cash Flow Statement (iv) Statement of Sources & Applications of Funds (v) Detailed Supporting Schedules of Expenses , Income, Assets and other items as may be required (vi) Statement of Current and Projected Subscribers �,.A,,, and Penetration The Grantee ' s accounting records applicable to system shall be available for inspection by the `'�"` City at all reasonable times. The City shall have access to records of financial transactions for the purpose of verifying burden rates or other indirect costs prorated to the Grapevine operation. The documents listed above shall include sufficient detail and/or footnotes as may be necessary to pro- vide the City with the information needed to make (17) accurate determinations as to the financial condition of the system. All financial state- ments shall be certified as accurate by an officer of Grantee. (7) The City Council ' s decision shall be final and non-appealable. Section No. 44 - User Classes and Divisions � Division of users and subscribers and the classes for purposes of rates. �" Subscribers may be divided into commercial and residential classes. Nothing in this provision shall prohibit the reduc- tion or waiving of charges in conjunction with promotional campaigns for the purpose of attracting subscribers. Rates for commercial and non-commercial users of access channels may be established separately. Nothing herein shall prohibit preferential rates for non-commercial users if approved by the City. Section No. 45 - Advance Charges and Deposits A Grantee may require subscribers to pay for each month of basic service in advance at the beginning of each month. No other advance payment or deposit of any kind shall be re- quired by Grantee for basic subscriber service. No deposit or advance payment of any kind shall be charged for the pro- vision of any converter without prior approval of the City. Nothing in this provision shall be construed to prohibit charges or waiver of charges for initial installation or reconnection. Section No. 46 - Installation and Reconnection � Except as otherwise provided elsewhere in this ordinance, Grantee may make a charge to subscribers for the installation of service outlets and for the reconnection of service outlets. The rates for such connection or reconnection shall be authorized by the City as provided in this Article. Section No. 47 - Disconnection There shall be no charge for disconnection of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any other properly due fee or charge, the Grantee may disconnect the subscribers service outlet, provided, however, that such disconnection shall not be effected until thirty (30) days after the due date of said delinquent fee or charge and shall include ten (10) days written notice of the intent to disconnect delivered to the subscriber in question. If a subscriber pays thirty (30) days after payment is due and after notice of disconnection has been given, Grantee shall not disconnect. After dis- connection, upon payment in full of the delinquent fee or charge and the payment of any reconnection charge, Grantee shall promptly reinstate a subscribers cable service. �`" Section No. 48 - Records and Reports, Notice of Document Filed with City � (a) Annual Reports. No later than March 31 of each year, Grantee shall submit a written report to the City, in a form directed by the City Council, which shall include: (18) (1) A summary of the previous year activities and development of this system, including, but not limited to, services begun or drop- ped, subscribers gain or loss . (2) Copies of the financial statements audited by a certified public accounting firm ac- ceptable and approved by the City, including the Grantee' s balance sheet, income statement, ,�, and working papers relating to subscriber accounts. �, (3) A current statement of costs of construction by component categories. (4) A summary of complaints , identifying the number and nature of complaints and their disposition. (5) A list of all partners, officers and members of the board of the Grantee and the parent corporation, i f any. (6) A list of all stockholders holding three (3%) or more of the voting stock of Grantee, its parent and any affiliate, if any. (b) Filings with Federal Communication. Copies of all petitions, filings reports, and correspondence filed with the Federal Communication Commission will be filed concurrently with the City. Section No. 49 - Use of Public Property and Conditions for Use � (a) Grantee shall first obtain the approval of the � City prior to commencing construction on the streets , alleys , public grounds or places of the City. Applications for ap- proval of the construction shall be in a form provided by the City. Grantee shall give the City written notice of proposed construction at least ten (10) days prior to such construction so as to coordinate all work between the City and Grantee. (b) Grantee shall not open or disturb the surface of any street, sidewalk, driveway, or public place for any purpose without first having obtained a permit to do so in a manner provided by City ordinances. (c) Grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the Grantee when required by the City of Grapevine by reason of traffic conditions, public safety, street vacation, street construction, change or establishment of street grade, installation of sewer, drains , water pipes , City owned power or signal lights, and tracks or any other type of structure or improvement by public agency. °"�'�' (d) Grantee shall have authority to negotiate agreements with public utilities for use of existing poles. w„�,► (e) All wires , conduits, cables and other property and facilities of Grantee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual customary trade, traffic and travel upon the streets or public places of the City. The Grantee shall keep accurate maps and records as requested by the City. Grantee (19) shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners, or with any gas, electric, or telephone fixtures , or with any water hydrants or mains. Al1 poles or other fixtures placed in a street shall be placed in the right of way between the roadway and the prop- erty, as specified by the City. ,� (f) All wires, cables, amplifiers, and other property ; shall be constructed and installed in an orderly and workman- like manner. All cables and wires shall be installed parallel "`�`` with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in parallel and bundled, with due respect for engineering and safety consideration. All installations shall be underground in those areas of the City where public utilities providing either telephone or elec- tric service are underground. In areas where both telephone and electric utility facilities are above ground at the time of installation, the grantee may install its service above ground with the understanding that at such time as those facilities are required to be placed underground by the City the Grantee shall likewise place its service undergroung with- out additional cost to the residents of the City other than as may be granted under the provisions of this ordinance. (g) The City shall give the Grantee reasonable notice of plans for street improvement where paving or resurfacing of a permanent nature is involved. The notice shall give the Grantee sufficient time to make any additions , alterations , or repairs of its facilities as it deems necessary in advance of the actual commencement of the work, so as to permit the Grantee to maintain continuity of service. (h) Requests for Removal or Change. The Grantee shall � on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. (i) Authority to Trim Trees. The Grantee shall have the authority to trim trees overhanging upon streets, alleys, side- walks, and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. All trimming is to be done under the supervision and direction of the City at the expense of the Grantee. The Grantee shall make every effort to preserve the aesthetic beauty and viability of any trees trimmed. The Grantee may contractfor such services, however, any firm or individual so retained shall receive City approval prior to commencing such activity. (j ) Free Connections for Public Buildings. Public buildings shall be connected to the cable system at no charge. Such requests for service shall be initiated by authorized local �°°� government officials. For planning purposes, one service drop per facility should be anticipated at the Civic Center, City Hall, Police and Fire facilities , Public Library, and all public ;�, schools, If more than one drop is required (per facility) , the charge should be based on Grantee ' s costs of time and materials. No monthly charges shall be made for providing basic subscriber services at these public buildings. (20) (k) Interconnection. The Grantee may be required to interconnect its system with all other broadband communications facilities. Such interconnection shall be made within the time limit established by the City. The interconnection shall, at the City' s discretion, be accomplished according to the method and technical standards determined by the City, in a � manner consistent with applicable FCC standards. (1) At the expiration of the franchise term, or upon its termination as provided for herein, the City shall have `�' the right to require the Grantee to remove at its own expense all portions of the cable television system from all streets within the City. Section No. 50 - Landlord/Tenant (a) Interference with Cable Service Prohibited. Neither the owner of any multiple unit residential dwelling nor his agent or representative shall interfere with the right of any tenant or lawful resident thereof to receive cable communication service, cable installation or maintenance from a cable com- munication company regulated by and lawfully operating under a valid and existing cable communication franchise issued by the City. (b) Gratuities and Payments to Permit Service Prohibited. Neither the owner of any multiple unit residential dwelling nor his agent or representative shall ask, demand or receive any payment, service or gratuity in any form as a condition for permitting or cooperating with the installation of a cable com- munication service to the dwelling unit occupied by a tenant or resident requesting service. '� (c) Penalties and Charges to Tenants for Service Prohibited. Neither the owner of any multiple unit residential dwelling nor his agent or representative shall penalize, charge or surcharge a tenant or resident or forfeit or threaten to forfeit any right of such tenant or resident, or discriminate in any way against such tenant or resident who requests or receives cable communication service from a Grantee operating under a valid and existing cable communication franchise issued by the City. Any person convicted of violating any provision of this section is subject to a fine of not less than Twenty Dollars ($20 . 00) nor more than Two Hundred Dollars ($200 . 00) for each offense. Each day' s violation of this section shall be considered a separate offense. (d) Reselling Service Prohibited. No person shall resell, without the expressed, written consent of both the grantee and the City, any cable service, program or signal transmitted by a Grantee operating under a franchise issued by the City. (e) Protection of Property Permitted. Nothing in this article shall prohibit a person from requiring that cable com- ��. munications system facilities conform to laws and regulations and reasonable c�nditions necessary to protect safety, functioning, appearance and value of premises or the convenience and safety � of persons or property. (f) Risks Assumed by Grantee. Nothing in this article shall prohibit a person from requiring a cable communication company from agreeing to indemnify the owner, or his agents or representative for damages or from liability for damages caused by the installation, operation, maintenance, or removal of cable communication facilities. (21) Section No. 51 - Severability If any section, subsection, sentence, clause, phrase, or portion of the Franchise ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, dis- tinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. "�" Section No. 52 - Civil Remedies and Penalty (a) In case of any violation of any of the terms and �rr provisions of this ordinance, the City, in addition to imposing the penalties and sanctions above provided may institute any appropriate action or proceeding in any court having proper jurisdiction, to restrain, correct or abate such violations; and the definition of any violation of the terms of this ordi- nance shall not preclude the City from invoking the civil remedies given it by the laws of the state, and same shall be cumulative and subject to prosecution as prescribed for such violations. (b) Any person, firm, legal entity or corporation violating any of the criminal provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined a minimum of $1. 00 to a maximum of $200 . 00; each day of each violation shall constitute a separate and distinct offense. DULY PASSED by the City Council of the City of Grapevine, Texas, on the First Reading, on the 16th day of December , i 19 80 . �,, DULY PASSED by the City Council of the City of Grapevine, Texas, on the Second Reading, on the 20th day of January , 19 81. vwww+ APPROVED: Mayor ATTEST: . � City Secre ary APPROVED S TO FORM AND EGALITY: � � City Attorney FRANCHISE ACCEPTED BY TELEPROMPTER COMMUNITY CABLEVISION this 20th of Februarv � 1981• � TELEPROMPTER COMMUNITY CABLEVISION, A TEXAS L�MrTED PARTNER�H�P, TELE�ROMPTER OF GRAPEVINE, INC. , GENERAL AND MANA ING PARTNER. BY PRESID�NT �22)