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84-082 ORD ARTICLE IV (ARENA CABLEVISION CORPORATION) ARTICLE IV. (ARENA CABLEVISION CORPORATION) ORDINANCE N0. $4-082 AN ORDINANCE GRANTING TO ARENA CABLEVISION CORPORATION A FRANCHISE TO USE THE PUBLIC STREETS AND ALLEYS OF THE CITY OF PARIS, TEXAS, FOR THE PURPOSE OF RECEIVING, AMPLIFYING AND DISTRIBUTING TELEVISION SIGNALS, AND PROVIDING FOR THE REGULATION OF THE BUSINESS AND PROVIDING FOR PAYMENT FOR THE USE OF THE STREETS, ESTABLISHING AN EFFECTIVE DATE AND CONTAINING OTHER MATERIAI. PROVISIONS AS SET FORTH BELOW. BE IT CRDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS: Section 1. Title. This ordinan.ce shall be known and may be cited as Cable Television Ordin.ance. Section 2. Preamble. This ordinance was passed after a full, open, and public hearing upon prior notice and opportunity of all interested persons to be heard and upon careful consid- eration of grantee's qualifications, including its legal, character, financial and technical qualifications. Section 3. Definitions. For the purpose of this ordinance, and when not incon- sistent with the context, terrns, phrases, words and their derivations used herein in the present tense include the future; words in plural include the singular, and vice versa. The word "shall" is always manda.tory. The captions supplied herein for each section are for convenience only. 1 that serves or will serve only subscribers in one or more multiple unit dwellings under common ownership, control, or management, and does not use City right-of-way. Section 4. Grant of Non Exclusive Authority. There is hereby granted by the city to grantee the right privilege and franchise to operate a cable television system and to construct, erect, operate and maintain in, upon, along, across, above, over or under the present and future streets, alleys, publi.c utility easements, public ways and public places now la.id out or dedicated and all extensions thereof and additions thereto in the city, all poles, wires, cables, underground conduits, manholes and othPr conductors and fixtur_es necessary for the maintenance and operation in the city of a cable television. s_ystem for the transmission of television signals and all other signals permitted. by the FCC, either separately or upon or in conjunction with any public utility rnaintair.ing the same in the city with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, and upon the streets, sidewalks, alleys, public utility easements and public grounds and places in the city ta install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipmPnt necessary to a cable television system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. The rights herein granted for the purposes herein set forth shall not be exclusive, and the city reserves the right to grant a similar use of said strPets, alleys, public utility ease- ments, public ways and places to any person at any time during the period of the franchise. 3 Section 5. Franchise of Territory. This franchise is for the present territorial limits of the City of Paris and for any area henceforth added thereto during the term of this franchise. Cable service shall be made available to the franchise areas that can be extended from the present existing grantee's system shown on Exhibit A attached hereto or to any portions of the franchise area that grantee deems serviceable. Sectian 6. Procurement of Licenses. The grantee, promptly following the effective date hereof, shall make any necessary application to the Federal Communications Commission for authority with respect to the distribution system, including author_ity with respect to the operation of any necessary FCC licensed services and shall proceed with all due diligence to acquire all other neces- sary government licenses and authorizations for the main- taining and rebuilding of the present system and for the construction necessary to serve the area within the City not now served in accordance with the schedule required ir_ hereof and to serve new area upon future annexation. All rules and regulations of the Federal Communications Commis- sion pertaining to cable television service and the cable industry standards are he.reby incorporated into and made a part of this ordinance as though included herein word for word as performance standards for the continuance of this franchise. The grantee shall also make prompt application to the city, the telephone company, and the power company for pole attachment agreements and facility sharing agree- ments for the erection, maintenance, extension, operation, and removal of the distribution system. 4 Section 7. Police Power. Grantee shall at all times during the term of this franchise be subject ta all lawful exercise of the police power of the city. The right is hereby reserved to the city to adopt, in addition to the provisions herein contained and any other existing applicable ordinances, such addi- tional applicable ordinances as it shall find necessary in the exercise of its police power; provided, however, that such additional ordinances shall be reasonable, shall not conflict with or alter in any manner the rights gra.nted herein, and shall not conflict with the la.ws of the State of Texas, the laws of the United States of America or the rules and regulations of the FCC. Section 8. Indemnification. Grantee shall indemnify, save and hold harr.iless the city from all loss sustained by the city on account of any suit, judgment, execution, claim or demand whatsoever against the city resulting from occasioned by, or arising out of grantee or its agents construction, operation or maintenance of its cable television system in the city; and for this purpose procure and keep in fu11 force and ef_fect policy or policies of public liability insurance with a responsible insurance company or companies qualified to do business in the State of Texas ar_d approved by the City Attorney naming the city as additional insured, covering public liability and property damage in the minimum amounts of Five Million Dollars ($5,000,000.00), for personal injury, and One Million Dollars ($1,000,000.00), far pro- perty damage; and said grantee shall at any and all times during the effective term of this franchise and during any operations under the samP furnish and provide to the city clerk of the City of Paris satisfactory evidence that such 5 policy or policies of public liability insurance are in full force and effect, insuring said grantee against any and all claims for damages in the nature of public liability, personal, or property damage arising from its construction, maintenance and operation of its cable television system under this franchise. Section 9. Construction and Maintenance. (a) All structures, lines and equipment erected by grantee within the city shall be so located as to cause minimum interference with the proper use of street, alleys, public utility easements and other public ways and places to cause minimum interference with the rights a.nd reasonable convenience of property owners, and grantee shall comply with all reasonable requests of property owners, and grantee shall comply with all rFasonable, proper and lawful ordi- nances of the city now or hereafter in force. Existing poles, posts, conduits, and other such structures of a_ny electric power system, telephone company, or other public utility located in the city shall be made available to grantee for leasing or l:icensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and to avoid unneces- sary duplication of faci]_ities. To the extent that poles, posts, conduits, and other such structures are not avail- able, or are not available under reasonable limitation upon the use of grantee's cable television system, grantee shall have the right to purchase, lease or in any other manner acquire land, right-of-wav, or public utility easements upon which to erect and maintain its own poles, conduits, and other such structures as may be necessary for the con- struction and maintenance of its cable television system. 6 (b) In case of any disturbance by grantee of pavement, sidewalk, driveway or other surfacing, grantee shall, at its own cost and expense and in a manner, approved by the city, replace and restore all paving, sidewalk, driveway or surface so disturbed to a as good condition as before work was commenced. (c) In the event that at any time during the period of this franchise the city shall lawfully elect to alter or change any street, alley, public utility easement, or other public way requiring the relocation of grantee's facilities, then in such event grantee, upon reasonable notice by the city, shall remove, relay and relocate the same at its own expense. (d) Grantee shall, on the request of any person holding a building moving permit issued by the city tempo- rarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same, and grantee shall have the authority to require such payment in advance. (e) Grantee shall have the authority to trim trees upon and over-hanging all streets, alleys, public utili.ty easements, sidewalks and public place of the city so as to prevent the branches of such trees from coming into contact with grantee's facilities. (f) All poles, lines, structures and other facilities of grantee in, on, over, and ur_der the streets, sidewalks, alleys, public utility easements, and public grounds or places of the city shall be kept by grantee at all times in a safe and substantial condition. 7 (g) Grantee will, upon request, furnish connections to the nearest property line of all public schools within the limits of the city, to the city library, and to the city hall, and within ninety (90) days of receipt of such request shall provide one, basic community antenna television service without any monthly service charge; provided, however, that all wiring within any building conterriplated within this section sha11 be done (or contracted for to grantee's specifications in accordance with FCC regulations) by the municipality or school district which owns the building and subject to the line extention policy herein adopted. (h) All construction shall be in strict compliance with the City of Paris building and electrical codes. (i) City shall have the use of poles and line on a non interfering bases without charge. Section 10. Applicable Rules and Laws. This franchise is governed by and subject to all applicable rules, regulations and policies of the Federal Communication Commission, specificall_y inclu.ding Part 76 of the FCC Cable Rules and by laws of the State of Texas. Should there be any modifications of the provision of Part 76 of the rules and regulations of the Federal Communica- tions Commission, specifically including Section 76.31, that are inconsistent with this franchise, the city and grantee agree that this franchise will be appropriately amended within one (1) year after the effective date of the FCC's adoption of the modifications. 8 Section 11. Franchise Term. This franchise shall take effect and be in full force and effect from the date calculated in accordance with Section 22 hereof, and the same shall continue in fu11 force and effect for a term of Twenty-five (25) years from that date. Section 12. Loca.l Office and Complaint Procedure. The grantee shall maintain a business office in Lamar County for receiving non-toll telephone ca11s, inquiries or complaints regarding quality of service, equipment, mal- functions, billing disputes and similar matters. Inquires or complaints shall be received during normal business hours (8:00 A.M. to 5:00 P.M.), Monday through Friday and. except- ing holidays proclaimed by national, state and local govern- mental authority. Complaints for other than regular working hours may be made to a separate telephone maintained for that purpose which shall be listed in the telephone directory, or the same telephone number may be used, at the option of the grantee. Al1 complaints and inquires will be investigated and responded to or acted upon as promptly as practical, ar_d unless prevented by circumstances beyond grantee's control, within one (1) business day after receipt of the same. Should service be discontinued for seven (7) consecutive calendar days during any billing period then billing for such period shall be prorated to reflect the period without service. 9 Section 13. Review Procedure. (a) Signal Quality Req_uirements and Review. The grantee shall: (1) Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, substantially noise free and accompanied with proper sound on typi_ca.l standard production TV sets in good repair, and as good as the state of the art allows; (2) Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing crossmodulation in the cables or interfering with other electrical or electronic systems; (3) Lir.iit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than 24 hours after noticP; (4) Demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered. Evaluation sessions may be held at any time during the term of this Franchise at the request of the City or the Grantee. All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accor- dance with legal notice. Grantee shall notify its subscribers of all evaluation sessions by announcement on its system between the hours of 7:00 p.m, and 9:00 p.m, for five (5) consecutive days preceding each session. 10 Topics which may be discussed at any scheduled or special evaluation session amy include, but not be limited to, service rate structur.es, franchise fee, penalties, free or discounted services, application of new technologies, system performances, service provided, programming offered, customer complaints, privacy, amendments to this ordinance, judicial and FCC rulings, line extension policies, and grantee or City rules. Members of the general public May add topics either by working through the negotiating parties or by presenting a petition. If such a petition bears the valid signatures of tifty (50) or more residents of the City, the proposed topic or topics shall be added to the list of topics to be dis- cussed at the evaluation session. (b) Operation and Maintenance of System and Review. (1) The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions 14_nsofar possible shall be preceded by notice and shall occur during the periods of minimum use of the system. Repeated outages will not be tolerated. System outages in excess of four per Month shall be deemed inconsistent with efficient service. Similarly, repeated system failures at the same location(s) would indicate inadequate equipment maintenance and/or need for equipment replacement. (2) When there has been a pattern of similar com- plaints made or when there exists other evidence, which, in the judgment of the City Council casts doubt on the re- liability or quality of cable service, the City Council shall have the right and autharity to compel the grantee to test, analyze, and report on the performance of the system. 11 Such report shall be delivered to the City Council no later than Sixty (60) days after the City Council formally notified the grantee ar_d shall include the following infor- mation: the nature of the complaints which precipitated the special tests, what system component was tested, the equip- ment used, and procedures employed in said testings; the results of such tests, and the method in which said com- plaints were resolved. The City may requi_re that said tests and analyses shall be supervised at gra.ntee's expense by a professional engi- neer not on the permanent staff of the grantee. The afore- said engineer should Gign all records of the special tests an.d forward to the City Council such records with a report interpreting the results of the tests and recommending actions to be taken by the City. Section 14. Forfeiture. In addition to all other rights and powers pertaining to the city by virtue of this authority or otherwise, the city reserves the right to terminate and car_cel this author- ity and all rights, and privileges of the grantee hereunder in the event that the grantee violates any material provision of this authority or a.ny rule, order, or determin- ation of the City Council made pursuant to this authority, except where such violation, other than of provisions concerning transfer of authority without prior city a.pproval, is without fault or through excusable neglect and after grantee has received notice of such violation for 30 days and failed to have instituted appropriate action to cure such violation and diligently prosecuted such cure. 12 Section 15. Sur_render Right. Grantee May surrender this franchise at any time upon filing with the City Cler.k of the City a written notice of its intention to do so a.t least six (6) months before the surrerLder date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of grantee in connection. with this franchise shall terr.linate. Section 16. Transactions Affecting Ownership of Grantee. (a) This Franchise shall not be assigned, transferred, either in whole or in pa.rt, leased, or sublet, in any manner, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person not controlled by grantee without the prior written consent of the City Council which shall not be unreasonably withheld. Notwithstanding the aforementioned, grantee is expressly given the right to assign or mortgage its interest hereunder for security purposes only to obtain funds necessary for the purchase, improvement or operation of its cable television system herein authorized. (b) The gra.ntee shall promptly notify that City of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word "control" as used herein is not limited to major stock- holders but includes actual working control in whatever manner exercised. Every change, transfer, or acquisition of control of the Grantee shall make the Franchise subject to cancellation unless and until the City shall have consented thereto, which consent will not be unreasonable withheld. For the purpose of determining whether it shall consent to 13 such change, transfer, or acquisition of control, the City may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the City in any such inquiry. (c) The consent or approval of the City Council to any transfer of the Franchise shall not constitute a waiver or release of the rights of' the City in and to the streets, and transfer shall by its terms be expressly subordinate to thP terms and conditions of this Franchise. (d) The City Counci.l reserves the right to review the purchase price of_ any proposed transfer or assignment of the cable system. Any assignee to this Franchise expressly agrees that any negotiated sale value if unreasonable will not be considered in the rate base for any subsequent request for rate increases. (e) In no event shall a transfer of ownership or cantrol be approved without successor in interest Uecoming a signatory to this Franchise agreement. Section 17. Fee. Grantee shall pay to the City of Paris a sum equal to three (3) percent of t:he gross receipts, exclusive of installation charges, collected by it as and for its monthly service charges for the transmission and distribution of the signals of television and radio broadcast signals and the provision of nonbroadcast services it is required to provide by the FCC from its central receiving and distribution station to be located in or near the City of Paris to residential and commercial users of said grantee located in said city for the proceding calendar year, such annual franchise payments being due and payable on or before 14 March l, 1985, and annually thereafter, in full payment for the privilege of using and occupying the streets, highways, easements, alleys, parks and other public places in the City of Paris for such respective calendar years, whether as rental, supervision and inspection charges or otherwise; and this payment sha11 be in lieu of any other tax or increased rate of tax or other assessments or charges, except ad valorem taxes. Section 18. Rates. The maximum rates which may be charged by the grantee to subscribers shall not exceed the rates charged to sub- scribers by Arena Cablevision Corporation, in the cities of Reno, Blossom, Deport, Detroit and Bogata, Texas, being shown on Exhibit B attached hereto. The channels or services offered by grantee shall include the same channels and services offered the sub- scribers by Arena Cablevision Corporation, in the cities now being served by Arena Cablevision Corporation, that being Reno, Blossom, Deport, Detroit and Bogata, Texas, being shown on Exhibit C attached hereto. Rates shall at all times be fair, just and equitable. Rate increases for regular subscriber service shall be maintained consistent with additional services provided (including, without limitation, additional broadcast signal carriage) and increases in capital and operating costs (including, without limitation, increased costs due to in£lation). The City expressly reserves unto itself the authority to regulate rate increases following a public hearing when and if the rates established by grantee are not in 15 compliance hereunder. The City shall give Grantee thirty (30) days written notice of any public hearing held pursuant to this paragraph and shall be governed by the criteria set forth above in establishing permitted increases. Section 19. Charter Provisions Controllin.g. This ordinance is in all things subject to and con- trolled by the terms and provisions of the Charter of the City of Paris, and. shall in no wise be construed as a violation of said article, or any provision thereof. Section 20. Cost of Franchising All cost connected with franchising will be borne by the franchisee. Upon the expiration or termination of this franchise the successful applicant for the new franchise shall bare the cost of that franchise procedure. Section 21. Severability. It is hereby declared to be the intention of the City Council of the City of Paris that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional or invalid by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or invalid- ity shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ardinance of any unconstitutional or invalid phrases, clauses, sentences, paragraphs or sections. 16 Section 22. Effective Date. This ordinance and franchise shall take effect sixty (60) days af ter the adoption hereof by the city council on its third and final reading. IYITRODUCED AND READ on first reading on October 8, 1984, at a regular meeting of the City Council of the City of Paris; second rea.ding at a regular meeting of the City Council on November 8, 1984; and final reading at a regular meeting of the City Council on November 12, 1984, the same being three (3) separate regular meetings of the City Council of the City of Paris, the last being not less than thirty (30) days from the first. Passed on thir.d and final reading this 12th day of November, 1984. J e Graham, Mayor ATTEST: H. C. Greene, City Clerk APPROVED AS TO FORM: % T. K. Haynes, City Attorney 17