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HomeMy WebLinkAboutO-1998-2260 . - September 16, 1998 Ms. Martha A. Gillett City Secretary 604 W. Fairmont Parkway LaPorte, TX 77571 VIA FEDERAL EXPRESS Dear Ms. Gillett: Pursuant to Ordinance No. 98-2260, approved on second reading by the City Council of the City of LaPorte on August 24, 1998, enclosed please find our acceptance of the franchise, in compliance with Section 31. Please let me know if you have any questions regarding this acceptance. Thank you for your assistance in this process. Sincerely, ---.. Teri Scott Executive Director of Franchising TCI Central, Inc. Enclosure c: Sherry Geamer Patty Conroy TCI Central, Inc. 4700 So. Syracuse St.. Suite 1100 Denver, Colorado 80237-2722 (303) 267-4200 FAX (303) 267-4299 An Equal Opportunity Employer . e UNCONDITIONAL ACCEPTANCE OF ORDINANCE 98 - 2260. To the Honorable Mayor and the City Council of the City of La Porte, Texas: For itself, its successors and assigns, Tete-Vue Systems, Inc., a Washington Corporation, hereby accepts the attached Franchise and agrees to be bound by all of its terms, conditions, and provisions, subject to applicable law. By~el~V~p Name: Scott Biiqe1 Title: Senior vice President Dated this the 16th day of September , 1998. TCI Central, Inc. 4700 So. Syracuse St., Suite 1100 Denver, Colorado 80237-2722 (303) 267-4200 FAX (303) 267-4299 An Equal Opportunity Employer . . ASKINS & ARMSTRONG. P. C. ATTORNEYS AT LAW 702 W. F"AIRMONT PARKWAY P.O. BOX 1218 LA PORTE. TEXAS 77572-1218 ORIGINAL KNOX W. ASKINS JOHN D. ARMSTRONG CHARLES R. HUBER. JR. BOARO CERTlnEO . CIVIL TRIAL LAW TEXAS BOARD OF' LEGAL SPECIALIZATION TELEPHONE 281 471-1886 TELECOPIER 281 471-2047 August 13, 1998 Hon. Mayor & City Council City of La Porte City Hall La Porte, Texas Re: TCI Franchise Renewal Second Reading, and TCI Transfer of Franchise Gentlemen: I am enclosing for the August 24, 1998, City council agenda, a form of ordinance for second reading of the franchise renewal for TCI (Tele-Vue Systems, Inc.), which includes the addition of a provision that TCI shall have a customer service office at least within ten miles of the corporate limits of the City of La Porte. otherwise, the agreement is in the form passed on first reading on July 13, 1998. Thereafter, I have enclosed for consideration by City Council a form of ordinance approving the transfer of the franchise, from Tele-Vue Systems, Inc., to Texas Cable Partners, L.P. Representatives of the franchisee will be present at the August 24th meeting to answer any questions which City Council ma have, on the transfer of the franchise. [Z;~lY' 'Knox W. Askins City Attorney City of La Porte KWA: sw Enclosures 'e e ORIGINAL ORDINANCE NO. 98-..zzn.o AN ORDINANCE RENEWING THE GRANT OF A NON-EXCLUSIVE FRANCHISE TO TELE- VUE SYSTEMS, INC., ITS SUCCESSORS AND ASSIGNS, TO CONTINUE OPERATION OF THE RIGHT, PRIVILEGE, AND FRANCHISE TO ERECT, MAINTAIN AND OPERATE A CABLE TELEVISION SYSTEM IN THE CITY OF LA PORTE, TEXAS; CONTAINING FINDINGS AND OTHER PROVISIONS RELATING TO THE GRANTING OF TinS FRANCHISE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. WHEREAS, on January 9. 1980, the City of La Porte, Texas (the "City") passed and approved Ordinance No. 1775 granting a cable television franchise (the "Franchise") to Kip-Lee CATV, Inc. ("Kip-Lee"); and WHEREAS, on March 14, 1988, the City passed and approved Ordinance No. 1175-A consenting to the transfer of the Franchise from Kip-Lee to Prime Cable of Ft. Bend, L.P., a Delaware limited partnership ("Prime"); and WHEREAS, on March 18, 1996, the City passed and approved Ordinance No. 96-2095 consenting to the transfer of the Franchise from Prime to Tele-Vue Systems, Inc., a Washington corporation ("Grantee"); and WHEREAS, pursuant to the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, and Section 4 of the Franchise, Grantee has requested that the City renew the Franchise; and WHEREAS, the City Council of the City of the City of La Porte has concluded full and open public hearings during which it has identified the future cable related community needs and interests and has reviewed the performance of Grantee under the Franchise, and during which it has also reviewed the adequacy of the ordinance granting the Franchise; and WHEREAS, the City Council of the City of La Porte has found that Grantee has substantially complied with the material terms of the Franchise and with applicable law; that the quality of Grantee's service, including signal quality, response to consumer complaints and billing practices, has been reasonable in light of community needs; and that Grantee has the financial, legal and technical ability to provide those services, and facilities and equipment necessary to meet the future cable related community needs and interests. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. SHORT TITLE. This ordinance shall be known and may be cited as the City of La Porte-Tele-Vue Cable Television Franchise Ordinance. 1 e e Section 2. DEFINITIONS. For the purposes of this Franchise the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The headings contained in this Franchise are to facilitate reference only, do not form a part of this Franchise, and shall not in any way affect the construction or interpretation hereof. Terms such as "hereby", "herein", "hereof', "hereinafter", "hereunder", and "hereto", refer to this Franchise as a whole and not to the particular sentence or paragraph where they appear, unless the context otherwise requires. The term "may" is permissive; the terms "shall" and "will" are mandatory, not merely directory. All .references to any gender shall be deemed to include all others, as the context may require. "Anniversary Date" shall mean the date on which this Franchise becomes effective and each annual anniversary thereof. "Anniversary Year" shall mean the twelve month period following an Anniversary Date. "Basic Cable Service" shall mean any service tier(s) offered or provided to all of its Subscribers, which include(s) the transmission of local (greater Houston metropolitan area) television broadcast signals. "Cable Act" shall mean the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and as may be further amended from time to time. "Cable Service" shall mean the one-way transmission to Subscribers of video programming or other programming service that a cable operator makes available to all Subscribers generally, and 2 e e Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed and constructed for the primary purpose of providing Cable Service which includes video programming and which is provided to multiple Subscribers within the community, but such tenn does not include: 1. a facility that serves only to retransmit the television signals of one or more television broadcast stations; 2. a facility that serves Subscribers without using any public right-of-way; 3. a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable Act, except that such facility shall be considered a Cable System (other than for purposes of Section 621 (c) of the Cable Act) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; 4. an open video system that complies with Section 653 of the Cable Act; or 5. any facilities of any electric utility used solely for operating its electric utility system. "Channel" shall mean a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a video signal, an audio signal, a voice signal or a data signal. "City" shall mean the City of La Porte, Texas, a municipal corporation of the State of Texas. "City Council" shall mean the governing body of the City, or its designee. 3 e e "Converter" shall mean an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and which, by an appropriate Channel selector, also permits a Subscriber to view all signals delivered at designated dial locations. "Director" shall mean the Director of Finance, Administration Department, or any successor department, or his or her designee. "Educational Access" shall mean non-commercial educational programming produced and cablecast in accordance with the rules and procedures established by the City. "Expanded Cable Service" shall mean separate programming offered by the Grantee in addition to Basic Cable Service. "Federal Communications Commission" or "FCC" shall mean that agency as presently constituted by the United States Congress or any successor agency with jurisdiction over cable television matters. "Force Majeure" shall mean a strike, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, technical failure, sabotage or other events, where the affected party has exercised all due care in the prevention thereof to the extent that such causes or other events are beyond the control of the affected party and such causes or other events are without the fault or negligence of the affected party . "Franchise" means this document, which contains the specific provisions of the authorization granted by the City to Grantee for the construction and operation of a Cable System in the City, including the rights and obligations ofthe Grantee. "Government Access" shall mean non-commercial government programming produced and 4 e e cablecast in accordance with the rules and procedures established by the City. "Grantee" shall mean Tele-Vue Systems, Inc., a Washington corporation, or any Person who succeeds Tele-Vue Systems, Inc., in accordance with the provisions of this Franchise. "Gross Revenues" shall mean all revenues received by the Grantee from operating its Cable System to provide Cable Service in the City of La Porte, including, but not limited to, Basic Cable Service revenues, Expanded Cable Service revenues, Pay Television revenues, additional Cable Service revenues, advertising revenues, franchise fees collected from customers, and leased access revenues. Gross Revenues shall not include the following: 1. any taxes which are imposed on any Subscriber or Grantee by any governmental unit; 2. revenues resulting from the sale of non-addressable Converters or other retail equipment which is available from sellers other than the Grantee; 3. revenues from the studio production of programming; or 4. fees collected by Grantee from Subscribers to be paid to the FCC. "Pay Television" shall mean the delivery over the Cable System of programming to Subscribers for a fee or charge over and above the charge for Basic Cable Service or Expanded Cable Service, on a per-program, per-Channel or other subscription basis. "Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. "Public Access" shall mean non-commercial public programming produced and cablecast in accordance with the rules and procedures established by the City. "Service Area" shall mean all of the current area within the corporate limits of City, and any area hereafter annexed to, or consolidated with, City as provided in Section 5 herein. 5 e e "Street" shall mean the surface or the space above and below any public street, road, highway, alley, bridge, sidewalk, or other public place or way now or hereafter held by the City for the purpose of public travel and shall include other easements or rights-of-way now held or hereafter held by the City which shall, within their proper use and meaning, entitle the City and the Grantee to the use thereof for the purposes of installing or transmitting Cable System transmissions over poles, wires, cables, conductors, conduits, manholes, amplifiers, appurtenances, attachments, and other structures, equipment, and facilities as may be ordinarily necessary and pertinent to the Cable System. "Subscriber" shall mean any Person within the City who lawfully receives any Cable Service delivered by the Cable System. Section 3. GRANT OF AUTHORITY. There is hereby granted to Grantee the right, privilege, and franchise to have, acquire, construct, reconstruct, maintain, use, and operate in the Service Area a Cable System, and to have, acquire, construct, reconstruct, maintain, use, and operate in, over, under, and along the present and future Streets of the City poles, towers, anchors, wires, cables, electronic conductors, underground conduits, manholes, and other structures and appurtenances necessary for the construction, maintenance, and operation of the Cable System in the Service Area of the City. Grantee shall have the right and duty to provide Cable Service throughout the entire Service Area, subject to the limitations in Section 5 of this Franchise. Section 4. NON-EXCLUSIVE FRANCHISE. The rights, privileges, and franchise granted hereby are not exclusive and nothing herein contained shall be construed to prevent the City from granting any like or similar rights, privileges, and franchise to any other Person within all or any portion of the City, including the Service Area; provided, however, any such franchise shall be on terms and conditions no more favorable or less burdensome compared to this Franchise in 6 :~ e e like or similar circumstances. Section 5. ADDITIONS TO SERVICE AREA BY ANNEXATION OR OTHERWISE. 1. Subject to the provisions of Section 5(2) below, the Service Area shall include: (1) territory which is added by the City during the tenn of this Franchise and which is contiguous to the Service Area and; (2) non-contiguous territory which is served by the Grantee and which is subsequently added by the City during the tenn of this Franchise. 2. Whenever the Grantee shall receive a request for Cable Service from at least 15 residences within 1320 cable-bearing stand 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 other than the standard/non-standard charges for installation; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition, or market development of the Cable System. Section 6. PAYMENT TO THE CITY. 1. Amount and Time. As compensation for the right, privilege and franchise herein conferred, the Grantee shall pay to the City each year during the term of this Franchise a sum equal to three percent (3%) of the Grantee's Gross Revenues for such year, or portion thereof. Such franchise fee payments shall be made quarterly on or before each May 30, August 30, November 30, and February 28, for the most recently ended quarter. At the time such payments are made, the Grantee shall file with the Director a financial report showing in detail the components of Gross Revenues of the Grantee during the preceding quarter or portion thereof. The City reserves the right to increase the franchise fee up to 5% of Grantee's Gross Revenues per year, upon providing Grantee 120 days prior written notice. 7 e e 2. Right of Inspection of Records. The Director shall have the right to inspect the Grantee's records to determine whether the payments to the City have been computed properly, and to audit and recompute any and all amounts paid under this Franchise. Said audits shall be conducted no more often than annually, and the audit period shall not be any greater than the previous three (3) years. The Director shall give thirty (30) days written notice to Grantee of any such inspection, including a list of documents and records desired for review. Grantee shall provide access to such documents and records at a local area office. No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this Franchise or for the performance of any other obligation hereunder. 3. Other Payments to the City. The franchise fee payable hereunder shall be exclusive of, and in addition to, all ad valorem taxes, special assessments for municipal improvements, and other lawful obligations of the Grantee to the City. 4. Late Payment Penalty. Grantee shall pay a late penalty of twelve percent (12%) per annum, compounded daily, on franchise fee payments, or portions thereof, that are paid subsequent to the payment dates specified in Section 6(1) hereof. In the event the City identifies, as a result of an audit, amounts owed by the Grantee from prior periods, the Grantee shall pay a late penalty of ten percent (10%) per annum on the net underpaid amount identified, computed from the original due dates. Section 7. TERM OF FRANCHISE AND PERFORMANCE. 1. Term. Upon the filing with the City by Grantee of the written acceptance required herein, this Franchise shall be in full force and effect commencing sixty (60) days after its final passage and approval by the City Council and expiring ten (10) years after such effective date. 8 e e 2. Performance Evaluation. A. In order to assure that the Grantee is complying with the terms of this Franchise and the character, quality, and efficiency of service to be rendered, given, performed, and furnished under this Franchise, during the 3rd and 6th Anniversary Years of this Franchise the City Council may hold a public hearing or hearings for the purpose of reviewing the performance of the Grantee under the Franchise. B. At least sixty (60) days prior to any public hearing on this Franchise, the Director shall notify the Grantee in writing of the date, time and location of the hearing. Such notice shall also include any subjects the City would like Grantee to specifically report on at the hearing. Such subjects may include, but not be limited to: (i) compliance with the requirements regarding technical performance and testing, as provided in Section 9 hereof; (ii) compliance with the requirements for the Cable System capacity, as provided in Section 8 hereof; (iii) compliance with all requirements related to support for Public, Educational and Government Access Channels, as provided in Section 11 hereof; (iv) the development of new Cable Services; (v) any federal or state rulings relevant to the Franchise; (vi) a summary of all service interruptions during the preceding calendar year (other than scheduled interruptions or interruptions of a duration of less than two hours for all Subscribers or any interruptions which affected less than ten percent (10%) of all Subscribers); (vii) a summary of representative Subscriber complaints referred by the City during the preceding calendar year, including the number of Subscriber complaints received and the 9 e e actions taken by the Grantee in response thereto; (viii) compliance with the FCC customer service standards; and/or (ix) a statement as to whether there has been any substantial change from information or plans previously provided to the City. C. At any such hearing, the Grantee shall be entitled to all the rights of due process consistent with the City procedures, including but not limited to, the right to present evidence and the right to be represented by counsel. D. Unless specifically waived by the City Council, attendance of the Grantee's duly authorized representative at these public hearings shall be mandatory. E. City Council shall hear any interested Persons during such hearings and shall determine whether Grantee did reasonably comply with the terms and conditions imposed by this Franchise. F. All records and minutes of each of the performance evaluation hearings shall be retained by the City Secretary and be available for inspection throughout the term of the Franchise. G. Following any public hearing, Grantee shall make available to the City within thirty days of a written request, any additional records, documents, or other information as may be reasonably relevant to the City Council's review of Grantee's compliance with this Franchise. H. This section shall not be construed as limiting the City's right to monitor the Grantee's compliance with the terms of this Franchise at all times during the term of the Franchise and to hold public hearings or take any other steps it deems appropriate. Section 8. SYSTEM CAPACITY. 10 e e 1. The Grantee's Cable System shall provide a minimum capacity of seventy-five (75) video Channels throughout the term of the Franchise. 2. The Grantee's headend and all fiber hubs shall have standby power generators capable of operating in the standby mode for an indefinite period, and each fiber node shall be equipped with battery operated standby power units capable of operating a minimum of 1.5 hours in the standby mode. Section 9. OPERATIONAL STANDARDS. 1. Compliance with FCC Rules. Grantee shall comply with all present and future technical standards, testing requirements, consumer protection standards and consumer electronics compatibility regulations promulgated from time to time by the FCC pursuant to the Cable Act, and all other rules and regulations of the FCC in connection with and relating to the operation of Grantee's Cable System. 2. Technical Performance. Throughout the term of this Franchise, the Grantee shall, at a minimum, operate and maintain the Cable System in accordance with all applicable technical performance standards, regulations and guidelines of the FCC. Grantee shall periodically test the technical performance of the Cable System in accordance with all regulations and guidelines of the FCC. 3. Capable of Continuous Operation. The Grantee's Cable System shall be capable of being operated continuously, that is, twenty-four (24) hours per day. 4. Converter-Parental Lock; Selection of Signal Number. Upon Subscriber request, Grantee shall make available at a reasonable cost a Converter or other parental control device. Such device, if used properly, shall permit the Subscriber to prohibit viewing of a particular Channel during periods selected by that Subscriber. Further, the Grantee shall provide information 11 e e periodically to Subscribers pertaining to the availability of parental control devices. 5. Standard of Care. Consistent with the Cable Actt the Grantee shall at all times employ a reasonable standard of care and shall instant maintain and use approved methods and devices for preventing failures or accidents which are likely to cause damaget injury or nuisance to the public. 6. No Obscenity. Cable Services that are obscene and not protected by the United States Constitution or otherwise unprotected by the United States Constitution shall not be provided. 7. Customer Service. The Grantee shall provide good customer service in accordance with all regulations and guidelines of the FCC. In additiont Grantee shall maintain a customer service center for the receipt of paymentst exchange of equipmentt and to provide personal customer servicet either within the City or no greater than ten miles outside its corporate limits. Section 10. EMERGENCY USE OF THE CABLE SYSTEM. The Grantee shall comply with all rules and regulations of the FCC regarding emergency alert systems. Section 11. PUBLIC, EDUCATIONAL AND GOVERNMENT ACCESS. Initially the Grantee shall continue to provide one (1) downstream Channel on the Cable System for Publict Educational and/or Government Access programming. The Grantee shall provide up to a total of four (4) downstream Channels for the carriage of Publict Educational and Government Access programmingt subject to the utilization thresholds below. Whenever each Access Channel is being used for nonrepetitive locally produced programming (excluding character generated programming) more than eighty percent (80%) of the hours between 11 a.m. and 11 p.m.t during any twelve (12) consecutive week periodt the Grantee shallt upon receipt of written notice from the Cityt make an additional Access Channel available within one hundred twenty (120) days. Whenever any Access 12 e e Channel is utilized less than an average of eight (8) hours per day during any twelve (12) consecutive week period for the carriage of nonrepetitive locally produced non-character generated Public, Educational and/or Government Access programming, the Grantee may utilize the unused Access Channel capacity. Notwithstanding the foregoing, the City shall always have the use of one Access Channel, regardless of whether the Channel meets the utilization threshold above. The City shall have the right at its discretion to allocate and reallocate the Channels amongst Public, Educational and Government programming. The Grantee shall ensure that each Access Channel is of comparable quality, which includes the level of ingress interference, as with any other Channel in the VHF, UHF or FM frequency band. Section 12. EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS. The Grantee shall afford equal opportunity in employment to all qualified Persons. No Person shall be discriminated against in employment because of race, color, religion, national origin or sex. The Grantee shall establish, maintain and cany out a positive, continuing program of specific practices designed to assure equal opportunity in every aspect of its employment policies and practices. Section 13. FREE DROPS AND SERVICE TO SCHOOLS AND PUBLIC BUILDINGS. 1. Drops. The Grantee shall provide one free drop and free Basic Cable Service to the principal facility of all public and private non-profit schools and universities, and all City owned or leased and occupied facilities located within the Service Area as may be designated by the Director. If such drop is in excess of 500 aerial feet or 300 underground feet, the Subscriber shall reimburse the Grantee for its actual cost of time and materials in excess of the cost of said 500 aerial feet or 300 underground feet, whichever may be applicable. 2. Internal Wiring. Upon written request, the Grantee shall provide internal wiring to 13 e e the buildings specified in Section 13(1) above, reimbursable at its actual cost of time and materials only, or, at the Subscriber's election, the Subscriber can install the internal wiring per the Grantee's specifications. Section 14. LIABILITY INSURANCE. 1. Minimum Coverage. Within thirty (30) days following the effective date of this Franchise, the Grantee shall file with the Director and shall maintain on file throughout the term of this Franchise a certificate of insurance for general liability and automobile liability issued by a company duly authorized to do business and issue insurance in the State of Texas insuring the Grantee with respect to the installation, maintenance, and operation of the Cable System, and naming the City as additional insured, in the following minimum amounts: A. One Person. One Million Dollars ($1,000,000) for bodily injury or death to anyone person per occurrence. B. One Accident. One Million Dollars ($1,000,000) for bodily injury or death per occurrence. C. Property Damage. One Million Dollars ($1,000,000) per occurrence. 2. Notice of CancelJation or Reduction. Such certificate of insurance shall contain the provision that written notice of expiration, cancellation, or reduction in coverage of the policy shall be delivered to the Director and to the Grantee at least thirty (30) days in advance of the effective date thereof. 3. Tenn. Such liability insurance shall be kept in full force and effect by the Grantee during the existence of this Franchise and thereafter until after the removal of all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures incident to the maintenance and operation of the Cable System, should such removal be required by the City or 14 e e undertaken by the Grantee. Section 15. INDEMNIFICATION AND LIABILITY FOR DAMAGES. The Grantee shall pay, and by its acceptance of this Franchise specifically agrees that it will pay, the following: 1. Damages and Penalties. All damages or penalties which the City, its officers, agents or employees may legally be required to pay third parties as a result of damages arising out of copyright infringements and all other damages arising out of the installation, maintenance, or operation of the Cable System, whether or not any act or omission complained of is authorized, allowed or prohibited by this Franchise; and 2. Expenses. If any action or proceeding is brought against the City or any of its officers, officials or employees with respect to which payment may be sought for claims for damages or penalties as described in Section 15(1), the Grantee, upon written notice from the City, shall assume the investigation and defense thereof, including the employment of counsel and the payment of all expenses. 3. Separate Counsel. The City shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof. Grantee shall pay the reasonable fees and expenses of such separate counsel only if employed with the approval and consent of Grantee or if representation of both the Grantee and the City by the same attorney would be inconsistent with accepted canons of professional ethics. The Grantee shall not be liable for any settlement of any such claim, action or proceeding effected without its consent. The City shall give prompt notice to the Grantee of any claim, action or proceeding against it upon which the City may seek payment of damages or penalty by the Grantee hereunder. 4. Indemnity. Grantee, on behalf of its officers, assigns, agents, bonding companies, employees, and subcontractors (collectively the "Grantee"), hereby covenants and warrants that it 15 tit e will protect, defend, indemnifY and hold harmless the City, its agents, assigns, legal representatives, employees and officers (collectively, "the City") from any and all fines, demands, judgments, liabilities or claims arising by reason of or in connection with: A. the actual or alleged errors, omissions, or negligent acts of Grantee relating to this Franchise, or B. any services or performances undertaken by Grantee to create or fulfill this Franchise, or C. any actual or alleged joint or concurrent negligent acts or omissions of the City and Grantee, in any way relating to this Franchise. It is expressly agreed that Grantee's liability under this indemnity clause is separate from its duties under the insurance provisions herein and shall not exceed $1,000,000 per occurrence, exclusive of costs of defending the City. Grantee may, where feasible and at its own discretion, acquire insurance to satisfY its obligations under this section. 5. The foregoing provisions notwithstanding, Grantee shall not indemnifY the City for any damages, penalties or costs resulting from a) cablecasting any Public, Educational or Government Access programming in accordance with this Franchise, b) use of the Cable System's emergency alert service by the City and c) providing Cable Service to schools and public buildings in accordance with Section 13 herein. Section 16. COMPLIANCE WITH CITY, STATE AND FEDERAL LAWS. The construction, maintenance, and operation of the Cable System and all property of the Grantee subject to the provisions of this Franchise shall be subject to all lawful police powers, rules and regulations of general applicability that may hereafter be adopted by the City. Notwithstanding any other provision of this Franchise to the contrary, the Grantee shall at all times comply with all laws, 16 e e rules, and regulations of the state and federal governments and any administrative agencies thereof. If any such state or federal law, rule or regulation shall require or permit the Grantee to perform any service or shall prohibit the Grantee from performing any service in conflict with the provisions of this Franchise, the Grantee shall notify the Director in writing of the point of conflict believed to exist between such state or federal law, rule, or regulation and this Franchise, at such time as the conflict affects the performance ofthe Grantee under this Franchise. Section 17. MODIFICATIONS BY FCC. To the extent that any rules and regulations adopted by the FCC conflict with the terms of this Franchise, it is specifically agreed by the City and Grantee that this Franchise shall be deemed to be modified in accordance with such rules and regulations. Should the FCC lose or voluntarily abdicate regulatory jurisdiction over any aspect of cable television, the City shall be empowered to assume regulatory jurisdiction over any such deregulated aspects, provided that the City's regulation is not unreasonable or contrary to local, state or federal law . Section 18. CONDITIONS OF STREET OCCUPANCY. 1. Use. All structures, wires, cables, equipment and facilities erected or maintained by the Grantee within the City shall be located so as to cause minimum interference with the proper and intended use of the Streets and with the rights or reasonable convenience of the owners or occupants of property which adjoins any of such Streets. 2. Restoration. The surface of any Street disturbed by the Grantee in laying, constructing, maintaining, operating, using, extending, removing, replacing or repairing the Cable System shall be restored by the Grantee at each occurrence immediately after the completion of the work, at its cost and expense, to a condition better or reasonably comparable to that in existence before the commencement of the work and maintained by the Grantee to the satisfaction of the 17 e e Director of Public Works for one year from the date of completion of such restoration work. No Street shall be encumbered by construction, maintenance, removal, restoration or repair work by the Grantee for a longer period than shall be necessary to execute such work. In the event the Grantee, after notice, fails or refuses to restore and maintain the Streets after such excavations or repairs have been made, the City shall have the authority, but not the obligation, to restore or maintain such Streets and to require the Grantee to pay to the City the reasonable cost of such restoration or maintenance, all without compensation or liability for damages to the Grantee. 3. Removal or Relocation. The City shall have the power at any time to order and require Grantee to remove any of its facilities that are dangerous to life or property. If Grantee, after reasonable notice, fails or refuses to act, then the City, at the direction of the City Manager, shall have the power to remove or abate the same at the expense of Grantee, all without compensation or liability for damages to Grantee. Whenever by reason of the construction, repair, maintenance, relocation, widening, raising or lowering of the grade of any Street by the City or by the location or manner of construction, reconstruction, maintenance or repair of any public property, structure or facility by the City, it shall reasonably be deemed necessary by the City for the Grantee to move, relocate, change, alter, or modify any of its facilities or structures, such change, relocation, alteration, or modification shall be promptly made by the Grantee, at its cost and expense, when directed in writing to do so by the Director of Public Works, without claim for or right of reimbursement of cost or damages against the City. In the event the Grantee, after such notice, fails or refuses to commence, pursue or complete such relocation work within a reasonable time, the City shall have the authority, but not the obligation, to remove or abate such structures or facilities and to require the Grantee to pay to the City the reasonable cost of such removal or abatement, all without compensation or liability for damages to the Grantee. 18 . e 4. Temporary Removal of Wire for Building Moving. Upon written request of any Person holding a building moving permit issued by the City, the Grantee shall remove, raise or lower its wires and cables temporarily to permit the moving of houses, buildings or other bulky structures. The reasonable expense of such temporary removal, raising or lowering shall be paid by the benefitted person, excluding the City, and the Grantee may require such payment in advance, the Grantee being without obligation to remove, raise or lower its wires and cables until such payment shall have been made. The Grantee shall be given not less than seven (7) days advance written notice to arrange for such temporary wire and cable adjustments. 5. Tree Trimming. The City Council may, from time to time, pass ordinances regulating the trimming or removal of trees on or along the City property and the Grantee shall comply with those ordinances. 6. Placement of Fixtures. The Grantee shall not place poles, towers or similar fixtures where the same will interfere with any gas, electric, or telephone fixtures, water hydrant or main, drainage facility or sanitary sewer, and all such poles, towers and similar facilities shall be placed as directed by the City and in such manner as not to interfere with the usual travel, use or visibility of the Streets. 7. Notice and Approval of Construction. Except in an emergency, Grantee shall not excavate any Street without first notifying the City Engineer, and, if approval is required it shall be given if the proposed excavation is in compliance with the requirements of City governance. The City Engineer or his designee shall be notified as soon as practicable regarding work performed under emergency conditions, and Grantee shall comply with any reasonable requirements of the City Engineer for the restoration of the Streets within the City. The Grantee shall provide complete plans and specifications for construction involving significant amounts of new buried cable and 19 . e underground conduit systems within Streets to the City Engineer for his or her review at least thirty (30) days prior to the start of construction as required by City Code or the City's permitting process. In the event of rejection, the Grantee shall resubmit plans and specifications for approval. This provision shall apply to each construction sequence if the construction is accomplished in phases. 8. Grantee's Employees to Wear Identification. Grantee's employees and the employees of Grantee's contractors shall wear identification badges identifying them as employees or contractors of Grantee. Vehicles shall likewise be identified as those of the Grantee, or as belonging to a contractor of the Grantee. 9. Maps. The Grantee shall file with the City current strand and trench maps of the Cable System in the Service Area within ninety (90) days of the effective date of this Franchise, and files updates as made thereafter. Section 19. UNDERGROUND INSTALLATION. In portions of the Service Area having te"lephone lines and electric utility lines underground, whether required by ordinance or not, any and all of the Grantee's lines, cables, and wires shall also be underground. It shall be the policy of the City that existing poles for electric and communication purposes be utilized whenever possible and that underground installation, even when not required, is preferable to the placing of . additional poles. Section 20. USE, RENTAL OR LEASE OF UTILITY POLES AND FACILITIES. There is hereby granted to the Grantee the authority to contract with the City or any appropriate board or agency thereof or with the holder or owner of any utility franchise in the City for the use, rental or lease of its or their poles, underground conduits, and other structures and facilities for the npurpose of extending, carrying, or laying the Grantee's wires, cables, electronic conductors, and 20 e e other facilities and appurtenances necessary or desirable in conjunction with the operation of the Cable System. The City agrees that any public utility owning or controlling such poles or underground conduits may, without amendment to its franchise, allow, and is encouraged to allow, the Grantee to make such use thereof pursuant to any agreement reached between such utility and the Grantee. The Grantee shall notify the Director within thirty (30) days of receipt of any request by a third party, not holding a franchise from the City, to lease or otherwise use the Grantee's pole or conduit space. Section 21. RECORDS AND REPORTS. 1. Books of Account. The Grantee shall keep complete and accurate books of accounts and records of its business and operations under and in connection with this Franchise. All such books of accounts and records shall be accessible at the Grantee's principal office in the Service Area during regular business hours, upon thirty (30) days written notice. 2. Access by the City. The Director, or his/her duly designated officers, agents, or representatives, shall have access to all books of accounts and records of the Grantee as may be reasonably necessary for the purpose of ascertaining the correctness of any and all reports required by this Franchise. For purposes related to the enforcement of the Franchise, access shall be given by the Grantee to such officers, agents or representatives of the Director at all reasonable times to the Grantee's records of Gross Revenues, such of the Grantee's plans, contracts, engineering, planning, financial, statistical, customer and Subscriber service records relating to the properties and operation of the Cable System, and to all other records and reports required to be kept or which are kept by the Grantee. The City agrees to treat any information disclosed by the Grantee 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. The Grantee shall not be required to 21 e e provide Subscriber information in violation of Section 631 of the Cable Act. 3. Annual Report. A report shall be filed by the Grantee with the Director within sixty (60) days following the end of each calendar year, or portion thereof, during which this Franchise is in effect, which report shall include the Gross Revenues for such calendar year, or portion thereof, and the number of Subscribers as of December 31 of the preceding year. The report shall be certified by an appropriate representative of the Grantee, and shall include any such other information as the Director may reasonably demonstrate as necessary to the enforcement of the terms of the Franchise The Director may audit the books and records of the Grantee to verify the amount of franchise fee owed and paid as well as compliance with other provisions of this Franchise. 4. False Entry. Any false entry in the books or accounts and records of the Grantee or false statement in the reports to the City as to a material fact, knowingly made by the Grantee, shall constitute a violation ofa material provision of this Franchise. 5. FCC Filings. The Grantee shall, upon request, file copies of all reports and filings made to the FCC with the Director. Section 22. PROHIBITION OF DISCRIMINATORY PRACTICES. Access to Cable Service shall not be denied to any group of potential Subscribers because of the income of the residents of the local area in which such group resides or for any other reason. In providing Cable Service, Grantee shall not discriminate in any way between or among Subscribers. This section shall not be construed to require the Grantee to serve individual Subscribers that do not pay the Grantee's regular charges in a timely manner, or to prohibit the charging of deposits to individual Subscribers with poor credit histories, or to preclude promotional campaigns intended to attract or maintain Subscribers, as long as such campaigns are non-discriminatory in nature. 22 e e Section 23. RENEW AL. Grantee and the City agree that franchise renewal proceedings shall be governed by the Cable Act (47 V.S.C. ~ 546) or other law applicable at the time of renewal. Section 24. VALUATION. This Franchise is granted subject to the lawful provisions of Article VIT, Section 7.01, of the City Charter, which provisions are made a part hereof and incorporated herein by reference. If the City should elect to exercise its rights to eminent domain under such Charter provisions, payment of a fair valuation, which shall be the then current fair market value, or such payment as required by the Cable Act, if applicable, shall be required. Should the parties fail to agree upon the then current fair market value, the same shall be determined in an appropriate proceeding filed in any court having jurisdiction. Section 25. MATERIAL BREACH OF FRANCHISE. In addition to all rights and powers of the City by virtue of this Franchise or otherwise, the City reserves as an additional and as a separate and distinct power the right to take any of the actions described in Section 26 in accordance with the procedures specified therein if any of the following events occur or for any of the following reasons: 1. the Grantee, by act or omission, violates any material ~erm, condition, or provision of this Franchise; 2. the Grantee knowingly or willingly attempts to evade any material provision of this Franchise; 3. the occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale of all or any material part of the Cable System; 4. in the event that the Grantee suspends or discontinues its business, makes an assignment for the benefit of creditors, fails to pay its debts generally as they become due, becomes 23 e e insolvent (howsoever such insolvency may be evidenced), is adjudicated insolvent, petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a receiver, custodian, liquidator or trustee or similar official, or a similar process is undertaken by any tribunal against all or a material part of the Cable System; or 5. the Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this Franchise with the City, Subscribers or potential Subscribers. Section 26. NOTICE OF DEFAULT; OPPORTUNITY TO CURE. 1. Notice of Default. The City Council shall exercise the rights provided in Section 26(2) hereof in accordance with the procedures set forth below: A. The Director shall notify the Grantee, in writing, of an alleged failure to comply with a material provision of this Franchise, which notice shall specify the alleged failure with reasonable particularity. The Grantee shall, within thirty (30) days after receipt of such notice or such longer period of time as the Director may specify in such notice, either cure such alleged failure or, in a written response to the Director, either present facts and arguments in refutation or excuse of such alleged failure or stat~ that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure. B. The Director shall detennine (i) whether a failure to comply with a material provision has occurred; (ii) whether such failure is excusable; and (iii) whether such failure has been cured or will be cured by the Grantee. The Grantee shall make available to the Director, if requested, any records, documents or other infonnation necessary to make the detennination. C. If the Director detennines that a failure to comply with a material provision has occurred and that such failure is not excusable and has not been or will not be cured by the Grantee in a manner and in accordance with a schedule reasonably satisfactory to the Director, then 24 e e the Director shall so notify the City Council in a written report which may recommend action to be taken by the City Council. The Director shall provide notice and a copy of such report to the Grantee. In the event that the Director detennines that such failure has not occurred, or that such failure either has been or will be cured in a manner and in accordance with a schedule reasonably satisfactory to the Director, or that such failure is excusable, such detennination shall conclude the investigation. D. After receipt of such report from the Director, or at any time upon its own motion, the City Council may take any of the actions provided in Section 26(3) hereof, provided that if the City Council acts on its own motion it shall follow the procedural steps set forth in Sections 26(1)(A-C) hereof. 2. Method of Revocation. Any such tennination and cancellation of this Franchise shall be by ordinance adopted by the City Council; provided, however, before any such ordinance is adopted, the Grantee must be given at least forty-five (45) days advance written notice, which notice shall set forth the causes and reasons for the proposed tennination and cancellation, shall advise the Grantee that it will be provided an opportunity to be heard by the City Council regarding such proposed action before any such action is taken, and shall set forth the time, date and place of the hearing. In no event shall such hearing be held less than forty-five (45) days following delivery of such notice to the Grantee. At the hearing, the Grantee shall be entitled to all the rights of due process consistent with the City procedures, including but not limited to, the right to present evidence and the right to be represented by counsel. 3. City Council Action in Event of Breach. In the event that grounds exist which give the City reason to believe that the Grantee fails to comply with a material provision of this Franchise, as provided in Section 25 hereof, then, in accordance with the procedures provided in 25 e e Section 26(1) hereof, the City Council may, at any time during the term of this Franchise, to the extent lawful: A. Seek specific performance which reasonably lends itself to such remedy, as an alternative to damages; or B. Seek monetary damages from the Grantee as compensation for such material breach; or C. Assess liquidated damages of up to $100 per day for any violations which cause equitable damage to the City and for which no other remedy is provided herein; or D. In the event that the Grantee does not cure the breach of the Franchise, or the City Council does not elect to seek monetary damages from the Grantee or the Grantee does not agree to pay such damages, then, as an alternative to taking the action referred to above, the City Council may revoke the Franchise. Section 27. RATES AND OTHER CHARGES. 1. Authority Reserved. The City reserves the right to regulate rates and charges for Cable Services, including Basic Service, to the extent allowed by local, state and federal laws as they exist now or may hereafter be amended. It is expressly agreed by the parties that, for purposes of rate regulation, Service Area shall mean the same as Franchise Area as that term is used in the Cable Act of 1992 in determining effective competition. 2. Rate Schedule. The rates and charges for all Cable Services, including installation fees and other one-time charges, shall be maintained on file with the City. The Grantee shall provide new rate schedules to the Director and to each Subscriber at least thirty (30) days prior to any change in any rate, term or condition of any Cable Service offered on the Cable System. 3. Equitable Discounts. If Grantee offers any non-promotional Cable Service 26 e -- discounts, such as rate reductions for senior citizen or low-income Subscribers, within the City of South Houston, the City of Pasadena, the City of Deer Park, the City of Morgan's Point, or the City of Shoreacres, Grantee agrees to offer the same such discount to Subscribers in the City. Nothing herein shall require Grantee to offer the same base rates within the communities noted above. Furthermore, Grantee shall not required to offer the discount within the City if it is not currently available to Subscribers in the above-named communities, but only "grandfathered" as a previously-offered discount. Should Grantee offer such a discount in the City, Grantee shall notify Subscribers of the discount and the criteria for qualifying for such discount at the implementation of such discount, upon installation, upon request, and at least once a year. 4. Reduction. Rates and charges may be reduced at any time without thirty (30) days notice being provided. The Grantee shall, as a courtesy, however, advise the Director at least fourteen (14) days prior to the reduction becoming effective when within Grantee's control. When temporary reductions are put into effect for promotional purposes for a specified time period, the Grantee is not required to provide notice to the City of a rate change. The return to the rates on file with the City shall not be considered a rate increase for purposes of this section. Section 28. FORCE MAJEURE. Notwithstanding any other provision of this Franchise, the Grantee shall not be liable for delay in performance of, or failure to perform, in whole or in part, its obligations pursuant to this Franchise due to Force Majeure. In the event that any such delay in performance or failure to perform affects only part of the Grantee's capacity to perform, the Grantee shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct the cause(s) of the delay or failure of performance. The Grantee agrees that in correcting such cause(s), it shall take all reasonable steps to do so in as expeditious a manner as possible. The Grantee shall notify the Director in writing of the occurrence of an event covered by this Section 28 27 e e within five (5) business days of the date upon which the Grantee learns of its occurrence, and describe all actions the Grantee has undertaken to mitigate such Force Majeure. Section 29. ASSIGNMENT OF FRANCHISE. 1. Prohibition. The rights, privileges, and franchise granted hereunder may not be assigned, in whole or in part, without the prior consent of City expressed by resolution or ordinance, and then only under such conditions as may therein be lawfully prescribed. No assignment in law or otherwise shall be effective until the assignee has filed with the Director an instrument, duly executed, reciting the fact of such assignment, accepting the terms of this Franchise, and agreeing to comply with all of the applicable provisions hereof. A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment. 2. Process. Upon receipt of such request from Grantee, the Director shall diligently investigate the request in a timely manner and place the request on the City Council agenda at the earliest practical time. The City Council shall proceed to act on the request within a reasonable period of time. 3. Scope of Review. In reviewing a request for assignment, the City may inquire into the legal, technical and financial qualifications of the prospective assignee, and Grantee shall assist the City in so inquiring. The City may condition said assignment upon such terms and conditions as it deems reasonably necessary, provided its approval and any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective assignee as well as Grantee's compliance with the terms of this Franchise. The City shall not unreasonably withhold its approval. 4. Assignments not Requiring Approval. Notwithstanding anything to the contrary, the prior approval of the City shall not be required for any assignment to an entity controlling, 28 e e controlled by or under the same common control as Grantee, as long as such entity has expertise in the operation of a Cable System. Grantee shall demonstrate that the assignee has the financial resources necessary to fulfill the requirement ofthe Franchise, as well as Grantee's compliance with the terms of this Franchise. Grantee shall give written notice to the Director of such assignment. Section 30. THE GRANTEE TO HAVE NO RECOURSE. 1. Requirements and Enforcement. Except as expressly provided herein, and subject to applicable law, the Grantee shall have no monetary recourse against the City for any loss, cost, expense or damage arising out of the provisions or requirements of this Franchise or because of the enforcement thereof by the City or because ofthe lack of the City's authority to grant all or any part of this Franchise. 2. The Grantee's Understanding. The Grantee expressly acknowledges that in accepting this Franchise, it relied solely upon its own investigation and understanding to the power and authority of the City to grant this Franchise and the Grantee was not induced to accept this Franchise by any understanding, promise, or other statement, verbal or written, by or on behalf of the City, or by any third person concerning any term or condition not expressed herein. 3. Construction of Franchise. By acceptance of this Franchise, the Grantee acknowledges that it has carefully read the provisions hereof and is willing to and does accept all of the risks of the meanings of such provisions, subject to applicable law. Section 31. ACCEPTANCE OF FRANCHISE. Within thirty (30) days following the final passage and approval of this Franchise, the Grantee shall file with the City Secretary a written statement in the following form signed in its name and behalf: "To the Honorable Mayor and the City Council of the City of La Porte, Texas: 29 e e For itself, its successors and assigns, Tele-Vue Systems, Inc., a Washington Corporation, hereby accepts the attached Franchise and agrees to be bound by all of its terms, conditions and provisions, subject to applicable law. Tele- Vue Systems, Inc. By: Name: Title: Dated this the _ day of , 199_ " Section 32. SEVERABILITY. If any provision, section, subsection, sentence, clause, or phrase of this Franchise is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of the remaining portions of this Franchise. It is the intent of the City in adopting this Franchise that no portion or provision thereof shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other portion or provision, and to this end all provisions ofthis Franchise are declared to be severable. Section 33. PASSAGE AND EFFECTIVE DATE. This Franchise having been published as required by Article VII, Section 7.01 of the City ~harter shall take effect and be in force from and after sixty (60) days following its final passage and approval, and receipt by the City of Grantee's acceptance filed pursuant to Section 31. Upon the effective date of this Franchise, any Ordinance or Resolution extending the provisions of Ordinance 1775 beyond the effective date of this Franchise is superseded. Section 34. COMPLIANCE WITH FRANCHISE. In any dispute, claim or proceeding pursuant to this Franchise, the Grantee shall have the burden of demonstrating its compliance with each term and condition of this Franchise for all purposes. 30 e e Section 35. ENTIRE AGREEMENT. This Franchise embodies the entire understanding and agreement of the City and the Grantee with respect to the subject matter hereof and mergers and supersedes all prior representations, agreements, and understandings, whether oral or written, between the City and the Grantee with respect to the subject matter hereof, including, without limitation, all prior drafts of this Franchise and any and all written or oral statements or representations by any official, employee, agent, attorney, consultant or independent contractor of the City or the Grantee. Section 36. NOTICES. Every notice, order, petition, document, or other direction or communication to be served upon the City or the Grantee shall be deemed sufficiently given if sent by registered or certified mail, return receipt requested. Every such communication to the Grantee shall be sent to: Tele- Vue Systems, Inc. Attn: General Manager 4201 FM 1960 Houston, TX 77060 Every such communication to the City or the City Council shall be sent to the City Manager. The mailing of such notice, direction or order shall be equivalent to direct personal notice and shall be deemed to have been given the earlier of receipt or three (3) business days after it was mailed. Grantee and the City may change such notice address by giving written notice to the other party. Section 37. ADDITIONAL REPRESENTATIONS AND WARRANTIES. In addition to the representations, warranties and covenants of the Grantee to the City set forth elsewhere herein, the Grantee represents and warrants to the City and covenants and agrees (which representations, warranties, covenants and agreements shall not be affected or waived by any inspection or examination made by or on behalf of the City) that, as of the closing and throughout the term of this Franchise: 31 e e I. Organization, Standing and Power. The Grantee is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington and is duly authorized to do business in the State of Texas and in the City. The Grantee has all requisite power and authority to own or lease its properties and assets, to conduct its businesses as currently conducted and to execute, deliver and perfonn this Franchise and all other agreements entered into or delivered in connection with or as contemplated hereby. 2. Compliance with Law. The Grantee is, to the best of its knowledge, in compliance with all laws, ordinances, decrees and governmental rules and regulations applicable to the Cable System and has obtained all government licenses, pennits and authorizations necessary for the operation and maintenance of the Cable System. 3. Full Disclosure. Without limiting the specific language of any other representation and warranty herein, all infonnation furnished by the Grantee to the City in connection with this Franchise, or otherwise related to cable television matters by authorized officers of the Grantee, to the best of the Grantee's knowledge is accurate and complete in all material respects, and includes aIt material facts required to be stated therein and does not contain any untrue statement of a material fact or omit any material fact necessary to make the statements therein not misleading. There is no fact known to the Grantee, to. the best of its knowledge, which materially and adversely affects or in the future could reasonably be expected to materially and adversely affect the business, operations, properties, assets or financial condition of the Cable System, or any part thereof, which has not been set forth in this Franchise or the other docwnents, certificates, and instruments delivered to the City by or on behalf of the Grantee specifically for use in connection with the transactions contemplated by this Franchise. Section 38. BINDING EFFECT. This Franchise shall be binding upon and inure to the 32 e e benefit of the parties hereto and their respective successors and permitted transferees and assigns. All of the provisions of this Franchise apply to Grantee, its successors, and assigns, subject to applicable law. Section 39. NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of the City to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other right, all subject to the conditions and limitations established in this Franchise. The rights and remedies provided herein are cumulative and not exclusive of any remedies provided by law, and nothing contained in this Franchise shall impair any of the rights ofthe City under applicable law, subject in each case to the terms and conditiOlis of this Franchise. A waiver of any right or remedy by the City at anyone time shall not affect the exercise of such right or remedy or any other right or other remedy by the City at any other time. In order for any waiver of the City to be effective, it must be in writing. The failure of the City to take any action in the event of a material breach by the Grantee shall not be deemed or construed to constitute a waiver of or otherwise affect the right of the City to take any action permitted by this Franchise at any other time in the event that such material breach has not been cured, or with respect to any other material breach by the Grantee. Section 40. NO OPPOSITION. The Grantee agrees that it shall not oppose the intervention by the City in any suit, action, or proceeding involving the Grantee with respect to the Cable System or its operation or any material provision of this Franchise. Section 41. NO AGENCY. The Grantee shall conduct the work to be performed pursuant to this Franchise as an independent contractor and not as an agent ofthe City. Section 42. GOVERNING LAW. This Franchise shall be deemed to be executed in the City of La Porte, State of Texas, and shall be governed in all respects, including validity, 33 e e interpretation and effect, and construed in accordance with the laws of the State of Texas, as applicable to contracts entered into and to be performed entirely within that State, and in accordance with federal law. Section 43. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties contained in this Franchise shall survive the tenn of the Franchise. Section 44. MODIFICATION. Except as otherwise provided in this Franchise or applicable law, no provision of this Franchise shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the City and the Grantee, which amendment shall be authorized on behalf of the City through the adopting of an appropriate resolution or ordinance by the City Council, as required by applicable law. PASSED first reading this the 13th day of July, 1998. PASSED second reading this the 24th day of August, 1998. CITY OF LA PORTE BY:~~~ orman L. Malone, Mayor ~ ATTEST: Mart a A. Gillett City Secretary ox W. Askins City Attorney 34