HomeMy WebLinkAboutOrd.1800.10-16-1995 � 1 '
BILL NO. 95-227 ORDINANCE NO. /��t-!_.�
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.
PASSED AND APPROVED THIS �;.� t.'.�t DAY OF !"�',.i�K`�'' ,',' , 19 i-=
A. . Spradling, III, yor
ATTEST:
�, . ,,�, ,•-_f,;;,��,,-�.`
Gayle'L. Conrad
Deputy City Clerk
CABLE COMMUNICATIONS
FRANCHISE AGREEMENT
City of Cape Girardeau, Missouri
SECTION 1
GRANT OF NON-E%CLIISIVE 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.
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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 i�n�
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
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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. The
final decisions to be made in connection with the addition of
programming shall be left to the discretion of the Grantee.
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.
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SECTION 5
PIIBLIC, EDUCATIONAL & GOVERNMENT ACCESS
The Grantee agrees to provide, without charge, one (1) channel
to be used for Public, Educational & Governmental (PEG)
programming. Subject to applicable law, the PEG channel shall be
used solely for PEG programming and the use of such channel shall
be left to the sole discretion of the City. The City may contract
with a third-party to oversee the operations of the PEG channel.
The Grantee wi 11 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
costs against its franchise fee payments.
SECTION 6
INCORPORATION OF CAPE GIRARDEAU CABLE COMMUNICATIONS ORDINANCE_
The provisions of the Cape Girardeau Cable Communications
Ordinance are specifically incorporated herein by reference as if
set forth verbatim.
SECTION 7
SERVICE OF NOTICE
Unless expressly otherwise agreed between the parties, every
notice or response to be served upon the Franchising Authority or
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. . r
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
MI SCELL1yNE0i1�
Oral Modification. This Franchise Agreement shall not be
changed, modified or amended in whole or in part except in writin,g. _
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
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Girardeau, Missouri, existing today or as may be amended or
enacted.
Obliqations to Continue Throuc�hout Term. Unless otherwise
specifically stated, all obligations under this Franchise Agreement
shall continue throughout the entire term or extension of this
Franchise Agreement.
Headinqs. 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
Douglas K. Leslie
Interim City Manager
ATTEST:
Gayle L. Conrad Deputy City Clerk
TCI CABLEVISION OF MISSOURI, INC.
�_�»•-�.o_ �;��c.t._�.._l
Thomas R. Barberini, Vice President
ATTEST:
.���C.lir,�� , �
Witness �� �
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