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HomeMy WebLinkAbout81-2474 ordORDINANCE NO. 81-2474 AN ORDINANCE OF THE CITY OF PLAINVIEW, TEXAS, GRANTING TO TELESERVICE CORPORATION OF AMERICA D/B/A PLAINVIEW CABLE TELEVISION FOR A TERM OF 15 YEARS THE PRIVILEGE TO CONSTRUCT, ERECT, MAINTAIN AND OPERATE TOWERS, POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS AND OTHER APPURTENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND UNDER THE PUBLIC STREETS AND ALLEYS OF THE CITY OF PLAINVIEW, TEXAS, FOR THE PURPOSE OF OPERATING A TELEVISION AND/OR OTHER ELECTRONIC SIGNALS PRESCRIBING COMPENSATION TO BE PAID TO THE CITY OF PLAINVIEW FOR THE PRIVILEGE CONFERRED HEREBY: PRESCRIBING THE CONDITIONS GOVERNING THE OPERATION OF THE SYSTEM INSOFAR AS IT AFFECTS THE USE OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH SYSTEM: PRESCRIBING RULES AND REGULATIONS GENERALLY FOR THE OPERATION OF SUCH SYSTEM: GRANTING AUTHORITY, RIGHT, AND PRIVILEGE TO THE PLAINVIEW CITY COUNCIL TO SET, FIX, CONTROL AND REGULATE CERTAIN FEES FOR SERVICES FURNISHED DURING THE PERIOD OF THE FRANCHISE: AND REPEALING ORDINANCE NO. 795, ORDINANCE NO. 64-814, ORDINANCE NO. 74-1711, ORDINANCE NO. 76-1983 OF THE CITY OF PLAINVIEW, TEXAS. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS, that there is hereby created, granted, and established a nonexclusive franchise for a period of fifteen (15) years from the date of this ordinance passage for the installation, operation and maintenance of a cable television system within; ~ the City of Plainview to Teleservice Corporation of America Provided, however, that the said franchise shall be subject to the following terms and performance conditions: ARTICLE I. GRANT OF FRANCHISE AND GENERAL PROVISIONS SECTION 1% TITLE OF ORDINANCE This ordinance shall be known and may be cited as the "Cable Television Franchise," hereinafter "Franchise," and it shall become a part of the ordinances of the City of Plainview. SECTION 2. DEFINITIONS For the purpose of this ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. 2 Word~ not defined shall be given their common and ordinary meaning. a. "Basic Service" shall mean all subscriber services provided by the Company consisting of the twelve (12) basic channels plus other channels that are not premium pay services which can be received on a cable ready set or with a convertor, covered by the regular monthly charge paid by all subscribers, excluding optional services for which a separate charge is made. b. "Cable Television System" or "CATV System," shall mean a system of antennas, cables, wires, lines, towers, waveguides, or other conductors, con- verters, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing, audio, video and other forms of electronic or electrical signals~ located in the city. c. "City" is the City of Plainview, is a home rule city and a municipal corporation, in the State of Texas. d. "Company" is Plainview Cable Television, the grantee of rights 8nder this ordinance awarding a franchise, or the successor, transferee or assignee. e. "Converter" means an electronic device, which converts signa~.s 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 included in the basic service delivered at designated converter dial locations. f. "Council" shall mean the governing body of the City of Plainview. g~ "FCC" shall mean the Federal Communications Commission and any legally appointed, designated or elected agent or successor. h. "Gross Revenues" shall mean all revenue derived directly or indirectly by the Company, its affiliates, subsidiaries, parent, and any person in which the Company has a financial interest, from providing cable television services within the city, including, but not limited to, basic subscriber service monthly fees, pay cable fees (earned and collected), installation and reconnection fees, leased channel fees, converter rentals, studio rental, production equipment and personnel fees, and advertising revenues; provided, however, that this shall not include any taxes on services furnished by the Company herei~ imposed directly upon any subscriber or user by the state, local or other governmental unit and collected by the Company on behalf of said governmental unit. i. "Installation" shall mean the connection of the system from feeder Cabie to subscribers~ terminals. j. "Street" shall mean the surface of and the space above and below any public street, road, highway, lane, path, public way or place, alley, court, sidewalk, boulevard, parkway, drive or other easement now or hereafter held by the 3 City for the purpose of public travel and shall include such other easements or rights-of way as shall be now held or hereafter held by the City which shall within their proper use and meaning entitle the City and its Company to the use thereof for the purpose of installing or transmitting cable transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and o'ther property as may be ordinarily necessary and pertinent to a cable system. k. "Subscriber" means a recipient of cable television service. 1. "User" means a party utilizing a cable television system channel for purposes of production or transmission of material to subscribers, as contrasted with receipt thereof in a subscriber capacity. SECTION 3. RIGHTS AND PRIVILEGES OF COMPANY The franchise granted by the City pursuant to this ordinance shall grant to the Company the right and privilege to erect, construct, operate and maintain in, upon, along, across, above, over and under the streets, nowin existence and as may be created or established during its terms; any poles, wires, cable, under- ground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation of a CATV system for the interception, sale, transmission and dislribution of television programs and other audio-visual electrical signals and the right to transmit the same to the inhabitants of the City on.the terms and conditions hereinafter set forth. SECTION 4. FRANCHISE TERRITORY The franchise is for the present territorial limits of the City of Plainview, Texas and for any area henceforth added thereto during the term of the franchise. SECTION 5. DURATION AND ACCEPTANCE OF FRANCHISE The franchise and the rights, privileges and authority hereby granted shall take effect and be in force from and after final passage thereof, as provided by law, and shall continue in force and effect for a term of fifteen (15) years, provided that within thirty.~.(30) days after the date of final passage of the franchise the Company shall file with the City Manager its unconditioned acceptance of the franchise and promise to comply with and abide by all its provisions, terms, and conditions. SECTION 6. FRANCHISE RENEWAL a. This franchise may be renewed by the City upon application of the Company, pursuant to the procedure established in subsection b of this section, and in accordance with the then applicable law. (1) At least six months prior to the expiration of the franchise, Company shall inform the City in writing of its intent to seek renewal of the franchise. (2) After giving public notice, the City shall proceed to determine whether the Company has satisfactorily performed its obligations under the franchise. To determine satisfactory performance, the City shall consider technical developments and performance of the system, programming, other services offered, cost of services, and any other particular requirements set in the ordinance; also, the City shall consider the Company's annual reports made to the City and the FCC; industry performance on a national basis shall also be considered. Provision shall be made for public comment. (3) The City shall then prepare any amendments to this ordinance that it believes necessary. (4) If the City finds the Company's perf~o~mance satisfactory, a new franchise may be granted pursuant to the ordinance as amended. (5) In the event the Company is determined by the City to have performed unsatisfactorily, new applicants shall be sought and evaluated and a franchise award shall be made by the City. SECTION 7. POLICE POWERS In accepting this franchise, the Company acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power. Any conflict between the provisions of this franchise and any other present or future lawful ~xercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to Company or CATV systems which contains provisions inconsistent with this franchise shall prevail only if upon such exercise, the City finds an emergency exists constituting a danger to health, safety, property or general welfare or suclh exercise is mandated by law. SECTION 8. CATV FRANCHISE REQUIRED. No CATV system, be allowed to occupy or use the streets of ~he City or be allowed to operate without a CATV franchise. SECTION 9. COSTS Costs to be borne by Company shall include, but shall not be limited to, all costs of publications of notices prior to any public meeting provided for pursuant to this franchise, publication of this ordinance and any reasonable costs incurred by the City in its study, preparation of proposal documents and evaluation of the renewal application will be paid by the franchisee. SECTION 10. NOTICES Ail notices from Company to the City pursuan~ to this franchise shall be to the City Manager. Company shall maintain with the City, throughout the term of this franchise, an address for service of notices by mail. Company shall also maintain within the City of Plainview, local office and telephone number for the conduct of matters related to this franchise during normal business hours. SECTION 11. LIABILITY AND INSURANCE a. The Company shall maintain and by its acceptance of the franchise specifically agrees that it will maintain throughout the term of the franchise, insurance insuring the City and the Company in the minimum amount of: 1) Company's Liability: each occurrence $~00,000; aggregate $300,000. 2) Comprehensive General Liability: Bodily/ injury, each person $300,000 and each occurrence $1,000,000; Property damage, each accident $100,000 and aggregate $300,000. b, Proof of insurance policies obtained by the Company in compliance with this section must be filed with the City Secretary. SECTION 12. INDEMNIFICATION a. Company shall, at its sole cost and exp, and hold harmless the City, its officers, boards against any and all claims, suits, actions, liab: (including but not limited to expenses for reasol ~nse, fully indemnify, defend commissions and employees llity and judgments fQr damages lable legal fees and disburse~ ments and liabilities assumed by the City in com~ection therewi~th): 1) To persons or property, in any way arising out of or through the act~ or omissions of Company, its servants, agents or employees, or to which Company~ negligence shall in any way contribute; 6 2) Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringe- ment of any copy right, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation (excluding claims arising out of or relating to City programming); and 3) Arising out of Company's failure to comply with the provisions of any federal, state, or local statute, ordinance or regulation applicable to Company in its bu~siness hereunder. b) The foregoing indemnity is conditioned upon the~ following: The City shall give Company prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from cooperating with Company and participating in the defense of any litigation by its own counsel at its sole cost and expense. SECTION 13. RIGHTS OF INDIVIDUALS a. Company shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, or sex. Company shall comply at all times with all other applicable federal, state and local laws and regulations, and all executive and adminstrative orders re~ting to nondiscrimination which are hereby incorporated and ~e part of this ordinace by reference. bl The Company, or any of its agents or employees, shall not, without the specific written authorization of the subscriber involved, sell, or otherwise make available to any party: 1) lists of the names and addresses of such subscribers, or 2) any list which identifies the viewing habits of subscribers. SECTION 14. PUBLIC NOTICE Minimum pUblic notice of any public meeting realting to this franchise shall be by publication at least once in a local newspaper, s' of general circulation at least ten (10) days prior to the meeting; posting at City Hall, by announce- ment on one (1) channel of the Company's CATV system between the hours of 7:00 p.m. and 9:00 p.m., for five (5) consecutive days prior to.the meeting. SECTION 15. SEVERABILITY If any section, subsection, sentence, clause, phrase or ~ortion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof. ARTICLE~II. CATV SYSTEM EXTENSION, OPERATION, STANDRADS AND PROCEDURES SECTION 1. CATV SYSTEM CONSTRUCTION a. Line Extensions 1) The Company shall, where necessary to supply any person who will contract with it for its service and pay to company in cash at said time three (3) months advance service charge and who may make written demand therefore, extend any of its existing cables a distance of not to exceed one hundred (100) feet per customer. b. Upgrade and Continuing Improvements to local system 1) The Company and the City shall at the beginning of this franchise period and at each performance review session establish goals and time tables for the continuing upgrade and improvements to be made for the system in Plainview. These goals and time tables, when agreed upon by both parties, shall become a part of this franchise agreement· In the event, the Company fail, within its control, to perform as agreed upon, the City Council shall have the right to cancel this franchise. SECTION 2. CONSTRUCTION AND TECHNICAL STANDARDS a. Compliance with Construction and Technical Standards manner consistent with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, and detailed standards submitted by Company as part of its application, which standards are incorporated by reference herein. In addition, Company shall provide the City, upon request, with a written report of the results of Company's annual proof of performance tests conducted purusant to FCC standards and requirements. b. Additional Specifications Construction, installation and maintenance of the cable television system shall be perfommed in an orderly and workmanlike manner. Ail cables and wires whall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. Company shall at all times comply with: · National Electrical Safety Code (National Bureau of Standards); .~National Electrical Code (National Bureau of Fire Underwriters); Bell System Code of Pole Line Construction; and · Applicable FCC or other federal, state and local regulations. ~n any event, the system shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where the Company may have equipment located. Any antenna structure used in the cable television system shall comply with construction, marking, and lighting of antenna structure, required by the United States Department of Transportation. The Company shall maintain in its cable television system the capacity which will permit the City, in times· of e~ergency, to override, by remote control, the audio of all channels simultaneousl~ The Company shall coQperate with the City in the use and operation of the ~emergency alert override system. The Company shall maintain in its ca~ television system at' least two channels to p~ovide local assessibility to the City Government, ~ublic Schools and Wayland Baptist University. These will be for the purposes of production Qf~a~mis~o~n of materia to viewers as contracted with the receipt thereof in a subscriber capacity. Nothing in this ordinance is to imply that the Company shall be responsible for the construction and equipping transmitting studios or the training of personnel for such facilities. In all areas of the City where-the cables, wires, and other like facilities of public utilities are placed underground, the Company shall place its cables, wires, or other like facilities underground to the maximum extent that existing technology reasonably permits. SECTION 3. USE OF STREETS a. Interference with Persons and ~mprovements The Cgmpany's system, poles, wires, and appurtenances sh~li be located, erected and maintained so that none of its facilities shall endanger or interfere with the lives of persons, or interfere with any improvements the City may deem proper to make, or unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, easements or public property. b. Minimum Interference with Public Ways Ail transmission and ditribution structures, lines and equipment erected by the Company 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 minimum interf~encewith the rights or reasonable convenience of property owners ~ho~ adjoinany~.of, the~said streets, a~leys or ~o~her public .ways~and p~aces. c. Restoration to Prior Condition In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, or surface of any street or alley distrubed, in as good condition as before said work was commenced and in accordance with standards for such work set by the Dept. of Public Works. Gompany shall maintain the restoration in such condition, reasonable~wear and tear and acts of God only excep~ed, for a period of one (1) year. d. Erection, Removal, and Common Uses of Poles No poles or Qther~wire-holding structures shall be erected by the Company without prior approval of the City with regard to location, height, types, and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Company shall be a vested interest and such poles or structures shall be removed o~modified by the Company at its own expense whenever the City determines that'the public convenience would be enhanced thereby. e. Relocation of the Facilities In the event that at any time during the period of this franchise the City shall lawfully elect to alter, or change the grade of any street, alley or other public ways, the Company, upon reasonable notice by the City, shall remove or relocate as necessary its poles, wires, cah~es, underground conduits, ~anholes and other fixtures at its own expense. f. Cooperation withBuilding Movers The Company shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or. lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires~shall be paid by the person requesting the same, and the Company shall have the authority to require such payment in advance. The Company shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. g. Tree Trimming The Company shall not remove any tree or trim' any portion, higher above, at or below ground level, or any tree within any public place without the prior consent of the City. The City shall have the right to do the trimming requested by the Company at the cost of the Company. Regardless of who performs the work requested by the Company, the Company shall be responsible, shall defend and hold City. harmless for any and all damages to any tree as a result of trimming, or to the land surrounding any tree, whether such tree is ~rimmed or removed. SECTION 5. OPERATIONAL STANDARDS A. The Company shall put, keep, and maintain all parts of the system in good condition throughout the entire franchise period. If at any time during the term of this franchise period said company shall fail to render a satigfactory service to the inhabitants of the City of Plainview, considering the type of service this permit is granted to accomplish, the City COuncil may, after notice to the Company, herein, cancel and terminate this permit, grant and franchise. A. request for service shall be unreasonable for the,purpose of this subsection if no trunk line installation capable of servicing that person's block has as 10 yet been installe~d. c. The Company shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shallbe proceeded by notice and shall occur during periods of min'imum system use. d. Company shall not-allow its cable or other operations to interfere with television recePtion of persons not served by Company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various~utilities serving the residents within the confines of the City of Plainview. SECTION 6. CONTINUITY OF SERVICE MANDATORY a. It shall be the right of all subscribe~ to continue receiving service insofar as their financial and other obligations to the Company are honored. In the event that the Company elects to overbuild, rebuild, modify, or sell this franchise,~the Company shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. In the event of a change of franchisee,or in the event a new operator acquires the system, the Company shall.cooperate with the City, new franchisee or operator · in maintaining continuity of service-~to all subscribers. During such period, Company shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system. b. In the event Company fails to operate the system for seven (7) consecutive days without prior approval of the City or without just cause, the City may, at its option, operate the system or designate an operator until such time as Company restores service under conditions acceptable to the City or a permanent operator is selected. I~ the City is required to fulfull this obligation for the Company, the Company shall reimburse the City for all reasonable costs or damages in excess of revenues from the system received by the City that are the result of the Compnay's failure to perform. SECTION 7. COMPLIANT PROCEDURE a. The Office of the City Manager is designated as having primary responsibility for the continuing administration of the franchise and implementation of complaint procedures. b. During the term of this franchise, and any renewal thereof, the Company shall maintain a local business office for the purpose of receiving and resolving all complaints~regarding the quality of service, equipment malfunctions, and similar matters. The office must be reachable by a local, telephone call to receive complaints regarding quality of service, equipment malfunctions and similar matters. The local office shall be open to receive inquiries or complaints from subscribers during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal holidays. Any service compliaints from subscribers shall be investigated and acted upon as soon as possible. Any service compliant shall be resolved within three (3) calendar days. 'The Company shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by the City. c. As subscribers are connected or reconnected to the system, the Company shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and furnish information concerning the City office responsible for adminstration of the franchise with the address and telephone number of the office. d. When there have been similar compliants made, or where there exists other evidence, which, in the judgment of the City, casts doubt on the reliability or quality of cable service, the City shall have the right and authority to require Company to test, analyze, and report on the performance of the system. Company shall fully cooperate with City in performing such testing and shall prepare results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: 1) The nature of the compliant or problem which precipitated the special tests. 2) What system component was tested. 3) The equipment used and procedures employed in testing. 4) The method, if any, in which such. complaint or problem was resolved. 5) Any other information pertinent to said tests and analysis which may be required. The City may require that tests be supervised, at Company's expense, by a professional engineer, not on the permanent staff of the Comp~any. The engineer should sign all records of special tests and forward to the City such records with a report interpreting the results of the tests and recommending actions to be taken. 12 The City's right under this section, shall be limited to requiring tests, analyses, and reports covering specific subjects and characteristics based on said complaints or other evidence when and under such circumstances as the City has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard cable service. SECTION 8. COMPANY RULES AND REGULATIONS The Company shall have the authority to promulagate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable State and Federal laws, rules and regulations. SECTION 9. FRANCHISE FEE A. For the reason that the streets of the City to be used by the Company in the operation of its system, within the boundaries of the City of Plainview are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and that the grant to the Company to the said streets is a valuable property right without which the Company would be required to invest substantial capital in right-of-way costs and acquisitions, the Company shall pay to the City an amount equal to three percent ~(3%) of Company's gross annual revenue from all sources attributable to the operations of the Company within the confines of the City of Plainview. In the event that it is determined that the FCC lacks jurisdiction to.impose the three percent (3%) limitation on franchise fees, or that the limit is raised, then the franchise fee will be subject to renegotiation. The franchise fee may be renegotiated during the performance Evaluation Session at the end of the 5th year and 10th year as established in Art. III, Section 2 of this ordiance. bl This payment shall be in addition, to any other tax or payment owed to the City by Company. c. The franchise fee and any other cost or penalties assessed shall be ~yable on the first day of Februa'~y annually for the proceeding calendar year, to the City Manager's office and the Company shall file a complete and accurate verified statement of all gross receipts within the City during the period for which said annual payment is made, and said 13 payment shall be made to the City not later than one hundred twenty (120) days after the expiration of the Company's fiscal year. d. The City shall have the right to inspect the Company's income records and the right to audit and to recompute any amounts determined to be payable under this ordinance; provided, however, that such audit shall take place within thirty-six (36) months following the close of each of the Company's fiscal years. Any additional amount due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the Company by the City which notice shall include a copy of the audit report. e. In the event that any franchise payment or recomputed amount, cost or penalty, is not made on or before the applicable dates heretofore specified, interest shall be charged daily from such date at the annual rate of ten percent (10%). SECTION 10. TRANSFER OF O~ERSHIP OR CONTROL a. This franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet, or mortgaged in any manner, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person without the prior written consent of the City. Company may, however, transfer or assign the franchise to a wholly-owned subsidiary ~r parent of the company and such subsidiary may transfer or assign the franchise back to the Company without such consent. The proposed assignee must show financial responsi- bility as determined by the City and must agree to comply with all provisions of the franchise. City shall be deemed to have consented to a proposed transfer or assignment in the event its refusal to consent is not communicated in writing to Company within sixty (60) days following receipt of written notice of the proposed transfer o~ assignment. b. Tie Company shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the Company. ~e word ~control" as used herein is not limited to major stockholders but includ~Is actual working control in whatever manner exercised. A rebuttable presumptio~ that a transfer of control has occurred shall arise upon the acquisi- tion or accumulation by any person or group of persons of forty percent (40%) of the voting shares of the Company. Every change, transfer, or acquisition of control of the Company shall make the franchise subject to cancellation unless and until the City shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the 14 qualifications of the prospective controlling party, and the Company shall assist the City in any such inquiry. c. The consent or approval of the City to any transfer of the Company shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of this franchise. d. In no event shall a transfer of ownership or control be approved without successor in interest becoming a signatory to this franchise agreement. SECTION il. AVAILABILITY OF BOOKS AND RECORDS Company shall fully cooperate in making available at reasonable times, and a representative of the City Manager's office shall have the right to inspect the books, records, maps, plans and other like materials of the Company applicable to the CATV system, at any time during normal business hours; provided where volume and convenience necessitate, Company may require inspection to take place on Company premises. SECTION 12. OTHER PETITIONS AND APPLICATIONS Copies of all petitions, applications, communications and reports submitted by the Company to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable television operations authorized pursuant to the £ranchise, shall be maintained in the public files of the franchisee and available for inspection at its local cable television office. SECTION 13. FISCAL REPORTS The Company shall file annually with the City Manager, no later than one hm~dred twenty (120) days after the end of the Company's fiscal year, a copy of a financial report applicable to the CATV system including an income statement applicable to this operations during the preceeding twelve (12) month period, a balance sheet, and a statement of its properties devoted to CATV system operation, by categories, giving its investment in such properties on the basis of original cost, less applicable depreciation. These reports shall be certified as correct by a CPA hired by the company and there shall be submitted along with then such Other reasonable information as the City shall request with respect to the Company's properties and expenses related to its CATV system operations within the City. 15 SECTION 14. REMOVAL OF CATV SYSTEM At the expiration of the term for which this franchise is granted, or upon its termination as provided herein, Company shall forthwith, upon notice by City, remove at its own expense all designated portions of the CATV system from all streets and public property within the City. If Company fails to do so, City may perform the work at Company's expense. SECTION 15. REQUIRED SERVICES AND FACILI[TIES AND LIMITATIONS a. company shall comply with all rules and regulations of the' Federal Communication Commission regarding communication,hearing, transmission or broadcast of programming. b. Company shall comply with all State laws, rules and regulations regarding communication, hearing, transmission or broadcast of programming. ARTICLE III. ADMINISTRATION AND REGULATION SECTION 1. RULES AND REGULATIONS a. In addition to the inherent powers of the City to regulate and control this franchise, and those powers expressly reserved by the City, or agreed to and provided for herein, the right and power is hereby reserved by the City to promulgate such additional regulations as it shall find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of this franchise. b. The City may also adopt such regulations at the request of Company upon application. SECTION 2. PERFORMANCE EVALUATION SESSIONS a. The City and the Company shall hold scheduled performance evaluation sessions within thirty (30) days of the fifth and tenth anniversary dates of the Company's award of the franchise and as may be required by federal and state law. Ail such evaluation sessions shall be open to the public. b. Special evaluation sessions may be held at any time during the term of the franchise at the request of the City or the Company. 16 c. Ail evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with legal notice. Company shall notify its subscribers of all evaluation sessions by announcement on at least one (1) channel of its system between the hours of 7:00 p.m. ~ld 9:00 p.m., for five (5) consecutive days proceeding each session. d. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to, service rate structures; franchise fee; penalties; free or discounted services; application of new technologies; system performance; services provided; programming offered; customer complaints; privacy; amendments to this ordinance;-judicial and Fcc~f~i~ngs; line extension policies; and COmpany or City rules. e. Members of the general public may add topics either by working through the negotiating parties or by presenting a petition. If such a petition bears the valid signatures of fifty (50) or more residents of Plainview, the proposed topic or topics shall be added to the list of topics to be discussed at the evaluation session. SECTION 3. RATES a. Initial Rates 1) The Company shall request approval from the City Council rates that must be applied fairly and uniformly to all subscribers in the City for its services. Rates shall be as follows: RESIDENTIAL INSTALLATION CHARGES: Unwired installation, trip charge~ Wired installation or light-up fee, trip charge* Reconnect from temp. disconnect, non-pay, etc. MOving within a house or to another house, trip charge* Additional outlets within a residence, trip charge* Fishing wall, extra labor charge, each Prewire new home Addiitonal charge to bury drop (Customer's account must be current at time of order) '$10.00 10.00 10.00 10.00 10.00 10.00 10.00 10.00 RESIDENTIAL MONTHLY SERVICE CHARGES: First outlet in a resident Each additional outlet in a residence 8.00 1.25 PAY~NT POLICY: All bills are due and payable upon receipt. A customer wishing to pay service charges one year in advance will receive a discount of 5% off the net billing amount. If disconnected during the year which is prepaid, we ~ill subtract the discount from the amount refunded. ~' *One trip charge will pay for installing up to two (2) residential outlets in the same dwelling on the same installer's call, provided the monthly service charge for each outlet will begin immediately. PRE-WIRING NEW CONSTRUCTION: W'e will furnish drop wire to electrician~ Qr cQntractors for pre-wiring. If we are requested to do the'work, we will charge a trip charge payable at the time. SERVICE OUTSIDE THE CITY LIMITS, where cable is available: Installation charge $15.00. Monthly service charges: Residential, 1 outlet 8~50 Each additional outlet 1.25 UNDERGROUND SERVICE LINES: For information on underground drops or underground plant construction, arrangementsmust be made with the Man,ger. Additional installation charges may apply~ COMMERCIAL INSTALLATION CHARGES Rates of installation on commercial customers, such as motels, hotels, hospitals, apartments, nursing homes and housing authorities are based on the ~ype Of installation provided and number .of outlets served. Pleaae cQntRct tke Manager for information. COI~ERCIAL MONTHLY SERVICE CHARGES, ONE BILLING, SAME... LOCATION: 17 MOTELS, HOTELS, HOSPITALS, NURSING HOME~ & PUBLIC HQUS!NG AUTHQR!T!E$; 1st outlet $ 8.~00 Next 24 outlets, each 2.00 Ail over 25 outlets, each 1.50 TV SERVICE SHOPS, DEALERS & APPLIANCE STORES: i to 4 outlets Each outlet over 4 BUSINESSES, OTHER THAN ABOVE: 1st outlet Each additional outlet APARTMENT COMPLEXES & MOBILE HOME PARKS: 1st outlet Ail additional outlets, each $ 8.00 1.25 $ 8.00 2.00 $ 8.00 3.00 SECTION 4. RATE CHANGE PROCEDURES The City will maintain rate modification authority as found in Article 23, Section 197 & 198 of the Plainview City Charter. a. Rates Subject to Review. The City shall have the authority to review the following rates, fees and charges: 1) Rates for the provision of basic service to subscribers, whether residential or commercial. 2) Rates for the connection, installation and reinstatement (including converters) of basic service, whether residential or commercial. Where there no unusual circumstances exis~ such as remote or inacces- sable subscriber locations or subscriber requested underground service drops. 18 b. The Company may petition the City for a change in rates by filing in duplicate a proposed rate schedule with the City Council, which petition shall include the justification(s) for the proposed schedule. S~d petition shall be filed at least ninety (90) days prior to the requested implementation date of the rate change. One (1) copy of the petition shall remain on file with the City Secretary and be open for public inspection. c. Within sixty (60) days of the filing of the petitionfor rate change, the City shall hold an appropriate public hearing to~onsider the proposed rate change~'at which hearing all persons desiring to be hearD, including the Company, shall be heard on any matter, including but not limited to the performance of this franchise, the Company's services, and the proposed new rates. d. Upon notice of any public hearing as provided in subsection (c), the Company shall notify its subscribers of the time, place and Subject matter of the public hearing by announcement on at least one (1) channel of its system between the hours of 7:00 p.m. and 9:00 p.m., for at least five (5) consecutive days prior to the hearing. In addition, notice of any public hearing shall be published in a newspaper~.of general circulation at least once, but may be published two (2) or more times, provided that one (1) publication occurs not less than seven (7) nor more than twenty-one (21) days before the public hearing. e. Within thirty (30) days after said hearing, the City shall render a written decision on the Company's petition, either accepting, rejecting,' modifying or deferring the same and reciting the basis of its decision. The City shall consider, inter alia, the following factors in approving or disapproving the petition: 1) the ability of the Company to render System services and to derive a reasonable profit therefrom under the existing rate schedule and under the proposed rate schedule; 2) the revenues and profits derived from System services; 3) the efficiency of the Company; 4) the quality of the service offered by the Company; 5) the original cost of the System less depreciation; 6) a fair rate of return with respect to the cost of borrowing and the rates of return on investments having similar risks to that Of community antenna television; 7) the extent to which the Company has adhered to the terms of this agreement; and 8) fairness to City residents, subscribers and users. The City shall not consider any valuation based upon this franchise or the Company's goodwill and these items of value shall neither b~a~ortized as tan expense nor shall a return be paid on them. 19 f. If the City fails to render a written decision either accepting, rejecting, modifying, or deferring Company's petition within one hundred eighty (180) days of the Company's petition pursuant to subsection (b) above, the Company shall thereafter be entitled to put its proposed new rates into effect: g. The Company's petition for a rate increase shall include, but not be limited to, the following financial reports, which shall reflect the operations of the Plainview system only. 1) Balance Sheet 2) Income Statement 3) Statement of Sources and Applications of Funds 4) Detailed Supporting Schedules of Expenses, Income, Assets and other items as may be required. 5) Statement of Current and Projected ~ubscribers. The Company's accounting records applicable to the Plainview 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 Plainview operation. The documents listed above shall include sufficient detail and/or footnotes as may be necessary to provide the City with the information needed to make accurate determinations as to the financial condition of the system. Ail financial statements ~hall be certified as accurate by a CPA hired by the Company. SECTION 5. CIV~ PENALTIES For the violation of any of the following provisions of this franchise, penalties shall he.chargeable: a) For failure to provide data, documents, reports, information as required by Article II, Sections 9,11,12,13, and k~ticle III, Section 4, Company shall pay Fifth Dollars [$50.00 ) per day each violation occurs or continues. b) For fail~re to test, analyze and report on the performance of the system following a request pursuant to Article II, Section 7, Company shall pay Fifty Dollars ($50.00) per day for each day, or part thereof, that such noncompliance continues. SECTION 6. FORFEITURE AND TERMINATION a. In addition to all other rights and powers re~ained by the City under this franchise or otherwise, the City reserves the right to.forfeit and terminate the franchise and all rights and privileges of the Company hereunder in the event of a substantial breach of its terms and conditions. A substantial 2O breach by Company shall include, but shall not be limited to the following: 1) Violation of any material provision of the franchise or any material rule, order, regulation or determination of the City made pursuant to the franchise; 2) Attempt to violate any provision of the franchise or practice any fraud or deceit upon the City or its subscribers or customers; 3) Failure to restore service after ninety-six (96) consecutive hours of interrupted service, except when approval of such interruption is obtained from the City; or 4) Material misrepresentation of fact in an application for or negotiation of the franchise. b. The foregoing shall no~ constitute a major breach if the violation occurs but it is without fault of the Company or occurs as a result of circum- stances beyond its control. Company shall not be excused by mere economic hardship nor by misfeasance of malfeasance of its directors, officers or employees. c. The City Manager may make a written demand that the Company comply with any such provision, rule, order, or determinat.ion under or pursuant to this franchise. If the violation by the Company continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the City Manager may place the issue of termination of the franchise before the City Council. The City shall cause to be served upon Company~ at least fifteen (15) days prior to the date of such City Council meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and issue which the City Council is to consider. d. The City Council shall hear and consider the issue and shall hear any person interested therein, and shall determine in its discretion whether or not any violation by the Company has occurred. e. If the City Council shall determine the violation by the Company was the fault of Company and within its control, the City Council mays by resolu- tion, declare that the franchise of the Company shall be forfeited and terminated unless there is compliance within such period as the City Council may fix, such period not to be less than sixty (60) days, provided no opportunity for compliance need be granted for fraud or misrepresentation. f. The issue of forfeiture and termination shall automatically be placed upon the City Council agenda at the expiration of the time set by it for compliance. 21 The City Council then may terninate the franchise forthwith upon finding that Company has f~iled to achieve compliance or may further extend the period, in its discretion. SECTION 7. FORECLOSURE Upon the foreclosure or other judicial sale of all or a substantial part of thc CATV system, or upon the termination of any lease covering all or a substantial part of the CATV system, the Company shall notify the City of such fact, and such notification shall be treated as a notification that a change in control of the Company has taken place, and the provisions of this franchise governing the consent of the City Council to such change in control of the Company shall apply. SECTION 8. RECEIVERSHIP The City Council shall have the right to cancel this franchise on hundred twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the Company, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: a. Within one hundred twent~ (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 thereunder; and b. 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 premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this ordinance and the franchise granted to the Co~pany. SECTION 9. COMPLIANCE WITH STATE AND FEDERAL LAWS Notwithstandin~ any other provisions of this franchise to the contrary, the Company shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof. SECTION 10. THEFT OF SERVICES AND TAMPERING A. No person, whether or not a subscriber to the cable system may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or 22 apparatus of Company, or commit any act with intent to cause such damge, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and appratus, or appurtences of Company with the intent to obtain a signal or impluse from the cable system without authorization fro] or compensation to the Company, or to obtain cable television or other communications service with intent to cheat or defraud Company of any lawful charge to which it is entitled. b. Any person convicted of violating any provision of this section is subject to a fine of not less than one dollar ($1.00) nor more than Two Hundred Dollars ($200.00) for each offense. Each day's violation of this section shall be considered a separate offense. SECTION 11. EFFECTIVE DATE This ordinance shall become effective from and after its passage and publication as provided by law. PRESENTER A.~{DGIVEN FIRST READING on the 8th day of December , 1981, at a regular meeting of the City Council of the City of Plainview. Texas and GIVEN SECOND READING, passed and approved on the 12th day of January · 1982, by a-vote of 5 ayes and 0 nays at a regular meeting of the City Council of the City of Plainview, Texas. ATTEST: / - TOM- HAMILTON, C±ty Attorney APPROVED: ~./J.ROBERT I~AYL~4D~y~ - - _ ~ ACCEPTANCE Company accepts and hereby agrees to be bound by all the terms and conditions of this franchise. DATE 23 GOALS AND TIME TABLES:FOR UPGRADING AND CONTINUING iMPROVEMENTS TO BE MADE TO THE PLAINVIEW CABLE TV SYSTEM BY TELESERVICE CORPORATION OF AMERICA DBA PLAINVIEW CABLE TELEVISION. It is hereby agreed that Plainview Cable Television and the City that the following improvements will be completed within 3 years from the date that the franchise is accepted by the Cable TV Company. 1) Ail Main Amplifiers left within the system (approximately 55) will be replaced and updated. 2) Ail Bridger Amplifiers (approximately 40) which remain to be replaced and updated will be changed. 3) Ail Extender Amps (approximately 135) will be changed and upgraded. 4) All Passive Devices (Taps, Splitters and C~uplers) will be changed and upgraded. 5) Modulators for existing channels will be upgraded. 6) Mixers and additional headend equipment will be installed. 7) TACM Modules or existing amplifiers will be installed and upgraded. The following improvements will be made and completed to the Plainview Cable TV System by the Company within four years from the date of acceptance of this franchise. Ail equipment within the city limits of Plainview will be sufficiently upgraded to provide electronic capacity to carry 35 channels plus four two-way channels. 1) At least 20 channels will be available to subscribers.