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HomeMy Public PortalAboutOrdinance No. 420-79 03-19-1979 ORDINANCE N0. AN ORDINANCE GRANTING TO Tarrant Cable Communications Inc. , A TEXAS CORPORATION ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AND FRANCHISE FOR A TERM OF FIFTEEN (15) YEARS, TO ERECT, MAINTAIN, AND OPERATE A COMMU- NITY ANTENNA TELEVISION SYSTEM IN THE CITY OF RICHLAND HILLS, TEXAS; TO ERECT, MAINTAIN, AND OPERATE ITS POLES, TOWERS, ANCHORS, WIRES, CABLES, ELECTRONIC CONDUCTORS, CONDUITS, MANHOLES, AND OTHER STRUCTURES AND APPURTENANCES IN, OVER, UNDER, ALONG, AND ACROSS THE PRESENT AND FUTURE PUBLIC STREETS, HIGHWAYS, ALLEYS, BRIDGES, EASEMENTS, AND OTHER PUBLIC WAYS AND PLACES IN SUCH PORTION OF THE CITY; PRESCRIBING COD4PENSATTON FOR THE RIGHTS, PRIVILEGES AND FRANCHISE CONFERRED HEREUNDER; PRESCRIBING THE CONDITIONS GOVERNING THE OPERATION OF THE BUSINESS INSOFAR AS IT AFFECTS THE USE OF PUBLIC PROPERTY FOR THE PURPOSE OF SUCH BUSINESS; PRESCRIBING RULES AND REGU- LATIONS GENERALLY FOR THE INSTALLATION, MAINTENANCE, AND OPERATION OF SAID SYSTEM AND BUSYNESS; CONTAINING GENERAL PROVISIONS RELATING TO THE SUBJECT; AND PROVIDING FOR SEVERA- BILITY. WHEREAS, Tarrnnt Cable Communications Inc. , a Texas Corporation has heretofore applied to City Council for a franchise to build and operate a cable television system within the City of Richland Hills; and WHEREAS, following proper notice, City Council of The City of Richland Hills held a hearing on such application, at which time representatives of the applicant and interested citizens were heard; and WHEREAS, it is hereby found and determined by City Council of_ the City of Richland Hills that it is in the best interest of the City that a cable television franchise be awarded; and ti WHEREAS, City Council finds from all the evidence that Tarrant Cable Communications Inc. fully meets all the legal, character, financial, and technical qualifications, as well as all other qualifications, necessary to assure that the City will be provided with the best available cable television system and that uction arrangements proposed by Tarrant Cable Comm/ Inc. are ate and feasible; NOW THEREFORE i -2- BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF RICHLAND HILLS TEXAS: Section 1. SHORT TITLE. This ordinance shall be known and may be cited as the City of Richland Hills - CATV Franchise Ordinance. Section 2. DEFINITIONS. For the purposes of this ordinance the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein. 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. The word "shall" is always mandatory, and not merely directory. A. "Additional Services" shall mean any communications services other than Regular Subscriber Service and Pay Television provided by Grantee over the CATV System either directly or as a carrier for its subsidiaries, affiliates or any other person engaged in communications services, including, but not limited to, burglar alarm, data or other electronic intelligence transmission, facsi- mile reproduction, meter reading and home shopping. Additional Services shall not include the delivery by the CATV System of any programming on the Educational Access Channels or Public Access Channels, which programming is included in Regular Subscriber Service. B. "Anniversary Date" shall mean the date on which this Franchise was accepted by Grantee. C. "CATV" shall mean community antenna television. D. "CATV System" shall mean a system of cables, wires, lines, rs, wave guides, microwave and laser beams, and any associated .converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying and distributing by audio, video and other forms of electronic or electric signals to and from subscribers and locations in the City. -3- E. "Channels" shall mean a band of frequencies, six mega- hertz wide, in the electro-magnetic spectrum which are capable of carrying wither (1) audio-video television signals and non-video signals or (2) non-video signals. F. "City" shall mean the City of Richland Hills, Texas, a municipal corporation of the State of Texas. G. "City Council" shall mean the present governing body of City or any successor to the legislative powers of the present City Council. H. "Converter" shall mean an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and which, by an appropriate channel selector, also permits a Subscriber to view all signals delivered at designated dial locations. I. "Educational Access Channels" shall mean Channels on the CATV System which are reserved for carriage of program material provided by local educational authorities who obtain use of such Channels from Grantee for the presentation of such material. J. "Federal Communications Commission" or "FCC" shall mean that agency as presently constituted by the United States Congress or any successor agency with jurisdiction over CATV matters. K. "Franchise Area" shall mean all portions of the City of Richland Hills. L. "Franchise Year" shall mean any twelve-month period commen- cing on an Anniversary Date and extending to the day immediately preceding the next subsequent Anniversary Date. M. "Grantee" shall mean TCC, Inc. or any person who succeeds _ TCC, Inc. in accordance with ~hP rrovisions of this franchise. N. "Grantee Channels" shall mean the Channels on the CATV System which are reserved for carriage of program material origi- nated locally by Grantee. -4- O. "Gross Revenues" shall mean all revenues collected by the Grantee, indluding, but not limited to, Regular Subscriber Revenues, Pay Television revenues, Additional Services Revenues, advertising revenues and fees received for lease of Channels. Gross Revenues shall not include the following: (1) any taxes which are imposed on any Subscriber or User of CATV System by any governmental unit and collected by Grantee for such governmental unit; (2) revenues resulting from connection or reconnection fees of any kind; (3) revenues resulting from the sale or rental of equipment of any kind; and (4) revenues resulting from the studio production of programming used on the Educational Access or Public Access Channels or the lease of such Channels. P. "Pay Television" shall mean the delivery over the CATV System of programming to Subscribers for a fee or charge over and above the charge for Regular Subscriber Service, on a per-program, per-Channel or other subscription basis. Q. "Person" shall mean any person, firm, partnership, association, corporation, company or organization of any kind. R. "Public Access Channels" shall mean Channels on the CATV System which are reserved for carriage of program material in the public interest provided by persons who obtain use of such Channels from Grantee for the presentation of such material. S. "Public Utility Commission of Texas" or "PUC" shall mean that agency as presently constituted by the laws of the State of Texas or any successor agency. T. "Regular Subscriber Service" shall mean the simultan- eous delivery by Grantee to television receivers, or any other suitable type of audio-video communication receivers, of that service regularly provided to all of its Subscribers, including all broadcast signals authorized for carriage by the FCC and of all regular non-broadcast signals provided to all of its sub- scribers, but excluding Additional Services and Pay Television. -5- U. "Street" shall mean the surfacr or the space above and below any public street, road, highway, alley, bridge, sidewalk or other public place or way now or hereafter held by City for the purpose of public travel and shall include other easements or rights of way now held or hereafter held by City which shall, within their proper use and meaning, entitle City and Grantee to the use thereof for the purposes of installing or transmitting CATV System transmissions over poles, wires, cables, conductors, conduits, manholes, amplifiers, appurtenances, attachments and other structures, equipment and facilities as may be ordinarily necessary and pertinent to a CATV System. V. "Subscriber" shall mean any person who receives any service delivered by the CATV System. W. "User of CATV System" shall mean a person who utilizes the CATV System to produce or to transmit programs or other communications to Subscribers. Section 3. GRANT OF AUTHORITY There is hereby granted to Tarrant Cable Communication~~Inc. a Texas Corporation the right, privilege and franchise to have, acquire, construct, reconstruct, maintain, use and operate in the Franchise Area a CATV System, and to have, acquire, construct, reconstruct, maintain, use and operate in, over, under and along the present and future streets of City as well as other easements and rights-of-way held by City all necessary or desir- able poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes and other structures and appur- tenances necessary for the construction, maintenance and operation of a CATV System in the Franchise Area of City. Section 4. TERM OF FRANCHISE AND RENEWAL. A. Initial Term. Upon the filing with City by Grantee of the written acceptance required herein, this franchise shall be in full force and effect for a term and period of fifteen (15) years commencing thirty (30) days after its final passage and approval. -6- B. Performance Evaluation. The City Council has the power by ordinance to prescribe the character, quality and efficiency of service to be rendered, given, performed and furnished by any public utility operated under a City franchise, to require the improvement of the utility's service in a manner necessary for the public comfort and convenience and to require any such utility to make improvements on its property. In order to assure that Grantee is complying with provisions of this franchise, on or within thirty (30) days of the 5th and 10th Anniversary Dates of this franchise, City Council shall hold a hearing or hearings for the purpose of reviewing the performance of Grantee under the franchise. Unless specifically waived by City Council, attendance of Grantee's duly authorized representative at these hearings shall be mandatory. The subject of the hearings shall include, but not be limited to, Grantee's performance under the franchise, the development of new services, the utilization of new technol- ogies and any federal or state rulings relevant to the franchise. Grantee shall make available to City Council, if requested, any records, decuments or other information as, may be relevant to City Council's review. At least ninety (90) days prior to the 5th and 10th anniversary Dates of this franchise, the City Secre- tary shall notify Grantee of the day and time of the hearing. At the hearing, Grantee shall be entitled to all the rights of due process, including but not limited to, the right to present evidence, the right to cross-examine and the right to be represented by counsel. All records and minutes of each of the performance evaluation hearings shall be retained by the City Secretary and be available for inspection throughout the term of the franchise. C. Renewal. City Council shall hold a hearing not less than twelve (12) months prior to the expiration date of this fran- chise, the purpose of which will be to review Grantee's performance during the entire term of its franchise, to consider the adequacy of this franchise from the standpoint of City, Grantee and FCC's rules for cable television and to determine the advisability of renewing Grantee's franchise for an additional period of years. City Council shall hear any interested persons during such hearings and shall determine whether Grantee did reasonable comply with the terms and conditions imposed by this franchise. If City Council determines that the Grantee's performance has been satisfactory in accordance with the terms and conditions imposed by this franchise, City Council may renew Grantee's franchise for an additional fourteen year period. Section 5. ADDITIONS TO FRANCHISE AREA BY ANNEXATION. The Franchise Area shall include territory which is annexed by City during the term of this franchise and which is contiguous to the original Franchise Area; provided, however, that within ninety (90) days after the effective date of any City annexation, City Council may hold a hearing to determine whether the newly annexed territory should be excluded from the Franchise Area and, if it so determines, City Council may exclude any newly annexed territory from the Fran- chise Area. Section 6. USE, RENTAL OR LEASE OR UTILITY POLES AND FACILITIES. There is hereby granted to Grantee the authority to contract with City or any appropriate board or agency thereof or with the holder or owner of any utility franchise in City for the use, rental or lease of its or their poles, underground conduits and other structures and facilities for the purpose of extending, carrying or laying Grantee's wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the operation of its CATV System. City agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to its franchise, allow and is encouraged to allow, Grantee to make such use thereof pursuant to any agreement reached between such utility and Grantee. Section 7. COMPLIANCE WITH APPLICABLE LAWS. The work done and activity in connection with the construction, reconstruction, maintenance, operation or repair of Grantee's CATV System shall be subject to and governed by all present and future laws, rules and regulations of City, the State of Texas and the United States of America, including the FCC and any other federal agency having jurisdiction. -8- Section 8. SUBJECT TO POLICE POWERS OF CITY. The construction, maintenance and operation of Gran- tee's CATV System and all property of Grantee subject to the provisions of this franchise shall be subject to all lawful police powers, rules and regulations of City. City shall have the power at any time to order and require Grantee to remove or abate any pole, line, tower, wire, cable, guy, conduit, electric conductor or any other structure or facility that is dangerous to life or property. In the event Grantee, after written notice, fails or refuses to act, City shall have the power to remove or abate the same at the expense of Grantee, all without compensation or liability for damages to Grantee. Section 9. CONDITIONS OF STREET OCCUPANCY. A. Use. All structures, wires, cables, equipment and facilities erected or maintained by Grantee within City shall be located as to cause minimum interference with the proper and intended use of the streets and with the rights or reasonable convenience of the owners or occupiers of property which adjoins any of such streets. B. Restoration. The 'surface of any street disturbed by Grantee in laying, constructing, maintaining, operating, using, extending, removing, replacing or repairing its CATV System shall be restored by Grantee immediately after the completion of the work, at its cost and expense, to as good a condition as before the commencement of the work and maintained by Grantee to the satisfaction of the Director of Public Works for one year from the date of completion of such restoration work. No street shall be encumbered by construction, maintenance, removal, restoration or repair work by Grantee for a longer period than shall be nee:essary to execute such work. If there is an unreasonable delay by Grantee in restoring and maintaining streets after such excavations or repairs have been made, City shall have the right without further notice to restore or repair the same and to require Grantee to pay the reasonable cost of such restoration or repair. -9- C. Relocation. Whenever by reason of the construction, repair, maintenance, relocation, widening, raising or lowering of the grade of any street by City or by the location or manner of construction, reconstruction, maintenance or repair of any public property, structure or facility by City, it shall be deemed necessary by City for Grantee to move, relocate, change, alter or modify any of its facilities or structures, such change, reloca- tion, alteration or modification shall be promptly made by Grantee, at its cost and expense, when directed in writing to do so by City, without claim for or right of reimbursement of cost or damages against City. In the event Grantee, after such notice, fails or refuses to commence, pursue or complete such relocation work within a reasonable time, City shall have the authority, but not the obligation, to remove or abate such structures or facili- ties and to require Grantee to pay to City the reasonable cost of such removal or abatement, all without compensation or liability for damages to Grantee. D. Temporary Removal of Wire for Building Moving. Upon written request of any person holding a building moving permit issued by City, Grantee shall remove, raise or lower its wires and cables temporarily to permit the moving of houses, buildings or other bulky structures. The Reasonable expense of such tempo- rary removal, raising or lowering shall be paid by the benefited person, and Grantee may require such payment in advance, Grantee being without obligation to remove, raise or lower its wires and cables until such payment shall have been made. Grantee shall be given not less than seventy-two (72) hours' advance written notice to arrange for such temporary wire and cable adjustments. E. Tree Trimming. City Council shall, from time to time, pass ordinances regulating the trimming or removal of trees on or along City property. F. Placement of Fixtures. Grantee shall not place poles, towers or similar fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrant or main, drainage facility or sanitary sewer, and all such poles, towers and similar facilities shall be placed as directed by City and in -10- such manner as not to interfere with the usual travel or use of the streets. G. Approval of Plans and Specifications. Grantee shall provide complete plans and specifications for all construction within streets to the City's Directors of Public Works and Traf- fic and Transportation for their review at least thirty (30) days prior to the start of construction. In the event of rejection, Grantee shall submit revised plans and specifications for ap- proval. This provision shall apply to each construction sequence if the construction is accomplished in phases. Section 10. INDEMNIFICATION AND LIABILITY FOR DAMAGES. Grantee shall pay, and by its acceptance of this fran- chise specifically agrees that it will pay, the following: A. Damages and Penalties. All damages or penalties which city, its officers, agents or employees, may legally be required to pay as a result of damages arising out of copyright infringe- ments and all other damages arising out of the installation, maintenance or operation of Grantee's CATV System, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise; and B. Expenses. All expenses incurred by City in defending itself, its officers, agents or employees, against any and all claims for damages or penalties described in Section 10 A. These expenses shall include all out-of pocket expenses, such as, but not limited to, attorney fees, witness fees and court costs and shall also include the reasonable value of any services rendered by any officers or employees of City. It is the intent of this section and by its acceptance of this franchise Grantee specifically agrees that Grantee shall indemnify and hold City, its officers, agents and employees, harmless from all liability, damage, cost or expense arising from claims for injury to persons, damage to property or penalties occasioned by reason of any conduct undertaken by reason of this franchise. City shall not and does not by reason of the granting of this franchise assume any liability of Grantee whatsoever for -11- injury to persons, damage to property or penalties. Section 11. LIABILITY INSURANCE. A. Minimum Coverage. Within thirty (30) days after the effective date of this franchise, Grantee shall file with the City Secretary and shall maintain on file throughout the term of this franchise a liability insurance policy issued by a company duly authorized to do business in the State of Texas insuring City and Grantee with respect to the installation, maintenance and operation of Grantee's CATV System in the following minimum amounts: (1) One Person. Five Hundred Thousand Dollars ($500,000.00) for bodily injury or death to any one person. (2) One Accident. One Million Dollars ($1,000,000.00) for bodily injury or death resulting from any one accident. (3) Property Damage. Five Hundred Thousand Dollars ($500,000.00) for property damage resulting from any one occurrence. (4) All Other Types of Liability. One Hundred thou- sand Dollars ($100,000.00) for all other types of liability. B. Increased Coverage. City Council reserves the right to require Grantee to increase the minimum amounts of liability insurance coverage to reasonable amounts generally required of CATV Systems. Such requirement shall be expressed by resolution or ordinance. C. Notice of Cancellation or Reduction. Such policy of liability insurance shall contain the provision that written notice of expiration, cancellation or reduction in coverage of the policy shall be delivered to the City Secretary and to Grantee at least thirty (30) days in advance of the effective date thereof. D. Term. Such liability insurance shall be kept in full force and effect by Grantee during the existence of this fran- chise and thereafter until after the removal of all poles, wires, cables, underground conduits, manholes and other conductors and -12- fixtures incident to the maintenance and operation of Grantee's CATV System, should such removal be required by City Council or undertaken by Grantee. Section 12. INSTALLATION SCHEDULE. A. Permits, Licenses and Certificates. Within thirty (30) days after the acceptance of this franchise, Grantee shall pro- ceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business including, but not limited to, utility joint-use attachment agreements and permits, licenses, authorizations and certificates to be granted by duly constituted local, state and federal govern- mental entities and regulatory agencies having jurisdiction over the installation and operation of CATV Systems. B. Start of Construction. Within sixty (60) days after obtaining all necessary permits, licenses, authorizations and certificates, and after completion of make-ready work by utility companies in connection with use of utility poles and facilities, Grantee shall commence construction and installation of its CATV System, subject to the conditions of this franchise. C. Initial Rendering of Service. Within one year after commencement of construction and installation of its CATV System, Grantee shall accomplish significant construction of its CATV System; provided, however, that the utility companies make their poles and facilities available to Grantee in a reasonable manner so as to meet this time schedule. As a minimum, but subject to the provisions of Section 26 hereof, this requirement shall mean Grantee shall be capable of providing Regular Subscriber Service to twenty percent (20%) of the residents of the Franchise Area. D. Annual Installation Requirements Thereafter. Each year following the first Anniversary Date of commencement of construc- tion and installation, Grantee shall pursue the completion of construction and installation of its CATV System with reasonable diligence. As a minimum, but subject to the provisions of Sec- tion 26 hereof, during each of the next four (4) years, Grantee shall be capable of providing Regular Subscriber Service to an additional twenty percent (20s) of the residents of the Franchise Area. -13- E. Compliance. Failure of Grantee to commence and dili- gently pursue each of the foregoing requirements and to abide by and to complete each of the matters set forth herein shall be grounds for termination of this franchise; provided, however, Grantee shall notify City Council as soon as reasonably possible of any major delay in meeting the construction schedule esta- blished under this franchise. Grantee shall not be held in default of this construction schedule if timely completion of any phase of construction is prevented despite Grantee's good faith efforts and because of circumstances beyond Grantee's control. Furthermore, City Council, in its discretion, may extend tree time for the commencement and completion of construction and installa- tion for additional periods in the event Grantee, acting in good faith, experiences delays by reason of circumstances beyond its control. Section 13. OPERATIONAL STANDARDS. The City Council shall require that Grantee's CATV system shall be installed, maintained and operated in accordance with the highest 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 shall meet the following minimum standards and service 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 televi- sion spectrum without the introduction of material degradation of color intelligence and fidelity. C. Rated for Continuance Operation. Grantee's CATV System shal_1 be designed and rated for twenty-four (24) hour a day continuous operation. -14- 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 color 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. In any event, the picture produced shall be as good as the state of the art allows. 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 re- ceivers 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 thirty-five (35) television channels. To the extent that Grantee elects, or is required, to increase its channel capacity, Grantee agrees to include within such increase a proportional increase in the number of Educational Access and Public Access Channels required by Section 13 J. and 13K. G. Signals to be Carried. Grantee shall carry on its CATV System the signals of all stations significantly viewed in Richland Hills, Tarrant County, Texas, and the signals of no less than two (2) distant independent commercial stations as well as the signals of such distant educational and non-English language stations as may be technically and economically feasible. H. Converter-Parental Lock; Selection of Signal Number. Grantee shall not offer or provide any Converter that cannot be equipped with a parental lock capable of locking or securing one Channel or all Channels. Further, the Channel selector of the Converter shall be numbered so that Grantee may carry all rele- vant over-the-air television signals on the Channel number of the station. City Council may waive the requirement of this section if it is technically infeasible. -15- I. Temperature Range. Grantee's CATV System shall be capable of operating throughout the air temperature range of 0 to 110 degrees Fahrenheit without degradation of audio or video fidelity. J. Educational Access Channels. At least two Channels shall be reserved for the use of the educational authorities in City. Such Channels shall be provided free of charge. K. Public Access Channels. At least two Channels shall be reserved for the use of the public, one of which shall have nondiscriminatory access without charge on a first come, first serve basis, and the other of which shall be reserved for use by City. L. standard of Care. Grantee shall at all times employ a high standard of care and shall install, maintain and use ap- proved methods and devices for preventing failures or accidents which are likely to cause damages, injuries or nuisances to the public. M. 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 poss- ible, such interruptions shall be preceded by forty (48) hours' notice and shall occur during periods of minimum use of the CATV System. N. Grantee's Office. Grantee shall maintain one principal office, and may maintain as many sub-offices as are reasonably necessary to promote good service and convenience to the public, in the Franchise Area, which shall be open during all usual business hours, have a listed telephone and be so equipped and operated that complaints and requests for installation, repairs or adjustments may be received twenty-four (24) hours a day, seven (7) days a week. Such office shall maintain a complete and updated maps of Grantee's CATV System and the construction plans and specifications thereof. 0. 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 a reasonable time which shall be seventy-two (72) hours after notice thereof, except during times of general breakdown due to weather or other catastrophe. For such purpose, Grantee shall maintain a compe- -16- tent staff of employees sufficient in size to provide adequate and prompt service to Subscribers. P. State of the Art. Grantee shall undertake any and all construction and installation necessary to keep current with the latest developments in the state of the art of CATV, whether with respect to increasing Channel capacity, developing other new services, instituting more extensive two-way service or other- wise. Q. Studio for Local Program Origination. Grantee shall have the option of either (1) constructing and operating a studio capable of originating live and taped programming in both black and white and in color in its Franchise Area or (2) participating with other holders of cable television franchises in the construc- tion and operation of a similar studio in a centrally located area with other holders of cable television franchises. Nothing in the previous sentence shall be interpreted as prohibiting or preventing Grantee from constructing and operating additional studios in its Franchise Area or from purchasing other production equipment for its Franchise Area. Section 14. UNDERGROUND INSTALLATION. In portions of the Franchise Area having telephone lines and electric utility lines underground, whether required by ordinance or not, any and all of Grantee's lines, cables and wires shall also be underground. It shall be the policy-of the City that existing poles for electric and communication purposes be utilized whenever possible and that underground installation, even when not required, is preferable to the placing of addi- tional poles. Section 15. INTERCONNECTION. Grantee's CATV System shall be interconnected with any other CATV System operating in an area adjacent to Grantee's Franchise Area and under a franchise granted by City. Section 16. EMERGENCY USE OF THE CATV SYSTEM. In the event of an emergency or disaster, Grantee shall upon request of City Council or its designated representative, make available its facilities to City for emergency use during -17- the period of such emergency or disaster and shall provide such personnel as may be necessary to operate its facilities under the circumstances. Grantee shall incorporate into its facility the capability for an emergency interrupt whereby City, in time of crises, may be able to introduce a bulletin on all channels simultaneously. Section 17. COMPLIANCE WITH STATE AND FEDERAL LAWS. Notwithstanding any other provision of this franchise to the contrary, Grantee shall 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 prbh:ibit Grantee from performing any service in conflict with the provisions of this franchise or any other ordinance, rule, regulation or charter provi sion of City, then immediately following knowledge thereof Grantee shall notify City Council in writing of the point of conflict believed to exist between such state or federal law, rule or regulation and. this franchise or any ordinance, rule, regulation or charter provi- sion of the City. If City Council determines that a material provision of this franchise does in fact conflict with such state or federal law, rule or regulation, it shall have the right to modify any provision hereof to such reasonable extent as may be necessary to carry out the full intent and purpose of this franchise. Grantee shall be responsible for the costs of complying with all laws, rules and regulations of the state and Federal government and any adminis- trative agencies thereof. Grantee further agrees to hold the City harmless for any costs which are incurred by the City fir compliance with said law-, rules and regulations of said governmental bodies or agencies thereof. Section 18. MODIFICATIONS BY FCC;JURISDICTION OF FCC. It is specifically agreed by City and Grantee that any modifica- tions of the provisions of this franchise resulting from amendment of the rules and regulations of the FCC shall be incorporated into this franchise by City Council 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. Should the FCC lose or voluntarily abdicate regulatory jurisdiction over any aspect of CATV, city Council shall be empowered to assume regulatory jurisdiction over any such deregulated aspects, provided that City's regulation is not contrary to local, state or federal law. -18- Section 19. EMPLOYMENT REQUIREMENTS. Grantee shall afford equal opportunity in employment to all qualified persons. No person shall be discriminated against in employment because of race, color, religion, national origin or sex. Grantee shall establish, maintain and carry out a posi- tive, continuing program of specific practices designed to assure equal opportunity in every aspect of its employment policies and practices. Section 20. OTHER BUSINESS ACTIVITY. Grantee shall not engage in the business of selling, repairing or installing television receivers or radio receivers within City during the term of this franchise. Grantee shall not suggest, recommend or single out any television or radio sales or service firm or business establishment to be patronized by Sub- scribers. Grantee shall exercise all reasonable influence on its officers, agents, employees and representatives to insure compli- ance with this section. It is provided, however, that this section does not prohibit Grantee from servicing or repairing Converters and other technical equipment which it owns and which are leased or otherwise furnished to Subscribers for use with Grantee's services. Section 21. PAYMENT TO CITY. A. Amount and Time_ As compensation for the right, privi- lege and franchise herein conferred, Grantee shall pay to City each year during the term of this franchise a sum equal to four percent (4~) of Grantee's Gross Revenues for such year. Such payments shall be made quarterly. Grantee shall file with the City Treasurer within sixty (60) days after the expiration of each quarter of each calendar year, or portion thereof, during which this franchise is in effect, a financial statement prepared according to accepted accounting practice showing in detail the Gross Revenues of Grantee during the preceding quarter of the calendar year. Such statement shall be accompanied by Grantee's payment to City or four percent (40) of such Gross Revenues for such quarter. -19- B. Right of Inspection of Records City shall have the right to inspect Grantee's records showing the Gross Revenues from which payments to City are computed and to audit and recom- pute any and all amounts paid under this franchise. No accep- tance of payment shall be construed as a release or as an accord and satisfaction of any claim City may have for further or addi- tional sums payable under this franchise or for the performance of any other obligation hereunder. C. Other Payments to City. The franchise fee payable hereunder shall be exclusive of and in addition to all ad valorem taxes, special assessments for municipal improvements, reimburse- ments to City for moneys spent in hiring rate consultants to evaluate Grantee's rate modification requests and other lawful obligations of Grantee to City. Section 22. RECORDS AND REPORTS. A. Principal Office of Grantee. Grantee shall maintain its principal office in the Franchise Area as long as it con- tinues to operate its CATV System or any portion thereof and hereby designates such office as the place to where all notices, directions, orders and requests may be mailed, served or deliv- ered under this franchise. The City Secretary shall be notified of the location of such office or any change thereof. B. Books of Account. Grantee shall keep complete and accurate books of accounts and records of its business and opera- tions under and in connection with this franchise. All such books of accounts and records shall be maintained at Grantee's principal office. C. Access by City. City, through its duly designated officers, agents or representatives, shall have access to all books of accounts and records of Grantee for ascertaining the correctness of any and all reports and may examine its officers and employees under oath in respect thereto. Access shall be given by Grantee to such officers, agents or representatives of City at all reasonable times not only to Grantee's records of Gross Revenues, but also to all of Grantee's plans, contracts, engineering, planning, financial, statistical, customer and -20- subscriber service records relating to the properties and opera- tion of its CATV System and to all other records and reports required to be kept or which are kept by Grantee. D. Annual Report. An annual report showing the number of Subscribers as of that year's Anniversary Date of this franchise and Gross Revenue and Regular Subscriber Service revenue received by Grantee for the preceding calendar year, prepared and certi- fied to by an independent certified public accountant, and such other information as City shall request with respect to the properties and expenses related to Grantee's CATV System, shall be filed by Grantee with the City Secretary within ninety (90) days following the end of each calendar year or portion thereof during which this franchise is in effect. E. False Entry. Any false entry in the books of accounts and records of Grantee or false statement in the reports to City or its duly designated officers, agents or representatives, as to a material fact, knowingly made by Grantee, shall constitute a violation of a material provision of this franchise ordinance. F. FCC Filings. Grantee shall file copies of all reports and filings made to the FCC with the City Secretary. Section 23. GRANTEE'S RULES. Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable Grantee to exercise its rights and to perform its obligations under this franchise and to assure an uninterrupted service to all Subscri- bers; provided, however, such rules, regulations, terms and conditions shall not be in conflict with any of the provisions of this franchise or any ordinance of City, the provisions of its Charter, the laws of the State of Texas and the United States of America and the rules and regulations of the FCC and any other federal agency having jurisdiction. A copy of Grantee's rules, regulations, terms and conditions shall be filed with the City Secretary and shall thereafter be maintained current by Grantee. Section 24. RATES. A. Rate Determination. The City Council is empowered to fix, alter and regulate the rates and charges of Grantee by ordinance. -21- Accordingly, City Council shall set the maximum rates charged by Grantee for the following services: (1) Regular Subscriber Service; and (2) Connection and installation services, reconnection services and fees charged for the rental of Con- verters or other equipment furnished by Grantee to its Subscribers. B. Grantee shall not establish or make any change in the rates regulated by City Council under this section except by filing a request for rate modification with City Council at least sixty (60) days prior to the proposed effective date of the modification. Within such sixty (60) days period prior to the proposed effective date of the modification, if City Council determines that a hearing is required, City Council may suspend the implementation of any such rate modification for no more than ninety (90) days and shall call a hearing at a date within sixty (60) days after the proposed effective date of the rate modification. If City Council does not call such hear- ing prior to the proposed effective date of the modification, then the modification shall be effective on the proposed effec- tive date. If a hearing is called, but City Counci.~ doer not make a final determination concerning any schedule of rates within a period of thirty (30) days after the hearing, the pro- posed rate modification shall be deemed to have been approved by City Council. C. City's Expenses for Hiring Rate Consultants. Grantee shall reimburse City for reasonable expenses incurred in employ- ing rate consultants to evaluate Grantee's rate modification requests, to present evidence and to advise City Council on such rate modification requests under the terms of this Section. D. Posting of Rates. Grantee shall publish and post in its local offices schedules providing maximum rates and charges established hereby. Section 25. DISCONTINUANCE OF SERVICE. A. Discontinuance of Service for Non-Payment. Grantee may -22- disconnect installations and discontinue service to a Subscriber upon failure to pay Subscriber's bill within thirty (30) days of rendition; provided, however, Grantee shall give five (5) days' written notice to Subscriber, delivered either by mail or served in person, that service will be discontinued unless arrearages are paid before the expiration of the five (5) day period. B. Disconnection of Installation Because of Deceit. Gran- tee may disconnect installations and discontinue service to a Subscriber who operates or attempts to operate more than one television set at any one time on an installation for which no service fees are being paid, or permits anyone else to do the same; provided, however, television servicemen may disconnect or reconnect the terminal unit on the rear of the television re- ceiver for the purpose of repairing or replacing receiver equip- ment at the request of a Subscriber. Section 26. DISTANT EXTENSION OF DISTRIBUTION CABLE. In the event that a potential Subscribers premises are located at such a distance from a distribution cable that Grantee deems it not economically feasible to provide service at the rates authorized herein, City Council shall determine, upon request from the potential Subscriber or Grantee, the amount, conditions and refund provisions of the cable extension charge which, in addition to the rates authorized herein, would be fair and reasonable under the particular conditions and circumstances. In no event shall it be deemed "not economically feasible" to extend a distribution cable a distance of three hundred (300) feet or less. Section 27. PROHIBITION OF DISCRIMINATORY OR PREFERENTIAL PRACTICES. In its rates or charges, or in making available the services or facilities of the CATV System, or in its rules or regulations, or in any other respect, Grantee shall not make or grant preference or advantage to any Subscriber or potential Subscriber or to the User of CATV System or potential User of CATV System and shall not subject any such person to any preju- dice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the -23- CATV System or other legitimate uses thereof. Section 28. NGN-EXCLUSIVE FRANCHISE. The rights, privileges and franchise granted hereby are not exclusive and nothing herein contained shall be construed to prevent City from granting any like or similar rights, privileges and franchise to any other person within all or any portion of City. Section 29. REVOCATION OF FRANCHISE. In addition to all other rights and powers of City by virtue of this franchise or otherwise, City reserves as an addi- tional and as a separate and distinct power the right to termi- nate and cancel this franchise and all rights and privileges of Grantee hereunder in any of the following events or for any of the following reasons: A. Violation of Provisions. Grantee shall by act or omission violate any term, condition or provision of this fran- chise and shall fail or refuse to effect compliance within thirty (30) days following written demand by City to do so. B. Foreclosure, Receivership. Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon the termination of any lease covering all or a substantial part of the system, the company shall notify the city of such fact, and such notification shall be treated as a notification that a change in control of the company has taken place, and the require- ments of this ordinance governing the consent of the City Council to such change in control of the company shall apply. 1. The City Council shall have the right to cancel the franchise one hundred twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the bus- iness of the company, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receiver- ship or trusteeship shall have been vacated prior to the expir- ation of the said one hundred twenty (120) days, or unless: -24- a. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this ordinance and remedied all defaults thereunder; and, b. Such receiver or trustee, within said one hundred twenty (120) days shall have executed an agreement, duly approved by the Court having jurisdiction in the matter, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this ordinance and the certificate granted to the company. C. Fraud or Deceit. Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this fran- chise with City, Subscribers or potential subscribers. D. Method of Termination and Cancellation. Any such termination and cancellation of this franchise shall be by ordi- nance adopted by City Council; provided, however, before any such ordinance is adopted, Grantee must be given at least sixty (60) days' advance written notice, which notice shall set forth the causes and reasons for the proposed termination and cancellation, shall advise Grantee that it will be provided an opportunity to be heard by City Council regarding such proposed action before any such action is taken, and shall set forth the time, date and place of the hearing. In no event shall such hearing be held less than thirty (30) days following delivery of such notice to Grantee. E. Force Majeure. Other than its failure, refusal or inability to pay its debts and obligations, including, specifi- cally, the payments to City required by this franchise, Grantee shall not be declared in default or be subject to any sanction under any provision of this franchise in those cases in which performance of such provision is prevented by reasons beyond its control. Section 30. ASSIGNMENT OF FRANCHISE. -25- The rights, privileges and franchise granted hereunder may not be assigned, in whole or in part, without the prior consent of City Council expressed by resolution or ordinance, and then only under such conditions as may therein be prescribed. No assignment to any person shall be effective until the assignee has filed with the City Secretary an instrument, duly executed, reciting the fact of such assignment, accepting the terms of this franchise, and agreeing to comply with all of the provisions hereof . Section 31. GRANTOR PURCHASE OF SYSTEM UPON REVOCATION. In the event that the grantor revokes this franchise, pursuant to appropriate provisions of this ordinance, the grantor shall have the right to purchase the CATV system at a price not to exceed its then book value (that is, original cost of proper- ty less accumulated depreciation). The book value shall be determined by the grantor in accordance with generally accepted appraisal and accounting principles. Under no circumstances shall any valuation be made for "good will" or any right or privilege granted by this franchise. Should a dispute arise over the determination of the book value of the system, the dis- pute shall be resolved by arbitration. Section 32. BOARD OF ARBITRATION. Any controversy or claim or disputes as to facts arising out of or relating to this franchise agreement, or to a breach or alleged breach thereof, and expressly made the subject of arbitration by this ordinance, shall be referred to a Board of Arbitration one member to be appointed by the franchisee and the second member to be appointed by the City Council, and the third member to be a disinterested party appointed by agreement of the other two members. Section 33. DEMAND FOR ARBITRATION. Demand for arbitration may be made by either party or the other by written notice sent by Certified Mail, Return Receipt Requested. Notice of demand to the City of Richland Hills shall be served on the City Secretary. Notice of demand to the fran- chisee shall be served upon the President of the franchisee -26- corporation. The demand shall state the controversy or claim and the disputes as to facts. Section 34. JUDICIAL RELIEF FOR PARTIES. On failure of either party to appoint an arbitrator within fifteen (15) days of notice to him of demand for arbitration, or on the failure of arbitrators selected by the parties within fif- teen (15) days after appointment of both arbitrators to select a third arbitrator, either party may apply to the District Court of Tarrant County, Texas, for the appointment of an arbitrator or arbitrators hereunder by giving notice to the other party, as provided in the Texas Rules of Civil Procedure, as amended, governing civil actions generally. Section 35. BOARD OF ARBITRATION HEARINGS The board of arbitrators shall hold a hearing on the controversy, claim or disputes of facts stated in the demand for arbitration, which hearing shall be within thirty (30} days after appointment of all the arbitrators , and after fifteen (15 ) days notice thereof to both parties given by the arbitrators by Certified Mail, Return Receipt Requested. The hearing may be adjourned from time to time. The board shall consider evi- Bence offered by the parties relevant to the controversy, claim, or disputed facts, and may swear witnesses. Testimony shall be taken and transcribed by a reporter. The record of the Hearings, the decision of the Board of Arbitrators, and the dissent of any one of them shall be filed with the City Council. The decision of the board of Arbitrators may be rendered by any two of them; and any one of them may render a dissent. The decision and dis- sent must be limited to the controversy or claim and based on findings of fact. The decision of any two of the arbitrators shall be the decision of the board and shall be final and con- clusive on both parties. Section 36. EXPENSES OF ARBITRATION TAXED Expenses of arbitration, including, without limitation, costs of notices and service thereof, fees of arbitrators and of witnesses, but not of legal counsel, and the cost of taking and transcribing testimony shall be charged against the party at fault proportionately between the parties as the board may deem -27- equitable and just. Section 37. GRANTEE TO HAVE NO RECOURSE. A. Requirements and Enforcement. Except as expressly pro- vided herein, Grantee shall have no recourse whatsoever against City for any loss, cost, expense or damage arising out of the provisions or requirements of this franchise or because of the enforcement thereof by City or because of the lack of City's authority to grant all or any part of this franchise. B. Grantee's Understanding. Grantee expressly acknowledges that in accepting this franchise, it relied solely upon its own investigation and understanding of the power and authority of City to grant this franchise and that Grantee was not induced to accept this franchise by any understanding, promise or other statement, verbal or written, by or on behalf of City or by any third person concerning any term or condition not expressed herein. C. Construction of Franchise. By acceptance of this franchise, Grantee acknowledges that it has carefully read the provisions hereof and is willing to and does accept all of the risks of the meanings of such provisions and agrees that in the event of any ambiguity herein or in the event of any other dis- pute over the meaning thereof, the same shall be construed strictly against Grantee and in favor of City. Section 38. ACCEPTANCE OF FRANCHISE. Within thirty (30) days from the effective date .of this ordinance, Grantee shall file with the City Secretary a written statement in the following form signed in its name and behalf: "To the Honorable Mayor and City Council of the City of Richland Hills, Texas: For itself, its successors and assigns, Tarrant Cable Comm unications,InE.a Texas Corporation , hereby accepts the attached ordinance and agrees to be bound by all of its terms, conditions and provisions." Tarrant Cable Communications, Inc. . -28~- ' • By Its Vice President "Dated this the 17th day of May 1979." Section 39. SEVERABILITY. If any provision, section, subsection, sentence, clause or phrase of this franchise is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of the remaining portions of this fran- chise. It is the intent .of City in adopting this franchise that no portion or provision thereof shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other 1 portion or provision, and to this end all provisions of this franchise are declared to be severable. Section 40. MISCELLANEOUS That this ordinance shall take effect immediately from and after its passage in accordance with the provisions of the City Council of the City of Richland Hills, Texas, and it is accordingly so ordained. PASSED AND APPROVED this the `l y day of ~.~-C~ , A . D . , 19 7 9 . ~-G/~ , ~~c~y/ ~ / / ~9 , Q' ~ YOR, CITY OFJRIS.~-ILAND HILLS ATTEST: ~ `-7 ~ ~ APPROVED AS TO LEGAL FORM: CITY ~ ~fZETARY ~ ATTORNEY, CITY OF RICHLAND HILLS