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HomeMy WebLinkAbout06-3464 ordAN ORDINANCE AMENDING THE CABLE TELEVISION FRANCHISE AGREEMENT (ORDINANCE NO. 99 -3205) WITH THE CITY OF PLAINVIEW, HALE COUNTY, TEXAS; CUMULATIVENESS CLAUSE; CONFLICT CLAUSE; SEVERABILITY CLAUSE; AND EFFECTIVE DATE. WHEREAS, by Resolution No. R06 -160, the City of Plainview approved the assignment of the existing cable television franchise agreement from Cox Southwest Holdings L.P., to Cebridge Acquisitions L.L.C. (which will transfer to Cebridge L.P. at closing)(hereafter, jointly and severally, "Cebridge and, WHEREAS, in an agreement signed and executed by Cebridge and the City of Plainview on Apri1l3, 2006, Cebridge has consented to the City amending the existing franchise agreement adopted by Ordinance No. 99 -3205 on January 26, 1999 as stated below; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS: That the franchise agreement for cable television utility adopted by Ordinance No. 99 -3205 is hereby amended to add the following sections, to read as follows: SECTION 3. TRANSFERS. ORDINANCE NO. 06 -3464 Transferee's Agreement. No application for a Transfer of a Franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Agreement, and that it will assume the obligations, liabilities, and responsibilities for all acts and omissions, known and unknown, of the previous Franchisee under this Agreement for all purposes, including renewal, unless the City, in its sole discretion, expressly waive this requirement in whole or in part. However, no such consent shall be required for Franchisee to pledge or grant a security interest to any lender(s) in Franchisee's assets, including, but not limited to, the Franchise, or of interests in Franchisee, for purposes of securing any indebtedness. SECTION 7. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL USE. Cable Service to Certain Facilities. Upon the request of the City, the Franchisee shall without charge install up to ten (10) activated outlets at each public and non profit educational institution, each city or municipal agency building, each facility owned by or leased to the City, and each multi- purpose Community Center within the Franchise Area and within 300 feet of existing plant, as shall be designated by the City from time to time subject to line extension requirements of section 4 above. Furthermore, the Franchisee shall continue to serve all existing Ordinance No. 06 -3464 Cable Television Franchise Page 1 of 7 409 Location* of Connections on April 1, 2006 City Hall, 901 Broadway 3 Library, 825 Austin 2 Police Station, 108 West 9`" Street 8 Fire Stations Central Station, 215 East 6"' Street 9 Substation 2, 911 Quincy 11 Substation 3, 3405 S.W. 3 ftl Street 10 410 municipal buildings identified on Exhibit A, and shall provide free expanded basic service to those buildings. The City shall continue to receive at least the number of outlets in such buildings on April 1, 2006, if in excess of ten. In the event the City must move operations from an existing building identified on Exhibit A to a new building, the new building shall receive at least the same number of free outlets as the existing building possessed if the City so specifies. For new public and non profit educational institutions, city or municipal agency buildings or facilities owned by or leased to the City which are added to the existing list identified on Exhibit A after April 1, 2006 (except those provided for in the preceding sentence), the City shall upon request receive free of charge basic and expanded basic service for up to 10 rooms in such buildings. EXHIBIT A City buildings not shown are eligible for cable connections but have not made a request as of April 1, 2006. Return Feed From Facilities. Franchisee shall provide dedicated, bi- direction fiber optic links, or other means mutually acceptable to the City and Franchisee which provides a comparable level of service, between the headend and each of the facilities at the addresses designated on Exhibit A. Franchisee shall provide service to all of the locations on Exhibit A within six (6) months of the date of the Acceptance Agreement. Ordinance No. 06 -3464 EXHIBIT A Fire Station, 911 Quincy Street, Plainview, Texas Fire Station, 215 S.E. 6 Street, Plainview, Texas Fire Station, 3405 S.W. 3 Street, Plainview, Texas Library, 825 Austin Street, Plainview, Texas City Hall, 901 Broadway Street, Plainview, Texas Police Station, 108 W. 9 Street, Plainview, Texas Service Center, 410 W. 18 Street, Plainview, Texas Water Plant, 3600 16 Street, Plainview, Texas Shelter House, 200 S. Beech Street, Plainview, Texas Accounting, 121 W. 7 Street, Plainview, Texas Health Department, 111 E. 10 Street, Plainview, Texas Rotary Building, 3600 W. 4 Street, Plainview, Texas Wastewater Treatment Plant, County Road Y, Plainview, Texas Cable Television Franchise Page 2 of 7 Landfill, County Road Y, Plainview, Texas Park Maintenance, 200 S. Beech Street, Plainview, Texas Government Channel Placement. Franchisee shall not alter the channel placement on which the government access channel has been carried by its predecessor, Cox (as defined in Section 17), unless it is required to put a broadcast television station on such channel pursuant to the FCC Rules. Peg Capital Grant. Upon written request by the City, Franchisee agrees to pay the City a one -time cash payment of fifty (50) cents per subscriber to be used for capital facilities for public, education or government channels. This amount is not to be considered to be part of any franchise fee payment nor deducted from any franchise fee paid to the City. Franchisee agrees that the costs of this payment shall not be passed through to subscribers. SECTION 11. REPORTS AND RECORDS. Access to Records. The records (other than financial records) relating to the System's operations in the City which the City is entitled to inspect under the Franchise or other applicable law shall continue to be maintained and subject to inspection in "West Texas" (meaning west of any county through which 1 -35 passes) regardless of whether such records are maintained by Franchisee, its management company, or their affiliates. Relevant financial records shall be made available to the City in West Texas upon reasonable request. SECTION 17. NO DETERIORATION IN SERVICE. A. For purposes of this Section 17, "Cox" shall mean Cox Southwest Holdings, L.P., which was the Franchisee until mid -2006, and "Cebridge" shall mean Cebridge Acquisition, L.P., which became Franchisee upon City's approval of assignment from Cox. B. Cebridge shall maintain at least the current level of customer service provided by Cox in the City. C. Cebridge shall comply with the customer service standards of the Federal Communications Commission "FCC as set forth at 47 CFR Part 76 "FCC Rules including 76.309, 76.1602, 76.1603, 76.1618 76.1619. D. For three years after the assignment to it of the Franchise, Cebridge will maintain sufficient staffing levels for the personnel in the local office(s), technicians, field service personnel and telephone customer service representatives serving the City and its Ordinance No. 06 -3464 Cable Television Franchise Page 3 of 7 411 412 residents to maintain at least the level of service currently provided by Cox. E. Recognizing that Cebridge has no current plans to change existing operations, Cebridge shall maintain the current local office(s) in its /their present location(s) and the current hours of operation for at least one year after the assignment to it of the Franchise, unless otherwise agreed with the City in writing. F. Cebridge agrees that records relating to the System's operations that were maintained locally as of January 1, 2006 will continue to be kept locally. G. The City, by itself or in combination with other municipalities, may audit Cebridge (and any entity providing customer service functions on behalf of the franchisee) to verify the accuracy of the reports required under this Sectionl7.C. All records reasonably necessary to conduct the audit shall be made available at a convenient location in West Texas. Cebridge will comply with all enforcement provisions in the Franchise. SECTION 18. VIOLATIONS. A. If the City has reason to believe that Franchisee is in violation of the customer service provisions of the Franchise, the City shall notify Franchisee in writing of the violation setting forth the nature of such violation. Within thirty (30) days of receipt of such notice, or such longer period specified by the City, Franchisee shall respond in writing that the violation has been cured or provide a cure plan or schedule that satisfies the City or provide explanations in refutation or excuse with documentation to support that an alleged violation did not occur. B. Notwithstanding Subsection A of this Section, Franchisee shall be allowed thirty (30) days to cure violations after written notice is received from City, by taking appropriate steps to comply with the terms of the Franchise and any lawful regulations. If the nature of the violation is such that it cannot be fully cured within 30 days due to circumstances not under Franchisee's control, the period of time in which Franchisee must cure the violation shall be extended by the City in writing for such additional time reasonably necessary to complete the cure, provided that (i) Franchisee shall have promptly commenced to cure, and (ii) Franchisee is diligently pursuing its efforts to cure in the City's reasonable judgment. C. If the violation has not been cured within the time allowed under Subsection B of this Section, Franchisee shall be liable for liquidated damages for the following violations: Ordinance No. 06 -3464 i) failure to provide and maintain requested Cable Service to any subscriber within the Franchise Area as required by the Franchise: seven and one -half cents ($.075) per affected household, for each day that such failure continues (not to exceed five hundred dollars ($500) per day); and Cable Television Franchise Page 4 of 7 ii) failure to substantially comply with the material customer service requirements of the Franchise in accordance with Section 17 of the Franchise: one hundred dollars ($100) per day, for each day such failure continues. Each day on which a violation of the FCC customer service standards occurs constitutes a separate offense. D. Franchisee agrees that each of the foregoing failures shall result in injuries to City and its citizens and institutions, the compensation for which would be difficult to ascertain and to prove. Accordingly, Franchisee agrees that the foregoing amounts are liquidated damages, not a penalty or forfeiture, and are within one or more exclusions to the term "franchise fee" provided by federal law at 47 U.S.C. 542(g)(2)(A -D) and therefore in no way part of the compensation paid to City as pursuant to Section 8 of the Franchise. E. Notwithstanding any other provision of this Franchise, upon Franchisee's request, Franchisee shall be afforded an opportunity to show that a violation has not occurred. This opportunity shall consist of an administrative hearing upon thirty (30) days' notice before an impartial hearing examiner jointly designated by the City Attorney and Franchisee within thirty (30) days of Franchisee's request. F. If as a result of the administrative hearing, the hearing examiner determines that a violation has not occurred, City shall pay all of the expenses related to the administrative hearing. If a violation has occurred, Franchisee shall pay the expenses. After the conclusion of the administrative hearing, either party may seek any and all remedies which it may have at law. G. Upon evidence being received by City of violations of this Franchise, any City Charter provisions or any ordinances lawfully regulating Franchisee in the construction and operation of its Cable System have occurred, or continue to occur after the thirty (30) day period, and any additional time necessary to cure, as allowed under Subsection B of this Section, City may cause an investigation to be made. If City finds that such a violation continues to exist or has occurred, then City or Franchisee may take any action authorized by law, including forfeiture of the Franchise and a suit in court to compel compliance. In any such proceeding, the non prevailing party shall be required to pay the reasonable expenses incurred by the prevailing party in such suit and all damages and costs (including attorney fees), but Franchisee may be allowed, either by the court in the judgment of forfeiture or by order of the City Council, a reasonable time thereafter, as fixed by such judgment or order, to correct the default and pay such expenses, damages and costs as it may be adjudged to pay, and if Franchisee does so correct and so pay within such time, forfeiture shall not become effective nor be enforced. H. Failure by City or Franchisee to enforce any rights under this provision does not constitute a waiver of such rights. Ordinance No. 06 -3464 Cable Television Franchise Page 5 of 7 413 414 SECTION 15. MISCELLANEOUS PROVISIONS. Cumulativeness. Provisions of this Ordinance are cumulative and nothing herein shall prevent, alter, or diminish the applicability or enforcement of other ordinances restricting, regulating or governing the subject matter herein. Conflicts. All ordinances or portions of any ordinances of the City of Plainview, Texas in conflict herewith, are hereby amended to conform with the provisions hereof. Severability. If any provision, section, subsection, sentence, clause or the application of same to any person or set of circumstances for any reason is held to be unconstitutional, void or invalid or for any reason unenforceable, the validity of the remaining portions of this ordinance or the application thereby shall remain in effect, it being the intent of the City Commission of the City of Amarillo, Texas in adopting this ordinance, that no portion thereof or provision contained herein shall become inoperative or fail by any reasons of unconstitutionality of any other portion or provision. Publishing and Effective Date. This Ordinance shall be of full force and effect upon its passage and publication as required by law. INTRODUCED AND PASSED by the City Council of the City of Plainview, Texas, on First Reading this the 23 day of May, 2006. PASSED AND APPROVED on Second and Final Reading the 13 day of June, 2006. ATT ST: littaig XL Be inda Hinojosa, City Secret Ordinance No. 06 -3464 Cable Television Franchise Page 6 of 7 APPROVED AS TO CONTENT AND FORM: esli- -ar Pearce, City Attorney Ordinance No. 06 -3464 Cable Television Franchise Page 7 of 7 415