Ord. 0636 09-02-92g•
ORDINANCE NO. 636
AN ORDINANCE OF THE CITY OF PEARLAND, TEXAS, GRANTING A
FRANCHISE TO THE MECA CORPORATION FOR THE CONSTRUCTION
AND OPERATION OF A CABLE SYSTEM.
The City of Pearland, having determined that the financial,
legal, and technical ability of The Meca Corporation is reasona-
bly sufficient to provide services, facilities, and equipment
necessary to meet the. future cable -related needs of the communi-
ty, does hereby ordain as follows:
Section 1. Definition of Terms,
1.1 Terms. For the purpose of this Ordinance, the following
terms, phrases, words, and abbreviations shall have the meanings
ascribed to them below. When not inconsistent with the context,
words used in the present tense include the future tense, words
in the plural number include the singular number, and words in
the singular number include the plural number:
a. "Affiliate" means an entity which owns or controls, is
owned or controlled by, or is under common ownership
with Grantee.
b. "Basic Cable" is the tier of service regularly provided
to all subscribers_ that includes the retransmission of
local broadcast television signals.
c. "Cable Act" means the Cable Communications Poiicy Act
of 1984, as amended.
d. "Cable Service" means (i) the one-way transmission to
subscribers of video programming or other programming
service, and (ii) subscriber interaction, if any, which
is required for the selection of such Video Programming
or any other lawful communication service.
e. "Cable System" means a facility, consisting of a set of
closed transmission paths and associated signal genera-
tion, reception, and control equipment or other commu-
nications equipment that is designed to provide Cable
Service and other service to subscribers.
f. "FCC" means Federal Communications Commission: or
successor governmental entity thereto.
"Franchise" shall mean the initial authorization, or
renewal thereof, issued by the Franchising Authority,
whether such authorization is designated as a fran-
chise, permit, license, resolution, contract, certifi-
cate, or otherwise, which authorizes construction and
operation of the Cable System or other service to Sub
scribers.
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h. "Franchise Authority" means the City of Pearland or the
lawful successor, transferee, or assignee thereof.
i. "Grantee" means The Meca Corporation, of the lawful
successor, transferee, or assignee thereof.
"Gross Revenues" means the monthly Cable Service reve-
nues received by Grantee from Subscribers of the Cable
System inclusive of basic service revenues, expanded
basic revenues, pay service revenues, pay -per -view
revenues, revenues received from installation, revenues
received from the sale or rental of equipment, and
local advertising revenues; provided, however, that
such phrase shall not include: (i) revenues received
from any national advertising carried on the Cable
System; (ii) any taxes on Cable Service which are
imposed on any Subscriber thereof by any governmental
unit or agency, and which are collected by the Grantee
on behalf of such governmental unit or agency.
k. "Person" means an individual, partnership, association,
joint stock company, trust corporation, or governmental
entity.
1. "Public Way" shall mean the surface of, and the space
above and below, any public street, highway, freeway,
bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other
public right-of-way, including, but not limited to,
public utility easements, dedicated utility strips or
rights -of -way dedicated for compatible uses and any
temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Franchise Authori-
ty in the Service Area which shall entitle the Fran-
chise Authority and Grantee to the use thereof for the
purpose of installing, operating, repairing, and main-
taining the Cable System. Public Way shall also mean
any easement now or hereafter held by the Franchise
Authority within the Service Area for the purpose of
public travel, or for utility or public service use
dedicated for compatible uses, and shall include other
easements or rights -of -way as shall within their proper
use and meaning entitle the Franchise Authority and the
Grantee to the use thereof for the purposes of install-
ing or transmitting Grantee's Cable Service or other
service over poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances,
attachments,and other property as may be ordinarily
necessary and pertinent to the Cable System.
m. "Service Area" means the present municipal boundaries
of the Franchise Authority, and shall include any
additions thereto by annexation or other legal means.
n. "Service Tier" means a category of Cable Service or
other services, provided by Grantee and for which a
separate charge is wade by Grantee.
o. "Subscriber" means a person or user of the Cable System
who lawfully receives Cable Services or other service
therefrom with Grantee's express permission.
p. "Video Programming" means programming provided by, or
generally considered comparable to programming provided
by, a television broadcast station.
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Section a. Grant of Franchise.
2.1 Grant. The City hereby grants to Grantee a nonexclusive
Franchise which authorizes the Grantee to construct and operate a
Cable system and offer Cable Service and other services in,
along, among, upon, across, above, over, under, or in any manner
connected with Public Ways within the Service Area and for that
purpose to erect, install, construct, repair, replace, recon-
struct, maintain, or retain in, on, over, under, upon, across, or
along any Public Way and all extensions thereof and additions
thereto, such poles, wires, cables, conductors, ducts, conduits,
vaults, manholes, pedestals, amplifiers, appliances, attachments.
and other related property or equipment as may be necessary or
appurtenant to the Cable System.
2.2 Term. The Franchise granted pursuant to this Ordinance
shall be for an initial term of twenty (20) years from the effec-
tive date of the Franchise as set forth in Section 2.3, unless
otherwise lawfully terminated in accordance with the terms of
this Ordinance.
2.3 Acceptance; Effective Date. Grantee shall accept the Fran-
chise granted pursuant hereto by signing this Ordinance and
filing same with the City Clerk or other appropriate official or
agency of the Franchise Authority within sixty (60) days after
the passage and final adoption of this Ordinance. Subject to the
acceptance by Grantee, the effective date of this Ordinance shall
thirtieth
be the aiztle b
after its passage.
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2.4 Favored Nations. In the event the Franchise Authority
enters into a franchise, permit, license, authorization, or other
agreement of any kind with any other person or entity other than
Grantee to enter into the Franchise Authority's streets and
public ways for the purpose of constructing or operatiay a cable
system or providing cable service to any part of the service
area, the material provisions thereof shall be reasonably com-
parable to those contained herein, in order that one operator not
be granted an unfair competitive advantage over another, and to
provide all parties equal protection under the law.
Section 2. Standards of Service
3.1 Conditions Q.of Street Occupancy. All transmission and dis-
tribution structures, poles, other lines, and equipment installed
or erected by the Grantee pursuant to the terms hereof shall be
located so as to cause a minimum of interference with the proper
use of Public Ways and with the rights and reasonable convenience
of property owners who own property that adjoins any of said
Public Ways.
3.2 Restoration of Public Ways. If during the course of Gran-
tee's construction, operation, or maintenance of the Cable System
there occurs a disturbance of any Public Way by Grantee, it
shall, at its expense, replace and restore such Public Way to a
condition reasonably comparable to the condition of the Public
Way existing immediately prior to such disturbance.
3.3 Relocation at Request of Franchise Authority. Upon its
receipt of reasonable advance notice, not to be less than five
(5) business days, the Grantee shall, at its own expense, pro-
tect, support, temporarily disconnect, relocate in the Public
Way, or remove from the Public Way, any property of the Grantee
when lawfully required by the Franchise Authority by reason of
traffic conditions, public safety, street abandonment, freeway
and street construction, change or establishment of street grade,
installation of sewers, drains, gas or water pipes, or any other
type of structures or improvements by the Franchise Authority;
but, the Grantee shall in all cases have the right of abandonment
of its property. If public funds are available to any company
using such street, easement, or right-of-way for the purpose of
defraying the cost of any of the foregoing, such funds shall also
be made available to the Grantee.
3.4 Relocation at Request of Third Partv. The Grantee shall, on
the request of any person holding a building moving permit issued
by the Franchise Authority, temporarily raise or lower its wires
to permit the moving of such building, provided; (a) the expense
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of such temporary raising or lowering of wires is paid by said
person, including, if required by the Grantee, making such pay-
ment in advance; and (b) the Grantee is given not less than ten
(10) business days advance written notice to arrange for such
temporary wire changes.
3.5 Trimming of Trees and Shrubbery. The Grantee shall have the
authority to trim trees or other natural growth overhanging any
of its Cable system in the Service Area so as to prevent branches
from coming in contact with the Grantee's wires, cables, or other
equipment. Grantee shall be permitted to charge persons who own,
or are responsible for, such trees or natural growth for the cost
of such trimming, provided that similar charges are assessed by
and paid to the utilities or the Franchise Authority for tree
trimming. The Grantee shall reasonably compensate the Franchise
Authority or property owner for any damages caused by such trim-
ming, or shall, in its sole discretion and at its own cost and
expense, reasonably replace all trees or shrubs damaged as a
result of any construction of the System undertaken by Grantee.
Such replacement shall satisfy any and all obligations Grantee
may have to the Franchise Authority or property owner pursuant to
the terms of this Section.
3.6 Use of Grantee's Equipment by Franchise Authority. Subject
to any state or federal regulations or tariffs, the Franchise
Authority shall have the right to make additional use, for any
public purpose, of any poles or conduits controlled or maintained
exclusively by or for the Grantee in any Public Way; provided
that: (a) such use by the Franchise Authority does not interfere
with a current or future use by the Grantee; (b) the Franchise
Authority holds the Grantee harmless against and from all claims,
demands, costa, or liabilities of every kind and nature wnatsoev-
er arising out of such use of said poles or conduits, including,
but not limited to, reasonable attorneys' fees and costs; and (c)
at Grantee's sole discretion, the Franchise Authority may be
required either to pay a reasonable rental fee or otherwise rea-
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sonably compensate Grantee for the use of such poles, conduits,
or equipment; provided, however, that Grantee agrees that such
compensation or charge shall not exceed those paid by it to
public utilities pursuant to the applicable pole attachment
agreement, or other authorization, relating to the Service Area.
3.7 Safety Requirements. Construction, installation, and main-
tenance of the Cable System shall be performed in an orderly and
workmanlike manner. All such work shall be performed in substan-
tial accordance with applicable FCC or other federal, state, and
local regulations. The Cable System shall not unreasonably
endanger or interfere with the safety of persons or property in
the Service Area.
3.8 Aeria and Underground Construction. In those areas of the
Service Area where all of the transmission or distribution facil-
ities of the respective public utilities providing telephone
communications and electric services are underground, the Grantee
likewise shall construct, operate and maintain all of its trans-
mission and distribution facilities underground; provided that
such facilities are actually capable of receiving Grantee's cable
and other equipment without technical degradation of the Cable
System's signal quality. In those areas of the Service Area
where the transmission or distribution facilities of the respec-
tive public utilities providing telephone communications, and
electric services are both aerial and underground, Grantee shall
have the sole discretion to construct, operate, and maintain all
of its transmission and distribution facilities, or any part
thereof, aerially or underground. Nothing contained in this
Section 3.8 shall require Grantee to construct, operate, and
maintain underground any ground -mounted appurtenances such as
subscriber taps, line extenders, system passive devices (split-
ters, directional couplers), amplifiers, power supplies, pedes-
tals, or other related equipment. Notwithstanding anything to
the contrary contained in this Section 3.8, in the event that all
of the transmission or distribution facilities of the respective
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public utilities providing telephone communications and electric
services are placed underground after the effective date of this
Ordinance, Grantee shall only be required to construct, operate,
and maintain all of its transmission and distribution facilities
underground if it is given reasonable notice and access to the
public utilities' facilities at the time that such are placed
underground.
3.9 Required Extensions of Service. The Cable System, as con-
structed as of the date of the passage and final adoption of the
Ordinance, substantially complies with the material provisions
hereof. Grantee is hereby authorized to extend the Cable System
as necessary, as desirable, or as required pursuant to the terms
hereof within the Service Area. Whenever Grantee shall receive a
request for service from at least fifteen (15) Subscribers within
1320 cable -bearing strand feet (one quarter cable mile) of its
trunk or distribution cable, it shall extend its Cable system to
such Subscribers at no cost to said Subscribers for system exten-
sions, other than the usual connection fees for all Subscribers;
provided that such extensions is technically feasible, or as
provided for under Section 3.10 of this Ordinance.
3.10 Subscriber Charges for Extensions of Service. No Subscrib-
er shall, be refused service arbitrarily. However, for unusual
circumstances, such as a Subscribers' request to locate his cable
drop underground, existence of more than one hundred fifty (150).
feet of distance from distribution cable to connection of service
to Subscribers, or a density of less than fifteen (15) subscrib-
ers per 1320 cable -bearing strand feet of trunk or distribution
cable, Cable Service or other service may be made available on
the basis of a capital contribution in aid of construction and
other costs per mile, multipliedby a fraction whose numerator
equals the actual number of potential Subscribers per 1320 cable
bearing strand feet of its trunks or distribution cable, and
whose denominator equals fifteen (15) Subscribers. Potential
Subscribers will bear the remainder of the construction and other
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costs on a pro rata basis. Grantee may require that the payment
of the capital contribution in aid of construction borne by such
potential Subscribers be paid in advance.
3.11 Service to Public Buildings. The Grantee shall provide
without charge one (1) outlet of Basic Service to the Franchise
Authority's office building(s), fire station(s), police
station(s), and public school building(s) that are passed by its
Cable System. The outlets of Basic Service shall not be used to
distribute or sell Cable Services in or throughout such build-
ings; nor shall such outlets be located in common or public areas
open to the public. Users of such outlets shall hold Grantee
harmless from any and all liability or claims arising out of
their use of such outlets, including, but not limited to, those
arising from copyright liability. Notwithstanding anything to
the contrary set forth in this Section 3.11, the Grantee shall
not be required to provide an outlet to such buildings where the
drop line from the feeder cable to said buildings or premises
exceeds one hundred fifty (150) cable feet, unless it is
technically feasible and so long as it will not adversely affect
the operation, financial condition, or market development of the
Cable System to do so, or unless the appropriate governmental
entity agrees to pay the incremental cost of such drop line in
excess of 150 cable feet. In the event that additional outlets
of Basic Service are provided to such buildings, the building
owner shall pay the usual installation fees associated therewith,
including, but not limited to, labor and materials. Upon request
of Grantee, the Building owner may also be required to pay the
service fees associated with the provision of Basic Service and
the additional outlets relating thereto.
3.12 Government Access Channel. Effective December, 1993, one
channel will be provided as a Government Access channel exclu-
sively for the City's use.
3.13 Emergency Override. In the case of any emergency or
disaster, the Grantee shall, upon request of the Franchise
8
Authority, make available its facilities for the Franchise Au-
thority to provide emergency information and instructions during
the emergency or disaster period. The Franchise Authority shall
hold the Grantee, its agents, employees, officers, and assigns
hereunder, harmless from any claims arising out of the emergency
use of its facilities by the Franchise Authority, including, but
not limited to, reasonable attorneys' fees and costs.
3.14 Repairs. Grantee agrees to use its best efforts to make
repairs promptly and to interrupt service only for good cause and
for the shortest time possible.
SECTION ,¢
Regulation by Franchise Authority
4.1 Franchise Fee.
A. Grantee shall pay to the Franchise Authority a franchise
fee equal to five percent (5%) of Gross Revenues (as
defined in Section 1.1 of this Franchise) received by
Grantee from the operation of the Cable System on a
semi-annual basis; provided, however, that. Grantee may
credit against any such payments: (i) any tax, fee, or
assessment of any kind imposed by Franchise Authority or
other governmental entity on a cable operator, or sub-
scriber, or both, solely because of their status as.
such; (ii) any tax, fee or assessment of general ap-
plicability which is unduly discriminatory against cable
operators or subscribers (including any such tax, fee,
or assessment imposed, both on utilities and cable
operators and their services): and (iii) any other
special tax, assessment, or fee such as a business,
occupation, and entertainment tax. For the purpose of
this section, the 6-month period applicable under the
Franchise for the computation of the franchise fee shall
be the six month periods ending June 30 and December 31,
unless otherwise agreed to in writing by the Franchise
Authority and Grantee. The franchise fee payment shall
be due and payable ninety (90) days after the close of
the preceding six month period. Each payment shall be
accompanied by a brief report from a representative of
Grantee showing the basis for the computation. In no
event, shall the franchise fee payments require to be
paid by Grantee exceed five (5) percent of Gross Reve-
nues received by Grantee in any 12-month period.
B. The Franchise Authority may require Grantee to conduct,
at Grantee's sole cost, a gross receipts exam by an
independent certified public accountant on an annual
basis.
C. Limitation on Franchise Fee Actions. The period of
limitation for recovery of any franchise fee payable
hereunder shall be five (5) years from the date on which
payment by the Grantee is due. Unless within five (5)
years from and after said payment due date the Franchise
Authority initiates a lawsuit for recovery of such
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franchise fees in a court of competent jurisdiction,
such recovery shall be barred and the Franchise Authori-
ty shall be stopped from asserting any claims whatsoever
against the Grantee relating to any such alleged defi-
ciencies.
4.2 Rates and Charges. The Franchise Authority may not regulate
the rates for the provision of Cable Service and other services,
including, but not limited to, ancillary charges relating there-
to, except as expressly provided herein and except as authorized
pursuant to federal and state law including, but not limited to,
the Cable Act and FCC Rules and Regulations relating thereto.
From time to time, and at any time, Grantee has the right to
modify its rates and charges including, but not limited to, the
implementation of additional charges and rates; provided, howev-
er, that Grantee shall give notice to the Franchise Authority of
any such modifications or additional charges sixty (60) days
prior to the effective date thereof and thirty (30) days prior
notice to subscribers.
In the event that Basic Service rate increases are subject to
approval of the Franchise Authority, the Grantee may, at its
discretion and without consent of the Franchise Authority, in-
crease rates relating to the provision of Basic Service by an
amount which is at least equal to five (5) percent per year.
4.3 Renewal of Franchise. The Franchise Authority and the
Grantee agree that any proceedings undertaken by the Franchise
authority that relate to the renewal of the Grantee's Franchise
shall be governed by and comply with the provisions of Section
626 of the Cable Act (as such existed as the effective date of
the Cable Act), unless the procedures are substantive protections
set forth therein shall be deemed to be preempted and superseded
by the provisions of any subsequent provision of federal law.
In addition to the procedures set forth in said Section 626(a),
the Franchise Authority agrees to notify Grantee of its prelimi-
nary assessments regarding the identity of future cable -related
community needs and interests, as well as, the past performance
of Grantee under the current Franchise term. The Franchise
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Authority further agrees that such a preliminary assessment shall
be provided to the Grantee prior to the time that the four (4)
month period referred to in Subsection (c) of. Section 626 is
considered to begin. Notwithstanding anything to the contrary
set forth in this Section 4.3, the Grantee and Franchising Au-
thority agree that at any time during the term of the then cur-
rent Franchise, while affording the public appropriate notice and
opportunity to comment, the Franchise Authority and Grantee may
agree to undertake and finalize negotiations regarding renewal of
the then current Franchise and the Franchise Authority may grant
a renewal thereof. The Grantee and the Franchise Authority
consider the terms set forth in this section to be consistent
with the express provisions of Section 626 of the Cable Act.
4.4 Conditions of Sale. Except to the extent expressly required
by federal or state law, if a renewal or extension of Grantee's
Franchise is denied or the Franchise is lawfully terminated, and
the Franchise Authority either lawfully acquires ownership of the
Cable System or by its actions lawfully effects a transfer of
ownership of the Cable System to another party, any such acquisi-
tion or transfer shall be at a fair market value, determined on
the basis of the Cable system valued as a going concern.
Grantee and Franchise Authority agree that in the case of a
lawful revocation of the franchise, at Grantee's request, which
shall be made in its sole discretion, Grantee shall be given a
reasonable opportunity to effectuate a transfer of its Cable
System to a qualified third party. The Franchise Authority
further agrees that during such a period of time, it shall
authorize the Grantee to continue to operate pursuant to the
terms of its prior Franchise; however, in no event shall such
autnorization exceed a period of time greater that six (6) months
from the effective date of such revocation. If, at the end of
that time, Grantee is unsuccessful in procuring a qualified
transferee or assignee of its Cable System which is reasonably
acceptable to the Franchise Authority, Grantee and Franchise
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Authority may avail themselves of any rights they may have pursu-
ant to federal or state law; it being further agreed that Gran-
tee's continued operation of its Cable System during the six (6)
month period shall not be deemed to be a waiver, nor and extin-
guishment of, any rights of either the Franchise Authority or the
Grantee. Notwithstanding anything to the contrary set forth in
Section 4.4, neither Franchise authority nor Grantee shall be
required to violate federal or state law.
4.5 Transfer of Franchise. Grantee's right, title, or interest
in the Franchise shall not be sold, transferred, assigned, or
otherwise encumbered, other than to an Affiliate, without the
prior consent of the Franchise Authority, such consent not to be
unreasonably withheld. No such consent shall be required, howev-
er, for a transfer in trust, by mortgage, by other hypothecation,
or by assignment of any rights, title, or interest of Grantee in
the Franchise or Cable System in order to secure indebtedness.
SECTION
Compliance and Monitoring
5.1 Testing for Compliance. The Franchise authority may perform
technical tests of the Cable System during reasonable times and
in a manner which does not unreasonably interfere with the normal
business operations of the Grantee or the Cable System in order
to determine whether or not the Grantee is in compliance with the
terms hereof and applicable state or federal laws. Except in
emergency circumstances, such tests may be undertaken only after
giving Grantee reasonable notice thereof, not to be less than two
(2) business days, andproviding a representative of Grantee an
opportunity to be present during such tests. In the event that
such testing demonstrates that the Grantee has substantially
failed to comply with a material requirement hereof, the reasona-
ble costs of such tests shall be borne by the Grantee. In the
event that such testing demonstrates that Grantee has substan-
tially complied with such material provisions hereof, the cost of
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such testing shall be borne by the Franchise Authority. Except
in emergency circumstances, the Franchise Authority agrees that
such testing shall be undertaken no more than two (2) times a
year in the aggregate, and that the results thereof shall be made
available to the Grantee upon Grantee's request.
5.2 Books and Records. The Grantee agrees that the Franchise
Authority may review such of its books and records, during normal
business hours and on a nondisruptive basis, as is reasonably
necessary to monitor compliance with the terms hereof. Such
records shall include, but shall not be limited to, any public
records required to be kept by the Grantee pursuant to the rules
and regulations of the FCC. Notwithstanding anything to the
contrary set forth herein, Grantee shall not be required to
disclose information which it reasonably deems to be proprietary
or confidential in nature. The Franchise Authority agrees to
treat any information disclosed by the Grantee to it as confiden-
tial and only to disclose it to employees, representatives, and
agents thereof that have a need to know, or in order to enforce
the provisions hereof.
5.3 Survey. The Grantee shall, on an annual basis, generally
survey its subscribers concerning the Company's general perform-
ance.
SECTION ¢
Insurance Indemnification, and
Bonds or Other Surety,
6.1 Insurance Requirements. Grantee shall maintain in full
force and effect, at its own cost and expense, during the term of
the Franchise, Comprehensive General Liability Insurance in the
amount of $1,000,000 combined single limit for bodily injury, and
property damage. Said insurance shall designate the Franchise
Authority as an additional insured. Such insurance shall be
noncancellable except upon thirty (30) days prior written notice
to the Franchise Authority.
6.2 Indemnification. The Grantee agrees to indemnify, save and
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hold harmless, and defend the Franchise Authority, its officers,
boards and employees from and against any liability for damages
and for any liability or claims resulting from property damage or
bodily injury (including accidental death), which arise out of
the Grantee's construction, operation, or maintenance of its
Cable System, including, but not limited to, reasonable attor-
ney's fees and costs. Grantee further agrees not to oppose
intervention by the City in such a suit, however, any interven-
tion will be at the Franchise Authority's sole cost and expense.
6.3 Bonds and other Surety. Except as expressly provided here-
in, Grantee shall not be required to obtain or maintain bonds or
other surety as a condition of being awarded the Franchise or
continuing its existence. The Franchise Authority acknowledges
that the legal, financial, and technical qualifications of Gran-
tee are sufficient to afford compliance with the terms of the
Franchise and the enforcement thereof. Grantee and Franchise
Authority recognize that the cost associated with bonds and other
surety may ultimately be borne by the Subscribers in the form of
increased rates for Cable Services. In order to minimize such
costs, the Franchise Authority agrees to require bonds and other
surety only in such amounts and during such times as there is a
reasonably demonstrated need therefore. The Franchise Authority
agrees that in no event, however, shall it require a bond or
other related surety in an aggregate amount greater than $10,000,
conditioned upon the substantial performance of the material
terms, covenants, and conditions of the Franchise. Initially, no
bond or other surety will be required. In the event that one is
required in the future, the Franchise Authority agrees to give
Grantee at least sixty (60) days prior written notice thereof
stating the exact reason for the requirement. Such reason must.
demonstrate a change in the Grantee's legal, financial, or tech-
nical qualifications which would materially prohibit or impair
its ability to comply with the terms of the Franchise or afford
compliance therewith.
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SECTION 1
Enforcement and Termination of Franchise
7.1 potice slf Violation. In the event that the Franchise
Authority believes that the Grantee has not complied with the
terms of the Franchise, it shall notify Grantee in writing of the
exact nature of the alleged noncompliance.
7.2 Grantee's Right to. Cure or Respond. Grantee shall have
thirty (30) days from receipt of the notice described in 7.1: (a)
to respond to the Franchise authority contesting the assertion of
noncompliance, or (b) to cure such default, or (c) in the event
that, by the nature of default, such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to
remedy such default and notify the Franchise Authority of the
steps being taken and the projected date that they will be com-
pleted.
7.3 Public Hearing. In the event that Grantee fails to respond
to the notice described in Section 7.1 pursuant to the procedures
set forth in Section 7.2, or in the event that the alleged de-
fault is not remedied within sixty (60) days after the Grantee is
notified of the alleged default pursuant to Section 7.1, the
Franchise Authority shall schedule a public meeting to investi-
gate the default. Such public meeting shall be held at the next
regularly scheduled meeting of the Franchise Authority which is
scheduled at a time which is no less than five (5) business days
therefrom. The Franchise Authority shall notify the Grantee of
the time and place of such meeting and provide the Grantee with
an opportunity to be heard.
7.4 Enforcement. Subject to applicable federal and state law,
in the event the Franchise Authority, after such meeting,
determines that Grantee is in default of any provision of the
Franchise, the Franchise Authority may:
a. Foreclosure on all or any part of any security provided
under this Franchise, if any, including without limita-
tion, any bonds or other surety; provided, however, the
foreclosure shall only be in such a manner and in such
amount as the Franchise Authority reasonably determines
is necessary to remedy the default;
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b. Commence an action at law for monetary damages or seek
other equitable relief;
c. In the case of a substantial default of a material
provision of the Franchise, declare the Franchise Agree-
ment to be revoked; or
d. Seek specific performance of any provision, which rea-
sonably leads itself to such remedy, as an alternative
to damages.
The Grantee shall not be relieved of any of its obligations to
comply promptly with any provision of the Franchise by reason of
any failure of the Franchise Authority to enforce prompt compli-
ance.
7.5 Acts of God. The Grantee shall not be held in default or
noncompliance with the provisions of the Franchise, nor suffer
any enforcement or penalty relating thereto, where such noncom-
pliance or alleged defaults are caused by strikes, acts of God,
power outages, or other events. reasonably beyond its ability to
control.
SECTION I
Unauthorized Reception
8.1 Misdemeanor. In addition to those criminal and civil
remedies provided by state and federal law, it shall be a misde-
meanor for any person, firm, or corporation to create or make use
of any unauthorized connection, whether physically, electrically,
acoustically, inductively, or otherwise, with any part of the
Cable System without the express consent of the Grantee. Fur-
ther, without the express consent of the Grantee, it shall be a
misdemeanor for any person to tamper with, remove, or injure any
property, equipment, or part of the Cable System or any means of.
receiving Cable Service or other services provided thereto.
Subject to applicable federal and state law, the Franchise Au-
tnority shall incorporate into its criminal code, if not present-
ly a part thereof, criminal misdemeanor law which will enforce
the intent of this Section 8.1.
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SECTION 2
Miscellaneous Provisions
9.1 Preemption. If the FCC, or any other federal or state body
or agency shall nor or hereafter exercise any paramount jurisdic-
tion over the subject matter of the Franchise, then to the extent
such jurisdiction shall preempt and supersede or preclude the
exercise of the like jurisdiction by the Franchise Authority
shall cease and no longer exist.
9.2 Actions of Franchise Authority. In any action by the Fran-
chise Authority or representative thereof mandated or permitted
under the terms hereof, such party shall act in a reasonable,
expeditious, and timely manner. Furthermore, in any instance
where approval or consent is required under the terms hereof,
such approval or consent shall not be unreasonably withheld.
9.3 Notice. Unless expressly otherwise agreed between the
parties, every notice of response to be served upon the Franchise
Authority or Grantee shall be in writing, and shall be deemed to
have been duly given to the required party five (5) business days
after having been posted in a properly sealed and correctly ad-
dressed envelope by certified or registered mail, postage pre-
paid, at a Post Office or branch thereof regularly maintained by
the U.S. Postal Service.
The notice or responses to the Franchise Authority shall be
addressed as follows:
The City. of Pearland
(mailing address) P.O. Box 2068
Pearland, Texas 77588-2068
(physical address) 3519 Liberty Drive
Pearland, Texas 77581
The notices or responses to the Grantee shall be addressed as
follows:
with a copy to:
The Meca Corporation
Attn: System Manager.
1010 Lawrence Road
Remah, Texas 77565
The Meca Corporation
Attn: Legal Department
P.O. Box 5630
Denver, Colorado 80217
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Franchise Authority and the Grantee may designate such other
address or addresses from time to time by giving notice to the
other.
9.4 Descriptive Headings. The captions to Sections contained
herein are intended solely to facilitate the reading thereof.
Such captions shall not affect the meaning or interpretation of
the text herein.
9.5 Severability. If any Section, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or
unconstitutional, by any court of competent jurisdiction or by
any state or federal regulatory authority having jurisdiction
thereof, such determination shall have no effect on the validity
of any other Section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the
term of the Franchise, or any renewal or renewals thereof.
PASSED, APPROVED and ADOPTED on first reading this
/C day of
ATTEST:
Pat Tones, Oit, Secretary
, A.D., 1992.
18
PASSED, APPROVED and ADOPTED on second and
this 02, day of
ATTEST:
Pat Jones, i1 y Secretary
APPROVED AS TO FORM:
Lester Rorick, City Attorney
final reading
7,4
Copnger,- May r
Accepted by,
E MECA CORPORATION
Subject o applicable federal, state and local
law,
B
y P. Marshall
TITLE: Authorized Representative
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