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.
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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
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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.
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(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
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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.
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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
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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
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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
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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.
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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.
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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)
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(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
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-the assignment of certain rights in the s stem.or the led e
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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.. -.
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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.-
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