[Ord. No. 2004-355 §1, 2-3-2004]
For the purpose of this franchise, the following terms, phrases,
words and abbreviations shall have the meanings ascribed to them below.
When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include
the singular number and words in the singular number include the plural
number:
The lowest priced tier of cable service that includes the
retransmission of local broadcast television signals.
Title VI of the Communications Act of 1934, as amended.
The grantee's 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 the service area.
Federal Communications Commission or successor governmental
entity thereto.
The City of Goodman, Missouri.
Mediacom Southeast LLC or the lawful successor, transferee
or assignee thereof.
Any revenues from the operation of the cable system to provide
basic cable services in the service area received by grantee from
subscribers, provided however, that gross revenues shall not include
franchise fees, the FCC user fee or any tax, fee or assessment of
general applicability collected by the grantee from subscribers for
pass through to a government agency.
An individual, partnership, association, joint stock company,
trust, corporation or governmental entity.
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, 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 now
or hereafter held by the franchising authority in the service area,
which shall entitle the grantee to the use thereof for the purpose
of installing, operating, repairing and maintaining the cable system.
The present boundaries of the franchising authority and shall include any additions thereto by annexation or other legal means, subject to the exceptions in Subsection 615.130(I).
One hundred twenty-five (125) feet from the nearest tap to
the subscriber's terminal.
A person who lawfully receives cable service of the cable
system with the grantee's express permission.
[Ord. No. 2004-355 §2, 2-3-2004]
A.
Grant. The franchising authority hereby grants to the grantee
a non-exclusive franchise which authorizes the grantee to construct
and operate a cable system in, along, among, upon, across, above,
over, under or in any manner connected with public ways within the
service area and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain or retain in, on, over, under, upon,
across or along any public way such facilities and equipment as may
be necessary or appurtenant to the cable system for the transmission
and distribution of cable services, data services, information and
other communications services or for any other lawful purposes.
B.
Other Ordinances. The grantee agrees to comply with the
terms of any lawfully adopted generally applicable local ordinance,
to the extent that the provisions of the ordinance do not have the
effect of limiting the benefits or expanding the obligations of the
grantee that are granted by this franchise. Neither party may unilaterally
alter the material rights and obligations set forth in this franchise.
In the event of a conflict between any ordinance and this franchise,
the franchise shall control.
C.
Other Authorizations. The franchising authority shall not
permit any person to provide services similar to those provided by
the grantee in the service area without first having secured a non-exclusive
franchise from the franchising authority. The franchising authority
agrees that any grant of additional franchises or other authorizations
including OVS authorizations by the franchising authority to provide
services similar to those provided by the grantee pursuant to this
agreement to any other entity shall cover the entire service area
and shall not be on terms and conditions more favorable or less burdensome
to the grantee of any such additional franchise or other authorization
than those which are set forth herein. In any renewal of this franchise,
the franchising authority, should it seek to impose increased obligations
upon the grantee, must take into account any additional franchise(s)
or authorizations previously granted and find that the proposed increased
obligations in the renewal are not more burdensome and/or less favorable
than those contained in any such additional franchise(s) or authorizations.
[Ord. No. 2004-355 §3, 2-3-2004]
A.
Conditions Of Occupancy. The cable system installed by the
grantee pursuant to the terms hereof shall be located so as to cause
a minimum of interference with the proper use of public ways and with
the rights and reasonable convenience of property owners who own property
that adjoins any of such public ways.
B.
Restoration Of Public Ways. If during the course of the
grantee's construction, operation or maintenance of the cable system
there occurs a disturbance of any public way by the grantee, grantee
shall replace and restore such public way to a condition reasonably
comparable to the condition of the public way existing immediately
prior to such disturbance.
C.
Relocation For The Franchising Authority. Upon its receipt
of reasonable advance written notice, to be not less than ten (10)
business days, the grantee shall protect, support, raise, lower, temporarily
disconnect, relocate in or remove from the public way any property
of the grantee when lawfully required by the 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 public structures or improvements which are not used to compete
with the grantee's services. The grantee shall in all cases have the
right of abandonment of its property.
D.
Relocation For A Third Party. The grantee shall, on the
request of any person holding a lawful permit issued by the franchising
authority, protect, support, raise, lower, temporarily disconnect,
relocate in or remove from the public way as necessary any property
of the grantee, provided:
1.
The
expense of such is paid by said person benefiting from the relocation,
including, if required by the grantee, making such payment in advance;
and
2.
The
grantee is given reasonable advance written notice to prepare for
such changes. For purposes of this Subsection, "reasonable advance
written notice" shall be no less than thirty (30) business days in
the event of a temporary relocation and no less than one hundred twenty
(120) days for a permanent relocation.
E.
Trimming Of Trees And Shrubbery. The grantee shall have
the authority to trim trees or other natural growth in order to access
and maintain the cable system.
F.
Safety Requirements. Construction, operation and maintenance
of the cable system shall be performed in an orderly and workmanlike
manner. All such work shall be performed in substantial accordance
with generally applicable Federal, State and local regulations and
the National Electric Safety Code.
G.
Underground Construction. In those areas of the service
area where all of the transmission or distribution facilities of the
respective public utilities providing telephone communications and
electric services are underground, the grantee likewise shall construct,
operate and maintain its cable system underground. Nothing contained
in this Subsection shall require the grantee to construct, operate
and maintain underground any ground-mounted appurtenances.
H.
Access To Open Trenches. The franchising authority agrees
to include the grantee in the platting process for any new subdivision.
At a minimum, the franchising authority agrees to require as a condition
of issuing a permit for open trenching to any utility or developer
that:
1.
The
utility or developer give the grantee at least ten (10) days' advance
written notice of the availability of the open trench; and
2.
The
utility or developer provide the grantee with reasonable access to
the open trench.
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Notwithstanding the foregoing, the grantee shall not be required
to utilize any open trench.
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I.
Required Extensions Of The Cable System. Grantee agrees
to provide cable service to all residences in the service area subject
to the density requirements specified in this Subsection. Whenever
the grantee receives a request for cable service from a potential
subscriber in an unserved area contiguous to grantee's existing distribution
facilities where there are at least ten (10) residences within one
thousand three hundred twenty (1,320) cable-bearing strand feet (one-quarter
(¼) cable mile) from the portion of the grantee's trunk or
distribution cable which is to be extended, it shall extend its cable
system to such subscribers at no cost to said subscribers for the
cable system extension, other than the published standard/non-installation
fees charged to all subscribers. Notwithstanding the foregoing, the
grantee shall have the right, but not the obligation, to extend the
cable system into any portion of the service area where another operator
is providing cable service into any annexed area which is not contiguous
to the present service area of the grantee or into any area which
is financially or technically infeasible due to extraordinary circumstances,
such as a runway or freeway crossing.
J.
Subscriber Charges For Extensions Of The Cable System. No subscriber shall be refused service arbitrarily. However, if an area does not meet the density requirements of Subsection 615.130(I) above, the grantee shall only be required to extend the cable system to subscriber(s) in that area if the subscriber(s) are willing to share the capital costs of extending the cable system. Specifically, the grantee shall contribute a capital amount equal to the construction cost per mile, multiplied by a fraction whose numerator equals the actual number of residences per one thousand three hundred twenty (1,320) cable-bearing strand feet from the grantee's trunk or distribution cable and whose denominator equals ten (10). Subscribers who request service hereunder shall bear the remaining cost to extend the cable system on a pro rata basis. The grantee may require that payment of the capital contribution in aid of construction borne by such potential subscribers be paid in advance. Subscribers shall also be responsible for any standard/non-standard installation charges to extend the cable system from the tap to the residence.
K.
Cable Service To Public Buildings. The grantee, upon request,
shall provide without charge a standard installation and one (1) outlet
of basic cable to those administrative buildings owned and occupied
by the franchising authority, fire station(s), police station(s) and
K-12 public school(s) that are passed by its cable system. The cable
service provided shall not be distributed beyond the originally installed
outlet without authorization from the grantee. The cable service provided
shall not be used for commercial purposes and such outlets shall not
be located in areas open to the public. The franchising authority
shall take reasonable precautions to prevent any inappropriate use
of the grantee's cable system or any loss or damage to grantee's cable
system. The franchising authority shall hold the grantee harmless
from any and all liability or claims arising out of the provision
and use of cable service required by this Subsection. The grantee
shall not be required to provide an outlet to such buildings where
a non-standard installation is required, unless the franchising authority
or building owner/occupant agrees to pay the incremental cost of any
necessary cable system extension and/or non-standard installation.
If additional outlets of basic cable are provided to such buildings,
the building owner/occupant shall pay the usual installation and service
fees associated therewith.
L.
Emergency Alert. Any emergency alert system ("EAS") provided
by grantee shall be operated in accordance with FCC regulations. Except
to the extent expressly prohibited by law, the franchising authority
will hold the grantee, its employees, officers and assigns harmless
from any claims arising out of use of the EAS, including, but not
limited to, reasonable attorneys' fees and costs.
M.
Reimbursement Of Costs. If funds are available to any person
using the public way for the purpose of defraying the cost of any
of the foregoing, the franchising authority shall reimburse the grantee
in the same manner in which other persons affected by the requirement
are reimbursed. If the funds are controlled by another governmental
entity, the franchising authority shall make application for such
funds on behalf of the grantee.
[Ord. No. 2004-355 §4, 2-3-2004]
A.
Franchise Fee.
1.
The grantee shall pay to the franchising authority a franchise fee of five percent (5%) of annual gross revenues (as defined in Subsection 615.110 of this Article). In accordance with the Cable Act, the twelve (12) month period applicable under the franchise for the computation of the franchise fee shall be a calendar year. The franchise fee payment shall be due annually and payable within ninety (90) days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report prepared by a representative of the grantee showing the basis for the computation.
2.
Limitation on franchise fee actions. The period of limitation
for recovery by the franchising authority of any franchise fee payable
hereunder shall be three (3) years from the date on which payment
by the grantee is due to the franchising authority.
B.
Rates And Charges. The franchising authority may regulate
rates for the provision of basic cable and equipment as expressly
permitted by Federal law.
C.
Renewal Of Franchise.
1.
The
franchising authority and the grantee agree that any proceedings undertaken
by the franchising authority that relate to the renewal of the grantee's
franchise shall be governed by and comply with the renewal provisions
of Federal law.
2.
In addition
to the procedures set forth in the Cable Act, the franchising authority
agrees to notify the grantee of all of its assessments regarding the
identity of future cable-related community needs and interests, as
well as the past performance of the grantee under the then current
franchise term. The franchising authority further agrees that such
assessments shall be provided to the grantee promptly so that the
grantee has adequate time to submit a proposal pursuant to the Cable
Act and complete renewal of the franchise prior to expiration of its
term.
3.
Notwithstanding anything to the contrary set forth in this Subsection (C), the grantee and the franchising authority agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment in accordance with the provisions of Federal law the franchising authority and the grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current franchise and the franchising authority may grant a renewal thereof.
D.
Conditions Of Sale.
1.
If a
renewal or extension of the grantee's franchise is denied or the franchise
is lawfully terminated and the franchising authority either lawfully
acquires ownership of the cable system or by its actions lawfully
effects a transfer of ownership of the cable system to another party,
any such acquisition or transfer shall be at the price determined
pursuant to the provisions set forth in Section 627 of the Cable Act.
2.
The
grantee and the franchising authority agree that in the case of a
final determination of a lawful revocation of the franchise, the grantee
shall be given at least twelve (12) months to effectuate a transfer
of its cable system to a qualified third party. Furthermore, the grantee
shall be authorized to continue to operate pursuant to the terms of
its prior franchise during this period. If, at the end of that time,
the grantee is unsuccessful in procuring a qualified transferee or
assignee of its cable system which is reasonably acceptable to the
franchising authority, the grantee and the franchising authority may
avail themselves of any rights they may have pursuant to Federal or
State law. It is further agreed that the grantee's continued operation
of the cable system during the twelve (12) month period shall not
be deemed to be a waiver, nor an extinguishment of, any rights of
either the franchising authority or the grantee.
E.
Transfer Of Franchise. The grantee's right, title or interest
in the franchise shall not be sold, transferred, assigned or otherwise
encumbered, other than to an entity controlling, controlled by or
under common control with the grantee, without prior written notice
to the franchising authority. No such notice shall be required, however,
for a transfer in trust, by mortgage, by other hypothecation or by
assignment of any rights, title or interest of the grantee in the
franchise or cable system in order to secure indebtedness.
[Ord. No. 2004-355 §5, 2-3-2004]
The grantee agrees that the franchising authority, upon thirty
(30) days' written notice to the grantee and no more than once annually,
may review such of its books and records at the grantee's business
office, during normal business hours and on a non-disruptive basis,
as is reasonably necessary to ensure compliance with the terms of
this franchise. Such notice shall specifically reference the Subsection
of the franchise which is under review, so that the grantee may organize
the necessary books and records for easy access by the franchising
authority. Alternatively, if the books and records are not easily
accessible at the local office of the grantee, the grantee may, at
its sole option, choose to pay the reasonable travel costs of the
franchising authority's representative to view the books and records
at the appropriate location. The grantee shall not be required to
maintain any books and records for franchise compliance purposes longer
than three (3) years. Notwithstanding anything to the contrary set
forth herein, the grantee shall not be required to disclose information
which it reasonably deems to be proprietary or confidential in nature,
nor disclose books and records of any affiliate which is not providing
cable service in the service area. The franchising authority agrees
to treat any information disclosed by the grantee as confidential
and only to disclose it to employees, representatives and agents thereof
that have a need to know or in order to enforce the provisions hereof.
The grantee shall not be required to provide subscriber information
in violation of Section 631 of the Cable Act.
[Ord. No. 2004-355 §6, 2-3-2004]
A.
Insurance Requirements. The grantee shall maintain insurance
in full force and effect, at its own cost and expense, during the
term of the franchise. The franchising authority shall be designated
as an additional insured and such insurance shall be non-cancelable
except upon thirty (30) days' prior written notice to the franchising
authority. Upon written request, the grantee shall provide a Certificate
of Insurance showing evidence of the coverage required by this Subsection.
B.
Indemnification. 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 in the
service area provided that the franchising authority shall give the
grantee written notice of its obligation to indemnify the franchising
authority within ten (10) days of receipt of a claim or action pursuant
to this Subsection. Notwithstanding the foregoing, the grantee shall
not indemnify the franchising authority for any damages, liability
or claims resulting from the willful misconduct or negligence of the
franchising authority.
[Ord. No. 2004-355 §7, 2-3-2004]
A.
Notice Of Violation. In the event that the franchising authority
believes that the grantee has not complied with the any material term
of the franchise, the franchising authority shall informally discuss
the matter with grantee. If these discussions do not lead to resolution
of the problem, the franchising authority shall notify the grantee
in writing of the exact nature of such alleged non-compliance.
B.
The Grantee's Right To Cure Or Respond. The grantee shall have thirty (30) days from receipt of the notice described in Subsection (A):
1.
To respond
to the franchising authority, contesting the assertion of such non-compliance,
or
2.
To cure
such default, or
3.
In the
event that, by the nature of such default, it 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.
C.
Public Hearing. In the event that the grantee fails to respond to the notice described in Subsection (A) pursuant to the procedures set forth in Subsection (B) or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to (B)(3) above, if it intends to continue its investigation into the default, then the franchising authority shall schedule a public hearing. The franchising authority shall provide the grantee at least ten (10) days' prior written notice of such hearing, which specifies the time, place and purpose of such hearing and provide the grantee the opportunity to be heard.
D.
Enforcement. Subject to applicable Federal and State law, in the event the franchising authority, after the hearing set forth in Subsection (C), determines that the grantee is in material default of any provision of the franchise, the franchising authority may:
E.
Revocation.
1.
Should the franchising authority seek to revoke the franchise after following the procedures set forth in Subsections (A — D) above, the franchising authority shall give written notice to the grantee of its intent. The notice shall set forth the exact nature of the repeated or ongoing substantial non-compliance with a material term or terms of the franchise. The grantee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the franchising authority has not received a satisfactory response from the grantee, it may then seek termination of the franchise at a public hearing. The franchising authority shall cause to be served upon the grantee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the franchise.
2.
At the
designated hearing, grantee shall be provided a fair opportunity for
full participation, including the right to be represented by legal
counsel, to introduce relevant evidence, to require the production
of evidence, to compel the relevant testimony of the officials, agents,
employees or consultants of the franchising authority, to compel the
testimony of other persons as permitted by law and to question witnesses.
A complete verbatim record and transcript shall be made of such hearing.
3.
Following
the hearing, the franchising authority shall determine whether or
not the franchise shall be revoked. If the franchising authority determines
that the franchise shall be revoked, the franchising authority shall
promptly provide grantee with its decision in writing. The grantee
may appeal such determination of the franchising authority to an appropriate
court which shall have the power to review the decision of the franchising
authority de novo. Grantee shall be entitled to such relief as the
court finds appropriate. Such appeal must be taken within sixty (60)
days of grantee's receipt of the determination of the franchising
authority.
4.
The
franchising authority may, at its sole discretion, take any lawful
action which it deems appropriate to enforce the franchising authority's
rights under the franchise in lieu of revocation of the franchise.
F.
Force Majeure.
1.
The
grantee shall not be held in default under, or in non-compliance with,
the provisions of the franchise, nor suffer any enforcement or penalty
relating to non-compliance or default, where such non-compliance or
alleged defaults occurred or were caused by circumstances reasonably
beyond the ability of the grantee to anticipate and control. This
provision includes work delays caused by waiting for utility providers
to service or monitor their utility poles to which the grantee's cable
system is attached, as well as unavailability of materials and/or
qualified labor to perform the work necessary.
2.
Furthermore,
the parties hereby agree that it is not the franchising authority's
intention to subject the grantee to penalties, fines, forfeitures
or revocation of the franchise for violations of the franchise where
the violation was a good faith error that resulted in no or minimal
negative impact on the subscribers within the service area or where
strict performance would result in practical difficulties and hardship
to the grantee which outweigh the benefit to be derived by the franchising
authority and/or subscribers.
[Ord. No. 2004-355 §8, 2-3-2004]
A.
Actions Of Parties. In any action by the franchising authority
or the grantee that is mandated or permitted under the terms hereof,
such party shall act in a reasonable, expeditious and timely manner.
Furthermore, in any instance where approval or consent is required
under the terms hereof, such approval or consent shall not be unreasonably
withheld.
B.
Entire Agreement. This franchise constitutes the entire
agreement between the grantee and the franchising authority and supersedes
all other prior understandings and agreements oral or written. Any
amendments to this franchise shall be mutually agreed to in writing
by the parties.
C.
Reservation Of Rights. Acceptance of the terms and conditions
of this franchise will not constitute, or be deemed to constitute,
a waiver, either expressly or impliedly, by grantee of any constitutional
or legal right which it may have or may be determined to have, either
by subsequent legislation or court decisions. The franchising authority
acknowledges that grantee reserves all of its rights under applicable
Federal and State Constitutions and laws.
D.
Notice. Unless expressly otherwise agreed between the parties,
every notice or response required by this franchise to be served upon
the franchising authority or the grantee shall be in writing and shall
be deemed to have been duly given to the required party when placed
in a properly sealed and correctly addressed envelope:
1.
Upon
receipt when hand delivered with receipt/acknowledgment,
2.
Upon
receipt when sent certified, registered mail,
3.
Within
five (5) business days after having been posted in the regular mail,
or
4.
The
next business day if sent by express mail or overnight air courier.
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The notices or responses to the franchising authority shall
be addressed as follows:
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City of Goodman
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Attn: City Clerk
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203 West Barlow; P.O. Box 246
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Goodman, Missouri 64843
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The notices or responses to the grantee shall be addressed as
follows:
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Mediacom Southeast LLC
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C/O Mediacom
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Attn: Legal Department; Bruce Gluckman
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100 Crystal Run Road
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Middletown, New York 10941
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With a copy to:
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Government Relations Manager
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Mediacom Southeast LLC
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C/O Mediacom
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1533 South Enterprise Avenue
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Springfield, Missouri 65804
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The franchising authority and the grantee may designate such
other address or addresses from time to time by giving notice to the
other in the manner provided for in this Subsection.
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E.
Descriptive Headings. The captions to Sections and Subsections
contained herein are intended solely to facilitate the reading thereof.
Such captions shall not affect the meaning or interpretation of the
text herein.
F.
Severability. If any Section, Subsection, sentence, paragraph,
term or provision hereof is determined to be illegal, invalid or unconstitutional
by any court of competent jurisdiction or by any State or Federal
regulatory authority having jurisdiction thereof, such determination
shall have no effect on the validity of any other Section, Subsection,
sentence, paragraph, term or provision hereof, all of which will remain
in full force and effect for the term of the franchise.
G.
Term And Effective Date. The effective date of this franchise
is the date of final adoption by the franchising authority as set
forth below subject to grantee's acceptance by countersigning where
indicated below. This franchise shall expire on June 20, 2024, unless
extended by the mutual agreement of the parties.
