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Ord 171 Granting a Franchise Agreement to County Cable Limited PartnershipORDINANCE NO. 171 AN ORDINANCE GRANTING A FRANCHISE TO COUNTY CABLE LIMITED PARTNERSHIP, AN ARKANSAS LIMITED PARTNERSHIP, DOING BUSINESS AS PLANNED CABLE SYSTEMS, OF WHICH THE GENERAL PARTNER IS CABLEVISION MANAGEMENT, INC., AN ARKANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM IN THE TOWN; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; PROVIDING FOR TOWN REGULATION AND ADMINISTRATION OF THE CABLE COMMUNICATIONS SYSTEM; AND PRESCRIBING PENALTIES FOR VIOLATION OF THE FRANCHISE PROVISIONS. The Board of Aldermen of the Town of Westlake does hereby ordain as follows: Section 1 INTENT. The Town of Westlake finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of Westlake. Because of the complex and rapidly changing technology associated with cable television, the Town further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Town or such persons as the Town shall designate. It is the intent of this ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this ordinance shall be deemed to include this finding as an integral part thereof. Section 2 SHORT TITLE. This ordinance shall be known and may be cited as the "Westlake Cable Communications Ordinance." Section 3 DEFINITIONS. For the purposes 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, words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined shall be given their common and ordinary meaning. (1) "City" shall mean the Town of Westlake, a municipal corporation of the State of Texas and all the territory within its present and future boundaries and including any area over which the Town exercises jurisdiction. The Board of Aldermen is authority of the Town. (2) "Cable Communications System" or "System," also referred to as "Cable Television System," "Cable System, " "CATV System," or "Community Antenna TV System," shall mean a system of antennae, cables, wires, lines, towers, waveguides, or other conductors, converters, amplifiers, headend equipment and facilities designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing audio, video and other forms of electronic or electrical signals within the City. (3) "Franchise" shall mean the right granted through this ordinance to erect, construct, reconstruct, operate, dismantle, test, use and maintain a cable communications system in the City. The franchise awarded by this ordinance shall be a nonexclusive franchise. (4) "Franchise Agreement" shall mean an agreement entitled "Franchise Agreement" entered into between the City and Grantee which is enforceable by City and Grantee and which sets forth the rights and obligations between City and Grantee arising out of the Franchise. (5) "Grantee" shall mean County Cable Limited Partnership, an Arkansas limited partnership, of which Cablevision Management, Inc, an Arkansas corporation, is general partner, doing business as Planned Cable Systems Corporation, its agents, employees, lawful successors, transferees or assignees. (6) "Grantor" or "City" means the Town of Westlake as represented by the Board of Aldermen or any delegate acting within the scope of its jurisdiction. (7) "Franchise Fees" means any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a Grantee solely because of its status as such. The term "franchise fee" does not include: (a) Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee or assessment which is unduly discriminatory against Grantee; (b) Capital costs which are required by the franchise to be incurred by Grantee - 2 - for public, educational and governmental access facilities; (c) Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (d) Any fee imposed under Title 17, United States Code. (8) "Gross Revenues" shall mean all cash, credits, property of any kind or nature or other consideration received directly or indirectly by a Grantee, its affiliates, subsidiaries, parents and any other person or entity in which the Grantee has a financial interest or which has a financial interest in the Grantee, arising from or attributable to operation of the Cable Television System within the City, including, but -act limited tc. (a) revenue from all charges for services provided to subscribers of entertainment and non -entertainment services (including leased access fees); (b) revenue from all charges for the insertion of commercial advertisements upon the Cable Television system; (c) revenue from all charges for the leased use of studios; (d) revenue from all charges for the installation, connection and reinstatement of equipment necessary for the utilization of the Cable Television System and the provision of subscriber and other services; and (e) the sale, exchange or use or cablecast of any programming developed for community use or institutional users. "Gross Revenues" shall not include the franchise fee imposed pursuant to Section 29 and 30 of this Ordinance, nor any taxes on services furnished by the Grantee which are imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the Grantee for such governmental unit. - 3 - (9) "Initial Service Area" means the area of the City in which Grantee shall first make cable television service available as provided in this Ordinance. (10) "Initial Service Area Map" means the map to be filed by the Grantee on or before Grantee's acceptance of this Franchise Ordinance pursuant to Section 43 of this Ordinance showing the Initial Service Area and shall show the proposed trunk lines and initial homes for which cable television service shall be available. (11) "Leased Access" shall mean the use on a fee-for-service basis of the Cable Television System by business enterprises (whether profit, non-profit or governmental) to render services to the citizens of the City and shall include without limitation all use pursuant to Section 612 of the Cable Communications Policy Act of 1984 (47 USC 521 et. seq.) (12) "Person" means any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof. (13) "Subscriber" means any person who legally receives any one or more of the services provided by the Cable Communications System. (14) "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk, parkway, or driveway now or hereafter existing as such within the City. Section 4 POLICE POWERS. Nothing in this ordinance shall be construed as an abrogation by the City of any of its police powers. Section 5 GRANT OF AUTHORITY/EFFECTIVE DATE. (1) There is hereby granted to County Cable Limited Partnership, an Arkansas limited partnership, doing business as Planned Cable Systems, whose general partner is Cablevision Management, Inc., and Arkansas corporation, and its successors and assigns, hereinafter called "Grantee", subject to the provisions of sub paragraph (2) hereof, for the term of fifteen years from September 1, 1988, the right, privilege and franchise to have, acquire, construct, reconstruct, maintain, use and operate in, over, under, along and across the present and future streets, highways, alleys, bridges, and public ways and places of the City all necessary or desirable poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes and other structures and appurtenances necessary - 4 - for the construction, maintenance and operation of a system and service for receiving, amplifying and/or distributing television, radio, and other electronic signals, hereinafter called a "community antenna or cable television system", in the Town of Westlake, Texas. This Ordinance and all authority granted herein shall be effective from and after its passage and approval; provided, all rights contained herein shall be void if Grantee fails to file an acceptance as required by Section 43 hereof or if the Initial Service Area Map is disapproved by the Board of Aldermen Council on or before thirty (30) days after filing of the map by Grantee. (2) Within six months of the effective date of this Ordinance and at all subsequent times, Grantee shall have basic and premium cable service available to 100% of the residential homes and households in the City within the area shown on the Initial Service Area Map. (3) Grantee shall at least annually, report in writing to the Board of Aldermen Council as to those areas within the Town limits that are not then served by cable television service. To the extent Grantee can serve all or any portion of such areas, such area shall be known as Subsequent Designated Service Area and Grantee shall promptly provide a map of such area to the Council and shall immediately commence construction of a cable plant to serve all homes within such area. (4) Grantee understands, acknowledges and agrees that Grantee shall have basic and premium service available for reception by 100% of all residential homes and households within each Subsequent Designated Service Areas within one year from creation of such area and that upon failure of Grantee to have provided such service, the then existing Board of Aldermen of City shall have the right under this Agreement and this provision to cancel this Franchise upon sixty (60) days written notice to Grantee. Section 6 AUTHORITY FOR USE OF STREETS. (1) For the pur^c3es t ,--erat®ng and maintaining a Cable Communications System in City, Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets within City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and apparent to the operation of the Cable System, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances are otherwise complied with. - 5 - (2) Prior to construction or material alteration, Grantee shall in each case file plans with the City and all affected utility companies. Grantee shall provide a monthly progress report to City through the completion of construction or alteration. (3) Grantee shall construct and maintain a Cable Communications System so as not to interfere with other uses of streets. Grantee shall make use of existing poles and other facilities available to Grantee. Grantee shall individually notify all residents affected by proposed construction prior to the commencement of that work. (4) Notwithstanding the above grant to use streets, no street shall be used by Grantee if City, in its sole opinion, determines that such use is inconsistent with the terms, conditions or provisions by which such street was created or dedicated, or presently used. The City reserves the right to disapprove any proposed construction or alteration provided such disapproval is in writing and provided to Grantee within five (5) days of filing with the City. The City shall not act unreasonably in any such disapproval. Section 7 CONDITIONS ON STREET OCCUPANCY. (1) All transmissions and distributions structures, lines, and equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said streets, alleys or other public ways and places. (2) In case of disturbance of any street, sidewalk, alley, public way, or paved area, the grantee shall, at its own cost and expense and in a manner approved by the City Engineer, replace and restore such street, sidewalk, alley, public way, or paved area in as good a condition as before the work involving such disturbance was done. (3) The Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee, except that the option of the City, such trimming may be done by it or under is supervision and direction at the expense of the Grantee. Section 8 ERECTION OF POLES. No Franchise shall be deemed to expressly or impliedly authorize the Grantee to construct or install poles or wire -holding structures within streets for the purpose of - 6 - placing cables, wires, lines or otherwise, without the written consent of the City within which the street is situated. Such consent shall be given upon such terms and conditions as the Board of Aldermen in its sole discretion may prescribe which shall include a requirement that the Grantee perform, at its sole expense, all tree trimming required to maintain the poles clear of obstructions. With respect to any poles or wire -holding structures which a Grantee is authorized to construct and install within streets, a public utility or public utility district serving the City may, if denied the privilege of utilizing such poles or wire -holding structures by the Grantee, apply for such permission to the Board of Aldermen. If the Board of Aldermen finds that such use would enhance the public convenience and would not unduly interfere with the Grantee's operations, the Board may authorize such use subject to such terms and conditions as it deems appropriate. Such authorization shall include the condition that the public utility or public utility district pay to the Grantee reasonable compensation for permitting such use. Section 9 UNDERGROUNDING. Except as hereinafter provided, in all areas of the City where the cables, wires and other like facilities of a public utility or public utility district are placed underground, each Grantee shall construct and install its cables, wires and other facilities underground. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe. In any area of the City where there are certain cables, wires and other like facilities of a public utility or public utility district underground and at least one operable cable, wire or like facility of a public utility or public utility district suspended above the ground from poles a Grantee may construct and install its cables, wires and other facilities from the same pole. With respect to any cables, wires and other like facilities constructed and installed by a Grantee above ground, the Grantee shall, at its sole expense, reconstruct and reinstall such cables, wires or other facilities underground pursuant to any project under which the cables, wires or other like facilities of such utilities are placed underground within an area. The duty of a Grantee to place its cables, wires and other facilities underground shall arise only if all like facilities of utilities which are existing above ground are placed underground. - 7 - Section 10 RELOCATION. If during the term of a franchise the City, a public utility district, a public water district, a public sanitation district, a public drainage district or any other similar special public district elects to alter, repair, realign, abandon, improve, vacate, reroute or change the grade of any street or to replace, repair, install, maintain, or otherwise alter any above ground or underground cable, wire conduit, pipe, line, pole, wire -holding structure, structure, or other facility utilized for the provision of utility or other services or transportation of drainage, sewage or other liquids, the Grantee, shall, except as otherwise hereinafter provided, at its sole expense, remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and any other facilities which it has installed. If such removal or relocation is required within the subdivision in which all utility lines, including those for the Cable Television system were installed at the same time. The entities may decide among themselves whc is to bear the cost of relocation; provided that the City shall not be liable to a Grantee for such costs. Regardless of who bears the costs, a Grantee shall take action to remove or relocate at such time or times _as are directed by the agency or company undertaking the work. Reasonable advance written notice shall be mailed to the Grantee advising the Grantee of the date or dates removal or relocation is to be undertaken. Section 11 MOVEMENT OF BUILDINGS. Each Grantee shall, upon request by any person holding a building moving permit, franchise or other approval issued by the City or State of Texas, temporarily remove, raise or lower its wire to permit the movement of buildings. The expense of such removal, raising or lowering shall be paid by the person requesting same, and a Grantee shall be authorized to require such payment in advance. A Grantee shall be given not less than forty-eight (48) hours oral or written notice to arrange for such temporary wire changes. Section 12 COMPLETION. (1) A written notice of Completion shall be filed by Grantee with the Town Secretary. The Notice of Completion shall state the total number of dwelling units available for occupancy within the Initial Service Area, or the appropriate Subsequent Designated Service Area as appropriate, as of the date forty-five (45) calendar days in advance of the filing of the Notice, the total number of dwelling units to which cable television service have been made available within each such area as of the date of filing, and shall otherwise certify completion as defined by the first paragraph in this Section. Neither the Notice of Completion nor the statement, assertions or certifications contained therein shall be deemed to be binding upon the City. (a) construction of the Cable Television System has been completed within the area in compliance with construction standards and the design and other requirements of this Ordinance; (b) cable television services have been made available to one hundred (100%) percent of the dwelling units within the area; (c) any and all studio facilities, equipment, channels and other services, resources or benefits required for public, educational, and governmental access purposes pursuant to the provisions of this Ordinance have been completed and made available; (d) complete and accurate "as built" plans for the area pursuant to Section 6 have been filed by the Grantee with the City. (2) During the period of construction of the Cable Television System and during the sixty (60) day period following filing of the Notice of Completion, all elements and components thereof, and all equipment and studio facilities required by the Franchise documents shall be subject to inspection by City employees or authorized agents or representatives thereof, for the purpose of determining whether the System and related facilities comply with the Franchise and the provisions of this Ordinance. The Grantee shall authorize such inspection and provide such information and cooperation as is required in order to permit an adequate investigation to determine the existence or nonexistence of such compliance. Section 13 REMOVAL. Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the City nor an assignee purchase the Cable Television System, the Grantee may remove any underground cable from the streets which has been installed in such a manner that it can be removed without trenching or other opening of the streets along the extension of cable to be removed. The Grantee shall not remove any underground cable or conduit which requires trenching or other opening of the streets along the - 9 - extension of cable to be removed, except as hereinafter provided. The Grantee shall remove, at its sole cost and expense, any underground cable or conduit by trenching or opening of the streets along the extension thereof or otherwise which is ordered to be removed by the Board of Aldermen bases upon a determination, in the sole discretion of the Council, that removal is required in order to eliminate or prevent a hazardous condition or promote future utilization of the streets for public purposes. Any order by the Board to remove cable or conduit shall be mailed to the Grantee not later than thirty (30) calendar days following the date of expiration of the franchise. A Grantee shall file written notice with the Town Secretary not later than thirty (30) calendar days following the date of expiration or termination of the franchise of its intention to remove cable intended to be removed and a schedule for removal by location. The schedule and timing of removal shall be subject to approval and regulation by the City. Removal shall be completed not later than twelve (12) months following the date of expiration of the franchise. Tsndery •51,nti n3bl e an COC�?;?it in _. _._ "..0 TSS which is not removed shall be deemed abandoned and title thereto shall be vested in the City. Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the City nor an assignee purchase the System, the Grantee, at its sole expense, shall, unless relieved of the obligation by the City remove from the streets all above ground elements of the Cable Television System, including but not limited to amplifier boxes, pedestal mounted terminal boxes, and cable attached to or suspended from poles, which are not purchased by the City or its assignee. The Grantee shall apply for and obtain such encroachment permits, licenses, authorizations or other approvals and pay such fees and deposit such security as required by applicable ordinance of the City, shall conduct and complete the work of removal in compliance with all such applicable ordinances, and shall restore the streets to the same condition they were in before the work of removal commenced. The work of removal shall be completed not later than one (1) year following the date of expiration of the franchise. Section 14 UNIVERSAL SERVICE. The Grantee shall provide equal and uniform cable television service, subject only to a reasonable construction schedule established by the applicant to all dwelling units within the Franchise Area defined by the Grantee. - 10 - Section 15 DESIGNATED SERVICE AREAS. The Grantee and City agree to the Initial Designated Services Area as shown on the map(s) attached hereto as Exhibit "B", and Grantee shall make service available to the residences and businesses within the Initial Designated Service Area in accordance with the provisions of the Ordinance. Thereafter, Subsequent Designated Service Areas may be presented to the City by the Grantee from time to time, and when approved, service will be provided to such Subsequent Designated Service Areas in accordance with the provisions of this Ordinance. Section 16 GENERAL CAPABILITY AND OPERATIONAL STANDARDS. Grantee's CATV system shall be installed, maintained and operated in accordance with the accepted standards of the industry to the end that the subscriber may receive the best and most desirable form of service. Toward accomplishment of this purpose, Grantee and its CATV system mem _ �_ _ . ..... __.�u^ ._.^. _dards a. l se •x re offerings: A. Compliance with FCC Rules. Grantee shall comply with present and future rules and regulations of the FCC in connection with and relating to the operation of its CATV system. B. Quality of Color Signals. Grantee's CATV system shall be capable of transmitting and passing the entire color television spectrum without the introduction of material degradation of color intelligence and fidelity. C. Rated for Continuance Operation. Grantee's CATV system shall be designed for twenty-four (24) hours a day continuous operation. D. Quality of Picture. Grantee's CATV system shall be capable of and shall produce a picture upon any subscriber's television screen, in black and white or color, provided the subscriber's television set is capable of producing a c -1--r_ picture, that is undistorted and free from ghost images and accompanied by proper sound, assuming the technical, standard production television set is in good repair and the television broadcast signal transmission is satisfactory. E. No Cross Modulation or Interference. Grantee's CATV system shall transmit or distribute signals of adequate strength to produce good pictures with good sound in all television receivers of all subscribers without causing cross modulation in the cables or interference with other electrical or electronic systems. F. Channel Capacity. Grantee's CATV system shall have a minimum channel capacity of fifty plus (50+) television channels. G. Converter -Parental Loc: Number. Any converter offered or be equipped with a parental autho of allowing parents to block or Premium Service channels. .on of Si irovided by Grantee shall .zation mechanism capable limit access to certain H. Educational Channels. One channel shall be available for the use of the Public Schools located within the City. Such charnel shall be provided free of charge. I. Standard of Care. Grantee shall at all times employ a high standard of care and shall install, maintain, and use approved methods and devices for preventing failure or accidents which are likely to cause damages, injuries, or nuisances to the public. Grantee's Office. Grantee shall maintain an office within Southlake, Trophy Club, Roanoke or Westlake and sufficient employees as are necessary to promote good service and convenience to the public, and be so equipped and operated that complaints and requests for installation, repairs, or adjustments may be received and timely and reasonably answered. K. Service and Repair. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Insofar as possible, such interruptions shall be preceded by forty-eight (48) hours notice and shall occur during periods of minimum use of the CATV system. L. Service Calls. Grantee shall respond to all service calls within twenty-four (24) hours and correct malfunctions as promptly as possible, but, in all events, within seventy-two (72) hours after notice thereof. For that purpose, Grantee shall maintain a competent staff of employees sufficient in size to provide adequate and prompt service to subscribers. M. Citv-School. Receiving and Transmittinq Capabilities. Upon request, Grantee shall provide, without charge, basic service to the City Hall, the Main Fire Station, and each public school within the City. On request, Grantee shall use its best efforts to make the transmission path to City Hall capable of both receiving and transmitting audio and video signals. City recognizes and agrees this may require coordination with adjacent cities which are interconnected with Grantee's cable system. - 12 - N. Complaint Records. The Grantee shall maintain a written record or "log", listing date and time of customer complaints, identifying the subscriber and describing the nature of the complaints and when and what actions were taken by the Grantee in response thereto; such record shall be kept at Grantee's local office, reflecting the operations to date for a period of at least the preceding twelve (12) months, and shall be available for inspection by the City during regular business hours. Section 17 EMERGENCY USE OF THE CATV SYSTEM. By its acceptance of this Franchise, Grantee agrees to negotiate in good faith an agreement that in the event of an emergency or disaster, Grantee shall upon request of the Board of Aldermen or its designated representative make available its facilities to the City for emergency use during the period of such emergency or disaster and shall provide such personnel as may be necessary to operate its facilities under the circumstances; and provide a transmission path for an audio emergency interrupt whereby the City, in time of crisis, may be able to introduce a bulletin on all channels simultaneously. City recognizes and agrees that accomplishment of this goal will require coordination and cooperation with other adjacent cities. Section 18 INTERCONNECTION. The Cable Television System shall be interconnected with other Cable Systems in Roanoke, Southlake and Trophy Club so as to enable each system to carry and cablecast the public, educational, and governmental access programming of the other systems. Section 19 ;03 �UDOQIDIN K`1 (1) Except for individual service drops, the Grantee shall not, within the City, run any line, make any attachment, nor shall any construction of any kind be commenced without five (5) day prior written notice to the City by Grantee. The City shall not unreasonably disapprove any such proposed action and any disapproval that occurs must be communicated in writing to Grantee prior to expiration of the five day notice period. Grantee shall be able to make emergency repairs as needed. The City shall have and maintain the right to inspect the construction, operation and maintenance of the system by the Grantee to insure the proper performance of the terms of this chapter. (2) In the event the Grantee should violate any of the terms of this ordinance or any federal, State or local law - 13 - or regulation, or any of the rules and regulations as may hereafter be from time to time lawfully adopted, or any provision of the Franchise Agreement, the City shall promptly give the Grantee fifteen (15) days written notice of the violation, breach, default or noncompliance. The Grantee shall within fifteen (15) days of receipt of written notice from the City substantially undertake and promptly correct such default, breach, violation or noncompliance and certify the same to the City. In the event that the Grantee fails to substantially undertake such corrective action within fifteen (15) days of receipt of such written notice and promptly complete the corrective action, the City may: (a) Make such correction itself and charge the cost of the same to the Grantee; and/or (b) Secure the proceeds from any financial performance instrument posted by the Grantee or impose the sum of Fifty Dollars (550) per day for each day breach or violation following the cure date that Grantee fails to meet an agreed upon limits for such activity or its contractual or legal obligations; and/or (c) In the case of a material breach of this Ordinance or the Franchise Agreement, and, subject to the terms of any governing federal law, declare the Grantee in default and terminate the franchise and rights granted under the franchise. (3) Upon any termination of the franchise by the City or the City's refusal to renew the same pursuant to applicable federal law, the Grantee shall within thirty (30) days of receipt of notice of termination or refusal to renew the franchise, remove its facilities and equipment and in the event that the Grantee does not remove its facilities and equipment W _.in the rime provided in this section, the City may do so, the removal cost to be borne in any event by the Grantee. Any enforcement action or remedy provided by this section or this Ordinance or by the Franchise Agreement shall not be deemed exclusive but shall be alternative or cumulative in nature. Notwithstanding anything to the contrary in this Ordinance, the City shall not impose any penalty upon the Grantee where either the violation or failure to cure the same result from force majeure, labor dispute, declaration of war or other hostilities, Act of God, or any other reason beyond the control of the Grantee. Section 20 TRANSFERS. - 14 - (1) The franchise granted under this ordinance may not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise or by force or involuntary sale, except upon written notice to and prior approval, expressed by resolution of the Board of Aldermen of the Town, which approval shall not be unreasonably withheld. As a condition to such approval, the assignee or other successor to Grantee shall file with the Town Secretary its unconditional acceptance of the terms of this ordinance and promise to. comply with and abide by all its provisions, terms, and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by and on behalf of the assignee or successor to Grantee before a notary public or other officer authorized by law to administer oaths. In the event that such instrument as aforesaid shall not be filed within thirty (30) days of the notice to the City of the said assignment, transfer, sale or disposal, this ordinance and the rights, privileges and franchise as hereby granted shall ipso facto be, and become, terminated, null and void. (2) Nothing in this Section shall be deemed to prohibit the assignment, mortgage or pledge of the franchise, system or any part thereof for the financing purposes or require any approval of the Board of Aldermen of the City for such mortgage or pledge. Section 21 PERFORMANCE BOND. (1) Each Grantee shall file with its application for a franchise, and at all times thereafter until the filing of a Final Notice of Completion pursuant to Section 12 of this ordinance, maintain in full force and effect, an acceptable corporate surety bond issued by a surety licensed therefor by the State of Texas or cash or other form of surety approved by the Mayor in an amount equal to the Grantee's estimate of the total cost of construction of the Cable Television System within the Initial Service Area, but in no event less than $20,000.00. (2) Unless within 30 days of the filing of the final Notice of :lt _ Cn . : vO1InC 1 'TOt disagree with the final Notice of Completion, the corporate surety bond shall be cancelled or the surety refunded. (3) Neither the provisions of this Section, any bond accepted pursuant thereto, nor any damages recovered thereunder shall be construed to excuse faithful performance by the Grantee or to limit the liability of the Grantee under the franchise or for damages. Section 22 INDEMNIFICATION BY GRANTEE. - 15 - (1) Grantee shall, at its sole expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise: (a) For actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of the Grantee or its officers, agents, employees, or contractors or to which the Grantee's or its officers, agents, employees or contractors acts or omissions in any way contribute. (b) Arising out of or alleged to arise out of any claim for damages for invasin of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right of any person, firm or corporation; and (c) Arising out of or alleged to arise out of Grantee's failure to comply with the provisions of any statute, regulation or ordinance of the United States, State of Texas, or any local agency applicable to the Grantee in its business. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in the defense of any litigation by their own counsel at the Grantee's sole expense. Such participation shall not under any circumstance relieve the Grantee from its duty of defense against liability or of paying any judgment entered against such party. Section 23 GRANTEE INSURANCE. As a part of the indemnification provided by Section 22, but without limiting the foregoing, Grantee shall file with the City and at all times thereafter maintain in full force and effect at its sole expense, an acceptable policy or policies of personal and property damage liability insurance, including comprehensive general liability insurance products/completed operations liability, personal injury liability, owners and contractors protective liability, broad form property damage, contractual - 16 - liability, automobile liability (owned; nonowned and hired automobiles), workers compensation and employer liability. The policy or policies shall carry the City as a co-insuree, and in their capacity as such, their officers, agents and employees. The Grantee and said city and officers, agents and employees. Policies of insurance shall be in the minimum single limit amount of one million dollars ($1,000,000.00) per occurrence. The insurer or insurers writing the required insurance shall be approved by the Insurance Commissioner of the State of Texas. The policy or policies of insurance shall be maintained by the Grantee in full force and effect during the entire term of the franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of the Grantee or for other reason, except after thirty (30) calendar days advance written notice mailed by the insurer to the Town Secretary, and that such notice shall be transmitted postage prepaid, with return receipt. Section 24 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS In the event that city determines that Grantee has violated any material provision of the franchise, City may make a written demand on Grantee that it remedy such violation. If the violation is not remedied, or in the process or being remedied, to the satisfaction of City with thirty (30) days following such demands, City shall determine whether or not such violation by Grantee was excusable or inexcusable by conducting a hearing before the Board of Aldermen. Upon conclusion of the hearing, the Board of Aldermen shall adopt a decision which includes findings of fact and conclusions. If the decision by the Board is that there are grounds for termination of the franchise and that the franchise shall be terminated, the Board may adopt a resolution which terminates the franchise and includes its decision. The effective date of termination shall be such date as is prescribed by the Board, within its sole discretion, in the resolution. Section 25 ALTERNATIVE REMEDIES. No provision of this ordinance shall be deemed to bar the right of the City to seek or obtain judicial relief from a violation of any provision of the franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in said ordinance nor the exercise thereof shall be deemed to bar or - 17 - otherwise limit the right of the City to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the Grantee, or judicial enforcement of the Grantee's obligations by means of specific performance, injunction relief or mandate, or any other judicial remedy at law or in equity. Section 26 NON -ENFORCEMENT. Grantee shall not be relieved of any obligation to comply with any of the provisions of the franchise or any rule, regulation, requirement or directive promulgated thereunder by, reason of any failure of the City or its officers, agents or employees to enforce prompt compliance. Section 27 COMMUNICATIONS WITH REGULATORY AGENCIES. Copies of all petitions, applications, communications, and reports submitted by a Grantee to the FCC or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting construction or operation of a Cable Television. System or services provided through such a System in the City, shall be available for inspection by the City. Copies of responses or any other communications from the regulatory agencies to a Grantee likewise shall be available for inspection by the City immediately upon receipt. The City may, by subsequent resolution, require the filing of all such communications with the City. Section 28 RATES. Rates charged by Grantee for basic service to subscribers shall be fair, reasonable and non-discriminatory. The initial rates to be charged by Grantee for services shall be those contained in Exhibit "A" attached. (1) The Grantee shall file with the City on December 31 of each year a full schedule of all subscriber and user rates and all other charges including, but not limited to, pay TV, lease channel and discrete services, made in connection with the cable communications system. (a) All rates shall be on file with the City. (b) The Grantee shall not discriminate in the assessment, levy, charge, imposition or collection of rates on the basis of age, race, creed, color, religion, national origin, sex or marital status. (2) Nothing in this chapter shall be construed to prohibit the reduction or waiving of charges in conjunction with promotional campaigns for the purpose of attracting subscribers or users. (3) The Grantee may require all subscribers to pay for basic service not more than two (2) months in advance. The Grantee shall require no other advancement of payment for basic service, provided, however, that nothing herein shall be construed to prohibit an advancement of payment for installation of Cable Communications Services or a security deposit for equipment of Grantee placed within a subscriber's residence or business. (4) The Grantee shall neither impose or collect any additional charge for the disconnection of any installation or outlet if subscriber is terminating service and is not delinquent on his/her account. Section 29 FRANCHISE FEE. For the use of the streets and for the purposes of providing revenue with which to defray the costs of regulation arising out of the granting of franchises under this ordinance and promoting, assisting and financing public, educational, and governmental access programming, each Grantee shall pay franchise fees in the amount prescribed by Section 30 below. Section 30 AMOUNT AND PAYMENT OF FRANCHISE FEES. During the term of each franchise, the Grantee shall pay to the City an amount equal to the greater of $250.00 or five (5°s) percent per year of the Grantee's annual Gross Revenue. Said fees shall be paid quarterly not later than September 1, December 1, March 1, and June 1, for the preceding three-month period ending, respectively, June 30, September 30, December 31, and March 31. Not later than June 1 of each year, Grantee shall file with the Board, a written statement Signed under penalty of perjury by an officer of the Grantee, which identifies in detail the sources and amounts of Gross Revenues received by Grantee during each quarter of the preceding year for which payment was made. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further or additional sums payable under the provisions of this Section. - 19 - Section 31 INTEREST ON DELINQUENT FRANCHISE FEES. Any Franchise Fees which remain unpaid after the dates specified in Section 30 above shall be delinquent and shall thereafter accrue interest at the maximum legal rate until paid. Section 32 ACCOUNTING STANDARDS. On or before June 1 of each year, the Grantee shall provide the Board of Aldermen with an unqualified certification of an independent certified public accountant ^ertifri... the accuracg of the F =zchise Fee payments paid for preceding calendar year pursuant to Section 30 above. Said certification shall be prepared in accordance with generally accepted accounting standards as established by the Financial Accounting Standards Board (FASB). Section 33 GROSS REVENUE CALCULATIONS.. required by Section _ 30 above, the phrase "arising from or attributable to operation of the cable television system" as used in Section 3 "Gross Revenues" above shall include but not be limited to: (a) Any activity, product or service which generates revenue of any type whatsoever and which is offered to the subscribers of the system by means of the system or any related service; (b) Any activity, product or service which is revenue producing and is offered to the subscribers of the system by any medium other than the system including but not limited to direct mail and home delivery if the system's subscriber list or any portion thereof is utilized for purposes of solicitation; (c) Any activity, product or service in the production or provision of which any of the assets of the system including but not limited to cable, production facilities, and administrative facilities, are included, unless reasonable consideration is paid to the system for such utilization; (d) Any television programming or other services offered to the citizens of Westlake within the term of the franchise by any means of delivery whatsoever where - 20 - such programming or services are or could be offered by means of the system. Section 34 AUDITING AND FINANCIAL RECORDS. The City may, from time to time during the term of a franchise, prescribe standards governing the nature, extent and type of accounting system and accounting procedures utilized by a Grantee, for the purpose of promoting the efficient administration of the Franchise Fee requirements of this ordinance. Any such standards shall be in writing, shall be filed with the City, and shall be mailed to the ',inc r?.__ .,-_ :7.. _..,e_.s"ee shall_ Orcmptly comply with all such standards. During the term of each franchise, the City may, not more frequently than one each year, conduct an audit of the books, records and accounts of the Grantee for the purpose of determining whether the Grantee has paid franchise fees in the amounts prescribed by Section 30 above. The audit ad;,.._'. , _zor of the Cier an independent certified public accounting firm retained by the City, and shall be conducted at the sole expense of the City. The party conducting the audit shall prepare a written report containing its findings, and the report shall be filed with the City, and mailed to the City and Grantee. Each Grantee shall make available for inspection by authorized representatives of the City, its books, accounts, and all other financial records at reasonable times and upon reasonable advance notice for the purpose of permitting exercise of the authorities conferred by this Section. Section 35 FLOW-THROUGH OF REFUNDS. (1) If during the term of this Franchise the Grantee receives refunds of any payments made for television or radio signals, it shall without delay notify the Board of Aldermen, suggest a plan for flow-through of the refunds to its subscribers, and retain such refunds pending order of the Board. After considering the plan submitted by the Grantee, the Board shall order the flow-through of the refunds to the Grantee's subscribers in a fair and equitable manner. (2) By its acceptance of this franchise the Grantee specifically grants and agrees that if, during the term hereof, it received refunds of any payments made for television or radio signals, it shall without delay notify the Board, suggest a plan for flow-through of the refunds to its subscribers, retain the refunds pending order of the Board, and flow-through such refunds in accordance with the order of the Board. - 21 - Section 36 MODIFICATIONS BY FCC. It is specifically agreed by the City and Grantee that any modifications of the provisions of this ordinance resulting from amendment of the Rules and Regulations of the FCC shall be incorporated into this franchise ordinance by the Board of Aldermen within one year of the adoption of the amendment by the FCC, or at the time of the renewal of this franchise, whichever occurs first. Section 37 DISTANT EXTENSION OF DISTRIBUTION CABLE. In the event that a potential subscriber's premises are located at some distance from a distribution cable, Grantee may charge in addition to its regular installation charges, an additional fee to cover its cost of aerial extensions of over 200 feet and underground extensions of over 100 feet from the Company's distribution cable. Section 38 COMPLIANCE WITH STATE AND FEDERAL LAWS. Notwithstanding any other provisions of this ordinance to the contrary, Grantee shall, both as to construction and service, at all times comply with all laws, rules and regulations of the state and federal governments and any administrative agencies thereof. If any such state or federal law, rule, or regulation shall require or permit Grantee to perform any service or shall prohibit Grantee from performing any service in conflict with the provisions of this ordinance or any other ordinance, rule, or regulation of the City, then immediately following knowledge thereof Grantee shall notify the Board of Aldermen in writing of the point of conflict believed to exist between such state or federal law, rule or regulation and this or other ordinance, rule, or regulation of the Town. Section 39 PROTECTION OF SUBSCRIBER PRIVACY. The Grantee shall not, without prior valid authorization from each subscriber so affected, provide any list designating subscriber's names or addresses to any other party except where required under contract for billing services or in accordance with laws of the United States or the State of Texas. Section 40 LIQUIDATED DAMAGES. By acceptance of the franchise granted by the City, Grantee understands and shall agree that failure to comply with any time and performance requirements as stipulated in this Ordinance and the franchise agreement will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or non performance. It is agreed that Grantee - 22 - shall pay the City Fifty Dollars ($50.00) per day for each day, or part thereof, in which after notice it has failed to comply with any of the time or performance requirements of this ordinance unless the City specifically approves a delay or excuses non-performance. Section 41 REIMBURSEMENT OF COSTS. Grantee agrees to reimburse the City for reasonable costs, including attorney and consultant fees, for reviewing the application and awarding the franchise. Section 42 SEPARABILITY. If any section, subsection, sentence, clause, phrase, or portion 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 hereof. Section 43 ACCEPTANCE OF FRANCHISE ORDINANCE. Within thirty (30) days from the effective date of this ordinance, Grantee shall file with the City a written statement in the following form signed its name and behalf: "To the Honorable Mayor and Board of Aldermen of the Town of Westlake, Texas: For itself, its successors and assigns, County Cable Limited Partnership hereby accepts the attached ordinance and agrees to be bound by all of its terms, conditions,- and provisions. f° d� PASSED, ADOPTED AND APPROVED, thi the day of September, 1988. TOWN OF WESTLAKE, TE} By. s fr Dale White, Mayor ATTEST- Ger Whi e, Town Secretary - 23 - CITY BASIC E?BO SHO MA:{ "_'MC DIS HSE A/0 ?.EM ?DDRESSABLE COMPANY Irving 12 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon Grapevine i2 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon Lewisville 12 . 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paraaon Coppell 12. 95 9 . 95 9 . 95 9 . 95 9 . 95 9 . 95 4 . 95 4 . 50* 3 . 50 Yes Paragon Dallas 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc Yes Heritage Farmers Branch 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc `Les Heritage Mesquite 20 . 90 10 . 95 10 . 95 10 . 95 10 . 95 8 . 95 4 . 95 6 . 95 Inc Yes Heritage Carrollton 14 . 95 1.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5. 00 No Storer Grand Prairie 14 . 95 10 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 .00 No Storer Euless 14. 95 1.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 . 00 No Storer Bedford 14 . 95 10 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5. 00 No Storer Garland 14 . 95 7.0 . 95 10 . 00 n/a 10 . 00 10 . 00 10 . 00 5 . 50 5 . 00 No Storer Ft. Worth 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons Hurst 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons Keller 11. 95 9 . 95 9 . 95 7 . 95 9 . 95 7 . 95 9 . 95 5 . 00 4 . 00 Yes Sammons Trophy/Roanoke 12 .00 9 . 75 9 . 75 9 . 75 9 . 75 9 .95 9 . 95 3 . 50 3 . 50 Yes Planned Cable Southlake 12 .00 9 . 75 -9-:75 9 . 75 9 . 75 9 . 95 9 . 95 3 . 50 3 .50 Yes Planned Cable o o .._n o o Q o o Carrollton . 00 ,. _� 9 . 75 . 75 5 5 3 . 50 3 .50 y es Planned Cable *4.'50 Basic, add 5 . 00 each additonal pav unit. ;example : Additional outlet would be 9 .50 with HBO jmmbbl�l - • FjgS, `�fy}f� �l f ; YIY J 1j Ul. x t�,lttili