§ 14. CITY OF SANTA FE CABLE TELEVISION SYSTEM
A.
DEFINITIONS
For the purpose of this section, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. 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:
(1)
Affiliate means an entity which owns or controls, is owned or controlled by, or is under common ownership with Grantee.
(2)
Basic cable is the tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.
(3)
Cable Act means the Cable Communications Policy Act of 1984 as amended.
(4)
Cable Service means (i) the one-way transmission to subscribers of video programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such video programming or any other lawful communication service.
(5)
Cable System means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other communications equipment that is designed to provide cable service and other service to subscribers.
(6)
FCC means Federal Communications Commission, or successor governmental entity thereto.
(7)
Franchise shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.
(8)
Franchising Authority means the City of Santa Fe, or the lawful successor, transferee, or assignee thereof.
(9)
Grantee means THE MECA CORPORATION, or the lawful successor, transferee, or assignee thereof.
(10)
Gross Revenues means the monthly cable service revenues received by Grantee from subscribers of the cable system inclusive of franchise fees received from subscribers, basic service revenues, pay service revenues and local advertising revenues; provided, however, that such phrase shall not include; (i) revenues received from any national advertising carried on the cable system; (ii) any taxes on cable service which are imposed on any subscriber thereof by any government unit or agency, and which are collected by the Grantee on behalf of such governmental unit or agency.
(11)
Person means an individual, partnership, association, joint stock company, trust corporation, or governmental entity.
(12)
Public Way shall mean the surface of, and space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the service area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of installing, operating, repairing and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements of rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing or transmitting Grantee's cable service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments, and other property as may be ordinarily necessary and pertinent to the cable system.
(13)
Service Area means the present municipal boundaries of the Franchising Authority, and shall include any addition thereto by annexation or other legal means.
(14)
Service Tier means a category of cable service or other services, provided by Grantee and for which a separate charge is made by Grantee.
(15)
Subscriber means a person or user of the cable system who lawfully receives cable services or other service therefrom with Grantee's express permission.
(16)
Video Programming means programming provided by, or generally considered comparable to programming provided by a television broadcast station.
(Ordinance No. 05-92 of August 13, 1992, Sec. I)
B.
GRANT OF FRANCHISE
(1)
Grant
The city hereby grants to Grantee a non-exclusive franchise which authorizes the Grantee to construct and operate a cable system and offer cable service and other services in, along, among, upon, across, above, over, under, or in any manner connected with public ways within the service area and for that, purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any public way and all extensions thereof and additional thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system.
(2)
Term
The franchise granted pursuant to this section shall be for an initial term of fifteen (15) years from the effective date of the franchise as set forth in subsection (3) unless otherwise lawfully terminated in accordance with the terms of this section.
(3)
Acceptance; Effective Date
Grantee shall accept the franchise granted pursuant hereto by signing this section and filing same with the city clerk or other appropriate official or agency of the Franchising Authority within sixty (60) days after the passage and final adoption of this section. Subject to the acceptance by Grantee, the effective date of this section shall be the sixtieth day after its passage and final adoption.
(4)
Favored Nations
In the event the Franchising Authority enters into a franchise, permit, license, authorization or other agreement of any kind with any other person or entity other than the Grantee for the purpose of constructing or operating a cable system or providing cable service to any part of the franchise area which contains terms more favorable to such person or entity in any regard than similar provisions of this section, then the Franchising Authority shall amend this section to be effective as of the effective date of the other franchise, permit, license authorization or other agreement, so as to give the Grantee the benefit of any such more favorable terms.
(Ordinance No. 05-92 of August 13, 1992, Sec. II)
C.
STANDARDS OF SERVICE
(1)
Conditions of Street Occupancy
All transmission and distribution structures, poles, other lines, and equipment installed or erected by the Grantee pursuant to the terms hereof shall be so located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said public ways.
(2)
Restoration of Public Ways
If during the course of Grantee's construction, operation, or maintenance of the cable system there occurs a disturbance of any public way by Grantee, it shall, at its expense, replace and restore such public way to a condition reasonably comparable to the condition of the public way existing immediately prior to such disturbance.
(3)
Relocation at Request of Franchising Authority
Upon its receipt of reasonable advance notice, not to be less than five (5) business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the public way, or remove from the public way, any property of the grantee when lawfully required by Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, the Grantee shall in all cases have the right of abandonment of its property. If public funds are available to any company other than the Grantee using such street, easement, or right-of-way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to the Grantee.
(4)
Relocation at Request of Third Party
The Grantee shall, on the request of any person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided:
(a)
the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the Grantee, making such payment in advance; and
(b)
the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary wire changes.
(5)
Trimming of Trees and Shrubbery
The Grantee shall have the authority to trim trees or other natural growth overhanging any of its cable system in the service area so as to prevent branches from coming in contact with the Grantee's wires, cables or other equipment. The Grantee shall reasonably compensate the Franchising Authority or property owner for any damages caused by such trimming, or shall, at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the system undertaken by Grantee. Grantee agrees to use tree trimmers approved by the Franchising Authority. Such replacement shall satisfy any and all obligations Grantee may have to the Franchising Authority and the property owner pursuant to the terms of this section.
(7)
Aerial and Underground Construction
In those areas of the service area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the Grantee likewise shall construct, operate and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving Grantee's cable and other equipment without technical degradation of the cable system's signal quality. In those areas of the service area where the transmission or distribution facilities of the respective public utilities providing telephone communications, and electric services are both aerial and underground, Grantee shall have the sole discretion to construct, operate and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this subsection shall require Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this subsection, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this section, Grantee shall only be required to construct, operate and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time that such are placed underground.
(8)
Required Extensions of Service
The cable system as constructed as of the date of the passage and final adoption of this section substantially complies with the material provisions hereof. Grantee is hereby authorized to extend the cable system as necessary, as desirable, or as required pursuant to the terms hereof within the service area. Whenever Grantee shall receive a request for service from at least ten (10) subscribers for aerial construction or thirteen (13) subscribers for underground construction, within 1320 cable bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its cable system to such subscribers at no cost to said subscribers for system extension, other than the usual connection fees for all subscribers; provided that such extension is technically feasible, or as provided for under subsection (9) of this section.
(9)
Subscriber Charges for Extensions of Service
No subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a subscriber's request to locate his cable drop underground, existence of more than one hundred fifty (150) feet of distance from distribution cable to connection of service to subscribers, or a density of less than ten (10) subscribers for aerial construction or thirteen (13) subscribers for underground construction, per 1320 cable bearing strand feet of trunk or distribution cable, cable service or other service may be made available on the basis of capital contribution in aid of construction, including cost of material, labor and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by Grantee and subscribers in the area in which cable service may be expanded, Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential subscribers per 1320 cable-bearing strand feet of its trunks or distribution cable, and whose denominator equals ten (10) subscribers for aerial construction or thirteen (13) subscribers for underground construction. Potential subscribers will bear the remainder of the construction and other costs on a pro-rata basis. Grantee may required that the payment of the capital contribution in aid of construction borne by such potential subscribers be paid in advance.
(10)
Service to Public Buildings
The Grantee shall provide without charge one (1) outlet of basic service to each of the Franchising Authority's office building(s), fire station(s), police station(s), and public school building(s) that are passed by its cable system. The outlets of basic service shall not be used to distribute or sell cable services in or throughout such buildings; nor shall such outlets be located in common or public areas open to the public. Notwithstanding anything to the contrary set forth in this subsection, the Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds one hundred fifty (150) cable feet, unless it is technically feasible and so long as it will not adversely affect the operation, financial condition, or market development of the cable system to do so, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of one hundred fifty (150) cable feet. In the event that additional outlets of basic service are provided to such buildings, the building owner shall pay the Grantee's time and material cost associated with the installation of such additional outlets.
(11)
Emergency Override
In the case of any emergency or disaster, the Grantee shall, upon request of the Franchising Authority, make available its facilities for the Franchising Authority to provide emergency information and instructions during the emergency or disaster period. To the extent allowed by applicable law, the Franchising Authority shall hold the Grantee, its agents, employees, officers and assigns hereunder, harmless from any claims arising out of the emergency use of its facilities by the Franchising Authority, including, but not limited to, reasonable attorneys' fees and costs.
(12)
Converter-Parental Lock
Grantee shall provide (by sale of lease) to subscribers, upon request, converters or trapping devices, equipped with a parental lock capable of securing one channel or all channels.
(Ordinance No. 05-92 of August 13, 1992, Sec. III)
D.
REGULATION BY FRANCHISING AUTHORITY
(1)
Franchise Fee
(a)
As compensation for administration of this franchise and grant of use of the public ways, Grantee shall pay to the Franchising Authority a franchise fee equal to five percent (5%) of gross revenues received by Grantee from the operation of the cable system, subject to subsection (c) below, on a quarterly basis; provided, however, that Grantee may credit against any such payments (i) any tax, fee, or assessment of any kind imposed by Franchising Authority or other governmental entity on a cable operator, or subscriber, or both, solely because of their status as such; (ii) any tax, fee, or assessment of general applicability imposed by Franchising Authority which is unduly discriminatory against cable operators or subscribers (including any such tax, fee, or assessment imposed, both on utilities and cable operators and their services), and (iii) any other special tax, assessment, or fee imposed by Franchising Authority such as a business, occupation, and entertainment tax. For purposes of this section, the three (3) month period applicable under the franchise for the computation of the franchise fee shall be a calendar quarter, unless otherwise agreed to in writing by the Franchising Authority and Grantee. The franchise fee payment shall be due and payable sixty (60) days after the close of the preceding calendar quarter. Each payment shall be accompanied by a brief report from a representative of Grantee showing the basis for the computation. In no event, shall the franchise fee payments required to be paid by Grantee exceed five percent (5%) of gross revenues received by Grantee in any twelve (12) month period, subject to subsection (c) below.
(b)
The initial payment of franchise fees under this section shall be due and payable by 30 November 1992, and shall be for the first three (3) calendar quarters of 1992. Thereafter, the payments shall be made as provided in subsection (a) above.
(c)
Should applicable law or regulations change so as to allow the franchise fee to be increased above the level of five percent (5%), the Grantee shall, upon request of the Franchising Authority, increase the fee to an amount not to exceed that which may be established by such law or regulations. Grantee may pass through to subscribers the amount of any increase in the franchise fee.
(d)
Additional costs to be borne by Grantee, with regard to franchise renewal or any other notice required hereunder, shall include all costs of publication of notices required pursuant to the City Charter, this section, the adoption of this section, or any local, state or federal law.
(e)
Payment by Grantee of franchise fees as provided herein shall not be considered in the nature of a tax, but shall be in addition to any and all federal, state, and local taxes, which are separate and distinct obligations of the Grantee.
(f)
No acceptance of any payment of franchise fees shall be construed as an accord and satisfaction of any claim the Franchising Authority may have for further or additional sums payable as a franchise fee or for the performance of any other obligation of Grantee. Franchising Authority may not more than once each year require a gross receipt examination certified by an independent auditor in order to verify proper franchise fee payment, subject to subsection (g) below.
(g)
Limitation on franchise fee actions. The period of limitation for recovery of any franchise fee payable hereunder shall be five (5) years from the date on which payment by the Grantee is due. Unless within five (5) years from and after said payment due date the Franchising Authority initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, such recovery shall be barred and the Franchising Authority shall be estopped from asserting any claims whatsoever against the Grantee relating to any such alleged deficiencies.
(2)
Rates and Charges
(a)
The Franchising Authority may not regulate the rates for the provision of cable service and other services, including, but not limited to, ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law including, but not limited to, the Cable Act and FCC rules and regulations relating thereto. From time to time, Grantee has the right to modify its rates and charges including, but not limited to, the implementation of additional charges and rates; provided, however, that Grantee shall give notice to the Franchising Authority of any such modifications or additional charges sixty (60) days prior to the effective date thereof, and at least thirty (30) days prior to the effective date thereof to subscribers. In addition, Grantee shall provide to the Franchising Authority, at least annually, a full schedule of its rates and charges.
(b)
In the event that change in applicable law or regulations results in rate increases being subject to approval of the Franchising Authority, the Grantee shall, subject to such applicable law, submit its request for rate increase in writing to the Franchising Authority. Franchising Authority will have ninety (90) days within which to either approve or disapprove such rate increase, failing which, Grantee shall automatically be allowed such rate increase. Nothing in this paragraph shall be construed to prevent Franchising Authority and Grantee from mutually agreeing to amend this agreement or provide for an alternative procedure for rate increase, including a procedure which allows Grantee to automatically increase rates a certain annual amount, subject to the stipulations of such amendment.
(3)
Renewal of Franchise
(a)
The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee's franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act (as such existed as of the effective date of the Cable Act), unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded, or repealed by the provisions of any subsequent provision of federal or state law.
(b)
This paragraph applies to a franchise renewal subject to Section 626 of the Cable Act as provided in subsection (a) above. In addition to the procedures set forth in said Section 626(a), the Franchising Authority agrees to notify Grantee of its preliminary assessments regarding the identity of future cable-related community needs and interest, as well as, the past performance of Grantee under the then current franchise term. The Franchising Authority further agrees that such a preliminary assessment shall be provided to the Grantee prior to the time that the four (4) months period referred to in subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary set forth in this subsection, the Grantee and Franchising Authority agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current franchise and the Franchising Authority may grant a renewal thereof. The Grantee and the Franchising Authority consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act.
(4)
Conditions of Sale
Except to the extent expressly required by federal or state law, if a renewal of Grantee's franchise is denied and the Franchising Authority either lawfully acquires ownership of the cable system or by its actions lawfully effects a transfer of ownership of the cable system to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the cable system valued as a going concern.
Grantee and Franchising Authority agree that in the case of a lawful revocation of the franchise, at Grantee's request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its cable system to a qualified third party. The Franchising Authority further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assigned of its cable system, which is reasonably acceptable to the Franchising Authority, Grantee and Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law, it being further agreed that Grantee's continued operation of its cable system during the six (6) month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the Franchising Authority or the Grantee. Notwithstanding anything to the contrary set forth in this subsection, neither Franchising Authority nor Grantee shall be required to violate federal or state law.
(5)
Transfer of Franchise
Grantee's right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an affiliate, without the prior written consent of the Franchising Authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the franchise or cable system in order to secure indebtedness.
(Ordinance No. 05-92 of August 13, 1992, Sec. IV)
E.
COMPLIANCE AND MONITORING
(1)
Testing for Compliance
The Franchising Authority may perform technical tests of the cable system during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of the Grantee or the cable system in order to determine whether or not the Grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such test may be undertaken only after giving Grantee reasonable notice thereof, not to be less than two (2) business days, and providing a representative of Grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the Grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the Grantee. In the event that such testing demonstrates that Grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the Franchising Authority. Except in emergency circumstances, the Franchising Authority agrees that such testing shall be undertaken no more than two (2) times a year in the aggregate, and that the results thereof shall be made available to the Grantee upon Grantee's request.
(2)
Books and Records
The Grantee agrees that the Franchising Authority may review such of its books and records, during normal business hours and on a nondisruptive basis, as are reasonably necessary to monitor compliance with the terms hereof, or as otherwise required by law. Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. Subject to applicable law, the Franchising Authority agrees to treat any information disclosed by the Grantee to it as confidential, and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof.
(3)
Subscriber Survey
The Grantee shall, on an annual basis, generally survey its subscribers concerning the Grantee's performance. Grantee shall report the results of said survey to the Franchising Authority within thirty (30) days after the conclusion of the survey.
(4)
Complaint Procedure
(a)
Grantee shall maintain a publicly listed toll free phone line to enable customers to communicate with Grantee twenty-four (24) hours a day, seven (7) days a week, provided that outside of usual business hours, this may be accomplished through an answering service, but not an answering machine. A written log shall be maintained listing all complaints and their dispositions.
(b)
The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice to the Franchising Authority and to each affected subscriber and shall occur during periods of minimum use of the system. A written log shall be maintained for all service interruptions. Except where a subscriber has damaged the system's equipment, upon request by the subscriber, the subscriber's account shall be credited if the subscriber is without service for any reason for a period exceeding twenty-four (24) hours after the Grantee has received notice of an interruption of service. If the Grantee uses a service contract, it shall contain a notice advising the subscriber of the foregoing right to a credit. If the Grantee does not use a service contract, this notice shall be provided to subscribers as a part of the Grantee's initial subscriber information materials.
(c)
The Grantee shall maintain a repair force of technicians that shall respond to subscriber complaints or requests for service under normal business conditions within twenty-four (24) hours after receipt of the complaint or the request, to the extent possible.
(d)
In the event a subscriber does not obtain satisfactory resolution of a compliant through the foregoing procedures, such subscriber shall have recourse to refer the complaint to an administrator designated by the city manager to assist in the resolution of the compliant. All subscribers, programmers, and members of the general public may bring any complaint regarding the system or the Grantee before the city council, where there is evidence that the Grantee has not settled the complaint to the satisfaction of the person initiating the complaint.
(5)
Reviews
Subject to applicable laws, the Franchising Authority reserves the right to adopt rules and regulations controlling the procedures and subjects for periodic reviews and evaluations of the Grantee and the system to the extent that doing so will not materially affect Grantee's rights and obligations set out under this section. In the absence of any additional rules and regulations, the Grantee shall be subject to the procedures and subjects described in this subsection. Periodic review sessions shall be scheduled within the thirty (30) days of the 6th and 12th anniversary dates of the effective dates of the franchise. The Franchising Authority may require, at its discretion, system performance evaluation sessions at any time during the term of the franchise, but not more than one (1) time in any twelve-month period, or as required by federal or state law. All evaluation sessions shall be published in the same way as a legal notice. To assist in its review and evaluation, the Franchising Authority may, at the Franchising Authority's expense, enlist an independent consultant to conduct an analysis of the system and its performance and to submit a report of such analysis to the Franchising Authority. Topics which may be discussed at any evaluation session may include, but shall not be limited to: franchise fees, services, application of new technologies, system technical performance, access channels and related facilities and equipment, subscriber complaints, privacy, amendments, subsequent legal development, including judicial and FCC rulings, and Grantee or Franchising Authority rules. During a review and evaluation by the Franchising Authority, the Grantee shall fully cooperate with the Franchising Authority and shall provide, subject to subsection E (2), without cost, such information and documents necessary to the enforcement of the franchise as the city manager may request.
(Ordinance No. 05-92 of August 13, 1992, Sec. V)
F.
INSURANCE, INDEMNIFICATION, AND BONDS OR OTHER SURETY
(1)
Insurance Requirements
Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, comprehensive general liability insurance in the amount of $1,000,000 combined single limit for bodily injury, and property damage. Said insurance shall designate the Franchising Authority as an additional insured. Such insurance shall be non-cancellable except upon thirty (30) days prior written notice to the Franchising Authority.
(2)
Indemnification
The Grantee agrees to indemnify, save and hold harmless, and defend the Franchising Authority, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the Grantee's construction, operation, or maintenance of its cable system, including, but not limited to, reasonable attorney's fees and costs.
(3)
Bonds and Other Surety
Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the franchise or continuing its existence. The Franchising Authority acknowledges that the legal, financial, and technical qualifications of Grantee are sufficient to afford compliance with the terms of the franchise and the enforcement thereof. Grantee and Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the subscribers in the form of increased rates for cable services. In order to minimize such costs, the Franchising Authority agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefor. The Franchising Authority agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than $10,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of the franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the Franchising Authority agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Such reasons must demonstrate a change in the Grantee's legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the franchise or afford compliance therewith.
(Ordinance No. 05-92 of August 13, 1992, Sec. VI)
G.
ENFORCEMENT AND TERMINATION OF FRANCHISE
(1)
Notice of Violation
In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the franchise, it shall notify Grantee in writing of the exact nature of the alleged non-compliance.
(2)
Grantee's Right to Cure or Respond
Grantee shall have thirty (30) days from receipt of the notice described in subsection (1) above to:
(a)
Respond to the Franchising Authority contesting the assertion of non-compliance, or
(b)
To cure such default or,
(c)
In the event that by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed.
(3)
Public Hearing
In the event that Grantee fails to respond to the notice described in subsection (1) above pursuant to the procedures set forth in subsection (2) above, or in the event that the alleged default is not remedied within sixty (60) days after the Grantee is notified of the alleged default pursuant to subsection (1) above, the Franchising Authority shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the Franchising Authority. The Franchising Authority shall notify the Grantee with an opportunity to be heard.
(4)
Enforcement
Subject to applicable federal and state law, in the event the Franchising Authority, after such meeting, determines that Grantee is in default of any provision of the franchise, the Franchising Authority may:
(a)
Foreclose on all or any part of any security provided under this franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the Franchising Authority reasonably determines is necessary to remedy the default;
(b)
Commence an action at law for monetary damages or seek other equitable relief;
(c)
In the case of a substantial default of a material provision of the franchise, declare the franchise agreement to be revoked; or
(d)
Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.
The Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the Franchising Authority to enforce prompt compliance.
(5)
Acts of God
The Grantee shall not be held in default or noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating thereto, where such non-compliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.
(6)
Non-Waiver
The failure of the Franchising Authority at any time to enforce or insist upon compliance with any of the provisions of this section shall not constitute a waiver of such provisions, but the same shall be and remain at all times in full force and effect, and may be subsequently enforced by Franchising Authority, subject to subsection D(1)(g).
(Ordinance No. 05-92 of August 13, 1992, Sec. VII)
H.
UNAUTHORIZED RECEPTION
In addition to those criminal and civil remedies provided by state and federal law, it shall be a misdemeanor for any person, firm, or corporation to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the cable system without the express consent of the Grantee. Further, without the express consent of Grantee, it shall be a misdemeanor for any person to tamper with, remove, or injure any property, equipment, or part of the cable system or any means of receiving cable service or other services provided thereto. Subject to applicable federal and state law, the Franchising Authority shall incorporate into its criminal code, if not presently a part thereof, criminal misdemeanor law which will enforce the intent of this subsection.
(Ordinance No. 05-92 of August 13, 1992, Sec. VIII)
I.
PUBLIC ACCESS
The Grantee shall provide a municipal access channel for the use of the Franchising Authority. Said channel, because of the multiple communities served from a single service facility (La Marque Head-End), will be on a shared basis with other commonly served communities. The Franchising Authority has the right to designate, at its discretion, any entity it chooses to provide programming for the shared time on this channel. The Franchising Authority will notify the Grantee of the entity it wishes to designate in writing before access is granted by Grantee.
(Ordinance No. 05-92 of August 13, 1992, Sec. IX)
J.
MISCELLANEOUS PROVISIONS
(1)
Preemption
If the FCC, or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by the Franchising Authority, the jurisdiction of the Franchising Authority shall cease and no longer exist.
(2)
Actions of Franchising Authority
In any action by the Franchising Authority or representative thereof, mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.
(3)
Notice
Unless expressly otherwise agreed between the parties, every notice or response to be served upon the Franchising Authority or Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U. S. Postal Service.
The notice or responses to the Franchising Authority shall be addressed as follows:
City of Santa Fe
P. O. Box 950
4925 Main Street
Santa Fe, Texas 77510-0950The notices or responses to the Grantee shall be addressed as follows:
The Meca Corporation
ATTENTION: System Manager
P. O. Box 1009
Kemah, Texas 77565with copy to:
The Meca Corporation
ATTENTION: Legal Operations
P. O. Box 5630
Denver, Colorado 80217The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other.
(4)
Descriptive Headings
The captions to sections contained herein are intended to solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
(5)
Severability
If any section, sentence, paragraph, term or provision hereof is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise or any renewal or renewals thereof.
(Ordinance No. 05-92 of August 13, 1992, Sec. X)