HomeMy WebLinkAboutOrd.1728.06-19-1995 T: �� r�/
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BILL NO. 95-105 ORDINANCE NO. I �?G
AN ORDINANCE AUTHORIZING THE GRANTING
OF FRANCHISES TO OPERATE AND MAINTAIN
CABLE COMMUNICATION SYSTEMS IN THE CITY;
SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANTS OF FRANCHISES; PROVIDING FOR
CITY REGULATION AND ADI'JIINIS7RATION OF
SUCH CABLE COMMUNICATIONS SYSTEMS; AND
PRESCRIBING PENALTIES FOR VIOLATION OF THE
FRANCHISE PROVISIONS
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAII,
MISSOURI, AS FOLLOWS:
ARTICLE 1. Chapter 8 of the Code of Ordinances of the City of
Cape Girardeau, Missouri, entitled "Cable TV Franchise" is hereby
repealed in its entirety and a new Chapter 8 is hereby enacted in lieu
thereof, entitled "Cable Communications, " in words and figures, as
follows, to-wit:
CHAPTER 8
CABLE COMMIINICATIONS
Sec. 8-1. SHORT TITLE.
This Chapter shall be known as the "Cape Girardeau Cable
Communications Ordinance. "
Sec. 8-2. DEFINITIONS.
For the purposes of this Chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number, words in the singular number include the plural number, and the
use of any gender shall be applicable to all genders whenever the sense
requires. The words "shall" and "will" are mandatory and the word
"may" is permissive. Words not defined shall be given their common and
ordinary meaning.
A. Applicant shall mean any person submitting an application for
a cable communications franchise.
B. Basic Cable service shall be defined as the term is defined
in the Cable Act. If not defined therein, basic cable service shall
mean that tier of service regularly provided to all subscribers that
includes, but is not necessarily limited to, the retransmissions of
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local broadcast television signals, and public, educational and
governmental access programming as may be required by the terms and
conditions of a franchise issued under this Chapter.
C. Broadcast Services shall mean a broad category of programming
which is received from broadcast television, low power television and
radio stations, and is capable of being received in the City of Cape
Girardeau, Missouri.
D. Cable Act shall mean the Cable Communications Policy Act of
1984, as amended by the Cable Television Consumer Protection &
Competition Act of 1992, 47 U.S.C.A. 521 §§ et sea. , including whatever
amendments may be made to it subsequent to the adoption of this
Ordinance.
E. Cable Service shall mean (i) the one-way transmission to
Subscribers of video programming or other programming service, and (ii)
subscriber interaction, if any, which is required for the selection of
Video Programming or any other lawful communication service.
F. Cable Communications System, or Cable System, means a
facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is
designed to provide cable service which includes video programming and
which is provided to multiple subscribers within a community, but such
term does not include (A) a facility that serves only to retransmit the
television signals of 1 or more television broadcast stations; (B) a
facility that serves only subscribers in 1 or more multiple unit
dwellings under common ownership, control, or management, unless such
facility or facilities uses any public right-of-way; (C) a facility of
a common carrier which is subject, in whole or in part, to the
provisions of subchapter II of this chapter, except that such facility
shall be considered a cable system (other than for purposes of section
541(c) of this title) to the extent such facility is used in the
transmission of video programming directly to subscribers; or (D) any
facilities of any electric utility used solely for operating its
electric utility system.
G. City shall mean the City of Cape Girardeau, State of
Missouri, and all the territory within its present and future
boundaries. The City Council ("Council") is the governing authority of
the City.
H. Developed parcel shall mean any area of the City where there
are at least twenty (20) occupied dwelling units per mile to be served
by aerial cable plant or at least thirty (30) occupied dwelling units
per mile to be served by cable underground plant, as measured from the
closest cable television distribution facilities.
I. Dwellinq unit shall mean any single-family residential
dwelling, whether a freestanding house or an individual unit in a
multiple residential place of occupancy.
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J. F.C.C. means the Federal Communications Commission, or
successor governmental entity thereto.
R. Franchise shall mean the initial authorization or renewal
thereof, issued by the Franchising Authority, whether such
authorization is designated as a franchise, permit, license,
resolution, contract, certificate or otherwise, to erect, construct,
reconstruct, operate, dismantle, test, use and maintain a Cable System
in the City for the purpose of offering Cable Service or other service
to Subscribers.
L. Franchise Agreement shall mean a contractual agreement
entered into between the Franchising Authority and any Grantee
hereunder which sets forth the rights and obligations between the
Franchising Authority and said Grantee in connection with the
Franchise.
M. Franchising Authority shall mean the City of Cape Girardeau,
State of Missouri, or the lawful successor, transferee, or assignee
thereof.
N. Grantee shall mean any person granted a Franchise hereunder,
and its lawful successor, transferee or assignee thereof.
O. Gross Revenues shall mean any revenue derived directly or
indirectly by a Grantee, arising from or attributable to the operation
of the Cable System in the City, including but not limited to:
(1) Revenue from all charges for services provided to subscribers
of entertainment and non-entertainment services;
(2) Revenue from all charges for the insertion of commercial
advertisements upon the System;
(3) Revenue from all charges for leased access or the use of
studios and facilities;
(4) Revenue from all charges for the installation, connection and
reinstatement of a subscriber for the provision of cable
service and other services including any charges associated
with the equipment necessary for utilization of the Cable
System;
(5) Revenue from the sale, exchange or use or cablecast of any
programming developed on the Cable System for community or
institutional use;
(6) Any payments received for the carriage of certain channels or
programming and any rebates paid to the Grantee for goods
sold on or through any channels carried; or
(7) Revenue from the sale of advertising or advertising time on
the Cable System.
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P. Institution. A building or buildings, facility or facilities,
where cable service may be utilized in connection with a business,
trade, profession, public agency or service, school, or nonprofit
organization.
Q. Institutional network. A cable communications network
designed principally for the provision of nonentertainment interactive
services to businesses, schools, public agencies or other nonprofit
agencies for use in connection with the ongoing operations of such
institutions.
R. Institutional services. Services delivered on the
institutional network.
S. Institutional subscriber. A place of business, public
agency, school or nonprofit corporation receiving institutional
services on the institutional network.
T. Interactive services. Services provided to subscribers where
the subscriber either: (a) both receives information consisting of
either television or other signals and transmits signals generated by
the subscriber or equipment under his/her control for the purpose of
selecting what information shall be transmitted to the subscriber or
for any other purpose; or (b) transmits signals to any other location
for any purpose.
II. Leased Access shall mean channel capacity designated in
accordance with Section 612 of the Cable Act.
V. Local oriqination channel. Any channel or portion of a
channel where the Grantee is the designated programmer, and which is
utilized to provide locally originated programming to subscribers.
W. Ordinance shall mean the Cape Girardeau Cable Communications
Ordinance.
R. Person shall mean any individual, firm, corporation,
partnership, association, joint venture or organization of any kind and
the lawful trustee, successor, assignee, transferee or personal
representative thereof.
Y. Premium or pay-TV service shall mean pay-per-program, pay-
per-channel or subscription cable service that is delivered to
subscribers for a fee or charge over and above the regular charges for
Basic Cable Service.
Z. Public Access Channel shall mean any channel or portion of a
channel where any member of the general public may utilize such
facilities on a first-come, first-served basis, subject to appropriate
rules formulated by the Franchising Authority and/or the Grantee.
AA. Public Way shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, land path, alley,
court, boulevard, sidewalk, parkway, way, lane, public way, drive,
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circle or other public right-of-way, including, but not limited to,
public utility easements, dedicated utility strips, or rights-of-way
dedicated for compatible uses and any temporary or permanent fixtures
or improvements located thereon now or hereafter held by the
Franchising Authority in the Service Area which shall entitle the
Franchising Authority and the Grantee to the use thereof for the
purpose of installing, operating, repairing and maintaining the Cable
System. Public Way shall also mean any easement now or hereafter held
by the Franchising Authority within the Service Area for the purpose of
public travel, or for utility or public service use dedicated for
compatible uses, and shall include other easements or rights-of-way as
shall, within their proper use and meaning, entitle the Franchising
Authority and the Grantee to the use thereof for the purpose of
installing or transmitting Grantee's Cable Service or other service
over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments and other property as may
be ordinarily necessary and pertinent to the Cable System.
BB. Service Area shall mean the municipal boundaries of the
Franchising Authority as of the date of the Franchise Agreement between
the City and the Grantee and shall include any additions thereto by
annexation or other legal means.
CC. Residential network. A cable communications network designed
principally for the delivery of entertainment, community access and/or
interactive services to individual dwelling units.
DD. Residential services. Services delivered on the residential
network.
EE. Residential subscriber. A subscriber who receives
residential services on the residential network.
FF. School is any public, parochial or private not-for-profit,
elementary school, secondary school, junior college, college or
university which conducts classes or provides instructional services
and which has been granted a certificate of recognition by the State of
Missouri.
GG. Subscriber shall mean any person or institution who lawfully
receives a service provided by the Grantee by means of or in connection
with the cable communications system with the Grantee's express
permission whether or not a fee is paid for such service.
HH. Video Proqramminq means programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station.
Sec. 8-3. FRANCHISE GRANT.
A. Authority to grant franchises for cable communications
system. It shall be unlawful to engage in or commence construction,
operation or maintenance of a cable communications system in the City
without a Franchise issued under this Chapter. The Franchising
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Authority may, by ordinance, award a nonexclusive franchise to
construct, operate and maintain a cable communications system within
the City to any person, whether operating under an existing franchise
or not, who makes application for authority to furnish a cable
communications system which complies with the terms and conditions of
this Chapter. Any franchise for the construction, maintenance and
operation of cable television systems using the public streets, utility
easements, other public right-of-ways or places shall conform to the
provisions of this Chapter, unless otherwise provided for by the terms
of the Franchise Agreement.
B. Equal Protection. In the event the Franchising Authority
enters into a Franchise, permit, license, authorization or other
agreement of any kind with any other person or entity to enter into the
Franchising Authority's streets and Public Ways for the purpose of
constructing or operating a Cable System or providing Cable Service to
any part of the Service Area, the material provisions thereof shall
confer no greater benefit upon such other person or impose no greater
burden upon such other person in order that one Grantee not be granted
an unfair competitive advantage over another and to provide all parties
equal protection under the law.
C. Incorporation by reference.
1. The provisions of this Chapter shall be incorporated by
reference in any Franchise Agreement approved hereunder.
2. The provisions of any request for proposals (RFP) issued
hereunder, including any minimum system and service specifications set
forth therein, may be incorporated by reference in any Franchise
Agreement approved hereunder but only to the extent explicitly stated
in the Franchise Agreement.
3. The provisions of any Franchise Application or proposal
submitted and accepted by the Franchising Authority may be incorporated
by reference in the applicable Franchise Agreement but only to the
extent explicitly stated in the Franchise Agreement.
D. Nature and Extent of the Grant. Any Franchise granted
hereunder by the Franchising Authority shall be nonexclusive and shall
authorize the Grantee, subject to the provisions herein contained:
1. To engage in the business of operating and providing cable
communications service and the distribution and sale of such service to
Subscribers within the City.
2. 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.
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3. To maintain and operate said cable communications system for
the origination, collection, transmission, amplification, distribution
and reception of cable service within the City.
E. Duration of Franchise.
1. A Franchise shall be effective on the day after approval of
the Franchise Agreement, provided that the Grantee has filed, within
sixty (60) days after such approval, a written instrument, addressed to
the Franchising Authority, accepting a Franchise, together with the
proof of insurance and security reguired by the provisions of this
Chapter and the terms of the Franchise Agreement, agreeing to comply
with all of the provisions hereof.
2 . The Franchise duration shall be as set forth in the Franchise
Agreement, but in no event shall exceed fifteen (15) years. A
Franchise shall expire upon the end of its term as provided in the
Franchise Agreement, as measured from its effective date pursuant to
Paragraph E. 1. and in accordance with the terms and conditions set
forth in the Franchise Agreement, which incorporates the terms and
conditions of this Chapter by reference.
F. Revocation Or Termination Of Franchise.
1. In the event that the Franchising Authority believes that the
Grantee has not complied with the terms of the Franchise, it shall
notify Grantee in writing of the exact nature of the alleged
noncompliance.
2 . The Grantee shall have thirty (30) days from receipt of the
notice described in paragraph F. 1. above: (a) to respond to the
Franchising Authority contesting the assertion of noncompliance; or (b)
to cure such default; or (c) in the event that, by the nature of
default, such default cannot be cured within the thirty (30) day
period, initiate reasonable steps to remedy such default and notify the
Franchising Authority of the steps being taken and the projected date
that they will be completed.
3. In the event that the Grantee fails to respond to the notice
and follow the procedures set forth in paragraphs F. 1. and 2 . above or
in the event that the alleged default is not remedied within sixty (60)
days after the Grantee is notified of the alleged default pursuant to
paragraph F. 1. above, the Franchising Authority shall schedule a public
meeting to investigate the default. Such public meeting shall be held
at the next regularly scheduled meeting of the Franchising Authority
which is scheduled at a time which is no less than five (5) business
days therefrom. The Franchising Authority shall notify the Grantee of
the time and place of such meeting and provide the Grantee with an
opportunity to be heard.
4. Subject to applicable federal, state and local law, in the
event the Franchising Authority, after the public meeting required in
paragraph F. 3 . above, determines that Grantee is in default of any
provision of the Franchise, the Franchising Authority may:
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(a) Foreclose on all or any part of any security provided under
this Franchise, if any, including without limitation, any
bonds or other surety; provided, however, the foreclosure
shall only be in such a manner and in such amount as the
Franchising Authority reasonably determines is necessary to
remedy the default;
(b) Commence an action at law for monetary damages or seek other
equitable relief;
(c) In the case of a substantial default of a material provision
of the Franchise, declare the Franchise Agreement to be
revoked; or
(d) Seek specific performance of any provision which reasonably
lends itself to such remedy as an alternative to damages.
The Grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure
of the Franchising Authority to enforce prompt compliance.
5. The Grantee shall not be held in default or noncompliance
with the provisions of the Franchise nor suffer any enforcement or
penalty relating thereto where such noncompliance or alleged defaults
are caused by strikes, acts of God, power outages or other events
reasonably beyond its ability to control.
6. Alternative Remedies. No provision of this Ordinance shall
be deemed to bar the right of either the City or the Grantee to seek or
obtain judicial relief from a violation of any provision of this
Chapter or a franchise agreement or any rule, regulation, requirement
or directive promulgated thereunder. Neither the existence of other
remedies identified in this Chapter nor the exercise thereof shall be
deemed to bar or otherwise limit the right of the City or the Grantee,
if applicable to recover monetary damages (except where liquidated
damages are otherwise prescribed) for such violations or judicial
enforcement of the obligations by means of specific performance,
injunctive relief or mandate, or any other judicial remedy available at
law or in equity.
7. Non-Enforcement. Subject to applicable law, including
provisions of the Cable Act, a Grantee shall not be relieved of any
obligation to comply with any of the provisions of this Chapter or a
franchise agreement, or any rule, regulation, requirement or directive
promulgated thereunder by reason of any failure of the City or its
officers, agents or employees to enforce prompt compliance, nor shall
any such failure to enforce be considered a waiver thereof.
8. Nothing herein shall be deemed to create or enlarge or be
construed to impair, limit, or affect, in any way or to any extent, the
right of the City, if any, to acquire the property of the Grantee
through the exercise of the right of eminent domain, nor any other
right or remedy of the City under the franchise, this Chapter, or at
law or equity.
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9. In the event of any holding over after expiration or other
termination of any Franchise granted hereunder, the Grantee shall pay
to the Franchising Authority all fees consistent with the provisions
herein as if there had not been such holding over and as if the terms
and conditions of the Franchise continued in full force and effect. In
the event of any such holding over, in direct contravention by the
Grantee of a final valid order of the Franchising Authority expressed
by resolution and affirmed by a court of competent jurisdiction,
requiring the Grantee to cease and desist all operations upon a certain
date, then and in that event, the Grantee shall pay to the Franchising
Authority, reasonable compensation and damages.
Sec. 8-4. CONSTRIICTION OF FRANCHISE.
A. Interpretation. Unless otherwise specifically prescribed
herein, the following provision shall govern the interpretation and
construction of a Franchise:
A Franchise does not relieve the Grantee of any lawful
requirement of the Franchising Authority or of any applicable
ordinance, rule, regulation or specification of the City, heretofore or
hereinafter adopted, including, but not limited to requirements
relating to street work, street excavation permits, or the use, removal
or relocation of property in the streets.
B. Limitations upon Grant.
1. Any privilege claimed under a Franchise by the Grantee in any
street or public way shall be subordinate to any prior lawful permanent
occupancy of the street or public way. The Franchising Authority
reserves the right to reasonably designate where a Grantee's facilities
are to be placed within the public ways.
2. A Franchise is a privilege to be held in trust by the
original Grantee. It cannot, in any event, be transferred in whole or
in part, and, neither it nor ownership or control of the Grantee (as
defined in paragraph (f) below) may be sold, transferred, leased,
merged, assigned or disposed of, either by forced sale, merger,
consolidation or otherwise, without prior consent of the Franchising
Authority expressed by resolution; provided, however, that no such
consent shall be unreasonably withheld, and no consent shall be
required for any transfer in trust, mortgage or other hypothecation, as
a whole, to secure an indebtedness.
(a) In the absence of extraordinary circumstances, the
Franchising Authority will not approve any such transfer
prior to substantial completion of construction or
reconstruction of the proposed Cable System.
(b) Whenever any transfer subject to Franchising Authority
approval hereof is proposed, the Grantee shall give the
Franchising Authority notice thereof, and such information
concerning the transferee as is required pursuant to Section
617 of the Cable Act.
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(c) No such transfer shall be approved unless the proposed
transferee shall have agreed in writing to comply with all
the provisions of the Cape Girardeau Cable Communications
Ordinance, as well as the applicable Franchise Agreement and
is found by the Franchising Authority to be, in all respects,
legally, technically and financially qualified and to possess
the operating experience reasonably deemed necessary by the
Franchising Authority in order to hold a City cable system
franchise. Furthermore, no such approval shall be granted
unless all monies accruing to the Franchising Authority as of
the date of transfer, whether by way of fees, penalties,
damages or otherwise, have first been paid in full or are
guaranteed to be paid out of the consideration received by
the transferor for such transfer.
(d) Any sale, transfer, assignment, pledge, lease, sublease or
other encumbrance of whatever kind or nature made in
violation of the provisions of this section shall be void.
(e) Consent of the Franchising Authority shall not be granted
until it has examined the proposed assignee's legal,
financial, technical, character and other qualifications to
construct, operate and maintain a cable communications system
in the City.
(f) In the event that Grantee is a corporation, prior approval of
the Franchising Authority shall be required where there is an
actual change in control or where ownership of more than
fifty per cent (50%) of the voting stock of the Grantee is
acquired by a person or group of persons acting in concert,
none of whom already own fifty per cent (50%) or more of the
voting stock, individually or collectively. Any such
acquisition occurring without prior approval of the
Franchising Authority shall constitute a failure to comply
with a provision of this Chapter.
3. The Grantee shall at all times comply with all applicable
rules of the F.C.C. as they may be amended from time to time.
4. A Grantee, shall at all times during the life of its
Franchise, be subject to the lawful exercise of the Franchising
Authority's police power and such reasonable regulations as the
Franchising Authority may subsequently promulgate thereunder.
5. Whenever in the judgment of the City it is deemed
impracticable to permit the erection of poles or the construction of an
underground conduit system by any user thereof, which may at the time
have authority to construct or maintain conduit or poles in the public
rights-of-way, the City may, where not inconsistent with good
engineering practices, require the Grantee to afford to the City or an
authorized user thereof the right to use such poles or facilities of
the Grantee as the City finds practicable. In this event, the Grantee
and the authorized user thereof must agree upon reasonable terms of
use, but in case they fail to agree within a reasonable time, then upon
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such terms, conditions and regulations governing the same as the City
may determine to be just and reasonable. The Grantee may impose
reasonable conditions and fees for such use.
6. Subject to Federal and State law, any franchise granted shall
be in lieu of any and all other conflicting rights, privileges, powers,
immunities, and authorities owned, possessed, controlled, or
exercisable under other City law or regulation by the Grantee, or any
successor to any interest of the Grantee, of or pertaining to the
construction, operation or maintenance of any cable communications
system in the City.
7. No franchise shall authorize use of any public property other
than public rights-of-way and public utility easements owned by the
City, unless such franchise or subsequent resolution of the Council
expressly authorizes such other public property.
8. Any privilege claimed, under such franchise granted, in any
public right-of-way or other public property shall be subordinate to
the public use thereof.
9. The Grantee shall be subject to the provisions of general
laws of the State of Missouri or as hereafter amended, when applicable
to the exercise of any privilege contained in any franchise granted
pursuant to this chapter, including but not limited to those pertaining
to works and activities in and about state highways.
10. The Grantee shall be prohibited from directly or indirectly
doing any of the following:
(a) Soliciting, referring, or causing or permitting the
solicitation or referral of any Subscriber to persons engaged
in any business herein prohibited to be engaged in by the
Grantee.
(b) Providing information concerning the viewing patterns of
identifiable subscribers to any group, organization or person
for any purposes, unless authorized to do so by the
Subscriber and as consistent with applicable law.
li. Should the Grantee ever fail to pay any sum of money owing to
the City under the provisions of this Chapter or the Franchise
Agreement, when such sum becomes due and payable, the Grantee shall pay
interest on the delinquent sum, until it is fully paid at nine (9)
percent.
12 . A franchise to proceed with the operation, or construction
and operation, of a cable communications system shall not be construed
as any limitation upon the right of the City to grant to other persons,
rights, privileges or authority in the same or other streets, alleys,
public highways public places, or other public rights-of-way by an
agreement, a franchise, a permit or otherwise.
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C. Riqhts reserved to City. There is hereby provided and
reserved to the City every right and power which is required to be
herein reserved or provided by any provision of the City or its
ordinances, as amended, and the Grantee by its acceptance of a
franchise agrees to be bound thereby to all ordinances of general
applicability and to comply with any action or requirement of the City
in its exercise of any such right or power.
1. Neither the granting of a franchise nor any provision hereof
shall constitute a waiver or bar to the exercise of any governmental
right or power of the City, including the regulation of rates charged
by a Grantee, to the full extent permitted by law.
2. The City hereby reserves to itself the right to intervene in
any suit, action, or proceeding involving any provision of this Chapter
and/or the Grantee's franchise.
3. The City, at its option, when for reasonable cause as
determined by the Council by a duly adopted written resolution, may
require that the annual proof-of-performance tests, addressed in this
Chapter, be conducted or observed by a qualified member of the City's
staff or its designated representatives. The City reserves the right
to have the measurements, associated with the City observed performance
tests, conducted at City selected points and at a greater, but
reasonable, number of test points than the minimum required by the
F.C.C. Rules.
4. The Franchising Authority reserves the right to negotiate
with the Grantee other reasonable technical and operational performance
standards for system franchises granted pursuant to this Chapter. The
Grantee shall have the duty to negotiate in good faith with the City.
5. The Franchising Authority reserves the right to enact
reasonable regulations pertaining to any Franchise granted pursuant to
this Chapter which may include, but is not limited to:
(a) Construction and use of poles;
(b) Use of poles and conduits by the City;
(c) Joint user;
(d) Filing of pole user agreement (The Grantee shall have the
right to redact proprietary information in such circumstances) ;
(e) Reservation of street rights;
(f) Restoration of streets; and
(g) Movement of facilities.
6. Subject to federal and state law, the City reserves the right
to further regulate the conduct of the Grantee in regard to the privacy
and property rights of private citizens. Such regulations may include,
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but are not limited to, the security of all records maintained by the
Grantee containing privacy sensitive information, personnel practices
relating to such records and any other matters related to privacy and
individual rights.
7. The Franchising Authority reserves the right to maintain, or
establish and maintain, a cable communications advisory committee to
assist the Franchising Authority in regulating cable activity in the
City and to assist the Franchising Authority in the use of the PEG
access channels, if any. The members and duties of any such committee,
if any, may be established by the Franchising Authority.
8. The City shall have the right, without charge of a rental
fee, of installing, maintaining and operating, upon poles, and in
conduit of the Grantee, coaxial cable, wire, fixtures, and
appurtenances necessary for a City communications system; provided that
it is practical, that it is installed according to standard engineering
practice, and that such equipment is installed, maintained and operated
so as not to compete directly or indirectly with the Grantee's business
and services or to interfere with property or operations of the
Grantee. In the event that the City's communication system does
compete directly or indirectly with services of the Grantee, the
Grantee may charge for the use of its poles or conduit. The Grantee
shall be held harmless from any responsibility for damage to City
equipment resulting from the Grantee's normal use and operation of the
Grantee's equipment. The Grantee shall not be responsible for any
damage without his/her fault resulting to the wires, cables or property
of the City from such use by the City. The Grantee shall not charge
the City for the use of the Grantee's poles or conduit, provided
however, that the City shall be responsible for any additional expense
incurred by the Grantee for any "make-ready" costs associated with the
use of the poles or conduit. The Grantee will notify the City of such
costs and may require advance payment before allowing the use of its
poles or conduit.
SECTIONS 8-5 THROUGH 8-10 RESERVED.
Sec. 8-11. FRANCHISING PROCEDIIRES.
A. Initial Franchise application.
1. This Chapter itself grants no authority to operate a cable
communications system to any person. Such grants are made only by the
adoption of a separate ordinance awarding a specific franchise to an
applicant who has complied with the provisions of this Chapter.
2 . Each application for the grant of an initial franchise, to
construct, operate or maintain any cable communications system in this
City shall be filed with the City Clerk and shall contain or be
accompanied by the following, as a minimum:
(a) The name, address and telephone number of the applicant.
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(b) A detailed statement of the corporate or other business
entity organization of the applicant including, but not
limited to, the following:
(1) The names and addresses of all officers, directors and
associates of the applicant;
(2) The names and addresses of all officers, persons and
entities controlling or being entitled to have control
of fifteen (15) per cent or more of the ownership of the
applicant and the respective ownership share of each
person or entity;
(3) The names and addresses of any parent or subsidiary of
the applicant, namely, any other business entity owning
or controlling applicant in whole or in part or owned or
controlled in whole or in part by the applicant, and a
statement describing the nature of any such parent or
subsidiary business entity, including but not limited to
cable television systems owned or controlled by the
applicant, its parent and subsidiary and the areas
served thereby;
(4) A detailed description of all previous experience of the
applicant in providing cable television communications
system service in related or similar fields; and
(5) A detailed and complete financial statement of the
applicant.
(6) A statement identifying, by place and date, any and all
cable television franchises awarded the applicant,
whether currently or previously held; the status of said
franchises with respect to completion thereof; the total
cost of such systems; the amount of applicant's and its
parent's or subsidiary's resources committed to the
completion thereof, and whether any of the franchises
held by the company are or have been in litigation
concerning the validity of the franchise or if there is
or has been in litigation with the municipality
concerning any operation of the cable system. In
addition, a statement indicating all disputes which have
resulted in sanctions from any regulatory body
concerning the operation of its cable system .
(c) A thorough, detailed description of the proposed cable
communications system and plan of operation of the applicant
which shall include, but not be limited to, the following:
(1) A detailed map indicating all areas proposed to be
served, and a proposed time schedule for the
installation of all equipment necessary to become
operational throughout the entire area to be served;
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(2) A detailed, informative and referenced statement
describing the actual equipment and operational
standards proposed by the applicant. In no event shall
said operational and performance standards be less than
those adopted by the rules and regulations of the F.C.C.
(3) An itemized estimate of the cost of constructing the
applicant's proposed system;
(4) A copy of the form of any agreement, undertaking or
other instrument proposed to be entered into between the
applicant and any Subscriber;
(5) A detailed statement setting forth in its entirety any
and all agreements and undertakings, whether formal or
informal, written, oral, or implied, existing or
proposed to exist between the applicant and any person,
firm or corporation which materially relate or pertain
to or depend upon the application and the granting of
the franchise.
(6) A statement or schedule setting forth all proposed
classifications of rates and charges to be made against
Subscribers and all rates and charges as to each of said
classifications, including installation charges and
service charges.
(d) A copy of any agreement existing between the applicant and
any public utility subject to regulation by the Missouri
Public Service Commission providing for the use of any
facilities of the public utility, including but not limited
to poles, lines or conduits, within the City and/or adjacent
areas. The applicant shall have the right to redact
proprietary information contained in the agreements.
(e) Any other details, statements, information or references
pertinent to the subject matter of such application which
shall be reasonably required or requested by the City
manager, or by any provision of any other ordinance of the
City.
(f) An application fee in the amount of twenty-five thousand
dollars ($25, 000.00) which shall be in the form of cash,
certified or cashier's check or money order, to pay the costs
of studying, investigating, and otherwise processing such
application, and which shall be in consideration thereof and
not returnable or refundable in whole or in part, except to
the extent that such fee exceeds the actual costs incurred by
the City in studying, investigating and otherwise processing
the application; provided, that any applicant who shall
deliver to the City clerk a written withdrawal of or
cancellation of any application following the date such
� application is received by the City clerk, shall be entitled
to have returned and refunded the sum of fifty (50) per cent
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of the fee less any actual costs or expenses incurred by the
City by reason of such application.
3. Except as may be preempted by federal and/or state law, the
Council may, by advertisement or otherwise, solicit for any other
applications for cable communications system franchises, and may
determine and fix any date upon, after, or before which the same shall
be received by the City, or the date before which the same shall not be
received, and may make any other determinations and specify any other
times, terms, conditions or limitations respecting the soliciting,
calling for, making and receiving of such applications.
4. Upon receipt of any application for an initial franchise, the
Council shall refer the same to the City manager, who shall prepare a
report and make recommendations respecting such application, and cause
the same to be completed and filed with the Council within one hundred
twenty (120) days.
5. In making any determinations hereunder as to any application
for an initial franchise, the Council shall give due consideration to
the quality of the service proposed, rates to subscribers, experience,
character, background, and financial responsibility of any applicant,
and its management and owners, technical and performance quality of
equipment, willingness and ability to meet construction and physical
requirements, and to abide by policy conditions, franchise limitations
and requirements, and any other consideration deemed pertinent by the
Council for safeguarding the interest of the City and the public. The
Council, in its discretion, shall determine the award of any franchise
on the basis of such considerations and without competitive bidding.
No person shall in any way be favored or discriminated against in the
franchise application and consideration process because of age, race,
national origin, color, sex, physical handicap, or political or
religious affiliations, preferences, or viewpoints.
(a) For all initial franchise applications, the City shall:
(1) Review the application and all information submitted
therewith, as to both completeness and competency
thereof;
(2) Request and evaluate supplemental documentation which
may from time to time be required as a function of the
thorough review of the application and plans and
specifications submitted therewith;
(3) Request and review all documentation necessary for
verification of the applicant's compliance with all
appropriate laws and municipal codes and regulations;
(4) Seek such public comment as may be necessary to
determine the appropriateness of the application;
(5) Require any supporting documentation or studies which
relate to the applicant's proposal and applicant's
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capability for system administration, particularly
demonstrating but not limited to: technical
capabilities, applications of new technologies, system
performance, financial responsibility of applicant,
quality of services offered, and applicable company
policies, as each may be available; and
(b) All applications when filed shall be available for public
inspection at places designated by the City. A decision
shall be made by the City after the filing of the application
based upon an evaluation thereof. The City may grant one or
more franchises, or may decline to grant any franchise.
6. If the Council, after public hearing, shall determine to
reject such application, such determination shall be final and
conclusive, and the same shall be deemed rejected.
7. If the Council shall determine to further consider the
application, the following shall be done:
(a) The Council shall decide and specify the terms and conditions
of any franchise to be granted hereunder and as herein
provided.
(b) The Council shall give notice of its intention to consider
the granting of such a franchise, stating the names of the
proposed Grantee, and that copies of the proposed franchise
may be reviewed at the office of the City clerk, fixing and
setting forth a time and public place certain when and where
interested parties may inspect all the bona fide
applications, fixing and setting forth a day, hour, and place
certain when and where any persons having any interest
therein or objection to the granting thereof may file written
protests and appear before the Council and be heard, and
directing the City clerk to publish notice of said
resolution's adoption at least once within ten (10) days of
the passage thereof in a newspaper of general circulation
within the City.
8. At the time set for the hearing, or at any adjournment
thereof, the Council shall proceed to hear all written protests.
Thereafter, the Council shall make one of the following determinations:
(a) That such franchise be denied; or
(b) That such franchise be granted upon such conditions as the
Council deems appropriate, which conditions may include, on
a not to exceed basis, where in accordance with applicable
federal and state regulations and laws;
(1) Charges for installation;
(2) Subscriber rates;
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(3) Service rates for separate classifications of service
such as additional connections.
9. If the Council shall determine that a franchise be denied,
such determination shall be expressed by resolution; if the Council
shall determine that a franchise be granted, such determination shall
be expressed by ordinance granting a franchise to the applicant. The
action of the Council shall be final and conclusive.
10. The Grantee, within twenty (20) days of receipt of written
notification by the City following an initial franchise award, shall
pay to the City a sum of money to reimburse the City for all actual
expenses incurred by the City in carrying out the provisions of this
Chapter regarding the evaluation and processing of Grantee's
application and the franchise award, beyond those defrayed by
application fees. The City shall furnish the Grantee a statement of
such expenses with the notification.
B. Renewal of a Franchise.
1. Upon timely request of the Grantee, or the Franchising
Authority, the Grantee and the Franchising Authority shall conduct
renewal procedures under applicable provisions of the Cable Act, and
its subsequent amendments.
2. If the Grantee fails to request renewal in the time period
set forth in Section 626 (a) of the Cable Act, as amended, then the
following shall apply:
(a) At the option of the Franchising Authority, the service
provided by the Grantee under a Franchise may be required to
continue uninterrupted beyond the expiration or cancellation
of a Franchise, but not for longer than six (6) months
thereafter. Except as may be preempted by federal or state
law, to assure continued service to the Subscribers, the
Franchising Authority shall issue a request for proposals,
for renewal of a franchise not later than eighteen (18)
months prior to the e�iration of a franchise. The Request
For Proposal shall include the minimum acceptable level of
system capability, services, rates, access, fees and
facilities as determined by the Franchising Authority to meet
the needs of the Cape Girardeau community. If the
Franchising Authority deems the Grantee's past performance to
warrant consideration for franchise renewal, then the
Franchising Authority shall provide the Grantee first right
of refusal in accepting the franchise offered. However, if
the Franchising Authority deems the Grantee's past
performance to not warrant such consideration, or if the
Grantee elects to not accept the franchise offered under its
first right of refusal, then the Franchising Authority may
solicit other applications with the understanding that no
further consideration will be given to awarding the incumbent
Grantee a renewed franchise.
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(b) If the Franchising Authority elects to provide the incumbent
Grantee the first right of refusal addressed herein, then the
Request For Proposal issued by the Franchising Authority
shall advise other potential applicants accordingly, and will
provide for the full return of any application fee received
from an applicant.
(c) If the Franchising Authority, after public hearing and
allowing the incumbent Grantee an opportunity to be heard,
elects to not consider the incumbent Grantee for a renewed
franchise, then it shall do so by resolution after public
hearing and prior to issuance of a Request For Proposal for
the renewal of the franchise. The Franchising Authority
shall not arbitrarily or unreasonably deny consideration of
the incumbent Grantee, nor shall consideration be denied for
reasons outside the Grantee's reasonable control. Nothing
herein shall be construed to limit the Grantee's right to
seek judicial review of such action.
(d) If the City does so elect, the City may purchase or require
any successor Person to purchase the Grantee's facilities for
a cost not to exceed its fair market value. Fair market
value is to be determined in accordance with the process set
forth in this Chapter and shall not include any value
attributed to the Franchise itself. The parties shall divide
expenses of arbitration, if any, evenly among themselves.
3. Franchises will not be renewed for periods in excess of
fifteen (15) years, and may be renewed prior to expiration of an
existent franchise in accordance with the procedures set forth herein.
C. Franchise Acceptance.
1. No franchise granted under this Chapter shall become
effective for any purpose unless and until written acceptance thereof,
together with the required bond or other surety and insurance policies
and deposits, if any, required herein, shall have been filed with the
City Clerk. Written acceptance, which shall be in the form and
substance approved by the City attorney, shall also be and operate as
an acceptance of each and every term and condition and limitation
contained in this Chapter, and in such franchise, or otherwise
specified as herein and therein provided.
2. The written acceptance shall be filed by the Grantee within
sixty (60) days after the effective date of the Ordinance granting such
franchise. In the event this day falls on a nonworking day, then the
next working day will suffice.
3. In default of the filing of such written acceptance as herein
required, the Grantee shall be deemed to have rejected and repudiated
the franchise. Thereafter, the acceptance of the Grantee shall not be
received or filed by the City Clerk. Except as may be provided by
federal or state law, the Grantee shall have no rights, remedies, or
redress in the premises, unless and until the Council, by resolution,
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shall determine that such acceptance be received or filed, and then
upon such reasonable terms and conditions as the Council may impose.
4. In any case, and in any instance, all rights, remedies and
redress which may or shall be available to the City, shall at all times
be available to the City, and shall be preserved and maintained and
shall continuously exist in and to the City, and shall not be in any
manner or means modified, abridged, altered, restricted, or impaired by
reason of any of these premises, or otherwise.
SECTION3 8-12 TFIROIIGH 8-15 RESERVED.
Sec. 8-16. TECHNICAL STANDARDS.
To the extent permitted by law:
A. Each Grantee shall construct, install and maintain its cable
system in a manner consistent and in compliance with all applicable
laws, ordinances, construction standards, governmental requirements and
technical standards equivalent to those established by the F.C.C. Each
Grantee shall provide to the Franchising Authority, upon request,
written reports of the Grantee's proof of performance tests conducted
pursuant to F.C.C. standards and requirements.
B. Each Grantee shall at all times comply with the National
Electrical Code (National Bureau of Fire Underwriters) ; applicable
F.C.C. and other federal, state and local regulations; and codes and
other ordinances of the City.
C. In any event, the system shall not endanger or interfere with
the safety of persons or property within the City or other areas where
the Grantee may have equipment located.
D. Construction, installation and maintenance of the cable
system shall be performed in an orderly and workmanlike manner, and in
close coordination with public and private utilities serving the City
following accepted construction procedures and practices.
E. Pursuant to applicable FCC Rules and Regulations, radio
frequency leakage shall be checked at reception locations for emergency
radio services so as to prove no interference signal combinations are
possible. Radiation shall be measured adjacent to any proposed
aeronautical navigation or communication radio sites to prove no
interference to air navigational reception.
F. Preventative Maintenance. A comprehensive routine
preventative maintenance program shall be developed, effected and
maintained for each system by the respective Grantee to ensure
continued top quality cable communications operating standards in
consonance with Part 76 of F.C.C. regulations and the technical
specifications stipulated in the franchise agreement.
G. Proof of Performance. The services of a newly constructed
system, or one that has undergone a major upgrade, shall not be offered
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for sale prior to proof-of-performance testing in accordance with
F.C.C. Regulations and technical specifications and standards as set
forth in the franchise agreement.
H. Corrective Maintenance. The Grantee's corrective maintenance
program shall render efficient corrective service, make repairs
promptly, and interrupt subscriber service only for good cause and for
the shortest possible time. Such interruptions shall be preceded by
notice where practicable and shall occur during a period of minimum use
of the system, if feasible. The Grantee shall maintain a written log
of all service interruptions. The log shall reflect the date, time,
duration and reason for each service interruption. The Grantee shall
keep on file a record of the service interruption log from the
effective date of the franchise agreement until the proceeding periodic
review or four (4) years, whichever is shorter. Furthermore, upon
request from the Franchising Authority, the Grantee shall make
available for inspection by the Franchising Authority a copy of all
customer complaints for the respective four (4) year period.
Sec. 8-17. STREET WORR, PERMITS AND CONSTROCTION.
A. Permits.
1. Within thirty (30) days of acceptance of an initial
Franchise, the Grantee shall proceed with due diligence to obtain all
necessary permits and authorizations which are required in the conduct
of its business, including, but not limited to, any utility joint use
attachment agreements, encroachment permits, microwave carrier
licenses, and any other permits, licenses and authorizations to be
granted by duly constituted regulatory agencies having jurisdiction
over the operation of cable television communications systems, or
associated microwave transmission facilities. The Grantee and City may
agree upon an alternate time schedule in the Franchise Agreement.
B. General Construction.
1. Within ninety (90) days after obtaining all necessary
permits, licenses and authorizations, including right of access to
poles and conduits, the Grantee shall commence system construction,
extension, and/or upgrade as appropriate under the Franchise Agreement.
2 . Within eighteen (18) months following a franchise award, the
Grantee shall proceed to render service to Subscribers in accordance
with its system construction, extension and/or upgrade commitments as
outlined in its Franchise Agreement. The completion of the system
construction, extension and/or upgrade shall be pursued with reasonable
diligence thereafter, so that service to all of the areas designated
and scheduled on the map and plan of construction made part of the
Franchise Agreement shall be provided as set forth therein.
3. Failure on the part of the Grantee to commence and diligently
pursue each of the foregoing requirements and to complete each of the
matters set forth herein, except as otherwise provided for in the
franchise agreement, shall be grounds for termination of such
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franchise. By resolution and order, the Franchising Authority, may
extend the time for the commencement and completion of construction,
extension and/or upgrade for additional periods in the event the
Grantee, acting in good faith, experiences delays by reason of
circumstances beyond his control.
4. The Grantee shall utilize existing poles, conduits and other
facilities whenever possible, and shall not construct or install any
new, different or additional poles, conduits or other facilities,
unless and until first securing the necessary approval of the
Franchising Authority.
5. In all sections of the City where wires, cables and other
system appurtenances are mounted aboveground, every reasonable effort
shall be made to minimize obstruction of the view of residents.
C. IInderqround Facilities.
1. Unless otherwise authorized by Franchising Authority, in
those areas and portions of the City where the transmission and/or
distribution facilities of the public utility providing telephone
service, and those of the utility providing electric service, are
underground or hereafter are placed underground, or are to be placed
underground by a builder, developer or subdivider as part of a
development or subdivision, then the Grantee shall likewise construct,
operate and maintain all its transmission and distribution facilities
underground to the maximum extent that existing technology permits the
Grantee to do so.
2. In those areas and portions of the City where utility service
and/or cable communications facilities are currently located
underground, the Grantee shall be responsible for the undergrounding of
its cable facilities, including the performance of all necessary
trenching and backfilling of main line and service trenches, and
furnishing of any imported backfill material required.
3. Previously installed aerial cable shall be undergrounded in
concert, and on a cost-sharing basis, with utilities pursuant to the
general ordinances of the City or applicable state law, or in the event
such action shall be taken by all utilities, on a voluntary basis.
4. Incidental appurtenances such as amplifier boxes and
pedestal-mounted terminal boxes may be placed aboveground, but shall be
of such size and design and shall be so located as not to be unsightly
or hazardous to the public.
D. IIniversal Service And System Extensions.
1. Subject to the applicable provisions of the Franchise
Agreement between the City and the Grantee, each Grantee shall make
available cable communications service to the entire geographic
municipal boundary area of the City. The term "geographic municipal
boundary area" shall mean the boundaries of the City as of the
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effective date of the Franchise Agreement between the City and the
Grantee.
2 . The Grantee shall be required to extend its cable service
into every newly developed parcel within the existing geographic
municipal boundaries of the City, but only to the extent that each of
the following provisions are satisfied:
(a) The developer of the parcel must notify the Grantee within
thirty (30) days of filing its utility easement permits or plats of its
intent to develop such parcel; and
(b) The developer must provide adequate access by the Grantee to
such easements; and
(c) The newly developed parcel must have twenty (20) dwelling
units per mile of cable plant; and
(d) Such extension is technically feasible, and it will not
adversely affect the operation, financial condition, or market
development of the Cable System.
The Grantee shall have twelve (12) months from first receiving
notice as described in C. 2 . (a) above to provide its cable service.
In those areas where the number of dwelling units per mile of
cable plant is less than twenty (20) , the Grantee will provide cable
service on a pro rata basis, sharing the costs with the potential
subscriber(s) , as determined in accordance with the formula set forth
below.
3. In the event the City lawfully annexes additional areas into
the city limits, the Grantee shall extend its cable service to such
areas within twelve months of the date of annexation, provided that
such newly annexed areas contain a minimum of twenty (20) dwelling
units per mile of cable plant. If the newly annexed areas do not
contain twenty (20) dwelling units per mile of cable plant, the Grantee
shall offer cable service on a pro rata basis, sharing the costs with
potential subscriber(s) , as determined in accordance with the formula
set forth below.
4. The following formula will be used to determine pro rata
costs where less than twenty (20) dwelling units exist per mile of
cable plant:
Grantee's Share =
Potential # Of Subscribers X Cost Per Mile Of Cable Plant
20
Potential Subscriber's Share =
Cost Per Mile Of Cable Plant - Grantee's Share
Potential # Of Subscribers
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E. Conditions on Street Occupancy.
1. Any pavements, sidewalks, curbing or other paved area taken
up or any excavations made by a Grantee shall be done under permits
issued for the work by proper officials of the Franchising Authority,
and under their supervision and direction, and shall be done in such a
manner as to give the least inconvenience to the inhabitants of the
City. A Grantee shall, at its own cost and expense, and in a manner
approved by the City's Director of Public Works, replace and restore
any such pavements, sidewalks, curbing or other paved areas in as good
a condition as before the work involving such disturbance was done, and
shall also make and keep full and complete plats, maps and records
showing the exact locations of its facilities located within the public
streets, ways and easements of the City. These maps shall be available
for inspection during normal business hours by Franchising Authority,
upon request. Any such repairs made on account of excavations which
the Grantee makes pursuant to this section shall be guaranteed by the
Grantee for a period of thirty (30) months, and the Grantee shall be
solely responsible for the quality of such repairs for that time
period.
2 . Notwithstanding the above grant to use the streets, no street
shall be used by Grantee if the Franchising Authority, in its sole
opinion, determines that such use is inconsistent with the conditions
or provisions by which such street was created or dedicated, or
presently used.
F. Street Work.
1. Upon any failure of the Grantee, in response to written
notice from the Franchising Authority, to commence, pursue or complete
any work required of it by law or by the provisions of a Franchise to
be done in any street, and after a reasonable time to effect a cure,
the Franchising Authority, at its option and according to law, may
cause such work to be done and the Grantee shall pay to the Franchising
Authority the reasonable cost thereof in the itemized amounts reported
by the Franchising Authority to the Grantee, within thirty (30) days
after receipt of such itemized report.
2 . In the event that any part of a cable system has been
installed in any street or other public rights-of-way without complying
with the requirements hereof and/or the Franchise Agreement; or the use
of any part of the system of Grantee is discontinued for any reason for
a continuous period of thirty (30) days, without prior written notice
to and approval by the Franchising Authority, and after reasonable
opportunity to cure; or any franchise shall be terminated, canceled or
expire, then the Grantee shall, at the request of the Franchising
Authority, and at the expense of Grantee and at no expense to the
Franchising Authority, promptly remove from any streets or other areas
all property of Grantee, and Grantee shall promptly restore the street
or other public rights-of-way from which such property has been removed
to such condition as the City Manager shall reasonably approve.
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G. Relocation
1. Upon its receipt of reasonable advance notice, not to be less
than five (5) business days, the Grantee shall, at its own expense,
protect, support, temporarily disconnect, relocate in the Public Way,
or remove from the Public Way any property of the Grantee when lawfully
required by Franchising Authority by reason of traffic conditions,
public safety, street abandonment, freeway and street construction,
change or establishment of street grade, installation of sewers,
drains, gas or water pipes, or any other type of structures or
improvements by the Franchising Authority; but, the Grantee shall in
all cases have the right of abandonment of its property. If public
funds are available to any company using such street, easement or
right-of-way for the purpose of defraying the cost of any of the
foregoing, such funds shall also be made available to the Grantee.
2 . The Grantee shall, on the request of any person holding a
building moving permit issued by the Franchising Authority, temporarily
raise or lower its wires to permit the moving of such building,
provided: (a) the expense of such temporary raising or lowering of
wires is paid by said person, including, if required by the Grantee,
making such payment in advance; and (b) the Grantee is given not less
than five (5) business days advance written notice to arrange for such
temporary wire changes.
H. Removal.
1. Upon expiration or lawful termination of a Franchise, if the
Franchise is not renewed and if neither the Franchising Authority nor
an assignee purchases the system, the Grantee may remove any
underground cable from the streets which has been installed in such a
manner that it can be removed without trenching or other opening of the
streets along the extension of cable to be removed. The Grantee shall
not remove any underground cable or conduit which requires trenching or
other opening of the streets along the extension of cable to be
removed, except as hereinafter provided. The Grantee shall remove, at
its sole cost and expense, any underground cable or conduit by
trenching or opening of the streets along the extension thereof or
which is otherwise ordered to be removed by the City Engineer based
upon a determination, in the discretion of the City Engineer, that
removal is required in order to eliminate or prevent a hazardous
condition or promote future utilization of the streets for public
purposes. Any order by the City Engineer to remove cable or conduit
shall be mailed to the Grantee not later than thirty (30) days
following the date of expiration or lawful termination of the
Franchise. A Grantee shall file written notice with the City Engineer
not later than thirty (30) days following the date of expiration or
lawful termination of the Franchise of its intention to remove cable
intended to be removed and a schedule for removal by location. The
schedule and timing of removal shall be subject to approval and
regulation by the City Engineer. Removal shall be completed not later
than twelve (12) months following the date of expiration or lawful
termination of the Franchise. Underground cable and conduit in the
streets which is not so removed shall be deemed abandoned and title
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thereto shall be vested in the City. Grantee shall be responsible for
any repairs to streets, sidewalks or other paved areas.
2 . Upon expiration or lawful termination of a franchise, if the
franchise is not renewed and if neither the City nor an assignee
purchases the system, the Grantee, at its sole expense, shall, unless
relieved of the obligation by the City, remove from the streets all
above-ground elements of the system, including but not limited to
amplifier boxes, pedestal mounted terminal boxes, and cable attached to
or suspended from poles, which are not purchased by the City or its
assignee.
3. The Grantee shall apply for and obtain such encroachment
permits, licenses, authorizations or other approvals and pay such fees
and deposit such security as required by applicable ordinances of the
City, shall conduct and complete the work of removal in compliance with
all such applicable ordinances, and shall restore the streets to the
same condition they were in before the work of removal commenced. The
work of removal shall be completed not later than one (1) year
following the date of expiration or lawful termination of the
Franchise; otherwise, the Franchising Authority may complete such work
and charge the expense thereof to the Grantee.
Sec. 8-18. SYSTEM MAINTENANCE, OPERATION AND SERVICE.
A. General. Throughout the life of a Grantee's Franchise, and
in addition to other service regulations adopted by the Franchising
Authority, and excepting circumstances beyond Grantee's control, such
as acts of God, riots and civil disturbances, a Grantee shall maintain
all parts of its system in good condition and in accordance with
standards generally observed by the cable television industry. The
system must serve individual residents, but also have the capability to
serve as a broad-based communications source for the City and the
County government, other public facilities including hospitals, public
libraries, and schools, industrial and commercial business users, as
set forth in the Franchise Agreement.
B. Service Reliability. The Grantee shall retain sufficient
employees to provide safe, adequate and prompt service for all such
residential subscribers, institutional facilities and business users.
The Grantee shall limit failure to minimum time duration by locating
and correcting malfunctioning as promptly as is reasonably possible.
The Grantee shall additionally comply with all requirements set forth
in the franchise agreement.
Sec. 8-19. SAFETY REQIIIREMENTS.
The Grantee shall, at all times install and maintain its wires,
cables, fixtures and other equipment in accordance with the
requirements of the City's building regulations, and in such a manner
that they will not interfere with any installations of the City. The
Grantee shall keep and maintain in a safe, suitable, substantial
condition, and in good order and repair, all its structures, lines,
equipment, and connections in, over, under, and upon the streets,
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sidewalks, alleys, and public ways or places of the City wherever
situated or located.
Sec. 8-20. OPERATION AND SERVICE.
A. Service Areas. The Grantee's system design, construction,
extension, and/or upgrade shall be such that service shall be made
available to all dwelling units within the Grantee's service area, as
defined in this Ordinance, for the normal installation fee, with the
exception that in those locations where the dwelling units per strand
mile of system plant are less than the dwelling units per mile figure
stipulated in this Chapter, then the Grantee shall provide cable
service on a pro rata sharing of the installation costs with the
potential subscribers. The pro rata sharing of costs will be in
accordance with the formulation set forth in Section 8-17 .D.
B. Establishment of Service. The Grantee shall install cable
television service to all persons making a timely and bona fide request
for such service at any location within the Grantee's service area.
After the Grantee shall have established service pursuant to a
franchise in any area of the City, such service shall not be suspended
or abandoned unless such suspension or abandonment be authorized or
ordered by the Council.
C. Basic System Capability.
1. A cable communications system, to be installed and operated
pursuant to this Chapter and a Franchise granted hereunder shall, as a
minimum, be operationally capable of relaying to subscriber terminals
those television and radio broadcast signals, which the Grantee may now
or hereafter be required to carry by the F.C.C. or any applicable law;
and distributing color television signals which it receives in color;
and providing channel capacity for program production in cablecasting
public, educational and\or governmental access uses.
2 . A cable system shall have the minimum capacity of downstream
video capacity as stipulated in the Franchise Agreement. The system
shall have two-way capability through the use of symmetrical fiber
optic lines suitable for two-way communication and internet
communication by personal computer to each subscriber and to each
public and private school; each hospital and public library; and each
public building in which are located offices of the state, federal or
local governments sufficient to permit two-way and internet
communications from these buildings. The system shall be of sufficient
capacity to permit full motion video and voice and video on demand with
high speed data links. The system shall be sufficient to permit two-
way imaging communications between hospitals and other medical
facilities. With respect to the public and private schools, the system
shall be sufficient to permit two-way interactive video such as, but
not limited to, remote classrooms and data access transmission. The
system shall be of sufficient capacity to permit two-way communications
for a metropolitan area network. The system shall be built to be
compatible with Bellcor Standards and the Standards of the IEEE
Institute. The system will be constructed in such a way as it will be
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.
reliable and secure, both from unauthorized access and from physical
interference.
3. A cable communications system permitted to be installed and
operated pursuant to this Chapter may also engage in the business of
transmitting original cablecast programming not received through
television broadcast signals and transmitting any satellite delivered
signals permitted by the F.C.C.
4. The system may also transmit television pictures, film and
video-tape programs, not received through broadcast television signals,
whether or not encoded or processed to permit reception by only
selected receivers or Subscribers.
5. The system may also have the capacity to transmit and receive
all other signals, digital, voice and audio-visual, not precluded by
federal or state law.
D. Public, Educational and\or Governmental Access. Any cable
system franchised pursuant to the provisions of this Chapter shall
provide for public, educational and\or governmental PEG access as set
forth in the Franchise Agreement between the City and the Grantee.
E. Support for IIse of PEG Access. Nothing contained in this
Chapter shall be construed to create the reguirement or limit the
ability of the Grantee to make payments in support of the use of
public, educational and/or governmental access, additional to any
payments otherwise required therefor under this Chapter, the Franchise
Agreement or other applicable ordinances or law.
F. Municipal Services. With respect to basic television
service, the Grantee shall provide a standard drop and all basic
subscriber services, without cost, to each public office building owned
by the City and to every public and private elementary and secondary
school within the City. These drops and this service shall be required
only for public purposes and shall not be required for any buildings in
residential use. The outlets of Basic Cable Service shall not be used
to distribute or sell cable services in or throughout such buildings
nor shall such outlets be located in common or public areas open to the
public. Users of such outlets shall hold Grantee harmless from any and
all liability or claims arising out of their use of such outlets,
including but not limited to, those arising from copyright liability.
G. Emerqency service.
1. The Grantee may be required to design, construct and maintain
the system in a manner to provide for a restricted audio and/or video
override of some or all audio channels during emergencies. The Grantee
shall be required to provide an audible alert tone to precede the
verbal and/or video messages. If a video override capability is
provided, the system shall include a character generator for delivery
of emergency messages to the communicatively handicapped. In the case
of any emergency or disaster, the Grantee shall, upon request of the
Franchising Authority, make available its facilities for the
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Franchising Authority to provide emergency information and instructions
during the emergency or disaster period. The Franchising Authority
shall hold the Grantee, its agents, employees, officers and assigns
hereunder, harmless from any claims arising out of the emergency use of
its facilities by the Franchising Authority, including, but not limited
to, reasonable attorney's fees and costs.
2. Upon completion of the Upgrade, Emergency power sources shall
be provided at the headend, network distribution center, satellite
earth station, processing hubs, and other system locations as may be
necessary to guarantee that in the event of a power failure on any part
of the system, service will be maintained on the rest of the system.
H. Customer Service Requirements.
1. A Grantee shall maintain at least one business office in the
City open during normal business hours, including at least 8: 00 a.m. to
5: 00 p.m. , Monday through Friday. A Grantee shall also maintain a
listed local, toll-free telephone number and employ a sufficient number
of telephone lines, personnel and answering equipment or service to
enable Subscribers and members of the public to contact the Grantee on
a full-time basis, twenty-four (24) hours a day, seven (7) days a week.
Telephone answering time (including hold and transfer time) shall not
exceed thirty (30) seconds. This standard shall be met ninety percent
(90%) of the time. When the business office is closed, an answering
machine or service capable of receiving and recording service
complaints and inquiries shall be employed.
2 . A Grantee shall employ and maintain sufficient qualified
personnel and equipment to be available:
(a) To receive Subscriber complaints or requests for service or
repairs on a full-time basis, twenty-four (24) hours a day,
seven (7) days a week; and
(b) To initiate service installations, undertake normal repairs,
and initiate action with respect to Subscriber complaints on
Monday through Friday, from 8: 00 a.m. to 5: 00 p.m. , and at
such other times as may be necessary to accommodate demand.
3. Standard installation work shall be performed within five (5)
business days after an order has been placed. Service or repair work
shall be performed within two (2) business days after receipt of a
Subscriber's request for service, or at a later time as may be
requested by the Subscriber. If scheduled installation or service is
neither started nor completed as scheduled, the Subscriber will be
contacted the same day and the appointment rescheduled for the
following day, subject to the convenience of the Subscriber. Evening
personnel shall also attempt to call Subscribers at their homes between
the hours of 5:30 and 8:00 p.m. If the call to the Subscriber is not
answered, an employee of the Grantee shall contact the Subscriber the
next day. If the Subscriber is not at home when Grantee's service
technician or installer arrives, the technician or installer shall
leave a door hanger setting forth the time that the Subscriber was not
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, • ,
. . •
at home and providing a telephone number for the Subscriber to call to
reschedule the appointment.
4. Service and installation work shall be prioritized as
follows:
(a) Repair and rescheduling of appointments for existing
subscribers;
(b) Installation and services changes;
(c) Disconnection of service for existing subscribers.
Subscribers who have experienced more than one (1) missed installation
or service appointments due to the fault of the Grantee shall receive
installation free of charge. If the installation was to have been
provided free of charge or if the appointment was for service or
repair, the subscriber shall receive one (1) month of the most widely
subscribed to service tier free of charge.
5. All appointments for service, installation, or disconnection
shall be specified by date. The Grantee shall offer a choice of
morning (8: 30 a.m. to 12 : 30 p.m. ) , afternoon (1: 00 p.m. to 5: 00 p.m. )
or all-day (8: 30 a.m. to 5: 00 p.m. ) appointment opportunities. A
Grantee shall, at a minimum, also offer either a Saturday or single
weekday evening per week appointment window to be available on a first-
come, first-served basis.
6. A Grantee shall have available at all times personnel,
equipment and procedures capable of locating and correcting system
malfunctions. Major system malfunctions shall be corrected as
expeditiously as possible, and corrective measures initiated
immediately. Corrective action for all other malfunctions shall be
initiated, but not later than the next business day after the
subscriber service call is received, or Grantee otherwise learns of the
malfunction, whichever occurs first. Any service complaint shall be
resolved within two (2) working days.
7. A Grantee shall develop written procedures for the
investigation and resolution of all Subscriber complaints, including,
but not limited to, those regarding the quality of service and
equipment malfunction. A Subscriber who has not been satisfied by
following the Grantee's procedures may file a written complaint with
the City Manager, who will investigate the matter and, in consultation
with the Grantee, attempt to resolve the matter.
8. A Grantee shall provide each Subscriber at the time cable
service is installed, and at least every twelve (12) months thereafter,
written instructions for placing a service call, filing a complaint, or
requesting an adjustment. Such instructions shall include Grantee's
local telephone number and mailing address. Together with these
instructions, each Subscriber shall also be provided with a schedule of
the Subscriber's rates and charges, a copy of the service contract,
delinquent subscriber disconnect and reconnect procedures, and a
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description of any other of the Grantee's policies in connection with
its Subscribers. Copies of these instructions shall be provided to the
Franchising Authority at least once every twelve (12) months.
9. A Grantee shall provide Subscribers and the City Manager with
at least thirty (30) days advance written notice of any changes in
rates, charges, services or initiations or discontinuations of service
over the cable system.
10. A Grantee may intentionally interrupt service on the cable
system only for good cause and for the shortest time possible and,
except in emergency situations, only after a minimum of forty-eight
(48) hours prior notice to Subscribers and the Franchising Authority of
the anticipated service interruption; provided, however, planned
maintenance which does not require more than three (3) hours
interruption of service or which occurs between the hours of 12:00 a.m.
and 6: 00 a.m. ("After Hours Maintenance") shall not require such
notice. Notice of "After Hours Maintenance" shall be given to the City
Manager no less than twenty-four (24) hours prior to the anticipated
service interruption. For the purposes of this subsection, "Notice to
the Subscriber" shall be deemed given when the Grantee does one or more
of one of the following: runs an announcement on the cable system
indicating the service interruption, or requests the radio/tv
broadcasters to announce such interruptions, or provides an
advertisement to the local newspaper with the scheduled interruption,
or provides written notice to the subscriber.
11. A Grantee shall maintain a complete record of all service
complaints and requests received, whether written, verbal, or
telephonic, and the action taken. These records shall be maintained in
Grantee's office in the City or in Cape Girardeau County, and shall be
available for inspection by the Franchising Authority during normal
business hours upon reasonable prior notice. Such records shall be
retained from the effective date of the Franchise Agreement until the
proceeding periodic review or four (4) years, whichever is shorter.
(a) Except for planned service outages not exceeding three (3)
hours in duration where Grantee provides reasonable
notification in advance, a Grantee shall refund or credit
affected Subscribers' accounts for service outages or
substantial impairment of service as follows:
(1) Upon a Subscriber's request, a Grantee shall provide a
24-hour credit to the Subscriber's account for any
period of three (3) hours or more within a 24-hour
period during which a Subscriber experienced an outage
of service or substantial impairment of service, whether
due to a system malfunction or other cause under the
control of the Grantee. The Grantee shall provide
notice to the Subscriber of the Subscriber's rights
under this paragraph and shall direct the Subscriber as
to how to apply for the credit. The notice shall be
provided annually with other required notices.
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(2) The Grantee is not required to provide a credit for an
outage of service or any impairment of service that is
the result of Subscriber neglect or misuse.
(3) A Grantee shall keep in its local business office a
current outage log in which all outages occurring from
the effective date of the Franchise Agreement until the
proceeding periodic review or four (4) years, whichever
is shorter, shall be logged. The Franchising Authority
shall have access to such log upon reasonable notice and
at reasonable times.
12. Disconnection.
(a) A Subscriber may terminate service at any time.
(b) A Subscriber may be asked to disconnect the Grantee's
equipment and return it to the business office.
(c) Any security deposit and/or other funds due the
Subscriber shall be refunded on disconnected accounts
after the converter has been received by the Grantee.
13. Acts of God, natural disasters, war and other circumstances
beyond a Grantee's control are excluded from the provisions of this
Section provided that a Grantee pursues all reasonable means to correct
and cure any default resulting from such event and provided further
that a Grantee shall not be excused by mere economic hardship nor by
misfeasance, malfeasance or nonfeasance of its directors, officers or
employees.
14. The cable television customer service obligations as set
forth in Section 76. 309 of the Rules of the Federal Communications
Commissions, Title 47, CFR, Part 76, Subpart H (General Operating
Requirements) are hereby incorporated herein and made part hereof by
reference as though fully set out herein and are hereby made
enforceable by the City of Cape Girardeau, Missouri, in their present
form and as they may hereinafter be amended by the FCC.
I. Subscriber Privacy.
1. The monitoring of any Subscriber terminal, except for the
Grantee's monitoring of signal levels, without specific prior written
authorization of the Subscriber is prohibited. Grantee shall be
responsible for prohibiting, insofar as reasonably possible, the
tapping andJor monitoring of cable, line, signal input device or
Subscriber outlet or receiver. However, Grantee may conduct tests of
the functioning of the system where necessary in order to ensure proper
maintenance of the system, to collect performance data for agencies
regulating the quality of the signal, and to check for unauthorized
reception of service.
2. Except as may be authorized by federal and state law, Grantee
may not sell or otherwise release listings of Subscribers' names and
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addresses, nor may Grantee sell or otherwise release any list which
identifies Subscriber viewing habits, to any person, or agency, for any
purpose whatsoever, without specific written authorization of the
individual Subscriber.
3. The Grantee and the Franchising Authority shall maintain
constant vigilance with regard to possible abuses of the right of
privacy of any Subscriber resulting from any device or signal
associated with the cable communications system. The Grantee shall not
place in any private residence any equipment capable of two-way
communications without the prior written consent of the affected
residents, and will not use the two-way communications capability of
the system for Subscriber surveillance of any kind without the prior
written consent of the Subscriber.
4. No cable, line, wire amplifier, converter or other piece of
equipment owned by the Grantee shall be attached to any residence or
other property by the Grantee without first securing the written
permission of the owner or responsible occupant of any property
involved. If such permission is later revoked, whether by the original
or subsequent owner or responsible occupant, and unless an agreement
with a property owner provides otherwise, the Grantee shall remove
forthwith all of its equipment and make best efforts to promptly
restore the property to a like condition as at the time of installation
of the cable equipment.
5. The Grantee shall fully comply with Section 631 of the Cable
Act, as it exists and as it may hereafter be amended.
SECTION3 8-21 THROIIGH 8-30 RESERVED.
Sec. 8-31. RATES.
A. General. To the extent permitted by law, the Franchising
Authority expressly reserves the right:
1. To approve the rates which the Grantee charges its
Subscribers for Basic Cable Service and the rates for such other
services as City may hereafter be permitted to regulate by law. The
Grantee shall not deny, delay, interrupt or terminate cable
communications services or the use of community communications
facilities to Subscribers or users because the Franchising Authority
denies a request for a rate increase, provided, however, that nothing
herein shall be construed to limit the Grantee's right to seek judicial
review of such action.
2. To require that the Grantee annually publish and file with
the Franchising Authority a full schedule of all Subscriber rates and
all other charges including, but not limited to, pay TV, leased channel
and discrete services, in connection with the cable communications
system. Said rate schedules shall be amended whenever such rates
change.
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(a) All rates shall be published and open to public
inspection.
(b) The Grantee shall not discriminate in the assessment,
levy, charge, imposition or collection of rates on the
basis of age, race, creed, color, religion, national
origin, sex or marital status.
3. Nothing in this Chapter shall be construed to prohibit the
reduction or waiving of charges in conjunction with promotional
campaigns for the purpose of attracting Subscribers.
4. To require that the Grantee establish and conform to the
following policy regarding refunds to Subscribers:
(a) If the Grantee collects a deposit or advance charge on
any service or equipment requested by a Subscriber, the
Grantee shall provide such service or equipment within
thirty (30) days of the collection of the deposit or
charge or it shall refund such deposit or charge within
five (5) days thereafter.
(1) Nothing in this section shall be construed to
relieve the Grantee of any responsibility to
Subscribers under any contractual agreements into
which it enters with them.
(2) Nothing in this section shall be construed to
limit the Grantee's liability for damages because
of its failure to provide the service for which
the deposit or charge was made.
(b) In the event that a Subscriber terminates Basic Cable
Service prior to the end of a pre-paid period, and upon
request from the Subscriber, the pro-rata portion of any
pre-paid subscriber fee which represents payment for
services which are no longer to be rendered shall be
refunded promptly, but in no case more than sixty (60)
days after receipt of the request for termination.
5. To require that the Grantee not charge a converter security
deposit greater than such converter's actual cost to the Grantee. Any
converter security deposit collected by the Grantee shall be returned
to the Subscriber upon the termination of service by the Subscriber and
return of such converter, undamaged with allowance for reasonable wear
and tear, and payment of any outstanding balance due and payable.
B. Standards in Rates and Charqes. No rate established shall
afford any undue preference or advantage among Subscribers, but
separate rates may be established for separate classes of Subscribers
and installation charges may reflect the increased cost of providing
service to isolated or sparsely populated areas.
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. ,
C. Violation. Violation of this section shall be deemed to be
a material breach of any Franchise Agreement and shall subject the
Grantee to all remedies and penalties prescribed herein and to all
other remedies, legal and equitable, which are available to the
Franchising Authority.
Sec. 8-32. COMPENSATION AND GIIARANTEE TO THE CITY.
A. Franchise Fee.
1. In consideration of the granting and exercise of a Franchise
to construct and operate a cable communications system on City streets,
public ways and rights-of-way, the Grantee shall pay to the Franchising
Authority during the life of the Franchise, an annual Franchise Fee
equivalent to a percentage, as stipulated herein, of the Grantee's
Gross Revenues derived from operation of Grantee's system in the City
and as defined in Section 8-2 of this Chapter. The Gross Revenues base
for such Franchise Fee shall not include any taxes imposed on
Subscribers or on the transaction of selling of Grantee's services by
a city, county, state or other governmental unit, and collected by the
Grantee for such governmental entity.
2. During the term of each Franchise, the Grantee shall pay to
the Franchising Authority an amount not to exceed five (5) per cent of
the Grantee's Gross Revenues derived from the operation of the Cable
System. Said fees shall be paid in accordance with the Franchise
Agreement or as set forth herein. Not later than the date of each
payment, Grantee shall file with the Franchising Authority, a written
statement signed by an officer of the Grantee, which identifies in
detail the sources and amounts of Gross Revenues received by the
Grantee during the period for which payment is made. The five (5) per
cent limit on the Franchise fee as set out in this ordinance is
consistent with federal law at the time of the adoption of this
ordinance.
3. Each and every Franchise Fee shall be paid on a quarterly
basis and shall be payable to the City Finance Department no later than
sixty (60) days after the expiration of the quarter for which payment
is due.
4. During the term of each Franchise, the Franchising Authority
may, not more frequently than once each year, conduct a review of the
books, records and accounts of the Grantee for the purpose of
determining whether the Grantee has paid franchise fees in the amounts
prescribed. The review may be conducted by the Finance Director of the
City or his designee, or by an independent certified public accounting
firm retained by the Franchising Authority, and shall be conducted at
the expense of the Franchising Authority. The party conducting the
review shall prepare a written report containing its findings, and the
report shall be filed with the Franchising Authority, and mailed to the
Franchising Authority and Grantee. If such review determines that the
total of the Franchise Fee received by the Franchising Authority is in
error by a margin of five (5) per cent or more, the cost of such review
shall be borne by the Grantee.
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5. Each Grantee shall make available for inspection by
authorized representatives of the Franchising Authority, its books,
accounts and all other records, at reasonable times and upon reasonable
advance notice for the purpose of permitting exercise of the authority
to enforce the provisions conferred by this Ordinance and the Franchise
Agreement.
6. Subject to applicable law, no acceptance of any 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
Chapter, or the franchise agreement or associated resolution or
ordinance, for the performance of any obligation thereunder.
(a) Any franchise fees which remain unpaid after the dates
specified shall be delinquent and shall thereafter accrue
interest at the maximum rate permitted by law for interest
upon judgments, until fully paid.
(b) The Grantee shall annually provide the City Council with an
unqualif ied certif ication from a certif ied public accountant
experienced in similar cable television franchisements
certifying the accuracy of the franchise fee payments made
within the preceding twelve (12) months thereof. Said
certification shall be prepared in accordance with generally
accepted accounting standards as established by the Financial
Accounting Standards Board (FASB) .
7. The Grantee shall file annually with the City Clerk not later
than sixty (60) days after the end of the Grantee's fiscal year, a copy
of its report to its stockholders (if it prepared such a report) .
B. Grantee Insurance. The Grantee shall maintain in full force
and effect, at its own cost and expense, during the term of the
Franchise, Comprehensive General Liability Insurance in the amount of
$1, 000, 000 combined single limit for bodily injury and property damage.
Said insurance shall designate the Franchising Authority as an
additional insured. Such insurance shall be non-cancelable except upon
thirty (30) days prior written notice to the Franchising Authority.
The Grantee agrees to indemnify, save and hold harmless and defend the
Franchising Authority, its officers, boards and employees, from and
against any liability for damages and for any liability or claims
resulting from property damage or bodily injury (including accidental
death) which arise out of the Grantee's construction, operation or
maintenance of its Cable System, including, but not limited to,
reasonable attorney's fees and costs. The limits of liability for
insurance required by this section have been set to conform to the
limits of liability for municipal corporations pursuant to Missouri
law. In the event that the limits of liability for municipal
corporations are increased by Missouri law, then, in that event, the
Grantee shall increase its Comprehensive General Liability coverage to
such new limits of liability under Missouri law as amended.
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C. Faithful Performance Bond.
1. The Grantee shall, at the time of acceptance of a Franchise,
file with the Franchising Authority, and unless otherwise authorized by
the Franchising Authority, at all times thereafter, maintain in full
force and effect, an acceptable corporate surety bond or other surety,
in the amount of one hundred thousand dollars ($100, 000. 00) , effective
for the entire term of the Franchise, and conditioned that in the event
the Grantee shall fail to comply with any one or more of the material
provisions of a Franchise, then there shall be recovered jointly and
severally from the principal and surety of such bond or other surety,
any damages suffered by the Franchising Authority as a result thereof,
including the full amount of any compensation, indemnification or cost
of removal or abandonment of property as prescribed by this Chapter
which may be in default, up to the full amount of the bond or other
surety; said condition to be a continuing obligation for the duration
of a Franchise and thereafter until the Grantee has liquidated all of
its obligations granted under the Franchise.
2. Neither the provisions of this section, any bond or other
surety accepted by the Franchising Authority pursuant thereto, nor any
damages recovered by the Franchising Authority thereunder shall be
construed to excuse faithful performance by Grantee or to limit
liability of the Grantee under a Franchise or for damages, either to
the full amount of the bond or otherwise.
3. If, at any time during the term of the franchise, the
condition of the corporate surety shall change in such a manner as to
render the bond unsatisfactory to the City, the Grantee shall replace
such bond by a bond of like amount and similarly conditioned, issued by
a corporate surety satisfactory to the City. In the event the
Grantee's obligations under a Franchise shall so warrant, the
Franchising Authority, from time to time, may authorize or require
appropriate adjustments in the amount of the bond or surety. For
example, the amount of the bond or surety may be reduced by Grantee,
with the prior approval of the Franchising Authority, at satisfactory
completion of system construction, upgrade, and/or extension, as may be
set forth in the Franchise Agreement.
D. Corporate Guaranty in Lieu Of Bond. The City may, at its
sole discretion, accept a corporate guarantee in lieu of the
performance bond from the Grantee. The Guarantee in Lieu of the Bond
shall be in a form reasonably acceptable to the City Attorney and shall
guarantee the faithful performance by the Grantee of the provisions of
this Ordinance and the Franchise Agreement. In the event the City
finds the Grantee in violation of any provisions of this Ordinance or
the Franchise Agreement, the City may seek damages as set forth in
paragraph E. below.
If the City elects to seek damages as provided in paragraph E. ,
the City must follow the procedures set forth in paragraph G. below.
Upon following the procedures, the City shall notify the Grantee and
the Corporate Guarantee of the amount of damages assessed. The Grantee
or the Corporate Guarantee will then have ten (10) days to pay the
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City. Failure to pay by the due date may result in automatic
termination of the franchise.
The Grantee and the Corporate Guarantee shall agree not to
withhold funds due the City nor to attempt through litigation to
prevent or inhibit the City from assessing such damages provided that
the City follows the procedures set forth in paragraph G. below.
However, if and only if after payment of the amount due, the Grantee
believes the sanctions by the City was improper or illegal, then the
Grantee shall be entitled to appeal to a court of competent
jurisdiction. If the City's actions are found to be improper then the
Grantee shall be entitled to a refund with interest and any other award
which the court may grant.
E. Sanctions. In addition to recovery of any monies owed by the
Grantee to the City for damages, or any other remedies, as a result of
any acts or omissions by the Grantee pursuant to the Franchise
Agreement, the City may charge to and collect from the Grantee the
following amounts:
1. For failure to substantially complete System upgrade as
required by the Franchise Agreement or the City's Cable
Communications Ordinance, unless City approves the delay, the
amount shall be One Hundred Dollars ($100. 00) per day.
2 . For failure to meet conditions of City permits to disturb the
streets, the amount shall be Fifty Dollars ($50. 00) per day.
3. For failure of Grantee to comply with construction, operation
or maintenance standards, the amount shall be One Hundred
Dollars ($100. 00) per day.
4. For willful and repetitive failure to provide the service
requirements set forth in the Franchise Agreement or the
City's Cable Communications Ordinance, the amount shall be
One Hundred Dollars ($100. 00) per day.
5. For failure to test, analyze and report on the performance of
the System following a request by City, the amount shall be
One Hundred Dollars ($100. 00) per day.
6. For failure to provide reasonable data, documents, reports or
information or to cooperate with the City during a System
review, as required by the Franchise Agreement or this
Ordinance, the amount shall be Fifty Dollars ($50. 00) per
day.
7. For failure to submit timely reports, the amount shall be
Fifty Dollars ($50. 00) per day until received by City.
8. For failure to comply with any of the material provisions of
the Franchise Agreement or the Cable Act for which an amount
is not otherwise specifically provided pursuant to this
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section, the amount shall be One Hundred Dollars ($100. 00)
per day.
9. For failure to pay taxes, payments, damages, costs and/or
expenses as required by the Agreement or the Cable
Communications Ordinance, the amount shall be the amount
owed.
The City retains the right, at its sole discretion, to reduce or
waive any of the above listed penalties where extenuating circumstances
or conditions beyond the control of the Grantee are determined to
exist.
F. Relation to Other Remedies. Notwithstanding the sanctions
provided hereinabove, a violation of any material provisions of the
Franchise Agreement or Cable Communications Ordinance shall be
considered a separate violation for which a separate remedy may be
imposed.
G. Procedure. Whenever the City finds that the Grantee has
violated one (1) or more terms, conditions or provisions of the
Franchise Agreement or the Cable Communications Ordinance or has failed
to pay the City any taxes or payments due and unpaid or fails to repay
to the City any damages cost or expenses which the City was compelled
to pay by reason of any action or default of the Grantee in connection
with the Franchise, a written notice shall be provided to the Grantee
informing it of such violation. The written notice shall describe in
reasonable detail the specific violation so as to afford the Grantee an
opportunity to remedy the violation. The Grantee shall have thirty
(30) working days subsequent to receipt of the notice in which to
correct the violation before the City may resort to assessing fines.
The Grantee may notify the City within thirty (30) working days of
receipt of notice, that there is a dispute as to whether a violation or
failure has, in fact, occurred. Such notice shall stay the running of
the above described thirty (30) day period and such notice shall
specify with particularity the matter disputed the Grantee.
1. In the event the City and the Grantee are unable to resolve
the dispute, the matter shall be heard by the City Council at
a meeting held not less than five (5) days of the filing of
the dispute by the Grantee. The City shall notify the
Grantee of the time and place of the City Council hearing and
provide the Grantee with an opportunity to be heard.
2. If after hearing the dispute the claim is upheld by the City
Council, the City shall provide the Grantee with written
findings of fact. The Grantee shall have five (5) working
days from such a determination to remedy the violation unless
an extension of time is mutually agreed upon by the City and
the Grantee. At any time after that five (5) day period, the
City may assess fines as indicated in the liquidated damages
section.
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The rights reserved to the City with respect to Section 8-32 .D and
8-32 .E are in addition to all other rights of the City, whether
reserved by the Franchise Agreement or authorized by law, and no
action, proceeding or exercise of a right with respect to such security
or guarantee shall affect any other right the City may have.
H. Indemnification to City.
1. By accepting a franchise, the Grantee shall be deemed to have
agreed to indemnify and hold harmless, the City, its officers, boards,
commissioners, agents, and/or employees against and from all claims,
demands, causes of actions, suits, proceedings, and damages of every
kind and character, whether legal or equitable in nature in any way
arising out of or through or alleged to arise out of or through the
acts or omissions of the Grantee or its officers, agents, employees or
contractors, regardless of inerit of any of the same, and against all
liability to others, and against any loss, costs and expense resulting
or arising out of any of the same, including but not limited to any
reasonable attorneys fees, accountant fees, expert witness or
consultant fees, court costs or per diem expense.
Nothing herein shall be deemed to prevent the parties indemnified
and held harmless herein from participating in the defense of any
litigation by their own counsel at their sole expense. Such
participation shall not under any circumstance relieve the Grantee from
its duties hereunder for defense against liability or of paying any
judgment entered against such indemnified party.
2. Upon demand of the City, made by and through the City
attorney, the Grantee shall, at its sole risk and expense, appear in
and defend any and all suits, actions or other proceedings, whether
judicial, quasijudicial, administrative, legislative, or otherwise,
brought or instituted or had by third persons or duly constituted
authorities, against or affecting the City, its officers, boards,
commissions, agents, or employees, and arising out of Grantee's
operation, construction and maintenance of a system under any franchise
issued, and for which indemnification is due, pursuant to this Chapter.
3. In the event that a conflict of interest develops between the
City and Grantee, the City may, on behalf of itself, and/or any of its
officers, boards, commissions, agents or employees, elect to employ, at
Grantee's expense, attorneys to appear and defend such actions.
4. The Grantee shall pay and satisfy and shall cause to be paid
and satisfied any judgment, decree, order, directive, or demand
rendered, made or issued against Grantee, the Franchising Authority,
its officers, boards, commissions, or employees in any of these
premises and such indemnity shall exist and continue without reference
to or limitation by the amount of any bond, policy of insurance,
security deposit, undertaking or other assurances required hereunder,
or otherwise; provided, that neither Grantee nor the Franchising
Authority shall make or enter into any settlement of any claim, demand,
cause of action, action, suit or other proceedings, without first
obtaining the written consent of the other.
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5. Notwithstanding anything to the contrary in this section 8-
32.H, the Grantee shall not be responsible for indemnifying or holding
harmless the City, its officers, boards, commissioners, agents and/or
employees due to their gross negligence or wilful misconduct.
Sec. 8-33. INSPECTION OF PROPERTY AND RECORDS.
A. Examination of Property. At all reasonable times, the
Grantee shall permit any duly authorized representative of the City to
examine all property of the Grantee, and to examine any and all maps
and other records kept or maintained by the Grantee or under its
control which deal with the operations and property of the Grantee as
it pertains to the enforcement of the provisions of this Ordinance or
the Franchise Agreement. If any maps or records are not kept in the
City, or upon reasonable request made available in the City, and if the
Council shall determine that an examination thereof is necessary or
appropriate, then travel and maintenance expense necessarily incurred
in making such examination shall be paid by the Grantee.
B. Reports, Records and Plans. The Grantee shall at all times
maintain full and complete plans and records showing the exact location
of all cable communications system equipment installed or in use in the
streets and other public places in the City. The Grantee shall file
with the City, on or before the last day of June of each year, a
current map or set of maps showing all cable communications
distribution and trunk lines installed and in place in streets and
other public places in the City. Upon request from the Franchising
Authority, the Grantee will provide records showing any updates and/or
changes to the cable system installed or in use in the City.
Sec. 8-34. VIOLATIONS. IInlawful operation. It shall be unlawful for
any person to construct install or maintain within any street, public
way or public right-of-way in the City, or within any other public
property of the City, or within any privately owned area within the
City which has not yet become a public right-of-way but is designated
as proposed right-of-way on any tentative subdivision map approved by
the City, equipment or facilities for distributing a cable
communications system providing audio and/or video services, unless a
Franchise authorizing such use in such street or property or area has
first been obtained pursuant to the provisions of this Chapter, and
unless such Franchise is in full force and effect.
Sec. 8-35. REMEDIES.
A. Subject to applicable federal, state and local law and in
addition to any other remedy available under this Chapter, a Franchise
Agreement or other applicable remedy at law or at equity, the
Franchising Authority may, to the extent permitted by law, levy fines
and other penalties for failure to comply with the provisions of this
Chapter or a Franchise Agreement pursuant to duly enacted ordinances or
regulations adopted by the Franchising Authority.
B. Rights and Remedies. Al1 rights and remedies given to City
and the Grantee by the Franchise Agreement and this Ordinance shall be
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in addition to and cumulative with any and all other rights or
remedies, existing or implied, now or hereafter available to the City
or the Grantee, at law or in equity, and such rights and remedies shall
not be exclusive, but each and every right and remedy specifically
given by the Franchise Agreement and this Ordinance may be exercised
from time to time and as often and in such order as may be deemed
expedient by the City or the Grantee and the exercise of one or more
rights or remedies shall not be deemed a waiver of right to exercise at
the same time or thereafter any other right or remedy. Subject to
applicable federal and state law, no delay or omission of City or the
Grantee to exercise any right or remedy, nor shall any such delay or
omission be construed to be a waiver of or acquiescence of any default.
The Franchising Authority retains the right, at its sole
discretion, to reduce or waive any of the above listed penalties where
extenuating circumstances or conditions beyond the control of the
Grantee are determined to exist.
C. Imposition of liquidated damages or penalties for infractions
of this Ordinance or the Franchise Agreement shall not be considered
the exclusive remedy and willful and repetitive violations of those
provisions may also be considered substantial default for purposes of
terminating this Franchise.
D. Communications With Requlatory Aqencies. The Grantee shall
submit to the City a list of any and all petitions, applications,
communications and reports submitted by the Grantee to the FCC or any
other federal or state regulatory commission or agency having
jurisdiction in respect to any matters directly affecting construction
or operation of the cable system. The list shall be provided to the
City on a quarterly basis. The City may then request a copy of any
such document on the list along with any response thereto. Any filing
specifically requested by the City shall be submitted within thirty
(30) days of such request. The City shall file with the Grantee a list
of any communication it files with any state or federal regulatory
agency, unless required otherwise to file a copy of such document with
the Grantee.
Sec. 8-36. SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this
Chapter is for any reason held illegal, invalid or unconstitutional by
the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portion hereof. The
Council hereby declares that it would have approved this Chapter and
each section, subsection, sentence, clause, or phrase hereof,
irrespective of the fact that any one or more of the sections,
subsections, sentences, clauses or phrases be declared illegal, invalid
or unconstitutional. The invalidity of any portion of this Chapter
shall not abate, reduce or otherwise affect any consideration or other
obligation required of the Grantee of any franchise granted hereunder.
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Any section or provision of this Ordinance that is construed to be
invalid or void shall not affect the remaining sections or provisions
which shall remain in full force and effect thereafter.
All Ordinances or parts of Ordinances thereof in conflict herewith
are hereby repealed to the extent of any such conflict.
Sec. 8-37. PERIODIC REVIEW NEGOTIATIONS.
As a result of the rapid changes in regulatory, technical,
financial, marketing and legal changes in the field of cable
communications and the requirement that the Cable Operator meet the
needs and interests of the community, the following evaluation
provisions shall apply:
A. Evaluation sessions may, at the City's option, be conducted
beginning with the third and fifth anniversary year of the
Franchise Agreement and no more often than every two (2)
years thereafter. All evaluation sessions shall be open to
the public and notice of the sessions shall be published in
the local newspaper. An opinion survey of subscriber
satisfaction shall be conducted by the Grantee and the City
in conjunction with the evaluation sessions. Topics which
may be discussed at the evaluation sessions may include, but
are not limited to new technology, system performance,
service complaints, programming, FCC rules and regulations,
and any other topics permitted under the law or FCC
Regulations.
B. If, after the public evaluation session, the City determines
that there exists a reasonable community need and/or interest
in additional channel capacity and/or upgraded facilities or
technology, and/or increase in Franchise fee, if permitted by
law, the City may by written notification request the Grantee
to provide additional channels and/or upgraded facilities or
technology. The notice shall also indicate the consideration
to be provided to the Grantee on behalf of the City, such as
an extension of the Franchise Agreement or increased rates.
Within thirty (30) days after receipt of the request, the
Grantee shall either agree to the requested changes (at the
Grantee's expense) or notify the City that such changes are
not warranted under the generally accepted technological
industry standards.
C. In the event the Grantee notifies the City that the requested
changes are unwarranted, the City may request a study to be
conducted by an independent consultant (selected by the City
and the Grantee) with knowledge and expertise in cable
communications. The cost of the study shall be shared
equally by the City and the Grantee.
D. The consultant shall submit a report as to the feasibility of
increasing channel capacity and/or upgraded facilities or
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technology, or increase of the Franchise fee, if permitted by
law, taking into consideration the cost, the reasonable
economic return to the Grantee and the balance of the
franchise term.
E. Upon receiving the report of the consultant, the City may
demand that the Grantee increase channel capacity and/or
upgrade facilities and technology, or increase the Franchise
fee, if permitted by law. In the event the Grantee refuses,
the City may pursue such legal or equitable remedies as may
be available.
Sec. 8-38. PIIBLICATION COSTS.
The Grantee shall assume any reasonable cost of publication of the
Franchise as such publication is required by law and such is payable
upon the Grantee's acceptance of a Franchise.
ARTICLE 2 . This Ordinance shall be in full force and effect ten
days after its passage and approval.
PASSED AND APPROVED THIS I��� DAY OF � ; , 19 �� .
ATTEST: CITY OF CAPE GIRARDEAU, MISSOURI
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Depu City Clerk A. M. Spradling III, or
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