[HISTORY: Adopted by the City Commission of the City of Kalamazoo 3-29-1999
by Ord. No. 1671. Amendments noted where applicable.]
This chapter shall be known and may be cited as "Kalamazoo Cable Communications
Regulatory Ordinance," and shall become a part of the ordinances of the City.
The following words and phrases used in this chapter are defined as
follows:
A cable communications consent agreement.
The fee payable in exchange for the rights granted pursuant to this
chapter and the agreement.
The Communications Act of 1934, Cable Communications Policy Act of
1984, the Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996 as they may be amended or succeeded.
The meaning set forth in the Cable Act and Federal Communication
Commission (FCC) regulations.
The meaning set forth in the Cable Act and FCC regulations for cable
television system.
A frequency band, which is capable of carrying either a video signal,
or a number of audio, digital or other nonvideo signals or some combination
of such signals.
As it relates to final decisions to be made regarding the granting,
transferring, forfeiting, or revoking of a consent agreement or as to the
purchasing or acquiring of a cable system or as to those acts or decisions
which federal law requires to be taken by the franchise authority, shall mean,
unless otherwise indicated, the Kalamazoo City Commission (Commission).
Calendar days unless otherwise specified.
The party granted a cable communications consent agreement by the
City, and shall include the lawful successor, transferee or assignee of such
grantee.
Any individual, partnership, association, organization, corporation,
or limited liability company or any lawful successor or transferee of such
an entity.
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, waterways, easements or other public right-of-way now
or hereafter existing in the City.
Any person residing in the City.
Any sale, exchange, barter or conveyance of any kind.
The State of Michigan.
Any person who or which elects to subscribe to, for any purpose,
a service provided by the grantee by means of or in connection with a cable
system.
The cable system constructed for use within the City, including without
limitation, the headend (and distribution lines to the headend) even if located
outside of the City, antenna, cables, wires, lines, towers, amplifiers, converters,
equipment or facilities located within the corporate limits of the City designed,
constructed or wired for the purpose of producing, receiving, amplifying and
distributing by coaxial cable, fiber optics, microwave or other means, audio,
radio, television and electronic signals to and from subscribers in the City,
and any other equipment or facilities located within the corporate limits
of the City intended for the use of the cable system.
A person utilizing channel or equipment and facilities for purpose
of producing and/or transmission of material, as contrasted with receipt thereof
in a subscriber capacity.
A.Â
Grant. Subject to the terms and conditions set forth
herein, the City may grant revocable and nonexclusive agreements to construct
and operate cable systems in, under, over, along, across or upon the streets
within the City of Kalamazoo for the purpose of providing cable services.
In exercising rights pursuant hereto, grantee shall not endanger or interfere
with the lives of persons, interfere with any installations of the City, any
public utility serving the City or any other person permitted to use the streets
nor unnecessarily hinder or obstruct the free use of the streets. The grant
of one agreement does not establish priority for use over the other present
or future permit or agreement holders or the City's own use of the streets.
The City shall at all times control the distribution of space in, over, under
or across all streets occupied by the cable services. All rights granted for
the construction and operation of the cable services shall be subject to the
continuing right of the City to require such reconstruction, relocation, change
or discontinuance, of the appliances used by the cable services in the streets
of the City, as shall in the opinion of the City be necessary in the public
interest.
B.Â
Noncable services. All rights granted herein to provide
cable service shall not be construed to include telephone or other noncable
services (other than internet services, if provided for in the agreement).
C.Â
Agreement binding. All provisions of this chapter as
amended, and any agreement granted hereto shall be binding upon the grantee,
its successors, lessees or assignees.
D.Â
Privileges must be specific. No privilege or exemption
shall be inferred from the granting of any agreement unless it is specifically
prescribed.
No cable system shall be allowed to occupy or use the public rights-of-way
of the City or be allowed to operate within the City without an agreement.
For the purpose of operating and maintaining a cable system in the City,
the grantee may erect, install, construct, repair, replace, reconstruct and
retain in, on, over, under, upon, across and along the streets of the City
its system facilities and other property and equipment as are necessary to
the operation of the cable system, provided that grantee complies with all
design, construction, safety, and performance provisions contained in this
chapter, the agreement, and other generally applicable local ordinances. The
grantee shall also obtain all required pole attachment agreements for use
of any utility poles or other utility facilities required in connection with
the provision of services. No reference herein, or in any agreement, to the
"streets" shall be deemed to be a guaranty by the City that its title to any
property is sufficient to permit its use for such purpose, and the grantee
shall, by its use of such terms, be deemed to gain only such rights to use
property in the City as the City may have the undisputed right and power to
give.
The term of the agreement shall commence upon execution of the agreement
by the City and the grantee and shall continue for a period specified in the
agreement, unless sooner terminated as provided herein. As it relates to public
rights-of-way and City-owned property, the grantee shall have no property
right upon the expiration of the agreement term.
An agreement granted pursuant to this chapter shall be nonexclusive
and shall not affect the right of the City to grant to any other person a
right to occupy or use the streets, or portions thereof, for the construction
and operation of a cable system within the City or the right of the City to
permit the use of the streets or public grounds of the City for any purpose
whatever. By accepting an agreement, the grantee thereby acknowledges the
City's right to make such grants and permit such uses. Additional agreements,
taken as a whole, shall be neither more favorable nor less burdensome than
agreements previously granted. No privilege or power of eminent domain is
bestowed on grantee by the grant of an agreement.
Nothing in this chapter or an agreement shall limit any right the City
may have to lawfully acquire by eminent domain or otherwise any property of
grantee.
Nothing in this chapter or an agreement shall prevent the City or any
governmental authority from performing or carrying on, directly or indirectly,
any public works or public improvements. Should the cable system in any way
interfere with the construction, maintenance or repair of such public works
or public improvements, the grantee shall, at its own cost and expense, protect
or relocate its cable system, or part thereof, as reasonably directed by the
City or any governmental authority (so long as other similarly-situated users
of rights-of-way are treated in a similar fashion).
If, in case of fire or other disaster, it becomes necessary in the reasonable
judgment of the City to cut or move any portion of the cable facilities, the
City shall have the right to do so at the sole cost and expense of grantee.
The City shall first endeavor to provide notice to grantee and request that
grantee, conduct the necessary work, if possible. The grantee shall bear all
costs of reinstallation, repair, and other costs resulting from or arising
out of the emergency cutting or removal of the cable system.
Upon termination of the agreement by passage of time or otherwise, and
unless grantee transfers the cable system to a subsequent grantee approved
by the City, grantee shall remove its supporting structures, poles, transmission
and distribution systems, and all other appurtenances from the public rights-of-way
and shall restore any property, public or private, to its original condition
prior to the installation, erection, or construction of the cable system.
Restoration of City property shall be in accordance with the directions and
specifications of the City and all applicable law. Said removal and restoration
shall be at the grantee's expense. If such removal and restoration is not
completed within 12 months after the notice by the City, delivered in writing
to grantee, all of the grantee's property remaining in the affected public
rights-of-way shall, at the option of the City, be deemed abandoned and shall,
at the option of the City, become the property of the City. In the event the
grantee fails or refuses to remove its system or satisfactorily restore all
areas, the City may perform such work and collect the cost thereof from the
grantee. No surety on any bond shall be discharged until the City has certified
to the grantee in writing that the system has been dismantled, removed, and
all other property restored to the satisfaction of the City. This section
(requiring removal or abandonment) shall not apply if grantee is lawfully
no longer a cable system operator and if: (i) the plant is in continuous use;
(ii) removal and abandonment is addressed by other laws, regulation or otherwise,
and (iii) the grantee has received all lawfully required local, state or federal
authority to so operate.
A.Â
Transfer of agreement. An agreement, in whole or in part,
shall not be assigned, transferred, leased, sold, or disposed of in any manner,
nor shall title to the cable system, legal or equitable, pass to or vest in
any other person without the prior written consent of the City.
B.Â
Transfer of ownership. The grantee shall not sell, transfer,
or dispose of 25% or more, at any one time, of the ownership or control of
grantee, or 40% or more cumulatively over the term of the agreement of such
interest to another person, or group of persons acting in concert, without
first obtaining the written consent of the City. Grantee need not, however,
obtain said consent from the City when the sale, transfer or disposition is
to a person which is then under common control with the grantee, provided
that prior to such sale, disposition or transfer the grantee provides to the
City verifiable information establishing that such other person has the financial,
legal, and technical ability to fully perform all obligations of the agreement.
C.Â
Transfer of control. No change, directly or indirectly,
in the control of the grantee or of any person holding a controlling interest
in grantee shall take place without the prior written consent of the City.
D.Â
City approval. For the purpose of determining whether
it shall consent to such transfer the City may inquire into the legal, financial,
and technical qualifications of the prospective transferee or controlling
party, as well as its ability to comply with the agreement and applicable
City ordinances. The grantee shall provide the City with all reasonably required
information, provided the City serves grantee with written notice of the required
information within 60 days of receiving grantee's request for transfer on
notice of change in control (unless a shorter time is established by federal
law, in which case said shorter time shall apply). The City reserves the right
to impose reasonable conditions on the transferee as a condition of the transfer
to ensure that the transferee is able to meet existing ordinances. Every transfer
of ownership or control shall make the agreement subject to cancellation unless
and until the City issues its written consent.
E.Â
No waiver of City property rights. The consent of the
City to a transfer of the grantee shall not constitute a waiver or release
of the rights of the City in and any property owned by the City or to public
rights-of-way, and any transfer shall, by its terms, be expressly subordinate
to the terms and conditions of this chapter and the agreement.
F.Â
Signatory requirement. Any approval by the City of transfer
of ownership or control shall be contingent upon the prospective party becoming
a signatory to the agreement.
G.Â
Notification of sale. In the event the grantee places
its system for public sale, grantee, or its designee, shall notify the City,
at the same time it notifies other prospective purchasers, of that fact. The
grantee shall also advise the City of the proposed terms and conditions of
such a sale, to the extent they have been made public, so long as the City
can commit to grantee that such information shall be kept as confidential
as grantee requires other prospective purchasers.
H.Â
Time frame for City review. The City shall act upon any
transfer request within a reasonable time, but in no event more than allowed
by federal law.
I.Â
Grantee for the purpose of Subsection C immediately above (regarding transfers of control), "grantee" shall be deemed to include not only the named grantee but also its subsidiaries, parents or affiliated companies, associations or organizations as well as all persons having any title or interest in the system.
Any financial institution having a pledge of an agreement granted pursuant
to this chapter or of the assets of a cable system for the advancement of
money for the construction and/or operation of the cable system may notify
the City that it will take control and operate the cable television system.
If the financial institution takes possession of the cable system the City
shall take no action to effect a termination of this agreement without first
giving to said institution written notice thereof and a period of six months
thereafter (unless otherwise provided herein below) to allow the financial
institution or its agent(s) to continue operating as the grantee under this
agreement and to request the City, and for the City to determine whether,
to consent to the assignment of the grantee's rights, title, interest and
obligations under this agreement to a qualified operator. The financial institution
shall be entitled to such possession and other rights granted under this paragraph
until such time that the City determines whether to consent to such assignment
(the "extended time"). If the City finds that such transfer, after considering
the factors set forth in the section above regarding transfer of ownership
or control, is acceptable to the City, the City will consent to the transfer
and assign the rights and obligations of such agreement. During the six month
period or extended time, the financial institution shall enjoy all the rights,
benefits and privileges of the grantee under this agreement, and the City
shall not disturb such possession by the financial institution, provided the
financial institution complies in all respects with the terms and provisions
of this agreement and the ordinance. The various rights granted to the financial
institution under this subsection are contingent upon the lender's continuous
compliance with the terms and provisions of this agreement and the ordinance
during the entire aforementioned six month period or extended time, if applicable.
In the event the grantee (a) forfeits or surrenders, or the City terminates
the agreement for cause, pursuant to provisions of this chapter and the agreement,
or (b) the agreement is lawfully not renewed at the normal expiration of the
agreement term, the City shall have the right, directly or as an intermediary,
to purchase the cable system or effect the ownership of the system to another
person. Any such acquisition or transfer shall be in full accordance with
the Federal Cable Act.
An agreement, once granted, shall be subject to renewal or nonrenewal
in accordance with applicable federal law.
A.Â
Fee. The grantee of any agreement hereunder shall pay
to the City an agreement fee in an amount as designated in the agreement,
which sum shall be 5% of the gross annual receipts, or in a greater amount
if allowed by federal law and approved by the City Commission. The obligation
to pay such fees shall commence as of the effective date of the agreement.
Once every 12 months, the City shall be furnished by the grantee a statement
of said payments certified by an officer of grantee, reflecting the total
amounts of annual gross revenues and the above charges and computations for
the period covered by the payment.
B.Â
Agreement fee in addition to other tax or payments. Payment
of the agreement fee made by grantee to the City shall not be considered in
the nature of a tax, but shall be in addition to any and all taxes which are
now or may be required hereafter to be paid by any federal, state, or local
law.
C.Â
Acceptance by the City. No acceptance of any payment
by the City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable as an
agreement fee under this chapter or for the performance of any other obligation
of the grantee.
D.Â
Failure to make required payment. In the event that any
agreement payment or recomputed amount is not paid on or before the date it
is due, grantee shall pay as additional compensation an interest charge, computed
from such due date, equal to the commercial prime interest rate of the City's
primary depository bank during the period that such unpaid amount is owed.
E.Â
Payments to be made quarterly. The agreement fee and
any other cost or damages assessed shall be payable quarterly to the City.
The grantee shall file a complete and accurate verified statement of all gross
revenue within the City during the period for which said quarterly payment
is made, and said payment shall be made to the City not later than 45 days
after the expiration of each calendar quarter. Quarterly computation dates
are the last day in the months of March, June, September and December.
F.Â
The City's right to inspection. The City shall have the
right to inspect the grantee's income records and the right to audit and to
recompute any amounts determined to be payable under this chapter. Audits
shall be at the expense of the grantee if such audit determines that the grantee
has underpaid the agreement fees by 5% or more. Any additional amount due
to the City as a result of the audit shall be paid within 30 days following
written notice to the grantee by the City which notice shall include a copy
of the audit report.
A.Â
Grounds for revocation. Subject to the limitations and
procedures set forth below, the City reserves the right to revoke any agreement
granted hereunder and rescind all rights and privileges associated with the
agreement in each of the following circumstances, each of which shall represent
a default and breach under the ordinance and the agreement:
(1)Â
The grantee shall be in default in the performance of
any of the material obligations under this chapter, the agreement, or under
such documents, contracts and other terms and provisions entered into by and
between the City and the grantee.
(2)Â
The grantee violates any orders or rulings of any regulatory
body having jurisdiction over the grantee relative to this chapter or the
agreement, unless grantee has initiated a timely challenge to such order or
ruling with an appropriate tribunal.
(3)Â
The grantee attempts to evade any of the provisions of
this chapter or the agreement or practices any fraud or deceit upon the City
or cable subscribers.
(4)Â
The grantee's initial or rebuild construction schedule
is delayed later than the schedule contained in the agreement or beyond any
extended date set by the City.
(5)Â
The grantee becomes insolvent or is adjudged bankrupt.
(6)Â
The grantee fails to restore service to substantially
all of the system after 96 consecutive hours of interrupted service, except
when approval of such interruption is obtained from the City.
(7)Â
The grantee materially misrepresents facts in the application
for or negotiation of the agreement or any extension or renewal thereof.
(8)Â
The grantee ceases to provide cable services over the
cable system for any reason within the control of the grantee.
B.Â
Effect of circumstances beyond control of grantee. The
grantee shall not be declared at fault or be subject to any sanction under
any provision of this chapter in any case, in which performance of any such
provision is prevented by reasons beyond the grantee's control (e.g. riots,
floods, acts of nature, strikes) so long as the grantee performs as soon thereafter
as reasonably possible.
C.Â
Effect of pending litigation. Pending litigation or any
appeal to any regulatory body or court having jurisdiction over the grantee
shall not excuse the grantee from the performance of its obligations under
this chapter or the agreement unless there is a court or regulatory body order
to the contrary.
D.Â
Procedure prior to revocation.
(1)Â
The City shall make written demand upon the grantee that
it cure its failure, refusal or neglect. If the failure, refusal or neglect
of the grantee continues for a period of 30 days after said demand, or longer
in cases where the City reasonably determines that compliance or correction
requires a longer cure period, the City may place a request for termination
of the agreement upon a City Commission meeting agenda. The City shall cause
to be served upon such grantee at least seven days prior to the date of such
Commission meeting, a written notice of this intent to request such termination.
Notice of the City's intent and the time and place of the meeting shall be
published by the City at least once, seven days before such meeting in a newspaper
of general circulation within the City.
(2)Â
At said meeting, the Commission shall receive testimony
or other evidence from any interested person, including the grantee, and shall
thereafter determine, in its discretion, whether any failure, refusal or neglect
by the grantee has occurred which warrants revocation of the agreement.
(3)Â
If the Commission determines such a failure, refusal
or neglect has occurred but that it was with just cause, as defined by the
City, the Commission may direct the grantee to comply within such time and
manner and upon such terms and conditions as the Commission deems reasonable.
(4)Â
If the Commission determines such failure, refusal, or
neglect by the grantee was without just cause, the Commission may, by resolution,
declare that the agreement of the grantee shall be terminated and bond forfeited
unless there be compliance by the grantee within a specified number of days,
not to exceed 60.
E.Â
Disposition of facilities. In the event an agreement
is revoked or otherwise terminated, the City may purchase the system under
the procedures set forth above or order the removal of the system facilities,
which removal shall be consistent with the removal requirements set forth
herein.
A.Â
On-going regulation. The City shall exercise appropriate
regulatory authority under the provisions of this chapter and applicable law.
The City Manager or his designee shall provide day-to-day administration and
enforcement of the provisions of this chapter and any agreement granted hereunder.
B.Â
Change in law or regulation. In the event that any actions
of the state or federal government or any agency thereof, or any court of
competent jurisdiction upon final adjudication, substantially reduces the
power or authority of the City under this chapter or the agreement, or if
in compliance with any local, state, or federal law or regulation, the grantee
finds conflict with the terms of this chapter the agreement, or any law or
regulation of the City, then as soon as possible following knowledge thereof,
the grantee shall notify the City of the reduction or the point of conflict.
The City may then notify the grantee that it wishes to negotiate those provisions
which are affected in any way by such reduction or conflict. Thereafter, the
grantee shall negotiate in good faith with the City in the development of
alternate provisions which shall fairly restore the City to the maximum level
of authority and power permitted by this chapter or the agreement. The City
shall have the right to modify any of the provisions to such reasonable extent
as may be necessary to carry out the full intent and purpose of this chapter
and the agreement subject to applicable state and federal law.
C.Â
Authority. The City reserves the right to exercise the
maximum plenary authority, as may at any time be lawfully permissible under
state or federal law, to regulate the cable system, the agreement and the
grantee. Should applicable legislative, judicial or regulatory authorities
at any time permit regulation not presently permitted to the City, the City
may, without the approval of the grantee, engage in any such additional regulation
as may then be permissible, whether or not contemplated by this chapter or
the agreement.
D.Â
Right of inspection of records. Subject to appropriate
protection of confidential material, the City shall have the right to inspect
all books, records, reports, maps, plans, financial statements, and other
like materials of the grantee which relate to the operation of this chapter,
the agreement and applicable law and regulation at any time during normal
business hours.
E.Â
Right of inspection of cable facilities and property.
At all reasonable times, and after reasonable notice, the City shall have
the right to inspect all cable facilities, and property situated within the
City (and, as it relates to headends or distribution lines, without the City)
and installation work performed in the public rights-of-way.
F.Â
Right to test. Unless prohibited by law or modified by
the agreement, and after providing grantee with reasonable notice, the City
may make such tests of grantee's cable system as are reasonably necessary
to ensure compliance with this chapter and the agreement. Such tests shall
be performed in such a fashion as to minimize disruption within grantee's
cable system.
G.Â
Expense reimbursement to City. The grantee shall reimburse
the City for all reasonable costs and expenses incurred by the City in connection
with the initial granting (but not renewing or transferring) of an agreement,
including, but not limited to, consultant fees, attorneys' fees, publication
fees, travel expenses and all other direct costs. Such payment shall be made
within 30 days after the City furnishes the grantee with a written, detailed
statement of such expenses.
A.Â
Performance bond. At the City's election and as specified
in the agreement, the grantee shall obtain and maintain during the entire
term of any agreement and any extensions and renewals thereof, at its cost
and expense, and file with the City, a construction bond and a performance
bond in amounts specified in the agreement to guarantee the faithful performance
of the grantee of its obligations. Such bonds must be issued by a surety licensed
to do business in the State of Michigan and be of a form and contain terms
and conditions as required by the agreement.
B.Â
Letter of credit. At the City's election and as specified
in the agreement, the grantee shall, in addition to or in place of said bonds,
obtain, maintain, and file with the City an irrevocable letter of credit from
a financial institution acceptable to the City and licensed to do business
in the State in an amount specified in the agreement, naming the City as beneficiary.
The conditions upon which the City may draw upon the letter of credit shall
be established in the agreement.
C.Â
Security fund. At the City's election and as specified
in the agreement, the grantee shall, in addition to or in place of said bonds
and letters of credit, deposit with the City, within 30 days after execution
of the agreement, the sum specified in the agreement, as further security
for the faithful performance by grantee of the provisions of the agreement
and compliance with all orders, permits, and directions of any agency of the
City and the payment of all claims, liens, fees, liquidated damages or taxes
to the City arising by reason of the construction, operation, maintenance,
or repair of grantee's cable system. The conditions upon which the City may
draw upon said fund shall be established in the agreement.
D.Â
Liability and insurance. Each agreement granted shall
require the grantee obtain and keep in effect reasonable policies of insurance,
the amounts of which shall be specified in the agreement. At the City's request,
grantee shall furnish copies of any of all policies which are in effect from
time to time.
E.Â
Indemnification. Each agreement granted shall require
that the grantee, at its sole cost and expense, fully indemnify, defend and
hold harmless the City, its agents, officials, and employees against any and
all lawsuits, claims, demands, liabilities, losses and expenses, including
court costs and reasonable attorney fees, which arise out of or through the
acts or omissions of grantee and its agents, officials or employees. Such
indemnification shall not extend to lawsuits, claims, demands, liabilities,
losses or expenses, including court costs and reasonable attorney fees, which
arise from the acts or omissions or gross negligence of the City or its agents,
officials or employees.
A.Â
Compliance with construction and technical standards.
Grantee shall construct, rebuild, install, operate and maintain its system
in a manner consistent with state, federal and local laws and ordinances,
(FCC) technical standards, and the agreement. Unless the agreement specifies
otherwise, the system shall be designed, constructed, operated and maintained
for 24 hours-a-day continuous operation.
B.Â
City approval of construction plans. Other than for repairs
or replacements, prior to the erection of any towers or poles or the placement
of conduits or the upgrade or rebuild of the cable system under this chapter,
to the extent any of the above acts occur within the public rights-of-way,
the grantee shall first submit to the City for approval a concise description
of the facilities proposed to be erected or installed, including engineering
drawings, if required, together with a map and plans indicating the proposed
location of all such facilities. No such work shall be commenced by any person
until said approval has been received from the City.
C.Â
Contractor qualifications. Any contractor proposed for
work of construction, installation, operation, maintenance, and repair of
system equipment must be properly licensed under laws of the state and City
ordinances, if any.
D.Â
Minimum interference. The grantee's system and associated
equipment erected by the grantee within the City shall be so located as to
cause minimum interference with the proper use of streets and to cause minimum
interference with the rights and reasonable convenience of property owners
who adjoin any of the said streets.
E.Â
City maps. The City does not guarantee the accuracy of
any maps showing the horizontal or vertical location of existing substructures.
In public rights-of-way, where necessary, the location shall be verified by
excavation.
F.Â
Quality of construction. Construction, installation,
operation, and maintenance of the cable system shall be performed in an orderly
and workmanlike manner, in accordance with then current technological standards
and the manufacturer's specifications. All cables and wires shall be installed,
where possible, parallel with electric and telephone lines. Multiple cable
configurations belonging to the grantee shall be arranged in parallel and
bundled with due respect for aesthetic and engineering considerations.
G.Â
Construction standards. The construction, installation,
operation, maintenance, and/or removal of the cable system shall meet all
applicable standards within the National Electrical Code, National Electrical
Safety Code, AT&T Manual of Construction Procedures (Blue Book), Bell
Telephone Systems Code of Pole Line Construction, all federal, state and municipal
construction requirements, including FCC Rules and Regulations and Utility
Construction Requirements. The system, once in place, does not have to be
improved to conform to standards which are thereafter created unless those
standards so require.
H.Â
Right to inspection of construction. The agreement shall
ensure that the City has the right to inspect all construction or installation
work performed subject to the agreement.
I.Â
System construction schedule. The agreement shall specify
the rebuild or the initial construction timetable.
J.Â
Extension of service. Unless the agreement states to
the contrary, the grantee shall provide service to all dwelling units and
commercial entities requesting service within the City and any areas annexed
to the City within six months of such request.
A.Â
Underground installation. In areas where either telephone
or electric utility facilities are aboveground at the time of installation,
grantee may install its service above ground, provided that at such time as
those other facilities are required to be placed underground by the City or
are placed underground, the grantee shall likewise place its services underground
(without additional cost to the City or to the individual subscribers so served
within the City). Where not otherwise required to be placed underground by
this chapter or the agreement, the grantee's system shall be located underground
at the request of the adjacent property owner, provided that the excess cost
over the aerial location shall be borne by the property owner making the request.
All cable passing under the roadway shall be installed in conduit.
B.Â
Pedestals. In any cases which pedestals housing mini-hubs,
switching or other equipment, are to be utilized, such equipment must be completely
buried beneath streets or sidewalks if similar facilities of both electric
and telephone utilities are or will concurrently be so buried. Any pedestals
or other equipment to be located in the public rights-of-way shall comply
with then-existing City and utility equipment installation requirements. No
pedestal or other equipment which will occupy more than six square feet of
the public right-of-way shall be so placed until the City so consents. All
such buried equipment shall be shown in plan and cross-section on the design
plans for permits. Notwithstanding the foregoing, none of the provisions of
this subsection shall apply to grantee unless such requirements are uniformly
and universally applied to all providers of any telecommunications or utility
services.
C.Â
Permits. Prior to construction or alteration, either
above or below ground, the grantee shall, to the extent required by law or
regulation, file plans with the appropriate City agencies, enter into use
agreements with the utility companies, obtain all construction permits and
receive written approval of the City before proceeding.
D.Â
Construction notice. Grantee shall give appropriate notice
to the City and affected residents within a reasonable period of time of planned
major system construction or excavation work, but in no event shall such notice
be given less than five days before such commencement.
E.Â
Restoration to prior condition. If the grantee's actions
result in any disturbance of pavement, sidewalk, driveway or soil, the grantee
shall, at its own expense and in a manner approved by the City, replace and
restore said surface in as good a condition as before said disturbance occurred.
Such restoration shall be undertaken and completed as soon as practicable.
F.Â
Private property. Grantee shall repair or replace all
private property, both real and personal, damaged or destroyed as a result
of the construction, installation, operating or maintenance of the cable system
at its sole cost and expense and as soon as practicable.
G.Â
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
City, temporarily raise or lower its wire to permit the moving of buildings.
The expense of such temporary removal, raising or lowering of wires shall
be paid by the person requesting the same, and the grantee shall have the
authority to require such payment in advance. The grantee shall be given not
less than 30 working days' advance notice to arrange for such temporary wire
changes.
H.Â
Tree trimming. Grantee may, at its own expense, trim
trees or other vegetation owned by the City (or which exist within the right-of-way)
to prevent branches, leaves or roots from touching or otherwise interfering
with its wires, cables, or other structures as approved by the City and consistent
with City ordinances; grantee shall remove any such trimmings within a reasonable
time.
I.Â
Easements. All necessary easements over and under private
property shall be obtained by the grantee.
J.Â
Construction and installation manual. Grantee shall provide
the City with a copy of grantee's manual which sets forth the specifications,
standards and procedures for construction and installation of its cable system.
Said manual shall, at a minimum, establish procedures to ensure quality work
and provide for the safety and protection of residents and property.
K.Â
Equipment changes. Unless the City agrees to the contrary
in writing, any substitution or changes in hardware components over the items
specified in the agreement must be of equivalent or better capability as that
originally specified.
L.Â
Encumbrance. Grantee shall not open, distribute or encumber,
at any one time, any more public rights-of-way than may reasonably be necessary
to enable grantee to economically install or repair its facilities; nor shall
grantee permit any public rights-of-way to remain open, disturbed or encumbered
for a longer period of time than is reasonably necessary.
M.Â
Vacation. If a public right-of-way is vacated, eliminated,
discontinued, or closed, all rights of grantee under this agreement to use
same shall terminate and grantee at its expense shall immediately remove the
telecommunications and/or cable system from such public right-of-way unless
grantee obtains any necessary easements from the affected property owners
to use the former public right-of-way.
N.Â
Disconnect and relocation. Grantee shall protect, support,
temporarily disconnect, relocate or remove its system facilities which exist
within the public rights-of-way if, in the reasonable judgment of the City,
it is necessary for the public safety or to facilitate street construction
or other public improvements. Such acts shall be at the grantee's sole cost
and expense so long as the same policy is imposed upon all other users of
the rights-of-way.
O.Â
Underground construction. Grantee shall comply with all
state, federal and local laws and ordinances regarding underground construction,
including that which relate to MISS DIG. If grantee damages any City water,
sewage or drainage lines, or any other City property, during the course of
construction, grantee shall be responsible for the cost of repair, which sums
may be recovered from bonds provided by the grantee for the benefit of the
City.
A.Â
Approval for conduit. No conduit shall be installed by
the grantee without prior approval of the City with regard to location and
any other pertinent aspect.
B.Â
Use of existing conduit. Where conduit already exists
for use and is available for use by the grantee, but grantee does not make
arrangements for such use, the City may require the grantee to use such conduit
if it determines that the public convenience would be enhanced thereby and
if a similar demand is made upon electric or telephone entities with similar
underground facilities, and if grantee is able to gain access under commercially
reasonable terms.
A.Â
Programming. Concurrently with the activation of the
cable system in the City, the grantee shall provide at all times the following
services to its subscribers:
(1)Â
A basic service tier.
(2)Â
Access channels for government, educational, and public
access, the number of which shall be specified in the agreement.
(3)Â
If grantee offers an electronic and/or printed channel
guide to subscribers and is capable of providing local program listings, and
listings of local access programs are provided by the City in a timely manner,
the grantee shall ensure that the City-provided listings are carried on a
daily basis. Additional costs of providing these services may be passed through
to subscribers.
(4)Â
Services, facilities and equipment for public, educational,
and government access, as specified in the agreement.
B.Â
Institutional network. The grantee shall provide a separate
institutional network, equipment, and/or services and capacity, in addition
to the residential subscriber network, as specified in the agreement.
A.Â
Subscription rights. It shall be the right of all subscribers
to receive continuous, uninterrupted service insofar as their financial contractual
and legal obligations to the grantee are honored.
B.Â
Failure to provide continuity. In the event the grantee
fails to operate the system for seven consecutive days without prior approval
of the City or without just cause, the City may, at its option, operate the
system or designate an operator until such time as grantee restores service
under conditions acceptable to the City or a permanent operator is selected.
If the City is required to fulfill this obligation for the grantee, the grantee
shall reimburse the City for all reasonable costs or damages in excess of
revenues from the system received by the City that are the result of the grantee's
failure to perform.
C.Â
Extended operation. In the event the agreement is terminated,
or upon its expiration, the Commission may require the grantee to continue
operation for a period not exceeding 12 months after the date of the grantee's
termination or expiration, grantee shall remove, at its own expense, its system
facilities from all public rights-of-way and shall maintain bonds until the
conclusion of all operations under that agreement and this chapter, including
said removal of facilities.
Grantee shall not illegally discriminate in providing service to the
public nor against any employee or applicant for employment because of race,
color, religion, sex, national origin or age.
A.Â
Invitation of any applications for an agreement, public
notice of request for proposals. The City may charge an application fee and
require applicant to pay all related costs and expenses for the initial agreement
process. The City may invite applications for a cable television agreement
by means of a public notice advertising the availability of its request for
proposals.
B.Â
Request for proposals. Prior to inviting any applications
for any cable television agreement, the City shall prepare a request for proposals
that shall contain at least the following:
(1)Â
A description of the cable television system and services
desired by the City including any system specifications established by the
City.
(2)Â
A statement specifying the form that all applications
shall follow.
(3)Â
A statement indicating the amount of the application
fee (if any) to be submitted with the application, and the manner in which
such fee is to be submitted.
(4)Â
A statement that all applications must contain the information
required by the request for proposal.
(5)Â
The closing date for the submission of applications.
(6)Â
The name, address, and telephone number of the City official(s)
who may be contacted for further information.
C.Â
Agreement application. Any applicant for an agreement
shall complete the City's request for proposal and provide the information
required therein.
D.Â
Requirement for public hearing on reasonable notice.
The City shall conduct a public hearing before granting an agreement. The
hearing shall be preceded by 14 days' notice to the agreement applicant, to
any existing grantee, and to the public, and shall be conducted in a fashion
to insure that all interested persons have an opportunity to speak. Every
person who has applied for an agreement shall appear at the hearing either
in person or by authorized representative. The application of any applicant
not so appearing shall not be further considered, except for good cause shown.
E.Â
City discretion. In accordance with this chapter and
other applicable law, the City, at its discretion, may reject or award any
application for an agreement.
A.Â
Assigns. All provisions of this chapter shall apply to
the grantee, its successors, and assigns, as such may be approved by the City
in accordance with this chapter.
B.Â
Resale. No person shall resell, without the written consent
of the grantee, any cable service, program, or signal transmitted by a grantee.
