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79-9-Ordinance-Granting Franchise Agreement TV Cable of Sanger-09/04/1979ORDINANCE NO 79-9 AN ORDINANCE GRANTING TV CABLE OF BANGER, INC., & CORPORATION, A NON-EXCLUSIVE CABLE TELEVISION FRANCHISE WITHIN THE CITY OF BANGER, TEXAS, FOR A TERM OF 15 YEARS, SUBJECT TO AND CONDITIONED UPON PERFORMANCE BY GRANTEE OF ITS DUTIES AND OBLIGATIONS HEREUNDER, REQUIRING COMPLETION OF CATV SYSTEM WITHIN 12 MONTHS, FIXING THE TERMS AND CONDITIONS OF SAID FRANCHISE, PROVIDING FOR A GROSS RECEIPTS TAX PAYABLE ANNUALLY TO THE CITY OF BANGER, TEXAS OF THREE (3) PER CENT OF GROSS REVENUES OF GRANTEE, EXCLUDING INITIAL CUSTOMER INSTALLATION CHARGES, REQUIRING GRANTEE TO INDEMNIFY CITY AGAINST CLAIMS FOR PERSONAL INJURY AND PROPERTY DAMAGE PROTECTION, PERMITTING THE CITY OF BANGER, TEXAS, TO EXAMINE THE BOOKS AND RECORDS OF GRANTEE, REQUIRING ESTABLISHMENT OF LOCAL BUSINESS OFFICE BY GRANTEE IN OR NEAR THE CITY OF BANGER, TEXAS, REQUIRING ACCEPTANCE OF FRANCHISE ORDINANCE BY GRANTEE WITHIN TEN (10) DAYS OF THE PASSAGE OF THIS ORDINANCE, AND DECLARING AN EFFECTIVE DATE OF - THE ORDINANCE. WI-EREAS, TV CABLE OF BANGER, INC. has made application for a franchise to operate within the corporate limits of the City of Sanger, hereinafter called "City," and WHEREAS, the City Council of the said City of Sanger has deter- mined that the granting of said franchise will provide desired CATV service to the residents of Sanger, and is in the public interest; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BANGER, TEXAS, A MUNICIPAL CORPORATION: SECTION 1. GRANT OF AUTHORITY There is hereby granted to TV CABLE OF BANGER, INC., a Corp., and its successors, hereinafter called "Grantee", subject to acceptance by Grantee of this franchise ordinance within 10 days after the passage hereof, and also subject to, and conditioned upon, the satisfactory performance by Grantee of its duties and obligations to furnish satisfactory CF,T'v' service to the residents of City, for the term of fifteen (15) years from the date of this ordinance, the right, duty, privilege and franchise to have, acquire, construct, reconstruct, maintain, use and operate in the City, a television signal receiving, amplifying and -1- distribution system and service, hereinafter called a "community antenna television system" or "CATV", and to have, acquire, construct, reconstruct, maintain, use and operate, in, over, under, along and across the present future streets, highways, alleys, bridges, and public ways and places of the City, all necessary or desirable poles, towers, anchors, wires, cables, electronic conductors,. underground conduits, manholes, and other structures and appurtenances necessary in the construction, maintenance, and operation of a community antenna television system in said City. Grantee herein, by its acceptance of this franchise, hereby agrees to forthwith make application for all necessary permits to construct and operate said CATV system in the City, and to commence construction of said system as soon as possible, and to proceed with said construction in an expeditious manner, and to substantially complete said system and have such-CATV system fully operational within 12 months from the date hereof. After said system is placed in operation, and for the life of this fran._chise,- Grantee agrees to, and assumes the duties and obligations to, provide and maintain CATV service to the residents of Sanger. SECTION 2. USE, RENTAL OR LEASE OF UTILITY POLES AND FACILITIES There is hereby granted to Grantee the authority to contract with the City or with any appropriate board or agency thereof, or with the holder or owner of any utility franchise in the 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 usable in receiving, amplifying and distributing television signals and in providing community antenna television service in the City and its vicinity. SECTION 3. COMPLIANCE WITH APPLICABLE LAWS. All work done in connection with the construction, reconstruc- tion, maintenance or repair of said community antenna television system shall be subject to and governed by all laws, rules, and 2 regulations of the City now in force, or that may be hereafter passed and adopted, for the government and regulations thereof, and not inconsistent herewith. SECTION 4. SUBJECT TO POLICE POWERS OF CITY. The construction, maintenance, and operation of Grantee's community antenna television system and all property of Grantee subject to this Ordinance shall be subject to all lawful police powers and regulations by the governing body of the City. The City shall have the power at any time to order and require the Grantee to remove and abate any pole, tower, wire, cable, or electronic conductor or other structure or facility that is deemed by the City to be dangerous to life or property, or creates an unreasonably hazardous condition, and in the event that Grantee, after written notice of such order of the City, fails and refused to act, then the City shall have the power to remove and abate the same at the expense of the Grantee therefor, and without liability for damages to Grantee. Grantee shall, at all times, keep its cables and other appurtenances used for transmitting signals shielded in such a manner that there will be no interference with signals received by private television sets owned by persons not subscribing to Grantee's service. In the event that reasonable evidence of such interference is furnished by the City to the Grantee, the Grantee shall have a reasonable time thereafter to verify and eliminate the causes of such interference.._ If, after the expiration of such reasonable time, said interference has not been eliminated, said City shall then have the right to make such tests and chocks of Grantee's equipment and facilities as the City, its agents, servants, and employees may deem appropriate to locate and establish the -cause or causes of the interference and the Grantee shall further, at Grantee's expense, make any alterations, modifications, or corrective changes in Grantee's equipment and facilities necessary to abate the interference. Failure on the part of Grantee to fulfill said conditions shall constitute grounds for cancellation of this franchise, after due notice to Grantee and a hearing thereon, notice of which hearing -3- ,� *. �, �.,. shall be given in writing to Grantee not less than ten (10) days prior to such hearing. The grantee shall have the right to appeal from the Council's action, taken after public hearing thereon, to a Court of competent jurisdiction. SECTION 5. CONDITIONS OF STREET OCCUPANCY. A. USE. All transmission and distribution structures, lines equipment and facilities erected or maintained by Grantee within the City shall be located in such manner that the same will not interfere with the normal and intended use of streets, highways, alleys, bridges and other public ways and places, or with the rights or reasonable convenience of property owners owning property adjoining any of said streets, highways, alleys, bridges, or other public ways or places. B. RESTORATION. In the event of any disturbance of any pavement, sidewalk, driveway, or other surfacing of any public street, highway, alley,. bridge, or other public way or place, by the Grantee in the construction or operation of its facilities hereunder, the Grantee shall, at its exclusive cost and expense, and at the time and in the manner prescribed by the governing body of the City, or its duly designated representative, repair, replace,,and restore all such pavement, sidewalk, driveway, or other surface material, to as good a condition as the same were in prior to the commencement of the work or operations by the Grantee disturbing same. C.RELOCATION. The City shall have the right to construct, reconstruct, repair., r�aintain, relocate, widen, raise or lower the grade of, any street, highway, alley or other public way or place without liability in any manner to the Grantee, and when- ever by reason of such construction, reconstruction, repair, maintenance, relocation, or raising or lowering of the grade of, any public way, place, structure or facility by the City, it shall be deemed necessary by the governing body of the City for Grantee to move, relocate, change, alter, or modify any of its structures, or facilities, such change, relocation, alternation or modification shall be promptly made by Grantee at its own expense, when ordered in writing by the governing body of the City, without claim for reimbursement of cost, or damages of any kind or character against the City. -4 - D. TEMPORARY REMOVAL OF WIRE FOR BUILDING MOVING. Grantee, upon written request of any person holding a building moving permit issued by the City, shall remove, raise, or lower its wires temporarily to permit the moving of houses, buildings, or other bulky structures. The reasonable expense of such temporary removal, raising, or lowering of such wires shall be paid by the benefitted person or persons, and Grantee may require such payment in advance. Grantee shall be given not less than forty-eight (48) hours advance notice in writing to arrange for such temporary wire changes. E. TREE TRIMMING. Grantee shall have the authority, to the same extent that the City has such authority, to trim trees upon or overhanging streets, highways, alleys, bridges or other public ways or places of the City in order to prevent the branches of such trees from coming in contact with the wires, cables, electronic conductors, or other facilities or equipment of the Grantee. F. CONSTRUCTION, MAINTENANCE, AND INSTALLATION. The construction, maintenance, and installation of equipment and Facilities of Grantee, including connections to subscribers of Grantee's service, shall be in accordance with all applicable ordinances and regulations of the City. All equipment should be state of the art. G. PLACEMENT OF FIXTURES. The 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, or similar fixtures shall be placed as directed by the City and in such manner as not to interfere with the usual travel or use of streets, highways, alleys, or other public ways or places. SECTION 6. INDEMNIFICATION. Grantee shall indemnify and save the City whole and harmless from any and all claims for injury or damage to persons or property occasioned by or arising out of the construction, erection, maintenance, repair or operation of said community antenna television system or by the conduct of Grantee's business in the City. -5- �: �. SECTION 7. INSURANCE. Grantee shall procure, furnish, and file with the City Secretary of the City prior to commencement of any work in the construction of the community antenna television system a policy of insurance, issued by an insurance company acceptable to the City, covering personal injury and property damage public liability with the mininum liability insurance coverage thereunder as follows: One Hundred Thousand ($100,000.00) Dollars for any single personal injury to any one person; Five Hundred Thousand ($500,000.00) Dollars for personal injuries in any one single accident; and One Hundred Thousand ($100,000.00) Dollars property damage for any single accident. SECTION 8. GRANTEE'S RULES. The Grantee shall have the authority to promulgate reasonable rules, regulations, terms and conditions governing to enable the Grantee to exercise its rights and perform its duties and obligations under this ordinance, and to assure uninterrupted service to each and all of the sub- scribers to Grantee's service, PROVIDED, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or with the laws of the State of Texas. Prior to the effective date thereof, copies of all such rules, regulations, terms and conditions established or promulgated by Grantee shall be furnished to the City Secretary of the City of Sanger, Texas. SECTION 9. PAYMENT TO CITY. As compensation for the rights, privileges, and franchise herein conferred Grantee shall pay to the City each year during the term of this franchise, an annual sum of money equal to three percent (3%) of the annual gross receipts received by the Grantee for the rendition of basic television service within the City, excluding late charges and associated reconnect fees. Said sum of money shall be due and payable on or before the 31st day of January of each year, for the gross receipts tax for the preceding calendar year. Said sum shall be in full payment for the privilege of using and occupying said City's streets, avenues, alleys, and public grounds and places during said preceding year, and shall be in lieu of any occupation tax or other taxes, rentals, or charges which the City might be authorized by law to levy and collect, excepting, however, ad valorem taxes, sales taxes, -o- any rental or lease charges fixed by contract between Grantee and the City under Section 2 of this franchise ordinance, and any other specific charges provided for by this franchise ordinance. SECTION 10. RECORDS AND REPORTS. The Grantee shall, at all times, maintain adequate records of gross receipts from basic and premium television service income, which records shall be available at all reasonable times to inspection by the City through its duly authorized officers, agents, or representatives. SECTION 11. NON-EXCLUSIVE FRANCHISE. The rights, privileges, and franchise granted hereby is not exclusive and nothing herein contained shall be construed to prevent the City from granting any other like right, privilege, and franchise to any other person or persons, firm, or corporation. SECTION 12. ASSIGNMENT. The City of Sanger shall hold first option to purchase the franchise granted hereunder at a fair market value. The franchise granted hereunder, and the rights and privileges conferred thereby, shall not be assigned to any person, firm or corporation, without the written consent of the City Council of the City of Sanger, and any assignment or attempted assignment of this franchise, or any right or privilege granted hereunder, without such prior express written consent from the City Council of the City of Sanger shall constitute grounds, at the option of the City, for cancellation of this franchise, but�'shall relieve Grantee of all ��'®'�� �` liability thereunder. SECTION 13. ACCEPTANCE. Grantee shall have ten (l0) days after the effective date of this ordinance to file its written acceptance thereof with the governing body of the City, and upon the filing of such. acceptance, this ordinance shall take effect and be retro- active to the date of its passage. SECTION 14. C�i311�7d�i�iii7 If any section, sentence, clause or phrase of this ordinance is for any reason held to be illegal or unconstitutional, such invalidity shall not affect the validity of the remainder of this ordinance. SECTION 15. DURATION OF FRANCHISE. The authority and rights herein granted, as aforesaid, shall take effect upon the effective date of this ordinance and sha17 continue in force and effect for a term of (15) years,: PROVIDED, however, that this franchise -7- and contract shall automatically terminate unless the television service authorized to be furnished by Grantee is available and operational within the corporate limits of the City of Sanger within twelve (12) months from the date hereof. SECTION 16. RATES: Rates and charges for television service by Grantee shall be reasonable. No rate or charge shall be placed in effect by Grantee until copies of such rate schedule have been filed with the City Secretary of the City of Sanger, and no charge or alteration in such rate charges shall become effective until the Grantee has filed with the City security an instrument, duly executed, setting forth all such changes or alterations, and proposed effective date. SECTION 17. BUSINESS OFFICE AND CUSTOMER SERVICE. A. The Grantee shall maintain a business office in the City of Sanger, Texas, having a listed Sanger telephone exchange number for conducting business and receiving subscriber complaints. and requests concerning quality of service. Grantee shall take action to perform the required maintenance to resolve these complaints within a reasonable amount of time during normal business hours. Complaints received during non -business hours will be rectified during regular business hours except when they are in excess of five (5) subscriber service mutually associated problems (loss of Cable TV service) then the company shall take immediate action to rectify these problems. B. Any customer without service for seventy two (72) hours or more will receive appropriate pro -rated credit on the service charge for that month. C. Grantee recognizes the CATV Company of Sanger is not responsible for acts of God and/or nature. D. Community antenna television service shall be available to all areas within the corporate ?units of said City of Sanger, having a minimum of twenty-eight (28) homes per cable mile. E. All applicants desiring community antenna service installed at a location greater than three hundred (300) feet from the nearest distribution line shall pay to Grantee, as a condition for the installation of such service, the actual costs of labor and materials for the additional distance above 300 feet. -8- PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SANGER, TEXAS, on this the 1 day of A.D., 1979. ayor ATTEST: APPROVED AS TO FORM: