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HomeMy WebLinkAboutORD.2677.03-06-2000BILL NO. 2000-17 ORDINANCE NO. 07(.0-1-1 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED CAPE GIRARDEAU CABLE COMMUNICATIONS FRANCHISE AGREEMENT WITH CHARTER COMMUNICATIONS HOLDING COMPANY, LLC BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. Charter Communications Holding Company, LLC, did on December 13, 1999, file its application for an amended franchise agreement with the City Council. ARTICLE 2. After due notice, the City Council held a public hearing on February 22, 2000, to consider said application. ARTICLE 3. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Amended and Restated Cape Girardeau Cable Communications Franchise Agreement with Charter Communications Holding Company, LLC. A copy of said Franchise Agreement is attached to this Ordinance and made a part hereof. ARTICLE 4. This ordinance shall be in full force and effect ten days after its passage and approval. PASSED AND APPROVED THIS LG'- DAY OF / � ,Z- , 20 CX2 , ATTEST: Gayle CL. Conrad City Clerk A. M. Spradling, III, 0yor AMENDED AND RESTATED CAPE GIRARDEAU CABLE COMMUNICATIONS FRANCHISE AGREEMENT This Amended and Restated Franchise Agreement is made this day of , 2000, between the City of Cape Girardeau, Missouri, (hereinafter called the "Franchising Authority") and Charter Communications Holding Company, LLC (hereinafter called the "Grantee"). WITNESSETH: WHEREAS, the Franchising Authority and TCI Cablevision of Missouri, Inc. (hereinafter called "TCI") had previously entered into a non-exclusive Franchise Agreement dated January 1, 1998, (hereinafter called the "Original Franchise Agreement"); and WHEREAS, TCI subsequently transferred both the Cable Communication System and Original Franchise Agreement to Falcon Communications, L.P. (hereinafter called ("Falcon"); and WHEREAS, on April 20, 1998, the Cape Girardeau City Council approved the transfer of the System from TCI to Falcon by Resolution Number 1359 entitled, "A Resolution of the City of Cape Girardeau, Missouri, Approving the Transfer of the Cable Communications System"; and WHEREAS, on May 4, 1998, the Cape Girardeau City Council approved the transfer of the Original Franchise Agreement from TCI to Falcon by Ordinance Number 2362 entitled, "An Ordinance of the City of Cape Girardeau, Missouri, Approving the Transfer of the Cable Communications Franchise"; and WHEREAS, thereafter, Falcon transferred both the Cable Communication System and Original Franchise Agreement to Charter Communications Holding Company, LLC; and WHEREAS, on August 2, 1999, the Cape Girardeau City Council approved the transfer of the system from Falcon to Grantee by Resolution Number 1485 entitled, "A Resolution of the City of Cape Girardeau, Missouri, Approving the Transfer of the Cable Communication System"; and WHEREAS, on August 16, 1999, the Cape Girardeau City Council approved the transfer of the Original Franchise Agreement from Falcon to Grantee by Ordinance Number 2573 entitled, "An Ordinance of the City of Cape Girardeau, Missouri, Approving the Transfer of the Cable Communications Franchise"; and WHEREAS, the Grantee has requested additional time to complete Phase II of the system upgrade as required by the Original Franchise Agreement; and WHEREAS, the Franchising Authority and the Grantee have reached an Agreement to allow this time extension for an enhanced system upgrade plus other additional requirements as set out in this Amended and Restated Cape Girardeau Cable Communications Franchise Agreement; NOW, THEREFORE, THE FRANCHISING AUTHORITY AND THE GRANTEE AGREE AS FOLLOWS: ARTICLE 1 GRANT OF NON-EXCLUSIVE FRANCHISE The Franchising Authority hereby grants to the Grantee the non-exclusive right and privilege: A. To engage in the business of operating and providing cable communications service which shall include high speed internet access and other interactive services, and the distribution and sale of such service to Subscribers within the City of Cape Girardeau, Missouri. B. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public way, lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as may be necessary and appurtenant to the operation of the cable communications system, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances otherwise complied with. C. To maintain and operate said cable communications system for the origination, collection, transmission, amplification, distribution and reception of cable service within the City of Cape Girardeau, Missouri. Nothing in this Franchise Agreement shall affect the right of City to grant to any other person a Franchise or right to occupy and use the streets, public ways or public places or any part thereof for the erection, installation, construction, reconstruction, operation, maintenance, dismantling, testing or repair or use of cable communications system within City. Having fully examined all of the provisions of the Cape Girardeau Cable Communications Ordinance in effect as of the effective date of this Franchise Agreement, the Grantee hereby accepts the award of the non-exclusive franchise and expressly promises and agrees to comply in all respects with every provision of such Ordinance as it now exists or is hereafter amended or supplemented, provided that where the provisions of the Ordinance and the Franchise Agreement are inconsistent the provisions of this Franchise Agreement shall control. -2- ARTICLE 2 TERM OF AGREEMENT This Agreement and the Franchise granted hereunder shall become effective upon the receipt of the Grantee's written acceptance according to the requirements of the Cape Girardeau Cable Communications Ordinance together with the execution, establishment and delivery of proof of any security and insurance required in the Cape Girardeau Cable Communications Ordinance. The grant of this Franchise shall be for a term of five (5) years beginning on January 1, 1998. This Franchise Agreement may be terminable for breach of any material term or condition hereof or for violations of any material provision of this Agreement or of the Cape Girardeau Cable Communications Ordinance. ARTICLE 3 ACCEPTANCE OF FRANCHISE The Franchising Authority and the Grantee agree to be bound by and to timely and fully perform and fulfill all of the terms, agreements, provisions, conditions, promises, offers, representations and inducements contained in this Franchise Agreement. The Grantee agrees that it is and shall be subject to the regulatory authority of the City as set out in this Franchise Agreement and the Cable Communications Ordinance which may from time to time only be supplemented or amended pursuant to the City's lawful police power and any powers provided under the Cable Act or by authority of the FCC. The Grantee represents, warrants and guarantees that neither it, nor its representatives or agents, have knowingly committed any illegal acts or engaged in any wrongful conduct contrary to, or in violation of any federal, state or local law or regulation in connection with the obtaining of the Franchise. The Grantee further warrants and represents as follows: A. That it is a Missouri corporation in good standing and has full right and authority to enter into and fully perform the terms of this Franchise Agreement. B. That it has taken all action necessary to authorize the execution and delivery of this Franchise Agreement and -3- the full performance of all the duties and obligations of the Grantee under the Franchise Agreement. ARTICLE 4 SYSTEM UPGRADE Grantee agrees to provide a complete system upgrade. The upgrade shall be completed in two (2) phases. On or before April 17, 1998, the Grantee shall complete Phase I of the system upgrade of the cable television system within the City. Phase I of the upgrade shall consist of a digital compression system and distribution equipment. On or before December 31, 2000, Grantee shall complete Phase II of the upgrade which shall ensure that the system has the capability to pass at least 750 Megahertz (MHZ), and shall include a master headend in the City of Cape Girardeau interconnecting Charter Cable Systems in nearby communities. Grantee shall commence actual construction activity in the City on Phase II of the upgrade no later than March 31, 2000. If Grantee exceeds the minimum bandwidth requirement by upgrading the system to 750 Megahertz (MHZ) or better, then this Franchise Agreement shall be extended for another five (5) years, at the written request of Grantee. Phase I of the upgrade shall include the same or a more recent version of the digital compression technology currently offered by TCI Cablevision of Central Connecticut and shall provide a minimum of 36 additional digitally compressed channels of video programming. There shall be no reduction in the number of channels that are currently provided in the basic or expanded basic tier services by this upgrade requirement. Phase II of the system upgrade shall additionally include two-way capability as set forth in the Cape Girardeau Cable Communications Ordinance, must be available to every area in the Cape Girardeau City Limits, for the normal installation fee, and must have a necessary signal strength to provide 750 MHZ throughout the City. Immediately, after the original January 1, 1998, signing of the Original Franchise Agreement, Grantee will give all legally required notices and immediately thereafter provide one (1) additional channel to its Basic Service during Phase I of the system upgrade period. During the upgrade periods and thereafter, all stations that are broadcast in stereo must be rebroadcast in stereo. The entire system must be able to accept and retransmit stereo signals in stereo. At such time as the Federal Communications Commission (FCC) establishes rules with respect to high definition television carriage on cable televisions systems, Grantee agrees to fully comply with all such rules as they may relate to carriage of high definition television signals within the City. At the request of the City, but not more often than every twenty-four (24) months, or twice during the term of this Franchise Agreement, whichever is less, the Grantee shall conduct a survey, of the subscribers within the City, using methods approved by the City and conducted so as to provide statistically reliable -4- measurements of subscriber preferences, to determine additional programming or services desired by the subscribers of the cable system. Grantee shall conduct one (1) additional survey at the request of the City, during any extension of this Franchise Agreement granted by the terms of this Article. The allowable margin of error shall be ± three per cent (3%). Within thirty (30) days after receiving the results of the survey, the Grantee will present to the City a complete copy of the survey results, and a report indicating Grantee's ability to offer such programming or services and the costs associated with the addition of such programming or services. In the event fifty per cent (50%) or more of the respondents request programming or services not currently offered, to the extent it is legally, technically and economically viable to offer the programming or services, Grantee will use its best efforts to do so. If the Grantee chooses not to provide such programming or services, it shall provide written notification to the City as to its reason for not providing them. All out-of- pocket expenses relating to the survey, shall be borne by the Grantee. During the interim, Subscribers shall be entitled to all other benefits specified in this Franchise Agreement. In addition to any other penalty provisions set out in the Cape Girardeau Cable Communications Ordinance, the Grantee will automatically be assessed a penalty of Five Hundred Dollars ($500.00) per day for each and every day after April 17, 1998, that the system has not been fully upgraded as provided in this article, subject to a maximum penalty period of six (6) months. If after that six (6) month period the system upgrade still has not been fully completed, Franchising Authority may begin revocation proceedings. These penalty provisions shall apply to the Phase II deadline as well. No penalties of any kind, however, shall be imposed against the Grantee for delays in upgrading the System when the delays are caused by acts of God, fires, strikes, or vendor - caused equipment delays. In the case of a vendor -caused equipment delay, the burden of proof will be on the Grantee to show that the delay was solely the failure of the vendor, and that the vendor was an established equipment supplier at the time the order was placed. During the period when the System is undergoing construction, upgrading or modification, the Grantee shall make every effort to minimize the incidence and length of service interruptions to its Subscribers, except in the case of an emergency. In the event the Grantee is aware that Subscriber service in any area of the City may be interrupted for a period exceeding three (3) hours, the Franchising Authority and all affected subscribers shall be notified prior to the interruption, when possible. Any interrupted service shall be subject to the provisions of the Cape Girardeau Cable Communications Ordinance. -5- ARTICLE 5 CUSTOMER SERVICE AND BILLING All billing statements sent by Grantee to the subscribers of the cable system shall most prominently display Grantee's telephone numbers for regular and after-hours service and complaints in the center of the bill. Grantee shall also insure that only Grantee's regular and after-hours telephone numbers for cable service and complaints are included in all telephone directories. ARTICLE 6 PUBLIC, EDUCATIONAL & GOVERNMENT ACCESS The Grantee agrees to provide, without charge, one (1) channel to be used for Public, Educational & Governmental (PEG) programming. Subject to applicable law, the PEG channel shall be used solely for PEG programming and the use of such channel shall be left to the sole discretion of the City. The City may contract with a third -party to oversee the operations of any public, educational or governmental channel. The Grantee will telecast without charge with at least two (2) broadcast quality cameras with hi -fidelity sound the regular meetings of the City Council, and such other meetings of the City Council and the School Board, as the City Council may hereafter designate. Telecasts will be of broadcast quality and taped or live at the City's option. Tapes of telecasts shall be on S -VHS, and those tapes or copies thereof shall be provided to the City immediately following production. Upon completion of Phase II of the System Upgrade, as contemplated by Article 4 hereof, the existing PEG channel shall become solely a Public or Governmental Channel at the City's option, and Grantee shall provide, without charge one (1) additional channel to be used for Educational programming. All PEG channel programming must be included on the Navigator system when Phase II of the System upgrade is completed. The use of all public, educational and governmental channels shall be left to the sole discretion of the City. In addition to the franchise fee required under Article 8-32 of the Cape Girardeau Cable Communications Ordinance, Grantee shall make a grant in the sum of Thirty Thousand Dollars ($30,000.00) per year for support for the public, educational and governmental channels. This payment shall be made to the City of Cape Girardeau. Q. Any lines and equipment necessary to provide the appropriate connection and interface between equipment of the City and the public, educational and governmental channels shall also be provided by the Grantee at no additional charge to the city, for the following locations: 1. City Offices, 401 Independence, Cape Girardeau, MO 2. Peg Access Studio, 100 Broadway, Cape Girardeau, MO 3. Ron Duff Studio, 1025 Broadway, Cape Girardeau, MO 4. Cape Central High School Administrative Office, 61 North Clark, Cape Girardeau, MO 5. Show Me Center, 1333 North Sprigg, Cape Girardeau, MO 6. Grauel Language Arts Building, Pacific and Watkins, Cape Girardeau, MO Further, Grantee shall provide such connection and interface, at no additional charge to the City, for these additional locations: 1. Vocational -Technical School, to be constructed, Cape Girardeau, MO 2. Up to two (2) additional sites to be named by the City during the term of this Franchise Agreement, plus one (1) additional site during any extension mentioned in Article 4 hereof. If those locations are within three hundred (300) aerial feet, or one hundred -fifty (150) underground feet, whichever is greater, of existing service lines. If such locations are outside of that area, Grantee shall still provide the connection, but the City will be responsible for all costs required to lay lines for the excess distance. ARTICLE 7 INCORPORATION OF CAPE GIRARDEAU CABLE COMMUNICATIONS ORDINANCE The provisions of the Cape Girardeau Cable Communications Ordinance are specifically incorporated herein by reference as if set forth verbatim. -7- ARTICLE R REPORTING PROVISIONS In addition to all other reports or information required by the Cape Girardeau Cable Communications ordinance, no later than ninety (90) days after the end of the Grantee's fiscal year, Grantee shall submit a written report to the City which shall include: (1) A summary of the previous year's activities in the development and operation of the cable system, including, but not limited to, services begun or dropped, equipment added or removed, Effective Billing Units (EBUs) gained or lost, and list of tests conducted. (2) A statement of revenue prepared by a certified public accountant or officer of the Grantee. (3) A list of officers and members of the Board of the Grantee and the parent corporation. (4) A list of all stockholders holding three (3) percent or more of the voting stock of the Grantee and the parent corporation. (5) Copies of all petitions, applications, communications and reports submitted by Grantee to any federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting system operations, any responses from the regulatory commissions or agencies to Grantee. (6) A summary of all preventive maintenance programs, design changes, capital purchases and construction undertaken in the past year. (7) A compilation summarizing the complaints received during the reported year, by category, number for each category, and a discussion of any unresolved complaints. The City Council and Grantee may agree, in addition to the provisions herein set forth, to additional, updated or enhanced reporting. If directed by the City Council, Grantee shall present a summary of its annual report at a public hearing at which the members of the general public may comment thereon. Grantee shall maintain for inspection by the City at all times a current map or set of maps drawn to scale showing the system and all equipment installed or in place in streets, easements and other public places. The maps shall be updated on a semi-annual basis if changes have been made. MM ARTICLE 9 CITY PURCHASE OF SYSTEM Subject to applicable law: If a renewal or extension of the Grantee's Franchise is denied or the Franchise is lawfully terminated, the City shall have the right to purchase the system at an equitable price. If a renewal or extension of the Grantee's Franchise is denied or the Franchise is lawfully terminated, 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 the price determined pursuant to the provisions set forth in Section 627 of the Cable Act. ARTICLE 10 SERVICE OF 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 notices or responses to the Franchising Authority shall be addressed as follows: City Manager City Hall 401 Independence Cape Girardeau, Missouri 63701. The notices or responses to the Grantee shall be addressed as follows: With a copy to: Charter Communications 1620 North Kingshighway Cape Girardeau, Missouri 63710-5829, Attn: General Manager Charter Communications Attn: Vice President -Government Relations 12444 Powerscourt Drive, Suite 100 St. Louis, Missouri 63131-3660 cm The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other. ARTICLE 11 MISCELLANEOUS Supersedes Prior Agreements. This Amended and Restated Franchise Agreement shall supersede the Original Franchise Agreement in all respects and such Original Franchise Agreement shall be null and void from and after the date of execution of this Amended and Restated Franchise Agreement. Open Access. Approval of this Amended and Restated Franchise Agreement, or any extension authorized herein, does not waive or diminish any lawful authority of the City of Cape Girardeau to require the provision of non-discriminatory access to the Grantee's cable modem platform for providers of internet access service subject to applicable law. Grantee and the City have not waived any rights, obligations, claims, defenses or remedies regarding the City's authority to impose such conditions. Prior to the enactment or enforcement of any such requirements, Grantee shall be provided with reasonable notice and an opportunity to be heard, including the right to present evidence on any findings to be made or required to be made by the City with respect to the need for such a requirement. nral Modification. This Franchise Agreement shall not be changed, modified or amended in whole or in part except in writing and signed by all the parties. fieverability. If any provision of this Franchise Agreement shall be held invalid, the remaining provisions, and their application, shall not be affected. Merger Clause. This Franchise Agreement constitutes the entire contract between the parties and there are no other understandings, oral or written, relating to the subject hereof, other than that the Grantee agrees to be bound by all the applicable ordinances of general applicability of the City of Cape Girardeau, Missouri, existing today or as may be amended or enacted. Obligations to Continue Throughout Term. Unless otherwise specifically stated, all obligations under this Franchise Agreement shall continue throughout the entire term or extension of this Franchise Agreement. -10- Headings. Article headings used in this Franchise Agreement are for convenience of reference only and shall not affect the construction of this Franchise Agreement. Governing Law. This Franchise Agreement shall be governed insofar as applicable in accordance with the laws of the State of Missouri. Where federal jurisdiction applies, this Franchise Agreement shall be governed by the applicable laws and agencies of the United States. ATTEST: Gayle L. Conrad, City Clerk ATTEST: CITY OF CAPE GIRARDEAU, MISSOURI Michael G. Miller, City Manager CHARTER COMMUNICATIONS HOLDING COMPANY, LLC A� S. 4111V Senior Vice Presid nt /� , - -L.'N/ A/— c t � . , Z� � �' J //� k"-' Witness -11-