Missouri
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City of Clarkson Valley Missouri |
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The
following words, terms and phrases, when used in this Chapter, shall have the
meanings ascribed to them in this Section, except where the context clearly
indicates a different meaning:
ADDITIONAL
SERVICE: 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 services offered by a grantee that
are not included within the "basic service".
ADMINISTRATOR:
The City Administrator/Clerk or
Assistant Clerk of the City.
ANNUAL
GROSS REVENUE: 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 FCC. If or when the FCC 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.
BASIC
SERVICE: All communications
services provided by a grantee including the delivery of broadcast signals and
monthly charge paid by all subscribers.
BOARD
OR BOARD OF ALDERMEN: The Board
of Aldermen of the City or such other legally appointed or elected successor or
agency constituting the Governing Body of the City.
BROADBAND
TELECOMMUNICATIONS NETWORK (BTN): 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.
CABLE
MILE: A linear mile of
strand-bearing cable as measured on the street or easement from pole to pole or
pedestal to pedestal.
CITY:
The City of Clarkson Valley, a municipal corporation of the State of
Missouri, in its present incorporated form or in any later reorganized,
consolidated, enlarged or reincorporated form.
COMMENCE
CONSTRUCTION: That time and
date when construction of the BTN 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 FCC certification obtained for
the construction and operation of the broadband telecommunications network.
COMMENCE
OPERATION: That time and date
when operation of the BTN 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 percent (20%) of the
dwelling units located within the service area.
FCC:
The Federal Communications
Commission and any legally appointed or elected successor.
FRANCHISE:
The non-exclusive rights
granted pursuant to this Chapter to construct and operate a broadband
telecommunications network along the public ways within all or a specified area
under City jurisdiction. Any such authorizations, in whatever form granted,
shall not mean and include any license or permit required for the privilege of
transacting and carrying on a business within the City as required by other
ordinances and laws of this City.
FRANCHISE
PAYMENT: All charges imposed
for a franchise.
FULL
NETWORK SERVICE: All basic
services and additional services offered by a grantee.
GRANTEE:
Any person receiving a
franchise pursuant to this Chapter and under the granting franchise ordinance
and its lawful successor, transferee or assignee.
PENETRATION:
The result expressed in
percentage obtained by dividing the total number of subscribers receiving basic
service by the number of potential subscribers in the franchise area.
PUBLIC
SCHOOL: Any school at any
educational level operated within the City by any public, private or parochial
school system, but limited to elementary, junior high school and high school.
REASONABLE
NOTICE: Written notice
addressed to a grantee at its principal office or such other office as a grantee
has designated to the City as the address to which notice should be transmitted
to it, 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 said four (4) days,
Saturdays, Sundays and holidays recognized by the City shall be excluded.
REASONABLE
ORDER: Written orders not
excessive or extreme as to costs or time to comply, governed by sound thinking.
SALE:
Includes any sale, exchange, barter or offer for sale.
SERVICE
AREA: The complete geographic
area within the City limits as it exists upon the effective date of the
ordinance from which this Chapter is derived.
STREET:
Includes each of the following which have been dedicated to the public or
hereafter dedicated to the public and maintained under public authority or by
others 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, as well as any private street within the City open to the
public or dedicated for utility purposes.
SUBSCRIBER:
Any person receiving either basic service or additional service from a
grantee under the schedule of charges filed with and/or approved by the City.
SUBSTANTIALLY
COMPLETED: Shall occur when
sufficient distribution facilities have been installed by a grantee so as to
permit the offering of full network service to at least ninety percent (90%) of
the potential subscribers in the service area and at least ninety-five percent
(95%) of the dwellings in the existing platted and recorded subdivisions. A "potential
subscriber" is defined as any existing dwelling unit having cable
service available to it. (CC 1990
§6-1; Code 1977 §25.010(1))
This Chapter shall be amended where
necessary to conform to all amendments to Part 76 of the Rules and Regulations
of the Federal Communications Commission within twelve (12) months of the order
of such amendments. (CC 1990 §6-2;
Code 1977 §25.010(2))
It shall be unlawful for any person
without the expressed consent of the grantee to make any connection, extension
or division whether physically, acoustically, inductively, electronically or
otherwise with or to any segment of a franchised BTN for any purpose whatsoever,
except as provided in Section 620.200. (CC
1990 §6-3; Code 1977 §25.050(16)(a))
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 BTN to any subscriber unless a franchise and
permission 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. Permission
to use all private streets shall first be obtained.
(CC 1990 §6-26; Code 1977 §25.020(1))
A non-exclusive franchise and the
rights, privileges, obligations and authority thereby granted shall take effect
and be in force as provided herein within thirty (30) days from and after final
passage thereof and shall continue in full force and effect for a term of
fifteen (15) years from date of acceptance by a grantee subject, however, to the
right of the City to terminate such franchise as provided herein.
(CC 1990 §6-27; Code 1977 §25.020(2))
A.
Annual Franchise Payment.
A grantee of a franchise under this Article shall pay to the City an
annual fee based upon the annual gross revenues. Such payment shall be in
addition to any other payment, charge, permit fee or bond owed to the City by a
grantee and shall not be construed as payment in lieu of any taxes levied by the
City, State, County or local authorities. The exact fee to be paid by any
grantee shall be established by the Board when such franchise is granted.
B.
Amendment Of Percentages. The
annual franchise payment percentage designated by the Board 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. A grantee shall be
notified in writing at least thirty (30) days prior to any formal action on such
amendment. (CC 1990 §6-28; Code
1977 §25.020(3))
A.
Method Of Computation.
Sales taxes or any other taxes or fees including copyright fees which are
collected from subscribers by a 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 payment due the City under
the provisions of Section 620.060 shall be computed and due quarterly, based on
the grantee's fiscal year, with the last quarter payment being adjusted based on
the audit of the grantee's network operation 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 Treasurer 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
revenues and the above charges, deductions and computation for the period
covered by the payment.
B.
Acceptance By City.
No acceptance of any payment by the City shall be construed as a
release or as an accord and satisfaction of any claim the City may have for
further or additional sums payable as a franchise fee under this Article or for
the performance of any other obligation of the grantee.
C.
Failure To Make Required Payment. In
the event that any franchise payment or recomputed amount is not made on or
before the dates specified herein, the grantee shall pay as additional
consideration:
1.
An interest charge, computed from such due date, at the annual rate of
nine percent (9%) per annum; and
2.
An additional sum of money equal to two percent (2%) of the amount due in
order to defray those additional expenses and costs incurred by the City by
reason of delinquent payment. (CC
1990 §6-29; Code 1977 §25.020(4))
A.
Franchise Non-Exclusive.
Any franchise granted under this Article shall not be exclusive and
the City reserves the right to grant a similar franchise to any other person at
any time, even during the term of a then existing franchise.
B.
Authority Granted.
Any franchise granted under this Article shall give to the grantee
the right and privilege to construct, erect, operate, modify and maintain in,
upon, above, over and under the streets such towers, antennas, cables,
electronic equipment, and other network appurtenances necessary for the
operation of a BTN in the City, provided that permission has first been obtained
to use any private streets, and that the exercise of such rights and privileges
shall not interfere with the use of such streets by the City, or in the case of
private streets by the owners thereof, and such others as designated by the City
to use such streets.
C.
Rights, Privileges, Powers And
Immunities. Any franchise
granted hereunder shall be in lieu of any and all other rights, privileges,
powers and immunities, and authorities owned, possessed, controlled, or
exercisable by a grantee, or any successor to any interest of a grantee, of or
pertaining to the construction, operation or maintenance of any cable television
system in the City; and the acceptance of any franchise hereunder shall operate,
as between the grantee and the City, as an abandonment of any and all of such
rights, privileges, powers, immunities and authorities within the City to the
effect that, as between the grantee and the City, all construction, operation
and maintenance by any grantee of any cable television system in the City shall
be, and shall be deemed and construed in all instances and respects to be, under
and pursuant to such franchise and not under or pursuant to any other right,
privilege, power, immunity or authority whatsoever.
D.
Privileges Must Be Specified.
No privilege or exemption shall be granted to or conferred by any
franchise granted except those specifically prescribed herein.
E.
Privileges Subordinated.
Any privilege claimed under a franchise by the grantee in any street
or other public property shall be subordinate to any lawful occupancy of the
streets or other public property.
F.
Franchise Held In Personal Trust. Any
such franchise shall be a privilege to be held in personal trust by the original
grantee. It cannot, in any event,
be sold, transferred, leased, assigned or disposed of, in whole or in part,
either by force or involuntary sale or by voluntary sale, merger, consolidation
or otherwise without prior consent of the Board as provided herein.
G.
Franchise Binding.
Any franchise granted hereunder shall be binding upon the grantee and all
successors, lessees or assigns as may be approved by the City.
H.
Transfer Of City's Rights, Powers
Or Duties. Any right or power
in, or duty impressed upon, any officer, employee, department or board of City
shall be subject to transfer by the City to any other officer, employee,
department or board of the City.
I.
Obligations Of Grantee.
Any such franchise granted shall not relieve the grantee of any
obligations involved in obtaining pole or conduit space from any department of
the City, utility company, or from others maintaining utilities in streets.
(CC 1990 §6-30; Code 1977 §25.020(5))
The grantee awarded a franchise
under this Article shall execute a franchise agreement which shall set forth the
terms and provisions of the franchise. In
addition to those matters required to be included by virtue of this Chapter, the
franchise agreement shall contain such further conditions or provisions as may
be included in the grantee's proposal and/or negotiated between the City and
grantee, except that no conditions or provisions shall be such as to conflict
with any provisions of this Chapter or other law.
In case of such conflict or ambiguity between any terms or provisions of
the franchise and this Chapter, the words of this Chapter or other law shall
control. (CC 1990 §6-31; Code 1977
§25.020(6))
A.
No franchise granted pursuant to this Chapter shall become effective for
any purpose unless and until written acceptance thereof shall have been filed
with the Administrator, Clerk or Deputy Clerk duly executed by the proper
officers of the grantee. Written
acceptance, which shall be in the form and substance approved by the City
Attorney, must contain, in addition to any other matters included, the following
express representations by the grantee that:
1.
It has carefully read the terms and conditions of this Chapter and the
franchise agreement and accepts all of the terms and conditions imposed by this
Chapter and the franchise agreement and agrees to abide by the same;
2.
It further acknowledges by acceptance of the franchise that it has
carefully read the terms and conditions of this Chapter and expressly waives any
claims that any provisions thereof are unreasonable, arbitrary or void; and
3.
By accepting the franchise, it acknowledges that it has not been induced
to accept same by any promise, verbal or written, by or on behalf of the City or
by any third (3rd) person regarding any term or condition of this Chapter or the
franchise agreement not expressed therein.
The grantee further pledges that no promise or inducement, oral or
written, has been made to any City employee or official regarding receipt of the
BTN franchise.
B.
The written acceptance shall be filed by the grantee not later than 12:01
P.M. of the thirtieth (30th) day next following the granting of such franchise.
In default of the filing of such written acceptance as herein required,
the grantee shall be deemed to have rejected and repudiated the franchise.
Thereafter, the acceptance of the grantee shall not be received by the
Administrator, Clerk or Deputy Clerk. The
grantee shall have no rights, remedies or redress unless and until the Board, by
resolution, shall determine that such acceptance be received and then upon such
terms and conditions as the Board may impose.
C.
In addition to the written acceptance and within the same thirty (30) day
period, the grantee shall:
1.
File a certificate of insurance as provided herein;
2.
File a performance bond as provided herein unless such bond requirement
has been waived by the Board; and
3.
Advise the City in writing of the grantee's address for mail and official
notifications from the City. (CC
1990 §6-32; Code 1977 §25.020(7))
A.
On or about the second (2nd), fifth (5th) and tenth (10th) anniversaries
of the effective date of the franchise grant, the City may 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. In particular, the
City may inquire whether the grantee is supplying a level and variety of
services equivalent to those being generally offered at that time in the
industry in comparable market situations. 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.
B.
Upon written notice given by the City or grantee, one to the other, not
less than one hundred eighty (180) days prior to the second (2nd), fifth (5th)
and tenth (10th) anniversaries, respectively, the terms and conditions of the
franchise agreement may be modified, provided that no modification shall be
effective if it shall materially prejudice the grantee without prior consent of
both parties. (CC 1990 §6-33; Code
1977 §25.020(8))
A.
Public Meetings To Be Scheduled.
At least one hundred eighty (180) days prior to the expiration of a
franchise, the City, upon the written request of grantee, 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. In
particular, the City may inquire whether the grantee is supplying a level and
variety of services equivalent to those being generally offered at that time in
the industry in comparable market situations.
The grantee shall make available, if requested by the City, such records,
information and documents which are relevant to such meeting and inquiry. Any interested person shall have the opportunity to be heard
regarding whether or not the grantee did reasonably comply with the terms and
conditions imposed by this Chapter and the franchise agreement.
B.
Determination On Reissue.
Irrespective of the type and quality of the performance of the
grantee, the City is under no obligation whatsoever to reissue a franchise to
the grantee. At least one hundred
eighty (180) days prior to the expiration of the franchise, however, the City
shall, upon the written request of grantee, 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 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 a franchise. (CC
1990 §6-34; Code 1977 §25.020(9))
A.
Any franchise granted under this Article 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. For the purpose of this
provision, assignment or transfer from a parent to a subsidiary or from a
limited partnership to a general partner or vice-versa shall not be deemed to
require prior consent by the City.
B.
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. However, any such
assignment, mortgage, pledge or lease shall be subject to the rights of the City
under this Chapter. (CC 1990 §6-35;
Code 1977 §25.020(10))
This non-exclusive franchise relates
to the City limits as presently defined and to any area henceforth added thereto
during the term of this non-exclusive franchise.
(CC 1990 §6-36; Code 1977 §25.020(11))
After the grantee has substantially
completed the construction of distribution facilities, it shall continue to
extend its BTN so as to provide service to all parts of the franchise territory
having a density of at least forty (40) potential subscribers per aerial or
underground cable mile. (CC 1990 §6-37; Code 1977 §25.020(12))
A.
After the grantee has established service pursuant to this Chapter in the
franchise area, such service shall not be suspended or abandoned in the whole of
or any part of the franchise area unless the suspension or abandonment is
authorized by the Board.
B.
Whenever the grantee shall file with the Board a written application
alleging that the public interest, convenience and necessity no longer require
that the grantee furnish service pursuant to this Chapter in the whole of or in
any part of the franchise area, the Board, at a public hearing, shall take
evidence upon that question and shall make a finding with respect to it.
If the Board shall find that the public interest, convenience and
necessity no longer require that the grantee furnish service, the Board, after
hearing as provided herein, shall authorize suspension or abandonment of service
upon such reasonable terms and conditions as may be prescribed by the Board.
(CC 1990 §6-38; Code 1977 §25.020(13))
A.
Grounds For Revocation.
The City reserves the right to revoke any franchise granted under
this Article 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 material
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.
2.
If the grantee should fail to provide or maintain in full force and
effect the liability and indemnification coverages or the performance bond as
required herein.
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 620.270(C).
4.
If the grantee should frequently violate any orders or rulings of any
regulatory body having jurisdiction over the grantee relative to this franchise
unless such orders or rulings are being contested by the grantee in a court of
competent jurisdiction.
5.
If the grantee fails to receive necessary FCC approval.
6.
If the grantee ceases to provide services for any reason within the
control of the grantee over the BTN. The
grantee shall not be declared at fault or subject to any sanction under any
provision of this Chapter in any case in which performance of any such provision
is prevented for reasons beyond the grantee's control.
A fault shall not be deemed to be beyond the grantee's control if
committed by a corporation or other business entity in which the grantee holds a
controlling interest, whether held directly or indirectly.
7.
If the grantee attempts to evade any of the provisions of this Chapter or
the franchise agreement or practices any fraud or deceit upon the City.
B.
Procedure Prior To Revocation.
Before revocation of a franchise granted under this Article:
1.
The City may make written demand that the grantee do so comply with any
such requirement, limitation, term, condition, rule or regulation.
If the failure, refusal or neglect of the grantee continues for a period
of thirty (30) days following such written demand, the City may place its
request for termination of the franchise upon a regular Board meeting agenda. The City shall cause to be served upon the grantee, at least
ten (10) days prior to the date of such Board meeting, a written notice of this
intent to request such termination and the time and place of the meeting.
2.
The Board may hear any persons interested therein and shall determine, in
its discretion, whether or not any failure, refusal or neglect by the grantee
was with just cause.
3.
If such failure, refusal or neglect by the grantee was with just cause,
the Board shall direct the grantee to comply within such time and manner and
upon such terms and conditions as are reasonable.
4.
If the Board shall determine such failure, refusal or neglect by the
grantee was without just cause, the Board may, by resolution, declare that the
franchise of such grantee shall be terminated and bond forfeited unless there be
compliance by the grantee within such period as the Board may fix.
C.
Disposition Of Facilities.
In the event a franchise expires, is revoked or otherwise terminated, the
City may order the removal, at the grantee's sole expense, of the network
facilities from the City within a reasonable 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.
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 and private property 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, indemnity and insurance as provided herein and the
performance bond provided therein 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 paragraph 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) above
and/or Subsection (D) above, 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 cost thereof within thirty (30) days after receipt of an itemized list of
such costs or the City may recover such costs through the performance bond
provided by the grantee. The City shall be permitted to seek legal and equitable
relief to enforce the provisions of this Section.
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 ninety (90) days from the date of such expiration or
revocation. The grantee shall, as
trustee for its successor in interest, continue to operate the BTN under the
terms and conditions of this Chapter and the franchise and to provide the
regular subscriber service and any and all of the services that may be provided
at that time. The City shall be
permitted to seek legal and equitable relief to enforce the provisions of this
Section.
G.
City's Rights Not Affected.
The termination and forfeiture of any franchise shall in no way
affect any of the rights of the City under the franchise or any provision of
law. (CC 1990 §6-39; Code 1977 §25.050(11))
A.
The grantee shall not be excused from complying with any of the terms and
conditions of this Chapter or the franchise agreement by any failure of the City
upon any one (1) or more occasions to insist upon the grantee's performance or
to seek the grantee's compliance with any one (1) or more of such terms and
conditions.
B.
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 or the franchise agreement and, upon acceptance of a franchise
granted pursuant to this Chapter, forever and completely release the City from
any and all liability whatsoever arising out of or related to such franchise.
(CC 1990 §6-40; Code 1977 §25.050(13))
The broadband telecommunications
network permitted to be installed in the City under this Chapter shall:
1.
Be operationally capable of relaying to subscriber terminals those
television and radio broadcast signals for the carriage of which the grantee is
now or hereafter authorized by the Federal Communications Commission.
2.
Consist of a cable network having a minimum initial forward bandwidth in
compliance with the technical standards and rules of the Federal
Communications Commission provided that 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.
3.
Provide at least one (1) dedicated, non-commercial access channel for use
by the educational and governmental agencies within the City.
4.
Have a design capacity of at least fifty-two (52) channels.
(CC 1990 §6-56; Code 1977 §25.030(1))
A.
The grantee shall provide within the service area without charge for
installation, maintenance and service one (1) connection for the basic service
offered by the grantee to each public school, public library, and such municipal
buildings as the City may designate within sixty (60) days of completion of the
cable trunk line that would service those buildings; provided however, if it
is necessary to extend grantee's trunk line outside the service area more than
three hundred (300) feet solely to provide service to any such school or public
building, the owner shall have the option to so extend in accordance with
grantee's extension policy.
B.
Any service granted pursuant to Subsection (A) above 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. 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
BTN. (CC 1990 §6-57; Code 1977 §25.030(2))
The grantee shall 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.
(CC 1990 §6-58; Code 1977 §25.030(3))
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 their signals by non-subscribers to the network.
5.
Designed, installed and operated so as to assure the delivery to all
subscribers of standard color and monochrome signals on the FCC-designed 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.
(CC 1990 §6-59; Code 1977 §25.030(4))
A.
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 described in an attachment to the annual certificate filed with
the City.
B.
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.
C.
At any time after commencement of service to subscribers, the City may
require additional tests, full or partial repeat tests, different test
procedures, or tests involving a specific subscriber's terminal.
Requests for such additional tests will be made on the basis of complaints
received or other evidence indicating an unresolved controversy or significant
non-compliance, and such tests will be limited to the particular matter in
controversy. The City will endeavor to so arrange its requests for such
special tests so as to minimize hardship or inconvenience to the grantee or to
the subscriber. (CC 1990 §6-60; Code 1977 §25.030(5))
Wherever it is financially and
technically feasible, the grantee shall so construct, operate and modify network
so as to have the capability to interconnect the same into all networks adjacent
to the City. (CC 1990 §6-61; Code
1977 §25.030(6))
A.
Continuing Regulatory Jurisdiction.
The Board shall have continuing regulatory jurisdiction and primary
supervision over the operation of any franchise granted under this Chapter,
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 Responsibility Of The
City. The Board hereby
designates the Administrator, Clerk or Deputy Clerk to exercise the City's
continuing regulatory and supervisory jurisdiction over the franchise.
In this regard, the Administrator, Clerk or Deputy Clerk may have the
following responsibilities and duties and such other responsibilities and duties
that the City may assign and delegate to him/her from time to time:
1.
Resolve disputes as provided herein.
2.
Review and audit 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
review the rules and regulations set by the grantee under provisions herein.
3.
Assure that all tariffs, rates and rules pertinent to the operation of
the BTN in the City are made available for inspection by the public at
reasonable hours.
4.
Confer and coordinate with the grantee on the interconnection of the
City's BTN and other similar networks.
5.
Advise the Board on matters which might constitute grounds for revocation
of the franchise in accordance with this Chapter.
6.
Advise the Board on the regulation of rates in accordance with this
Chapter.
7.
Determine general policy relating to the operation and use of access
channels with a view to maximizing the diversity of programs and services to
subscribers. The use of access channels shall be allocated on a
first-come, first-served basis, subject to limitations on monopolization of
network time or prime time.
8.
Encourage use of access channels among the widest range of institutions,
groups and individuals within the City.
9.
Submit an annual report to the Board including, but not limited to, the
total number of hours of utilization of access channels, a review of any plans
submitted during the year by grantee for development of new services, and hourly
subtotals for various programming categories.
The annual report shall include the following programming categories:
a.
Local educational use including library.
b.
Public access for local programming under public control.
c.
Local government access (including fire, Police, burglar alarms and
public announcements).
d.
Channel time use for lease for pay TV.
e.
Channel time use for lease for business uses, including telemetry of
information.
f.
Information retrieval and professional communication.
10.
Cooperate with other networks and supervise interconnection of systems.
11.
Maintain a knowledge of current developments in cable communications.
12.
Submit a budget request to the City to cover expenses incurred in respect
of performance of functions provided by this Chapter.
This request may include funds to be used for the development of the use
of access channels, including production grants to users and the purchase and
maintenance of equipment not required to be provided by the grantee, and funds
to be used for expenses and such salaries as may be prescribed from time to time
by ordinance.
13.
Audit all the grantee's records required by this Chapter and, in the
discretion of the Administrator or Clerk or Deputy Clerk, require the
preparation and filing of information in addition to that required herein.
14. Conduct evaluations of the network at least every three (3) years with the grantee and pursuant thereto make recommendations to the Board for amendments to this Chapter or the franchise agreement. (CC 1990 §6-81; Code 1977 §25.040(1))
SECTION 620.260: RESOLVING DISPUTES
The Board may do all things which are necessary and convenient in the exercise of its jurisdiction under this Chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The Administrator, Clerk or Deputy Clerk is hereby authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any 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 Administrator, Clerk or Deputy Clerk may appeal the matter to the Board for an informal hearing and determination. Such hearing need not conform to the provisions of Revised Statutes of Missouri Chapter 536. The Board may accept, reject or modify the decision of the Administrator, Clerk or Deputy Clerk, and the Board may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the grantee or from any provision of this Chapter. (CC 1990 §6-82; Code 1977 §25.040(2))
A.
Permits. Within ninety (90)
days after the effective date of a franchise grant, 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 BTN
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.
Target Dates.
Within ninety (90) days after accepting the franchise, grantee shall
furnish the City with a construction schedule and map setting forth target dates
by areas for commencement of service to subscribers.
The schedule and map shall be updated whenever substantial charges become
necessary.
C.
Commencement Of Construction.
Within ninety (90) days after the effective date of franchise
approval, providing all other necessary agreements, permits and contracts have
been obtained and entered into, the grantee shall commence the construction of
the BTN and pursue such with reasonable diligence.
D.
Commencement Of Operation.
Within six (6) months after the commencement of construction, the
grantee shall commence operation.
E.
Substantial Completion Of
Construction. Within one (1)
year after commencement of construction, the grantee shall have substantially
completed construction. (CC 1990 §6-83;
Code 1977 §25.040(3))
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 provisions of the County's
Electrical Code as amended.
C.
Antennas And Towers.
Antenna supporting structures (towers) shall be designed for the
proper loading zone and as specified in Electronics Industry Association's R.S.
─ 22A Specifications.
D.
Compliance With Aviation
Requirements. Antenna
supporting structures (towers) shall be painted, lighted, erected and maintained
in accordance with all applicable rules and regulations of the Federal
Aviation Administration and all other applicable State and local Codes and
regulations.
E.
Construction Standards And
Requirements. All of the
grantee's plant and equipment including, but not limited to the antenna site,
head-end and distribution system, towers, house connections, structures, poles,
wire, cable, coaxial cable, fixtures and appurtenances shall be installed,
located, erected, constructed, reconstructed, replaced, removed, repaired, maintained
and operated in accordance with good engineering practices performed by
experienced maintenance and construction personnel so as not to endanger or
interfere with improvements the City may deem proper to make, or to interfere in
any manner with the rights of any property owner, or to unnecessarily hinder or
obstruct pedestrian or vehicular traffic on municipal properties.
F.
Safety, Nuisance, Requirements.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices preventing failures
and accidents which are likely to cause damage, injury or nuisance to the
public. (CC 1990 §6-84; Code 1977
§25.040(4))
SECTION 620.290: CUSTOMER SERVICE STANDARDS
A.
Office And Phone For Service.
The grantee shall maintain an office conveniently located to the City
which shall be open during all usual business hours, have a locally listed
telephone or a toll-free telephone number and be so operated that complaints and
requests for repairs or adjustments may be received at any time.
In addition, the grantee shall maintain a service during normal business
hours for the receipt of sums due by its subscribers and shall provide for
regular billing of accounts.
B.
Notification Of Service Procedures.
The grantee shall furnish each subscriber, at the time service is
installed, with written instructions that clearly set forth procedures for
placing a service call or requesting an adjustment.
C.
Service Response Time.
The grantee shall provide same-day service response for all complaints
and requests for repairs or adjustments received prior to 2:00 P.M. on any day
other than Saturday, Sunday or holidays. The
service response for calls received subsequent to 2:00 P.M. or on Saturdays,
Sundays or holidays shall be on the day following the call which is not a
Saturday, Sunday or holiday. The
grantee shall provide same-day service response seven (7) days a week, including
holidays, for emergency service, which for the purposes of this Section means a
problem or interruption in the full network service affecting reception by more
than one (1) subscriber.
D.
Service Interruptions And
Notification. The grantee shall
interrupt system service after 7:00 A.M. and before 1:00 A.M. only with good
cause and for the shortest time possible. (CC
1990 §6-85; Code 1977 §25.040(5))
A.
Board May Adopt Standards.
The Board may adopt, under its Police powers, rules, regulations and
standards governing the operation of a broadband telecommunications network in
the City. Some rules, regulations
and standards shall apply to and govern the operations of the grantee of any
franchise hereunder, and they are expressly declared a part of any franchise
agreement hereunder.
B.
Technical Standards.
The technical standards for operation of the network shall, in
addition to meeting the requirements specified in the franchise agreement,
conform to all requirements specified in this Chapter and any other standards or
Codes as may be adopted by the City.
C.
Repair.
Any damage caused or contributed to by the grantee's negligence shall
be repaired fully by the grantee at the grantee's sole expense.
(CC 1990 §6-86; Code 1977 §25.040(6))
A.
Reports Required.
The grantee shall file with the City:
1.
An "Annual Report of Cable Television Systems" (FCC Form 325,
Schedules 1, 2, 3 and 4).
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 network as-built maps
filed with the City.
3.
The grantee's schedule of charges, contract or application forms 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 Federal Communications Commission, Securities and Exchange
Commission, or any other Federal or State regulatory commission or agency having
jurisdiction over any matter affecting operation of the grantee's network shall
be submitted simultaneously to the City by delivery to the City Clerk who
shall advise interested City departments of such filing.
5.
The performance bond or a certified copy thereof and written evidence of
payment of required premium.
6.
All policies of insurance or 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 ten
percent (10%) or more.
8.
All rules, regulations, terms and conditions which it has adopted for the
conduct of its business.
9.
One (1) copy of a report on the network's technical measurements as set
forth herein.
B.
Records Required.
The grantee shall at all times maintain:
1.
A record of all complaints received and interruptions or degradation of
service experience 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 BTN equipment installed or in use in the City, exclusive
of subscriber service drops.
C.
Filing.
When not otherwise prescribed herein, all matters required to be
filed with the City shall be filed with the City Clerk.
(CC 1990 §6-87; Code 1977 §25.040(7))
At all reasonable times, the grantee
shall permit examination by any duly authorized representative of the City all
franchise property, together with any appurtenant property of the grantee
situated within or without the City. The
grantee shall also permit any duly authorized representative of the City to
examine and transcribe any and all maps and other records kept or maintained by
the grantee or under its control concerning the operations, affairs, transactions
or property of the grantee. If any of such maps or records are not kept in the City, or
upon reasonable request made available in the City, and if the City shall
determine that an examination of such maps or records is necessary or
appropriate to the performance of any of their duties, then all travel and
maintenance expenses necessarily incurred in making such examination shall be
paid by the grantee. (CC 1990 §6-88;
Code 1977 §25.040(8))
A.
The grantee shall utilize existing poles, conduits and other facilities
whenever possible and shall not construct or install any new, different, or
additional poles, conduits or other facilities whether on public property or on
privately-owned property until the written approval of the City or subdivision
trustee is obtained, which approval from the City shall not be unreasonably
withheld. 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 City determines that the public convenience would be
enhanced thereby.
B.
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 the network construction or are planned to be
relocated underground within one (1) year of such 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.
Any additional cost to subscribers for such installation shall be filed
with the City in accordance with the provisions of Section 620.350.
C.
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
shall be done in accordance with the pertinent provisions of the ordinances of
the City.
D.
All transmission lines, equipment and structures shall be so installed
and located as to cause minimum interference with the rights and reasonable
convenience of property owners at all times, shall be kept and maintained in a
safe, adequate and substantial condition, and in good order and repair.
The grantee shall, at all times, employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries or nuisances
to the public. Suitable barricades,
flags, lights, flares or other devices shall be used at such time and places as
are reasonably required for the safety of all members of the public.
Any poles or other fixtures placed in any public way by the grantee shall
be placed in such a manner as not to interfere with the usual travel on such
public way.
E.
The grantee shall, at its own expense and in a manner approved by the
City, restore to City standards and specifications any damage or disturbance
caused to the public way or private road as a result of its operations or
construction on its behalf.
F.
Whenever, in case of fire or other disaster, it becomes necessary, in the
judgment of the Director of Public Safety, to remove any of the grantee's
facilities, no charge shall be made by the grantee against the City for
restoration and repair, unless such acts amount to gross negligence by the City.
G.
The grantee shall have the authority to trim trees on public property at
its own expense as may be necessary to protect its wires and facilities, subject
to the supervision and direction of the City.
Trimming of trees on private property shall require written consent of
the property owner.
H.
The grantee at its expense shall protect, support, temporarily
disconnect, relocate or remove any property of the grantee when, in the opinion
of the City, the same is required by reason of traffic conditions, public
safety, street vacation, freeway or street construction, change or establishment
of street grade, installation of sewers, drains, water pipes, power lines,
signal lines, transportation facilities, tracks, or any other types of
structures or improvements by governmental agencies whether acting in a
governmental or a proprietary capacity, or any other structure or public
improvement including, but not limited to, movement of buildings, urban renewal
and redevelopment, and any general program under which the City shall undertake
to cause all such properties to be located beneath the surface of the ground.
The grantee shall in all cases have the privilege, subject to the
corresponding obligations, to abandon any property of the grantee in place.
Nothing hereunder shall be deemed a taking of the property of the grantee
and the grantee shall be entitled to no surcharge by reason of anything
hereunder.
I.
Upon failure of the grantee to commence, pursue or complete any work
required by law or by the provisions of this Chapter to be done in any street
within the time prescribed and to the satisfaction of the City, the City may, at
its option, cause such work to be done and the grantee shall pay to the City the
costs thereof in the amounts reported by the City to the grantee within thirty
(30) days after receipt of such itemized report.
J.
The grantee shall make no paving cuts or curb cuts unless absolutely
necessary, but only after written permission has been given by the City.
K.
The grantee shall install in conduit all cable passing under any major
roadway. (CC 1990 §6-89; Code 1977
§25.040(9))
A.
The grantee shall, on the request of any person holding a building moving
permit issued by the City, temporarily raise or lower its wires to permit the
moving of such 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.
B.
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 the grantee's lines, wires or other network appurtenances so
as not to interfere with such construction.
C.
In the event continued use of a street is denied to the grantee by the
City for any valid reason, the grantee shall provide service to affected
subscribers over alternate routes within a reasonable period of time.
D.
Under termination of service to any subscriber, the grantee shall
promptly remove all its facilities and equipment from the premises of such
subscriber upon his/her request. (CC
1990 §6-90; Code 1977 §25.040(10))
A grantee shall maintain and file with the City a complete schedule of subscriber rates including all fees and charges for services which it is currently authorized to charge. (CC 1990 §6-91)
The Board may amend this Chapter or
the franchise agreement, whenever necessary, to enable the grantee to take
advantage of new developments in the field of transmission of communication
signals which will afford it an opportunity to more effectively, efficiently or
economically serve its customers and at any other time the City feels amendment
is required in the best interest of the City and its residents.
(CC 1990 §6-92; Code 1977 §25.040(12))
A.
Subscribers' Antennas.
The grantee is expressly prohibited from requiring the removal or
from offering to remove or provide any inducement for removal of any potential
or existing subscriber's antenna as a condition for provision of service by the
grantee.
B.
Sale Or Service Of TV Receivers.
During the period of the franchise, neither the 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 the TV or radio service business for the repair or
maintenance of the subscriber's receivers, either radio or TV, wheresoever
located. (CC 1990 §6-111; Code
1977 §25.050(1))
A.
In the carrying out of the construction, maintenance and operation of the
BTN, the grantee shall not discriminate against any employee or applicant for
employment because of race, creed, color, sex or national origin.
B.
The grantee shall take affirmative action to ensure that applicants are
employed, and that employees are treated during employment without regard to
their race, creed, color, sex or national origin.
Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of
compensation and selection for training, including apprenticeship.
C.
The grantee shall post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of this
non-discrimination clause.
D.
The grantee shall, in all solicitations or advertisements for employees
placed by or on behalf of the grantee, state that all qualified applicants will
receive consideration for employment without regard to race, creed, color, sex
or national origin.
E.
The grantee shall incorporate the foregoing requirements in all of its
contracts for work relative to construction, maintenance and operation of the
BTN, other than contracts for standard commercial supplies or raw materials, and
shall require all of its contractors for such work to incorporate such
requirements in all subcontracts for such work.
(CC 1990 §6-112; Code 1977 §25.050(2))
A.
Services 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 classification shall be entitled, provided such schedules have been
filed with or approved by the City as provided in Section 620.350.
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.
(CC 1990 §6-113; Code 1977 §25.050(3))
The grantee, at its expense, shall
comply with all laws, orders and regulations of Federal, State and City
authorities and with any directive of any public officer pursuant to law who
shall legally impose any regulation, order or duty upon the grantee with respect
to the franchise. (CC 1990 §6-114;
Code 1977 §25.050(4))