[Ord. No. 327 §1(1.1), 11-13-1995]
This Chapter shall be known as the Lincoln, Missouri Communications System Franchise Ordinance.
[Ord. No. 327 §1(1.2), 11-13-1995]
A.
The purposes of this Chapter are:
1.
To grant a franchise with accompanying terms and conditions to communications, cable television or telephone companies seeking to distribute and transmit audio, video, voice and data signals by use of telephone wire, coaxial cable or fiber optic cable in public rights-of-way within the City; and
2.
To provide for the payment of a franchise fee to the City for the use of said City rights-of-way and to compensate the City for costs associated with administering and regulating the Chapter.
[Ord. No. 327 §2, 11-13-1995]
For the purposes of this Chapter, the following terms, phrases, words and their derivations shall have the meaning defined herein, unless the context clearly indicates that another meaning is intended. 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 Board of Aldermen of the City of Lincoln, Missouri.
The Cable Communications Policy Act of 1984, 47 U.S.C. Section 521 et seq., and such future legislation as may amend or supersede it.
The Cable Television Consumer Protection and Competition Act of 1992 and such future legislation as may amend or supersede it.
A brand of frequencies, in the electromagnetic spectrum, capable of carrying one (1) audio-visual television signal.
Lincoln, Missouri, in its present form or in any later reorganized, consolidated, enlarged or reincorporated form, which is legally authorized to grant communications system franchises for cable television, telephones or both under State and Federal law pursuant to this Chapter. The City may also be referred to as the "franchising authority".
The system of antennas, towers, satellite earth stations; microwave, coaxial cable, fiber optics, waveguides or other conductors, converters, equipment and facilities designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing audio, video, digital and other forms of electronic and electrical signals to persons who subscribe to programs and services delivered by such signals. Said definition shall not include any such facility that serves only subscribers in one (1) or more multiple-unit dwellings under common ownership, control or management and does not use City rights-of-way.
The system of antennas, towers, satellite earth stations, microwave, coaxial cable, telephone cable, fiber optics, waveguides or other conductors, converters, equipment and facilities designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing two-way or multiple-way audio, video, digital and other forms of electronic and electrical signals to persons who subscribe to programs and services delivered by such signals.
The Federal Communications Commission.
The rights granted pursuant to this Chapter to construct, own and operate a communications system for cable television, telephones or both along the public ways within the legal and geographic limits of the City, including all territory which may be hereafter annexed to the City. No franchise will be granted for any communications system which at any time will contain less than the total area of the City.
Lincoln, Missouri, its Board of Aldermen acting as the City's duly elected Governing Body, its lawful successor or such other duly authorized body or individual who has the legal authority to grant communications system franchises for cable television, telephones or both pursuant to this Chapter or who has the authority to represent or act on behalf of the City in matter relevant to this Chapter.
A person or business entity or its lawful successor or assignee which has been granted a franchise by the Board of Aldermen pursuant to this Chapter.
As the term is used in calculating franchise fees, means any and all revenues actually received by, rather than merely billed by, the grantee from the operation of the communications system within the City after deducting the following:
Any fees or assessments levied on subscribers or users of the system which are collected by the grantee for payment to a governmental entity;
Franchise fees paid by the grantee to the City;
State or local sales or property taxes imposed on the grantee and paid to a governmental entity; and
Federal copyright fees paid by the grantee to the Copyright Tribunal in Washington, D.C.
From 8:30 A.M. to 5:00 P.M. Monday through Friday and either one (1) evening Monday through Friday from 5:00 P.M. to 8:00 P.M. or Saturday 8:30 A.M. to 12:00 Noon.
Those service conditions which are within the control of the grantee such as special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, maintenance or upgrade of the communications system but not including natural disasters, civil disturbances, power outages, communications network outages occurring outside the grantee's proprietary communications systems and severe or unusual weather.
May extend and be applied to bodies politic and corporate and to partnerships and other unincorporated associations.
The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways or other public right-of-way including public utility easements or rights-of-way and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City which shall entitle the City and the grantee to the use thereof for the purpose of installing and maintaining the grantee's communication system.
Any public educational institution, including elementary and secondary schools, junior colleges, colleges and universities.
The loss of picture or sound on one (1) or more channels.
Any person or entity receiving for any purpose any service of a grantee, including:
From a communications system for cable television. Conventional cable television system service of retransmission of television broadcast, radio signals, a grantee's original cablecasting, local government, education and public access channels; and other services not regulated by the Missouri Public Service Commission, such as leasing of channels, data and facsimile transmission, pay television, Internet or commercial service access, electronic mail or data transmission, storage and retransmission and Police, fire and similar public service communication;
From a communications system for telephone. All services regulated by the Missouri Public Service Commission, including two- or multi-way transmission of audio, video, voice and data signals.
[Ord. No. 327 §3, 11-13-1995]
A.
Pursuant to the terms of this Chapter, a franchise may be granted to operate and maintain a communications system for cable television, for telephone or for both cable television and telephone in the City for a period of not more than fifteen (15) years commencing on the date said grant of the franchise is approved by ordinance. A performance review of the entire franchise and operation shall be conducted annually. Said franchise shall include the following:
1.
The non-exclusive right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under the streets, alleys, public utility easements, public ways and public places now laid out or dedicated and all extensions thereto in the City, according to the technical specifications of the Federal Communications Commission or the Missouri Public Service Commission, as the case may be, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the transmission of communication signals and all other signals permitted by the Federal Communications Commission, the Missouri Public Service Commission or their successor agencies, either separately or upon or in conjunction with any public utility maintaining the same in the City, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, public utility easements and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a communication system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. A grantee shall have authority to trim trees that overhang the public right-of-way only when absolutely necessary and then in a good and workmanlike manner. This franchise and grant includes the right to use public property which shall have been acquired by the City in the future as well as public property currently owned by it, upon approval being granted by the Board of Aldermen.
2.
The above grant shall include the right to offer communication service to residents within the present boundaries of the City as those boundaries may change from time to time by annexation or otherwise. Whenever a grantee receives a request for service from at least ten (10) single-family residence connections within one thousand five hundred (1,500) feet of its distribution cable, it shall extend the system to such subscribers at no cost to the subscribers other than the usual connection and service fees for all subscribers, provided that such system extension is technically and physically feasible. Measurement of the general density standard for service to any area shall be from the closest existing point of the grantee's system. No person, firm or corporation in the grantee's service area shall be arbitrarily refused service. However, in unusual circumstances, such as a requirement for underground cable that requires rock saw or service to subscribers of a density of less than ten (10) single-family residences per one thousand five hundred (1,500) feet of distribution cable, in order that the existing subscribers shall not be unfairly burdened, service may be made available on the basis of a capital contribution by the prospective subscriber(s) to the grantee, including reimbursement for the grantee's cost of materials, labor and easements.
[Ord. No. 327 §4, 11-13-1995]
A.
Payment Of Annual Fee. Each grantee shall pay a franchise fee for the use of the City's rights-of-way and to compensate the City for all costs associated with administering and regulating the communications systems. The amount of the franchise fee shall be three percent (3%) of the grantee's annual gross receipts as defined herein. Such sums shall be payable quarterly on the first (1st) day of the month after the end of the quarter or within forty-five (45) days thereafter during the term of the franchise. Franchise fee installments become delinquent forty-five (45) days after the first (1st) day of the month in which they come due and a charge of nine percent (9%) of an installment will be made on each delinquent installment. An accounting of the source and amount of the fee shall accompany each payment. Each grantee agrees to require its independent auditor to furnish a letter to City, as part of its annual audit of the grantee, stating the proper franchise fee amount. Each grantee shall be entitled to list the franchise fee as a separate line item on monthly bills.
B.
Reporting And Auditing Of Fee Payments. At the franchising authority's request, each grantee shall file a detailed report showing the grantee's gross receipts for the quarter and the amount of franchise fees due to the City. The grantee shall have an obligation to maintain financial records of its gross receipts and grantee fee payments for audit purposes for a period of three (3) years and the franchising authority shall have the right to audit the grantee's books at the offices where such books are maintained, provided that said books or duplicate copies thereof shall be located in the State of Missouri.
[Ord. No. 327 §5, 11-13-1995]
A.
All charges to subscribers shall be consistent with a schedule of fees for services offered and established by the grantee. Rates shall be non-discriminatory in nature and uniform to persons of like classes, under similar circumstances and conditions, except where necessary to meet competition. Except where said rates are governed by State law or subject to regulation by the Public Service Commission of the State of Missouri or the Federal Communications Commission or their successor agencies:
1.
A grantee may offer different or discounted rates at its discretion in order to meet competition or for promotional purposes may establish different rates for different classes of subscribers where appropriate, such as offering discounted rates to low income individuals or groups. Each grantee shall provide a ten percent (10%) discount to senior citizens (age sixty-five (65) or over) on basic cable service charges.
2.
Each grantee shall inform each new subscriber and all subscribers, annually and upon request, in writing, of all applicable services and the fees and charges for such service.
3.
Each grantee may, at its own discretion and in a non-discriminatory manner, waive, reduce or suspend connection fees, monthly service fees or other charges on a one-time or monthly basis for promotional purposes.
4.
This Section shall not prevent a grantee from refusing service to any person because the grantee's prior accounts with that person remain due and owing.
5.
A grantee may offer service which requires advance payment of periodic service charges. A customer shall have the right, at any time, to have service disconnected with a refund of any pre-paid but unused service charges within the time frame set forth herein.
6.
Each grantee will provide the City with thirty (30) days' advance written notice of any change in rates and charges whenever possible.
7.
Information. Customers must be notified through announcements on the communications system and in writing of any changes in rates, programming services or channel positions. This notice must be at least thirty (30) days in advance when it pertains to basic, tiered or pay channel services.
8.
Billing. Each grantee shall utilize clearly written and fully itemized bills covering all activities during the billing, including optional charges, rebates and credits, and shall respond to written complaints within fifteen (15) days of receipt.
9.
Late fees. A subscriber may be assessed a late fee of five dollars ($5.00) when his/her account becomes delinquent forty-five (45) days from his/her billing cycle date. No late fees are assessed on balances less than ten dollars ($10.00). This fee may be changed upon sixty (60) days' notice with the approval of both parties.
10.
Refunds. Refund checks will be issued promptly, but not later than either:
a.
The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or if later;
b.
The return of the equipment supplied by a grantee if service is terminated.
c.
Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
d.
If any subscriber's service is out of order for more than forty-eight (48) consecutive hours during the month, a grantee will credit the account of that subscriber on a pro rata basis upon the subscriber's request. The credit will be calculated using the number of twenty-four (24) hour periods that service is impaired and the number of channels on which service is impaired as a fraction of the total number of days in the month that the service impairment occurs and the total number of channels provided by the system in the absence of an impairment.
11.
Refusal of service. No person, firm or corporation within the service area of any grantee, and where trunk lines are in place, shall be refused service; provided however, that a grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charges.
[Ord. No. 327 §6, 11-13-1995]
A.
Minimum Customer Service Standards. A grantee operating a communications system for cable television shall comply with the customer service obligations for cable television systems set forth by the Federal Communications Commission and all amendments thereto. A grantee operating a communications system for telephone shall comply with the customer service obligations for telephone systems set forth by the Federal Communications Commission and the Missouri Public Service Commission and all amendments thereto. A grantee operating a communications system for both cable television and telephone shall comply with the customer service obligations for cable television and telephone systems set forth by the Federal Communications Commission and the Missouri Public Service Commission and all amendments thereto and where there is a conflict between said obligations, shall comply with the obligations which deliver the better service to customers.
B.
Grantee's Office Location And Telephone Service.
1.
A grantee shall file with the City, upon request, copies of all of its rules and regulations in connection with the handling of inquires, requests and complaints and shall furnish in writing to subscribers, at the time they connect to the system, information concerning procedures for making inquires, requests and complaints about the system.
2.
Each grantee shall, at a minimum, maintain a regional customer service center with toll-free telephone numbers for the purpose of receiving inquiries, requests and complaints concerning all aspects of the establishment, construction, maintenance and operation of the system within the boundaries of the State of Missouri to permit the grantee's customer service and technical personnel to promptly respond to all customer service requests or technical problems which may arise as further described below.
3.
A live customer service representative must be available to respond to telephone inquiries during normal business hours. A grantee shall maintain telephone answering service or an answering machine to receive service calls after normal business hours twenty-four (24) hours per day. A listed local telephone number or toll-free (800) number shall be made available to subscribers for service calls. Routine inquiry received after normal business hours must be responded to by a trained company representative on the next business day. Under normal operating conditions, telephone answer time from "when the connection is made" shall not exceed thirty (30) seconds, including wait time. Transfer time, if needed, also shall not exceed thirty (30) seconds. A caller may receive a busy signal only three percent (3%) of the time. The standard must be met ninety percent (90%) of the time, measured quarterly.
4.
A grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless a historical record of complaints indicates a clear failure to comply.
C.
Customer Service Response Time. Under normal operating conditions, each of the following standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:
1.
Each grantee shall begin working on service interruptions promptly, but no later than twenty-four (24) hours after learning of the outage and must begin working on other service problems not later than the next business day.
2.
Each grantee shall begin working immediately upon notification on service interruptions involving loss of picture or sound to all channels. Each grantee shall make available a technician. A sufficient number of designated technicians to provide prompt service and repairs to all of the grantee's facilities and equipment shall be on call twenty-four (24) hours a day to respond via phone or paging system. Said technicians shall be fully trained, qualified and authorized to perform such duties.
3.
A grantee shall give notice of planned interruptions of service, insofar as possible, to subscribers twenty-four (24) hours in advance. Said interruptions shall occur during periods of minimum use of the system.
4.
A grantee will install service in individual residences or apartment units within five (5) working or business days after installation is requested by the owner or possessor of the individual resident or apartment unit, subject to permits required or the availability of materials required for an installation. This response time does not apply when installation is requested by the owner or operator of an apartment house or complex, a motel or hotel, a rooming or boarding house, a health care facility or a nursing home or other extended health care facility for the personal use of anyone other than said owner or operator. This response time does not apply where the installation is the result of a special promotion and the normal and customary installation fee is reduced.
5.
Service appointment alternatives may not exceed a four (4) hour time black during normal business hours. For customers with no one regularly at home, a grantee agrees to advise the customer by telephone of the expected arrival time of the service technician so that the customer might meet the technician on site.
6.
An appointment may only be canceled prior to the close of business on the day before the scheduled appointment. If a technician is running late, the customer must be contacted not later than the scheduled appointment time and the appointment rescheduled as necessary at a specific time convenient to the customer.
D.
Complaint Procedure. Each grantee shall investigate all complaints within five (5) days of the receipt of same and shall in good faith attempt to resolve any such complaints swiftly and equitably. The grantee shall record the date and substance of each complaint received and the date and nature of action taken by the grantee to respond to such complaint and shall permit City to review and, for a reasonable amount, copy such records. The grantee shall also maintain one (1) or more telephone lines, directly connected to the office where grantee's general manager is located, which may be reached by calling a local telephone number for the City or by a toll-free number and shall publish said telephone number or numbers so that they are easily available to subscribers in local telephone directories, in literature published by grantee for the use of its subscribers and in other publications commonly used by other businesses in the City.
E.
Consumer Protection. The grantee shall not, without good cause, fail to make available service to prospective subscribers nor shall the grantee terminate service without good cause. Service shall be provided to all interested customers where economically feasible and consistent with the line extension provisions contained in Section 610.040 of this Chapter. Unless a written contract exists between the grantee and a subscriber, service shall be on a month-to-month basis.
F.
Protection Of Privacy. Each grantee and the City will constantly guard against possible abuses of the right of privacy or other rights of any subscriber or person. In particular, grantees shall comply with the privacy provisions of the Cable Communications Policy Act of 1984, 47 U.S.C. Section 551.
1.
A grantee of a communications system for cable television shall not permit the transmission of any signal, aural, visual or digital from any subscriber's premises without first obtaining the informed consent of the subscriber, which shall not have been obtained from the subscriber as a condition of any service for which transmission is not an essential element. The request for such consent shall be contained in a separate document which enumerates and describes the transmissions being authorized and includes a prominent statement that the subscriber is authorizing the permission in full knowledge of its provision and shall be revocable at any time by the subscriber without penalty of any kind whatsoever. This provision is not intended to prohibit the use or transmission of signals useful only for the control or measurement of system performance or used only for billing subscribers or providing basic or optional services.
2.
A grantee of a communications system for cable television shall not permit the use of any special terminal equipment in any subscriber's premises that shall permit transmission from the subscriber's premises of two-way services utilizing aural, visual or digital signals without first obtaining written permission of the subscriber as provided above.
3.
A grantee of a communications system for cable television or telephone 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 any list which identifies the viewing, calling or transmission or retransmission habits or responses of individual subscribers.
G.
Grantee's Remedies For Non-Payment Of Subscriber Fees — Complaints — Requests For Service.
1.
Each grantee has the right to use normal methods of collection of amounts owned by a subscriber, at its sole discretion, including disconnection of services for non-payment of subscriber fees, and may bring action in any court to recover unpaid fees and any other damages caused by any subscriber.
2.
Each grantee shall respond to and resolve subscriber's complaints or request for service in connection with repairs and maintenance and malfunctions of system facilities and shall respond to and correct such complaints or requests as soon as possible after receipt of the complaint or request for service. A grantee may, however, charge for a service call when such service call proves to be customer related as opposed to system related. Customer related problems are those arising from, but not limited to, equipment owned by the customer or equipment owned by the grantee which has been damaged by the negligent or deliberate acts of the customer. System related refers to the deficiency in or failure of any equipment owned by a grantee, whether or not leased to any customer.
3.
The Mayor is designated by the City as having primary responsibility for the continuing administration of the franchise and implementation of complaint procedures.
4.
Each grantee shall establish procedures for receiving, acting upon and resolving subscriber complaints as outlined in Federal Communications Commission rules and regulations or in applicable rules of the Missouri Public Service Commission and shall furnish a notice of such procedure to each subscriber at the time of initial subscription to the system.
[Ord. No. 327 §7, 11-13-1995]
A.
Grantee shall provide, without charge, one (1) service outlet activated for basic subscriber service to each Police station, fire station, public school, public library and the City office. If it is necessary to extend grantee's trunk or feeder lines more than two hundred (200) feet solely to provide service to any such school or public building, the City or the building owner or occupants shall have the option of either paying grantee's direct costs for line extensions in excess of two hundred (200) feet or releasing the grantee from the obligation to provide service to such building. Furthermore, grantee shall be permitted to recover the direct cost of installing cable service, when requested to do so, in order to provide:
[Ord. No. 327 §8, 11-13-1995]
A.
Insurance.
1.
Comprehensive liability insurance. Upon acceptance of a franchise, each grantee shall file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a single limit comprehensive liability policy of insurance with limits of not less than one million dollars ($1,000,000.00) each occurrence and five million dollars ($5,000,000.00) aggregate and of such insuring institution's form and substance as shall be approved by the City Attorney and which shall insure the grantee and shall name the City as a co-insured and provide primary coverage for the City, its officers, boards, commissions, agents and employees against liability for loss or damage for personal injury, death and property damage occasioned by any activity or operation of the grantee under such franchise and which shall contain and include a standard cross-liability endorsement thereto. All such policies shall provide that the issuing insurance company will not cancel them without at least ten (10) days' prior notice to the grantee and the City.
2.
Corporate surety bond re City. Each grantee, by acceptance of this franchise, shall file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement, approved by the Mayor and Board of Aldermen, in the penal sum total of ten thousand dollars ($10,000.00) conditioned that in the event the grantee shall fail to comply with any one (1) or more of the provisions of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by the City or by any subscriber as a result thereof, including attorneys' fees and costs of any action or proceeding and including the full amount of any compensation, indemnification, cost of removal of any property or other costs which may be incurred up to the full principal amount of such bond; and said condition shall be a continuing obligation during the entire term of such franchise and thereafter until the grantee shall have satisfied in full any and all obligations to the City and any subscriber which arise out of or pertain to said franchise. Neither the provisions of this Section, nor any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued pursuant to this Chapter. The rights reserved to the City with respect to said bond are in addition to all other rights of the City whether reserved by this franchise or authorized by law and no action, proceeding or exercise of a right with respect to such bond shall affect any other rights of the City or any subscriber.
B.
Indemnification.
1.
Hold harmless agreement. The grantee, by acceptance of this franchise, shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including, but not limited to, damages to City property and damages arising out of copyright infringements and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's communications system), costs or liabilities (including costs or liabilities of the City with respect to its employees) of every kind and nature whatsoever including, but not limited to, damages for injury or death or damage to person or property and, regardless of the merit of any of the same, against all liability to others and against any loss, cost and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the grantee or the granting thereof by the City.
2.
Defense of litigation. Each grantee, by acceptance of any franchise granted under this Chapter, shall, at the sole risk and expense of the grantee and upon demand of the City made by and through the City Attorney, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi judicial, administrative, legislative or otherwise, brought or instituted or had by third (3rd) persons or duly constituted authorities against or affecting the City, its officers, boards, commissions, agents or employees and arising out of or pertaining to the exercise or the enjoyment of such franchise or the granting thereof by the City.
The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive or demand rendered, made or issued against the grantee the City, its officers, boards, commissions, agents or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder or otherwise; provided, that neither the grantee nor City shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suite or other proceeding without first obtaining the written consent of the other.
3.
Recourse against City. Grantee shall have no recourse or remedy whatsoever against the City for any loss, cost, expense or damage arising out of or with respect to any franchise hereunder or this Chapter or the enforcement thereof.
[Ord. No. 327 §9, 11-13-1995]
A.
All communication system facilities shall be installed, repaired and replaced by a grantee or by someone in its behalf and the grantee shall be solely responsible for and shall pay the expenses thereof, including the cost of promptly restoring the surface of any street, alley, other public way or any point of excavation, whether on public or private property. All such facilities erected, constructed or replaced by the grantee within the City, including extensions of streets, alleys and other public ways and places, shall be erected so as to cause no interference with the rights or reasonable convenience of users or property owners whose property adjoins any of said streets, alleys or public ways and places and so as not to interfere with existing public utility installations or extensions thereof or repair to either. All service lines shall be underground in those areas of the City where either public utilities providing telephone or electric utility facilities are underground at the time of installation; otherwise the grantee may install its services above ground. If, subsequently, the electric utility facilities go underground, then in that event the facilities of the grantee also shall go underground simultaneously and the grantee shall pay for the costs of the same. The grant of authority hereunder includes the right of the grantee to cut and trim trees to protect its facilities and grantee shall pay for the costs of the same. Each grantee accepts all legal and economic responsibility for actions taken to protect its system, including the cutting and trimming of trees.
B.
Each grantee shall have the right to make underground cable installations on property of the City consistent with existing underground installations for other utilities and the City will make appropriate grants of easement to grantee in such cases. A grantee shall advise the City in advance of any excavation to be performed by the grantee. A grantee shall make no installation of poles on or adjacent to any public way or public property without the consent of the City.
C.
During the term hereof, each grantee shall be responsible for all costs of moving any portions of the system in the event the City finds that the public needs require changes in the location or use of any public property, including streets, grades and curbs and sewer and water mains.
D.
A grantee may be required by the City to permit joint use by utilities of the grantee's system facilities located in the streets, alleys or other public right-of-way in the City insofar as such joint use reasonably may be practicable and upon payment of reasonable rental therefor.
E.
Each grantee shall construct, install, operate and maintain its system in a manner consistent with all Federal, State, County and City laws, ordinances, construction standards and governmental requirements and with technical standards of the Federal Communications Commission or the Missouri Public Service Commission as the case may be. In addition, each grantee shall provide the City, upon request, with a written report of the results of the grantee's proof of performance tests conducted pursuant to the Federal Communications Commission standards and requirements.
F.
Construction, installation and maintenance of the grantee's system shall be accomplished in an orderly workmanlike manner. All cables and wires shall be installed parallel with electric and telephone lines, where practicable. Multiple cable configurations shall be arranged in parallel and shall be bundled with due respect for engineering considerations. Each grantee shall provide the City with reports, every three (3) months during construction, of the progress made in constructing and activating the system.
G.
The system shall not endanger or interfere with the safety of persons or property in the franchise area or in other areas in which a grantee may have equipment activated or situated.
H.
Any antenna structure used in the system shall comply with construction, marking and lighting of antenna structures as may be required by the United States Department of Transportation.
I.
All working facilities and conditions existing during construction, installation and maintenance of the system shall comply with the standards of the Federal and State Occupational Safety and Health Administration.
J.
Each grantee shall at all times comply with the following:
1.
National Electric Safety Code (National Bureau of Standards), as existing and as subsequently amended.
2.
National Electric Code (National Bureau of Fire Underwriters), as existing and as subsequently amended.
3.
Bell System Code of Pole Line Construction, as existing and as subsequently amended.
4.
Applicable Federal Communications Commission, Missouri Public Service Commission or other Federal, State and local regulations and codes, as existing and as subsequently amended.
K.
RF leakage shall be checked at reception locations for emergency radio services to prove no interference signal combinations are possible. Stray radiation shall be measured adjacent to any proposed aeronautical navigation radio sites to prove no interference to airborne navigational reception in the normal flight patterns. Federal rules and regulations shall govern.
L.
Tests and measurements to insure compliance with technical standards shall be performed by the grantee in a manner that is consistent with the provisions and standards of the Federal Communications Commission or the Missouri Public Service Commission, as the case may be and as amended from time to time. Results of all tests and measurements required to be taken by the grantee shall be recorded, maintained and made available to the City upon request. Where there exists evidence which, in the judgment of the Board of Aldermen, casts doubt on the reliability or quality of cable service, the City shall have the right to require the grantee to perform tests and analyses directed toward such suspected inadequacies. The grantee shall fully cooperate with the City in performing such testing and shall prepare results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: The nature of the complaint or problem which precipitated the special tests; what system components were tested; equipment used and procedure employed in testing; the method, if any, in which such complaint or problem was resolved; and any other information pertinent to said tests and analyses which may be required. The City may require that tests be supervised, at the grantee's expense, by a licensed professional engineer. The engineer shall certify all records of special tests and forward to the City such records with a report interpreting the results thereof and recommending actions to be taken, if any. The City's right pursuant hereto shall be limited to requiring tests, analyses and reports pertaining to specific subjects and characteristics based on complaints or sufficient evidence which the City has grounds to believe will require testing to be performed to protect the public against substandard cable service. In the event that the supervising engineer reports that action is necessary on the part of the grantee, the grantee will take such action within seven (7) days of notice thereof.
M.
Each grantee shall put, keep and maintain all parts of the system in good condition throughout the entire period of the franchise and shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible.
N.
Each grantee shall not allow its cable or other operations to interfere with television reception of persons not served by the grantee, nor shall the system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the residents within the confines of the City.
O.
Each grantee of a franchise for a communications system for cable television shall maintain at a minimum, throughout the lifetime of this franchise, the technical standards and quality of said service set forth by Federal Communications Commission rules and regulations and grantee will at its sole expense update and improve its system. The standard for determining quality and equipment will be based upon service and equipment which is technologically and economically reasonable and, to a lesser extent, based upon service and equipment provided to similar sized communities by unrelated cable companies in similar circumstances.
P.
The communications system of a grantee given a franchise for a communications system for cable television shall produce a picture, whether in black and white or in color, accompanied with proper sound on typical standard production television sets in good repair that is as good as the Federal Communications Commission technical rules require. Grantee shall limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than three (3) days after written notice by the City to grantee unless the failure is beyond the control of the grantee.
Q.
Each grantee of a communications system for cable television shall operate said system in conformance with the laws of the State of Missouri and with the Federal Communications Commission Technical Standards, 47 C.F.R. Section 76.601, et seq., as from time to time amended. Should there be any modifications of the provisions of said standards which are inconsistent with the franchise hereby granted, this Chapter shall be amended so as to conform to such modifications within one (1) year after the effective date of the Federal Communications Commission's adoption of the modification. Each grantee will advise the City of any such modifications to said rules and standards quarterly.
R.
Each grantee of a communications system for cable television shall carry on the system all required broadcast signals pursuant to the Federal Communications Commission signals carriage rules and such other broadcast signals as are set forth in the grantee's application.
S.
Each grantee of a communications system for cable television or telephone shall maintain current, up-to-date maps and plans of the entire system and shall file the same with the City promptly if requested by the City. Where underground installations are involved, the City will not be responsible for damage to such underground facilities until the maps and plans of the system, in the hands of the City, have been updated to show such underground installations. Maps and plans provided to the City shall be at the expense of the grantee.
T.
Each grantee of a communications system for cable television shall design, install, maintain and test said system to conform to the technical performance specifications of the Federal Communications Commission as outlined in Sections 76.601 through 76.630, RSMo., as from time to time amended; and, in addition, to:
1.
Carry two-way digital signal transmission;
2.
Provide subscribers with a parental control locking device that permits inhibiting the viewing of premium channels, at no cost to subscribers;
3.
Ensure, in the event a franchisee offers programming which features nudity, "adult language", "adult content", or a rating more restrictive than PG-13, that both the parental lockout and scrambling on this programming must be tested to fully scramble all video signals and either eliminate or fully scramble all audio signals; and
4.
Have the capacity to carry high-definition television (HDTV) signals on all television channels offered by the grantee at or within one (1) year of the time that minimum standards are enacted by Statute or regulation for the transmission of said HDTV signals, either by themselves or in combination with other forms of digital television signals or present analog signals.
U.
Additional Services. Each grantee of a franchise for a communications system for cable television may also engage in the business of:
1.
Transmitting original cablecast programming not received through television broadcast signals;
2.
Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers;
3.
Transmitting and receiving data signals and other signals which can be so handled without licenses or permits of the Missouri Public Service Commission including, but limited to, access to the entity or form of data communications now known as the "Internet".
[Ord. No. 327 §10, 11-13-1995]
A.
Procedures In The Event Of Alleged Violations. A grantee may be penalized by the City in the event of a substantial violation or breach of a material provision of this Chapter or for willful failure, refusal or neglect by the grantee to comply with any of the requirements of this Chapter or any of the Statutes, rules and regulations applicable to the franchise of the grantee. If the City believes that such a substantial violation or breach of material provision of this Chapter has occurred, the following procedures in Subsection (B) through and including Subsection (D) of this Section shall be followed. If the City believes the grantee has willfully failed, refused or neglected to comply with any of the requirements this Chapter or any of the Statutes rules and regulations applicable to the franchise of the grantee, then the procedures set forth in Subsection (E) of this Section shall be followed.
B.
Notice, Response And Opportunity To Cure Alleged Violations. The City shall notify the grantee in writing of any alleged violations or failure to meet any of the terms or provisions of this Chapter. The grantee shall be given thirty (30) days from the date of receipt of such notice to respond in writing, stating its explanation for the alleged violations and what actions, if any, have been or are being taken to cure such breach; and the City shall hold a public hearing at the regular meeting of the Board of Aldermen immediately following the expiration of said thirty (30) day period.
C.
Public Hearing. The City shall hold a public hearing providing due process at which testimony and evidence shall be heard concerning the alleged violation. Representatives of the City and the grantee shall be permitted to address the subject of the alleged violation(s) and related issues at the public hearing. The grantee may submit evidence to the City that it is diligently pursuing reasonable actions to cure the alleged violation or that there are circumstances beyond its control (force majeure) which prevent the grantee from curing the alleged breach until some future date. Such showings shall be sufficient to relieve the grantee from an alleged breach of this Chapter or its franchise. In such cases, the City may require the grantee to provide periodic reports updating the City on progress being made to cure any unresolved problem.
D.
Notice And Cure Of Franchise Violations. If, following a public hearing, the City believes that the grantee has failed to comply with the construction, operational or maintenance standards contained herein and that the said failure to comply will not be cured within a one hundred twenty (120) day period from the date of the original notice of violation, the City shall order and grantee shall pay to the City twenty-five dollars ($25.00) per day for each day or part thereof that such non-compliance continues and may seek and make claim for said sums from the bond required of the grantee.
E.
Default, Revocation Of Franchise. In addition to all other rights and powers of the City by virtue of this Chapter or otherwise, the City reserves the right to terminate and cancel any franchise granted and all rights and privileges of the grantee arising hereunder in the event that the grantee:
1.
Violates any material provision of this Chapter, the ordinance granting the franchise of the grantee or any rule, order or determination of the Board of Aldermen made pursuant to this authority, except where such violation (other than provisions concerning transfer without prior Board of Aldermen approval) is beyond the control of the grantee;
2.
Becomes insolvent or is unable or unwilling to pay its debts or is adjudged bankrupt or placed in receivership or is no longer authorized to do business in the State of Missouri;
3.
Attempts to dispose of any of the facilities or property of its system in violation of the terms of this Chapter or the ordinance granting the franchise of the grantee;
4.
Attempts to evade any of the material provisions of this Chapter or the ordinance granting the franchise of the grantee or practices any fraud or deceit upon the City;
5.
Fails to begin or complete construction and/or fails to provide services as required herein;
6.
Fails to restore system wide service following seventy-two (72) consecutive hours of interrupted service, except where prior approval of such interruption shall have been obtained from the City or in the event that any such action is caused by acts of God, national emergency, war, strikes or other actions beyond the control of the grantee;
7.
Is found to have misrepresented any material fact in its application; and
a.
Any termination proceeding initiated by the City shall occur only after thirty (30) days' written notice to the grantee. The grantee shall have an opportunity to respond to such a claim at a public hearing held in this matter by the Board of Aldermen. Grantee shall be a necessary party to all public hearings regarding operations or termination of said franchise.
b.
Upon termination, cancellation or expiration of the grantee's franchise, the City shall have the right to require the grantee to remove, at the grantee's own expense, all portions of the system from all public ways within the City within ninety (90) days of said termination, cancellation or expiration. Any of the grantee's property not removed within said ninety (90) day period shall be deemed abandoned. By action of this Chapter, such abandoned property shall be the property of the City. Should the City invoke this paragraph, grantee may nonetheless negotiate a sale of the system subject to this Chapter and consent to such sale shall not be unreasonably withheld.
[Ord. No. 327 §11, 11-13-1995]
A.
Any franchise granted herewith shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale or by voluntary sale, merger, consolidation or otherwise, without prior consent of the Board of Aldermen and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Board of Aldermen may not be unreasonably refused; provided however, the proposed assignee must show financial responsibility as determined by the Board of Aldermen and must agree to comply with all provisions of the franchise; and, provided further, that no such consent shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed fifty percent (50%) of the market value of the property used by the grantee in the conduct of the communications system for either cable television or telephone, prior consent of the Board shall be required for such a transfer. Such consent shall not be withheld unreasonably.
B.
In the event that grantee is a corporation, prior approval of the Board of Aldermen, expressed by resolution, shall be required where there is an actual change in control or where ownership of more than fifty percent (50%) of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent (50%) or more of the voting stock, singly or collectively.
Upon the foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of any lease covering all or a substantial part of the system, the grantee shall notify the City of such fact and such notification shall be treated as a notification that a change in the control of the grantee has taken place and the provisions of this Chapter governing the consent of the Board of Aldermen to such change in control of the grantee shall apply.
C.
No person granted a franchise to operate a communications system for either cable television or telephone, or both, under authority from the City shall acquire or sell or conspire to acquire or sell, directly or indirectly, controlling interest in another company or person and/or the whole or any part of the assets of another company or person also granted a franchise to operate a communications system for either cable television or telephone, or both, under authority from the City, the effect of which acquisition or sale may substantially lessen competition or tend to create a monopoly without the consent of the City.
This provisions is material and relevant to the City, its officials, employees and citizens and is designed to promote fair and honest commerce in the City. Any act in derogation of or deceit including, but not limited to, the use of management agreements, non-action, consulting agreements and non-competition agreements between principals (or their relatives) of any companies to circumvent this provision shall be considered a violation of same. Any use of straw parties or persons holding legal, but not beneficial interest, shall likewise be considered a violation of this Section.
D.
The provisions of this Section are material and relevant to the City and shall be strictly enforced. Any violation or attempted violation by any grantee or any provision of this Section may result in termination of that grantee's franchise at the option of the City, but only after a public hearing shall be had, as well as any and all other remedies available to the City including, but not limited to, forfeiture by the grantee to the City of the purchase price or any other consideration derived by the grantee from any such unlawful sale or transfer. The provisions of this Section shall also be enforceable by extraordinary remedies (injunction, etc.) at the option of the City.
In addition to purely civil options set out herein, any violation of this Section shall likewise be punishable by a fine not greater than five hundred dollars ($500.00) or a jail sentence no greater than ninety (90) days, or both.
[Ord. No. 327 §12, 11-13-1995]
The City may decide to renew a franchise granted under this Chapter if the grantee files a written request for such a renewal. At the time of such request, the City may update this Chapter and re-evaluate the needs of the community for cable service and the performance of the grantee. To the extent applicable, the Cable Acts of 1992 and 1994 shall govern the procedures and standards for renewal of any franchise awarded pursuant to this Chapter. To the extent that the Cable Acts are not applicable, the City in its sole discretion and judgment shall have the right to grant, deny or conditionally grant renewal of a franchise, provided that the City shall not unreasonably refuse to renew the franchise or unreasonably condition the renewal. Unless otherwise agreed upon, any amended cable ordinance or provision thereunder adopted before the franchise renewal shall take effect at the franchise renewal. When the City approves a franchise renewal, the grantee shall accept the renewed franchise by a letter from a corporate officer attested to by the corporation secretary if the grantee is a corporation; by a member or manager, as permitted by the operating agreement if the grantee is a limited liability company; or by a general partner if the grantee is a limited or general partnership.
[Ord. No. 327 §13, 11-13-1995]
A.
It shall be unlawful and a municipal ordinance violation for any person to:
1.
Make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a grantee's communications system for cable television or telephone without payment to the grantee or its approved successors, assigns or lessees.
2.
Without the consent of the grantee, willfully tamper with, remove or injure any cable, wire or other equipment used for the distribution of voice, audio, video or data signals or any other information or intelligence transmitted over a grantee's communications system for cable television or telephone.
[Ord. No. 327 §14, 11-13-1995]
A.
Compliance With State And Federal Law.
1.
Each grantee and the City shall at all times comply with all applicable State and Federal laws and the applicable rules and regulations of administrative agencies. If the Federal Communications Commission (FCC) or any other Federal or State governmental body or agency enacts any law or regulation or exercises any paramount jurisdiction over the subject matter of this Chapter or any franchise granted hereunder, the jurisdiction of the City shall cease and no longer exist to the extent such superseding jurisdiction shall pre-empt or preclude the exercise of like jurisdiction by the City.
2.
City rules and regulations. Each grantee shall be subject to all ordinances, rules, regulations and specifications of the City heretofore or hereafter established including, but not limited to, those pertaining to works and activities in, on, over, under and about streets. The right is hereby reserved to the City to adopt, in addition to the provisions herein contained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its Police power; provided however, that such additional ordinances shall be reasonable, shall not conflict with or substantially alter the rights granted herein and shall not conflict with the laws of the State of Missouri, the laws of the United States of America or the rules, regulations and policies of the Federal Communications Commission.
B.
Notice To The Grantee. Except as otherwise provided in this Chapter, the City shall not meet to take any action involving the grantee's franchise unless the City has notified the grantee by certified mail at least thirty (30) days prior to such meeting as to its time, place and purpose. The notice provided for in this Section shall be in addition to, and not in lieu of, any other notice to the grantee provided for in this Chapter.
C.
Street Occupancy. Grantee shall utilize existing poles, conduits and other facilities whenever possible but may construct or install new, different or additional poles, conduits or other facilities whether on the public way or on privately-owned property with the written approval of the appropriate government authority and, if necessary, the property owner. Such approval shall not be unreasonably withheld by the governmental agency.
1.
All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and appearance and reasonable convenience of property owners who adjoin on any public way and at all times shall be kept and maintained in a safe condition and in good order and repair. The grantee shall at all times employ reasonable care and shall use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
2.
Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities subject to the direction of the franchising authority or other appropriate governmental authority.
3.
Grantee shall, at the expense of grantee, protect, support, temporarily disconnect or temporarily relocate any property of grantee when, upon the request of the Board of Aldermen, the same is required by reason of freeway or street or other public works construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal line or movement of buildings. Grantee shall also repair, replace or reconstruct property of the City or its residents and business that is damaged by the construction or operation of grantee's cable television franchise.
4.
In the event the use of any part of the system of grantee is discontinued for any reason for a continuous period of thirty (30) days without prior written notice to and approval by the Mayor or in the event any part of such system has been installed in any street or other area without complying with the requirements hereof or in the event any franchise shall be terminated, canceled or shall expire, grantee shall, at the option of the City and at the expense of grantee and at no expense to the City, promptly remove from any street or other area all property of grantee and grantee shall promptly restore the street or other area from which such property has been removed to such condition as the Mayor shall approve; provided the Board of Aldermen may, upon written application therefor by grantee, approve the abandonment of any of such property in place by grantee and under such terms and conditions as the Board of Aldermen may prescribe; and upon abandonment of any such property in place, grantee shall cause to be executed, acknowledged and delivered to the City such instruments as the City Counselor shall prescribe and approve, conveying the ownership of such property to the City.
5.
Upon the failure, refusal or neglect of grantee to cause any work or other act required by law or by this Chapter to be completed in, on, over or under any street within any time prescribed therefor or upon notice given, where notice is prescribed, the Mayor may cause such work or other act to be completed in whole or in part and upon so doing shall submit to grantee an itemized statement of the costs thereof and grantee shall, within thirty (30) days after receipt of such statement, pay unto the City the entire amount thereof.
6.
Unless otherwise provided in any given instance, where any time is prescribed herein for the doing or causing to be done of any act, the Board of Aldermen for good cause, stated in writing, may extend any time for two (2) additional periods of not to exceed ninety (90) days each. Further, the running of any time period specified herein shall be automatically tolled whenever and so long as the certificate of compliance issued by the Federal Communications Commission to the grantee is the subject of a petition for stay, petition for review or appeal filed with any State or Federal Court.
D.
Access To Public And Private Property.
1.
Grantee shall have the right to enter and have access to the property and premises of the City or that of any subscriber for purposes of installing cable TV service. Grantee shall also have the right to enter and have access to the property and premises of any subscriber, under due process of the law, for the purpose of recovering and removing grantee's property and equipment when a subscriber's service is terminated and a subscriber refuses to return such equipment to the grantee.
2.
Upon request by grantee, the City may, at its sole option, promptly exercise any rights it may have to permit or enable grantee to utilize easements with respect to any residential multiple-unit dwelling, trailer park, condominium, apartment complex, subdivision or other property as required to facilitate grantee's use thereof for purposes of providing system service to the tenants, residents or lawful occupants thereof. In any such proceeding, the retribution to the owner for the amount of space utilized by the system, considering the enhanced value to the premises resulting from the installation of cable television facilities, shall be a one-time charge of one dollar ($1.00) per dwelling unit. Grantee shall reimburse City for all costs incurred in this process.
E.
Force Majeure. No grantee shall be responsible for delays in construction or extension of the system for any cause wholly beyond grantee's control, including acts of God, fire, flood, earthquakes, extraordinary delays in transportation, strikes, embargoes, enemy action, energy shortages and similar events. In the event of such, the City will reasonably grant extensions so long as the event is beyond the control of the grantee.
F.
Inspection Of Property And Records.
1.
Grantee shall at all reasonable times, and to the extent necessary to carry out the provisions of this Chapter, permit any duly authorized agent or representative of the City to examine all franchise property of grantee, together with any appurtenant property of grantee situated within or without the City and to examine and transcribe any and all maps and other records kept or maintained by grantee or under the control or direction or at the request of grantee which treat of the franchise operations, affairs, transactions or property of grantee.
2.
Any of such maps or other records which are not situated within the City and which are not made available in the City within a reasonable time after written request therefor by the City Administrator or the City Counselor shall be produced for examination wherever the same shall be situated and grantee shall pay all travel and other expenses necessarily or reasonably incurred by the City, its agents and representatives in making such examination.
3.
Grantee shall prepare and furnish to the City Administrator, at such times and in such form as prescribed by the City Administrator, references and materials with respect to the operations, affairs, transactions or property of the grantee as may be reasonably necessary or appropriate to the performance of any of the duties of the City Administrator.
G.
Non-Discrimination. Each grantee shall neither refuse to hire nor discharge from employment nor discriminate against any person in compensation, terms, conditions or privileges of employment because of age, sex, race, color, creed or national origin. Each grantee shall insure that employees and subscribers are treated without regard to their age, sex, race, color, creed or national origin. Each grantee shall not, as to rates, charges, services, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person.
H.
Grantee May Issue Rules. The grantee shall have the authority to issue such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable it to exercise its rights and perform it services under this Chapter and the rules of the FCC and to assure uninterrupted service to each and all of its subscribers. Such rules and regulations shall not be deemed to have the force of law.
I.
Prohibited Activities Of Grantee. Grantee shall be prohibited from directly or indirectly doing any of the following:
1.
Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets or radios.
2.
Soliciting, referring or causing or permitting the solicitation or referral of any business herein prohibited to be engaged in by grantee.
3.
Entering or encroaching upon or interfering with or obstructing any private property without the expressed consent of the owner or under due process of the law.