[R.O. 2012 §630.040; Ord. No. 393 §4(4.1), 12-12-1995]
A.
In
the event that Grantor shall grant to Grantee a non-exclusive, revocable
franchise to construct, operate, maintain and reconstruct a Broadband
Communications Network within the City, said franchise shall constitute
a right to provide the services of a Broadband Communications Network
as described by the provisions of this Chapter and by the franchise
award ordinance. The franchise award ordinance shall include all provisions
of a Grantee's proposal as finally negotiated and accepted by the
Grantor and Grantee.
B.
Said
franchise award ordinance shall be granted under the terms and conditions
herein, consistent with applicable Missouri and, or Federal Statutes
and FCC rules and regulations which are incorporated by this reference
as if fully set forth herein. In the event of a conflict between the
terms and conditions of said franchise and the terms and condition
on which the Grantor can grant a franchise, the law of Missouri, and/or
Federal law, or FCC rules and regulations, whichever takes precedence,
shall, without exception, control.
C.
Nothing
in any franchise award ordinance shall be deemed to waive the requirements
of the various codes and ordinances of the City regarding permits
and fees to be paid or manner of construction.
[R.O. 2012 §630.050; Ord. No. 393 §4(4.2), 12-12-1995]
If the Grantor shall issue a franchise award ordinance, it shall
be for a service area which includes the entire City.
[R.O. 2012 §630.060; Ord. No. 393 §4(4.3), 12-12-1995]
For the purpose of operating and maintaining a Broadband Communications
Network in the City, the Grantee may erect, install, construct, repair,
replace, reconstruct, and retain in, on, over, under, upon, across,
and along the public streets, and ways within the City such wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and other property and equipment
as are necessary and appurtenant to the operation of the Broadband
Communications Network. Prior to initial construction, however, the
Grantee shall file plans with the appropriate City agencies, officers
or department as designated by the City. Such approval shall be given
or denied by the appropriate City Agency or office within thirty (30)
days of submission of such request. If such permission is not denied
within thirty (30) days, the Grantee may proceed as proposed.
[R.O. 2012 §630.070; Ord. No. 393 §4(4.4), 12-12-1995]
The term of said franchise and all rights, privileges, obligations
and restrictions pertaining thereto shall be fifteen (15) years from
the effective date of expiration for the existing franchise unless
abridged or terminated as hereinafter provided. The effective date
of the franchise award ordinance shall be upon final passage by the
Council unless a Grantee fails to file, within thirty (30) days after
the date of notification of final passage in the appropriate office
of the City and NATA, a written acceptance of the franchise, in which
event it shall be null and void.
[R.O. 2012 §630.080; Ord. No. 393 §4(4.5), 12-12-1995]
Any franchise granted shall be non-exclusive. The Grantor specifically
reserves the right to grant, at any time, such additional franchises
for a Broadband Communications Network as it deems appropriate. However,
the terms of any franchise award ordinance or license granted to any
other Grantee shall not be more favorable or less burdensome than
any other franchise award ordinance. The effect of this provision
is to require non-discrimination by the City in relation to multiple
Grantees. However, the terms of this provision do not apply to any
franchise presently in effect with any electric, gas, or other public
utility company either regulated by the Missouri Public Service Commission
or not.
[R.O. 2012 §630.090; Ord. No. 393 §4(4.6), 12-12-1995]
A.
On
or about the third (3rd), sixth (6th), ninth (9th), and twelfth (12th)
anniversaries of the effective date of any grant of franchise, NATA
may schedule and hold public meetings with any Grantee to review and
evaluate the performance by the Grantee under the Franchise Agreement,
including future plans of operation, service area structures, amendments
to the ordinance and current judicial and FCC rulings, and Federal
and State legislation. In particular, NATA may inquire whether the
Grantee is supplying a level and variety of services equivalent to
those being generally offered by the industry at that time in comparable
market situations. The Grantee shall make available to NATA, if requested
by NATA, such records and documents which are relevant for the purposes
of the franchise review.
B.
Upon
written notice given by NATA or Grantee, one to the other, not less
than six (6) months prior to the third (3rd), sixth (6th), ninth (9th)
and twelfth (12th) anniversaries, respectively, the terms and conditions
of the franchise agreement may be modified, provided that both the
NATA and the Grantee are agreeable to such modification. Modifications
shall be directed toward effective alterations in the terms and conditions
to reflect those technical, regulatory, and economic changes which
have occurred during the interim period.
[R.O. 2012 §630.100; Ord. No. 393 §4(4.7), 12-12-1995]
A.
Transfer Of Franchise.
1.
Any franchise cannot in any event be sold, transferred, leased, assigned
or otherwise disposed of in any manner, including, but not limited
to, forced or voluntary sales, merger, consolidation, receivership,
or other means, without the prior written consent of NATA. Such consent
as required by NATA shall, however, not be unreasonably withheld.
2.
The successor Grantee, upon any transfer as heretofore described,
shall within sixty (60) days thereafter file with the City an instrument
duly executed and certified reciting the fact of such sale assignment
or lease, accepting the terms of this franchise ordinance and the
franchise award ordinance subject to the terms of the transaction
and agreeing to perform all the terms thereof.
3.
Every such transfer as heretofore described, whether voluntary or
involuntary shall be deemed void and of no effect unless Grantee shall
within sixty (60) days after the same shall have been made, file such
certified copy as is required.
B.
Consent Not Waiver. The consent or approval of NATA to any
transfer by Grantee shall not constitute a waiver or release of the
rights of the City in and to the streets, and any transfer shall,
by its terms, be expressly subordinate to the terms and conditions
of said franchise award ordinance.
C.
Non-Approval Of Transfer, When. In the absence of extraordinary
circumstances, NATA will not approve any transfer or assignment of
the franchise prior to substantial completion of initial construction
of any proposed system.
D.
Consent When Not Necessary. Notwithstanding anything to
the contrary, no prior consent shall be required for any transfer
or assignment to any person controlling, controlled by or under the
same common control as the Grantee. However, Grantor shall be notified
thirty (30) days prior to any transaction under this provision.
[R.O. 2012 §630.110; Ord. No. 393 §4(4.8), 12-12-1995]
This franchise may be renewed upon application of Grantee pursuant
to the then applicable law, or as Grantor may require by this Chapter.
[R.O. 2012 §630.120; Ord. No. 393 §4(4.9), 12-12-1995]
A.
In
accepting this franchise, Grantee acknowledge 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 Chapter and any other present
or future lawful exercise of the City police powers shall be resolved
in favor of the latter.
[R.O. 2012 §630.130; Ord. No. 393 §4(4.10), 12-12-1995]
A.
Annual Franchise Payment.
1.
A grantee of a franchise award ordinance hereunder shall pay to the
City a fee in an amount equal to five percent (5%) of gross annual
revenues as and if allowed by law.
2.
Such payment shall be in addition to any other fee or tax and commence
as of the effective date of the operation of the system by Grantee.
In the event of a dispute as to the amount due the City, if the City
so requests, Grantee shall furnish a statement of said payment certified
by the financial officer of Grantee, which statement shall include
total amounts of annual gross subscription service revenue and the
above charges, deductions and computations for the period covered
by the payment. If Grantee fails to produce a certified statement
acceptable to the City, then, the City shall choose a CPA of at least
regional reputation for honestly and competency, who shall have the
authority to audit the books and records of Grantee. All reasonable
charges for the said CPA services shall be borne by Grantee if the
annual Gross Revenues reported to Grantor are, in the aggregate, at
least one percent (1%) less than reported.
B.
Acceptance By City. No acceptance of any payment by the
City 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
as a franchise fee under this Chapter or for the performance of any
other obligation of Grantee.
C.
Failure To Make Required Payment. In the event that any
franchise payment or recomputed amount is not made on or before the
dates specified herein, Grantee shall pay as additional compensation:
1.
An interest charge, computed from such due date on such amount due,
at the annual rate equal to the commercial prime interest rate in
effect from time to time at Southwest Bank, St. Louis, Missouri, during
such period until such amounts are fully paid, and
2.
A sum of money equal to expenses, cost, and attorneys' fees, if any,
incurred by the City by reason of delinquent payment.
D.
Conflict Of Laws. Should it be adjudged or determined by
a Court of competent jurisdiction that the amount of said franchise
fees set out herein is in conflict with State or Federal law or FCC
Rules and Regulations, then the amount set by this Chapter shall be
the maximum allowable under controlling law.
E.
Gross Receipts Tax — When. In the event that the gross
receipts tax applies, NATA shall be remitted the same proportion of
the gross receipts tax as it presently receives from the franchise
fee. And, in the event that Grantor is precluded by law from collecting
a franchise fee and determines that imposition of a gross receipt
tax requires approval of the voters of Grantor, the franchise fee
shall remain in effect until the voters of Grantor shall have approved
the imposition of a gross receipts tax. In all events, Grantor shall
pass-through either the franchise fee or gross receipts tax to its
customers.
[R.O. 2012 §630.140; Ord. No. 393 §4(4.11), 12-12-1995]
A.
Grounds For Revocation Or Abridgment. The City reserves
the right to revoke any franchise award ordinance granted hereunder
and rescind all rights and privileges associated with the franchise
award ordinance in the following circumstances, each of which shall
represent a default and breach under this Chapter and the franchise
award ordinance grant:
1.
If Grantee should default in the performance of any of its material
obligations under this Chapter or under such documents, contracts
or other terms and provisions entered into by and between the City
and Grantee.
2.
If Grantee should fail to provide or maintain in full force and effect,
the liability insurance coverage as required herein.
3.
If Grantee should frequently violate any orders or rulings of any
regulatory body having jurisdiction over Grantee relative to this
franchise unless such orders or rulings are being contested by Grantee
in a Court of competent jurisdiction.
4.
If Grantee ceases to provide services for any reason within the control
of Grantee over the Broadband Communications Network.
5.
If Grantee evades or attempts to evade any of the provisions of this
Chapter or the franchise award ordinance or practices any fraud or
deceit upon the City.
6.
If Grantee's construction schedule is delayed for more than six (6)
months later than the schedule contained in the franchise award ordinance.
7.
If Grantee becomes insolvent, unable or unwilling to pay its debts,
or is adjudged a bankrupt.
8.
If Grantee violates any material provision of any applicable Federal
or State law, or regulation.
B.
Grantee Not At Fault, When. Grantee shall not be declared
at fault or be subject to any sanction under any provision of this
Chapter in any case in which performance of any such provision is
prevented for reasons beyond Grantee's reasonable control. A default,
or fault, shall not be deemed to be beyond Grantee's control if committed
by a corporation or other business entity controlling interest in
Grantee, whether held directly or indirectly.
C.
Procedure Prior To Revocation Hearing. Revocation procedures
shall be executed as required by the then applicable laws. If neither
Federal nor State law preempts, the following shall apply:
1.
The City may make written demand that Grantee comply with any such
requirement, limitation, term, condition, rule or regulation or correct
any action deemed cause for revocation. The written notice shall describe
in reasonable detail the specific violation so as to afford Grantee
an opportunity to remedy the violation. Grantee shall have thirty
(30) days subsequent to receipt of the notice in which to correct
the violation before the City may seek to abridge or terminate the
franchise or the franchise term. Grantee may, within fifteen (15)
days of receipt of notice, notify the City that there is a dispute
as to whether a violation or failure has, in fact, occurred. Such
notice by Grantee to the City shall specify with particularity the
matters disputed by Grantee. Grantee's notice shall toll the running
of the thirty (30) day period, and the matters in dispute, if any,
shall be ripe for hearing.
2.
The City shall hear any persons interested therein, and shall determine,
in its discretion, whether or not any alleged failure, refusal or
neglect by Grantee was with just cause. The City shall supplement
the decision with written findings of fact, and conclusions of law.
3.
If after hearing the dispute or claim is upheld by the City, Grantee
shall have thirty (30) days from such a determination to remedy the
violation or failure. At any time after that thirty (30) day period,
the City may abridge or terminate the franchise, as is lawful. The
time for Grantee to correct any alleged violation, or violation in
fact, shall be extended by the City if the necessary action to correct
the violation is of such a nature or character to require more than
the time set forth above within which to perform provided Grantee
commences the corrective action within the time set forth above and
thereafter uses reasonable diligence to correct the violation.
D.
Abridgment Of Franchise Term. After following the procedure
set out herein prior to revocation, and the Council finding a violation
of this franchise or the franchise award ordinance, but not of sufficient
gravity to require revocation of this franchise or the franchise award
ordinance, or if the Council determines that revocation would not
serve the public health, safety and welfare, the Council may abridge
the term of the franchise award ordinance. For each offense or violation
the Council may abridge the term of the franchise award ordinance
for a period of time of not more than sixty (60) days. Each days violation
of this Section may be considered a separate offense. Such abridgements
of the franchise award ordinance term shall not in any event accumulate
in the aggregate more than four (4) years total.
E.
Disposition Of Facilities. In the event a franchise award
ordinance expires and any renewal is denied, revoked or otherwise
terminated, the City may order the removal of the system facilities
from the City within a reasonable period of time as determined by
the City.
F.
Restoration Of Property. In removing its plant, structures
and equipment, Grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places
in as good condition as prevailed prior to Grantee's removal of its
equipment and appliances without affecting the gas, electrical or
telephone system cables, wires or attachments. The City shall inspect
and approve the condition of the public ways and public places; and
cables, wires, attachments and poles after removal. The liability
insurance as provided herein shall continue in full force and effect
during the period of removal.
G.
Restoration By City, Reimbursement Of Costs. In the event of a failure by Grantee to complete any work required by Subsection (D) above and/or Subsection (E) above, or any work required by City law or ordinance within the time as may be established and to the satisfaction of the City, the City may after written notice to the Grantee and a reasonable opportunity for Grantee to act first, cause such work to be done and Grantee shall reimburse the City the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the City may recover such costs.
H.
City's Right Not Affected. The termination and forfeiture
of any franchise award ordinance shall in no way affect any of the
rights of the City under the franchise award ordinance or any provision
of law.
[R.O. 2012 §630.150; Ord. No. 393 §4(4.12), 12-12-1995]
A.
Termination Upon Bankruptcy. Any franchise award ordinance
granted shall at the option of the City Council, cease and terminate
one hundred eighty (180) days after the appointment of a receiver
or trustee to take over and conduct the business of Grantee whether
in a receivership, reorganization, bankruptcy or other action or proceeding
unless such receivership or trusteeship shall have been vacated prior
to the expiration of said one hundred eighty (180) days, or unless:
1.
Such receiver or trustee shall have, within said one hundred eighty
(180) days after their election or appointment, fully complied with
all the terms and provisions of this Chapter and the franchise award
ordinance granted pursuant hereto, and the receiver or trustee within
said one hundred eighty (180) days shall have remedied all defaults
under the franchise award ordinance; and
2.
Such receiver or trustee shall, within said one hundred eighty (180)
days execute an agreement duly approved by the Court having jurisdiction
in the premises, whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation of said
franchise award ordinance.
B.
Termination Upon Foreclosure. Except for the existing lien
holders, in the case of a foreclosure or other judicial sale of the
plant, property and equipment of Grantee, or any part thereof, including
or excluding this franchise, the Council may serve notice of termination
upon Grantee and the successful bidder at such sale, in which event
said franchise award ordinance and all rights and privileges of Grantee
thereunder shall cease and terminate thirty (30) days after service
of such notice, unless:
[R.O. 2012 §630.160; Ord. No. 393 §4(4.13), 12-12-1995]
No Broadband Communications Network shall be allowed to occupy
or use the streets of the City or be allowed to cooperate without
a franchise award ordinance in accordance with the provisions of this
Chapter except for franchises awarded under State law and in effect
as of the date of passage and approval of this Chapter. Any Grantee
providing any service under the terms of a valid franchise award ordinance
shall have standing to enforce this provision.
