HomeMy WebLinkAbout1984-1514 - Ordinance - 05/23/1984ORDINANCE NO. 1514
AN ORDINANCE GRANTING TO McCAW BCS COMMUNICATIONS, INC., ITS
SUCCESSORS AND ASSIGNS, A FRANCHISE AND PRIVILEGE TO BUILD, USE,
MAINTAIN AND OPERATE A SYSTEM FOR THE PURPOSE OF RECEIVING,
AMPLIFYING AND DISTRIBUTING TELEVISION AND RADIO SIGNALS IN THE
CITY OF COLLEGE STATION, BRAZOS COUNTY, TEXAS, AND GRANTING THE
RIGHTS AND OTHER PRIVILEGES TO OPERATE AND MAINTAIN SAME UNDER
AND OVER THE STREETS, ALLEYS, PUBLIC WAYS IN SAID CITY FOR SAID
PURPOSES, AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on December 9, 1983, McCaw BCS Communications,
Inc. has entered into an Asset Purchase AGreement with Community
Cablevision Corporation, a Texas corporation which is the Grantee
of Cable Television Franchise ordinance No. 1170 servinG College
Station, Texas ("City");
WHEREAS, on October 11, 1983, McCaw Midwest Communications,
Inc. entered into a Merger AGreement with Home Theatres,
Incorporated, doinG business as Midwest video Corporation, an
Arkansas corporation, which is Grantee under Cable Television
Franchise Ordinance No. 1033 servinG the City;
WHEREAS, McCaw BCS Communications, Inc. has petitioned the
City to Grant it the franchise, in replacement and repeal of
Ordinances Nos. 1170 and 1033 to provide cable television
services within the City for an initial term of ten (10) years
from and after the effective date of such Grant, which term would
extend beyond the remaininG unexpired terms under the Ordinances
No. 1170 and 1033 referenced above;
WHEREAS, after public hearing, City has decided it is in the
best interest of the public to Grant this franchise to McCaw BCS
Communications, Inc. supercedinG Ordinances Nos. 1170 and 1033;
WHEREAS, the City has the power and authority to regulate
and may regulate rates in the public interest to provide an
adequate and not excessive rate of return to a supplier of cable
services; and to ensure effective competition with and
alternatives to new communications technologies; and
WHEREAS, the City, followinG a full public hearinG of this
matter and a readinG of this franchise in three (3) separate
regular meetings of the City Council, has determined, pursuant to
College Station City Charter, Section 120, that it is in the
public interest that the City of College Station Grant to McCaw
BCS Communications, Inc. a franchise for operation of cable
services on the terms and conditions set forth herein and for the
period specified;
0, 179
ORDINANCE NO. 1514 Page 2
BE IT ORDAINED BY THE CITY OF COLLEGE STATION, TEXAS:
SECTION 1. There is hereby granted to McCaw BCS
Communications, Inc., its successors and assigns, hereinafter
called "Company" a right and privilege for an initial period of
ten (10) years from the effective date of this ordinance, to
construct, maintain and operate in the present and future,
streets, alleys, and public ways of the City of College Station,
Texas, poles, lines, cables, necessary wiring, and other
apparatus as may be approved by the City Manager for the purpose
of receiving, amplifying and distributing television and radio
signals to said City and inhabitants thereof, except its central
receiving station or microwave towers shall not be so located.
SECTION 2. That poles shall be so erected as not to
interfere with the traffic over the streets and alleys. The
location of all poles, or other obstructions shall be fixed with
the prior written approval and under the supervision of the City
of College Station, giving consideration to the reasonable
operation of the same.
SECTION 3. That the service furnished hereunder to said
City and its inhabitants shall be of maximum efficiency and
quality in all respects, and shall be subject to such reasonable
rules and regulations as said City may from time to time adopt in
the exercise of its police power in addition to protecting the
public health and safety, provided that such rules and
regulations do not conflict with the Charter or this franchise.
This franchise may be cancelled following written notice to
Company setting forth the defaults claimed, and a public hearing
at which Company is given an opportunity to set forth its plan
for cure of such defaults. The City shall act reasonably in any
such cancellation. The company may require a reasonable deposit
and rates from its subscribers for the payment of its service.
The City shall have the right to review the rates charged by the
Company after notice to the Company, and public hearing affording
due process; provided, however, that rates fixed by City shall be
such to provide the public with adequate service at a reasonable
price, and to provide the Company with a reasonable return upon
the fair value of the property of Company used or useful in
rendering its service to the public. In the event an ordinance
is passed fixinG the rates for the Company, then such rates shall
be subject to review from time to time by the City on its own
motion or on the motion of the Company. Whenever the Company
intends to revise its rates, it shall Give the City written
notice of the proposed charges at least thirty (30) days prior to
implementation of the new rates. Within said period City Council
may pass a resolution suspending such rate increase for a period
not to exceed thirty (30) days (plus such number of days as shall
elapse between City's request for information and Company's
ORDINANCE NO. 1514 Page 3
delivery of same and upon passage of same, the Company shall
present necessary back-up information for review and analysis by
the City, which shall then schedule a public hearing for
consideration of the proposed rate within twenty-one (21) days
after receipt of such information. Any cost of analysis of such
information by the City shall be at City expense.
The Company may add to its basic monthly service charge to
its customers, on a pro-rata basis, an amount equal to any
increase in copyright fees charged to the Company and/or service
charges imposed upon the Company by any governmental body having
the authority to do so.
SECTION 4. Ail rights Granted and held under this ordinance
are sub3ect to and governed by the existing charges of the City
of College Station, Texas, the laws of this state, any applicable
federal law, and the rules and regulations of the Federal
Communications Commission.
SECTION 5. Ail work done in connection with the
construction, reconstruction, maintenance and repair of said
system shall be subject to and governed by all laws, rules,
regulations and ordinances now in force, or that may be hereafter
passed and adopted for the government and regulation thereof, and
not inconsistent herewith, and shall comply with all requirements
of the National Electric Safety Code.
No poles, except distribution poles, shall ever be set for
carrying wires for such system over or along any of the streets,
avenues, or highways of the City, within the present fire limits
of said City, wzthout the consent of the City Council, or its
designated representatives. No distribution poles shall ever be
permitted on the streets within the fire limits, unless it is
impracticable to obtain permission to erect them on private
property;, and the City is to be the sole judge of the
practicability of placinG such poles in such districts on cross
streets. Ail poles shall be placed, and all excavations made,
and all other construction work in the streets, shall be so
carried on as to interfere as little as possible with the use of
private property, considering the character of the improvements,
repairs, and alterations then being engaged in by the Company,
all of such work to be performed by and under the police and
regulatory powers of the City, or its designated representatzve.
SECTION 6. The Company shall at all times furnish its
services in accordance with its rules and regulations, to the
City, and its inhabitants, and to all persons and corporations
therein requesting the same, which service shall be first class
and in keeping with rates charged for the service and the
ORDINANCE NO. 1514 Page 4
following line extension policy and sufficient to meet all
reasonable demands without undue interruptions.
LINE EXTENSION POLICY. The company will provide residential
services at standard installation charges only if housing density
reaches a minimum of thirty (30) homes per aerial miles or fifty
(50) homes per underground mile. In areas below that minimum
density, homes may receive residential ~ervices if arrangements
are made for cost-sharing of construction costs for service to
that area. The company would use the following cost-sharing
formula: In those areas where the number of dwelling units per
stand or trench mile is less than fifty (50) per mile for
underground cable or thirty (30) per mile for aerial cable, the
Company will provide residential cable service on a pro rata
sharing of the installation costs with the potential
subscriber(s). The Company will bear its pro rata share of the
then current cost per mile of plant construction based on a
multiple of the actual number of potential subscribers per mile,
divided by fifty (50) dwellings per mile for underground areas or
thirty (30) dwellings per mile for aerial areas. The remaining
construction cost will be borne on a pro rata basis by each
applicant committing to at least one year's service within the
extension area. The Company will inform each home of the
computed pro rata share per household before any agreements are
signed, or construction begun. The Company will also contact all
residents in the area under construction to involve as many homes
as possible thereby reducing the cost to each. Mileage will be
measured from the nearest point on the nearest trunk line.
COMPLAINT AND SERVICE LOG. The Company shall furnish to the
C~ty upon request a log of all t~ouble calls. Said log shall
contain information in convenient form, sufficient to identify
the date, area, subscriber, nature of call and resolution
thereof.
After public hearing, should the City Council determine that
the Company has failed to provide acceptable programming as
related to the needs of the community, the Company shall at its
expense have an independently conducted community needs survey
performed and shall deliver a copy of the same to the City.
SECTION 7. The Company has installed and shall maintain a
properly grounded cable which is capable of transmitting
thirty-five (35) television signals to all residents of the City
desiring service. The Company currently furnishes and shall
continue to furnish to users a minimum of twelve (12) signals or
channels.
ORDINANCE NO. 1514 Page 5
SECTION 8. The Company will, upon request and payment in
advance, raise or lower its wires temporarily to permit the
moving of houses or other bulky structures. The minimum height
of all wires shall be no less than eighteen (18) feet over
streets and alleys, or conformed to all applicable codes,
whichever the lower distance above streets or alleys.
SECTION 9. The Company may trim trees upon and overhanging
the streets and alleys to the extent reasonably necessary to
present the branches from coming in contact with the wires or
cables of the Company, under the supervision of the City Manager
or designee of the City of College Station and at the expense of
the Company.
SECTION 10. The Company shall maintain accounting records
accordinG to General Accepted Accounting Principals (GAAP) and
Financial Accounting Standards Board (FASB) 51 which relates
specifically to financial reporting by cable television company.
The Company will provide an audited statement of operations. The
Company will provide a revenue report for the franchise area that
ties to the franchise tax calculation upon request. The audited
statements will be available 120 days after the close of
Company's fiscal year which ends December 31. The revenue report
shall be provided within forty-five (45) days after receiving a
request.
SECTION 11. Company shall not lease, assign or otherwise
alienate this franchise without prior approval of the City, which
approval shall not be unreasonably withheld; provided that
Company may, upon notice to the City, assign its rights and
obligations hereunder to an affiliated McCaw entity, including
parent or subsidiary corporations or partnerships or joint
ventures in which Company has a controlling management interest;
and further provided that Company may, upon notice to the City,
assign or mortgage its interests hereunder for security purposes
only to obtain funds necessary for the purchase, improvements or
operation of its cable television business in the City.
SECTION 12. The Company shall at all times defend,
indemnify, protect and save harmless the City of College Station
from and against any and all liability, losses, and physical
damage to property and bodily injury or death to persons,
including payments made under Workmen's Compensation laws, which
may arise out of or be caused by the erection, construction,
replacement, removal, maintenance, and operations of Company's
cable television system, and resulting from or by any negligence,
fault, or misconduct on the part of Company, its agents,
officers, servants, and employees. Company shall carry public
liability insurance for the protection of itself and City, with
primary coverage of not less than Three Hundred Thousand Dollars
($300,000) per occurrence, and Five Hundred Thousand Dollars
ORDINANCE NO. 1514 Page 6
($500,000) aggregate, and excess liability or umbrella coverage
concurrent with the coverage of primary insurance of not less
than One Million Dollars ($1,000,000). Company shall add City as
additional insured to such policy. Company shall hold City
harmless against damages resulting from legal action which may be
brought against it in connection with the establishment and/or
operation of Company's cable television system in the City of
College Station. Company shall also carry Workmen's Compensation
coverage on its employees who are engaged in any manner in the
erection, construction, replacement, repair, maintenance, and
operation of Company's plant and equipment.
SECTION 13. The Company, its successors and assigns, for
and in consideration of this franchise further agree, on request
by the City of College Station and without charge to:
Provide a free connection of
to each public school within
Station at such time as said
available in the vicinity of
this cable service
the City of College
service becomes
such schools.
Provide to said public schools the non-exclusive
use of one channel to distribute television
signals on the same for school telecasting.
Bryan Independent School District, College
Station Independent School District, and Texas
A&M University shall have the pre-emptive right
to use said channel on a time shared basis.
Co
Distribute television signals providing education
programming from local and Houston Public Tele-
vision stations in existence at the effective
date of this ordinance.
DJ
Provided that performance of the obligations
created in this section shall be subject to,
conditioned and governed by any rules and
regulations of the Federal Communications
Commission, which are now in existence or which
may be enacted subsequent to the effective date
of this franchise, and which by their terms are
applicable to such obligations.
Upon request, Company shall provide a free
connection of this basic cable service to all
city owned public buildings if cable service is
available at that location.
ORDINANCE NO. 1514 Page 7
Provide to the City of College Station the
non-exclusive use of one channel to distribute
television signals on the same for the City of
College Station telecasting.
SECTION 14. The rights and privileges and franchise granted
by this ordinance to the Company, its legal representatives and
assigns, are not exclusive, and nothinG herein contained is
intended to or shall ever be construed so as to prevent the City
from granting other and similar rights, privileges and franchises
to any other person, firm, association or corporation. Company
shall have the right to renew this franchise for a like term, ten
(10) years, upon giving ninety (90) days' notice to the City,
provided Company is then in substantial compliance hereunder. In
the event Company is not then in substantial compliance
hereunder, the City shall have the right to reasonably condition
renewal on Company taking steps to cure existing defaults and
providing necessary assurances of future compliance by Company.
SECTION 15. In consideration of this franchise, the
Company, its successors and assigns, shall, during the term
thereof, pay to the City an annual sum for the use of its
streets, alleys and other property of not less than two percent
(2%) of the gross revenues, exclusive of installation charges,
derived from its basic service revenues withln the City. The
first payment is to be made upon the 1st day of March, 1985,
based upon the revenue for the preceding year ending December 31,
1984. Subsequent payments shall be computed annually thereafter,
and payable on or before the 1st day of March of each succeeding
year, based upon the revenue of the preceding year ending on
December 31. Payment shall be exclusive of and in addition to
all ad valorem taxes, special assessments against the Company's
properties for municipal purposes, and rental charges under a
pole use agreement. Except as provided herein, no other fee,
license, rent, charge, tax, or consideration whatsoever shall be
imposed upon Company by City during the term of this franchise.
SECTION 16. If any part of this ordinance shall be declared
unconstitutional or invalid by the court, such holding shall not
affect the remaining portion of this ordinance.
SECTION 17. That this franchise and ordinance have been
presented by application of the Company to the City Council of
the City of College Station, and as finally proposed, it is
ordered that same be published in the City of College Station,
one time, which publication shall not be changed unless
republished as in the first instance, nor shall same take effect
or become a law or contract or vest any rights in the Company
until after the expiration of twenty (20) days from such
publication, and pending a time such ordinance may become
ORDINANCE NO. 1514 Page 8
effective. City Charter Section 120 requires the City Council of
the City of College Station, Texas, to order an election if
requested to do so, by written petition signed by at least twenty
percent (20%) of the legally qualified voters of said City of
College Station, Texas, as shown by the tax rolls for the year
preceding, at which election the qualified voters of said City
shall vote for or against the proposed grant, as set forth in
detail by this ordinance. Such election shall be ordered not
less than ten (10) days, nor more than thirty (30) days, from the
date of filing of said petition, and if at such election the
majority of votes cast shall be for the granting of said
franchise, said ordinance shall thereupon become effective; but
if the ma3ority of the votes cast shall be against the granting
of said franchise, such ordinance shall become null and void.
If, however, there is no petition presented as aforesaid, said
ordinance shall become effective within the time as herein
provided.
SECTION 18. That McCaw BCS Communications, Inc. shall have
twenty (20) days from and after the passage and approval of this
ordinance to file its written acceptance thereof with the City
Secretary, and upon such acceptance being filed, the ordinance
shall take effect sixty (60) days after its adoption on its third
and final reading and shall effectuate and make binding the
agreement provided by the terms hereof.
PASSED, ADOPTED and APPROVED this 10th day of May, 1984.
ATTEST .-
APeROV :/ / / ,/'
.
G~ry R'a~, Mayor
First Consideration & Approval: April 26, 1984
Second Consideration & Approval:May 9, 1984
Third Consideration & Approval: May 10~ 1984
Date of Publication in the EAGLE: June 6, 1984
ACCEPTANCE OF ORDINANCE
McCaw BCS Communications;. Inc. unconditionally accepts
the terms of Ordinance No. /~ /~/ of the City of College
Station, Texas and promises to comply with and abide by all
of its provisions, t.~erms and conditions.
cCAW BCS COMMUNICATIONS, INC.
McCaw, Jr. //
lye Vice President/'
Secretary
STATE OF WASHINGTON )
) es:
County of King )
On th~s ,4 day of , '~{G] , 1984, before me,
a Notary Public ~--a~d for the Sta%e W~ington, personally
appeared John E. McCaw, Jr., known to ~to be the Executive
Vice President/Secretary of McCaw BCe Communications, Inc.,
the corporation that executed the within and foregoing document,
and acknowledged the said document to be the free and voluntary
act and deed of said corporation for the uses and purposes theme-
in mentioned and on oath stated that he was authorized to execute
said document.
WITNESS my hand and the official seal affixed the day
and year first above written.
NOTA~A~/'~BL~, in and for the
State ~f WaShington, residing
Dian JonesC~ Secretary
GALINDO ENGINEERS AND PLANNERS
~09
4103 S. Texas Avenue, Suite 204 P.O. Box 3322 Bryan, Texas 77805 ~f(3) 260-9191
0.7500 Acre Tract
Chimney Hill Retail Plaza
College Station, Texas
Being a 0.7500 acre (32,676, s.f.) tract or parcel of land and being
part of Block 1, The Fed Mart Development Corporation Subdivision,
College Station, Texas, recorded in Volume 331, Page 135, Deed
Records, Brazos County, Texas, and being more particularly
described as follows:
BEGINNING at the southeasternmost corner of said Block I, at an
iron rod marking the intersection of the northerly right of way
line of University Drive and the westerly right of way line of
Fed Mart Drive;
THENCE S 61o32'06,'' W along the northerly right of way line of
University Drive for a distance of 136.00' to an iron rod;
THENCE N 28°27"56" W for a distance of 26.00' to an iron
THENCE N 6,1°29'57" W for a distance of 187.59' to an Iron rod;
THENCE N 6,6029'02.' E
the intersection with
Drive;
THENCE along the westerly
a distance of 85.60' to an
THENCE continuing along
rod;
for a distance of 16,2.17' to an iron rod at
the westerly right of way Il'ne of Fed Mart
right of way
iron rod|
line of Fed Mart Drive for
the westerly
right of way line of Fed
Mart Drive which is a curve to the right with the following data:
chord 135.26', chord bearing S 36°17~23" E, radius = 6,96.71', to
an iron rod;
THENCE S 28o27'56'' E continuing along the westerly right of way
line of Fed Mart Drive for a distance of 31.00' to an iron rod
which is the POINT OF BEGINNING containing 0.7500 acre~. ($2,676,s.f.)
approximately.
R. a. Gallndo, R/P.S. # 2588
May 7, 1986,
EXHIBIT A