[R.O. 2008 §630.010; CC 1988 §17-221; Ord. No. 6185 §2(1), 5-8-1978]
This Chapter shall be known and may be cited as the "Broadband
Telecommunications Franchise Enabling Ordinance".
[R.O. 2008 §630.020; CC 1988 §17-222; Ord. No. 6185 §2(2), 5-8-1978]
For the purpose of this Chapter, the following terms, phrases
and words and their derivatives shall have the meaning specified herein.
When not inconsistent with the context, words used in the present
tense include the future and words in the singular number include
words in the plural number.
Any communications service provided by a grantee over its
broadband telecommunications network for which a special charge is
made based on program or service content, time or spectrum space usage,
and shall include all service offered by the grantee that is not included
within the "basic service".
All revenues received by a grantee, its affiliates or subsidiaries
from and in connection with the operation of the broadband telecommunications
network in the City, as that term is currently interpreted by the
Federal Communications Commission. If or when the Federal Communications
Commission or a court of competent jurisdiction modifies the current
interpretation, this definition may also be altered to include or
exclude revenue from other sources as may be permitted by such modification.
All communications services provided by a grantee including
the delivery of broadcast signals and programming originated over
the network, covered by the regular monthly charge paid by all subscribers.
All of the component physical, operational and programming
elements of any network of cables, optical, electrical or electronic
equipment, including cable television, used for the purpose of transmission
of electrical impulses of television, radio and other intelligences,
either analog or digital for sale or use by the inhabitants of the
City.
This City, and such reorganized, consolidated, enlarged or
reincorporated form. Any act to be performed by the City shall be
deemed to be performed by the Council of the City unless otherwise
specifically designated or unless this Council shall specifically
designate other individuals or governmental agencies to perform such
acts.
Time and date when construction of the broadband telecommunications
network is considered to have commenced, which shall be when the preliminary
engineering (strand mapping) or network design is initiated, and after
all necessary permits and authorizations have been obtained and contracts
and documents entered into and the Federal Communications Commission
certification obtained for the construction and operation of the broadband
telecommunications network.
Time and date when operation of the broadband telecommunications
network is considered to have commenced, which shall be when sufficient
distribution facilities have been installed so as to permit the offering
of full network service to at least twenty-five percent (25%) of the
dwelling units located within the service area.
The City Council of this City or such other legally appointed
or elected successor or agency constituting the Governing Body of
the City.
Includes any legally appointed or elected successor.
Includes all charges imposed for a franchise.
All basic services and additional services offered by a grantee.
Any person receiving a franchise under this Chapter and under
the granting franchise ordinance, collectively hereinafter called
the "franchise", which franchise shall include those
rights, powers, privileges, duties, liabilities and obligations granted
to and imposed upon a grantee.
An individual, partnership, association, organization, corporation
or any lawful successor, transferee or assignee of such individual,
partnership, association, organization or corporation.
Written notice addressed to a grantee at its principal office
in this City or such other office as a grantee has designated to the
City as the address to which notice should be transmitted to it, and
the City shall be the City Clerk, which notice shall be certified
and postmarked not less than four (4) days prior to that day in which
the party giving such notice shall commence any action which requires
the giving of notice. In computing such four (4) days, Saturdays,
Sundays and holidays recognized by the City shall be excluded.
Written orders, not excessive or extreme as to costs or time
to comply, governed by sound thinking.
Includes any sale, exchange, barter or offer for sale.
The geographic area within the incorporated limits of the
City.
Each of the following which have been dedicated to the public
or hereafter dedicated to the public and maintained under public authority
and located within the City limits: streets, roadways, highways, avenues,
lanes, alleys, sidewalks, easements, rights-of-way and similar public
ways and extensions and additions thereto, together with such other
public property and areas that the City shall permit to be included
within the definition of street from time to time.
Any persons receiving either basic service or additional
service from a grantee under the schedule of charges filed with and/or
approved by the City.
Occurs when sufficient distribution facilities have been
installed by the grantee so as to permit the offering of full network
service to at least ninety percent (90%) of the dwelling units in
the service area.
[R.O. 2008 §630.030; CC 1988 §17-223; Ord. No. 6185 §2(3), 5-8-1978]
A.
Required. No person shall construct, install, maintain or
operate on or within any street, any equipment or facilities for the
distribution of television signals or radio signals or other intelligences,
either analog or digital over a broadband telecommunications network
to any subscriber unless a franchise authorizing the use of the streets
has first been obtained pursuant to the provisions of this Chapter
and thereafter only while such person is legally operating under the
terms and provisions of such franchise.
B.
Review Of Qualifications. Specific permission to operate
a broadband telecommunications network under the provision of this
Chapter may be granted by the Council pursuant to the terms and provisions
of this Chapter, and only after the grantee's legal, character, financial,
technical and other qualifications, including but not limited to,
adequacy and feasibility of its construction plans have been reviewed.
C.
Duration. Any franchise which is granted under this Chapter shall take effect as provided in Section 630.080 and shall continue in full force and effect for a term of fifteen (15) years subject, however, to the right of the City to terminate such franchise as provided in this Chapter.
D.
Reviews. On or about the fifth (5th) and tenth (10th) anniversaries
of the effective date of a franchise granted under this Chapter, the
City will schedule and hold a public meeting or meetings with the
grantee to review the performance by the grantee under the franchise
including future plans of operation and performance. The grantee shall
make available to the City, if requested by the City, such records,
documents and information which are relevant to such meeting and inquiry.
The City may implement those necessary amendments to the franchise,
if any, that result from such meeting providing that both the City
and the grantee are agreeable to such amendment.
E.
Review Of Prior To Expiration. Review of a franchisee's
performance prior to expiration of its franchise shall be conducted
as follows:
1.
Public meetings to be scheduled. At least six (6) months
prior to the expiration of a franchise, the City shall schedule and
hold a public meeting or meetings with the grantee to review and discuss
the performance of the grantee under the franchise including the results
following previous franchise reviews. The grantee shall make available,
if requested by the City, such records, information and documents
which are relevant to such meeting and inquiry.
2.
Determination on reissue. At least five (5) months prior
to the expiration of the franchise the City shall advise the grantee
whether or not the franchise reissuance shall be based solely upon
negotiations by and between the grantee and the City. The failure
to reissue such a franchise, however, shall not prohibit the grantee
from applying for a new franchise in competition with other applicants
for a franchise in the event the City decides to consider proposals
from new applicants for the franchise.
[R.O. 2008 §630.040; CC 1988 §17-224; Ord. No. 6185 §2(4), 5-8-1978]
A.
Non-Exclusive. Any franchise granted hereafter by the City
shall not be exclusive and the City reserves the right to grant a
similar franchise to any other person at any time.
B.
Amendable. Any franchise granted under this Chapter may
be amendable from time to time to allow the grantee to innovate and
implement new services and developments.
C.
Privileges Must Be Specified. No privilege or exemption
shall be inferred from the granting of any franchise unless it is
to require the granting of a franchise when, in the opinion of the
City, it would not be in the public interest to do so.
D.
Authority Granted. Any franchise granted under this Chapter
shall give to the grantee the right and privilege to construct, erect,
operate, modify and maintain in, upon, along, above, over and under
the streets, such towers, antennas, cables, electronic equipment,
and other network appurtenances necessary for the operation of a broadband
telecommunications network in the City; provided however, that the
exercise of such right and privilege shall not interfere with the
use of such streets by the City and such others as designated by the
City to use such streets, and the City may at any time demand the
removal of the foregoing as have been constructed by the grantee at
any time the City believes that such is interfering with the use of
the streets. The City makes no warranties whatsoever in the event
a court of competent jurisdiction or other legal authority determines
that the City does not have power to grant the use of such streets
for this purpose.
E.
Consent Prior To Transfer. Any franchise granted under
this Chapter shall be a privilege to be held for the benefit of the
public. Such franchise cannot in any event be sold, transferred, leased,
assigned or disposed of, including but not limited to, by forced or
voluntary sale, merger, consolidation, receivership or other means
without the prior consent of the City, and then only under such conditions
as the City may establish. Such consent as required by the City shall,
however, not be unreasonably withheld.
F.
Consent Prior To Change Of Control. Prior approval of the
City shall be required where ownership or control of a total of more
than ten percent (10%) of the right of control of the grantee is acquired,
disposed of or transferred by a person or group of persons acting
in concert. Transfer from a subsidiary to a parent corporation or
vice-versa shall not be considered as a change of control.
G.
Mortgage Or Pledge Of Network. Nothing in this Chapter
shall be deemed to prohibit the assignment of the franchise, mortgage
or pledge of the network or any part thereof for financing purposes
or otherwise. However, any such assignment, mortgage, pledge or lease
shall be subject to the rights of the City under this Chapter.
H.
Previous Rights Abandoned. The acceptance of a franchise
under this Chapter shall constitute an abandonment of any and all
other rights, privileges, powers, immunities, and authorities owned,
possessed, controlled or exercisable by a grantee or any successor
pertaining to the construction, operation or maintenance of a broadband
telecommunications network in the City.
I.
Pole And Conduit Use Agreements Required. Any franchise
granted under this Chapter shall not relieve the grantee of its obligation
to obtain necessary pole or conduit use agreements from such utilities
as the electric company and the telephone company whenever it is necessary
for the grantee to make use of said poles or conduits.
J.
No Right Of Property. Anything contained herein to the
contrary notwithstanding, the award of any franchise under this Chapter
shall not impart to the grantee any right of ownership of streets
or City-owned property.
K.
Binding. Any franchise granted hereunder shall be binding
upon the grantee, and all successors, lessees or assignees as may
be approved by the City.
L.
Compliance With Law, Rules And Regulations. A grantee,
at its expense, shall comply with all laws, orders and regulations
of Federal, State and municipal authorities and with any directive
of any public officers pursuant to law who shall legally impose any
regulation, order or duty upon the grantee with respect to the franchise.
[R.O. 2008 §630.050; CC 1988 §17-225; Ord. No. 6185 §2(5), 5-8-1978]
A.
Service Records Maintained. A grantee under this Chapter
shall, at all times, maintain a log of all complaints received and
interruptions or degradation of service experienced for a period of
three (3) years from the date of occurrence.
B.
Grantee Rules, Regulations. Providing such do not in any
way lessen or abrogate the obligations of a grantee under its franchise,
a grantee shall have authority to promulgate such rules, regulations,
terms and conditions as it deems necessary in order to operate the
franchise granted under this Chapter. Copies of all rules, regulations,
terms and conditions including subscriber agreements together with
any amendments, additions or deletions thereto shall be kept on file
with the City. In addition, a copy thereof shall be maintained for
public inspection during normal business hours at such grantee's office
in the City and no such rules, regulations, terms, conditions, or
amendments shall give notice of the office or officer of the City
to whom complaints shall be directed.
C.
Subscribers' Antennas. A grantee under this Chapter is
expressly prohibited from requiring the removal or from offering to
remove or to provide any inducements for removal of any potential
or existing subscribers' antennas, as a condition for provision of
service by the grantee.
D.
Sale Or Service Of TV Receivers. During the period of the
franchise, neither a grantee nor any of its affiliated, subsidiary
or parent organizations, officers or directors or stockholders holding
ten percent (10%) or more of outstanding stock of the grantee shall,
within the corporate limits of the City or within ten (10) miles in
any direction, directly or indirectly engage in the retail sale, renting
or repairing of radio or television receivers, nor require, encourage
or recommend to any subscriber to purchase, rent or lease radios or
televisions at any specific business renting, leasing or selling radios
or televisions or to utilize the services of any specific TV or radio
service business for the repair or maintenance of the subscriber's
receivers, either radio or TV, wheresoever located.
[R.O. 2008 §630.060; CC 1988 §17-226; Ord. No. 6185 §2(6), 5-8-1978]
A.
Grantee Agrees To City's Rights. The City, in granting
a franchise under this Chapter, reserves such rights and powers which
under applicable Federal, State or City law or regulations, the City
must reserve and maintain. A grantee agrees to comply with any action
or requirement of the City in the exercise of such rights and powers
which either have been or shall, subsequent to the grant of its franchise,
be enacted or established.
B.
City's Transfer Of Function. The City may designate and
transfer its obligations and duties under a franchise granted under
this Chapter to any elected official, officer, employee, department,
agent or board of the City and the grantee shall recognize the authority
of any such transferee.
[R.O. 2008 §630.070; CC 1988 §17-227; Ord. No. 6185 §2(7), 5-8-1978]
A.
Applications
for an original franchise grant under this Chapter shall be filed
with the City in accordance with the filing instructions promulgated
by the City and shall contain the following written information and
provisions:
1.
Proposal bond and filing fee. Provision of the proposal bond as required in Section 630.140(A) and payment of non-refundable filing fee to the City of one hundred dollars ($100.00), which sum shall be due and payable concurrently with the request for application information.
2.
Name and address of applicant. The name and business address
of the applicant, date of application and signature of applicant or
appropriate corporate officer(s).
3.
Description of proposed operation. A general description
of the applicant's proposed operation including, but not limited to:
Business hours; operating staff, maintenance procedures beyond those
required in this Chapter; management and marketing staff complement
and procedures; and, if available, the rules of operation for public
access.
4.
Signal carriage. A statement of the television and radio
services to be provided, including signals to be received via microwave,
satellite, off-the-air and locally originated.
5.
Special services. A statement setting forth a description
of the automated services proposed as well as a description of the
production facilities to be made available by the grantee for the
public, municipal, and educational channel.
6.
Programming assistance. A statement describing the hours
of availability, if any, that a studio, studio equipment and network
personnel will be made available to educational institutions and other
similar agencies for programming.
7.
Applicant organization. A statement detailing and setting
forth the names and addresses of all persons having a proprietary
or equitable interest in the franchise and in the event the applicant
is a corporation, the names and addresses of the officers, directors
and shareholders of such corporation together with the number of shares
held by each shareholder, both nominal and beneficial owning ten percent
(10%) or more of the outstanding shares of the corporation's outstanding
stock.
8.
Intracompany relationships. A statement describing all
intracompany relationships of the applicant, if any, including parent,
subsidiary or affiliated companies.
9.
Agreements and understandings. A statement setting forth
any agreements and understandings whether written or oral existing
between the applicant and any other person, firm, group or corporation
with respect to any franchise awarded hereunder and the conduct of
the operation thereof existing at the time of proposal submittal.
10.
Financial statements. Audited financial statements for
its two (2) latest fiscal years unless the applicant has not been
in existence for at least two (2) years. In such case, the applicant
shall furnish audited financial statements for such lesser periods
of time covering the period that the applicant has been in existence.
If the applicant is a partnership, audited financial statements shall
include copies of the "U.S. Partnership Return of Income" (IRS Form
1965) for its latest two (2) fiscal years or such lesser period of
time that such partnership has been in existence.
11.
Financial projection. A ten (10) year operations pro forma
financial statement which shall include estimated initial and continuing
plant investment, annual profit and loss statements detailing income
and expenses, annual balance sheets, and annual levels of subscriber
penetration. Costs anticipated for voluntary services or contributions
shall, if presented, be incorporated in the pro forma financial statements
as required in this Chapter, but shall be separately identified.
12.
Financial support. Suitable written evidence advising that
the required funds are available to applicant for construction and
operation of the system if it is awarded a franchise. If the planned
operation is to be internally financed, a corporate board resolution
or statement from a qualified officer of the applicant shall be supplied.
13.
Technical description. A technical description of the type
of network proposed by the applicant including, but not limited to,
network configuration (e.g., hub), network capacity, and two-way capability,
studio, studio equipment and planned hours of operation.
14.
Engineering statement. A statement from the applicant's
senior technical staff member or consultant advising that he/she has
reviewed the network description, construction standards and conditions
of street occupancy as set forth herein and in the Code of Ordinances
of the City, and that the applicant's planned network and operations
thereof will meet all the requirements set forth herein.
15.
Existing franchises. A listing of all existing franchises
awarded the applicant in the past five (5) years indicating when the
franchises were issued and when the systems were constructed in each
respective governmental unit together with the name, address and phone
number of a responsible governmental official knowledgeable of the
applicant.
16.
Convictions. A statement as to whether the applicant or
any of its officers or directors or holders of ten percent (10%) or
more of its voting stock has in the past ten (10) years been convicted
of any crime which in any way may relate to such applicant's ability
or competency to perform its obligations under this Chapter.
17.
Operating experience. A statement detailing the prior CATV
experience of the applicant including that of the applicant's officers,
management and staff to be associated with the proposed operation.
18.
Franchise renewal information. If an application is for renewal of a franchise, the proposal must include, in addition to the information required in Subsections (1) through (17) above:
a.
A
summary of the technical, financial and programming improvements in
the network since the granting of the original franchise or since
the present grantee assumed operational control of the network.
b.
A
statement and timetable that outlines all proposed changes, expansion
or unimprovements in the network as to services, programming or technical
specifications during the forthcoming five (5) year review period.
B.
The application for a franchise shall respond specifically, and in sequence, to Subsections (A)(1) through (18) of this Section and shall be bound separately from any additional information proffered by the applicant. Ten (10) copies of the application shall be supplied to the City. Supplementary, additional or other information that the applicant deems reasonable for consideration may be submitted at the same time as the application in the same number of copies. The City may, at its discretion, consider such additional information as part of the application.
C.
The City
reserves the right to require such supplementary, additional or other
information that the City deems necessary for its determinations.
[R.O. 2008 §630.080; CC 1988 §17-228; Ord. No. 6185 §2(8), 5-8-1978]
A.
Franchise Acceptance Procedures. Any franchise granted
under this Chapter by the City by ordinance together with the rights,
privileges and authority granted thereby shall take effect and be
in force at the earliest possible date provided by law after passage
by the City Council and approval of the Mayor; provided that, within
thirty (30) days after such date, the grantee shall:
1.
File
with the City an unconditional acceptance of the franchise grant.
2.
File a certificate of insurance as set forth in Section 630.130(E).
3.
File an initial performance bond in accordance with the provisions set forth in Section 630.140(B), unless such bond requirement has been waived by the City.
4.
Reimburse
the City for the costs of publication of such ordinance.
5.
Advise
the City in writing of the grantee's address for mail and official
notifications from the City.
6.
Reimburse
the City for its franchising expense in an amount as determined by
the City. Such amount, however, shall be reasonable and based on direct
costs incurred by the City.
B.
Failure To Comply. If the grantee fails to comply in full with Subsection (A) of this Section, it shall be conclusively considered that the grantee has abandoned its application and rights to such grant and award of the franchise, and any such rights that the grantee may have acquired under the ordinance shall immediately terminate, and the grantee shall have no right, privilege or authority whatsoever under this Chapter. The amount of the proposal bond or certified check in lieu thereof as required by Section 630.140(A), submitted with its application shall be forfeited in full to the City as liquidated damages. If the grantee has prepaid the franchise expense as contemplated in Subsection (A)(6) of this Section, such shall be refunded to the grantee.
C.
Grantee To Have No Recourse. The grantee shall have no
recourse whatsoever against the City for any loss, cost, expense or
damage arising out of any provision or requirement of this Chapter
and the franchise ordinance or its regulation.
D.
Acceptance Of Power And Authority Of City. The grantee,
by acceptance of any franchise awarded hereunder, acknowledges that
it has relied upon its own investigation and understanding of the
power and authority of the City to grant this franchise.
E.
Inducements Not Offered. The grantee, by acceptance of
any franchise awarded under this Chapter, acknowledges that it has
not been induced to accept the franchise on any understanding, promise
or other statement, whether verbal or written, by or on behalf of
the City concerning any term or condition of such franchise that is
not included in this Chapter or in the franchise ordinance.
F.
Grantee Accepts Terms Of Franchise. The grantee, by acceptance
of any franchise awarded under this Chapter, acknowledges that it
has thoroughly examined and is familiar with the terms and conditions
of this Chapter and the granting ordinance.
G.
Incorporation Of Application. The grantee, by acceptance
of any franchise awarded under this Chapter, acknowledges and agrees
that the matters contained in the grantee's application for franchise
or supplement thereto, except as may be inconsistent with the FCC
Rules and Regulations, law or ordinance, shall be incorporated into
the franchise ordinance as though set out verbatim and shall thereafter
be considered an integral part of such franchise ordinance in all
communications, correspondence, filing of applications with all appropriate
regulatory agencies, including the FCC.
[R.O. 2008 §630.090; CC 1988 §17-229; Ord. No. 6185 §2(9), 5-8-1978]
A.
Grounds For Revocation. The City reserves the right to
revoke any franchise granted hereunder and rescind all rights and
privileges associated with the franchise in the following circumstances,
each of which shall represent a default and breach under this Chapter
and the franchise grant:
1.
If the
grantee should default in the performance of any of its obligations
under this Chapter or under the franchise ordinance or under such
documents, contracts and other terms and provisions entered into by
and between the City and the grantee.
3.
If any court of competent jurisdiction, the FCC or any State regulatory body by rules, decision, or other action determines that any material provision of the franchise documents, including this Chapter, is invalid or unenforceable prior to the commencement of construction as set forth in Section 630.170(B).
4.
If the
grantee should violate an orders or rulings of any regulatory body
having jurisdiction over the grantee relative to this franchise.
5.
If the
grantee fails to receive necessary FCC certification.
6.
If the
grantee cease to provide services for any reason within its power
over the broadband telecommunications network.
7.
If the
grantee becomes insolvent, enters into receivership or liquidation,
files an application for bankruptcy or for composition of creditors,
is unable or unwilling to pay its debts as they mature or is in financial
difficulty of sufficient consequence so as to jeopardize the continued
operation of the network.
B.
Procedure Prior To Revocation. Except for Subsection (A)(3) of this Section, the City may not revoke the franchise grant until reasonable notice is given by the City to the grantee of grantee's default, and grantee shall thereafter have thirty (30) days to remedy and cure such default or to initiate such remedy or cure to the satisfaction of the City.
C.
Disposition Of Facilities. In the event a franchise expires, is revoked, or otherwise terminated the City may order the removal of the network facilities from the City within a period of time as determined by the City or require the original grantee to maintain and operate its network until a subsequent grantee is selected in accordance with Subsection (F) of this Section.
D.
Restoration Of Property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The City shall inspect and approve the condition of the public ways and public places, and cables, wires, attachments and poles after removal. The liability insurance and indemnity as provided under Section 630.130 herein and the performance bond provided under Section 630.140 herein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this Subsection and this Chapter.
E.
Restoration By City, Reimbursement Of Costs. In the event of a failure by the grantee to complete any work required by Subsection (C) of this Section and/or Subsection (D) of this Section, or any other work required by City law or ordinance within the time as may be established and to the satisfaction of the City, the City may cause such work to be done and the grantee shall reimburse the City the costs thereof within thirty (30) days after receipt of an itemized list of such costs or the City may recover such costs as provided in Section 630.140(B).
F.
Extended Operation. Upon either the expiration or revocation of a franchise, the City may require the grantee to continue to operate the network for an extended period of time not to exceed six (6) months from the date of such expiration or revocation under the same terms and provisions as existed under the franchise grant to give the City sufficient time to make arrangements for a new grantee and to attempt to prevent an interruption of service. During such extended operation the City shall not be entitled to any revenue from the network other than that permitted under the provisions of Section 630.120.
G.
Lesser Sanctions. Nothing shall prohibit the City in enforcing its rules and regulations to impose lesser sanctions or censures as set forth in Subsection (H) of this Section, for violations of provisions of the Chapter rather than revocation.
H.
Penalties. For violation of material provisions of this
Chapter, the following penalties shall be chargeable to the grantee:
1.
For
failure to file required plans or information, fifty dollars ($50.00)
per day;
2.
For
failure to comply with reasonable orders of the City, fifty dollars
($50.00) per day;
3.
For failure to complete construction or commence operations in accordance with the provisions of Section 630.170, fifty dollars ($50.00) per day;
4.
For
failure to provide service in accordance with the provisions of this
Chapter, five hundred dollars ($500.00) per day; and
5.
In the
event the grantee disagrees with the imposition of a penalty, an appeal
may be made to the City Council and, pending such appeal, no penalty
shall be assessed.
[R.O. 2008 §630.100; CC 1988 §17-230; Ord. No. 6185 §2(10), 5-8-1978]
A.
Continuing Regulatory Jurisdiction. The City shall have
continuing regulatory jurisdiction and primary supervision over the
operation of any franchise granted hereunder, including subscriber
rates. However, it is recognized that the daily routine, administrative
responsibilities and supervision of the franchise should be entrusted
to the Mayor.
B.
Regulatory Responsibilities Of The City. The City does
hereby designate the Mayor to exercise the City's continuing regulatory
and supervisory jurisdiction over the franchise and, in this regard,
the Mayor shall have the following responsibilities and duties and
such other responsibilities and duties that the City may assign and
delegate to him/her:
1.
Resolving
complaints, disputes or disagreements between subscribers and the
grantee after investigation, should the subscribers and the grantee
not first be able to resolve the complaint, dispute or disagreement.
The Mayor may delegate one (1) or more of his/her staff to resolve
such complaints, disputes and disagreements. The grantee or subscriber
may appeal any decision by the Mayor, his/her designee or designees
to the City Council. If any matter in dispute over which the City
shall have jurisdiction is duly submitted to a court of competent
jurisdiction or State or Federal agency having regulatory jurisdiction
over the grantee by any party to the dispute, within ten (10) days
after this dispute has been ruled upon by the City and notice of the
submission to such court has been duly given to the City, the City
shall not have jurisdiction in such dispute for as long as such matter
is pending before any such court or State or Federal agency.
2.
Reviewing and auditing all reports and filings submitted to the City as required hereunder and such other correspondence as may be submitted to the City concerning the operation of the broadband telecommunications network and reviewing the rules and regulations set by the grantee under the provisions of Section 630.050.
3.
Assuring
that all tariffs, rates and rules pertinent to the operation of the
broadband telecommunications network in the City are made available
for inspection by the public at reasonable hours.
4.
Conferring
and coordinating with the grantee on the interconnection of the City's
broadband telecommunications network with other similar networks.
[R.O. 2008 §630.110; CC 1988 §17-231; Ord. No. 6185 §2(11), 5-8-1978]
B.
Annual Facilities Report Required. The grantee shall file annually, with the City, a total facilities report setting forth the physical miles of plant constructed, rebuilt or in operation during the fiscal year. Such report shall also contain any revisions to the network "as built" maps filed with the City under the provisions of Section 630.240(I).
C.
Service Record Report Required. The grantee shall, if requested by the City, file annually with the City, a list of all complaints and network "down time" received or experienced during the year. For the purposes of this provisions, a certified copy of the complaint logbook, required under the provisions of Section 630.050(A), reflecting all such incidents will suffice.
D.
Certificate Of Performance. The grantee shall, if requested by the City, file with the City, not later than three (3) months after the network is substantially completed and within three (3) months after the end of each subsequent fiscal year, one (1) copy of a report on the network's technical measurements as set forth in Section 630.200.
E.
Correspondence. The grantee shall file with the City a
copy of each petition, application or communication transmitted by
the grantee to, or received by the grantee from any Federal, State
or other regulatory commissions or agencies having competent jurisdiction
to regulate the operations of the broadband telecommunications network
authorized hereunder.
F.
City's Access To Records. The City shall have the right
during the life of any franchise granted hereunder to have access
during all normal business hours and upon the giving of reasonable
notice, to the grantee's contracts, engineering plans, accounting,
financial data, and service records relating to the property and the
operations of the grantee in the City.
G.
Subscriber Agreement. A copy of any standard form contract
or agreement between the grantee and its subscribers shall be filed
with the City.
H.
Legal Proceedings. The grantee shall notify the City of
any actions, suits, proceedings or investigations at law or in equity
before or by a court, public board or body, pending or threatened
against or affecting the grantee wherein a decision, ruling or finding
would adversely affect the grantee's ability to construct or operate
the broadband telecommunications network contemplated hereunder.
[R.O. 2008 §630.120; CC 1988 §17-232; Ord. No. 6185 §2(12), 5-8-1978]
A.
Annual Franchise Payment. A grantee of a franchise under
this Chapter shall pay to the City an annual fee in an amount equal
to three percent (3%) of the annual gross subscriber revenues. Such
payment shall be in addition to any other payment owed to the City
by the grantee and shall not be construed as payment in lieu of personal
or real property taxes levied by State, County or local authorities.
B.
Method Of Computation. Sales taxes or any other taxes which are collected from subscribers by the grantee which are to be remitted by the grantee to a governmental agency shall be deducted from the gross subscriber revenue prior to the computation of the annual franchise payment. The payment due the City under the provisions of Subsection (A) of this Section shall be computed annually as of the end of the grantee's fiscal year for the preceding year and shall be paid not later than ninety (90) days after the end of the grantee's fiscal year at the office of the City Clerk during its regular business hours. The payment period shall commence as of the effective date of the franchise. In the event of a dispute, the City, if it so requests, shall be furnished a statement of such payment, by a certified public accountant, reflecting the, total amounts of annual gross subscriber revenues and the above charges, deductions and computations for the period covered by the payment.
C.
Amendment Of Percentages. The annual franchise payment
percentage designated in this Section may be amended no more than
once every calendar year by the City. Any such amendment shall be
consistent with increased costs for municipal regulation and supervision
and applicable rules of the FCC and other regulatory agencies.
D.
Rights Of Recomputations. No acceptance of any payment
by the City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable
as a franchise fee under this Chapter or for the performance of any
other obligation of the grantee.
[R.O. 2008 §630.130; CC 1988 §17-233; Ord. No. 6185 §2(13), 5-8-1978]
A.
Indemnification Of City In Franchise Operation. The grantee
shall indemnify the City and save the City harmless from and against
all claims, damages, losses, and expenses, including attorneys' fees
sustained by the City on account of any suit, judgment, execution,
claim or demand whatsoever arising out of, but not limited to, copyright
infringements and all other damages arising out of the installation,
operation or maintenance of the broadband telecommunications network
authorized herein. For the purposes of this provision, the term "City" shall include its employees, agents, personnel and
other persons authorized to work or perform services for the City.
B.
Reimbursement Of Costs. The grantee shall pay all expenses incurred by the City in defending itself with regard to any claims, damages, losses or expenses as set forth in Subsection (A) of this Section, except as such claims, damages, losses, or expenses may arise from the franchising process. Those expenses shall include, but not be limited to, all out of pocket expenses, such as consultations or attorneys' fees and shall also include the reasonable value of any service rendered by any officer or employee of the City.
C.
Public Liability Insurance. The grantee shall maintain
a general comprehensive liability insurance policy naming as an additional
insured the City, its officers, boards, commission, agents and employees,
in a company mutually acceptable by the grantee and the City, in a
form satisfactory to the City, protecting the City and all persons
against liability for loss or damage for personal injury, death or
property damage, occasioned by the operations of the grantee under
any franchise granted under this Chapter in the amount of:
1.
One
hundred thousand dollars ($100,000.00) for bodily injury or death
to any one (1) person, within the limit, however, of three hundred
thousand dollars ($300,000.00) for bodily injury or death resulting
from any one (1) accident.
2.
Two
hundred thousand dollars ($200,000.00) for property damage resulting
from any one (1) accident.
3.
Workmen's
Compensation insurance in such coverage as may be required by the
Workmen's Compensation insurance and safety laws of the State and
amendments thereto.
D.
Notice Of Cancellation Or Reduction Of Coverage. The insurance
policies referred to above shall contain an endorsement stating that
the policies are extended to cover the liability assumed by the grantee
under the terms of this Chapter and shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not
be canceled nor the amount of coverage thereof reduced until thirty
(30) days after receipt by the City by registered mail of written
notice of such intent to cancel or reduce the coverage."
E.
Evidence Of Insurance Filed With City. All policies of
insurance or certified copies thereof and written notice of payment
of required premiums shall be filed and maintained with the City during
the term of any franchise granted under this Chapter or any renewal
thereof.
F.
No Waiver Of Performance Bond. Neither the provisions of
this Chapter nor any insurance accepted by the City pursuant hereto,
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 under this Chapter or for
damages, either to the full amount of the bond or otherwise.
[R.O. 2008 §630.140; CC 1988 §17-234; Ord. No. 6185 §2(14), 5-8-1978]
A.
Proposal Bond. Each applicant for a franchise under this
Chapter if required by the City shall submit a proposal bond in a
form acceptable to the City or a certified check on a bank that is
a member of the Federal Deposit Insurance Corporation, payable to
the order of the City in an amount of one thousand dollars ($1,000.00).
B.
Performance Bond. The grantee shall maintain throughout
the period of network construction, a faithful performance bond in
favor of the City, with a surety approved by the City in the penal
sum total of ten thousand dollars ($10,000.00) conditioned upon the
faithful performance by the grantee of its obligations under this
Chapter and the franchise. When the network construction is substantially
completed as defined herein, the penal sum total of the performance
bond shall be reduced to five thousand dollars ($5,000.00) through
the remainder of the term of the franchise, or any renewal or extension
thereof and upon the further condition that if the grantee shall fail
to comply with any law, ordinance or regulation governing the franchise,
there shall be recoverable, jointly and severally from the principal
and surety of the bond, any damages or loss suffered by the City as
a result, including the full amount of any compensation, indemnification,
or cost of removal or abandonment of any property of the grantee,
plus a reasonable allowance for attorneys' fees and costs, up to the
full amount of the bond. The City, at its sole discretion, may at
any time subsequent to completion of construction, waive the requirement
of the grantee to maintain such bond. The bond shall contain the following
endorsement:
"It is hereby understood and agreed that this bond may not be
canceled nor the intention not to renew be stated until thirty (30)
days after receipt by the City by registered mail a written notice
of such intent to cancel or not to renew."
C.
Return Of Proposal Bond. Proposal bonds or certified checks received in lieu thereof from an applicant whose proposal is not accepted by the City shall be returned to the applicant as soon as the proposal is rejected. The proposal bond of a grantee shall be returned upon receipt by the City of the performance bond as set forth in Subsection (B) of this Section.
D.
Bond Evidence To Be Filed With City. The performance bond
or a certified copy thereof and written evidence of payment of the
required premium shall be filed and maintained with the City during
the term of any franchise granted under this Chapter, or any renewal
thereof.
[R.O. 2008 §630.150; CC 1988 §17-235; Ord. No. 6185 §2(16), 5-8-1978]
A.
Connection To Buildings. The grantee shall provide free of charge within the City one (1) connection and monthly service to said connection for the basic service offered by the grantee, as defined in Section 630.020, to each public school (elementary and secondary) each not-for-profit private or parochial school (elementary and secondary) and such municipal buildings as the City may designate.
B.
Extension Within Buildings. Any service granted pursuant to Subsection (A) of this Section may be extended by the persons receiving such service to as many areas within the building where the service is granted or adjacent buildings which are a part of the total complex receiving such service; provided however, that such extensions shall only be used within such complex for educational and government purposes exclusively. The person receiving such service shall pay all expenses for any such extension and shall complete such extension so as not to interfere with the operation of the broadband telecommunications network.
[R.O. 2008 §630.160; CC 1988 §17-236; Ord. No. 6185 §2(17), 5-8-1978]
A.
Conditions Of Required Extension. After the grantee has substantially completed the construction of distribution facilities, as defined in Section 630.020, it shall thereafter, at its expense extend its broadband telecommunications network where there are sufficient potential subscriber dwelling units per linear mile so as to provide full network services to all residents of:
[R.O. 2008 §630.170; CC 1988 §17-237; Ord. No. 6185 §2(18), 5-8-1978]
A.
Permits. Within ninety (90) days after the effective date of a franchise grant as contemplated in Section 630.080, the grantee shall file with the appropriate governmental authorities and with the necessary utility companies, all initial papers, applications, contracts and other documents necessary to permit the commencement of construction and operation of the broadband telecommunications network, and shall thereafter make diligent efforts to obtain the proper execution and delivery of such documents. The grantee shall report to the City every ninety (90) days of its progress in obtaining necessary permits, contracts and other necessary documents as contemplated above.
B.
Commencement Of Construction. Within ninety (90) days after
the effective date of FCC certification, providing all other necessary
permits and contracts have been obtained and entered into, the grantee
shall commence the construction of the broadband telecommunications
network and pursue such with reasonable diligence.
C.
Commencement Of Operation. Within twelve (12) months after
the commencement of construction, the grantee shall commence operation.
D.
Substantial Completion Of Construction. Within twenty-four
(24) months after the commencement of construction, the grantee shall
have substantially completed construction.
[R.O. 2008 §630.180; CC 1988 §17-238; Ord. No. 6185 §2(19), 5-8-1978]
A grantee under this Chapter shall install a cable network having
a minimum initial forward bandwidth in compliance with the technical
standards and rules of the Federal Communications Commission. If a
reverse or feedback circuit is routed through a subscriber's premises,
it shall be connected so as to permit subscriber notification and
deactivation.
[R.O. 2008 §630.190; CC 1988 §17-239; Ord. No. 6185 §2(20), 5-8-1978]
A.
Each
broadband telecommunications network shall be so designed, installed
and operated so as to meet the following general objectives:
1.
Capable
of continuous twenty-four (24) hour daily operation;
2.
Capable
of operating over an outdoor temperature range of minus twenty degrees
Fahrenheit (-20°F) to plus one hundred twenty degrees Fahrenheit
(+120°F) without catastrophic failure or irreversible performance
changes over variation in supply voltages from one hundred five (105)
to one hundred thirty (130) volts AC;
3.
Capable
of meeting all specifications as set forth herein over an outdoor
temperature range of zero degrees Fahrenheit (0°F) to plus one
hundred degrees Fahrenheit (+100°F) over variations in supply
voltages from one hundred five (105) to one hundred thirty (130) volts
AC;
4.
Operated
in such a manner as to avoid causing interference with reception of
off-the-air signals by non-subscribers to the network;
5.
Designed,
installed and operated so as to comply with all applicable technical
standards and regulations promulgated by the Federal Communications
Commission; and
6.
Designed,
installed and operated so as to assure the delivery to all subscribers
of standard color and monochrome signals on the FCC designated Class
I television channels without noticeable picture degradation or visible
evidence of color distortion or other forms of interference directly
attributable to the performance of the broadband telecommunications
network.
[R.O. 2008 §630.200; CC 1988 §17-240; Ord. No. 6185 §2(21), 5-8-1978]
A.
General Requirements. Test procedures used in verification
of the performance criteria set forth herein, if not as set forth
in paragraph 76.609, Subpart K of the FCC rules and regulations, shall
be in accordance with good engineering practice and shall be fully
deeded in an attachment to the annual certificate filed with the City.
B.
Additional Tests And Inspections. The City reserves the
right to require additional tests at specific terminal locations in
the event of particular problems in the network.
C.
Report Of Measurements Combined. To the extent that the
report of measurements as required above may be combined with any
reports of measurements required by the FCC or other regulatory agencies,
the City shall accept such combined reports, provided that all standards
and measurements herein or hereafter established by the City are satisfied.
[R.O. 2008 §630.210; CC 1988 §17-241; Ord. No. 6185 §2(22), 5-8-1978]
A.
Education, Governmental And Public Access Channel. The
grantee shall, when it is economically feasible, provide at least
one (1) dedicated, non-commercial access channel and associated production
equipment to be made available for use by the educational and governmental
agencies within the City and to the public.
B.
Emergency Alert Override. The grantee shall, when it is
economically feasible, incorporate into its facilities the capability
for an emergency override audio alert whereby a designee of the City,
in times of emergency, may introduce an audio message on all broadband
telecommunications network channels simultaneously.
[R.O. 2008 §630.220; CC 1988 §17-242; Ord. No. 6185 §2(23), 5-8-1978]
A.
Office And Phone For Service. A grantee under this Chapter
shall maintain an office in the City which shall be open during all
usual business hours, have a locally listed telephone and be so operated
that complaints and requests for repairs or adjustments may be received
at any time.
B.
Notification Of Service Procedures. The grantee shall provide
to each subscriber, at the time of connection to the network, and
at reasonable intervals thereafter, written notification of the procedures
for filing complaints with the City's designated regulatory agent
as herein established.
C.
Service Response Time. The grantee shall provide same day
service response, seven (7) days a week for all complaints and requests
for repairs or adjustments received prior to 2:00 P.M. each day. In
no event shall the response time for calls received subsequent to
2:00 P.M. exceed twenty-seven (27) hours.
D.
Service Interruptions And Notifications. The grantee whenever
it is necessary to interrupt service over the broadband telecommunications
network for the purpose of maintenance, alteration or repair shall
do so at such time as will cause the least amount of inconvenience
to its subscribers and unless such interruption is unforeseen and
immediately necessary, it shall give prior notice thereof to the affected
subscribers.
[R.O. 2008 §630.230; CC 1988 §17-243; Ord. No. 6185 §2(24), 5-8-1978]
A.
Compliance With Safety Codes. All construction practices
shall be in accordance with all applicable sections of the Occupational
Safety and Health Act of 1970 and any amendments thereto as well as
all State and local Codes, where applicable.
B.
Compliance With Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable Sections of Chapter 500 of this Code.
C.
Antennas And Towers. Antenna supporting structures (towers)
shall be designed for the proper loading zone as specified in Electronics
Industry Association's R.S.-22A Specifications.
D.
Compliance With Aviation Requirements. Antenna supporting
structures (tower) shall be painted, lighted, erected and maintained
in accordance with all applicable rules and regulations of the Federal
Aeronautical Agency and all other applicable State or local Codes
and regulations.
[R.O. 2008 §630.240; CC 1988 §17-244; Ord. No. 6185 §2(25), 5-8-1978]
A.
Approval Of Proposed Construction. A grantee shall notify the City at least ten (10) days prior to the intention of the grantee to commence any construction in any streets. The City shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction practices are in accordance with the applicable Section of Chapter 510 of the City and this Chapter.
B.
Changes Required By Public Improvements. A grantee shall,
at its expense, temporarily disconnect, relocate or remove from the
street or other public place any property of the grantee when required
by the City by reason of traffic conditions, public safety, street
vacation, street construction, installation of sewers, drains, water
pipes, City-owned signal lines, and tracts or any other type of structure
or improvement by public agencies.
C.
Use Of Existing Poles Or Conduits. The grantee shall request
permission from the City before being authorized to erect any new
poles or underground conduits, and the grantee shall make every reasonable
effort to utilize existing poles presently servicing the area.
D.
Facilities Not To Be Hazardous Or Interfere. All wires,
conduits, cables and other property and facilities of a grantee under
this Chapter shall be so located, constructed, installed in an orderly
and workmanlike manner, and maintained so as not to endanger or unnecessarily
interfere with the usual and customary trade, traffic and travel upon
the streets. The grantee shall keep and maintain all of its property
in good condition, order and repair.
E.
Method Of Installation. The facilities of the grantee shall
be installed underground in those areas of the City where existing
telephone and electric services are both underground at the time of
network construction. In areas where either telephone or electric
utility facilities are installed aerially at the time of network construction,
the grantee may install its facilities aerially with the understanding
that at such time as the existing aerial facilities are required to
be placed underground by the City, the grantee shall likewise place
its facilities underground.
F.
Protection Of Facilities. Nothing contained in this Section
shall relieve the City or any other person, company or corporation
from liability arising out of the failure to exercise reasonable care
to avoid damaging the grantee's facilities while performing any work
connected with grading, regrading or changing the line of any street
or public place, or with the construction or reconstruction of any
sewer or water system.
G.
Notice Of City Improvements. The City shall notify the
grantee at least ten (10) days prior to the intention of the City
to commence any construction in the streets that requires the relocation
of grantee's lines, wires or other network appurtenances so as not
to interfere with such construction.
H.
Request For Removal Or Change. The grantee shall, on the request of any person holding a building moving permit issued under the provisions of Section 510.030 of the City Code temporarily raise or lower its wires to permit the moving of said building. 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 five (5) days' advance notice of any move contemplated to arrange for temporary wire changes.
I.
Office And Records In City. The grantee shall, at all times,
make and keep at an office maintained by the grantee in the City,
full and complete plans and records showing the exact location of
all broadband telecommunications network equipment installed or in
use in the streets and other public places of the City. The grantee
shall, if requested by the City, file and maintain with the City a
set of network "as-built" maps, drawn to scale, showing all of the
broadband telecommunications network facilities installed in the City.
Subscriber service drop facilities need not be shown.
J.
Emergency Removal Of Plant. If, at any time, in case of
fire or disaster in the City it shall become necessary in the reasonable
judgment of the City to cut or move any of the wires, cables, amplifiers,
or other appurtenances to the network of a grantee under this Chapter,
such cutting or moving may be done and any repairs rendered necessary
thereby shall be made by the grantee, at its sole expense, provided
that such repairs are not necessitated by a negligent act of the City
in which case, costs for repairs shall be borne by the City.
K.
Alternate Routing Of Plant. If continued use of a street
is denied to a grantee under this Chapter by the City for any valid
reason, the grantee shall provide service to affected subscribers
over alternate routes within a reasonable period of time.
[R.O. 2008 §630.250; CC 1988 §17-245; Ord. No. 6185 §2(26), 5-8-1978]
Nothing in this Chapter shall be construed so as to prohibit
a grantee under this Chapter from interconnecting its network with
networks in other municipalities, Counties, or States.
[R.O. 2008 §630.260; CC 1988 §17-246; Ord. No. 6185 §2(27), 5-8-1978]
A.
Unauthorized Connection Prohibited. It shall be unlawful for any person without the expressed consent of a grantee under this Chapter to make any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise with or to any segment of a franchised broadband telecommunications network for any purpose whatsoever, except as provided in Section 630.150. Conviction of such offense shall be punishable in accordance with the provisions of Sections 560.300 and 560.305, RSMo.
B.
Removal Or Destruction Prohibited. It shall be unlawful
for any person to willfully interfere, tamper, remove, obstruct, or
damage any part, segment or content of a franchised broadband telecommunications
network for any purpose whatsoever.
[R.O. 2008 §630.270; CC 1988 §17-247; Ord. No. 6185 §2(28), 5-8-1978]
A.
Service To Be Equally Available. The grantee shall not,
as to rates, charges, service, rules, regulations or in any other
respect make or grant any preference or advantage to any person, nor
subject any person to any prejudice or disadvantage. This provision
shall not be deemed to prohibit promotional campaigns to stimulate
subscription to the network or other legitimate uses thereof; nor
shall it be deemed to prohibit the establishment of a graduated scale
of charges and classified rate schedules to which any customer coming
within such classifications shall be entitled.
B.
Fairness Of Accessibility. The entire network of the grantee
shall be operated in a manner consistent with the principle of fairness
and equal accessibility of its facilities, equipment, channels, studios
and other services to all citizens, businesses, public agencies or
other entities having a legitimate use for the network; and no one
shall be arbitrarily excluded from its use; allocation of use of such
facilities shall be made according to the rules or decisions of the
grantee and any regulatory agencies affecting the same.
[R.O. 2008 §630.280; CC 1988 §17-248; Ord. No. 6185 §2(29), 5-8-1978]
A.
Use Of Data From Subscriber. A grantee shall not, in addition to the requirement of Section 630.180, initiate or use any form, procedure or device for procuring information or data from subscriber's terminal by use of the network without prior valid authorization from each subscriber so affected.
B.
Subscriber Lists. A grantee shall not, without prior valid authorization from each subscriber so affected, provide any list designating subscribers' names or addresses to the City or any other party except as may be required in Section 630.110(H).
[R.O. 2008 §630.290; CC 1988 §17-249; Ord. No. 6185 §2(30), 5-8-1978]
This Chapter shall be construed at all times to conform to the
rules and regulations of the Federal Communications Commission. Any
franchise granted under this Chapter shall be granted only with the
grantee's understanding and agreement that its franchise is subject
to any such rules and regulations then in effect or promulgated thereafter
by the Federal Communications Commission.
[R.O. 2008 §630.300; CC 1988 §17-250; Ord. No. 6185 §2(31), 5-8-1978]
If any Section, Subsection, sentence, clause, phrase or word of this Chapter is for any reason held invalid by the Federal Communications Commission or unconstitutional by any court of competent jurisdiction, such Section, Subsection, sentence, clause, phrase or word shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity or the remaining portions hereof except as such Section, Subsection, sentence, clause, phrase or word may be deemed material by the City under the provisions of Section 630.090(A)(6).
