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HomeMy WebLinkAboutOrd.1729.06-19-1995 R BILL NO. 95-106 ORDINANCE NO. � ��L AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CABLE COMMUNICATIONS FRANCHISE AGREEMENT WITH TCI CABLEVISION OF MISSOURI, INC. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. TCI Cablevision of Missouri, Inc. did on May 4, 1995, file its application for a new franchise agreement with the City Council. ARTICLE 2 . After due notice, the City Council held a public hearing on June 5, 1995, to consider said application. ARTICLE 3 . The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute a Cable Communications Franchise Agreement with TCI Cablevision of Missouri, Inc. A copy of said Franchise Agreement is attached to this Ordinance and made a part hereof. ARTICLE 4. This ordinance shall be in full force and effect ten days after its passage and approval. � (�� ' n� ��, 19 �,J,� PASSED AND APPROVED THIS � DAY OF � . A` . Spr dling, III, or ATTEST: i�4 1 � � � �--�gFl-�d� Dep ty City Clerk � .�/ CABLE COMMUNICATIONS FRANCHISE AGREEMENT City of Cape Girardeau, Missouri sECTiox i GRANT OF NON-EXCLIISIVE FRANCHISE The City of Cape Girardeau, Missouri (hereinafter the "Franchising Authority") hereby grants to TCI Cablevision of Missouri, Inc. (hereinafter the "Grantee") the non-exclusive right and privilege: A. 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 of Cape Girardeau, Missouri. B. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public way, lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as may be necessary and appurtenant to the operation of the cable communications system, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances otherwise complied with. C. To maintain and operate said cable communications system for the origination, collection, transmission, amplification, distribution and reception of cable service within the City of Cape Girardeau, Missouri. Nothing in this Franchise Agreement shall affect the right of City to grant to any other person a Franchise or right to occupy and use the streets, public ways or public places or any part thereof for the erection, installation, construction, reconstruction, operation, maintenance, dismantling, testing or repair or use of cable communications system within City. Having fully examined all of the provisions of the Cape Girardeau Cable Communications Ordinance in effect as of the effective date of this Franchise Agreement, the Grantee hereby accepts the award of the non-exclusive franchise and expressly promises and agrees to comply in all respects with every provision of such Ordinance as it now exists or is hereafter amended or supplemented, provided that where the provisions of the Ordinance and the Franchise Agreement are inconsistent the provisions of this Franchise Agreement shall control. 3-27-95 rr SECTION 2 TERM OF AGREEMENT This Agreement and the Franchise granted hereunder shall become effective upon the receipt of the Grantee's written acceptance according to the requirements of the Cape Girardeau Cable Communications Ordinance together with the execution, establishment and delivery of proof of any security and insurance required in the Cape Girardeau Cable Communications Ordinance. The grant of this Franchise shall be for a term of ten (10) years beginning on , 1995. This Franchise Agreement may be terminable for breach of any material term or condition hereof or for violations of any material provision of this Agreement or of the Cape Girardeau Cable Communications Ordinance. SECTION 3 ACCEPTANCE OF FRANCHISE The Franchising Authority and the Grantee agree to be bound by and to timely and fully perform and fulfill all of the terms, agreements, provisions, conditions, promises, offers, representations and inducements contained in this Franchise Agreement. The Grantee agrees that it is and shall be subject to the regulatory authority of the City as set out in this Franchise Agreement and the Cable Communications Ordinance which may from time to time only be supplemented or amended pursuant to the City's lawful police power and any powers provided under the Cable Act or by authority of the FCC. The Grantee represents, warrants and guarantees that neither it, nor its representatives or agents, have knowingly committed any illegal acts or engaged in any wrongful conduct contrary to, or in violation of any federal, state or local law or regulation in connection with the obtaining of the Franchise. The Grantee further warrants and represents as follows: A. That it is a Missouri corporation in good standing and has full right and authority to enter into and fully perform the terms of this Franchise Agreement. B. That it has taken all action necessary to authorize the execution and delivery of this Franchise Agreement and 3-27-95 -2- . � the full performance of all the duties and obligations of the Grantee under the Franchise Agreement. SECTION 4 SYSTEM IIPGRADE Within thirty (30) months from the execution date of this Franchise Agreement, the Grantee shall complete a system upgrade of the cable television system within the City. The upgrade shall consist of a fiber optic network and distribution equipment and shall have the capability of passing at least 550 Megahertz (MHZ) . The system upgrade shall additionally include two-way capability as set forth in the Cape Girardeau Cable Communications Ordinance. During the rebuild, the City and Grantee shall conduct a survey to determine additional programming desired by the subscribers of the cable system. After receiving the results of the survey, the Grantee will present to the City a report indicating Grantee's ability to offer such programming and the costs associated with the addition of such programming. To the extent it is legally, technically and economically viable to offer the programming, Grantee will use its best efforts to do so. During the interim, Subscribers shall be entitled to all other benefits specified in this Franchise Agreement, except expanded channel capacity. No penalties of any kind shall be imposed against the Grantee for delays in upgrading the System when the delays are caused by acts of God, fires, strikes, vendor-caused equipment delays, and failure after reasonable effort to comply within the thirty (30) months deadline. In the case of a vendor-caused equipment delay, the burden of proof will be on the Grantee to show that the delay was solely the failure of the vendor, and that the vendor was an established equipment supplier at the time the order was placed. During the period when the System is undergoing construction, upgrading or modification, the Grantee shall make every effort to minimize the incidence and length of service interruptions to its Subscribers, except in the case of an emergency. In the event the Grantee is aware that Subscriber service in any area of the City may be interrupted for a period exceeding three (3) hours, the Franchising Authority shall be notified prior to the interruption, when possible. Any interrupted service shall be subject to the provisions of the Cape Girardeau Cable Communications Ordinance. 3-27-95 -3- y SECTION 5 PUBLIC, EDIICATIONAL & GOVERNMENT ACCESS The Grantee agrees to provide, without charge, one (1) channel to be used for Public, Educational & Governmental (PEG) programming. Subject to applicable law, the PEG channel shall be used solely for PEG programming and the use of such channel shall be left to the sole discretion of the City. The City may contract with a third-party to oversee the operations of the PEG channel. The Grantee will telecast without charge with at least two (2) cameras with sound the regular meetings of the City Council, and such other meetings of the City Council, the School Board, other City Boards, or City Agencies or the County Boards when meeting in Cape Girardeau as the City Council may hereafter designate. Telecasts will be of good quality and taped or live at the respective agency's option. Upon completion of the System Upgrade, as contemplated by Section 4 hereof, or prior to such completion, the Grantee will re- negotiate with the City additional needs and uses for PEG access and associated facilities. It is understood between the parties hereto, that such additional PEG requests and the costs associated therewith will be subject to being assessed to the subscriber pursuant to applicable FCC external costs calculations. Furthermore, it is understood that there shall be no obligation on the part of the Grantee to pay any grants upfront or provide any services until the external costs associated therewith are approved by the City. To the extent that the City offers a Franchise to a second multipurpose video provider, such provider must provide equivalent benefits to the City or the Grantee may offset the amount of such casts against its franchise fee payments. SECTION 6 INCORPORATION OF CAPE GIRARDEAII CABLE COMMIINICATIONS ORDINANCE The provisions of the Cape Girardeau Cable Communications Ordinance are specifically incorporated herein by reference as if set forth verbatim. SECTION 7 SERVICE OF NOTICE Unless expressly otherwise agreed between the parties, every notice or response to be served upon the Franchising Authority or 3-27-95 -4- .� • � Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a post office or branch thereof regularly maintained by the U.S. Postal Service. The notices or responses to the Franchising Authority shall be addressed as follows: City Manager City Hall 401 Independence Cape Girardeau, Missouri 63701. The notices or responses to the Grantee shall be addressed as follows: TCI Cablevision of Missouri, Inc. 334 Christine Cape Girardeau, Missouri 63710-5829, Attn: General Manager With a copy to: TCI Southeast, Inc. 2204 Lakeshore Dr. , Ste. 325 Birmingham, AL 35209-6733 Attn: Director of Franchising. The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other. SECTION 8 MISCELLANEOIIS Oral Modification. This Franchise Agreement shall not be changed, modified or amended in whole or in part except in writing and signed by all the parties. Severabilitv. If any provision of this Franchise Agreement shall be held invalid, the remaining provisions, and their application, shall not be affected. Merqer Clause. This Franchise Agreement constitutes the entire contract between the parties and there are no other understandings, oral or written, relating to the subject hereof, other than that the Grantee agrees to be bound by all the applicable ordinances of general applicability of the City of Cape 3-27-95 -5- Girardeau, Missouri, existing today or as may be amended or enacted. ObliQations to Continue Throuqhout Term. Unless otherwise specifically stated, all obligations under this Franchise Agreement shall continue throughout the entire term or extension of this Franchise Agreement. Headinas. Section headings used in this Franchise Agreement are for convenience of reference only and shall not affect the construction of this Franchise Agreement. Governinq Law. This Franchise Agreement shall be governed insofar as applicable in accordance with the laws of the State of Missouri. Where federal jurisdiction applies, this Franchise Agreement shall be governed by the applicable laws and agencies of the United States. CITY OF CAPE GIRARDEAU, MISSOURI J. Ronald Fischer, City Manager ATTEST: Deputy City Clerk TCI CABLEVISION OF MISSOURI, INC. Thomas R. Barberini, Vice President ATTEST: Witness 3-27-95 -6- � -