[Ord. No. 3535 Art. I §1, 9-15-2003]
This Chapter shall be known and may be cited as the "Community
Cablevision, Inc. Cable Franchise", hereinafter "Franchise", and it
shall become a part of the ordinances of the City of DeSoto, Missouri.
[Ord. No. 3535 Art. I §2, 9-15-2003]
For the purpose 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, and words in the singular number include the plural number.
The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
Cable television communications service provided by Grantee
or others over its Cable System for which a special charge is made
based on program or service content, time or spectrum space usage,
and shall include all cable television services offered by Grantee
that are not included within the "basic service tier".
Those subscriber services provided by Grantee, pursuant to
the Cable Television Consumer Protection and Competition Act of 1992,
including the delivery of broadcast signals electing carriage and
any public, educational and governmental access covered by the regular
monthly charge paid by all subscribers, excluding optional services
for which a separate charge is made.
A linear mile of strand-bearing cable as measured on the
street or easement from pole to pole or pedestal to pedestal.
A system 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 and
other programming and which provides for sale to or use by the inhabitants
or businesses of the City. The foregoing definition of "CS" shall
not be deemed to circumscribe or limit the authority of the City to
regulate or Franchise the activities of any other communications system
or provider of communication services to the full extent permitted
by law. The Person that owns, controls and operates the system shall
retain ownership rights and proprietary rights in the system.
The City of DeSoto, Missouri, a municipal corporation of
the State of Missouri.
A signaling path provided by a Cable System to transmit signals
of any type from a subscriber terminal to another point in the Cable
System.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and by use of an appropriate channel selector also permits
a subscriber to receive all signals delivered at designated converter
dial locations.
The Mayor and City Council, the Governing Body of the City
of DeSoto.
The Jefferson College and local school districts channels
(presently and commonly known as channels 20 and 21).
The Federal Communications Commission and any legally appointed
or elected successor.
The non-exclusive rights granted pursuant to this Chapter
to construct and operate a Cable System along the public ways within
the City. Any such authorizations, in whatever form granted, shall
not mean and include any license or permit required for the privilege
of transacting and carrying on a business within the City as required
by other ordinances and laws of this City (as used herein "Franchise"
and "Franchise Agreement" shall be synonymous).
Any Person receiving a Franchise pursuant to this Chapter
and its lawful licensee, successor, transferee or assignee.
All revenues derived directly or indirectly by Grantee, its
licensee, affiliates, subsidiaries, parents, and any entity in which
Grantee has a financial interest, from or in connection with the operation
of its Cable System. This definition shall be construed so as to include
all gross revenues to the maximum extent permitted by Federal law,
except to the extent specifically excluded in Subparagraph (2) below:
Gross revenues include, by way of illustration and not limitation,
monthly fees charged subscribers for any basic, optional, premium,
per-channel, per-program service, or cable programming service; revenues
from Internet Access service over the Cable System (to the extent
such services are lawfully considered a Cable Service under applicable
law); installation, disconnection, reconnection and change-in-service
fees; leased channel fees; late fees and administrative fees; fees,
payments or other consideration received from programmers for carriage
of programming on the Cable System; revenues from rentals or sales
of converters or other equipment; studio rental, production equipment
and personnel fees; advertising revenues; barter; revenues from program
guides; and revenues from home shopping and bank-at-home channels.
Gross revenues shall not include:
Any taxes on services furnished by Grantee herein imposed directly
upon any subscriber or user by the City, the State of Missouri or
the governmental unit and collected by such Grantee on behalf of said
governmental unit. A franchise fee is not such a tax;
Any bad debt, provided however, that all or any part of any
such actual bad debt that is written off but subsequently collected
shall be included in gross revenues in the period collected.
The connection of the system from feeder cable to subscribers'
terminals.
Observing a communications signal, or the absence of a signal,
where the observer is neither the subscriber nor the programmer, whether
the signal is observed by visual or electronic means, for any purpose
whatsoever. Provided, monitoring shall not include system-wide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions, or billing for services.
An individual, partnership, association, organization, corporation
or any lawful successor, transferee or assignee of said individual,
partnership, association, organization or corporation.
Written notice addressed to Grantee at its principal office
or such other office as Grantee has designated to the City as the
address to which notice should be transmitted to it, which notice
shall be certified and postmarked not less than five (5) days prior
to that day in which the party giving such notice shall commence any
action which requires the giving of notice. In computing said five
(5) days, Saturdays, Sundays and holidays recognized by the City shall
be excluded.
Written orders not excessive or extreme as to costs or time
to comply, governed by sound thinking.
Includes any sale, exchange, barter or offer for sale.
Any public, private or parochial school, including Kindergarten
— Twelfth (K-12) grade, operated within the City.
The entire present territorial limits of the City. In the
event the City annexes territory, such annexed territory shall be
incorporated into the Service Area and made subject to this Franchise
on notice of the annexation from the City to Grantee.
The State of Missouri.
Includes each of the following which have been dedicated
to the public or hereafter dedicated to the public and maintained
under public authority or by others and located within the City limits:
streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public ways and extensions and additions
thereto, together with such other public property and areas that the
City shall permit to be included within the definition of street from
time to time.
Any Person receiving legally either basic service or additional
service from Grantee.
A party utilizing a Cable System channel for purposes of
production or transmission of material to subscribers, as contrasted
with receipt thereof in a subscriber capacity.
[Ord. No. 3535 Art. I §3, 9-15-2003]
The Franchise granted by the City of DeSoto, Missouri, pursuant
to this Chapter shall grant to Grantee the right and privilege to
erect, construct, operate and maintain in, upon, along, across, above,
over and under the streets, now in existence and as may be created
or established during its term, any poles, wires, cable, underground
conduits, manholes, and other conductors and fixtures necessary for
the maintenance and operation of a Cable System. The City and Grantee
hereby acknowledge that the City retains the right to address and
implement solutions to the City's cable franchising needs. Further,
the City retains the power to negotiate any cable renewal obligations
which shall be binding on Grantee. In any instances in which a newly
negotiated material burden would affect a Licensee of the System,
said Licensee shall be given full opportunity to participate on an
equal basis in negotiations with the City and Grantee.
[Ord. No. 3535 Art. I §4, 9-15-2003]
A.
Subject
to the provisions hereafter set forth, in the event that Grantee,
its licensee, successor, transferee or assignee shall now have or
hereafter enter into any other cable television Franchise with any
political subdivision in Jefferson County or an adjacent County in
which there is a commitment to provide technological improvements
or upgrade or special customer services not currently available under
this Franchise, Grantee shall notify the City of the same within ninety
(90) days after the completion of such improvements. In the notification,
Grantee shall submit a schedule for providing these system enhancements
in the City within the same period of time as in the other political
subdivision; provided however, that Grantee is able to recoup its
costs in a manner consistent with the terms in the other community
provided that any corresponding benefits of such other Franchise are
incorporated herein. The City shall grant extensions of the schedule,
where necessary, upon receipt of an application by Grantee which demonstrates
good cause for the extension.
B.
In the
event Grantee fully and timely satisfies the requirements of Section
630.060(2) of this Franchise related to the upgrade of the Cable System,
the full terms and conditions of this Section shall apply. However,
in the event that Grantee is unable to fully and timely satisfy the
requirements of Section 630.030(2) (which would therefore result in
a decrease in the term of the License Agreement between Grantee and
Charter Communications), this Section shall only apply as it relates
to special customer service and shall not include technological improvements
or upgrade.
[Ord. No. 3535 Art. I §5, 9-15-2003]
This Franchise relates to the entire present territorial limits
of the City. In the event the City annexes territory, such annexed
territory shall be incorporated into the Franchise Area and made subject
to this Franchise on notice of the annexation from the City to Grantee.
[Ord. No. 3535 Art. I §6, 9-15-2003; Ord. No. 3583 §1, 8-16-2004]
A.
The Franchise
and the rights, privileges and authority hereby granted shall take
effect and be in force from October 9, 2003, upon final passage thereof,
as provided by law, and shall continue in force and effect for a term
of ten (10) years, provided that within thirty (30) days after the
date of final passage of the Franchise, Grantee shall file with the
City its unconditional acceptance of the Franchise and promise to
comply with and abide by all its provisions, terms and conditions.
1.
The
Franchise and this Franchise Agreement shall expire at 12:00 Midnight
on October 9, 2018, unless the Franchise is lawfully terminated or
its term extended or shortened as provided herein.
2.
In the
event that Grantee, by December 31, 2004, fully completes an upgrade
of the hybrid fiber-coax system to all areas of the City as hereafter
provided in full compliance therewith and with applicable FCC technical
standards, the City shall extend the terms of this Franchise to 12:00
Midnight on October 9, 2018.
3.
In the
event that Grantee assigns, transfers or licenses its interest in
this Franchise, such assignee, transferee or licensee shall possess
proprietary interests associated with the Franchise.
[Ord. No. 3535 Art. I §7, 9-15-2003]
A.
In the
event the City grants one (1) or more Franchise(s) or similar authorizations
for the construction, operation and maintenance of any communication
facility which shall offer services substantially equivalent to services
offered by the CS, it shall not make the grant on more favorable or
less burdensome terms. If Grantee finds that the Agreement(s) granting
said other Franchise(s) contain provisions imposing lesser obligations
on the Company(s) thereof than are imposed by the provisions of this
Franchise, Grantee may petition City for a modification of this Franchise.
Grantee shall be entitled, with respect to said lesser obligations
to such modification(s) of this Franchise as may be determined to
be necessary to insure fair and equal treatment by this Franchise
and said other Agreements.
B.
The City
shall not unreasonably withhold granting Grantee's petition and so
amending the franchise.
[Ord. No. 3535 Art. I §8, 9-15-2003]
At the sole discretion of the City, this Franchise may be renewed
by the City upon application of Grantee pursuant to applicable law.
[Ord. No. 3535 Art. I §9, 9-15-2003]
A.
In accepting
this Franchise, Grantee acknowledges that its rights hereunder are
subject to the Police power of the City to adopt and enforce general
ordinances necessary to the safety and welfare of the public; and
it agrees to comply with all applicable general laws and ordinances
enacted by the City pursuant to such power.
B.
Any conflict
between the provisions of this Franchise and any other present or
future lawful exercise of the City's Police powers shall be resolved
in favor of the latter, except that any such exercise that is not
of general application in the jurisdiction or applies exclusively
to Grantee or CS franchises which contains provisions inconsistent
with this Franchise shall prevail only if, upon such exercise, the
City finds an emergency exists constituting a danger to health, safety,
property or general welfare or such exercise is mandated by law.
C.
The City
acknowledges that Grantee will not exercise any Police powers over
a Cable System provider should Grantee license its Franchise rights
and obligations to another Cable System provider.
[Ord. No. 3535 Art. I §10, 9-15-2003]
A.
No CS
shall be allowed to occupy or use the streets or public right-of-way
of the City or be allowed to operate without a CS Franchise.
B.
No Grantee
or other multi-channel video programming distributor shall enter into
or enforce an exclusive contract for the provision of cable service
or other multi-channel video programming with any Person, or demand
the exclusive right to serve a Person or location, as a condition
of extending service to that or any other Person or location.
C.
No Grantee
or other multi-channel video programming distributor shall engage
in acts that have the purpose or effect of limiting competition for
the provision of cable service or services similar to cable service
in the City, except for such actions as are expressly authorized by
law.
[Ord. No. 3535 Art. I §11, 9-15-2003]
The City shall have the right, during the life of this Franchise,
to install and maintain free of charge upon the poles owned by Grantee
any wire and pole fixtures that do not unreasonably interfere with
the CS operations of Grantee.
[Ord. No. 3535 Art. I §12, 9-15-2003]
A.
Unless
expressly otherwise agreed in writing between the parties, every notice
or response required by this Franchise to be served upon the City
or 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, or
3.
Within
five (5) business days after having been posted in the regular mail.
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The notices or responses to the City shall be addressed as follows:
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City of DeSoto
City Hall
17 Boyd Street
DeSoto, MO 63020
Attn: City Administrator
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The notices or responses to Grantee shall be addressed as follows:
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Community Cablevision, Inc.
P.O. Box 800
Hillsboro, MO 63050
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with a copy to:
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Charter Communications
903 Jeffco Executive Drive
Imperial, MO 63052-1700
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The City and 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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[Ord. No. 3535 Art. I §13, 9-15-2003]
A.
Indemnification Required. Grantee shall maintain at its
sole expense effective with the date of this franchise and throughout
the term of the Franchise (or any extension or renewal thereof) at
least the following liability insurance coverage insuring the City
and Workers' Compensation and employer liability insurance to meet
all requirements of Missouri law and comprehensive general liability
insurance with respect to the construction, operation and maintenance
of the Cable System and the conduct of business in the City in the
minimum amounts of:
1.
One
million dollars ($1,000,000.00) for property damage resulting from
any one (1) occurrence;
2.
Five
million dollars ($5,000,000.00) for personal bodily injury or death
resulting from any one (1) accident;
3.
Two
million dollars ($2,000,000.00) for all other types of liability;
4.
Workers'
Compensation insurance as provided by Missouri law.
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Neither the provisions of this Section nor any damages recovered
by the City shall be construed to limit the liability of Grantee for
damages under the Franchise, nor shall they be construed as any waiver
of the City's sovereign immunity. In the event that the City's caps
on liability are raised or removed, Grantee shall, if requested by
the City, obtain insurance at such amount as deemed necessary to comply
with the then existing sovereign immunity law.
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B.
Qualifications Of Sureties. All insurance policies shall
be with a reputable, qualified and financially sound company licensed
to do business in the State of Missouri.
C.
Certificates Of Insurance. Grantee shall keep on file with
the City certificates of insurance establishing the insurance required
in this Agreement and shall file the updated certificates on an annual
basis (January first (1st) of each year) with the City Clerk.
D.
Additional Insureds Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its
officers, boards, board members, commissions, commissioners, agents
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
thirty (30) days' prior written notice thereof has been given to the
City Clerk. Grantee shall not cancel any required insurance policy
without submission of proof that Grantee has obtained alternative
insurance reasonably satisfactory to the City, which complies with
the Cable Ordinance and this Franchise Agreement.
E.
Failure Constitutes Material Violation. Failure to comply
with the insurance requirements set forth in this Section shall constitute
a material violation of the Franchise.
1.
Grantee
shall, at its sole cost and expense, indemnify, hold harmless and
defend the City, its officials, boards, board members, commissions,
commissioners, agents, and employees, against any and all claims,
suits, causes of action proceedings, and judgments for damages or
equitable relief arising out of the construction, maintenance or operation
of its Cable System; copyright infringements or a failure by Grantee
to secure consents from the owners, authorized distributors or licensees
of programs to be delivered by the Cable System; the conduct of Grantee's
business in the City; or in any way arising out of the granting of
the Franchise or Grantee's enjoyment or exercise of this Franchise,
regardless of whether the act or omission complained of is authorized,
allowed or prohibited by the Cable Ordinance or this Franchise Agreement.
2.
Specifically, but not by way of limitation on the scope of Subsection (E)(1) above, Grantee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the City and, in their capacity as such, the officers, agents, and employees thereof, from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. Section 558 arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its System including, but not limited to, any claim against Grantee for invasion of the right of privacy, defamation of any person, or the violation or infringement of any copyright, trademark, service mark, or patent, or of any other similar right of any person. This indemnity does not apply to programming carded on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. Section 532, unless Grantee was in any respect engaged in determining the editorial content of the program, or pre-screening the programming for the purported purpose of banning or regulating indecent or obscene programming.
3.
The
indemnity provision includes, but is not limited to, the City's reasonable
attorney's fees incurred in defending against any such claim, suit
or proceeding prior to Grantee assuming such defense. The City shall
notify Grantee of claims and suits within ninety (90) days of its
actual knowledge of the existence of such claim, suit or proceeding.
Failure to give such notice shall relieve Grantee of its obligations
hereunder. Once Grantee assumes the defense of any such action, the
City may at its option continue to participate in the defense at its
own expense.
4.
Notwithstanding
anything to the contrary contained in this Agreement, the City shall
not be so indemnified or reimbursed in relation to any amounts attributable
to the City's own negligence, willful misconduct, intentional or criminal
acts, including in the performance of its obligations under the Cable
Ordinance or this Franchise Agreement.
[Ord. No. 3535 Art. I §14, 9-15-2003]
A.
Grantee
shall adhere to all general operating requirements as set by the provisions
of FCC Regulations Part 76, Subpart H, Section 76.309, or as amended
from time to time.
1.
Grantee
shall not deny service, deny access, or otherwise discriminate against
subscribers, channel users or general citizens on the basis of race,
color, religion, national origin, age or sex. Grantee shall comply
at all times with all other applicable Federal, State and local laws
and regulations and all executive and administrative orders relating
to non-discrimination which are hereby incorporated and made part
of this Chapter by reference.
2.
Grantee
shall strictly adhere to the equal employment opportunity requirements
of the FCC and State and local regulations, as amended from time to
time.
3.
No signals
of a Class IV cable communications channel shall be transmitted from
a subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of the
subscriber. The request for such permission shall be contained in
a separate document with a prominent statement that the subscriber
is authorizing the permission in full knowledge of its provision.
Such written permission shall be for a limited period of time not
to exceed one (1) year which shall be renewable at the option of the
subscriber. No penalty shall be invoked for a subscriber's failure
to provide or renew such an authorization. The authorization shall
be revocable at any time by the subscriber without penalty of any
kind whatsoever provided that such revocation request may be required
to be in writing by Grantee. Such authorization is required for each
type or classification of Class N cable activity planned; provided
however, that Grantee shall be entitled to conduct system-wide or
individually addressed "sweeps" for the purpose of verifying system
integrity, controlling return-path transmission, or billing for services.
4.
Grantee
or any of its agents or employees shall not, without the specific
written authorization of the subscriber involved, sell or otherwise
make available to any party:
5.
The
CS of Grantee shall be operated in a manner consistent with the principle
of fairness and equal accessibility of its facilities, equipment,
channels, studios and other services to all citizens, businesses,
public agencies or other entities having a legitimate use for the
network; and no one shall be arbitrarily excluded from its use; allocation
of use of said facilities shall be made according to the rules or
decisions of Grantee and any regulatory agencies affecting the same.
6.
Grantee
shall establish rates that are non-discriminatory within the same
general class of subscribers which must be applied fairly and uniformly
to all subscribers in the franchise area for all services. Nothing
contained herein shall prohibit Grantee from offering:
[Ord. No. 3535 Art. I §15, 9-15-2003]
Minimum public notice of any public meeting relating to this
Franchise shall include all of the following: publication at least
once in a newspaper of general circulation in the City at least ten
(10) days prior to the meeting; posting at City Hall; and by announcement
on at least one (1) channel of Grantee's CS for five (5) consecutive
days prior to the meeting.
[Ord. No. 3535 Art. I §16, 9-15-2003]
If any Section, Subsection, sentence, clause, phrase, or portion
of this Chapter is, for any reason, held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and such holding shall
not affect the validity of the remaining portions of this Chapter.
[Ord. No. 3535 Art. I §17, 9-15-2003]
This Agreement incorporates all the agreements, covenants and
understandings between the parties concerning the subject matter hereof,
and all such covenants agreements and understandings have been merged
into this written Agreement. No prior agreement or understandings,
verbal or otherwise of the parties or their agents shall be valid
or enforceable unless embodied in this written Agreement.
[Ord. No. 3535 Art. I §18, 9-15-2003]
This Agreement shall be governed by the laws of the State of
Missouri.
[Ord. No. 3535 Art. I §19, 9-15-2003]
If either party is found by a court to have breached this Agreement,
the other party may recover reasonable attorney's fees and cost of
litigation. Prior to the institution of any litigation, the parties
have the contractual duty to in good faith attempt to resolve any
controversy hereunder at the least possible expense.
[Ord. No. 3535 Art. I §20, 9-15-2003]
Grantee, its licensee, agents and employees are independent
contractors performing services for City residents and are not employees
of the City.
[Ord. No. 3535 Art. I §21, 9-15-2003]
This Agreement shall not be altered, changed or amended except
by written instrument executed by the parties.
[Ord. No. 3535 Art. I §22, 9-15-2003]
This agreement shall be terminated following the term of the Agreement, or the extended term if such option is selected by the City, unless terminated earlier pursuant to Article III herein. By such termination, neither party may nullify obligations already incurred for performance or failure to perform prior to the date of termination.
