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HomeMy Public PortalAboutORD09760 �f BILL NO. INTRODUCED BY COUNCILMAN RaA.L-ml pang= ORDINANCE NO. C? �Q Q AN ORDINANCE TO PROVIDE FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES OR PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF CABLE COMMUNICATION, OR CABLE TELEVISION SYSTEMS AND FURTHER PROVIDING FOR THE CONTINUING REGULATION AND ADMINISTRATION OF THESE FRANCHISES AND THE ACTIVITIES RELATIVE TO THEM. , o I Y t Page (d) Disposition of Facilities.... . .. . . .. . . ..18 (e) Restoration of _ro_peerU. .. .. . . .. . ..... . .18 ® (f) estorat on — City, Reimbursements Q oS s.. . . . .. .. ... .. ... ... . . . . . . ... . ..18 (g) Extended Operation.. .... ..... . .... .. ....19 (h) ty s Right Not Affected. ... .... . . . .. . .19 4.11 Receivership and Foreclosure.. .. .. .. . . .. . .. ..19 (a) Termination Upon Bankruptcy. . ... . ... .. ..19 (b) erm nation pon oreclosure..... . .. . ...20 4.12 Franchise Required.. .. ....... .... . ..... .. ....20 SECTION 5: REGULATION OF FRANCHISE. ... ..... ......... ..20 5.1 RReeguul�ator Auttiorit . ........ ................20 5.2 el gul atory Responsibility........ ............21 (a) Administration and Enforcement... . ......21 (b) oor nat on. .. .. .. ..... .... .... ........21 (c) u ort to ublic A enc Users..........21 (d) Procedures and standards for Institutional Operat ons..... .. .. ...... .21 (e) Planning. ... ... .. .. . ..... .... ....... ....21 (f) nterconne cti on.. ... .... ..... .... .......21 (g) Q c . .. .. . .. .. ....... ................21 (h) ommunity Channels..... . .... . .... .... ...21 5.3 Rate Regulation.. ... .... ......... ............22 (a) Initial Rates........... ................22 (b) Rate odo cation Authority...... :......22 (c) Rate Regulation.......... ...............22 (d) Procedure...... .. ...................... ..23 (e) Schedule If Delegated............ ...... .24 (f) ates fect ve on . ailure of Written Dec -s on To Be Rendered.. ..... ..25 (g) Financial Reports equ re ....... .......25 (h) Sched u e of ates............ ...........26 (i) DisconnectTons. ......... ..... . ....2 (J) o Cons eratTon id le........26 u (k) lefunas to Subscribers an Programmers. .,.. ... * .26 (1 ) Costs of ate Regulation to Grantee ... ..27 { 'Annua:l--:.Revi'ew,;,: .......... .... .......27 (n) Automat c Pass-Through of Copyright and LERE osts. ... ..... .... . .. .. .......27 (o) Pass-thro_u_9fFW Franchise Fees, When....28 5.4 Local Access Channel Management.. .... .,..... ..28 (a) Intent... ...... .. . ..... . .... . .. ....... ..28 t t r I TABLE OF CONTENTS i Page ® �1 SECTION1: INTENT.. .. . .. .. .. . .. .. ... ..... ... ....... .. .1 ! SECTION2: SHORT TITLE.... ... . ... . .. .. ... .. . .. . .. . . . . .1 i SECTION 3: DEFINITIONS... . ... . . ... .. . .... ... . ..... ... .1 i SECTION4: GRANT OF FRANCHISE.. .. .... ..... .. ... .... . ..7 4.1 Grant... .. . . .... . ... .... ... . .... . .. .. ... . ....7 4.2 Tranchise Territory .... ........ .. . . .... ... ..8 4.3 Use of Publ is and Ways.. ........ .... .8 4.4 Duration... . . .. .. ... .. .. ... ..... ... ..........8 4.5 rant se Non-exclusive. ................ .....8 4.6 Transfer of wners p or Control... ..... ..o -.8 (a) Transfer of Franchise.. ..... .. ...... ....8 (b) wners ip or Control ....... ... ..... .....9 (c) 'Mortgage of Assets, Allowed... ... ..9 . (d) Preference For Local NOt-For-Protit Corporation.. .. (e) Consent Not waiver. (f) Non-Approval of ransfer When... .. ... ..12 (g) Successor Must Be gnatory. .. ..... ... . .12 4.7 Franchise Renewal .. . ... . ............ .. .. ... ..12 (a) Renewal Notice. .... .... ............ ... ..12 (b) SatisfactoryT erformance Required..... ..12 (c) T me Frame.....o... .... ........o...... ..12 ' (d) Amendments Upon Determination of � .... .... ............... ..e— ne �.... 12 (e) Renewal Periods.... .... ........ ....... ..13 4.8 Police Powers... .... .... ................... ..13 4.9 Franchise •ee... ....... . .... .......... .......13 (a) Annual Franchise Pa ment.. ......... .... .13 (b) Accep tance 6— t . ....—....... .........14 (c) Failure to Ma e a uired Pa nt... .....14 (d) on ments. .. .... ...... .. .........14 (e) Conflict oT aws... .. .. ............... ..15 4.10 Forfeiture, Revocation or Abridgement. . .... ..15 (a) Grounds for Revocation or Abridgement. ..16 (b) Procedure Prior to Revocation. ...... ....16 (c) Abridgement of rant se erm.... . ......17 -i- �1 3 + i Page i (c) Access oAu�es... . .... ... ..... ... ........ .29 oil un n or he Local Access Channel f ana ement Entity. ..... . . ... .. .. . .. .. .. .30 (e) Local Access Channel Management Entity a or s to Grantor.. . ... . ... .. .. .30 (f) Grantor 1pon Delegation..... .. .30 5.5 Other Business Activities of Grantee. . . . .. ...30 SECTION 6: GENERAL FINANCIAL AND INSURANCE PROVISIONS... . ... . ... .. ... . . .. .... . ... .... .31 6.1 Performance Bond.. .. . . ... ... .. ... .. .. ... .....31 (a) When Filed Amount.. ... ..... ... .........31 (b) orm rove 'wit Counselor.........31 (c) No Limitation of a y. .... .... .....31 6.2 Compliance Bond..... . .... ... ..... .. ..........31 (a) When Filed Amount.. .......... ..... .....31 (b) Form Aeproved BUiU Counselor. ... .....32 (c) NO Limitation of a ty. .............32 6.3 Security Fund... .... ..... ..... ... .. ... .. .....32 (a) When Filed Amount..... .... . ....... .....32 (b) Restoration or und......... ............32 (c) Fund se on a ure of Grantee a ment Due. ee*** ** o *9** oeee933 (d) Cancellatib7n of Franchise... .... . .. .....33 (e) Reservation of g ts.. .. ... .. . .. ........33 6.4 Indemnification. .... . .. ..... ..... .. .. ... .....33 6.5 Insurances. . ........ . .. ..... .. ... ....... .... .34 (a) Kinds, Amounts. ............. ..... .. ... ..34 (1 ) Workers' Compensation Insurance:............. ....... .....34 (2) rant s Lia_ bilim. ... ... .. .......35 (3) om re ens ve General a . ............. .. .. ... .....35 (4) Comprehensive Automobile a . . ............ .. . .. .. .....35 (b) Co Ries Furnished.. ..... ..... .. ... .. . .. ..35 (c) Endorsemenf ... . .. ..... .. ... .. . .. 35 (d) o m a� on of Liability. . .. . ... .. .• .35 6.6 Franchise Processing Costs.. ..... . . ... .. .....36 J -iii- v , Page 6.7 Adjustment of Established Amounts. ...• .•••.. •36 ; SECTION 7: DESIGN AND CONSTRUCTION PROVISIONS. .. .. ....36 7.1 System Design... .. . .. .. .. . .. . .. . . . .. . . .. . ... .36 j 7.2 Geographical coverage. . .. . . . . . ... ... . .... ....36 7.3 Cab ast n Fac it es. ... .. ... . . . . . . ... . . ..36 ► 7.4 aE rly xtens on. . . . . . .. . . .. .. . .. . ..... .. . . ... .36 7.5 System onstruction .Schedule. .... ..... ... ....37 (a) Requirements... ... . . . ... .... ..... ... ....37 (b) Service Not Provided, Where. .. ... ... ... .37 (c) Provision of ans.... .. ... . .... ........37 (d) evocat on. ... .... . ... .. ........ ... .....37 7.6 Penalties for _Delay in Construction....:. ....37 (a) Reduction of Franchise Period...... . ....38 (b) Forfeiture of Bonds. ... ..... ... .... .....38 (c) Termination..** ** .*..... .... .... ........38 7.7 Provision of Service.. .... .. ..... .... . ... ... .38 7.8 n er roun n, o a le.. .. .. .... ....... .....38 7.9 ew eve o mentunnder roundin ... ....... .... .38 7.10 treet Occupancy....... ..... . ... . ... .... .....39' (a) Utilization of Existing Poles....... ....39 (b) Notifi cat on of onstruct on.... ........39 (c) Minimum Interference... ..... ........ ... .39 (d) Restoration of treets. ..... ............40 (e) Removal of ac t es....... ............40 (f) Tree Trimm n .. ........ . .... ............40 (9 Improvements Ci,tX. ....... ............40 (h) Paymen t on Grantee's Failure... .......41 (i) Paving Cuts..... ........ .... ... .........41 (3) Installation In Conduit............ .....41 (kl Reservations of treet Ri hts...........41 (1 ) Street Vacation or Abandonment.. . .......42 (m) Movement of ac t es. ..... ............42 7.11 Construction and Technical Standards.........43 (a) Construction Standards. ..... ............43 (1 ) Com liance with Safet Codes.......43 . (2) Compliance with — Co es. .... . ............ ............43 (3) Wntennas and Towers.... ... .........43 (4) ompliance witE wit Aviation e u remen s.. .... ..... .... ........43 (5) Construction Standards and . Requirements.. .. .... .... .... ... . ... .43 -iv- y ' ge { (6) Safe, Nuisance Requirements. .. .. .44 I ®, (b) Technical Standards. ... ... .. . .. . .. ... . . .44 (c) Test ana compliance Procedure.. . .. ..... .44 (d) special Tests. . . . .. . .. . .. .. . . .. ... ... .. .45 i 7.12 Areawide Interconnection. ... .. . . . ... . .. .. .. . .45 (a) Interconnection Required.. .. . .. ... ... .. .45 (b) n erconnec on Procedure... .... .. ... .. .45 (c) e e .. ... ... . .. .. . ... .... . . .. . . . ... .. .45 (d) o00o eration Re uired... .... . ...... ... .. .46 (e) initial- Technical Ra uirements to Assure ruture interconnaction apa . . ... . ... ............ ... ... .. .46 SECTION 8: SERVICE PROVISIONS. .. .. ........ ... ... ......46 8.1 Services to be Provided.. ... ... .. ... ... ..... .46 8.2 Basic Subscriber Te7evTsion Signal (BSTS). .. .47 8.3 Basic Subscriber Radio Service... . ..... ... . . .47 8.4 Institutional Service .... 9.. .. 947 8.5 Additional u scr r ervices... ...... ... .. .47 8.6 ocal r nat on overnment Access/ Education/Access/Community Ac cess...... ... ...47 8.7, New Developments. .. . . .. ..... .. ... . .......... .48 (a) Amendment of Franchise., .... ...... ... . ..48 (b) r er ng of mprovement..... . .. ... ......48 8.8 Protection of Subscriber's Privacy... .. ..... .48 (a) Use of Data from Subscriber....... .... . .48 (b) u scr er sts....... . .... .. .. 48 r(c) Subscriber ansmissions..... . ...... . .48 ' (d) Audit Unimpeded.... . ... ..... ...... ... ...49 8.9 Pro ram Alteration.. .. ...... ..... ............49 8.10 scen y ornograp�. ... .............. ..... .49 SECTION 9: OPERATION AND MAINTENANCE. ... .. .... ..... . . .49 901 Open Books and Records... ... .... ... .... ... .. .49 9.2 Reports Required... . ..... ... . ............... .49 (a) FCC Form 325... ..... ... ... .. .... .. ..... .49 (b) Faci'lit of s�eaort... ... ...... ... .. ... .. .50 (c) Subs cr iber Data. ....... ... ...... .. ... .. .So (d) e u a ory Agencies and Utility -v- I P. age (e) Performance Bond. ... . ... . . .. . . ... . ... ...50 (f) compliance Bond. . . .. . . .. . . .. . . ... . ... ...50 (g) insurance Policies.. . ... . . .. . .... . ... . ..51 (h) wner eor�tt. .. . . ... . ... . . ... . .... ...51 51 i) conduct of Business Rules... . .... . . W Technical Measurements.. . 0906606946.. ...51 (k) Financial Report. ... . . .. . ... . .... . .. . ...51 (1 ) ct vit es Report... . ... . ... . .... . ... ...51 (m) complaints. . . ... . ... . ... . ... . .... . ... ...51 (n) future Plans. .. . . ... . ... . ... . . ... . ... ...51 9.3 Information Required. .. .. . ... . ... . .... . ... ...52 (a) Maintenance of Information.. . .... . ... ...52 (b) n . . ... . . .. . . ... . ... . ... . .... . ... ...52 (c) Ot er Records.. . .... . ... . ... . .... . .. . ...52 (d) Inspec—F—on-16T Property and Records... ...52 9.4 Maintenance and Complaints... . ... . .... . ... ...53 (a) Business Offices.... . ... . ... . .... . ... ...53 (b) Interruptions.. . .... . ... . ... . .... ........53 (c) Revir o� rce... . .... . .... ... . .... .... ...53 (d) information to Subscribers.. . .. .. .... ...53 9.5 Rights of Individuals.... . .... ... . .... .... ...53 (a) E ual Rights... . .... ..... ... . .... .... ...53 (b) ua m to ment... . . ... . ... . .... . ... ...54 (c) lght of r vac in Transmission. .... ...54 (d) Right of r vac in Subscrip on..... ..954 (e) Fairness of Accessibility... . .... .... ...55 9.6 Continuity of Service Mandatory.. ..... . ... ...55 (a) Right to Continuity. .... .... 0 .0 0. 0.0 0 0.0 5 5 (b) Upon FaiTure My May Operate.... .... ...55 9.7 Grantee Rules and Regulations..... ........ ...56 SECTION 10: RIGHTS RESERVED TO THE GRANTOR. .... .... ...56 10.1 Ri ht to Purchase the S stem; n nArbitration._ . ... . .... . ... . .... .... ...56 10.2 Right n pect�on of Records... . ... : .... ...57 (a) Costs. . .... . ... ..... .... . ... . .... ......57 (b) =old actions. ... . .... . ... . ... . ... . .... ...57 (c) Other Rev enues. . .... .... . ... . ... . .......57 10.3 Right of Inspection of Construction.. .*.... ...57 10..4 Right of n erven on... . . .. . . .. . . .... ... . ...58 -vi- • I ' 1 Page I .. i 10.5. Right to Require Removal of Property. . .. . ... .58 i ®I SECTION 11 : RIGHTS RESERVED TO THE GRANTEE. . .. . .. . ... .58 i 11 .1 Right of Grantee. . . . . . . . . . .. . . . . .. . .. . .. . ... .58 SECTION 12: MISCELLANEOUS PROVISIONS. . ... .. . .. . .. . ... .58 12.1 Compliance with City, State and Federal aws. .. .. .. . .. . . .... ...... . .. . ... ... .58 ' 12.2 Notices.. . . . .... .. . . ... . .... ... .... .. . ... ... .59 12.3 Fu61f c Notice.. . .. . . . .. . :... ... ... . .. . ... ... .59 12.4 Captions.. . . . .. . . . . . ... ........ ... . ... ... ... .59 12.5 Vo Recourse Against the Grantor... . .. . .. . ... .59 12.6 Non-enforcement Py the Grantor*... . .. . ... ... .59 12.7 LIqUIdated Damages ar ea e Apa nst Grantee... 12.8 Theft of Services and Tampering. .. . ... ... ... .59 (a) Violation. .... . ... ........ ... . ... ... ....59 (b) Punishment. .. . . ... . .... ... .... ... ... ... .60 12.9 Subsequent Action By State or Federal gene es. .. . ........ ... . .. . ... ... ... .60. SECTION 13: GUARANTEE OF PARENT(S)...... . ... ... ... ... .60 13.1 O�bli�ation.. .... .. . . ... . ....... .... ... ... ....60 13.2 Terms of Guarantee.. .. .. .... .... .. . ... ... ....61 13.3 ene t.... . . ... ... . ..: ............ ... ... . ...61 13.4 Ot er Ownership. . ... .... .... .... .. . ... ... . ...61 SECTION14: ACCEPTANCE..... .. ...... .. ... .... ... ... . ...61 SECTION15: SEVERABILITY.. ... ........... . .. . ... ... . ...61 SECTION16: EFFECTIVE DATE. . . ... .... ..... ... ... ... . ...61 ! . i . . 1 • i -vii- . 4 INTRODUCED BY: Ordinance No. Bill No. AN ORDINANCE TO PROVIDE FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES OR PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF CABLE COMMUNICATION, OR CABLE TELEVISION SYSTEMS AND FURTHER PROVIDING FOR THE CONTINUING REGULATION AND ADMINISTRATION OF THESE FRANCHISES AND THE ACTIVITIES RELATIVE TO THEM BE IT THEREFORE ORDAINED BY THE CITY COUNCIL OF THE CITY OF JEFFERSON, AS FOLLOWS: SECTION 1: INTENT The City of Jefferson City finds that the development of cable television and communications systems has the potential of having great benefit and impact upon its citizens. Because of the complex and rapidly changing technology asso- ciated with cable television, the City further finds that the • public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this ordinance shall be deemed to include this finding as an integral part thereof. SECTION 2: SHORT TITLE This ordinance shall be known and be cited as the "Jefferson City - Cable Television Franchise Ordinance. SECTION 3: DEFINITIONS For the purpose of this ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3.1 "Additional Subscriber Service" means any service . not included in "Basic Subscriber Television Service," or "Basic Subscriber Radio Service," or "Institutional Service," including, but not limited to, pay-cable. 3.2 "Agency Subscriber" means a subscriber who receives service in a government or public agency, school , or non- profit corporation. 3.3 "Basic Subscriber Radio Service" means the provi- sion to all subscribers of such audio services and the retransmission of broadcast AM and FM radio signals, the retransmission of shortwave, weather, news, time and other similar audio broadcast channels, and the transmission of cablecast AM or FM signals, as permitted by the FCC. 3.4 "Basic Subscriber Television Service" means the total of all the following: (a) The retransmission to all subscri- bers of all broadcast television channel signals authorized by the FCC and provided for herein; (b) The provision to all subscribers of nonbroadcast open channel signals, originating from sources outside the Cable Communications System; (c) The cablecasting to all subscribers of the Local Origination Channel , and the Public Educational and Government Access Channel signals; (d) The transmission to all subscribers of all other. cablecast open-channel signals. Basic Subscriber Television Service may be 'offered to subscribers in one or more tiers or combinations of programs.. 3.5 "Broadcast Signal" means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a Cable Communications System off-the-air or by microwave link. 3.6 "Cable Communications System" or "System," also referred to as "Cable Television System,", "CATY System," or "Broadband Communications Network," means a system of anten- nas, cables, amplifiers, towers, microwave links, cable- casting studios, and any other conductors, converters, equipment or facilities, designed and constructed for the primary purpose of distributing video programming to home subscribers, and the secondary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital , or other forms of electronic or electrical signals. -2- I 3.7 "Cablecast Signal" means a nonbroadcast signal that originates within the facilities of the Cable Communication System. 3.8 "Cable-mile" means a linear mile of strandbearing cable as measured on the street or easement from pole to pole or pedestal to pedestal. 3.9 "Channel" means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals, or otherwise as established by the FCC. 3.10 "Class IV Channel" means a signaling path provided by a Cable Communications System to transmit signals of any type from a subscriber terminal to another point in the cable television system. 3.10a "City" means the City of Jefferson City, and shall have the same meaning as "Grantor" defined herein. 3.11 "Closed-Circuit" or "Institutional Service" means such video, audio, data and other services provided to institutional users on an individual application, private channel basis. These may include, but not be limited to, two-way video, audio or digital signals among institu- tions, or from institutions to residential subscribers. 3.12 "Commencement of Construction or (reference thereto) " means that time and date when construction of the Cable Communications System is considered to have commenced, which shall be when the preliminary �( engineering (strand mappingl or network design is initiated, and after all necessary permits and authorizations have been obtained. In the event a franchise is awarded to a Grantee following the expiration of a franchise which was not renewed, then construction shall commence upon mutual agreement between Grantor and Grantee except that Grantee shall proceed with commencement of construction as is practical and reasonable without regard to Grantee's subjective financial or organizational status. j 3.13 "Commencement of operation (or reference thereto) " means that 1 time and date when operation of the Cable Communications System is considered to have commenced, which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to at least twenty percent (20%) of the dwelling units located within the service area. 3.14 "Commercial Subscriber" means a subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade or profession. 3.15 "Converter" means an electronic device which converts signal carriers from one form to another. 3.16 "Council" means the City Council of the City of Jefferson. 3.17 "Educational Channel," or "Educational Access Channel" means any channel where educational institutions are the only designated programmers. 3.18 "FCC" means the Federal Communications Commission and any legally appointed or elected successor. -3- 1 1 3.19 "Franchise" means the non-exclusive rights granted pursuant to this ordinance to construct and operate a Cable , Communications System along the public ways within all or a specified area in the City. Any such authorizations, in whatever form granted, shall not mean or 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. 3.20 "Franchise Agreement" means a franchise award ordi- nance, accepted on the part of the Grantee, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, and other related material . The franchise agreement may modify terms of this ordinance by appropriate ordinance amendment. 3.21 "Franchise Payment" means all charges imposed for a franchise. 3.22 "Governmental Channel" or "Government Access Channel" means any channel where local government agencies are the only designated programmers. 3.23 "Grantee" means any person receiving a franchise pursuant to this ordinance and under the granting franchise ordinance, and its lawful successor, trustee, receiver, transferee or assignee. 3.24 "Grantor" means the City of Jefferson, as repre- sented by its governing body acting within the scope of its authority. 3.25 "Gross Annual Revenues" means the annual gross revenues received by the Grantee from all sources of opera- tions of the Cable Communications System, except that any sales, excise or other taxes collected for direct pass- through to local , state or federal government shall not be included. 3.26 "Initial Service Area" means the area of the City which will receive service initially, as set forth in- the franchise agreement. 3.27 "Installation" means the connection of the system from feeder cable to subscribers' terminals, and the provi- sion of service. 3.27a "LACME" means LOCAL Access Channel Management Entity, i.e., that person selegted by Grantor to operate, manage, and produce local origination programming and public access programming. 3.28 "Leased Channel " or ".eased Access Channel" means any channel available for lease and programming by persons or entities other than the Grantee, including those portions of the other access channels not in usf by their designated programmers. 3.29 "Local Origination Channel " means any channel that provides local non-broadcast programming to subscribers. 3.30 "Monitoring" means obgerving a communication signal , or the absence of a signal , where the observer is -4- i j neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever. (Provided monitoring shall not include system- wide, nonindividually addressed sweeps of the system for pur- poses of verifying system integrity, controlling return paths transmissions, or billing for pay services. ) 3.31 "Non-Broadcast Signal" means a signal that is transmitted by a Cable Communications System and that is not involved in an over-the-air broadcast transmission path. 3.32 "Obscenity/Pornography" means that which, when con- sidered as a whole, by the average adult person, applying contemporary community standards: (a) predominantly appeals to the prurient interest in sex; and (b) depicts, describes or portrays in a patently offensive manner human sexual intercourse, sodomy, bestiality, oral copulation, mastur- bations, urinary and defecatory functions, sadism, masochism, sado- masochistic abuse, lewd exhibition of the genitals or any touching of the genitals, pubic areas or but- tocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex, or between • humans and animals in an act of apparent sexual stimulation or gratification; and (c) when taken as a whole lacks serious social , literary, artistic, politi- cal or scientific value. 3.33 "Open Channel" means any channel that can be received by all subscribers, without the necessity for spe- cial equipment, other than a converter. 3.33a 'Ordinance" means any lawfully enacted order of a political subdivision of the State of Missouri. 3.34 "Pay-Cable" or "Pay-Television" means the delivery to subscribers, over the Cable Communications System, of television signals for a fee or charge over and above the charge for Basic Subscriber Service, on a per program, per channel or other subscription basis. 3.35 "Penetration" means the result expressed in percen- tage obtained by dividing the total number of potential subscribers in the franchise area into the number of subscri- bers receiving service. 3.36 "Person" means an individual, partnership, asso- ciation, organization, corporation, other entity or any -5- lawful successor, transferee or assignee thereof. 3.37 "Pornography". See 3.32 "Obscenity/Pornography". 3.38 "Private Channel" or "Closed-Circuit Channel" means any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel . 3.39 "Programmer" means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital , or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the Cable Communications System. 3.40 "Public Access Channel ," "Community Access Channel ," or "Community Channel" means any channel where any member of the general public or any non-commercial organiza- tion may be a programmer, ,without charge, on a first-come, first-served, non-discriminatory basis, in accordance with FCC regulations, and regulations established by the local access channel management entity (LACME) designated by the City. 3.41 "Reasonable Notice" shall be a written notice addressed to the Grantee at its principal office or such other office as the Grantee has designated to the City as the address to which notice should be transmitted, which notice shall be either sent by certified mail (or its equivalent) and postmarked not less than four (4) days prior to that day, or delivered personally by Grantor by and through its repre- sentative. In computing said four (4) days, Saturday, Sundays and Holidays recognized by the City shall be excluded. Actual notice shall be an absolute defense by the Grantor in any future action of any kind by Grantee where proper notice shall be an issue. 3.42 "Reasonable Order" shall be a written order not excessive or extreme as to costs or time to comply. 3.43 "Resident" means any person residing in the City or as otherwise defined by applicable law. 3.44 "Residential Subscriber" means a subscriber who receives a service in an individual dwelling unit, where the service is not to be utilized in connection with a business, trade or profession. 3.45 "Sale" shall include any sale, exchange, barter or offer for sale. 3.46 "School" means any educational institution including primary and secondary schools, colleges and univer- sities, both public and private. 3.47 "Section" means any section, subsectf.on, or provi- sion of this ordinance. 3.48 "Service Area" means the entire geographic area within the franchise territory. • 1 l ' 1 1 3.49 "State" me-ans the State of Missouri. 3.50 "Street" shall include 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, high- ways, avenues, lanes, alleys, sidewalks, easements, rights- of-wady 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 defini- tion of street from time to time. 3.51 "Subscriber" means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with the Cable Communications System. 3.52 "Substantially Completed" means that sufficient distribution facilities have been installed by the Grantee so as to permit the offering of full network service to at least ninety percent (90%) of the potential subscribers in the ser- vice area. 3.53 "Tapping" means observing a two-way communications signal exchange, where the observer is neither of the com- municating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever. 3.54 "Year" means the remaining portion of 1982. Thereafter, "year" means a full calendar year. SECTION 4: GRANT OF FRANCHISE 4.1 Grant. In the event that Grantor shall grant to a Grantee a non-exclusive, revocable franchise to construct, operate, maintain and reconstruct a Cable Communications System within the City, said franchise "shall constitute both a right and an obligation to provide the services of a Cable Communications System as required by the provisions of this ordinance and the franchise agreement. The franchise agreement shall include all provisions of a Grantee's proposal as finally negotiated and accepted by the Grantor and Grantee. Said franchise is granted under the terms and con- ditions contained herein, consistent with applicable Missouri Statutes which are incorporated by this reference as if fully set forth herein. In the event of conflict between the terms and conditions of said franchise and the terms and conditions on which the Grantor can grant a franchise, Missouri Statutes shall, without exception, control . Said franchise is hereby made subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in said franchise shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be-paid or manner of construction. -7- 4.2 Franchise Territory. The Grantor may grant a franchise for all or any defined portion of the City. The service area shall be the entire territory defined in the franchise agreement. The initial service area shall be that portion of the franchise ' territory scheduled to receive initial service, as stated in the franchise agreement. 4.3 Use of Public Streets and Ways. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install , construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the Cable Communications System. Prior to construction or alteration, however, the Grantee shall in each case file plans with the appropriate City agencies, officers or depart- ments, as designated by the City, and utility companies, and receive written approval before proceeding. 4.4 Duration. The term of said franchise and all rights, privile- ges, obligations and restrictions pertaining thereto shall be fifteen (15) years from the effective date of the franchise unless abridged or terminated as hereinafter provided. The effective date of the franchise ordinance shall be upon final passage by the Council unless a Grantee fails to file within fifteen (15) days after the date of notification of final passage in the appropriate office of the City a written acceptance of the franchise, in which event it shall be null and void. 4.5 Franchise Non-exclusive. Any franchise granted shall be non-exclusive. The Grantor specifically reserves the right to grant, at any time, such additional franchises for a Cable Communications System as it deems appropriate. 4.6 Transfer of Ownership or Control. (a) Transfer of Franchise. Any franchise granted shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, trans- ferred, leased, assigned or otherwise disposed of in any manner, including but not limited to, forced or voluntary sales, merger, con- solidation, receivership, or other means, without the prior written consent of the City, and then only under such conditions as the City may establish and upon full disclosure of all material facts by the Grantee. Such con- -8- sent as required by the City shall , however, not be unreasonably withheld. The Grantee, upon transfer as heretofore described, shall within sixty (60) days thereafter file with the City a copy of the deed, agreement, mortgage, lease or other written instrument evidencing such sale, transfer or lease, certified and sworn to as correct by the Grantee. Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless Grantee shall within sixty (60) days after the same shall have been made, file such certified copy as is required. (b) Ownership- or Control . The Grantee shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used herein is not limited to major, stockholders, but includes actual working control in whatever manner exercised. A rebuttable presumption that a change, transfer or acquisition of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of two and one- half percent (2-1/2%) or more of the voting shares of the Grantee. Every change, transfer, or acquisition of control of the Grantee shall make the franchise subject to cancellation unless and until the City shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control , the City may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Upon the event of any transfer of any ownership interest in Grantee, Grantee shall notify the City and shall provide City with all contracts, agreements or documents dealing with or affecting said transfer. The Grantee shall also pay all reasonable costs incurred by the City. Payment shall be a prerequisite to the approval of a transfer. (c) Mortgage of Assets, When Allowed. The Grantee shall not make, execute, or enter , into any deed, deed of trust, mortgage, con- -9- ditional sales contract, or any loan, lease, pledge, sale, gift or similar agreement con- cerning any of the facilities and property, real or personal , involved in the operation of the cable TV business under a franchise granted by the City except: ' (1) disposition or replacement of worn out or obsolete equipment, property or facilities in the normal course of operating a cable TV business, including the renewal or extension of equipment or property leases and contracts; or (2) acquisition, transfer, sale or other disposition of leases, licenses, easements, and other interests in real property in the normal course of operating a cable TV business and not involving the relinquishment of any right or power affecting the Grantee's abi 1 i ty to pro- vide cable TV services in whole or in part; or (3) with prior approval of the City based on a finding that the proposed transaction will not affect the Grantee' s ability and responsibility to provide cable TV services in accordance with its franchise and will not interfere with the City's interest; or (4) that a Grantee may pledge or mortgage its assets to a finan- cial institution in return for sums necessary to construct or operate (or both) the cable system, provided that such pledge or mortgage and related agreements are filed with' the City, upon request by the City, and obligate and limit such financial institution(s) as follows: any foreclosure or exercise of lien over the franchise or facilities shall only be by assumption of control over the entire system or a self-sufficient, separa- tely operable head-end and its dependent distribution system of a multiple head-end system. Prior to assumption of control , the institution shall notify the City that it or a designee . -10- • i acceptable to the City will take control of and operate the system, and shall submit a plan • for such operation insuring continued service and compliance with this ordinance and all franchise obligations during the term the institution exercises such control . The institution shall not exercise control for longer than one (1 ) year unless extended by the City for cause and shall be entitled to petition the City for transfer of the remaining term of the franchise or award of a new franchise to another Grantee. The City shall approve such transfer upon finding that the legal , .finan cial , character, technical and other qualities of the proposed Grantee are satisfactory and that the transfer will promote the public interest. Such approval shall not be unreaso- . nably'withheld. (d) Preference For Local Not-For-Profit Corporation. The City reserves the right, all other things being equal , in the event of a request for approval of the transfer of the ownership of the franchise by the Grantee, to grant pre- ference to any local not-for-profit organiza- tion which demonstrates a willingness and capability to meet the terms and amount of the bona fide offer made to the Grantee for purchase of the franchise and network, which shall in any, event be a fair market value. In no event, however, shall the City delay ruling on any request for approval of the transfer of the ownership of the franchise by the Grantee for more than sixty (60) days from receipt of said request, which said request. shall include all necessary documents relating to criteria for said transfer as set out herein. (e) Consent Not Waiver. The consent or approval of the City. to any transfer by the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of said franchise. -11- M Non-Approval of Transfer, When. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the franchise prior to substan- tial completion of construction of the pro- posed system. (g) Successor Must Be Signatory. In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to said franchise agreement. 4.7 Franchise Renewal . This franchise may be renewed upon application of the Grantee pursuant to the following procedures and in accordance with -the then applicable law. (a) Renewal Notice. At least eighteen (18) months prior to the expiration of the franchise, Grantee shall inform the City in writing of its intent to seek renewal of the franchise. (b) Satisfactory Performance Required. After giving public notice, the City shall proceed to determine whether the Grantee has satisfactorily performed its obligations under the franchise. To determine satisfactory per- formance, the City shall consider technical developments and performance of the system, programming, or other services offered, cost of services ,offered, and any other particular requirements set in the ordinance; also, the City shall consider the Grantee's annual reports made to the City and the FCC; industry performance on a national basis shall also be considered. Provision shall be made for public comment. (c) . Time Frame. A four (4) month period shall be provided to determine the Grantee's eligibility for renewal . (d) Amendments Upon Determination of Eligibility. The City shall then prepare within two (2) -12- months any amendments to this ordinance that it believes necessary. (e) Renewal Periods. If the City finds the Grantee's performance satisfactory, a new franchise may be granted pursuant to the ordinance as amended for an additional period of five (5) years, but sub- ject to municipal or not-for-profit cor- poration ownership as defined and set out in this ordinance. Subsequent renewals for five (5) year periods may be applied for by Grantee in accordance with the procedure outlined in this section. At the discretion of the City, longer periods of renewal may be granted. 4.8 Police Powers. In accepting this franchise, the Grantee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordi- nances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power. Any conflict between the provisions of this franchise and any other present or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to Grantee or Cable Communications Systems which contains provi- sions inconsistent with this franchise shall prevail only if the. City finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law. 4.9 Franchise Fee. : (a) Annual Franchise Payment. A Grantee of a franchise hereunder shall pay to the City an annual fee in an,amount equal to five percent (5%) of gross revenues. Grantor reserves the right to change the franchise fee, but shall not raise the said franchise fee beyond what is paid by the telephone and electric utilities. In no wise, shall the franchise fee be raised within two (2) years from the date of the franchise agreement. Grantee affirms that its opera- tions are in the nature of a utility and con- sequently the imposition of this franchise fee is merely the application of an existing tax to the same class entity. (Should the franchise fee amount be disputed by the FCC, then the Grantee may be required to retain i amounts in dispute in escrow until the FCC and the City shall have resolved the dispute. ) Such payment shall be in addition to any other fee or tax and 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 said payment, by a Certified Public Accountant, reflecting the total amounts of annual gross revenues and the above charges, deductions and computations for the period covered by the payment. The CPA so chosen shall be approved by the City. If the City disapproves the Grantee's selection, the Grantee shall choose another. The CPA shall be one of at least a regional reputation for honesty and competency. All charges for the said CPA services shall be borne by the Grantee. (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 ordinance 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, Grantee shall pay as additional compensation: (1 ) an interest charge, computed from "such due date on such amount-due, at the annual rate equal to the commercial prime interest rate in effect from time to time during such period until such amounts due are fully paid, and (2) a sum of money equal to expen- ses, costs, and attorneys' fees incurred by the City by reason of delinquent payment. (d) Monthly Payments. Payments due the Grantor under this provision shall be computed monthly and payable no later, than thirty (30) days after the last day of the month, on a cash basis. Each payment shall be accompanied by a brief report showing • . -14- the basis for the computation and such other relevant facts as may be required by the Grantor. (e) Conflict of Laws. Should it be adjudged or determined by a court of competent jurisdiction that the amount of said franchise fee as set out herein is in conflict with state or federal law, then the amount set by this ordinance shall be the maximum allowable under controlling law. 4.10 Forfeiture, Revocation or Abridgement. (a) Grounds for Revocation or Abridgement. The City reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this ordinance and the franchise grant: (1 ) If the Grantee shall default in the performance of any of its material obligations under this ordinance or under such docu- ments, 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, decisions or other action determines that any material provision of the franchise documents, including this ordi- nance, is invalid or unenfor- ceable prior to the commencement of system construction. (4) If the Grantee should fre- quently violate any orders or rulings of any regulatory body having jurisdiction over the Grantee relative to this -15- I I franchise unless such orders or rulings are being contested by the Grantee in a court of com- petent Jurisdiction. (5) If the Grantee ceases to pro- vide services for any reason within the control of the Grantee over the Cable Communications System. The Grantee shall not be declared at fault or be subject to any sanction under any provision of this ordinance 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 busi- ness entity in which the Grantee holds a controlling interest or which holds, alone or with others, a controlling interest in Grantee, whether held directly or indirectly. (6) If the Grantee attempts to evade any of the provisions of this ordinance or the franchise agreement or practices any fraud or deceit upon the City. (7) If the Grantee' s construction schedule is delayed for more than six (6) months later than the schedule contained in the franchise agreement. (8) If the Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt. (b) Procedure Prior to Revocation. (1 ) The City may make written demand that the Grantee do so comply with any such require- ment, limitation, term, con- dition, rule or regulation or correct any action deemed cause for revocation. 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 -16- R franchise upon a Council meeting agenda. The City shall cause to be served upon such Grantee, at least ten (10) business days prior to the date of such Council meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the City Clerk at least once ten (10) business days before such meeting in a newspaper of general ci r- culation within the City. (2) The Council shall hear any per- sons interested therein, and shall determine, in its discre- tion, 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 Council shall direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable. (4) If the Council shall determine such failure, refusal or neglect by the Grantee was without Just cause, then the Council may, by ordinance, declare that the franchise of such Grantee shall be ter- minated and bond forfeited unless there be compliance by the Grantee within such period as the Council may fix. (c) Abridgement of Franchise Term. After following the procedure set out herein prior to revocation, and the Council finding a violation of this franchise, but not of suf- ficient gravity to require revocation of this franchise, or if the Council determines that revocation would not serve the public health, safety and welfare, the Council may abridge the term of the franchise. For each offense or violation the Council may abridge the term of the franchise for a period of time not less than 30 days but not more than 180 days. Each day's violation of this section may be con- sidered a separate offense. Abridgement of the franchise term: -17- i ,I (1) Shall be made by ordinance, which ordinance shall state the findings and conclusions of the Council . (2) Shall be cumulative, and irre- vocable. Upon passage of an ordinance the abridgement term shall be subtracted from the term of the franchise and a new termination date established. (3) In no case', however, shall total abridgement terms accumu- late to more than five (5) years. (d) Disposition of Facilities. In the event a franchise expires, is revoked or otherwise terminated, the City may order the removal of the system 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. (e) Restoration of Property. In removing its plant, structures, and equip- ment, the Grantee shall refill , at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The City may i-nspect 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 pro- vided herein and the performance bond provided 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 ordi- nance. (f) Restoration by City, Reimbursements of Costs. In the event of a failure by the Grantee to complete any work required by subsection (d) above and/or subsection (e) 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 - -18- within thirty (30) days after receipt of an itemized list of such costs or the City may recover such costs through the security fund provided by the Grantee. The City may seek legal and equitable relief to enforce the pro- visions of this section. (g) Extended Operation. Upon either the expiration or revocation of a franchise, the City may require the Grantee to continue to operate the network for an extended period of time not to exceed six (6) months from the date of such expiration or revocation. The Grantee shall , as trustee for its successor in interest, continue to operate the Cable Communications System under the terms and conditions of this ordinance and the franchise and to provide the regular subscriber service and any and all of the ser- vices that may be provided at that time. The City may seek legal and equitable relief to enforce the provisions of this section. (h) City's Right 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. 4.11 Receivership and Foreclosure. (a) Termination Upon Bankruptcy. The franchise herein granted shall at the option of the City Council , cease and ter- minate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1 ) Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this ordinance and the franchise granted pur- suant hereto, and the receivers -19- 1 1 or trustees within said one hundred twenty (120) days shall have remedied all defaults under the franchise; and (2) Such receivers or trustees shall , within said one hundred twenty (120) days execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of said franc4se. (b) Termination Upon Foreclosure. 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 Council may serve notice of termination upon the Grantee and the successful bidder at such sale, in which event said franchise and all rights and privileges of the Grantee thereunder shall cease and terminate thirty (30) days after service of such notice, unless: (1 ) The Council shall have approved the transfer of said franchise, as and in the manner in this ordinance provided, and (2) Such successful bidder shall have covenanted and agreed with the City to assume and be bound. by all the terms and conditions of said franchise. 4.12 Franchise Required. No Cable Communications System shall be allowed to occupy.. or use the streets of the City or be allowed to operate without a franchise in accordance with the provisions of this ordinance. SECTION 5: REGULATION OF FRANCHISE 5.1 Regulatory Authority. The Grantor shall exercise appropriate regulatory authority under the provisions of this ordinance and appli- cable law. Grantor may, at its sole option, participate with other governmental entities in a joint regulatory agency, with delegated responsibility in the area of cable and -20- related communications. S.2 Regulatory Responsibility. The Grantor, if acting Jointly with other Grantors, may delegate the following regulatory responsibility: ' (a) Administration and Enforcement. Administration and enforcement of the provi- sions of the Cable Communications System franchise(s). (b) Coordination. Coordination of the operation of government and educational channels. (c) Support to Public Agency Users. Provision of technical , programming and opera- tional support to public agency users, such as City departments, schools and health care institutions. (d) Procedures and Standards for Institutional Operations. Establishment of procedures and standards for institutional operations and services, use of dedicated channels, and sharing of public facilities. (e) Planning. Planning of expansion and growth of cable ser- vices, including interconnection of various cable TV company systems. (f) Interconnection. Analysis of the possibility of integrating cable communications with other City, State or . regional telecommunications networks. (g) Policy. Formulation and recommendation of long range telecommunications policy for the City. (h) Community Channels. Selection and implementation of all things necessary to establish an entity that would -21- ensure access and community channels that serve the public interest. 5.3 Rate Regulation. (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 franchise agreement. (2) Initial basic subscriber rates shall be effective for a mini- mum of two (2) years from the ' date the franchise is granted or for one 0 ) year after construction is completed, whichever is longer. (b) Rate Modification Authority. The Grantee may request a rate change only once in any twelve (12) month period, after the guaranteed period shall expire. (c) Rate Regulation. (1 ) The City shall have the power to approve or disapprove any and all regular subscription rates, installation charges and other charges including premium charges and amounts for leased channels proposed by the Grantee for and in connection with television and radio signals distributed hereunder. Such rates and charges shall be fair and reasonable and no higher than necessary to meet all costs of service with effi- cient and economical manage- ment, including a fair return on the original cost plus improvements, less depre- ciation, of the properties devoted to such service, without regard to any sub- sequent sale or transfer price or cost of such properties. -22- I In further clarification regarding the regulation of rates in the case of a sale, or ` other transfer or merger, of { the system serving the City of Jefferson, rates will not be i established on the basis of any purchase price, or amount allo- cated as a value for the system serving the City of Jefferson. Rates will only be set and established on the basis of the criteria set out herein. This ' policy and law is so set by reason of the fact that as of the passage of this ordinance the acquisition's of cable tele- vision systems are occurring at a high rate at prices that fre- quently do not reflect true value,. The City shall not per- mit the development of a cable television system constructed I for the sole purpose of even- tual sale. The City requires rates that accurately reflect the cost of doing business according to the criteria set out herein. The subscribers of the City of Jefferson franchise area shall not pay for value that the City, by the grant of a franchise, will have con- . ferred on a franchisee. • i (2) The City shall have the power, authority, and right to cause the Grantee's rates and charges to conform to the provisions of subsection 1 hereof, , and for this purpose the City may deny increases or order reductions in such rates and charges when it determines that in the absence of such action on its part, the Grantee's rates and charges or proposed increased rates and charges will not con- form to the said subsection 1,,. (d) Procedure. i ' Upon the filing of a petition for a rate than e, the City shall have one hundred fifty (150? days to do all things necessary to render a written decision on Grantees peti- tion, either accepting, rejecting, modifying ' or deferring the same and reciting the basis ? of its decision. The City shall consider, inter alia, the following factors in approving -23 f i 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 revenues and profits i derived from System services; (3) The efficiency of the Grantee; (4) The quality of the service offered by the Grantee: (5) The original cost oF she System plus improvements less depre- ciation (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; (8) Fairness to City residents, subscribers and users. The City may hold public hearings to receive subscriber comments at its discretion; and, (9) The City shall not consider any . valuation based upon this franchise or the Grantee's goodwill and these items of value shall neither be amor- tized as an .expense nor shall a return'be paid on them. (e) Schedule If Delegated. If the City shall delegate the enforcement of this ordinance under contract, as authorized by Art. 6 § 16 of the Missouri Constitution and Chapter 70 R.S.Mo., the entity to which such authority is delegated shall consider and make recommendation to the City within ninety (90) days from receipt of the petition for ! rate change. The City shall have up to sixty (60) days thereafter to consider. the recommen- dation and act thereon. The City may disapprove or deny the recommendation by a simple vote of .its governing body, but shall approve the recommendation of the authority established under Art. .6 6 16 of the Missouri Constitution by ordinance. But, in any event, . -24- • 1 1 and nothing herein said to the contrary, any rate change shall not become effective unless = so approved by all the local government entities' signatory to a contract executed pursuant to Art. 6 6 16 of the Missouri Constitution and Chapter 70 R.S.Mo. Z (f) Rates Effective Upon Failure of Written I Decision To Be Rendered. If the City fails to render a written decision either accepting, rejecting, modifying or deferring Grantee's petition within one hundred eighty (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) Financial Reports Required. The Grantee's petition for a rate increase shall include, but not be limited to, the following financial reports, which shall reflect the operation of the system. (1) Balance Sheet (2) Income Statement (3) Statement of Sources and Applications of Funds (4) Detailed Supporting Schedules of Expenses, Income, Assets and other items as may be required (5) Statement of Current and Projected Subscribers and Penetration. 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 i transactions for the purpose of verifying { rates direct or 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 the ' information needed to make accurate deter- minations as to the financial condition and i operating results of the system. All . finan- cial statements shall be certified, if requested by the City, as accurate by a cer- tified public accountant and an executive ' officer of Grantee. The City shall have I access to as many prior years of financial information as it deems necessary. -25 t i , 1 , (h) Schedule of Rates. A Grantee shall maintain and file with the City a complete schedule of all rates including all fees and charges, if any, for services not subject to approval by the City. (i) Disconnections. There shall be no charge for disconnection from the network. However, if 'a subscriber has failed to pay monthly fees due or if a subscriber disconnects for seasonal periods, the Grantee may require, in addition to full j payment of any delinquent fees, a reasonable fee for reconnection. i (3) No Consideration Beyond Schedule. The Grantee shall receive no consideration whatsoever for or in connection with its pro- ? vision of service to its subscribers other than as set forth in this section or as filed II with and/or approved by the City. i . (k) Refunds to Subscribers and Programmers. � . i (1 ) If the Grantee fails to provide any service requests by a subscriber or programmer, the Grantee shall , after adequate notification and being afforded the opportunity to provide the service, promptly refund all � . deposits or advance charges paid for the service in quest4on by said subscriber or programmer. (2) If any subscriber terminates any monthly service during the first twelve (12) months of said service because of the failure of the Grantee to render the service. in accor- dance with the standards set forth in this ordinance, the Grantee shall refund to such subscriber an amount equal to 1 the installation or reconnec- tion 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 annual payment in . -26- advance, a similar portion of said payment shall be refunded by the Grantee. (3) If any subscriber terminates, for personal reasons, any monthly service prior to the end of a prepaid period, a prorata portion of any prepaid subscriber service fee, using the number of days as a basis, shall be refunded to the subscriber by the Grantee. (1) Costs of Rate Regulation to Grantee. All costs to the City arising out of a peti- tion for rate change shall be borne by Grantee. Costs shall include, but not be limited to consultant's fees, attorney's fees, and administrative expenses. The payment of said costs shall be a condition precedent before any rate change shall become effective. Costs shall be reasonable. (m) Annual Review. Notwithstanding anything to the contrary herein, an inflationary increase of up to eight percent (8%) shall be allowed annually upon a showing of need. To obtain the increase Grantee shall file its written request within ninety (90) days after the end of Grantee's fiscal year. The written request shall substantiate the inflationary pressures and the costs of doing business, and shall state the increase in per cent and real dollars. The increase shall go into effect automatically on the sixtieth (60th) day after filing except if the City shall deny said increase by ordinance. Any denial of the inflationary increase shall only be done upon the basis that said inflationary pressures are nonexistent or inaccurately portrayed. (n) Automatic Pass-Through of Copyright and LACME Costs. For purposes of establishing rates, copyright expenses and amounts allocated to the local access channel management entity (LA(ME) shall be an add-on to rates and shall be automati- cally passed through to subscribers. Amounts allocated to copyright and LACME costs shall be shown separately on the monthly bill to subscribers. -27- r • (o) Pass-through of Franchise Fees, When. In the event the City increases franchise fees, any increase over the five per cent (5%), now established, shall be an add-on to rates and shall be automatically passed through to subscribers. After the initial guaranteed rate period shall have expired, Grantee may petition the City for permission to establish the entire franchise fee as an add-on to rates. 5.4 Local Access Channel Management. (a) Intent. In order to achieve utilization of access channels that is in the best .public' interest, it is the intent of the Grantor to ensure that the access and community channels are governed by an appropriate not-for-profit entity, so j that these channels may be open to all resi- dents of the City and available for all forms of public expression, community information, and debate of public issues. The appropriate entity shall be created, chosen or designated ,. by the City Council and shall have substan- tially the following form, functions, proce- 1 dures and support: r E . (b) Functions. I The local access channel management entity (LACME) shall have the following functions: (1 ) Responsibility for program pro- duction for and management of the Public Access Channel and all other channels as may in the franchise agreement be designated for community-based I programming. Community chan- nels may include Government and f Educational Access channels, .as designated in 'the franchise agreement. (2)" To assure that the Public Access and. Community channels are made available to all resi- dents of the City on a non- discriminatory, first-come, . t first-served basis. (3) To assure that no censorship or control over program content of the Public Access and Community channel (s) exist, except as is �r- -28- necessary to comply with the prohibition of material that is ' obscene, or material that con- ducts a lottery. ' (4) To devise, establish and admi- nister all rules, regulations and procedures pertaining to the use and scheduling of the Public Access and Community channels. (5) To prepare, in conjunction with the Grantee, such regular or special reports as may be required or desirable. (6) To hire and supervise staff. j (7) To make all purchases of materials and equipment that may be requi red. (8) To develop additional sources of funding, such as foundation or federal or state grants, to further community programming. - (9) To perform such other functions relevant to the Public and Community channels) as may be appropriate. (c) Access Rules. i 4 The LACK shall complete a set of rules for the use of the Access and Community channel.s. which shall be promptly forwarded to the Grantor. The rules shall be prepared in con- sultatson with the Grantor, and confirmed by a contractual agreement between the LACK and the Grantor. The rules shall , at a minimum, provide for: (1) Access on a first-come, first- , served, non-discriminatory basis for all residents of the City; .. I . (2) Prohibition of advertising for political purposes, as defined by, the FCC; (3) Prohibition of any presentation of lottery information, or obscene or indecent material ; (4) Public inspection of the log of producers, which shall be retained by the LACK for a -29- 1 + 1 period of two (2) years; ! (5) Procedures by which individuals or groups who violate any rule i may be prevented from further access to the channel ; and i(6) Free use of such reasonable amounts of channel time, cable- j casting facilities, and tech- nical support as are provided for in the agreement between the LACME *and the Grantor. f (d) Funding For The Local Access Channel Management Ent1ty. f It is the intent of the Grantor that the LACME obtain partial funding from the Grantee, to the extent defined in the franchise agreement. (e) Local Access Channel Management Entity Reports to Grantor. The LACME shall provide a report to the Grantor, at least annually, indicating achievements in community-based programming and services. The LACME shall also provide a special report each time Grantee requests an increase in rates, indicating the level and quality of Grantee's support, during the period elapsed since any previous rate increase was implemented. E (f) Grantor Approval Upon Delegation. Should the enforcement of this ordinance be delegated, the entity to.which enforcement is delegated shall first seek Grantor's approval of a contract with the LACME chosen before entering into said contract. f 5.5 Other Business Activities of Grantee. During the period of the franchise, neither the Grantee nor its affiliates, any of f or parent organizations, officers or directors or stockholders holding two percent (2%) 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 any subscriber to purchase, rent or j lease radios or televisions at any specific business renting, leasing or selling radios or televisions or to utilize the J services of any specific TV or radio service business for the repair or maintenance of the subscriber's receivers, either . 1 -30- radio or TV, wheresoever located. The purpose of this provision is to encourage com- petition• by discouraging market forces that would tend to place the television repair and sales business with Grantee. SECTION 6: GENERAL FINANCIAL AND INSURANCE PROVISIONS j 6.1 Performance Bond. f i (a) When Filed, Amount. i Within thirty (30) days after the granting of ' this franchise and prior to the commencement of any construction work by the Grantee, the Grantee shall file with the City a performance and surety bond in the amount of One Hundred Thousand Dollars ($100,000.00) in favor of the City and any other person who may claim dama- ges as a result of the breach of any duty by the Grantee assured by such bond. In the M event the Grantee shall faithfully comply with � . all applicable statutes, ordinances and regu- lations governing the franchise and shall faithfully complete the construction of the facilities contemplated herein and shall receive a certificate of completion from the City, then the obligation under such bond shall be void, otherwise it shall remain in. full force and effect. (b) Form Approved by City Counselor. Such bond as contemplated herein shall be in the form approved by the City Counselor and shall, among other matters, cover the cost of removal of any properties installed by the Grantee in the event said Grantee shall default in the performance of its franchise obligation. .(c) No Limitation of. Liability. In no event shall the amount of said bond be construed to limit the liability of the , Grantee for damages. + 6.2 Compliance Bond. t (a) When Filed, Amount. 1 In addition to the performance bond set forth above, the Grantee shall , at least thirty (30) days prior to the commencement of operation, file with the City a compliance bond in the �. i -31- f amount of One Hundred Fifty Thousand Dollars ($150,000.00) in favor of the City and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the Cable Communications System operated under this franchise, and including the payments required to be made to the City hereunder. (b) Form Approved By City Counselor. f Such bond as contemplated herein shall be in the form approved by the City Counselor and i shall , among other matters, cover the cost of ' removal of any properties installed by the Grantee in the event said Grantee shall i default in the performance of its franchise obligation. (c) No Limitation of Liability. { In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages. i 6.3 Security Fund. (a) When Filed, Amount. Within thirty (30) days after the effective date of the franchise, the Grantee shall depo- sit into a bank account established by the City and maintain on deposit through the term of this franchise, the sum of Five Thousand Dollars ($5,000.00), as security for the faithful performance by it of all the provi- sions of this franchise, and compliance with all orders, permits and directions of any agency of the Grantor having Jurisdiction over Grantee's acts or defaults under this contract, and the payment by the Grantee of any claims, liens and taxes due the Grantor which arise by reason of the construction, operation or maintenance of the system. (b) Restoration of Fund. Within thirty (30) days after notice to it 1 that any amount has been withdrawn by the City i from the security fund, the Grantee shall deposit a sum of money sufficient to restore such security fund to the original amount. j t -32- I i , W Fund Use Upon Failure of Grantee Payment Due. f If the Grantee fails, after ten (10) business • days notice to pay to the City any taxes due and unpaid; or, fails to repay to the City, within such ten (10) business days, any dama- ges, costs or expenses which the City shall be compelled to pay by reason of any act or default of the company in connection with this franchise; or fails, after thirty (30) days notice of such failure to comply with any pro- i vision of the franchise which the City reaso- nably determines can be remedied by an ! expenditure of the security, the City may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal , the Grantor shall notify the Grantee of the amount and date thereof. (d) Cancellation of Franchise. The security fund deposited pursuant to this section shall become the property of the � . Grantor in the event that the franchise is cancelled by reason of the default of the Grantee or revoked for cause. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the Grantee. (e) Reservation of Rights. The rights reserved to the Grantor, with respect to the security fund are in addition to all other rights of the Grantor whether reserved by this contract or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the Grantor may I have. 6.4 •Indemnification. (a) Grantee shall , at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, board, commissions, employees and volunteer workers against any and all claims, suits, actions, liability and judgments for damages (including but not j limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith): -33- i I i (1) To persons or property, in any way arising out of or through the acts or omissions of Grantee, its servants, agents or employees, or to which Grantee's negligence shall in any way contribute; (2) Arising out of any claim for invasion of the right of pri- vacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or ; patent, or of any other right of any person, firm or cor- poration (excluding claims f arising out of or relating to City- programming); and (3) Failure to comply with any ordinance or Federal or State Statute. . I (b) The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other I proceeding covered by the provisions of this ' section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any liti- gation by its own counsel at its sole cost and expense. (c) Grantee shall secure indemnity coverage from 1 an -insurance carrier licensed to transact business in .the State of Missouri in an amount not less than $1,000,000.00. 6.5 Insurances. (a) Kinds, Amounts. The Grantee shall maintain, throughout the term of the franchise, insurance in amounts at least as follows: i (1 ) Workman's Compensation Insurance• In such coverage as may be required by the workman's com- pensation insurance and safety laws of the State of Missouri and amendments thereto. 1 -34- i (2) Grantee's Liability: Each occurrence: $500,000.00; ' aggregate $1 ,000,000.00. ' (3) Comprehensive General 41a • Bodily injury each person $500,000.00 and each occurrence $1 ,000,000.00; property damage, each accident $500,000.00. (4) Comprehensive Automobile j Liability: - Including non-ownership and hired car coverage as well as owned vehicles with minimum limits as follows: bodily injury for each person $300,000.00 and each occurrence $1 ,000,000.00; property damage for each occurrence i. $100,000.00. (b) Copies Furnished. The Grantee shall furnish the City with copies of such insurance policies and certificates of insurance. tf (c) Endorsement. Such insurance policies provided for herein shall name the City, its officers, boards, commissions, agents and employees as addi- tional insureds and shall contain the following endorsement: "It is hereby understood and agreed that this insurance policy. may not be cancelled by the surety or the intention not to renew,be stated by the surety until thirty (30) days after. receipt by the City by registered ma i 1 of written notice of such intention to I cancel or not renew." i (d) No Limitation of Liability. The minimum amounts set forth herein for such ` insurance shall not be construed to limit the ` liability of the Grantee to the City under the franchise issued hereunder to the amounts of , such insurance. 4 -35 i 6.6 Franchise Processing Costs. Costs incurred in the franchise selection process by the City shall be limited to the amount specified in the Request For Proposal . Costs shall include but not be limited to, all costs of publication of notices, publication of this ordinance, consultant' s and attorneys' fees, allocable staff time, and all incidental costs. These costs are separate and in addition to all other costs or expenses set out elsewhere in this ordinance. Specifically any costs or expenses coming under the terms of paragraph 6.4 herein are separate and in j addition to costs and expenses set out herein. 6.7 Ad3ustment of Established Amounts. I The City shall have the power from time to time to review the adequacy of the amounts of performance and compliance bonds, the amount required in the security fund, and insurance coverage amounts. If because of changed cir- cumstances, such as, but -not limited to, inflation, costs of materials, and/or the record of performance of the Grantee, the City determines that any or all of the amounts set are inadequate, the City shall notify the Grantee by sending Grantee a document detailing the proposed changes. Grantee, shall have thirty (30) days to reply. After consideration of Grantee's reply, if any, the City shall establish new amounts as it .deems reasonable to protect the public welfare and pro- vide for the common good. • i SECTION 7: DESIGN AND CONSTRUCTION PROVISIONS 7.1 §Xstem Design. a The Cable Communications System shall be constructed in accordance with the design requirements con- � . tained in the franchise agreement. i 7.2 Geographical Coverage. The Grantee shall design and construct the Home Subscriber Network in such a manner as to have the eventual capability to pass by every single-family dwelling unit, multiple-family dwelling unit, agency, and business establishment within the area of the franchise. Service shall be provided to subscribers i.n accordance with the sche- dules and line extension policies specified in the franchise agreement. 7.3 Cablecasting Facilities. { The Grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement. 7.4 Early Extension. In areas not meeting the requirement for mandatory } extension of service, Grantee shall provide, upon the request of a potential subscriber desiring service, an estimate of - . I -36- the costs required to extend service to said subscriber. Grantee shall then extend service to said potential subscriber. Grantee may require advance payment or assurance of payment satisfactory to Grantee. The amount paid by subscribers for early extension shall be nonrefundable, even if the area subsequently reaches the density required for mandatory extension. 7.5 System Construction Schedule. E (a) Requirements. ! The Grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement. (b) Service Not Provided, Where. Service need not be provided where power and telephone utilities are not available. (c) Provision of Plans. � • In conjunction with construction, the Grantee shall provide a detailed construction plan, indicating progress schedule, area construc- tion maps, test plan, and projected dates for offering service. In addition, the Grantee shall update this information on a monthly i basis, showing specifically whether schedules i are being met and the reasons for any delay. I (d) Revocation. i Failure to begin construction within six (6) months after award of the franchise and access to utility poles is gained will be grounds for franchise revocation, at the option of- the Grantor. Access to utility poles shall mean when the proper franchise documents have been enacted, and when the utility companies have authorized Grantee to proceed. In no way shall Grantee be required to build its system except on strand presently in place. Grantee shall negotiate with the utility companies in j. all good haste .and in good faith. If it shall j be found by City that Grantee is not pro- ceeding with negotiations with said utility ' companies in a timely fashion, and in good faith, this shall be grounds for revocation. 7.6 Penalties for Delay in Construction. The Grantor may at its sole option, apply any of I the following in connection with delays in system construction: E -37- . I (a) Reduction of Franchise Period. Reduction in the duration of the franchise on a month-to-month basis for each month of delay. (b) Forfeiture of Bonds. Forfeiture of performance bonds for delays exceeding one (1 ) year. ! (c) Termination. Termination of the franchise for delays exceeding six (6) months. I ' . I 7.7 Provision of Service. After service has been established by activating trunk cables for any area, neighborhood or group of homes meeting the criteria of the initial service area and the line extension policy thereof, the Grantee shall provide service C to any requesting subscriber or resident thereof within ninety (90) days from the date of request. 7.8 Undergrounding of Cable. The undergrounding of cables is encouraged. In any event, cables shall be installed underground at Grantee's I cost where existing utilities are already underground. I Previously installed aerial cable shall be undergrounded in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction. 7.9 New Development- Undergrounding. In cases of new construction or property develop- ment where utilities are to be placed underground, the deve- loper or property owner shall give Grantee reasonable notice of such construction or development, and of the particular date on which open trenching will be available for Grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or vaults, and laterals within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period, the cost of new trenching is to be borne by Grantee. Notice provided to Grantee by City of a preliminary plat request shall satisfy the requirement of reasonable notice if sent to the local general manager or system • r i -38- i I engineer of Grantee prior to approval of the preliminary plat request. 7.10 ' Street Occupancy. (a) Utilization of Existing Poles. Grantee shall utilize existing poles, conduits and other facilities whenever possible, and t shall not construct or install any new, dif- ferent, or additional poles, conduits, or ! other facilities whether on public property or on privately-owned property until the written i approval of the City is obtained, which appro- val shall not be unreasonably withheld. y However, no location of any pole or wire 1 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. The Grantee shall negotiate the lease of pole space and facilities from . existing pole owners. (b) Notification of Construction. Grantee shall notify the City at least ten (10) business 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 construc- tion 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. (c) Minimum Interference. All transmission lines, equipment and struc- tures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and 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 j methods- and devices for preventing failures j and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags or other devices ! shall be used at such times and places as are reasonably required for the safety of all mem- bers of the public. Any poles or other fix- tures placed in any public way by the Grantee. shall be placed in such a manner as not to -39- i I interfere with the usual travel on such public way. (d) Restoration of Streets. Whenever the Grantee shall disturb the surface of any street, alley, public highway, or ground for any purpose mentioned herein, it shall restore the same to the condition in which it was prior to the opening thereof, and when any opening is made by the Grantee in any hard surface pavement in any street, alley or public highway the Grantee shall promptly refill the opening and restore the pavement. The Grantor may refill and/or repave in case i of neglect of the Grantee. The cost thereof, i including the cost of inspection and super- vision, shall be paid by the Grantee. All excavations made by the Grantee in the streets, alleys and public highways shall be properly safeguarded for the prevention of accidents. The work hereby required shall be done in strict compliance with the rules, regulations and ordinances of the Grantor as � . now or hereafter provided. (e) Removal of Facilities. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Chief of the Police or Fire Department 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. (f) Tree Trimming. Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wire and facili- ties, subject to the supervision and direction of the City. Trimming of trees on private property shall require written consent of the property owner. (g) Improvements by City. The Grantee at its expense shall protect, sup- i port, temporarily disconnect, relocate, or remove any property of 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 i street grade; installation of sewers, drains, i 4 -40- i i I waterpipes, power lines, signal line, transportation facilities, tracks or any other types of structures; improvements by govern- mental agencies, whether acting in a govern- mental or 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 Grantee in place. Nothing hereunder shall be deemed a taking of the property of Grantee and Grantee shall be entitled to no surcharge by reason of anything hereunder. (h) Payment Upon Grantee's Failure. Upon failure of Grantee to commence, pursue or y complete any work required by law or by the provisions of this ordinance 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 cost thereof in the itemized amounts reported by the City to Grantee within thirty (30) days after receipt of such itemized report, or City may, at its option, remove said amount from the security fund as established herein. (i) Paving Cuts. i The Grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the City. (j) Installation In Conduit. The Grantee shall install in conduit all cable passing under any public roadway. (k) Reservations of Street Rights. j Nothing. in the franchise shall be construed to prevent the Grantor from constructing sewers, grading, paving, repairing and/or altering any street, alley or public highway, or laying down, repairing or removing water mains or I constructing or establishing any other public work. All such work shall be done, insofar as , practicable, in such manner as not to obstruct, injure or prevent the free use and i 1 -41- , I 1 I operation of the poles, wires, conduits, con- • ductors, pipes or appurtenances of the Grantee. If any such property of the Grantee herein shall interfere with the construction or repair of any street or public improvement, whether it be construction, repair or removal of a sewer or water main, the improvement of a street or any other public improvement, all such poles, wires, conduits or other applian- ces and facilities shall be removed or replaced in such manner as shall be directed by the Grantor so that the same shall not interfere with the said public work of the Grantor, and such removal or replacement shall be at the expense of the Grantee herein. (1) Street Vacation or Abandonment. I In the event any street, alley, public highway or portion thereof used by the Grantee shall be vacated by the Grantor, or the use thereof discontinued by the Grantee, during the term of this franchise, the Grantee shall forthwith remove his facilities therefrom unless speci- fically permitted to continue the same, and on i the removal thereof restore, repair or reconstruct the street area where such removal . has occurred, and place the street area where such removal has occurred in such condition as may be required by the Grantor. In the event of failure, neglect or refusal of the Grantee, after thirty (30) days' notice by the Grantor ; to repair, improve or maintain such street 1 portion, the Grantor may do such work or cause I it to be done, and the cost thereof as found and declared by the Grantor shall be paid by the Grantee and collection may be made by court action or otherwise. (m) Movement of Facilities. In the event it is necessary temporarily to move or remove any of the Grantee's wires, cables, poles, or other facilities placed pur- suant to the franchise, in order lawfully to , move a large object, vehicle, building or other structure over the streets, alleys or highways of the Grantor, Grantee upon reaso- nable notice shall move, at the expense of the person, except for the City, requesting the temporary removal , such facilities as may be ` required to facilitate such movements. 1 t t -a2- :s 7.11 Construction and Technical Standards. • (a) Construction Standards. f (1 ) Compliance with Safety Codes. ! All installation of electronic equipment shall be of a per- manent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended. (2) Compliance with Electrical Co es. All installation of electronic equipment shall be of a per- manent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended. (3) Antennas and Towers. � . Antenna supporting structures ' �. (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R.S. 222 C. Specifications, or any specifi- cation superceding same. (4) Compliance with Aviation e irements, i Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all appli- cable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes, laws and regulations. ff 1 . (5) Construction Standards and I. Requirements. All of the Grantee's plant and equipment, including but not limited to the antenna site, j head-end and distribution _ system, towers, house connec- tions, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in . i f accordance with good engi- neering practices, performed by • experienced maintenance and construction personnel so as not to endanger or interfere with improvements the municipa- lity may deem proper to make, or to interfere in any manner i with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian J or vehicular traffic on munici- pal properties. (6) 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. (b) Technical Standards. The Cable Communications System shall meet all technical and performance standards contained in the franchise agreement. (c) Test and Compliance Procedure. The Grantee shall submit, within sixty (60) days after gaining access to rights-of-way, a detailed test.plan describing the methods and schedules for testing the Cable Communications System on an ongoing .basis to determine compliance with the provisions of the . franchise agreement. The tests for Basic Subscriber Television Services shall be per- formed periodically, at intervals no greater than every six (6) months, on a minimum of twenty (20) subscriber television receivers, locations-shall be At the far end of the distribution trunk cables. The tests may be witnessed at the option of Grantor by repre- sentatives of the Grantor, and written test reports shall be submitted to the Grantor. If more than ten percent (10%) of the locations tested fail to meet the performance standards, the Grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated for at least twenty (20) different locations. A second failure of more than ten percent (10%) may result, at the Grantor's option, in an order to reduce. subscriber rates due to degraded service. -44- t 1 j (d) Special Tests. 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 indi- cating an unresolved controversy or signifi- cant noncompliance, and such tests will be limited to the particular matter in contro- versy. The City will endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber.. 7.12 Areawide Interconnection. (a) Interconnection Required. The Grantee shall interconnect origination and access channels of the Cable Communications System with any or all other cable systems in adjacent areas, upon the directive of the City. Interconnection of systems shall permit interactive transmission and reception of program material , and may be done by direct cable connection, microwave link, satellite, or other appropriate method. (b) Interconnection Procedure. I Upon receiving the directive of the City to . I interconnect, the Grantee shall immediately initiate negotiations with the other affected system or systems. The cost shall be borne by both Grantees, in proportion to the number of channels received to total number of channels transmitted and received, under the assumption that benefits accrue primarily through receipt of additional channels. In the case of regional or statewide intercon- nection, the same principle shall apply. I . (c) Relief. The Grantee may be granted reasonable exten- sions of time to interconnect or the City may I rescind its order to interconnect upon peti- tion by the Grantee to the City. The City may, grant said request if it finds that the Grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would II -45- +. cause an unreasonable or unacceptable increase in subscriber rates. (d) Cooperation Required. 4 The Grantee shall cooperate with any intercon- nection corporation, regional interconnection + authority or city, county, state and federal regulatory agency which may be hereafter established for the purpose of 'regulating, financing or otherwise providing for the interconnection' of cable systems beyond the boundaries of the City. (e) Initial Technical Requirements to Assure Future Interconnection Capability. (1 ) All Cable Communications Systems receiving franchises to operate within the City shall use the standard frequency allocations for television signals. (2) All Cable Communications Systems are required to use signal processors at the head- end for each television signal . SECTION 8: SERVICE PROVISIONS 8.1 Services to be Provided. The Grantee shall provide, as a minimum, the ser- vices listed in the franchise agreement. Services shall not be reduced nor enlarged without prior approval of the Grantor. Should Grantor desire to reduce or enlarge ser- vices, including premium services, the Grantee shall: (1 ) File its application to enlarge or reduce with the City, which application shall describe the services to be added or deleted along with the reason therefor and the cost thereof ("cost meaning the direct and indirect' costs to Grantee of providing the service to be deleted or added); (2) The City shall take up ` Grantee's application and shall allow or disallow the proposed action within sixty (60) days. The City shall, use as its cri- i -46- f . ... � •.wr..� . .+....... .a. ..... .«r.�...w.r....`.waa�-r.r.r.,w.✓« .r......... .,... .. ' r..n... . teria the affect on rates that such proposed action would have, and the nature of the proposed change as compared to the affect on rates. (3) If any programming service shall have gone out of busi- ness, no action by Grantee need be taken. 8.2 Basic Subscriber Television Signal (BSTS) . The "Basic Subscriber Television Service" shall include the FCC required services, the distant television broadcast signals, the imported non-broadcast signals, the provision of all other cablecast open-channel signals. This service shall be provided to all subscribers at the established BSTS subscription rates. 8.3 Basic Subscriber Radio Service. The "Basic Subscriber Radio Service" shall include the provision of all audio service designated in the franchise agreement, including broadcast FM and cablecast FM signals. This service shall be provided to all subscribers at the established BSRS monthly subscription rates. 8.4 Institutional Service (.IS) . The "Institutional Service" shall include the pro- vision of transmission and/or reception services to institu- tional users on a leased channel basis at established IS rates. Services may include the distribution of video or non-video signals. 8.5 Additional Subscriber Services. "Additional Subscriber Services," not included in the BSTS and TSRS services specified above, may be provided either within the basic subscription rates, or on a premium basis. 8.6 Local Origination/Government Access/Education Access/Community Access. The Grantee shall provide three channels for the use of the Grantor at no charge to the Grantor, which chan- nels shall be used for local education needs, public access needs, governmental needs, or needs whatsoever as determined by Grantor. The- Grantee may use -said channels when not used by Grantor, and upon approval of Grantor. Should the enforce- ment of this ordinance be delegated to an entity under Art. 6 Section 16, and Chap. 70 RSMo, that entity shall be empowered to contract with a local access channel management entity which may be authorized by contract to develop, program and otherwise operate the three channels so provided. -47 8.7 New Developments. (a) Amendment of Franchise. It shall be the policy of the City to liberally amend a 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 and radio signals which will afford it an oppor- tunity more effectively, efficiently or econo- mically to serve its customers. This section ; shall not be construed to require the City to make any amendment or to prohibit it from authorizing improvement or redesign or a system without application. (b) ordering of Improvement. If the City determines new developments are appropriate, giving due regard to limitations In technology and economic reasonableness, including without limitation the increasing of channel- capacity, it may by ordinance order such reasonable improvements or upgrading of the cable system by the Grantee within a reasonable time. 8.8 Protection of Subscriber's Privacy. (a) Use of Data from Subscriber. A Grantee shall not initiate or use any form, procedure or device for Procuring information or data from subscribers terminals by use of the network, without prior notification to and approval from each subscriber so affected. (b) Subscriber Lists. The Grantee shall not, without prior valid authorization from each subscriber so affected, provide any list designating subscribers' names and addresses to any party. (c) Subscriber Transmissions. Grantee shall not permit the installation of any special terminal equipment in any subscriber's premises that will permit transmission from subscriber's premises of two-way services utilizing audio, visual or digital signals without first obtaining writ- ten permission of the subscriber. -48- (d) Audit Unimpeded. No Provision of this Section shall be construed to impede or prevent any audit authorized or required by this Chapter. 8.9 Program Alteration. Except as deletions are required by law, all programs of broadcasting stations carried by the Grantee shall be carried in their entirety as received with announ- cements and advertisements and without additions. 8.10 Obscenity/Pornograph. No Grantee when engaged in origination cablecasting as defined by 47 CFR 5(2) , and this ordinance in its basic services, in its premium services or in any other service, shall. transmit or permit the transmission of material that is obscene. SECTION 9: OPERATION AND MAINTENANCE 9.1 Open Books and Records. The Grantee shall maintain an office within the franchise territory, and manage all of its operations in accordance with a policy of totally open books and records. The Grantor shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results 'and other like materials of the Grantee which relate to the operation of the franchise. Access to the aforementioned records shall not be denied by the Grantee on the basis that said records contain "proprietary" information. 9.2 Reports Required. The Grantee shall file with the City, on request and within fifteen (15) days, any of the following: (a) FCC Form 325. An "Annual Report of Cable Television Systems" (FCC Form 325, Schedules 1, 2, 3 and 4) . -49- ( (b) Facilities Report. 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. i (c) Subscriber Data. . i The Grantee's schedule of charges, contract or application forms for regular subscriber ser- vice, 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. All such terms and conditions, including schedule of charges must be approved by the City prior to their becoming effective. (d) Regulatory Agencies and Utility Companies. All petitions, applications and communications of all types submitted by 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 the operation of Grantee's system and any uti- lity company from which Grantee leases poles, shall be submitted simultaneously to the City by delivery to the City Clerk who shall advise interested City departments of such filing. Copies of responses from the regulatory agen- cies and utility companies to the Grantee shall likewise be furnished simultaneously to the Grantor. (e) Performance Bond. The performance bond or a certified copy thereof and written evidence of payment of required premium. (f) Compliance Bond. s The compliance bond or a certified copy I thereof and written evidence of payment of required premium. -50- (g) Insurance Policies. jAll policies of insurance or a certified copy thereof and written notice of payment of required premium. (h) Ownership Report. i An Ownership Report, indicating all persons who at any time during the preceding year did control or benefit from an interest in the franchise. (i) Conduct of Business Rules. All rules, regulations, terms and conditions which it has adopted for the conduct of its business. (j) Technical Measurements. One (1 ) copy of a report on the system's tech- nical measurements as set forth herein. (k) Financial Report. An annual and certified (by an officer of the corporation) financial report for the previous calendar year, including gross revenues from all sources, gross subscriber revenues from each category of service, net income and end- of-year balance sheet for the whole company. An audited report shall be provided upon request., (1 ) Activities Report. An annual summary of the previous year's acti- vities including but not limited to subscriber totals and new services. (m) Complaints. An annual summary of complaints received and handled; and (n) Future Plans. An annual projection of plans for the future. -51- - . i 9.3 Information Required. (a) Maintenance of Information. The Grantee shall at all times maintain: t . (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 Cable Communications System equipment installed or in use in the City, exclusive of subscriber service drops. (b) . Filing. When not otherwise prescribed herein, all mat- ters required to be filed with the City shall be filed with the City Clerk. (c) Other Records. The City may impose reasonable requests for additional information, records and documents from time to time. (d) Inspection of Property and Records. At all reasonable times, Grantee shall permit examination by any duly authorized represen. tative. of the City of all franchise property, together with any appurtenant property of Grantee situated within or without the City. . 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 Grantee or under its control concerning the operations, affairs, transactions or property of Grantee. If any of such maps or records are not kept in the City, or upon reasonable request made available to 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 expense necessarily incurred in making such examination shall be paid by Grantee. -62- I 9.4 Maintenance and Complaints. i (a) Business Offices. • i The Grantee shall maintah appropriate business offices in the franchise territory which shall ' be open during all usual business hours, have a publicly listed toll-free telephone and be so operated to receive subscriber complaints and requests for repairs or adjustments on a twenty-four (24) hour basis. A written log shall be maintained listing all complaints and their disposition. (b) Interruptions. The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by a notice and shall occur during periods of minimum use of the system. A written log shall be maintained for all service interruptions. (c) Repair Force. The Grantee shall maintain a repair force of technicians which shall respond to subscriber complaints or requests for service within twenty-four (24) hours after receipt of the complaint or request. No charge shall be made to the subscriber- for this service. (d) Information to Subscribers. The Grantee shall furnish each subscriber at the time service is installed, written instructions that clearly set forth proce- dures, furnish information concerning the pro- cedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be! addressed, and furnish information concerning the City office responsible for admi ni strat': of of the franchise with the address and telephone number of the office. 9.5 Rights of Individuals. (a) Equal Rights. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or citizens on the basis of -53-. I race, color, religion, natural origin, age or sex. Grantee shall comply at all times with i all other applicable federal , state and local • laws and regulations, and all executive and administrative orders relating to non- discrimination which are hereby incorporated and made part of this ordinance by reference. (b) Equal Employment. Grantee shall strictly adhere -to the equal employment opportunity requirements of the FCC, and other federal state and local laws and regulations, as amended from time to time. (c) Right of Privacy in Transmission. No signals of a Class IV cable communications channel shall be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. The request for such permission shall be con- tained in a separate document with a prominent statement that the subscriber is authorizing the permission in full knowledge of its provi- sion. Such written permission shall be for a limited period of time not to exceed one (1 ) year, which shall be renewable at the option of the subscriber. No penalty shall be invoked for a subscriber's failure to provide or renew such an authorization. The authori- zation shall be revocable at any time by the subscriber without penalty of any kind what- soever. Such authorization is required for each type of classification of Class IV cable television activity planned; provided, however, that the Grantee shall be entitled to conduct systemwide or individually addressed "sweeps" for the purpose of verifying system integrity, controlling return-path transmission, or billing for pay services. (d) Right of Privacy in Subscription. The Grantee, or any of its agents or employees, shall not, without the specific written authorization of the subscriber involved, sell or otherwise make available to any party: (1 ) Lists of the names and addresses of such subscribers, or (2) Any lists which identify the viewing habits of- individual subscribers. . -54- (e) Fairness of Accessibility. The entire system of the Grantor shall be operated in a manner consistent with the prin- ciples of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, busi- nesses, public agencies and other entities having a legitimate use for the network; and no one shall be arbitrarily excluded from its use; allocation of use of said facilities shall be made according to the rules or deci- sions of the Grantee and any regulatory agen- cies affecting the same. 9.6 Continuity of Service Mandatory. (a) Right to Continuity. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the system, or the City gives notice of intent to terminate or fails to renew this franchise, the Grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. In the event of a change of franchisee, or in the event a new operator acquires the system, the Grantee shall -cooperate with the City, new franchisee or operator in maintaining con- tinuity- of service to all subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it opera- tes the system, and shall be entitled to reasonable costs for its services when it no longer operates the system. (b) Upon Failure City May Operate. In the event Grantee fails to operate the system for seven (7) consecutive days without prior approval of the City or without just cause, the City may, at its option, operate• the system or designate an operator until such time as Grantee restores service under con- ditions acceptable to the City or a permanent operator is selected. If the City is. required to fulfill this obligation for the Grantee, the Grantee shall reimburse the City for all reasonable costs or damages in excess of reve- nues from the system received by the City. -55, 9.7 Grantee Rules and Regulations. i i The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its obligations under said franchise, and to assure an unin- terrupted service to each and all of its customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable local , state and federal laws, rules and regulations. Such rules, regulations, terms and conditions shall be submitted to the City for its review and City appro- val is required prior to their becoming effective. SECTION 10: RIGHTS RESERVED TO THE GRANTOR 10.1 Right to Purchase the System; Binding Arbitration. The Grantor may in any lawful manner and upon the payment of a fair valuation lawfully ascertained purchase, condemn, acquire, take over and hold the property and plant and contract rights of the Grantee in whole or in part; if such purchase or taking over be upon revocation of the franchise, such valuation shall not include any sum for the value of ,the franchise under which such plant and property is being operated. Upon expiration of the franchise, the Grantor may in any lawful manner and upon the payment of a fair market value acquire the property, plant, and contract rights of the Grantee in whole or in part. If a fair market valuation can- not be agreed upon by the City and Grantee, then the question of valuation shall be subject to binding arbitration. Binding arbitration shall occur upon the option of the City or the Grantee and there shall be no need to show, or in any way.demonstrate, that negotiations occurred in good faith. Binding arbitration shall proceed as follows: (1 ) Upon written notification of one party to the other, the binding arbitration process shall begin. (2) Upon notification, both parties shall have forty-five (45) days to select an arbitrator; who shall be knowledgeable in the CATV industry. (3) The two arbitrators so selected shall choose a third arbitra- tor, and the three (3) arbitra- tors shall then have one hundred twenty (120) days to deliver a written report establishing a value. The report may be delivered upon a majority opinion of the arbitrators. -56- 1 • (4) While the decision of the panel l or arbitrators on the value of the system, or portion of the system, to be acquired shall be binding, this shall in no way be construed to require the City to purchase the system. (5) If the enforcement of this ordinance is delegated, the entity to which enforcement is delegated shall not proceed to arbitration without the appro- val of the City. 10.2 Right of Inspection of Records. There shall be kept in the Grantor's office a separate record for the franchise, which record shall show the information described below in this section. The Grantee shall provide such information in such form as may be required by the Grantor for said records. (a) Costs. The true and entire cost of construction of equipment, of maintenance and of the admi- nistration and operation thereof; the amount of stock issued, if any; the amount of cash paid in, the number of par value shares, the amount and character of indebtedness, if any; the rate of taxes, the dividends declared; the character and amount of all fixed charges; the allowance, if any, for interest, for wear and tear or depreciation; all amounts and sources of income. (b) Collections. The amount collected annually for the City treasury and for the local access channel management entity. (c) Other Revenues. The amount collected annually from other users of service and the character and extent of service rendered to them. 10.3 Right of Inspection of Construction. The Grantor shall have the right to inspect all construction or installation work performed subject to the provisions of said franchise and to make such tests as it shall find necessary to ensure compliance with the terms of -57-• I said franchise and other pertinent provision of law, all at the expense of Grantee. Said costs shall be reasonable. Before any costs shall be incurred, Grantor shall submit a budget detailing said costs to Grantee, which shall have fif- teen (15) days in .which to comment. i 10.4 Right of Intervention. I The Grantor shall have the right of intervention in any suit or proceeding to which the Grantee is party, and the Grantee shall not oppose such intervention by the Grantor. 10.5 Right to Require Removal of Property. At the expiration of the term for which the franchise is granted or upon its revocation or expiration, as provided for herein, the Grantor shall have the right to require the Grantee to remove, at its own expense, and/or all portions of the Cable Communications System for all streets and public ways within the City within a reasonable time, but not to exceed three (3) months. SECTION 11 : RIGHTS RESERVED TO THE GRANTEE 11.1 Right of Grantee. Should the Grantee become dissatisfied with any material decision or ruling of the Grantor pertaining to cable communications matters, the Grantee may pursue such other remedies as are available, including the bringing of actions in any court of competent Jurisdiction. SECTION 12: MISCELLANEOUS PROVISIONS 12.1 Compliance with City, State and Federal Laws. Notwithstanding any other -provisions of this ordi- nance to the contrary, the Grantee shall at all times comply with all. laws and regulations of the City, state and federal government or any administrative agencies thereof. Provided, however, if any such state or federal law or regulation shall require the Grantee to perform any service, or shall permit the Grantee to perform any service, or shall prohibit the Grantee from performing any service in conflict with the terms of this franchise or of any law or regulation of the City, then as soon as possible following knowledge thereof, the Grantee shall notify the City of the point of conflict believed to exist between such regulation or law and the laws or regulations of the City or this franchise. If the City determines that a material- provision of this ordinance is affected by any subsequent action of the state or federal government, the City shall have the right to modify any of the provisions herein to such reasonable extent as may be necessary to carry out the full intent and purpose of this agreement. _58- 12.2 Notices. All notices from Grantee to the City pursuant to this franchise shall be to the City Clerk. Grantee shall maintain with the City, throughout the term of this franchise, an address for service of notices by mail . 12.3 Public Notice. Minimum public notice of any public meeting relating to this franchise shall be by publication at least once in a newspaper of general circulation in the area at least ten (10) days prior to the meeting, posting at City ; Hall, and by announcement on at least two (2) channels of the Grantee's Cable Communications System between the hours of ! 7:00 p.m. and 9:00 p.m. for five (5) consecutive days prior to the meeting. 12.4 Captions. i i The captions to sections throughout this ordinance ' are intended solely to facilitate reading and reference to the sections and provisions of this ordinance. Such captions ! shall not ,affect the meaning or interpretation of this ordi- nance. 12.5 No Recourse Against the Grantor. The Grantee shall have no recourse whatsoever against the Grantor or its officials, boards, commissions, agents or employees for any loss, cost, expense, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise. 12.6 Non-enforcement by the Grantor. The Grantee shall not be relieved of its obligation to comply with any of the provisions of this ordinance or said franchise by reason of any single or repeated failure of the Grantor to enforce compliance. 12.7 Liquidated Damages Chargeable Against Grantee. Upon a finding by the City, after reasonable notice to the Grantee, that the Grantee has failed to timely comply with any requirements of this ordinance and that such failure was not due to conditions beyond Grantee's control , the City shall charge Grantee Five Hundred Dollars ($500.00) per day for each day or part thereof, the deficiency continues. Liouidated damages so charged are not in lieu of other dama- ges that might be recoverable from Grantee. 12.8 Theft of Services and Tampering. (a) Violation. No person, whether or not a subscriber to the cable system may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or apparatus of Grantee, or • commit any act with intent to cause such -59- ` a I damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus or appur- tenances of Grantee with the intent to obtain I a signal or impulse from the cable system without authorization from Grantee and compen- sation (at Grantee's option) to the Grantee, or to obtain cable television or other com- munications service with intent to cheat or defraud Grantee of any lawful charge to which it is entitled. (b) Punishment. Any person convicted of violating any provi- sion of this section- is subject to a fine of not more than Five Hundred Dollars ($500.00) for each offense or imprisonment of not more than ninety (90) days or both such fine and Imprisonment. Each day's violation of this section shall be considered a separate offense. 12.9 Subsequent Action By State or Federal Agencies. Should the State of Missouri, the FCC or any other agency of the Federal government subsequently require the Grantee to deliver any signals in addition to those required by this franchise, or to perform any act which is incon- sistent with any provisions of the franchise, the Grantee shall so notify the Grantor. Upon receipt of such notifica- tion, the Grantor shall determine if a material provision of the franchise is affected. Upon 'such determination, the Grantor shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may. be necessary to carry out the full intent and purpose of the franchise. The Grantor may terminate the franchise in the event the Grantor determines that substantial and material compliance with the original proposed terms of the franchise has been frustrated by such state or federal requirement. SECTION 13: GUARANTEE OF PARENT(S) 13.1 Obligation. Any franchise given to a subsidiary of a cor- poration, either wholly owned or controlled, shall be guaranteed by the parent or controlling corporation. Said guarantee by the parent or controlling corporation shall guarantee faithful performance of all the terms of said franchise, and the payment of all damages, costs and expenses which by virtue of the franchise might become recoverable by the City from the Grantee. -60- • J 10 4 13.2 Terms of Guarantee. This guarantee shall continue throughout the term • of the franchise; and the Grantee (the said parent or y controlling corporation) shall not be released of its obliga- tion so long as any claim of the City against the Grantee arising out of the foregoing franchise is not settled or discharged in full . 13.3 Benefit. The guarantee shall inure to the benefit of the City or its assigns, and shall, be binding upon the Grantee and its successors or assigns. 13.4 Other Ownership. If an entity to which a franchise is awarded is owned or controlled by something other than a corporation(s), the City shall have full authority to require 'appropriate guarantee from any individual , partnership, association, organization or any lawful successor, transferee or assignee, as the City deems necessary to protect the public interest. This authority shall likewise exist if the entity to which a franchise has been awarded is controlled or owned by a com- bination of corporation(s) and any entities herein. listed. SECTION 14: ACCEPTANCE Any ordinance awarding a franchise to a specific company and this ordinance shall be accepted by the Grantee- by writ- ' ten instrument executed and acknowledged by it as a deed is required to be filed with the City Clerk within fifteen (15) days after notification of the passage of the ordinance awarding a franchise. Such written instrument shall state and express the acceptance of this ordinance and the ordi- nance awarding a franchise and their terms, conditions and provisions; and said Grantee shall agree in said instrument to abide by to observe a-nd perform. same, and declare that statements and recitals therein are correct and that it has made and does make the agreements, statements and admissions in the ordinances recited to have been or to be made. SECTION IS: SEVERABILITY If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION 16: EFFECTIVE DATE This ordinance shall be in full force and effect after -61- • i its passage and approval . PASSED AND APPROVED THIS _6f---DAY OF 1982. . mlyr ATTEST: ty er _b2_ :i; i ,. '� � .. �t.. '.. . ». ROLL NUMBER RECORDS CERTIFICATION Y, the undersigned, an employee of Custom Imaging Service, L.L.C. do hereby certify that the microfilm images on this reel of microfilm (Reel are complete and accurate reproductions of the original records of City of Jefferson as accilmulated during the regular business, and that it is the established policy and practice of this company to microfilm it's records for permanent file and to dispose of the original records after microfilm reproductions have been made and assigned to the company files. Name Title Date AV e Title Date Reduction Ratio: 32X ,,':' � , ,;� ,. .. ,; 1,, �z CONTROL TEST TARGET Kodak Quality Monitoring Program 0 100 mm 200 mm 0 e� Illrl��il�ll III III _ III _ 0 1. ` 12 12.5 1.0 ` 1® 125 10 L"- 12 2.5 so so ® . so !tom II�I� al9NA IIIII 11A 1 go 111112.1 90 IIII1I2.0 '° IIIII® IIIII ''-8 -- IIIII '-8 IIIII 111111.25 i.4 111111.6 illll1.25 jjuj 1.4 111111.6 111111.6 0 0 3 3 0 0 LINE BACKGROUND An Ob Ca Dd t*1109 Hh II JI Kk LI Mm Nn Do Pp Oq Rr 8e Tt Uu Vv Ww Xr Yv Zt 0 1 2 3450 7 0 9 10 11 12 13 14 16 10 17 18 19 20 21 22 23 24 2526 27 20 29 30 31 3233 34 36 36 37 38 3940 41 4243"45484748495 AO BbCODdEO Ff OgHhIIJJKkLIMmNnOoPpOgRrS6TtUuVvWwXxYyZz 01 2 34 58 7 881011 12 13 14 15 16 17 18 19 20 21 22 2324 25 28 27 28 29 30 31 32 33 34 35 38 3738 AS Bb CcDdEeFfGgHhliJj KkLIMmNnOoPpQgRrSeTtUUVvWwXxYyZZ 1 2 3 4 5 8 7 8 9 10 11 12 13 14 16 16 17 18 19 20 21 22 23 24 Aa Bb Cc Dd Ee Ff Gg Hh li Jj Kk LI Mm Nn Oo Pp Qq Rr Ss Tt Uu Vv Ww Xx Yy Zz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 A8 Bb Cc Dd Ee Ff Gg Hh Ii Jj Kk LI Mm Nn Oo Pp Qq Rr Ss Tt U Vv Ww Xx Yy Zz 1 2 3 4 5 6 7 8 9 1 N 8 EASTMAN KODAK COMPANY 3 Rochester, NY 14650 BUSINESS IMAGING SYSTEMS 0 Eastman Kodak Company,1995 Printed In U,S,A. A•2289 05 CONTROL TEST Kodak Quality Monitoring Program 0 100 mm 200 mn, o x� o iS 1.0 9912.8 2.5 �1 5 2.a 2.5 ! �.J AS 2.a 2.5 so �� X12 ,� ill LU II?-? ja 0 r I�i 2`2 I � [11112.2 -- s.l 4,0 IIII2 �.� 1.0 IIIII.0 M.� '° 111112.0 1 !!lff l.� 111111.25 1. = I�III'. 5 IIIII I. 0 p 3 I W LINE BACKGROUND A.Sb Cc Dd E.FI G9 Hh 11 JI Kk LI Mm Nn Oo Pp Qq Rr 5.Tt Uu Vv W w xx Yv 2z 0 1 2 3 4 6 6 7 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 38 37 38 39 40 41 42 43 44 45 46 47 48 49 6 AaBbCcDdEeFf GgHhliJJKkLIMmNnOoPpQgRrSeTtUuVvWwXxYyZz 01 234567891011 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 AeBbCcDdEeFfGgHhliJjKkLIMmNnOoPpQgRrSsTtUuVvWwXxYyZz 1 234567891011 12 13 14 15 16 17 18 19 2021 22 23 24 AaBbCcDdEr✓FfGgHhIIJ jKkUMmNnOoPpQgRrSsTtULIVVWWXXYyZz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 AaBbCcDdEePfGgMhiiJ jKkl.IMmNnOoPpQgRr3sTtUuVvWwXxYyZz 1 2 3 4 5 6 7 8 9 1 O EASTMAN KODAK COMPANY 3 Rochester, NY 14650 BUSINESS IMAGING SYSTEMS 11W 0 Eastman Kodak Company,1995 Printed in U.S.A. A•2289 8/9E iniTLmt: TA.RUET COUNTY: COLE _ OFFICE: CITY OF JEFFERSON TITLE OF RECORD: ORDINANCES ARRANGEMENT: x]UMERIC w, ROLL N M � � R :Mono RECORDS CERTIFICATION I, the undersigned, an employee of Custom. Imaging Service, L.L.C. do hereby certify that the microfilm images on this reel of microfilm (Reel N0,,,, are complete and accurate reproductions of the original records of City of Jefferson as accumulated during the regular business, and that it is the established policy and practice of this company to microfilm it's records for permanent file and to dispose of the original records after microfhn reproductions have been Made and assigned to the company files. Name Title Date '7—c2l 97 e Title Date . Reduction Ratio: 32X