[R.O. 2003 § 615.010; CC 1997 § 116.010]
A.
Statement Of Intent And Purpose. The City
of Gallatin intends by the adoption of this Chapter to bring about
the continued development and operation of cable communications services
for the City. Such a development can contribute significantly to the
communication needs and desires of citizens of the City of Gallatin.
Further, by the continued development and operation of a system, the
City may help achieve better utilization and improvement of public
services.
B.
Franchise Processing Fee. Any applicant
for a franchise to own, operate and maintain a system within the City
shall be required to reimburse City for all costs incurred, including
attorney's fees in soliciting and evaluating the application, and
processing the franchise award, and any other ongoing expenses connected
with the franchise award.
C.
Franchise Agreement. The City and grantee
are hereby authorized to, at the time of acceptance, enter into an
agreement, consistent with this Chapter, governing the relationship
between the City and grantee; providing for regulation and use of
system; and prescribing liquidated damages for the violation of its
provisions.
[R.O. 2003 § 615.020; CC 1997 § 116.020]
For the purposes of this Chapter,
the following terms shall be deemed to have the meanings indicated
below:
A six (6) megahertz (MHz) frequency band, which is capable
of carrying either one (1) standard video signal, a number of audio,
digital or other non-video signals, or some combination of such signals.
The City of Gallatin and all of the territory within its
present and future boundaries.
A signaling path provided by system to transmit signals of
any type from a subscriber terminal to another point in the system.
The Federal Communications Commission or a designated representative.
The rights and obligations extended by the City to grantee
to own, operate and maintain a system within the City of Gallatin
and manifested by the following:
Ordinance No. 712-87, adopted by
the City on the fifth day of October, 1987;
The ordinance granting a franchise
to any person, firm or corporation authorized to do business in the
State of Missouri; and
A franchise agreement entered into
between the City and grantee based on the authority and grant of a
cable communications franchise extended by Ordinance No. 712-87.
An agreement entitled "Franchise Agreement" entered into
between the City and grantee which is enforceable by the City and
grantee and which sets forth the rights and obligations between the
City and grantee arising out of the franchise.
The holder of any franchise to operate and maintain a system,
its agents, employees, lawful successors, transferees or assignees.
Ordinance No. 712-87 of the City of Gallatin, Missouri.
Any corporation, partnership, proprietorship, individual
or organization authorized to do business in the State of Missouri
or any natural person.
Any real property owned by the City or any other governmental
unit, other than a street.
The surface of and the space above and below any public street,
road, cartway, highway, freeway, lane, path, public way, alley, court,
sidewalk, boulevard, parkway, drive or any easement or right-of-way
now or hereafter held by the City which shall, within its proper use
and meaning in the sole opinion of the City, entitle grantee to the
use thereof for the purpose of installing or transmitting over poles,
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments and other property as may be ordinarily necessary
and pertinent to system.
Any person or entity who lawfully subscribes to a service
provided by grantee by means of or in connection with the system and
pays a fee unless such fee is lawfully waived.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the City, but
the term "system" does not include:
A facility that serves only to retransmit
the television signals of one (1) or more television broadcast stations;
A facility that serves only subscribers
in one (1) or more multiple-unit dwellings under common ownership,
control or management, unless such facility or facilities uses any
public right-of-way;
A facility of a common carrier which
is subject, in whole or in part, to the provisions of Title II of
the Cable Communications Policy Act of 1984, except that such facility
shall be considered a system to the extent such facility is used in
the transmission of video programming directly to subscribers; or
Any facilities of any electric utility
used solely for operating its electric utilities system.
[R.O. 2003 § 615.030; CC 1997 § 116.030]
A.
Grant Of Franchise. A franchise shall be
granted pursuant to the terms and conditions contained herein. A franchise
may include accompanying agreements. Such terms and conditions shall
be subordinate to all applicable provisions of local, State and Federal
laws, rules and regulations.
B.
Authority For Use Of Streets.
1.
For the purposes of operating and
maintaining system in the City, the franchise shall provide that grantee
may erect, install, construct, repair, replace, reconstruct and retain
in, on, over, under, across and along the streets within the City
such lines, 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 system, provided that all applicable permits are applied for and
granted, all fees paid, and all other City codes and ordinances are
otherwise complied with.
2.
Prior to construction or alteration,
grantee shall in each case file plans with all appropriate City agencies
and utility companies and receive written approval of such plans.
Grantee shall provide a monthly progress report to the City through
the completion of construction or alteration. For purposes of this
Section, construction or alteration shall refer to major improvements
or changes to grantee's system which involve one (1) or more of the
following:
a.
Interruption of service to more than
one (1) subscriber;
b.
Work over, under or upon any street;
c.
Work requiring digging, trenching,
or other disturbance of the streets, public rights-of-way or easements;
or
d.
Changes or additions to system components,
including, but not limited to, antennas, towers, earth stations, satellite
receivers, microwave receivers, broadcasters and repeaters, and related
fixtures and appurtenances located within the City.
3.
Grantee shall construct and maintain
system so as not to interfere with other uses of streets. Grantee
shall make use of existing poles and other facilities available to
grantee. Grantee shall individually notify all residents affected
by proposed construction prior to the commencement of that work in
the same fashion as provided herein.
4.
Notwithstanding the above grant to
use streets, no street shall be used by grantee if the City, in its
sole discretion, determines that such use is inconsistent with the
terms, conditions or provisions by which such street was created or
dedicated, or presently used.
5.
The grantee shall provide service
and connection with the system to any person or entity who requests
to become a subscriber when the location of such connection is not
more than two thousand (2,000) feet from any customer service feeder
line within the City.
C.
Franchise Term. A franchise shall commence
upon the effective date of its adoption by the Board of Aldermen and
shall expire no more than fifteen (15) years thereafter, unless renewed
or terminated sooner as hereinafter provided.
D.
Franchise Non-Exclusive.
1.
Any franchise granted in accordance
with this Chapter is non-exclusive. The City specifically reserves
the right to grant, at any time, additional franchises for a system
as it deems appropriate. The City also reserves the right to grant
one (1) or more franchises for the provision of specifically defined
services, including, but not limited to, institutional communications
services and interactive residential services.
2.
Grantees of franchises granted in
accordance with this Chapter shall make available a channel for government
access and use by the City of Gallatin. When not used by the City,
such channel may be used by grantee for other purposes or programming.
3.
Within six (6) months after the adoption
of this Chapter, the City and the holders of franchises granted under
this Chapter shall meet and begin work on a plan for effecting an
interconnection of the facilities of all grantees for the purposes
of cablecasting a common signal for the purposes of government access
and use. Within two (2) years of the initial meeting, the plan for
interconnection shall be submitted to the Board of Aldermen for approval
and adoption. The plan for interconnection shall include, but need
not be limited to, a technical description for the proposed interconnection,
a timetable for implementation, guidelines for use of the interconnection,
and allowance for interconnection with future grantees. The costs
of the construction and operation of the interconnection shall be
shared equitably by all grantees.
E.
Cable Communications Franchise Required.
No system shall be allowed to occupy the public right-of-way or use
the streets or other public property of the City or be allowed to
operate within the City without a cable communications franchise.
F.
Police Powers. Grantee's 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. Grantee
shall comply with all applicable general laws and ordinances enacted
by the City pursuant to that power. 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 most
restrictive provision contained therein.
[R.O. 2003 § 615.040; CC 1997 § 116.040]
A.
Permits. Grantee shall obtain a permit
from the proper City authority before commencing construction or alteration
of system, including the opening or disturbance of any street, sidewalk,
driveway or public place. Any and all streets which are disturbed
or damaged during the construction, alteration, operation, maintenance
or reconstruction of system shall be promptly repaired by grantee
at its expense and to the satisfaction of the City. There shall be
imposed on grantee a daily penalty of fifty dollars ($50.00) per incident
should grantee not obtain or meet the conditions of any applicable
City permit with respect to disturbance of a street.
B.
Construction Codes. All wires, conduits,
cable and other property and facilities of grantee shall be located,
constructed, installed and maintained in compliance with applicable codes.
Grantee shall keep and maintain all of its property so as not to unnecessarily
interfere with the usual and customary trade, traffic or travel upon
the streets and public places of the City or endanger the lives or
property of any person. In the event of such interference, the City
may require the removal of grantee's lines, cables and appurtenances
from the street or property in question. The City shall have the right
to inspect all construction or installation work performed subject
to the provisions of the franchise and to make such tests as it shall
find necessary to ensure compliance with the terms of the franchise
and pertinent provisions of law and ordinances that are applicable.
C.
Reservation Of Street Rights.
1.
Nothing in the franchise shall be
construed to prevent the City from constructing sewers, grading, paving,
repairing and/or altering any street, or laying down, repairing or
removing water mains, or constructing or establishing any other public
work. All such work shall be done, insofar as practicable, in such
manner as not to obstruct, injure or prevent the free use and operation
of the poles, wires, conduits, conductors, pipes or appurtenances
of grantee.
2.
Except in an emergency, if any such
property of grantee herein shall interfere with the construction or
repair of any street or improvement, thirty (30) days' written notice
shall be given to grantee by the City and all such poles, wires, conduits
or other appliances and facilities shall be removed or replaced by
grantee in such manner as shall be directed by the City so that the
same shall not interfere with the said public work of the City, and
such removal or replacement shall be at the expense of the grantee
herein. In case of emergency, grantee shall respond immediately to
a request to remove or replace such facilities and shall do so at
its own expense.
D.
Repair Of Streets And Property. In constructing,
operating, maintaining and testing system, grantee shall refill and
compact, at its own expense, any excavation that shall be made and
shall leave all streets and property, whether it be public or private,
in as good a condition as that prevailing prior to the said work and
without affecting, altering or disturbing, in any way, electric, telephone
or utility cables, wires or attachments. The City shall have the right
to inspect and approve the condition of its streets and property after
said work.
E.
Undergrounding Of Cable. The placement
of cables underground is encouraged. In any event, cables passing
under any street shall be installed in underground conduit. Previously
installed aerial cable shall be placed underground in concert with
all other utilities when all other utilities may convert from aerial
to underground construction. The City shall notify grantee of all
pending changes from aerial to underground utility installations.
Grantee shall place cable underground in newly platted areas where
all other utilities are underground as soon as practicable.
F.
Trimming Of Trees. Grantee shall have the
authority to trim trees upon and overhanging streets, alleys, sidewalks
and public places of the City so as to prevent the branches of such
trees from coming in contact with the wires and cables of grantee.
Grantee shall give a minimum of forty-eight (48) hours' advance notice
to affected residents and the City. Upon request of the City, all
trimming shall be done with the approval and under the supervision
and direction of the City and shall be in accordance with generally
accepted pruning practice.
G.
Street Vacation Or Abandonment. In the
event any street or portion thereof used by grantee shall be vacated
by the City or the use thereof discontinued by grantee during the
term of the franchise, grantee shall forthwith remove its facilities
therefrom unless specifically permitted to continue the same and on
the removal thereof restore, repair or reconstruct the street area
where such removal has occurred and place the street area where such
removal has occurred in such condition as may be required by the City.
In the event of failure, neglect or refusal of grantee after thirty
(30) days' notice by the City to repair, improve or maintain such
street portion, the City may do such work or cause it to be done,
and the cost thereof as found and declared by the City shall be paid
by grantee as directed by the City and collection may be made by court
action or otherwise.
H.
Movement Of Facilities. In the event it
is necessary temporarily to move or remove any of grantee's wires,
cables, poles or other facilities placed pursuant to the franchise
in order to lawfully move a large object, building or other structure
over the streets of the City, grantee, upon reasonable notice, shall
move at the expense of the person requesting the temporary removal
of such grantee's facilities as may be required to facilitate such
movements. Grantee shall have the right to require payment in advance
for such moving services. Additionally, any service disruption sections
of the franchise agreement shall not apply in the event that the removal
of grantee's wires, cables, poles or other facilities results in temporary
service disruptions; however, grantee shall give notice to subscribers
by providing notice for five (5) days, each day between 7:00 P.M.
and 9:00 P.M. on one (1) channel if such removal will result in temporary
service disruption of more than two (2) hours. Where such temporary
service disruption shall affect only a portion of the grantee's subscribers,
grantee may, with the approval of the City, use another method of
notifying subscribers.
I.
Erection Of Poles Prohibited. Grantee shall
not erect, for any reason, any pole on or along any street in an existing
aerial utility system. If additional poles in an existing aerial route
are required, grantee shall arrange with the applicable utility for
the installation of the needed poles. Any such additional poles shall
require the advance written approval of the City. Any poles erected
and used by the grantee, prior to the date of this agreement, shall
not be subject to the provisions of this Subsection.
J.
Pole Rental. The grantee shall pay to the
City the sum of two dollars ($2.00) per pole per year for rental of
each of the City's utility poles to which lines for cable television
service are attached during all or any part of a calendar year. Said
rent shall be paid by grantee to the City on or before January 15
of the following year for which rent is due. The grantee shall keep
accurate records of pole usage during each year and provide an accurate
copy of such records to the City at the time rent is paid or at such
other times as the City may request.
[R.O. 2003 § 615.050; CC 1997 § 116.050]
A.
Annual Reports. The City shall have the
authority to collect a franchise fee and to audit grantee's accounting
and financial records upon reasonable notice as set forth in the franchise
agreement. Grantee shall file with the City annually reports of gross
revenues and other information as set forth in the franchise agreement.
B.
Maintenance And Complaints. A toll-free
or collect telephone number or local telephone number for the reception
of complaints shall be provided to subscribers and grantee shall maintain
a repair service capable of responding to subscriber complaints or
requests for service within twenty-four (24) hours after receipt of
the complaint or request. Grantee shall investigate and resolve all
complaints regarding quality of service, equipment malfunction, billing
disputes and other matters pursuant to the procedure set forth in
the franchise agreement. Grantee will bear the costs included in making
such repairs necessary due to neglect or abuse of subscriber. All
costs for repairs necessary due to neglect or abuse of subscriber
shall be borne by the subscriber. For purposes of this Section, "responding"
means repairing the service or resolving the complaint. If the company
is unable to repair the service or resolve the complaint within twenty-four
(24) hours because of an emergency or reasons beyond its control,
grantee shall notify subscriber of reason for delay and when service
will be restored. Service requests for maintenance or repair of system
shall be performed at no charge to a subscriber. If such maintenance
or repair is required as a result of damage caused by subscriber,
grantee may charge according to its actual cost for time and material.
C.
Rates And Other Charges.
1.
Rates and charges charged by grantee
for monthly service and installation and all other charges hereunder
shall be uniform, except that grantee may offer both its initial and
additional installation services to subscribers at uniformly applied
reduced rates.
2.
Grantee shall file all rates and
charges with the City before the franchise is granted. Prior to implementing
any rate increase for any service not subject to local rate regulation,
other than pay cable services, grantee shall give the following notice:
a.
At least sixty (60) days' advance
written notice to the City;
b.
At least thirty (30) days' advance
written notice to subscribers of that service; and
c.
Publication in a newspaper published
in the City and qualified to publish legal notice of the rate increase
and the effective date of the new rate at least once per week for
two (2) consecutive weeks.
[R.O. 2003 § 615.060; CC 1997 § 116.060]
A.
Letter Of Credit. At the time the franchise
is granted and at all times thereafter until grantee has completed
all of its obligations with the City, grantee shall furnish a letter
of credit or cash security fund approved by the City in such amount
as the City deems to be adequate compensation for damages resulting
from grantee's non-performance. The City may, from year to year, in
its sole discretion, reduce the amount of the letter of credit or
security fund as set forth in the franchise agreement.
B.
Liability Insurance And Indemnification.
Grantee shall indemnify, defend and hold harmless the City at all
times during the term of the franchise, and maintain throughout the
term of the franchise liability insurance in such amount as the City
may require insuring both the City and grantee with regard to all
damages and penalties which they may legally be required to pay as
a result of the exercise of the franchise. Grantee shall initially
maintain insurance in such reasonable amounts as set forth in the
franchise agreement.
C.
Duty To Grantee. Nothing contained in the
franchise shall relieve any person from liability arising out of the
failure to exercise reasonable care to avoid injuring grantee's facilities
while performing any work connected with grading or changing the line
of any street or public place or with the construction or reconstruction
of any electric, sewer or water system.
[R.O. 2003 § 615.070; CC 1997 § 116.070]
A.
City's Right To Revoke.
1.
The City reserves the right, in its
sole discretion, to terminate and cancel the franchise and all rights
and privileges of the franchise in the event:
a.
Grantee substantially violates any
provision of the ordinance, franchise or franchise agreement;
b.
Grantee practices any fraud or deceit
upon the City;
c.
Grantee becomes insolvent, unable
or unwilling to pay its debts;
d.
Grantee is adjudged bankrupt;
e.
Grantee materially misrepresents
a fact in the application for, negotiation of, or administration of
the franchise or franchise agreement;
f.
Upon conviction of any director,
officer, employee or agent of grantee of the offense of bribery, fraud
or extortion in connection with or resulting from the awarding of
the franchise or franchise agreement.
2.
Nothing in the franchise shall preclude
termination of it at any time by mutual agreement of both the City
and grantee.
B.
Procedures.
1.
The City shall provide grantee with
a written notice of the cause for termination and its intention to
terminate the franchise and shall allow the grantee a minimum of thirty
(30) days after service of the notice in which to correct the violation.
2.
Grantee shall be provided with an
opportunity to be heard at a public hearing before City prior to the
termination of the franchise. The City shall hear any persons interested
therein and shall determine, in its discretion, whether or not there
was a failure, refusal or neglect without just cause by the grantee.
3.
If such failure, refusal or neglect
by grantee to comply within such time and manner and upon such terms
and conditions as are reasonable.
4.
If the City shall determine such
failure, refusal, or neglect by grantee was without just cause, then
the City may, by resolution, declare that the franchise of grantee
shall be terminated.
C.
Removal Of System. Upon termination, forfeiture
or expiration of the franchise, if not renewed, grantee shall remove
its cables, wires and appliances from the streets and other public
and private property within the City if the City so requests, and
the City shall follow procedures set forth in the franchise agreement
in the event grantee fails to remove its cable, wires and appliances
from the streets and other public and private property within the
City.
D.
Purchase. When system or the franchise
is offered for sale or at the termination of the franchise, the City
shall have the right to purchase system in the manner set forth in
the franchise agreement.
E.
Abandonment. Grantee may not abandon any
cable communications service or any portion thereof without having
given three (3) months' prior written notice to the City. Further,
grantee may not abandon any cable communications service or any portion
thereof without compensating the City for damages resulting from the
abandonment. The amount of damages resulting from abandonment shall
be determined by the City.
[R.O. 2003 § 615.080; CC 1997 § 116.080]
A.
Monitoring Subscriber Viewing. No signals
of a Class IV Cable Communications
Channel may be transmitted from a subscriber terminal for purposes
of monitoring individual viewing patterns or practices without the
express written permission of the subscriber. Request for such permission
shall be contained in a separate document with a prominent statement
that the subscriber is authorizing the permission with full knowledge
of its provisions. Such written permission shall be for a limited
period of time not to exceed one (1) year, which may be renewed only
at the option of the subscriber. No penalty shall be invoked for the
subscriber's failure to provide or renew such authorization. The authorization
shall be revocable at any time by the subscriber upon written notice
to grantee without penalty of any kind whatsoever. Such permission
shall be required for each type or classification of Class IV cable
communications activity planned for this purpose.
B.
Sale Of Subscriber Lists Prohibited. No
information or data obtained by monitoring transmission of a signal
from a subscriber terminal or by any other means, including, but not
limited to, lists of the names and addresses of such subscribers of
any lists that identify the viewing habits of subscribers shall be
sold or otherwise made available to any party other than to grantee
and its employees for internal business use, or agents only in connection
with grantee's business, and also to the subscriber who is a subject
of that information, unless grantee has received specific written
authorization from subscriber to make such data available. The sale
of any subscriber list, however generated, other than herein provided
is also prohibited.
C.
Protection Of System Integrity. Written permission from the subscriber shall not be required from the conducting of system-wide or individually addressed electronic sweeps for the purpose of verifying system integrity or monitoring for the purpose of billings. Confidentiality of such information shall be subject to the provision set forth above in Subsection (B).
D.
Discrimination Prohibited. 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.
E.
Program Selection.
1.
All programs of broadcasting stations
carried by the grantee shall be carried in the entirety as received,
with announcements and advertisements, and without additions.
2.
Upon the request of a subscriber,
a cable operator shall provide, by sale or lease, a device by which
the subscriber can prohibit viewing of a particular cable service
during periods selected by that subscriber.
[R.O. 2003 § 615.090; CC 1997 § 116.090]
A.
Foreclosure. Upon foreclosure or other
judicial sale of all or a part of system, or upon the termination
of any lease covering all or part of system, grantee shall notify
the City of such fact and such notification shall be treated as a
notification that a change in control of grantee has taken place,
and the provisions of the franchise governing the consent to transfer
or change in ownership shall apply without regard to how such transfer
or change in ownership occurred.
B.
Receivership.
1.
The City shall have the right to
cancel this franchise one hundred twenty (120) days after the appointment
of a receiver or trustee to take over and conduct the business of
grantee, whether in 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 twenty
(120) days, or unless:
a.
Within one hundred twenty (120) days
after his/her election or appointment, such receiver or trustee shall
have fully complied with all the provisions of the franchise and remedied
all defaults thereunder; and
b.
Such receiver or trustee, within
said one hundred twenty (120) days, shall have executed an agreement,
duly approved by the court having jurisdiction in the premises, whereby
such receiver or trustee assumes and agrees to be bound by each and
every provision of the franchise.
2.
In the case of a foreclosure or other
judicial sale of the plant, property and equipment of the grantee,
or any part thereof, the City may serve notice of termination upon
the grantee and the successful bidder at such sale, in which event
the franchise herein granted and all rights and privileges of the
grantee hereunder shall cease and terminate thirty (30) days after
service of such notice, unless:
[R.O. 2003 § 615.100; CC 1997 § 116.100]
A.
Compliance With Laws. Grantee shall conform
with all the State laws and rules regarding cable communications pursuant
to the effective date of such laws and rules. Grantee shall conform
with all Federal laws and regulations regarding cable communications
as they become effective. Grantee shall also conform with all City
ordinances, resolutions heretofore or hereafter adopted or established
during the entire term of the franchise.
B.
Sale Or Transfer Of Franchise. The sale
or transfer of the franchise or sale of stock so as to create a new
controlling interest is prohibited, except with the approval of the
City, which approval shall not be unreasonably withheld, and such
sale or transfer is completed as set forth in the franchise agreement.
C.
Franchise Renewal. Any franchise granted
in accordance with this Chapter may be renewed by the City upon application
of grantee and in accordance with the then applicable State and Federal
law.
D.
Administration Of Franchise.
1.
The City shall have continuing regulatory
jurisdiction and supervision over system and grantee's operation under
the franchise. The City may issue such reasonable rules and regulations
concerning the construction, operation and maintenance of system as
are consistent with the provisions of the franchise.
2.
Grantee shall construct, operate
and maintain the system subject to the supervision of the City and
in strict compliance with all laws, ordinances, departmental rules
and regulations affecting system.
3.
System and all parts thereof shall
be subject to the right of periodic inspection by the City.
E.
Penalties. Exclusive of contractual damages or other rights in law or equity, a violation of any provision of this Chapter is enforceable by the City and punishable as provided in Section 100.220 of the City's Code.
1.
From and after the effective date
of this Chapter, it shall be unlawful for any person to establish,
operate or to carry on the business of distributing to any persons
in the City any television signals or radio signals by means of a
system unless a franchise therefor has first been obtained pursuant
to the provisions of the ordinance and unless such franchise is in
full force and effect.
2.
From and after the effective date
of this Chapter, it shall be unlawful for any person to construct,
install or maintain within any public street in the City, or within
any other public property of the City, or within any privately owned
area within the City which has not yet become a public street but
is designated or delineated as a proposed public street on any tentative
subdivision map approved by the City any equipment or facilities for
distributing any television signals or radio signals through a system
unless a franchise authorizing such use of such street or property
or area has first been obtained and unless such franchise is in full
force and effect.
3.
It shall be unlawful for any person,
firm or corporation to make any unauthorized connection, whether physically,
electrically, acoustically, inductively or otherwise, with any part
of a franchised system within the City for the purpose of taking or
receiving television signals, radio signals, pictures, programs, sound,
or data transmission.
4.
It shall be unlawful for any person,
firm or corporation to make any unauthorized connection, whether physically,
electrically, acoustically, inductively or otherwise, with any part
of a franchised system within the City for the purpose of enabling
himself/herself or others to receive any television signal, radio
signal, picture, program, sound, or data transmission without payment
to the owner of said system.
5.
It shall be unlawful for any person,
without the consent of the owner, to willfully tamper with, remove
or injure any cables, wires or equipment used for distribution of
television signals, radio signals, pictures, programs, sound, or data
transmissions.
F.
Continuity Of Service. Upon either the
expiration or revocation of a franchise, the City may require grantee
to continue to operate the system for an extended period of time not
to exceed six (6) months from the date of such expirations or revocation
unless extended by City resolution. Grantee shall, as trustee for
its successor in interest, continue to operate the system under the
terms and conditions of this Chapter and the franchise, to provide
the regular subscriber service and any and all of the services that
may be provided at that time, and to collect all revenues due and
pay all fees and charges due as a result of such operation. In the
event grantee does not so operate the system, the City may take such
steps as it, in its sole discretion, deems necessary to assure continued
service to the subscribers.
G.
Work Performed By Others.
1.
Grantee shall give notice to the
City specifying the names and addresses of any other entity, other
than grantee, which performs service pursuant to the franchise; provided,
however, that all provisions of the franchise remain the responsibility
of grantee.
2.
All provisions of the franchise shall
apply to any subcontractor or others performing any work or services
pursuant to the provisions of the franchise.
H.
No Recourse Against The City. Grantee shall
have no recourse whatsoever against the City or its officials, agents
or employees for any loss, costs, expense or damage arising out of
any provision or requirement of the franchise or because of the enforcement
of the franchise.
I.
Separability — Non-Material Provisions.
If any provision of this Chapter is held by any court or by any Federal,
State or County agency of competent jurisdiction to be invalid as
conflicting with any Federal, State or County law, rule or regulation
now or hereafter in effect, or is held by such court or agency to
be modified in any way in order to conform to the requirements of
any such law, rule or regulation is subsequently repealed, rescinded,
amended or otherwise changed, so that the provision hereof or thereof
which had been held invalid or modified is no longer in conflict with
the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be
binding on grantee and the City hereto, provided that the City shall
give grantee thirty (30) days' written notice of such change before
requiring compliance with said provision.
J.
Separability — Material Provisions.
If any material Section of this Chapter, as determined by the City,
is held to be invalid or preempted by Federal or State regulations
or laws, the City shall negotiate with grantee appropriate modifications
to the ordinance to provide reasonable relief from such invalidity
or preemption, including the payment of liquidated damages. If the
City and grantee are unable to reach agreement on such modifications,
then the dispute will be submitted to a mutually agreeable arbitrator,
in accordance with the franchise agreement, who will determine what
modifications and/or liquidated damages are appropriate. The arbitrator's
decision shall be binding on the parties, provided that no decision
of the arbitrator shall require City or grantee to be in violation
of any Federal or State law or regulation and subject to appeal provisions
of the Uniform Arbitration Act.[1]
[1]
Editor's Note: See § 435.350 et seq., RSMo.
[R.O. 2003 § 615.110; CC 1997 § 116.110]
A.
Request For Initial Franchise. Any person
desiring to establish or operate a system shall request in writing
a franchise for the system from the Board of Aldermen. Such request
shall include:
1.
Identification of applicant and ownership
information and qualifications and proof of authorization to do business
in Missouri;
2.
Financial resources and commitments;
3.
A detailed description of proposed
services, service area, public access, government access, programming
and rates;
4.
A detailed construction schedule
for serving the proposed service area;
5.
System design and technical standards,
including performance tests and maintenance procedures;
6.
Experience in cable operations;
7.
Projections of revenue and expenses
by specific source and use, anticipated capital expenditures, and
depreciation schedule and justification;
8.
A description of how the proposed
system will respond to local needs, how the system will contribute
to public and community service institutions, and how the system will
contribute to local economic development; and
9.
Acceptance of the provisions and
requirements of this Chapter.
B.
Franchise Procedure.
1.
If the Board of Aldermen determines
the request for a franchise meets the following minimum criteria,
it shall issue the franchise:
a.
The request is complete and includes
all necessary and required information;
b.
The financial resources and commitments
are sufficient to reasonably assure the proposed system will be constructed
and operated;
c.
The applicant is legally qualified
to own, construct and operate a system within the City;
d.
The needs and desires of the citizens
of the City will be met by the granting of the request;
e.
The franchise will not adversely
affect the public health, safety and welfare taking into account,
but not limited to, any burden, nuisance or other adverse effect such
franchise will have on the streets and public property of the City.
2.
Grantee shall accept the franchise
and franchise agreement in form and substance acceptable to the City.
Upon acceptance of the franchise and franchise agreement, grantee
shall be bound by all its terms and provisions.
3.
Grantee shall have continuing responsibility
for the franchise and franchise agreement, and if grantee be a subsidiary
or wholly-owned corporate entity of a parent corporation, performance
of the franchise and franchise agreement shall be secured by a guaranty
of the parent corporation in form and substance acceptable to the
City, which shall be delivered at time of, and as part of, acceptance
of the franchise.
4.
With its acceptance, grantee shall
deliver to the City true and correct copies of documents creating
grantee and evidencing its power and authority to accept the franchise.
Further, such documents shall describe officers authorized to execute
the franchise on behalf of grantee.
5.
With its acceptance, grantee shall
also pay all costs and expenses incurred by the City incidental with
the renewal or award of the franchise. The City shall provide an itemized
statement to grantee. Costs or expenses of the City not identified
at that time shall be paid promptly by grantee upon receipt of an
itemized statement from the City. It is the intent of the City and
grantee that the City be reimbursed for all costs and expenses incidental
with the granting of the franchise including any subsequent expenses
due to delays or litigation pertaining to the grant of the franchise.
6.
All letters of credit, insurance
contracts, bonds and guarantees required of grantee by the franchise
shall be delivered with the acceptance.
7.
Upon the delivery of the above-described
documents and within sixty (60) days of acceptance of the franchise,
the City and grantee shall execute the franchise agreement.
8.
Grantee's specific understandings,
agreements and commitments, offers, promises, representations and
inducements to the City shall be embodied in and incorporated into
the franchise agreement to be entered into between the City and grantee
based upon the authority granted pursuant to this Chapter. In the
event of conflict or discrepancies between any parts of the agreement
entered into between the City and grantee or this Chapter, those provisions
which provide the greatest benefit to the City, in the opinion of
the City, shall prevail; in the event the agreement is not entered
into and executed by both the City and grantee or for any other failure
to complete the acceptance as provided for in this Section, the proposed
franchise shall be void, and the City shall have no further obligations
to grantee and grantee shall have no claim in law or equity against
the City.
9.
The franchise may be modified or
amended by the mutual agreement of the City and grantee and any such
modification or amendment must be in writing in order to be binding
upon the parties and shall not be in conflict with any of the terms
hereof.
10.
The City, from time to time, reserves
the right to amend this Chapter. Grantee, by acceptance of the franchise,
consents to and agrees to be bound by any such amendment upon receipt
of notifications of such change.
[R.O. 2003 § 615.120; CC 1997 § 116.120]
This agreement shall repeal all existing
cable ordinances and any ordinances in conflict herewith.
