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Ord. 0394-1 08-27-79ORDINANCE NO. 394 -1 AN AS, GATOF ING AiFRANCHISECITY �TOIL THEFMECA CORPORATION, PEARLAND ITS TEXAS, MAINTAIN AND UNITY ANTENNCA TELEVISION PSYSTEM IN THE CANT AN A TTINUN PROVIDING OAND SETTING PROVIDING AN EFFECTIVE DATE;E GRANTING OF THIS A FRANCHISE;AND OTHER PROVISIONS RELATING TO THE A REPEALING CLAUSE; SUBJECT. WHEREAS, the City of Pearland desires to have The MECA Corporation, a Texas corporation, and a wholly owned subsidiary of Storer Broadcasting Company, an Ohio corporation, provide a community antenna cable television system to the residents and occupants of said City of Pearland, NOW THEREFORE, BE TT ORDAINED BY THE CITY COUNCIL OF. THE CITY OF PEARLAND, TEXAS: SECTION I. PURPOSE OF THE ORDNANCE AND THE NATURE OF THE GRANT: the City of Pearland to The MECA Corporation, the (a) There is hereby granted by along, and privilege to construct, erect, operate, and maintain in and upon, across, over and under the streets, alleys, public ways and public places now laid out or dedicated, and all extensions thereof, and additions thereto, in the City, wires, poles, cables, underground conduits, conductors and such other fix- tures and equipment as is necessary for the reception and distribution of community antenna television system for the reception and distribution of television signals and energy frequency modulated radio signals and any other visual or audio signals which are not otherwise herein prohibited, subject to the conditions and restrictions hereinafter provided. said streets, alleys, public ways, and places for (b) The right to use and occupy of Pearland the purposes herein set forth shall not be exclusive andthe e City public ways, reserves the right to grant a similar use of said alleys , reemlic. and places to any person, at any time during the period of this ag (c) This ordinance and the franchise awarded pursuant to the terms of this ordinance shall relate to and cover the entire present territorial limits of the City. The o MECA Corporation agrees to and shall install and furnish CATV service subsequently residents of the City, including all residents in any territory annexed to the City of Pearland, or to new subdivisions, except those specific houses and areas approved by the City Council of the City of Pearland for non - service on a yearly basis. Service will be provided to such new service areas during a twelve (12) month period. (d) Grantee shall submit, three(3) months after the date of this ordinance, a map showing the franchise area, the projected construction schedule, and completion s date, all to be approved by the City. The map shall clearly delineate any area which will not be served initially, if any. (e) In accepting this franchise, The MECA Corporation acknowledges that its rights hereunder are subject to the police power of the City of Pearland to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general and special laws enacted by the City of Pearland pursuant to such power. 'SECTION II. SHORT TITLE: This ordinance shall be known and may be cited as the "City of Pearland Community Antenna Television Franchise Ordinance". SECTION III. DEFINITIONS: use of this ordinance, the following For the purpose even herein. derivations shall have the meaning g context, words used in the present tense include number include the singular number, and words in plural number. (a) City is the City of Pearland, Texas. (b) Council is the City Council of Pearland. (c) Community antenna television system or CATV system whenever used in this ordinance, shall mean a system for the interception, receipt, sale, transmission and distribution of television and radio signals. (d) Grantee is The MECA Corporation. Grantee is also referred to herein (whether one or more) as the Company. corporation, or (e) Person is any person, firm, partnership, association, co organization of any kind. Access cablecasting is the service provided by a cable television system on its public, educational, or local government channels. (g) Converter means an electronic device, which converts signals to a frequency a not susceptible to interference within the television seceiver ofta subscriber and by an appropriate channel selector also permits a signals delivered at designated dial locations. (h) District is the area within which the cable operator will provide service. (i) Subscriber shall mean a purchaser of any service delivered over the CATV system and includes those persons who are not required to pay any fees. SECTION IV. PROVISIONS GOVERNING THE LENGTH, RENEWAL, AND TRANSFER OF A terms, phrases, words, and their When not inconsistent with the the future, words in the plural the singular number include the FRANCHISE: 1S ears, unless (a) This franchise ordinance shall be for a period of fifteen ( ) Y terminated or cancelled pursuant to the provisions of this ordinance. (b) At the expiration of the fifteen year period, or if the franchise ordinance is cancelled prior to the end of the fifteen year period, or if the Company seeks to transfer the franchise to another holder, the City of Pearland, may at its option, buy the system and it shall become the property of the City of Pearland. The purchase price shall be the fair market valve of the system. If prior to the termination of the franchise period the City is required to seek another operator in order to ensure the continuous operation of the system, the payments made by the City to another operator shall be reimbursed to the City, along with any other damages incurred by the City, or shall be considered a part of the purchase price. (c) Upon the cancellation by the City, or two years prior to the expiration of the franchise ordinance, the City may, at its option, enter into a new franchise agreement with the Company for a ten year period, if after an investigation of the system and the performance by the Company and a public hearing, it is deemed in the best interest of the citizens. (d) The franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet, nor mortgaged in any manner, nor shall title there - therein, pass to, either legal or equitable or any right, interest or property to or vest in any person, either by the act of the Company or by operation of law, without the consent of the City. The granting, giving or waiving of any one or more such consents shall not render unnecessary any subsequent consent or consents.- assignment, lease, transfer (e) The consent or approval of the City to any sublease, or mortgage of the franchise granted to the Company shall not constitute a waiver or release of the rights of the City in and to the streets. Every change, transfer or acquisition of control of the Company shall make the franchise subject to cancellation unless and until the City shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the City may inquire into the qualifications of the prospective controlling party, and the such inquiry. If the City does not Company shall assist the City in any schedule a hearing on the matter within sixty (60) days after notice of the change or proposed change and the filing of a petition requesting its consent, it shall be deemed to have consented. In the event that the City adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the franchise unless control of the Company is restored to a status acceptable to the Council. (g) The Company further agrees it will start construction of its cable system no later than six (6) months from the date of this ordinance, and thesystem t ems, as defined by the Federal Communications Commission's Rules and Regulations, will be wired within eighteen (18) months from the date construction is started according to the rules and regulations of the Federal Communications Commission. stemabove in rial Grantee shall not be responsible for failure to complete te r thest ise, inmat the stated time because of inclement weather conditions, shortages, or circumstances beyond its control. (h) If the conditions of Section IV (g) are not met, the City shall have the option to terminate this franchise, and file claim on the surety bond as provided in Section VI (a) hereof, and the forfeiture shall not necessitate the prior consent of Grantee. of the terms or Provisions of this franchise (i) If the Grantee shall violate any period thirth (30) days and should the Grantee continue to violate same for a toe ofCity it desist(30days after the Grantee shall have been notified in writing by and cancelyto this franchise; such violations so specified, then the City may provided, however, that the City shall not cancel this franchise if the Grantee is without fault as to the violation; and further provided, that this franchise Council, and then may not be terminated and cancelled until after the Grantee first has been adequate opportunity to be heard before the City Council, prov onlyibyd tdiwitadeq the City Council. It is further provided, only by ordinance duly adopted by after sixty how- ever, that should the Grantee be adjudged as bankrupt, then the City, (60) days written notice to the Grantee, may, if it so desires, terminate and cancel this franchise. SECTION V. SYSTEM DESIGN: (a) At least one specially designated, non-commercial public access channel will be available on a first -come, non-discriminatory basis for which the system shall maintain and have available for public use at least the minimal equipment and facilities necessary for the production of programming for such channel, as set forth in FCC Section 76.251 (a) (4) Public Access Channel. Such facilities and equipment may be rented at a rate approved by the City. CO) There will be available 35 channel capacity. (c) The system will contain technical capacity for nonvoice return communications. (d) In areas of the City having telephone lines and electric utility lines underground, whether required by ordinance or not, all or any CATV lines, cables and wires shall be underground. It shall be the policy of the City that existing poles for electric and communication purposes be utilized wherever possible, and that underground installation even when not required is preferable to the placing of additional poles. SECTION VI. PERFORMANCE STANDARDS AND GUARANTEE: (a) The Company shall furnish bond to the City in the sum of $200,000.00, which shall guarantee CATV System construction within the time set forth and in the manner herein provided. Such bond shall be guaranteed by an approved company licensed to do business in the State of Texas. (b) The cable system shall include an "Emergency Alert" capability which will permit the mayor, or other official designated by the City to override, by remote control, the video and/or audio of all channels. (c) The cable system operator shall maintain equipment capable of providing standby powering for headend, transportation and truck amplifiers for a minimum of two hours. All utility safety regulations must be followed to prevent a standby generator from powering the "dead" utility line, with possible injury to an unwitting line worker. (d) The location of the system towers, the headend, the complaint handling procedures, person responsible and the local office address, when determined will be furnished to and subject to the approval of the City. Complaints will be received on a twenty-four hour basis. (e) If the system is inoperative for any reason except for circumstances beyond the control of grantee for thirty (30) days a year, the franchise ordinance is subject to cancellation by the City. After forty-eight hours of the system being inoperative, charges for subscriber rates may be prorated for the actual days of service. (f) Thirty days after notification by the City of violation of material provisions of this Ordinance, penalties shall be as follows: i. For failure to submit plans indicating expected dates of installation of various parts of the System as provided in Section I (d) $100 per day. ii. For failure to complete construction and installation of the System as provided for in Section IV (g) $500 per day. iii. For failure to provide data and reports as requested by the City Manager or City Council as required in Section VI, (h) i, ii, f, iii $50 per day. (g) At the expiration of the term for which this franchise is granted, or upon its termination and cancellation, as provided herein, the City shall have the right to require the Grantee to remove at its own expense all portions of the CATV System from all public ways within the City. (h) Annual Reports - no later than May 1st of each year the Company shall submit a written report to the City which shall include: i. A summary of the previous year's activities in development of this system, including, but not limited to, services begun or dropped, subscribers gained or lost. ii. A financial statement including a statement of income, a balance sheet, and a statement of sources and applications of funds. iii. A summary of complaints, identifying the number and nature of complaints and their disposition. SECTION VII. LIABILITY AND INDEMNIFICATION: (a) The Grantee shall indemnify and hold the City harmless from any liability, cost, damage and expense of every character, arising out of or in any manner resulting from or contributed to by any wrongful or negligent act of omission of Grantee, its agents, servants or employees in the installation, maintenance and operation of its facilities in the City or in the exercise of any right or privilege hereunder. (b) The Grantee shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain throughout the term of this franchise, liability insurance, insuring the City and the Grantee in the minimum amounts of: i. $100,000 for bodily injury or death to any one person with the limit of $300,000 for bodily injury or death resulting from any one accident. ii. $100,000 for property damage resulting from any one accident. iii. Evidence of such insurance shall be submitted to the City. (c) The Company shall also maintain in full force and effect throughout the duration of this franchise ordinance sufficient Worker's Compensation Insurance coverage to adequately and fully protect its agents and employees as required by law. SECTION VIII. CONDITION ON STREET OCCUPANCY: (a) 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 Manager or his appointee, 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. In all cases where requested by the City and where under- ground service is to be installed, Grantee will bore under street'surfaces at its own cost and expense. (b) If at any time during the period of this franchise the City shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, the Grantee, upon reasonable notice by the City, shall remove or relocate its poles, wires, cables or other fixtures, at its own expense. (c) Before any poles or other fixtures are placed in any public way by the Grantee, they shall be approved by the City and placed in such a manner as not to interfere with the usual traffic on such public way. (d) The Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, (unless such wires are below the minimum height required by the National Electric Safety Act or other Federal, State or local regulations) and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given sufficient advance notice to arrange for such temporary wire changes. (e) The Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, easements 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 with the prior approval of the City. (f) The Grantee hereby agrees to place its wires or cables underground, to the maximum extent that existing technology permits, and where costs are not excessive, except in cases where overhead facilities are available or excessive cost would cause financial hardship on Grantee. Grantee will provide the City with copies of its agreement with other utility companies giving to Grantee the right to use such existing utility poles. (g) The Grantee shall make application with the City showing all proposed cable routes. The City Manager shall approve said application before construction is started; however, any delay occasioned by such approval shall extend the time for commencement of construction of the CATV System under Section IV (g) of this agreement. (h) The Grantee shall also file with the City true and correct maps or plats of all existing and proposed installations. SECTION IX. SAFETY REQUIREMENTS: (a) The Grantee shall install and maintain its cables and other equipment in accordance with standard utility practice, utility pole line agreements, State or City Ordinance and Statutes and Regulations of the National Electric Safety Code. (b) The Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. SECTION X. RATES: (a) The initial rates and charges to residential and commercial users of the CATV System shall be those as shown on Schedule "A" attached hereto. Said schedule shall be filed with the City and shall be available for inspection by the public and residents of the City. (b) All proposed rate increases shall be filed with the City Secretary by Grantee. Each such proposed increase shall become effective for bills rendered on or after the first day of the second full billing month after the filing of such statement unless, within thirty (30) days after the filing of such statement, City Council shall have disapproved such increase. In the event of disapproval of the proposed rate increase, the City Council shall, by motion or resolution, order a public hearing with regard to the approval or disapproval of such proposed rate increase. At said public hearing, if any, Grantee may show that the rates proposed are reasonable and customary rates for like or similar services in the area. After the hearing, the City shall by ordinance set the rates at any level which will produce for Grantee a reasonable rate of return on the fair market value of its property within the City used by Grantee and its CATV business; and such rates shall there- upon be placed in effect. SECTION XI. PAYMENT TO THE CITY: (a) During the lifetime of this franchise, the Grantee shall pay to the City annually a sum of three per cent (3%) or the maximum percentage permitted without (Q special application to the Federal Communications Commission of the gross receipts for subscribers services of the Grantee from income derived from the subscribers to the Community Antenna Television System in use within the corporate limits of the City, excluding from said gross receipts any income derived from pay motion picture receipts and any installation charges made by the Grantee for connecting its CATV System to the subscriber. Payment to the City for each of the years that this ordinance is in effect shall be made on or before the first day of May of each year, based on the fiscal records of the Grantee for the preceding calendar year (as certified to by a reputable and recognized Certified Public Accountant) with the first of such annual payments to be made on or before the first day of May of the year after service to the subscriber begins, based on the fiscal records of the Grantee for the preceding calendar year or portion thereof. SECTION XII. OTHER BUSINESS ACTIVITIES: (a) The Grantee shall render effecient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. (b) The Grantee shall not engage in the business of selling, or servicing television receivers. (c) Upon termination of service to any subscriber the Grantee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his request without cost to the subscriber. SECTION XIII. SIGNAL CARRIAGE: The system when operational, will carry the signals set out in Schedule "B" attached hereto. SECTION XIV. CITY'S RIGHT TO INTERVENTION: The Grantee agrees not to oppose intervention by the City in any suit or proceeding to which the Grantee is a party, concerning or involving Grantee and the City's rights under this franchise. SECTION XV. ACCEPTANCE OF FRANCHISE: Within thirty (30) days from the effective date of this ordinance Grantee shall file its written acceptance of this ordinance and franchise with the City Secretary of the City, or else this ordinance shall be null and void. Upon this written acceptance by Grantee, this ordinance and franchise shall constitute a contract between the City and Grantee and shall be binding upon both. SECTION XVI. 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 portion hereof. SECTION XVII. CODIFICATION OF ORDINANCE: This ordinance shall not be codified as part of the City Code of Ordinances. SECTION XVIII. NON-EXCLUSIVE RIGHTS: Nothing contained in this ordinance shall ever be construed as conferring upon Company any exclusive rights or privileges of any nature whatsoever. SECTION XIX. REGULATORY RIGHTS: The City by the granting of this franchise does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights, now or hereafter vested in the City to regulate the rates and services of the Company, and the Company by its acceptance of this franchise agrees that all such lawful regulatory powers and rights as the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at any time and from time to time. SECTION XX. RESERVATION OF RIGHTS: In granting this franchise, it is understood that the lawful power vested by law in the City to regulate all public utilities within the City, and to regulate the local rates of public utilities within the City within the limits of the Constitution and laws, and to require all persons or corporations to discharge the duties and undertakings, for the performance of which this franchise was made, is reserved, and this grant is made subject to all lawful rights, powers and authorities, either of regulation or otherwise, reserved to the City by law. SECTION XXI. EFFECTIVE DATE: This ordinance shall take effect upon its second and final reading. SECTION XXII. MODIFICATION BY FEDERAL COMMUNICATIONS COMMISSION: Any modification of the provisions of this ordinance resulting from amendment by the Federal Communications Commission shall be incorporated into the franchise within one (1) year of adoption of the modifications, or at the time of franchise renewal, whichever occurs first. SECTION XXIII. REPEALING CLAUSE: All ordinances or parts of ordinances inconsistent herewith, or in conflict with the provisions of this ordinance the same shall be and are hereby repealed. Ordinance No. 394 is hereby expressly repealed. PASSED AND APPROVED ON FIRST READING this t,„, day o A. D., 1979. ATTEST: t< Mayor, City of Pearland, Texas Assistant City Secretary PASSED AND APPROVED ON SECOND AND FINAL READING this day of ATTES : ity Secretary APPROVED AS TO FORM: , A. D. 1979. 8 SCHEDULE "A" PROPOSED CABLEVISION RATES PREWIRED NON-PREIVIRED Installation charge - first outlet: Overhead $ 10.00 $ 20.00 Underground 10.00 35.00 Installation charge - additional outlets 5.00 each 5.00 each Relocation - first outlet 10.00 10.00 Relocation - additional outlets 5.00 each 5.00 each Reconnect 5.00 5.00 Transfer - Cabled home to cabled home - first outlet Transfer Cabled home to non -cabled home - first outlet Monthly service - first outlet, including converter Monthly service - additional "TV" outlets including converter Monthly service - Additional "131" outlets Optional Movie Channel - Home Box Office Installation charge - Home Box Office Monthly service - Home Box Office Includes all cable sets 5.00 5.00 10.00 10.00 7.95 7.95 2.00 each 2.00 each 2.00 each 2.00 each 10.00 10.00 7.00 7.00 SCHEDULE "B" SIGNAL CARRIAGE CABLE CHANNEL PROGRAMMING 2 KPRC, Ch. 2, NBC 3 WTCG, Ch. 17, IND (Atlanta) 4 Christian Broadcast Network 5 Access 6 NOAA Weather/Program Guide 7 HBO (Premium TV Optional 8 KUHT, Ch. 8, PBS 9 WGN, Ch. 9, IND (Chicago) 10 KRIV, Ch. 26,. IND 11 KHOU, Ch. 11, CBS 12 KHTV, Ch. 39, IND 13 KTRK, Ch. 13, ABC 14/A Weather Radar 15/B Local Origination 16/C PTL Club 17/D Madison Square Garden/ C-Span 18/E UPI News/Stockmarket 19/F Nickelodeon 20/G Public Access SOURCE Houston Satellite Satellite Local . Local Satellite Satellite Satellite Houston Houston Houston Houston Local Local Satellite Satellite Satellite Satellite Local As additional programs become available, we might revise on a temporary or permanent basis, one or more of the imported signals with programs we feel to be more desirable.