[Ord. No. 2453 §26, 12-15-1980]
The City Council shall have continuing regulatory jurisdiction
and primary supervision over the operation of any franchise granted
hereunder, including the establishment of subscriber rates. However,
it is recognized that the City Council may delegate authority to the
North Area Cable Television Authority (NACTA) for any regulation which
may be required in other parts of this Chapter.
[Ord. No. 2453 §27, 12-15-1980]
A.
Within
ninety (90) days after the effective date of the franchise agreement,
the grantee shall file with the FCC, the City, appropriate public
utilities and other governmental agencies, all the necessary papers,
applications, contracts and other documents necessary to permit the
construction and operation of the cable TV system, and shall thereafter
make diligent efforts to obtain the proper execution and delivery
of such documents.
B.
Within
thirty (30) months after the commencement of construction, the grantee
shall have completed initial construction and full activation of the
system.
[Ord. No. 2453 §28, 12-15-1980]
Upon completion of the initial construction of the system in accordance with Section 645.270 of this Chapter, the grantee shall make service available to all dwelling units within the City.
[Ord. No. 2453 §29, 12-15-1980]
A.
The
grantee shall construct, operate and maintain the system subject to
the supervision of all the authorities of the City, County, State
and public utilities who have jurisdiction in such matters, and in
strict compliance with all laws, ordinances and departmental rules
and regulations affecting the system.
B.
The
system, and all parts thereof, shall be subject to the right of periodic
inspection by the City, at the grantee's expense.
C.
No
construction, reconstruction or relocation of the system or any part
thereof, within the streets shall be commenced until written permits
have been obtained from the Director of Public Works or authorized
representative. In any permit so issued, such officials may impose
such conditions and regulations, as a condition of the granting of
the same, as are necessary for the proper restoration and protection
of such streets, for the protection of the public and for the continuity
of pedestrian and vehicular traffic.
D.
The
Council may, from time to time, issue such reasonable rules and regulations
concerning the construction, operation and maintenance of the system
as are consistent with the provisions of this Chapter and the franchise
agreement issued pursuant to this Chapter.
[Ord. No. 2453 §30, 12-15-1980]
A.
Initial Rates.
1.
The grantee shall establish initial rates that must be applied fairly
and uniformly to all subscribers in the City for its services in accordance
with the rates contained in the grantee's application for the franchise.
2.
Initial basic subscriber rates shall be effective until completion
of system construction and full activation of the cable system.
B.
Minimum Timing Of Requests. The grantee may request a rate
change at any time after completion of construction and full activation
of the system, provided that not more than one (1) request may be
made by the grantee in any twelve (12) month period.
C.
Between
September first (1st) and November thirtieth (30th) of the third (3rd),
sixth (6th), ninth (9th) and twelfth (12th) years after the effective
date of the granting of the franchise, the City shall determine whether
it will assume rate modification authority.
1.
If the City declines rate modification authority, then rates may
be changed by the grantee by filing with the City a schedule of rates
proposed and by notifying its subscribers in writing at least sixty
(60) days prior to implementation of the rate change.
D.
Grantee
shall not charge subscribers in excess of the lowest charge being
made to subscribers of grantee for similar service under any other
franchises held by grantee in St. Louis County.
[Ord. No. 2453 §31, 12-15-1980]
A.
Rates Subject To Review. The City shall have the authority if assumed under the provisions of Section 645.300, to review the following rates, fees and charges:
1.
Rates for the provision of basic service to subscribers, whether
residential or commercial.
2.
Rates for the connection, installation, and reinstatement (including
converters) of basic service, whether residential or commercial.
3.
Rates for installation, connection and reinstatement of basic service
where unusual circumstances exist, such as remote or inaccessible
subscriber locations or subscriber requested underground service drops.
B.
The
grantee may petition the City for a change in rates by filing, in
triplicate, a proposed rate schedule with the City Council, which
petition shall include the justification for the proposed schedule.
Said petition shall be filed at least ninety (90) days prior to the
requested implementation date of the rate change. One (1) copy of
the petition shall remain on file with the City Clerk and be open
for public inspection.
C.
Within
ninety (90) days of the filing of the petition for rate change, the
City shall hold an appropriate public hearing to consider the proposed
rate change, at which hearing all persons desiring to be heard including
the grantee, shall be heard on any matter, including but not limited
to, the performance of this franchise, the grantee's service, and
the proposed new rates.
D.
Upon notice of any public hearing as provided in Subsection (C), the grantee shall notify its subscribers of the time, place and subject matter of the public hearing by announcement on at least two (2) channels of its system between the hours of 7:00 P.M. and 9:00 P.M., for at least five (5) consecutive days prior to the hearing. In addition, notice of any public hearing shall be published in a newspaper of general circulation at least once, but may be published two (2) or more times, provided that one (1) publication occurs not less than seven (7) nor more than twenty-one (21) days before the public hearing.
E.
Within
ninety (90) days after said hearing, the City shall render a written
decision on the grantee's petition, either accepting, rejecting or
modifying rates or time of implementation and reciting the basis of
its decision. The City shall consider, along with any other information
it deems necessary or appropriate, the following factors in approving
or disapproving the petition:
1.
The ability of the grantee to render system services and to derive
a reasonable profit therefrom under the existing rate schedule and
under the proposed rate schedule;
2.
The revenue and profits derived from system services;
3.
The efficiency of the grantee;
4.
The quality of the service offered by the grantee;
5.
The fair value cost of the system less depreciation;
6.
A fair rate of return with respect to grantee's investment;
7.
The extent to which the grantee has adhered to the terms of this
agreement; and
8.
Fairness to City residents, subscribers and users.
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The City shall not consider any valuation based upon the franchise
and the items of value shall neither be amortized as an expense nor
shall a return be paid on them.
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F.
If the City fails to render a written decision either accepting, rejecting or modifying rate or time of implementation, within one hundred eight (180) days of the grantee's petition, pursuant to Subsection (B) above, the grantee shall thereafter be entitled to put its proposed new rates into effect.
G.
The
grantee's petition for a rate increase shall include, but not be limited
to, the following financial reports, which shall reflect the operations
of the system:
H.
The
grantee's accounting records applicable to the system shall be available
for inspection by the City at all reasonable times. The City shall
have access to records of financial transactions for the purpose of
verifying burden rates or other indirect costs prorated to the operation.
The documents listed above shall include sufficient detail and/or
footnotes as may be necessary to provide the City with information
needed to make accurate determinations as to the financial condition
of the system. All financial statements shall be certified as accurate
by a certified public accountant and an officer of grantee.
I.
Schedule Of Rates. A grantee shall maintain and file with
the City, a complete schedule of subscriber rates, including all fees
and charges for services not subject to approval by the City.
J.
Disconnections. There shall be no charge for disconnection
from the system. However, if a subscriber has failed to pay properly
due monthly fees or if a subscriber disconnects for seasonal periods,
the grantee may require, in addition to full payment of any delinquent
fees, a reasonable fee for reconnection.
K.
No Consideration Beyond Schedule. The grantee shall receive
no consideration whatsoever for or in connection with its provision
of service to its subscribers other than as set forth in this Section
or as filed with and/or approved by the Council.
L.
A minimum non-refundable filing fee for rate change of one thousand dollars ($1,000.00) shall accompany any application for a rate change and any additional costs in excess of the minimum fee above (to cover the costs of attorney's fees, rate consultant fees, financial auditing fees, court reporters, and all other costs associated with the rate proceedings outlined in Subsection (A) through (G) above) shall be paid upon conclusion of the rate hearing and prior to the rate decision. No charges levied in the foregoing paragraph shall be for the purpose of producing revenue, but shall be to recoup actual costs to the City.
[Ord. No. 2453 §32, 12-15-1980]
The grantee shall provide basic service to local government-occupied
buildings within the City at no cost to the City as specified in the
franchise agreement. This basic service shall be for the duration
of the franchise.
[Ord. No. 2453 §33, 12-15-1980]
If the grantee fails to provide any service requested by a subscriber,
the grantee shall, after being afforded a reasonable opportunity to
provide the service, not to exceed six (6) months, promptly refund
all deposits or advance charges paid for the service in question by
said subscriber. If any subscriber terminates any monthly service
during the first (1st) twelve (12) months of said service because
of failure of the grantee to render the service in accordance with
the standards set forth in this Chapter, a grantee shall upon order
of the Council refund to such subscriber an amount equal to the installation
charges paid by the subscriber multiplied by the fraction of the twelve
(12) month period for which the subscriber will not be receiving service.
In the event that said subscriber has made an advance payment, the
amount paid shall be refunded by the grantee. This provision does
not relieve the grantee of liability established in other provisions
in this Chapter.
[Ord. No. 2453 §34, 12-15-1980; Ord. No. 2702 §1, 1-7-1985; Ord.
No. 2714 §1, 3-18-1985]
The grantee of a franchise hereunder shall deduct from the monthly
rates charged to all Berkeley users of the cable television five percent
(5%) in lieu of payment of a five percent (5%) franchise tax until
this is changed by mutual agreement between the City and the franchise
holder. Such deduction shall commence with the March payments.
[Ord. No. 2453 §35, 12-15-1980]
A.
Sales taxes and any other fees or taxes, including copyright fees, which are collected from subscribers by the grantee 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 payments due the City under the provisions of Section 645.340 above shall be computed and due quarterly, based on the amount equal to five percent (5%) of the annual gross revenues taken in by the grantee for the preceding three (3) months.
B.
Each
quarterly franchise payment shall be due and payable no later than
thirty (30) days after the relevant computation date. Each payment
shall be accompanied by a statement showing the basis for the computation
and other relevant facts as may be required by the City.
C.
No
acceptance of any quarterly franchise payment 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.
D.
Should
the Council not be satisfied with the accuracy of any statement required
by this Section, they may require the officers and employees of the
grantee to appear before them and submit themselves and its books,
records and accounts to their examination. Should the Council ascertain
after the audit of the books, records and accounts of the grantee
that the gross receipts were greater than the amount stated, such
grantee, notwithstanding such statement theretofore filed, shall pay
to the City of Berkeley five percent (5%) of the gross receipts as
ascertained by the Council, and in addition, shall pay to the City
a penalty of two percent (2%) per month for each month or portion
of the month that the said five percent (5%) fee or any portion thereof
remains delinquent.
[Ord. No. 2453 §36, 12-15-1980]
A.
The
grantee shall not deny service, deny access or otherwise discriminate
against subscribers, channel users or general citizens on the basis
of race, color, religion, national origin or sex.
B.
The
grantee shall strictly adhere to the equal employment opportunity
requirements of all applicable Federal, State, County and City laws,
and all executive and administrative orders relating to non-discrimination.
The grantee shall make a positive effort to hire racial minorities,
women and other protected groups as subcontractors, if available and
qualified.
[Ord. No. 2453 §37, 12-15-1980]
A.
The
grantee shall maintain one (1) or more offices in the service area
which shall be open during all usual business hours, have a locally
listed telephone, and be operated so that complaints and requests
for repairs or adjustments may be received at any time. In addition,
the grantee shall maintain a convenient office in the service area
during normal business hours, for the receipt of sums due by its subscribers
and shall provide for regular billing of accounts.
B.
The
grantee shall render efficient service, make repairs promptly and
interrupt service only for good cause and for a period not to exceed
twenty-four (24) hours or one (1) working day. Such interruptions,
insofar as possible, shall be preceded by notice and shall occur during
periods of minimum use of the system.
[Ord. No. 2453 §38, 12-15-1980]
A.
The
grantee shall not engage in the business of selling, installing, or
repairing television receivers, beyond the cable connection, within
the City for the duration of this franchise. The Council shall authorize
the aforementioned activities only if there is no other means of providing
such services.
B.
The
franchise granted authorizes only the operation of a cable TV system
as provided for herein, and does not take the place of any other franchise,
license or permit which might be required of the grantee by law. Willful
failure by the grantee to comply with zoning, building, construction
or other applicable City ordinances shall constitute grounds for forfeiture
of this franchise.
[Ord. No. 2453 §39, 12-15-1980]
A.
All
transmission and distribution system poles, wires, and appurtenances
shall be located, erected and maintained so as not to endanger or
interfere with the lives of persons, or to interfere with new improvements
the City of Berkeley may deem proper to make; or to unnecessarily
hinder or obstruct the free use of the streets, alleys, bridges, or
other public property; and the removal of poles to avoid such interference
will be at the grantee's expense.
B.
In
case of disturbance of or encroachment on any street or other public
easement, the grantee shall comply with the relevant provisions of
State Statutes and applicable City ordinances and shall at its own
cost and expense and in a manner approved by the Council, replace
and restore such street or other public easement in as good a condition
as before the work.
C.
If
at any time during the period of the franchise, the City of Berkeley
shall elect to alter or change the grade of any street, upon reasonable
notice by the Council, the grantee shall promptly remove, relay, and
relocate its poles, wires, cable, underground conduits, manholes and
other fixtures at its own expense.
D.
All
installations of equipment shall be of permanent nature, durable,
and installed in accordance with good engineering practice, and of
sufficient height to comply with all existing regulations and ordinances
of the City of Berkeley and laws of the State of Missouri so as not
to interfere in any manner with the right of the public or individual
property owners, and shall not interfere with the travel and use of
public places by the public, and during the construction, repair or
removal thereof, shall not obstruct or impede traffic.
E.
In
the maintenance and operation of its television transmission and distribution
system in the streets and other public places, and in the course of
any new construction or addition to its facilities the grantee shall
proceed so as to cause the least possible inconvenience to the general
public. Any opening or obstruction in the streets or other public
places made by the grantee in the course of its operations shall be
guarded and protected at all times by the placement of adequate barriers,
fences, or boardings, the bounds of which, during periods of dusk
and darkness, shall be clearly designated by red warning lights. In
the event the grantee's distribution system should conflict with any
existing easement, the grantee shall modify and move its distribution
system at its own expense to avoid such conflict.
F.
The
grantee, upon the request of any person holding a building moving
permit issued by the City, shall temporarily raise or lower its wires
to permit the moving of buildings. The expense of such temporary removal,
raising or lowering of wires shall be paid by the permit holder, if
other than the City. The grantee shall have the authority to require
such payment in advance. The grantee shall be given not less than
forty-eight (48) hours' advance notice to arrange for such temporary
wire changes.
G.
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 construction of the system. In areas
where either telephone or electric utility facilities are installed
aerially at time of system construction, the grantee may install its
facilities aerially with the understanding that such time as the aforementioned
aerial facilities are required to be placed underground by the City,
the grantee shall likewise place its facilities underground. Any additional
cost to subscribers for such installation shall be approved by the
Council in accordance with provisions of this Chapter.
[Ord. No. 2453 §40, 12-15-1980]
A.
No
poles or other wire-holding structures shall be erected by the grantee
without prior approval of the Council with regard to location, heights,
type and other pertinent aspect. However, no location of any pole
or wire-holding structure of the grantee shall be a vested interest,
and such poles or structures shall be removed or modified by the grantee
at its own expense whenever the Council determines that the public
convenience shall be enhanced thereby.
B.
Where
poles or other wire-holding structures already existing for use in
serving the City, are available for use by the grantee, but it does
not make arrangements for such use, the Council may require the grantee
to use such poles and structures if it is determined that the public
convenience would be enhanced thereby and the terms of the uses available
to the grantee are just and reasonable.
C.
Where
the City or a public utility serving the City desires to make use
of the poles or other wire-holding structures of the grantee but agreement
therefore with the grantee can not be reached, the Council may require
the grantee to permit such use for such consideration and upon such
terms as the Council shall determine to be just and reasonable, if
the Council determines that the use would enhance the public convenience
and would not unduly interfere with the grantee's operations.
[Ord. No. 2453 §41, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
The grantee shall be required to provide continuous service
to all subscribers in return for payment of the established subscriber
rate. If the grantee over builds, rebuilds, modifies, sells the system,
or the Council revokes, fails to renew the franchise, elects to purchase
the system, or the franchise becomes void, the grantee is required
under this Chapter to operate the system under the same terms and
conditions of this Chapter and the Chapter awarding the franchise
until an orderly and lawful change of operation is effectuated. Under
no circumstances shall this period of operation exceed twelve (12)
months from the date of occurrence of any of the above-mentioned events.
In the event a grantee fails to operate the system for five (5) consecutive
days without prior approval of the City of Berkeley or the grantee
fails to continue operation on the occurrence of any of the above-mentioned
events given in this Section, the City of Berkeley or its agent shall
have the rights to operate the system until such time that a new operator
for the franchise is selected. If the City of Berkeley is required
to fulfill this obligation for the grantee, the grantee shall reimburse
the City of Berkeley for any costs or damages that result from the
grantee's failure to operate the system as required.
[Ord. No. 2453 §42, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
The Council may do all things which are necessary and convenient
under this Chapter and may determine any question of fact which may
arise during the existence of any franchise granted hereunder. The
City administration is hereby authorized and empowered to adjust,
settle or compromise any controversy or charge arising from the operations
of the grantee under this Chapter, either on behalf of the City, the
grantee, or any subscriber, in the best interest of the public. Either
the grantee or any member of the public who may be dissatisfied with
the decision of the City administration may appeal the matter to the
City of Berkeley for hearing and determination. The City of Berkeley
may accept, reject or modify the decision of the City administration,
and the City of Berkeley may adjust, settle or compromise any controversy
or cancel any charge arising from the operations of the grantee pursuant
to the provisions of this Chapter and franchise agreement.
[Ord. No. 2453 §43, 12-15-1980]
A.
The
grantee shall file with the NACTA:
1.
An "Annual Report of the Cable Television Systems", as prescribed
in FCC Regulations.
2.
An annual 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 system "as-built" maps filed with the City pursuant to Section 645.270 of this Chapter.
3.
The grantee's schedule of charges, contract or application form for
regular subscriber service, policy regarding the processing of subscriber
complaints, delinquent subscriber disconnect and reconnect procedures
and any other terms and conditions adopted as the grantee's policy
in connection with its subscribers shall be filed with the City and
conspicuously posted in the grantee's local office.
4.
All petitions, applications, and communications of all types submitted
by the grantee to the FCC and any other Federal or State regulatory
commission or agency having jurisdiction over any matter affecting
operation of the grantee's system shall be submitted simultaneously
to the City by delivery to the City Clerk who shall advise interested
City departments of such filing matter.
5.
The construction bond and letter of credit or certified copies thereof
and written evidence of payment of required premium.
6.
All policies of insurance or a certified copy thereof and written
notice of payment of required premium.
7.
An ownership report, indicating all persons who at any time during
the preceding year did control or benefit from an interest in the
franchise of one percent (1%) or more. It shall also include all creditors
secured by pledges of the plant or corporate assets and all unsecured
creditors in excess of fifty thousand dollars ($50,000.00) relating
to the franchise operations.
8.
All rules, regulations, terms and conditions which it has adopted
for the conduct of its business.
9.
One (1) copy of a report of the system's technical measurements.
B.
The
grantee shall at all times maintain:
1.
A record of all complaints received and interruptions or degradation
of service experienced for the preceding three (3) years.
2.
A full and complete set of plans, records and "as-built" maps showing
the exact location of all system equipment installed or in use in
the City, exclusive of subscriber service drops.
3.
When not otherwise prescribed herein, all matters required to be
filed with the City shall be filed with the City Clerk.
[Ord. No. 2453 §44, 12-15-1980]
A.
All financial reports prepared for the City by the grantee and all records maintained by the grantee shall conform to generally accepted accounting principles applied on a consistent and fair basis. Annual financial reports, as prescribed in Section 645.450 of this Chapter shall be certified by an independent certified public accountant.
B.
The
following account transactions between the grantee, the parent corporation
and third party contractors shall be fully disclosed to the City and
subject to the City's review and concurrence: All accounting assumptions
and treatment, including but not limited to rates of depreciation;
capitalization and expensing of costs; determinations of capital structure;
and amortization of indebtedness.
C.
Values
assigned to goodwill, the franchise or prospective profits shall not
be recognized by the City in the assets considered for the rate-make
base.
[Ord. No. 2453 §45, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
A.
No
later than sixty (60) days within the close of the grantee's fiscal
year, the grantee shall submit a written report to the City of Berkeley
which shall include:
1.
A summary of the previous year's activities in the development of
the system, including but not limited to, services begun or discontinued,
subscribers gained or lost;
2.
A financial statement, including a statement of income, a balance
sheet and a statement of sources and applications of funds, covering
all years since the beginning of this franchise;
3.
A current statement of cost of construction by component category;
4.
A projected income statement, balance sheet, statement of sources
and applications of funds and state of construction for the next two
(2) years;
5.
A reconciliation between previously projected estimates and actual
results;
6.
A list of offices and members of the Board of both the grantee and
the parent corporation;
7.
A list of all stockholders holding one percent (1%) or more of the
voting stock of either the grantee or the parent corporation.
B.
The
City of Berkeley shall specify the form and details of all reports.
If directed by the City of Berkeley, the annual report shall be presented
at a public hearing at which the grantee shall summarize the contents
of the report and members of the general public may comment thereon.
C.
The
grantee shall prepare and furnish to the NACTA, at times prescribed
by the franchising authority, such reports with respect to its operation,
affairs, transactions or property, as may be reasonably necessary
or appropriate to the performance of any of the functions of the City
in connection with this Chapter.
[Ord. No. 2453 §46, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
A.
On
or about the third (3rd), sixth (6th), ninth (9th) and twelfth (12th)
anniversaries of the effective date of the franchise agreement, the
City of Berkeley may schedule and hold a public meeting(s) with the
grantee to review and evaluate the performance by the grantee under
the franchise agreement, including future plans of operation, service
area structures, amendments to the Chapter and current judicial and
FCC rulings. In particular, the City of Berkeley may inquire whether
the grantee is supplying a level and variety of services equivalent
to those being generally offered by the industry at that time in comparable
market situations. The grantee shall make available to the NACTA if
requested by the City of Berkeley, such records and documents which
are relevant for the purposes of the franchise review.
B.
Upon
written notice given by the City of Berkeley or grantee, one to the
other, not less than six (6) months prior to the third (3rd), sixth
(6th), ninth (9th) and twelve (12th) anniversaries, respectively,
the terms and condition of the franchise agreement may be modified,
provided that both the City of Berkeley and the grantee are agreeable
to such modification. Modifications shall be directed toward effecting
alterations in the terms and conditions to reflect those technical
and economic changes which have occurred during the interim period.
[Ord. No. 2453 §47, 12-15-1980]
It shall be the policy of the Council to liberally amend the
franchise, upon application of the grantee, when necessary to enable
the grantee to take advantage of any developments in the field of
transmission of television or radio signals which will afford it an
opportunity more effectively, efficiently, or economically, to serve
its customers. This Section shall not be construed to require the
Council to make any amendment changing its policy.
[Ord. No. 2453 §48, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
A.
In
addition to all other rights and powers pertaining to the City by
virtue of any franchise or otherwise, the City reserves the right
to terminate and cancel any franchise and all rights and privileges
of the grantee thereunder in the event that the grantee:
1.
Violates any provision of this franchise, or any rule, order or determination
of the City made pursuant to this franchise, except where such violation
is without fault or through excusable neglect;
2.
Becomes insolvent, unable or unwilling to pay its debts, or is adjudged
a bankrupt;
3.
Attempts to dispose of any of the facilities or property of its cable
TV business to prevent the City from purchasing same, as provided
for herein;
4.
Attempts to evade any of the provisions of its franchise, or practices
any fraud or deceit upon the City or the grantee's subscribers within
the City; or
5.
Fails to pursue construction of the system within the time frame
contained in the relevant sections of the Chapter or as is contained
in the grantee's proposal; whichever is the lesser period of time.
B.
Such
termination and cancellation shall be by ordinance duly adopted after
not less than thirty (30) days' notice to the grantee and the NACTA
and shall in no way effect any of the City's rights under the franchise
or any provision of the law. In the event that such termination and
cancellation depends upon a finding of fact, such finding of fact
as made by the Council shall be conclusive. (Copy of such finding
of fact shall be provided to the City of Berkeley.) Provided however,
that before the franchise may be terminated and canceled under this
Section, the grantee shall be provided with an opportunity to show
cause before the Council why the franchise should not be terminated
or canceled.
C.
In
the event a franchise expires, is revoked, or otherwise terminated,
the City may order the removal of the system's facilities from the
City within a period of time as determined by the City or require
the original grantee to maintain and operate the system until a subsequent
grantee is selected.
D.
The
City of Berkeley may initiate action to recommend revocation of a
franchise granted by any member city, town or village. If such action
is initiated, the City of Berkeley shall follow the procedures established
in this Section for use by the individual Cities, etc. and shall provide
a written report to each member City of the City of Berkeley.
[Ord. No. 2453 §49, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
A.
The
grantee shall indemnify and hold harmless the NACTA and each individual
member City from any liability, claim, damage or cause of action which
may be sustained or asserted against said NACTA or member City as
the result, directly or indirectly or in any manner, of the performance
or failure of performance on the part of the grantee.
B.
The
grantee shall pay, and by its acceptance of the franchise the grantee
specifically agrees that it will pay, all damages and penalties which
the City may legally be required to pay as a result of granting this
franchise. These damages and penalties shall include, but not be limited
to, damages arising out of copyright infringements, operation or maintenance
of the cable television system authorized herein, whether or not any
act or omission complained of is authorized, allowed, or prohibited
by this franchise.
C.
The grantee shall pay, and by its acceptance of this franchise specifically agrees that it will pay, all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Subsection (B) above. These expenses shall include all out-of-pocket expenses, such as attorney fees, and shall also include the reasonable value of any services rendered by the City Attorney or his/her assistants or any employees of the City.
D.
The grantee shall provide and maintain in force for the duration of the franchise, liability insurance in companies and forms satisfactory to the City of Berkeley and the individual Cities, Towns, and Villages granting franchises. Said insurance shall specifically name the City of Berkeley and each member City as an insured party under said policies, and said insurance shall be carried in a firm or corporation duly licensed or permitted to do business in the State of Missouri. A verified copy of such insurance policy or polices shall be filed with the City of Berkeley and each member City, together with certificates of insurance showing that the policy or policies are in full force and effect, and that same shall not be altered, amended, or terminated without thirty (30) days' notice to the City of Berkeley and member Cities. The liability insurance carried by the grantee in regard to all damages mention in Subsection (B) above shall be in minimum amount:
1.
Five hundred thousand dollars ($500,000.00) for bodily injury or
death to any person, within the limit, however, of one million dollars
($1,000,000.00) for bodily injury or death resulting from any one
(1) accident.
2.
Three hundred thousand dollars ($300,000.00) property damage resulting
from any one (1) accident.
3.
Five hundred thousand dollars ($500,000.00) for all other types of
liability.
E.
Letter Of Credit.
1.
Within ten (10) days after the award of this franchise, the grantee
shall deposit with the City a letter of credit from a financial institution
in the amount of twenty thousand dollars ($20,000.00). The form and
content of such letter of credit shall be approved by the City Attorney.
The letter of credit shall be used to insure the faithful performance
by the grantee of all provisions of this franchise; and compliance
with all orders, permits and directions of any agency, commission,
board, department, division or office of the City having jurisdiction
over its acts or defaults under this franchise, and the payment by
the grantee of any claims, liens and taxes which arise by reason of
the construction, operation or maintenance of the system.
3.
If the grantee fails to pay to the City any compensation within the
time fixed herein; or, fails after ten (10) days' notice to pay to
the City any taxes due and unpaid; or fails to repay the City within
ten (10) days, any damages, costs or expenses which the City is compelled
to pay by reason of any act or default of the grantee in connection
with this franchise; or fails after three (3) days' notice of such
failure by the City to comply with any provision of this franchise
which the City reasonably determines can be remedied by demand on
the letter of credit, the City may immediately request payment of
the amount thereof, with interest and any penalties, from the letter
of credit. Upon such request for payment, the City shall notify the
grantee of the amount and date thereof.
4.
The rights reserved to the City with respect to the letter of credit
are in addition to all other rights of the City, whether reserved
by this franchise or authorized by law, and no action, proceeding
or exercise of a right with respect to such letter of credit shall
affect any other right the City may have.
5.
The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit
may not be canceled by the surety nor the intention not to renew by
stated by the surety until thirty (30) days after receipt by the City,
by registered mail, a written notice of such intention to cancel or
not to renew."
F.
Construction Bond.
1.
Within thirty (30) days after the award of this franchise, the grantee
shall obtain and maintain at its cost and expense, and file with the
City Clerk, a corporate surety bond in a company authorized to do
business in the State of Missouri and found acceptable by the City
Attorney, in the amount of two hundred thousand dollars ($200,000.00)
to guarantee the timely construction and full activation of the system.
The bond shall provide, but not be limited to, the following condition: There shall be recoverable by the City, jointly and severally from the principal and surety, as liquidated damages resulting from the failure of the grantee to satisfactorily complete and fully activate the system throughout the franchise area where the system will be initially available to all dwelling units pursuant to the terms and conditions of Article VII, Section 645.270 of this Chapter within thirty (30) months.
2.
Any extension to the prescribed time limit must be authorized by
the Council. Such extension shall be authorized only when the Council
finds that such extension is necessary and appropriate due to causes
beyond the control of the grantee.
4.
The rights reserved to the City with respect to the construction
bond are in addition to all other rights of the City, whether reserved
by this Chapter or authorized by law, and no action, proceeding or
exercise of a right with respect to such construction bond shall affect
any other rights the City may have.
5.
The construction bond shall contain the following endorsement:
"It is hereby understood and agreed that this bond may not be
canceled by the surety nor the intention not to renew be stated by
the surety until thirty (30) days after receipt by the City, by registered
mail, a written notice of such intent to cancel or not to renew."
G.
Penalties. For the violation of any of the following provisions
of this Chapter, penalties shall be chargeable to the letter of credit
as follows:
1.
For failure to complete system construction in accordance with Article VII, Section 645.270, unless the City Council specifically approves the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control, grantee shall pay two hundred dollars ($200.00) per day for each day, or part thereof, the deficiency continues.
2.
For failure to provide data, documents, reports, information or to
cooperate with the City during an application process or system review,
grantee shall pay fifty dollars ($50.00) per day each violation occurs
or continues.
3.
For failure to test, analyze and report on the performance of the
system following a request pursuant to this Chapter, grantee shall
pay to the City fifty dollars ($50.00) per day for each day, or part
thereof, that such non-compliance continues.
4.
Forty-five (45) days following adoption of a resolution of the Council
determining a failure of grantee to comply with construction, operational
or maintenance standards, grantee shall pay to the City one hundred
dollars ($100.00) per day for each day, or part thereof, that such
non-compliance continues.
H.
The
insurance policy and bond obtained by the grantee in compliance with
this Section must be approved by the franchising authority and such
insurance policy and bond, along with written evidence of payment
of the required premiums, shall be filed and maintained with the franchising
authority during the term of this franchise.
[Ord. No. 2453 §50, 12-15-1980; Ord. No. 2700 §1, 1-7-1985]
A.
In
the event the City voids the grantee's franchise, the City shall take
over and conduct the business of the franchise, whether in receivership,
reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration
of one hundred twenty (120) days, or unless:
1.
Within one hundred twenty (120) days after his/her election or appointment,
such receiver or trustee shall have fully complied with all provisions
of this Chapter and any franchise granted pursuant to this Chapter
and remedied all defaults thereunder; and
2.
Such receiver or trustee, within said one hundred twenty (120) days,
shall have executed an agreement, duly approved by the court having
jurisdiction in the matter, whereby such receiver or trustee assumes
and agrees to be bound by each provision of this Chapter.
B.
In
the case of a foreclosure or other judicial sale of the plant, property
and equipment of the grantee, or any part thereof, including or excluding
this franchise, the City Council or its designee may serve notice
of termination upon the grantee and the successful bidder at such
sale, in which event the franchise herein granted and all rights and
privileges of the grantee hereunder shall cease and terminate thirty
(30) days after service of such notice, unless:
C.
The
City of Berkeley may be designated by the individual member Cities
to carry out the provisions of this Section.
