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Ordinance #79

AN ORDINANCE GRANTING A FRANCHISE TO
COMMUNITY ANTENNAS, INC., TO OPERATE AND MAIN
TAIN A CABLE TELEVISION SYSTEM WITHIN THE IN
CORPORATED AREAS OF THE TOWN OF JOHNSON WASH
INGTON COUNTY, ARKANSAS , PROVIDING FOR THE
AMENDMENT OF ORDINANCE NO . 9 TO THE INCORPO-
RATED TOWN OF JOHNSON, WASHINGTON COUNTY, AR-
KANSAS, AND SETTING FORTH CONDITIONS ACCOMPA
NYING THE GRANTING OF THIS FRANCHISE AND
OTHER PURPOSES.

 

BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE TOWN OF
JOHNSON, WASHINGTON COUNTY, ARKANSAS, in regular session convened
as follows:

 

WHEREAS, Johnson is an incorporated town and ,

 

WHEREAS, the town of Johnson has previously granted a franchise
to Texas Community Antennas, Inc., a Texas corporation,
which is properly licensed and registered to do business in the
State of Arkansas, for purposes generally related and associated
with the furnishing or supplying of the inhabitants of Johnson
television and other electronic signal services, and other utilizations,
which franchise was granted in Ordinance No. 9, passed
and approved on the 7th day of February, 1967, and which ordinance
shall presently expire on or about February 6, 1987; and,

WHEREAS, it is therefore desirable and necessary that the
Town of Johnson grant a new franchise to Texas Community
Antennas, Inc., and that said new franchise shall supersede and
nullify in its entirety any such previous franchise executed
thereto.

 

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
TOWN OF JOHNSON, as follow, to-wit:

 

SECTION I - DEFINITIONS
For the purpose of this ordinance, the following terms,
phrases, words, and their derivations shall have the meaning
given herein. When not inconsistant with the context, words used
in the present tense include the future; words in the singular
number include the plural number; and words in the masculine gender
include the feminine. The word "shall" is always mandatory
and not merely directory.
(a) "TOWN" is the town of Johnson, an incorporated
town ; in Washington County, Arkansas.
(b) "GRANTEE" is Texas Community Antennas, Inc., a
corporation organized and existing under the laws of the
State of Texas, which is properly licensed and registered to
do business in the State of Arkansas which is the grantee of
rights under this franchise.
(c) "MAYOR" is the Mayor of the Town of Johnson,
Washington County, Arkansas, or its designated representative

(d) "CITY COUNCIL" is the City Council of the Town of
Johnson, Washington County, Arkansas, or its designated representative

(e) "PERSON" is any individual, firm, partnership,

 

association, corporation, company or organization of any
kind.
(f) "CUSTOMER" is the owner of a television.
(g) "STREET" is any public street, road or highway
belonging to the Town of Johnson, Washington County, Arkansas,
the State of Arkansas, or the United States government,
if it lies in or within the jurisdiction of the Town
of Johnson, Washington County, Arkansas.
Ch) "FRANCHISE FEE" is the amount paid by a grantee to
the Town of Johnson, Washington County, Arkansas, as determined
and calculated pursuant to this ordinance.
(i) "TCA" denotes for purposes of this ordinance Texas
Community Antennas, Inc., with all usages and inclusions
thereof.
(j) "TOWN" includes the incorporated Town of Johnson,
Arkansas with all classifications, usages and inclusions
thereof.

SECTION II - GRANT OF AUTHORITY
Town hereby grants to TCA the right and privilege to construct,
erect, operate and maintain in, upon, along, across,
above, over and under its streets, alley, public way, places ,
easements, and properties , TCA's cables, lines , necessary wiring,
towers, poles, underground conduits, manholes, electronic conductors
, and other fixtures necessary for the maintenance and operation
of a cable television signal distribution system and service
, to the extent that the Town may lawfully permit the use of
the above-described properties for the purposes enumerated, including,
but not limited to any additional installations, excavations
for underground conduits shall be filled, backpacked, to
the the original surface after conduit installation.
A. This Agreement shall be effective as to all territory in
the limits of Town.
B. Town assumes no responsibility for securing any franchise,
rights-of-way, permits, or easements which the Town does
not already own, making and maintaining of such attachments, or
permission to make such attachments to the poles of . others, but
TCA assumes the duty and responsibility of securing the same.
The permission herein granted is likewise subject to laws, ordinances
and regulations now In force or which may hereafter be enacted
or promulgated by any governmental body or agency having
jurisdiction. Town shall be in no way responsible for the construction,
operation, maintenance, performance, or any other
activity of TCA or its system, or any part thereof, but same urn's t
be approved by the City Council.
C. In the event the installation of TCA's proposed attachments
would interfere with attachments already in place belonging
to others, TCA shall arrange for a correction or installation
that will not so interfere.
D. TCA agrees to take any necessary precautions, by the installation
of protective equipment or otherwise, to protect all
persons and property against injury or damage that may result
from TCA's installations or operations. If, in Town's opinion,
TCA has not taken such necessary precaution, within a reasonable
time after Town has so notified TCA, Town shall have the right,
by written notice to TCA, to terminate this contract. However,
Town shall not be considered in any way responsible for the adequacy
or inadequacy of such precautions of TCA.

E. The rights and privileges herein granted shall not be
exclusive, the Town reserving the right to make similar grants
when such grant is required by the public interest, convenience
and necessity.
SECTION III - INDEMNIFICATION AND WAIVER
TCA hereby agrees to indemnify and save Town harmless from
all claims, damages, and liability which would not have arisen
but for the exercise by TCA of the rights and privileges herein
described. TCA likewise waives all claims, damages and liability
it could ever assert against Town, as to all claims, damages, and
liability which would not have arisen but for the exercise by TCA
of the rights and privileges herein described.
SECTION IV - COMPLIANCE WITH APPLICABEL LAWS AND ORDINANCES
TCA shall, at all times during the life of this contract, be
subject to all lawful exercise of the police power by the Town
and to such reasonable regulations as the Town shall hereafter,
by valid resolution or ordinance, provide.
SECTION V - RULES
TCA shall have the authority to promulgate such rules, regulations
, terras and conditions governing the conduct of its business
as shall be reasonable necessary to enable TCA to exercise
its rights and perform its obligations under this Contract, and
to assure an uninterrupted service to each and all of its customers
; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or
the laws of the State of Arkansas, nor the City Ordinances:
past, present, or future-of the Town of Johnson.
SECTION VI - CONDITIONS ON STREET OCCUPANCY
(1) Use. All transmission and distribution structure,
lines and equipment erected by TCA within the Town shall be so
located as to cause minimum interference with the proper use of
streets, alleys and other public ways and places, and to cause
minimum interference with the rights of reasonable convenience of
property owners who adjoin any of said streets, alleys or public
ways and places.
(2) Restoration. In case of any disturbances of pavement,
sidewalk, or driveway or other surfacing, TCA shall, at its own
cost and expense and in a manner approved by the Town, replace
and restore all paving, sidewalk, driveway or surface of any
street or alley disturbed, in as good condition as before said
work was commenced, and shall maintain the restoration in such
condition, reasonable wear and tear and acts of God only excepted,
for a period of one C1) y.ear.
(3) Relocation. In the event at any time during the period
of this contract the Town shall elect to alter or change the
grade of any stree-t, alley or public way, or change the method or
manner of use of any property or property right owned or contracted
by Town, then TCA, upon reasonable notice by the Mayor,
shall remove, relay and relocate its poles, wires, cables,•underground
conduits, manholes and other appurtenant fixtures at its
own expense.
(4) Placement of Fixtures . TCA shall not place poles or
other fixtures wherethe same will interefere with any gas, electric
or telephone fixture, water hydrant in main, drainage facility
or sanitary sewer, and all such poles or other fixtures
shall be placed as directed by Town and in such manner as not to
interfere with the usual travel or use of streets, alley, public
ways or other properties .

(5) Temporary Removal of Wires for Building Moving. TCA
shall, on the request o£ any p'ersorf holding a Building "permit
issued by the Town, temporarily raise or lower its wires and
cables to permit the moving of buildings. The expense of such
temporary removal, rais ing or lowering of wires and cables, shall
be paid by the person requesting the same, and TCA shall have the
authority to require such payment in advance. TCA shall be given
not less than forty-eight (48) hours advance notice to arrange
for each such temporary change.
(6) Tree Trimming. TCA shall have the authority to trim
trees upon and overhanging the streets, alleys, sidewalks and
public places of the Town so as to prevent the branches of such
trees coming in contact with the wires and cables of TCA all such
trimming to be done under the supervision and direction of the
Mayor and at 'the expense of TCA.
SECTION VII - PREFERENTIAL OR DISCRIMINATORY PRACTIES PROHIBITED
(1) TCA shall not, as to rates, charges, service facilities
, rules, regulations or in any other respect, make or grant
any preference or advantage to any person nor subject any person
to any prejudice or disadvantage, providing that nothing in this
contract shall be deemed to prohibit the establishment of a graduated
scale of charges and classified rate schedules to which any
customer coming within such classifications would be entitled.
TCA shall charge rates for such services which shall not be in
excess of the rates received for the same services in the City of
Springdale, Washington County, Arkansas.
(2) TCA shall, where necessary, supply any person who will
contract with it for its service and pay to TCA in cash at said
time (not more than) three (3) months' advance service charge and
who may make written demand therefor, extend any of its existing
cables a distance of not to exceed two hundred feet per customer.
SECTION VIII - PAYMENT OF GROSS RECEIPTS TAXES TO TOWN
Within sixty (60) days following the close of each calendar
year, as herein provided, TCA shall pay to the Town a sura equal
to two (2) percent of the annual gross subscriber service charge
revenues collected during the calendar year previous, after deducting
any state and/or federal sales or gross receipt taxes, if
any, on the service charges collected from basic cable services
of TCA within the Town of Johnson, Arkansas. Gross subscriber
service charge revenues shall include all compensation or receipts
derived from recurring monthly service charges collected
in connection with the carriage of broadcast signals or Federal
Communications Commission mandated non-broadcast services, but
shall not include any refunds or credits made to subscribers or
any taxes imposed on the services furnished by TCA. Nor shall it
include revenue from "auxiliary services" such as pay television,
advertIs ing or leased channels or satellite tier services.
SECTION IX - ACCESSIBILITY TO INFORMATION
The Town shall have access at all reasonable hours to TCA's
system maps, contracts and engineering information, and the customer
service records and customer billing information. TCA
shall file a yearly report showing gross service charge revenues
received by TCA during the preceding calendar year, which report
shall be duly sworn to, and shall be the basis for calculating
the two (2) percent charge provided for in paragrpah VIII hereof.
Payments due to the Town under Paragraph VIII shall be paid
within sixty (60) days following the expiration of the first full
calendar year of TCA's operations in the Town, arid thereafter,
annually as provided In Paragrpah VIII hereof.

SEGTION X - FRANCHISE TERM
This franchise shall take effect and be in full force from
and after approval by the Mayor and City Council of the Town of
Johnson , Washington County , Arkansas , the same shall continue in
full force and effect for a primary term of twenty (20) years
from the date of final passage of this Ordinance.
Grantee is also herewith given authority to transfer this
franchise and its respective terras, conditions and rights thereto
to its successors , transferees , representatives , and assigns ,
subject to the prior approval by the Mayor and City Council of
the Town of Johnson , Washington County , Arkansas , and such approval
shall not be unreasonably withheld.
SECTION XI - EXTENSION OF FRANCHISE
This franchise may be extended on the same terms for periods
not to exceed twenty (20) years, upon application made by the
Grantee to the Town not later than three (3) months prior to the
expiration of this franchise.
SECTION XII - SEPARABILITY
If any section, subsection, sentence, clause, phrase, word,
or portion of this ordinance is for any reason held invalid or
unconstitutional by any Court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision
and such holding shall not effect the general or specific
validity of the remaining portions hereof.
SECTION XIII - ORDINANCE REPEALED
Ordinance No. 9 and all ordinances or parts of ordinances in
conflict with the provision of this ordinance are hereby repealed
.
IT IS HEREBY DELCARED that an emergency exists and that this
ordinance being necessary for the preservation of the health ,
safety and welfare of the citizens of the incorporated town of
Johnson , Washington County , Arkansas , shall become effective immediately
upon its passage and approval .