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HomeMy WebLinkAboutORD 75-70- .. = . is ' •-- ORDINANCE NO.: �J�' %o ENTITLED AN ORDINANCE AMENDING ORDINANCE NO. 69-41 AND SUBSTITUTING THEREFOR THIS ORDINANCE -GRANTING A FRANCHISE TO BEAUMONT CABLEVISION, INC., -TO MAINTAIN AND OPERATE A CABLE TELEVISION SYSTEM IN THE CITY;. PROVIDING FOR SEVERABILITY; SETTING FORTH CONDITIONS,ACCOMPANYING THE GRANT; PROVIDING FOR DURATION, CANCELLATION, PENALTY, OPTION AND RENEWAL; PROVIDING REGULATIONS GOVERN- ING THE USE OF PUBLIC PROPERTY BY GRANTEE; PRO VIDING FOR INDEMNITY- TO THE CITY; PROVIDING RULES'..- -GOVERNING ULES.-GOVERNING THE -OPERATION OF THE SYSTEM; AUTHORI- ZING CERTAIN RATES -AND CHARGES FOR SERVICES; PROVIDING FOR REPORTS TO CITY; PROVIDING FOR FRAN- CHISE"PAYMENTS; :T0 THE CITY; PROVIDING 'FOR INCORPO- RATION OF."FEDERAL-'REGULATIONS.INTO THE FRANCHISE, WHEREAS Beaumont Cablevision, Inc., (the Company), was granted a franchise to operate a CATV, or cable television, system' within the City of Beaumont,'Texas; (the'City), under Ordi- riance No. 69-41, (the. Franchise), dated 22 July, -1969; and WHEREAS Company.has-operated said.system for a period of -two - (2) years, during which- time'the City has had opportunity to. observe the legal, character,. financial, technical and other . qualifications of the Company and the adequacy and feasibility of the Company's,construction arrangements; and WHEREAS the City has approved of .said qualifications, and ar rangements as part of a full public proceeding affording due process; BE IT ORDAINED BY THE CITY OF BEAUMONT, TEXAS Section I. , . GENERAL PROVISIONS (1) -.This ordinance shall be known and may be -cited as the "Beaumont Cablevision, Inc., Beaumont Community Antenna Television Fran chise Ordinance". (2) .For purposes of this ordinance, the word "shall" is always mandatory and not merely directory; the term "City".means The., City of Beaumont, Texas, a municipal corporation of Jefferson. No Text c�!rl -ZD i r //=c2s-I- 7S, Communications Commission.'and.Charter of City. Company shall at all times during .the life of this franchise be subject to ..all lawful exercise of the police power by City, and to such reasonable regulations as City shall hereafter by ordinance provide. (7)- If any stiction, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or.unconstitu- tional by any court of competent jurisdiction or.the Federal Com- munications Commission, such portion shall be deemed a separate, distiinct,.and independent provision and such holding shall not affect the validity' of the remaining portions hereof. Section II. GRANT OF AUTHORITY (1) -City hereby grants to Companyithe right and privilege to con .struct,.erect..operate and maintain in; upon, along, across,: above, over and.under-its streets, alleys, easements and public places, the Company's poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for -the maintenance and operation in the City of a cable television system for'the interception, transmission and distribution of audio and video signals, including television, to the extent that such use will not interfere with the public's use or City's use,'and.to.the extent that .the City may.,lawfully permit the use of the above described properties for the pur- poses set forth. (2) .City hereby.grants-Company the.right, privilege and.authority to obtain the use of facilities of any public utility operating under a franchise from City subject to acceptance by said utility and with its express:consent and subject to the regu- lations imposed upon said utility by.City. Any permission -3- to Company herein granted to use the facilities of any public utility with the express consent of such utility is subordi nate to the rights of City to use such utility facilities as' reserved to City in any such utility franchise. (3) Company.shall have the authority to promulgate such rules., regulations, terms and conditions governing.the conduct of its. business that shall be reasonably necessary.to'enable .Company to exercise its rights and perform its -obligations under this ordinance, and to assure.an uniterrupted service to each and all of its customers; provided,.that such.rules, regulations, terms and conditions shall not be in conflict with the provisions hereof, the ordinances of City' or the laws..of the State.of Texas. All rules, regulations, terms and conditions promulgated hereunder shall be filed with City Clerk of City.' (4) This ordinance and the franchise -shall be for a period of fifteen (15) years from the -effective date of this amending ordinance, unless sooner terminated as herein provided. Section III. DURATION, CANCELLATION, OPTION AND RENEWAL (1) The authority and rights herein granted shall take effect upon.the effective date of this ordinance., -.(April 1,,1976); and shall:continue in force and effect for a period of fifteen (15) years commencing on said date, -unless sooner terminated as provided herein. (2) If Company should fail to.cure one (1) or more of the herein- after described grounds for termination within sixty (60) days after written notice from.the City Manager to correct such grounds,- City may, after public hearing, -forthwith terminate this franchise in whole or in part. The grounds for termi- nation are as follows: (a) Material breach, whether by act or omission, of any terms or conditions of this franchise ordi- nance; or (b)_ Material misrepresentation of fact in the negotia- tion of this franchise; or (c) Insolvency of the cable company,.or application by the cable company for adjudication as a bankrupt, or inability or unwillingness of the cable company to pay its just debts when they accrue, except that the company may withhold payments when there is a good faith belief that the payment is not due or there is a dispute regarding the debt; or (d) Failure to provide subscribers or users with ade- quate service in the best interest of.the public convenience and welfare. (3) In the event that this franchise is terminated, either by expiration of time or as above set forth, and City does not exercise its option to .purchase Company's properties as set forth in subsection (7) of this Section III, then upon ninety (90) days written notice from City Manager, Company shall remove all of its equipment installed on all streets, alleys, easements and public places. If Company should fail to re- move any of said equipment upon said termination and notice, then City shall have the right to remove it at the cost and expense of Company and City shall have the right to and may recover from Company and/or the Surety on Company's perfor- mance bond any and all expenses incurred by City in so remov- ing said equipment. -5- 7 S1- w1 115-915 (4) Company agrees that no use of any property or right by it, however extended, nor any -.payment made, nor any other action or inaction by City or by Company shall create or vest in Company any ownership or property right in any of the pro- perties or property rights occupied or used or upon which any expenses has been undertaken by Company as a result of the. exercise by Company of the rights and privileges enumerated in .this ordinance. .(5) Within thirty (30) days after the effective date of this franchise, the cable company shall deposit with the City and maintain on deposit through the term of this franchise, "the sum of FIVE -HUNDRED AND NO/100 ('$500.00) DOLLARS as.security- for compliance with the terms of the franchise.- Within thirty .(50) days after -notice to, it that ;any amount has been with- drawn from the security fund,.:the cable company shall deposit with the City.a sum of money sufficient to restore such se- curity fund to its original amount of FIVE HUNDRED AND N0/100 ($500.00) DOLLARS.. For violation of material portions of this franchise, penal- ties shall be.chargeable to the security fund as follows:. (a) Failure_to.timely submit financial report, pursuant : to Section VIII,(1);"TWENTY-FIVE AND N0/100 ($25.00): DOLLARS .,per day. (b) Failure to..timely pay franchise fee, ONE HUNDRED AND NO/100 ($100.00) DOLLARS, per day. (c) Failure to report timely on_the handling of'sub- scriber complaints, pursuant to Section VI,(5); TWENTY-FIVE AND NO/100 ($25.00) DOLLARS per day. (d) Failure to make required payments to the security fund, FIFTY AND N01100,($50.00) DOLLARS per day,. (e) The City Manager of The City of Beaumont shall have -the authority to enforce -the provisions here-. in relating to penalties for violation of material portions of this franchise. (6) The City and the cable company shall hold scheduled renegoti- ation sessions within six (6) months of the 5th and -10th anniversary dates of the effective date of this amendatory ordinance. Special renegotiation sessions shall be held at any time during the term of the franchise, provided that both the City and the franchisee shall mutually agree on the time, place and the topics to be negotiated. The following subjects shall be renegotiated: Service rate structure; free and discounted services; application of new technology; system performances; services provided; programming offered; customer complaints;.amendments to this ordinance; underground progress; judicial and Federal Communications Commission rulings; maintenance of the system; and penalties for breach. Topics -in addition to those listed herein may be added if agreed upon by both parties. (7) The City shall have.the right: (a) At any time it terminates this franchise as set forth in subparagraph (2) of this Section III; or (b) at any time :within five (5) years . of the expiration of the term hereof, but prior to the last twelve (12) months of said term, with same to be effective at the expiration of the fixed term; to purchase or cause to be purchased the property of Company. If City elects to exercise such purchase right, the fair market value of such property, if not -agreed between the parties, shall be determined in an appropriate proceeding filed in any court having jurisdiction. Before the City shall purchase, or cause to be purchased, such property of Company, the matter of the acquisition of such property shall be submitted to a municipal election to be -7- ® i )9')T determined by a majority vote of the qualified taxpayers voting thereon. (8)Upon any termination of this franchise, either through can- cellation as provided for herein or at the expiration of this franchise, the cable company shall continue to provide all services at the prevailing rates for not more than six (6) months at the request of The City of Beaumont. (9) Thirteen (13) months prior to the expiration of the fifteen- (15) ifteen (15) year term of this franchise, the City Council shall appoint a five member cable television evaluation committee whose mem- bership shall consist of members of the community and from the City administrative staff. The'task of this committee shall be to review the performance of.the existing cable company -,and the content of this ordinance. The committee shall examine .the performance of the cable company and make recommendations to the City Council concerning whether to renegotiate with the present cable operator, open the City for bidding by other cable operators,'or provide another form of ownership at the end of the franchise. After giving public notice, the committee shall proceed to deter- mine whether the cable operator has satisfactorily performed his obligations under the franchise. To determine satisfactory performance, the committee shall look at the technical develop- ments and performance of the system, programming,.'other services offered, costs. of service, and any other particular requirements set out in the ordinance such as the availability of -program- ming equipment and personnel to aid access channel users; also, among other measurements, the committee shall consider the'fran- chisees annual reports made to the City or the Federal Communica- tions Commission, provision shall be made for community comment and industry performance on a national basis shall be considered. SIM No Text ofsuch public utility in accordance with -the rules and with the express consent of the public utility involved." In speci- fic locations which cannot be reached by the use of poles and structures of public utilities, Company may construct its own doles. (3) Company is hereby prohibited from erecting poles or installing cables, wires or other facilities above ground in any area, subdivision or city block in which other public utility systems. utilize underground transmission systems. In -any area, sub - :.division or city block of City where public utility .lines are. hereafter placed underground, Company shall forthwith remove, install and operate all.of its cables, lines and other facili-. ties underground." (4) In case of any disturbance by Company of pavement, sidewalk,.. driveway or other surfacing, Company`shall,.at its own cost and expense, and.in the manner approved by the Director of Pub - tic Works, replace and restore all paving, sidewalk, driveway or surface disturbed, in as good condition as before said work_ was commenced, and shall maintain the restoration in an approv- ed condition for a period of one (1) year. - .. (5) In the event that at any time during the period of this fran chise"the City shall elect to narrow ,!widen, relocate, alter, or change the grade of any street, alley or.other.public way, or'to.vacate or abandon same, Company, upon reasonable notice. by City,.shall remove, relay and relocate its poles, wires,, cables, underground conduits; manholes and other -appurtenant fixtures at its own expense and without calim:for reimbursement . from City. Whenever, by reason of the construction, reconstru.c tion or maintenance of any public structure or facility,.it. shall be deemed necessary by -the Department of Public Works for No Text y .. ; ♦.. 1. alleys, sidewalks and .public places of City so as to prevent the branches of such trees from coming. in contact with the wire and cables.of Company. Provided, that •City shall have the option to do. such trimming at the expcnse.of Company. Section V. INDEMNITY, INSURANCE AND SECURITY (1) Company, shall indemnify and °'save harmless the City; -its officers- and fficers-and employees, from any and all claims; damages, lawsuits judgments and liability. arising. out of or resulting 'from the construction, operation' or maintenance of its system or the granting of this franchise or Company's operations hereunder.- These damages.shall,include, but shall not be -limited to, in- fringement of'any copyright,trademark or franchise. Company shall pay to City any expenses incurred by City in defending itself with regard to damages -above set forth including reason- able value of servicesrendered by the City Attorney or his assistants. ,.Company -waives all claims, damages and liability it .could assert against City, as to all claims,.damages and liability which would not have:arisen but for Company's opera- tion and exercise of.rights.under this franchise. (2) Simultaneously with the acceptance'of this franchise, Company shall file .with the.City Clerk, and shall maintain throughout the term of this franchise, a performance bond running to City,_ with a corporate surety licensed to do business in Texas, in the amount of TEN THOUSAND AND NO/100.($10,000.00) DOLLARS, approved.by said Clerk" -,conditioned that Company shall well and truly observe, fulfill and perform each term and condition of this .franchise including the.indemnity provision above set forth, and that in case of -any breach of.condition of the bond, the amount thereof by the City for all damages resulting from .the -12- failure of Company.to.well and faithfully observe and perform any provision of this franchise. (3) Company shall procure, file with the City Clerk simultaneously with the. acceptance of -this franchise, and keep.in force through- out the term of this franchise, at its own cost and expense, a general comprehensive liability insurance policy, insuring liability on the part -of. the named insured occasioned by the operation of Company under this .franchise with minimum liability limits -as follows: THREE'HUNDRED THOUSAND AND NO/100.($300,000.00) DOLLARS for personal injury or death in one single accident; and FIFTY THOUSAND AND N0/100 ($50;000.00) DOLLARS for property damage in one single accident. Such policy shall be written by . an insurance company authorized to do--business-in Texas and having -an -agent on whom process can be served in Jefferson County,_ Texas. The. policy.shall be subject to approval by City.and shall p name Company, City and the officers and employees of City as named insureds. If the original policy.is not filed and kept_ on file with the City Clerk then.a certificate and a certified copy thereof shall be so kept on file and.such.policy shall pro- vide that it cannot be cancelled nor -the coverage reduced.without, ten (10) days written notice to.the City Clerk.. Section VI. OPERATION OF SYSTEM (1) Company shall install and maintain its -wires, cables, fixtures and other equipment in accordance with the requirements --of the: ..National Electrical Code of the.National Board of.Fire Under- writers and in accordance with sound engineering practice and same shall at all times.be kept and maintained in a safe, suit- able, substantial condition, and in good order and repair.. All above gound wires and cables crossing a highway, road.or street. - -13 ,M: jk/9-13-75/p14.. . shall be at beast eighteen (18) . feet above the surface of the . traffic land and twenty-two (22) , feet above. the surface of any State highway traffic lane. (2) The Company shall:. :'(a) Limit failures to.a minimum by locating and correcting malfunctions promptly, but in no event longer than . seventy-two (72) hours after notice. (b) Render -efficient -service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such.interruptions, insofar as possible, shall be preceded by notice and shall occur during periods:- of , minimum use of the. system. (c) Shall.maintain an office in the City; which shall be. open during all usual business hours, have.a listed telephone, and. -be so operated that complaints and requests for repairs or adjustments may be received, during all usual business hours and during all hours of telecast distribution. (d) Maintain.asufficient staff to service adequately all of the equipment which it furnishes, during all houra of telecast ' distribution. (e) Distribute weather information service. (f) Maintain at least one.(1) specially designated, non- commercial public access channel available ona . first- come., nondiscriminatory basis and shall have available for public use at least the minimal equipment and faci- lities, consisting of at least a studio,a. camera and video tape recorder, necessary for the production -of programming for such a channel in compliance with the Rules of- the Federal Communications Commission. - 14 - The Company will administer the public access channel in accordance with the FCC Mules -as follows: The Company shall exercise no control over program content, on the public access channel except as specified in the system's operating rules which will be filed in accordance with the FCC Rules. No charge will be made for use of the public access channel, except that the authorized user shall be responsible for production and all associated costs for programs, production and/or presentations other than live studio presentations of five (5) minutes or less duration. Assessment of production costs and other fees for use of additional public access channels shall be consistent with affording a low-cost means of television access to the public. (g) Make available, without charge, at least one (1) specially designated noncommercial education access channel for use by all educational institutions in the City on a first-come, nondiscriminatory basis pursuant to applicable rules, and .meeting the stan- dards of the Federal Communications Commission. Mini- mum equipment for production of programming shall be available as provided in paragraph VI(2)(f) herein, and subject to the same regulations as to charge for use of equipment as therein found. (h) Make available, without charge, at least one (1) specially -designated government access channel for use by local government with equipment available as provided in paragraph VI(2)(f) herein, and subject to the same regulations as to charge for use of equipment as therein found, pursuant to applicable rules and meeting the standards of the Federal Communications Commission. (i) Install a system with the capability, equipment, facilities and personnel necessary to immediately interrupt signals being distributed on any one (1) -15- No Text 17 No Text No Text TH: jk/9-13-75/p20�r`-.Z� • ., , . .. � fel a �..�°1 • (3)_ The Company shall hot sell.or transfer its plant or. system . to another, other than.a parent -company or'a wholly owned subsidiary of..the.Company,.nor transfer any rights under "the franchise to another"without Council approval. This" .`franchise shall not preclude the mort a ing, hypothecatingor .. .. -the assignment of certain rights in the s stem.or the led e g Y p g -. of stock by the Company for 'the purpose, of financing: Section IX. FRANCHISE PAYMENTS. (1) The Company shall :pay to the City, `-on -or before March .31st of each year, -a three.per cent (3%) franchise fee based on ". gross annual basic subscriber; revenues. received .for cable " -television operations in the City for the preceding calendar. ..year. .No other fee, charge or consideration shall be "imposed' Sales tax or other taxes levied directly on'a subscription- ..basis and "collected by the Company shall be deducted. from . .the gross annual basic subscriber revenues before computa-" -tion of sums, due "the City 'is made. ' The Company shall .provide an.annual summary report showing gross annual basic subscriber revenues -received during the preceding. year.. (2) City`.expr.ess.ly reserves, the._,righ to increase.:franchise: fees. in accordance -with the maximum limit allowed by.Federal Communications Commission Rules and Regulations. (3) - -The "compensation herein provided for does not relieve Company from -the ".payment of. ad .valorem taxes., special assessments, or other fees., charges, taxes and .the like applicable to the, Public generally.. -. - 20 - TH:jk/9-13-7 Section X. VL-nL-DAT DV GULATIONS (1) Any modification resulting from amendment of Section 76.31., ("Franchise Standards"), of the Rules and Regulations of the Federal Communications Commission shall be incorporated into the franchise as of the date such modifications become obligatory under Federal Communications Commission Regula- tions, or in the.event no obligatory date is established, within one (1) year of adoption, or at the time of franchise renewal., whichever occurs first.. Section XI. EFFECTIVE DATE (1) This franchise shall be and become effective from and. -after. - April 1., T976.- - 21 - No Text