Loading...
HomeMy WebLinkAbout1984-1546 - Ordinance - 09/27/1984ORDINANCE NO. 1546 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 (NCity")~ WHEREAS, on October 11, 1983, McCaw Midwest Communications, Inc. entered into a Merger Agreement with Home Theatres, Incor- porated, 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 serv- ices 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 alterna- tives 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 specifiedl -1- Ordinance No. 1546 WHEREAS, on May 7 and May 9, 1984, McCaw B.C.S. Communica- tions, Inc., agreed by letter, which is a part of the permanent public record, that they would make additional enforceable com- mitments to the City of College Station. The City of College Station City Council at that time accepted the commitments with the stipulation that at a later date they would be incorporated into a new ordinance, which would supercede Ordinance No. 1514 passed and adopted on May ]0, ]984; and WHEREAS, the City Council has reviewed the amended ordinance and held a public hearing hereon; BE IT ORDAINED BY THE CITY OF COLLEGE STATION, TEXAS: SECTION 1. There is hereby granted to McCaw BCS Communica- tions, 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, ampli- fying and distributing television and FM radio signals to said City and inhabitants thereof, except its central receiving sta- tion or microwave towers shall not be so located. SECTION 2. That poles shall be so erected as not to inter- fere 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 qual- ity 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, and in the exercise of its regulatory authority granted by the federal government to establish stan- dards for the quality of cable service, provided that such rules and regulations do not conflict with the Charter or this fran- chise. This franchise may be cancelled following written notice to Company setting forth the defaults claimed, and a public hear- ing 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 Ordinance No. 1546 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 infor- mation and Company's delivery of same and upon passage of same, the Company shall present necessary back-up information for re- view 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 analy- sis of such information by the City shall be at City expense. The following definitions are adopted herein: "Cable Communication Systemr Cable Television Systemw" or "System" sometimes referred to as "Cable TV Systems"w CATV System"~ or "Broadband Communications Networks" means a system of antennas, cables, amplifiers, towers, microwave links, cable-casting studios, and any other conductors, terminals, converters, equipment or facili- ties, designed and constructed for the primary purpose of distributing video programming to subscribers and the secondary or additional purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital, or other forms of electronic or electri- cal signals, whether owned, rented, leased or lease purchased by the Company. "Homes" means any permanent or temporary housing units, including single family detatched homes, multi-family dwelling units, mobile homes, or modular homes. "Programming Costs" means the amount paid each month to program suppliers of satellite services such as Home Box Office, Cable News Network, etc. "Bad Debt Write-Off" means the amount by which Accounts Receivable are reduced as the result of unpaid receivables from subscribers which have been -3- 0 337 Ordinance No. 1546 disconnected and every reasonable attempt made to collect balance due. "Governmental Taxes" means those taxes imposed by Federal, State and City Government other than franchise fees in connection with subscriber bills, which are passed through to subscribers, such as sales tax, excise tax, etc. "Copyright Fees" means those fees paid the Copyright Tribunal (CRT) as calculated on the semi-annual Statement of Accounts as provided for under Federal Statute. 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. A reduction in number of signals offered unless accompanied by a decrease in rates will be considered an increase in rates and subject to the procedures for rate increase specified above. SECTION 4. All rights granted and held under this ordinance are subject 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 Commu- nications Commission. SECTION 5. Ail work done in connection with the construc- tion, 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 incon- sistent 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, without 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 prop- erty;, and the City is to be the sole judge of the practicability of placing such poles in such districts on cross streets. All poles shall be placed, and all excavations made, and all other construction work in the streets, shall be so carried on as to Ordinance No. 1546 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 representative. SECTION 6. The Company shall at all times furnish its serv- ices 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 following line extension policy and sufficient to meet all reasonable demands without undue interruptions. The Company shall produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on a typical standard produc- tion TV set in good repair, and as typical of the state of art. The Company shall transmit signals of adequate strength to produce good pictures with good sound to all outlets without causing cross-modulation in the system or interfering with other electrical or electronic systems. The Company shall limit failures to a minimum by locating and correcting malfunctions properly, but in no event longer than forty-eight (48) hours after notice. Whenever service is inter- rupted to any subscriber for a period of time in excess of forty-eight (48) hours after notice by the subscriber, the sub- scriber shall receive a rebate of the subscriber's monthly serv- ice fee for each day or part thereof between the end of forty- eight (48) hours and the time service is restored to proper standards. However, the Company shall not be responsible for interruptions to service in excess of forty-eight (48) hours if these interruptions are the result of force majeure. 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 Der underground mile. In areas below that minimum density, homes may receive residential services 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 under- ground 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 subscrib- er(s). The Company will bear its pro rata share of the then -5- Ordinance No. 1546 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. If at the end of a twenty-four (24) month period following completion of construc- tion, the number of dwelling units completed within the line extension area is equal to or greater than the prescribed density for aerial and/or underground construction, McCaw will rebate to the developer fifty percent (50%) of the construction costs. 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 bequn. 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. Once the aformentioned denisty requirements are satisfied, the Company shall be obligated to provide residential services to qualified areas within ninety (90) calendar days of a request. If construction is not completed within ninety (90) days due to circumstances not under the control of McCaw, the Company will not be in violation of this ordinance. COMPLAINT AND SERVICE LOG. The Company shall furnish to the City upon request a log of all trouble calls. The Company shall furnish to the City on a semi-annual basis a log of all trouble calls. Said log shall contain information in convenient form, sufficient to identify the date, area, subscriber, nature of call and resolution thereof. The Company will summarize trouble calls on a monthly basis and make available to the City the monthly suz~aries. 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. The methodology for this community needs survey shall be approved by the City Council prior to its execution. 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 desir- ing service. The Company currently furnishes and shall continue to furnish to users a minimum of twelve (12) signals or cha~nels. -6- 0434 0 Ordinance No. 1546 The minimum or basic selection will include at least one station from each of the major networks (subject to availability) and all full power local stations, including the Public Broad- casting System station at Texas A&M University. 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, which- ever 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 prevent 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 Com- pany'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 obli- gations 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 opera- tion of its cable television business in the City. SECTION 12. The Company shall at all times defend, indemni- fy, 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 pay- ments made under Workmen's Compensation laws, which may arise out of or be caused by the erection, construction, replacement, re- -7- Ordinance No. 1546 moral, maintenance, and operations of Company's cable television system, and resulting from or by any negligence, fault, or mis- conduct 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 ($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 addi- tional 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 Sta- tion. 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: ae 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 sig- nals 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 Television stations in existence at the effective date of this ordinance. Do Provided that performance of the obligations created in this ordinance to provide first-class cable service of maximum efficiency shall be governed by any technical rules and regulations pertaining to the quality of cable television transmission of television and radio as estab- lished by the Federal Communications Commission, Section 76, Sub-part K. At the same time this Ordinance No. 1546 ordinance is enacted, should the Federal Communi- cations Commission establish more rigorous or comprehensive technical rules and regulations governing cable TV during the terms of this ordi- nance, the City shall at its own discretion add these rules and regulations to the requirements of the Company. Should the Federal Communica- tions Commission eliminate any technical rules and regulations during the term of this ordi- nance, such eliminations shall have no effect on the obligations of the Company to the City under this ordinance. Upon request, Company shall provide a free con- nection of this basic cable service to all city owned public buildings if cable service is avail- able at that location. 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. The public school and the City shall pay one-half of the cost associated with connecting to the cable system for purposes of telecasting, as pro- vided in Section B and Section F above. The Company shall bear one-half of said costs. 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 here- under, 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 two percent (2%) of the gross revenues. Gross revenues are defined as revenues from monthly subscribers' fees received for basic and movie services -9- Ordinance No. 1546 exclusive of programming cost, actual bad debt write-off, and governmental taxes and copyright fees imposed on services furnished by Company which are collected by Company from the subscriber. 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 repub- lished 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 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 ordi- nance. 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 majority 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. Ordinance No. 1546 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. SECTION 19. That this ordinance supercedes and replaces Ordinance No. 1514 passed and adopted on May 10, 1984. 1984. PASSED, ADOPTED and APPROVED this 27th day of September ATTEST City Sec re~ First Consideration & Approval: Second Consideration & Approval: Third Consideration & Approval: September 12, 1984 September 13, 1984 September 27~ 1984 Date of Publication in the EAGLE: -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACCEPTANCE OF FRANCHISE McCaw SCS Communications , Inc., unconditionally accepts and assumes all the terms and conditions of City of College Station Franchise Ordinance No. 1546 amending and replacing Ordinance No. 1514 and promises to comply with and abide by all of its provisions, terms and conditions. S1002D21 Dian Jones, ~ Secretary THE CITY OF IC~LLEGE STATION ,TEXAS October 16, 1984) McCAW BCS COMMUNICATIONS, INC. - Ex~dutive Vice President MONROe- & PERRY REQUEST OF ASSIGNMENT OF AGREEMENT The undersigned, McCaw BCS Com~unications, Inc., a Texas corporation, hereby requests the assignment of the Pole Use Agreement between Community Cablevision Corporation and the City of College Station, Texas, dated July 31, 1970, from Community Cablevision Corporation to McCaw BCS Communications, Inc. The undersigned acknowledges that it agrees to be obligated under the terms and conditions of said Agreement. DATED as of the ~"FA. day of October, 1984. B1004H14 MCCAW BCS COMMUNICATIONS, INC. Recei ved: City Sec~J~lry THE CITY'I~F COLLEGE STATION, TEXAS (October 15, 1984) CONSENT TO ASSIGNMENT OF AGREEMENT The undersigned, City of College Station, Texas, hereby consents to the assignment of the Pole Use Agreement, dated July 31, 1970, between Com~aunity Cablevision Corporation and the City of College Station, Texas, from Community Cablevision Corporation to McCaw BCS Communications, Inc., a Texas corporation. DATED as of the~ ~__.~ day of October, 1984. ATTEST: City Sec r_~j~ry B1004H15 CITY OF COLLEGE STATION, TEXAS City Manaqer