AN ORDINANCE GRANTING A FRANCHISE TO N.W. COMMUNICATIONS, INC., TO OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM WITHIN THE CITY OF RICH HILL, MISSOURI.
BE IT ORDAINED BY THE BOARD OF ALDERMAN OF THE CITY OF RICH HILL, MISSOURI, AS FOLLOWS:
SECTION 1: TITLE
This ordinance shall be known and may be cited as the “Community Cable Television Franchise Ordinance”.
SECTION 2: DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein. Where not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number, and words in the singular number include plural number. The word “shall” is always mandatory and not merely directory.
- “City” is the City of Rich Hill, Missouri, a municipal corporation, and its successor in interest, and which, territorially, shall include all territory within the corporate limits of the City as such limits now exist or may from time to time be changed by annexations.
- “Board” is the Board of Alderman of the City of Rich Hill, Missouri.
- “Company” is N.W. Communications, Inc., a Missouri Corporation, its assigns and successors in interest.
- “FCC” is the Federal Communications Commission and any legally appointed or elected successor.
- “Gross Revenues” means all revenues derived directly or indirectly, including revenues received from advertising, by the Company, its affiliates, subsidiaries, parents or persons in which the Company has a financial interest from and in connection with the operation of the Cable Television System in the City pursuant to this grant of authority, except this shall not include sales tax, grants from federal, state or local governments, or grants from not-for-profit foundations or corporations and it shall not include investment income, rental income or other income which is not derived from the operation of the labor-intensive services.
- “Person” is a person, firm, partnership, association, corporation, company or organization of any kind.
- “Street” shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley court, boulevard, parkway, drive or other easement now or hereafter held by the City for the purpose of public travel and shall include other easements or rights-of-way as shall be now held or hereafter held by the City which shall, within their proper use and meaning, entitle the City and Company to the use thereof for the purposes of installing or transmitting Cable Television System transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and any other property as may be ordinarily necessary and pertinent to a cable television system.
- “Cable Television System” or “System” shall mean any system which receives and amplifies signals broadcast by one or more television and/or radio stations and which transmits programming originated by the System itself or by another party, and distributes such signals and programming by wire, cable, fiber, microwave, satellite or other means to persons who subscribe to such services.
- “Subscriber” means a recipient of Cable Television Service.
SECTION 3: GRANT OR AUTHORITY
There is hereby granted by the City to the Company the non-exclusive right, privileges and license to construct, operate and maintain a Cable Television System for the reception and amplification of television and radio signals transmitting programs, and the redistribution of such signals by wire or cable to subscribing members of the public for a fee, for a period or five (5) years from and after the effective date hereof.
SECTION 4: COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES
The Company shall, at all times during the life of the franchise, be subject to, and shall abide by, all applicable ordinances of the City and all laws, rules and regulations of the FCC, and any other federal and state regulatory agencies.
SECTION 5: FRANCHISE TERRITORY
The Franchise is for the present territorial limits of the City and for any area henceforth added hereto during the term of this franchise. Cable Televisions Services shall be made available to the entire franchise area. Subscribers may be added outside the territorial limits of the City, and shall be included in determining Gross Revenues.
SECTION 6: FRANCHISE NON-ASSIGNABLE
The Company shall not assign, or attempt to assign, its right, privileges and license to construct, operate and maintain its Cable Television System as granted by this Ordinance without the approval of the Board except as provided hereinafter. Furthermore, neither the Company nor any of its shareholders shall sell, assign, transfer, give, mortgage, lease, pledge or merge any of the stock or property of the Company, so as to result in any change in management of the Company; however this prohibition shall not apply to inter-family transfers, transfers to entities owned or controlled by the Company, its affiliates, stockholders or members of their family for estate or estate planning purpose. Further, this restriction shall not prohibit the Company from transferring property in the ordinary course of business in exchange for like property or property in replacement thereof nor shall it prohibit the Company from making pledges or assignments as collateral security for bona fide loans form lending institutions when so required and when in the ordinary course of business of the Company.
Should the Company desire to transfer its franchise, a joint application to transfer shall be filled by the Company and the proposed transferee with the Clerk of the City at least ninety (90) day prior to the intended date of transfer. The transfer application shall contain:
- Names and addresses of the parties thereto;
- The kind of business organization of the transferee;
- If incorporated, a copy of the transferee’s Articles of Incorporation, the names addresses of all officers and directors of the transferee, and the names and addresses of all shareholders of the transferee owning more than 10% of the outstanding stock, and the number of shares held by each;
- If the transferee is an association or a partnership, a written copy of said Articles of Association or Partnership, showing the names addresses and interest of all parties thereto;
- The consideration to be paid for the assignment of said license and the method of payments thereof and, if the Company proposes to sell some or all of its other systems, the application shall state the total consideration to be paid for all of the systems and it shall state the consideration to be paid for each system in each town;
- A financial statement of the transferee prepared by a reputable public accountant;
- A detailed analysis of the net worth of the transferor’s system and facilities under this license properly documented and prepare by reputable certified public accountant; and
- Such additional information and the Board shall require.
SECTION 7: TERMINATION AND FORFEITURE OF FRANCHISE
In addition to any and all of the rights and powers possessed by the City by virtue of the franchise or otherwise, the City reserves the right to terminate and forfeit the franchise and all rights and privileges of the Company hereunder in the event that the Company:
- Violates any provision of the franchise or any rule, order or determination of the City or Board made pursuant to the franchise, except where such violation is without fault or through excusable neglect;
- Attempts to dispose of the Cable Television System or any of its facilities or property without the consent of the City or in any effort to prevent the City from purchasing the same, as provide herein;
- Attempts to evade any provision of the franchise or practices ay fraud or deceit upon the City; or
- Fails to properly maintain its System and service of providing cable television to the franchise area.
Prior to terminating and forfeiting the Company’s franchise for violation of the franchise a set forth herein above, the City shall notify the Company in writing of the violation and its intent to terminate or forfeit the franchise. The Company shall then have thirty (30) days or such longer times as the Board may allow, correcting or remedying the violation as set forth in the notice of intent of the City to terminate and forfeit the franchise. The Board shall determine whether or not any violation by the Company is found to have been for just cause, and if so the Board shall direct the Company to comply therewith within such time and manner and upon such terms and conditions as are just and reasonable. If the Board shall determine such violation by the Company was without just cause, then the Board may by resolution, declare that the franchise of the Company shall be terminated and forfeited unless there is compliance by the Company within such period as the Board may fix.
In the event of termination and forfeiture of the franchise, the Company shall have six (6) months from the date of notice of termination to find a Buyer acceptable to the City and sell its System or remove within ninety (90) thereafter at its own expense, all portions of its Cable Television System from the streets and poles within the City and shall restore the streets and poles to a condition reasonably satisfactory to the City within such period of time, unless the City requires the franchisee to continue operation pursuant to Section 16 hereunder.
SECTION 8: EXTENDING CABLE TELEVISION SYSTEM TO ANNEXED AREAS
In the event of annexation of areas into the City where the Cable Television System has not heretofore been installed and made available, the Company shall extend its System to the annexed areas with a reasonable time, taking into consideration the number of potential Subscribers, the number of feet of miles the System would have to be extended and the cost of the extension.
SECTION 9: MAINTAINING QUALITY OF SYSTEM AND COMPLAINT PROCEDURE
Any Subscriber or other interested person having a complaint against the Company may register and file his complaint with the City Clerk and with the Company. The Company shall maintain an office in the City, or at such place approved by the City, which shall be open during all regular business hours, or in the alternative, shall furnish, at all times, a toll free publicly listed telephone number, and it shall be so operated that complaints and request for repairs or adjustments may be received during normal business hours. The Company shall maintain a repair maintenance crew capable of responding to Subscriber complaints or request for maintenance service within 24 hours after receipt of the complaint or service. No charge shall be made to the Subscriber for this service, unless the complaint arises from the television set or other property of the Subscriber, in which case a reasonable charge may be made.
The Company shall maintain a record of each complaint or trouble call received from Subscribers at the Company’s local office for a period of at least two (2) years from the date of the event to which it relates and such reports shall be available for inspection during regular business hours without further notice or demand by a representative of the City. Such reports shall include the following data and such other data requested by the Board:
- Subscriber identification
- Date and approximate time the complaint was received
- Date and approximate time of Company’s response
- Nature of the complaint
- Brief description of the fault
- Corrective steps taken (if any required)
- Date case is closed
- Identification of the technician or repairman
In the event that a Subscriber complaint is not resolved to the mutual satisfaction of the Subscriber and the Company, either the Subscriber or the Company may request that the matter be presented to the Board for hearing and resolution. If the Board determines that the Company shall take further remedial or corrective action, the Company shall proceed according to the directive of the Board, or its franchise may be terminated and forfeited as hereinabove provided.
SECTION 10: COMPANY LIABILITY: INDEMNIFICATION
The Company agrees to hold and save the City harmless from any and all liability that may arise out of the construction, maintenance, operation or use of the Company’s Systems and works and the providing of such services and to provide and keep in force adequate liability insurance therefore to the extent of bodily injury limits of $500,000.00-$500,000.00 and a property damage limit of $300,000.00-$300,000.00 naming the City as an additional insured, as its interest may appear. The Company shall also provide and maintain insurance under a broad form automobile policy with $100,000.00, $300,000.00, $100,000.00 coverage limits and Workmen’s Compensation Insurance with state statutory limits. All insurance shall be issued by a company authorized to do business in Missouri. The Company shall maintain on file with the City at all times a current certificate of insurance. All insurance policies shall, if possible, provide for not less than 30 day notice of cancellation.
SECTION 11: USE OF EXISTING POLES, PLACEMENT OF ADDITIONAL POLES, INSTALLATION OF UNDERGROUND FACILITIES AND REMOVAL OF FACILITIES AND EQUIPMENT
Upon obtaining permission from the City or other owner of the poles, the Company shall have the right to use any existing poles in the City and to erect such additional poles as may be necessary for the operation of its System. Erection of the poles and installation of the Company’s equipment and facilities thereto shall be in conformity with the City’s ordinances and shall meet or exceed the specifications and requirements of applicable state and federal regulatory agencies.
In any area of the City where electrical and telephone lines are underground, the Company shall install and maintain its cables and necessary appurtenances underground, unless otherwise authorized by the City.
In the event any street, alley, public highway or utility easement, or any portion thereof, used by the Company shall be vacated by the City or the use thereof be discontinued by the Company, during the term of the franchise, the Company shall forthwith remove its facilities there from unless specifically permitted to continue the same, and upon 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 Board.
The Company at its own expense and subject to the rights of adjoining property owners, shall have the right and authority to trim trees upon and overhanging any public places of the City where contact with the wires and cables of the System is threatened.
The Company shall at its own expense protect, support, temporarily disconnect, relocate or remove any property of the Cable Television System located upon streets, rights-of-way, easements of the City, when required by the City because of traffic conditions, public safety, street vacation, street construction, change of establishment of street grade, installation of sewers, drains, water pipes, power lines and tracks or any other type of structure or improvement by the City. If the Company fails to do so within a reasonable time, the City may cause the necessary work to be completed and the Company shall pay the City the cost thereof within ten (10) days after the receipt of an itemized account of such cost.
SECTION 12: PAYMENT TO CITY
In consideration of the rights, privileges, and franchise hereby granted, and as compensation to the City for the use of its public ways and places by the Company, and to properly regulate the activities of it, the Company shall, on or before the 31st day of January and the 31st day of July of each year in which this franchise is effective, pay to the City a sum equal 3% of the Gross Revenues for Cable Television Service from subscribers of the Rich Hill, Missouri, Cable Television System, for the preceding six (6) month period.
No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this Ordinance.
The City shall have the right to inspect the Company’s income records and the right to audit and recompute any amounts determined to be payable under this Ordinance; provided, however, that such audit shall take place within twelve (12) months following the close of each of the Company’s fiscal years. Any additional amount due the City as a result of the audit shall be paid within thirty (30) day following notice to the Company by the City, which shall include a copy of the audit report.
In the event that any franchise payment or recomputed amount is not made on or before the applicable dates heretofore specified, interest shall be charged from such date at the annual rate of 15%.
In addition to the payment of the franchise fee hear in above provided, and payable upon the anniversary date of this ordinance, the Company shall pay to the City a sum equal to $4.25 for each pole owned by the City and used by the Company in the operation of its system within the City.
SECTION 13: BOOKS, RECORDS AND ACCOUNTING STANDARDS
The Company shall maintain financial records governing its operation in the franchise area. The City shall have the right to inspect at any time during business hours (after making a reasonable request which will not interfere with the Company’s operations), all books, records, maps, plans, income tax returns, financial statements and other like material of the Company which relate to its operation in the City.
All financial reports and records as hereinabove provided shall conform to generally accepted accounting principles apply on a fair and consistent basis. Annual financial reports prepared by a certified public accountant shall be filed with the City within thirty (30) days after the close of the Company’s fiscal year.
Further, the City shall have the right to conduct annually, or have conducted annually, an audit of the Company’s financial books and records pertaining to its operation in the City, but the same shall be done at the City’s expense; provided, however, if the Company conducts its own audit a copy thereof shall be provided to the City at no cost.
SECTION 14: RATES
The Company shall be allowed to charge its customers a just, fair and reasonable fee for various services.
SECTION 15: DISCRIMINATION PROHIBITED
The Company shall not deny service, or access, or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of race, color, religion, or national origin, sex or age. Further, the Company shall comply at all times with all applicable federal, state and/or city laws, ordinances, rules or regulations relating to non-discrimination.
SECTION 16: CONTINUITY OF SERVICE AND CONTINUATION OF SERVICE ON EXPIRATION OR TERMINATION OF THE FRANCHISE
The Company shall be required to provide continuous service to all Subscribers during the term of the franchise. Upon the expiration of this franchise or termination of this franchise as hereinabove provided, the Company shall nevertheless continue to operate and maintain its System and provide its service until the City assumes operation of the System or until directed in writing by the City to finally terminate and discontinue its service, whichever occurs first.
SECTION 17: NO RESOURCE AGAINST THE CITY
The Company shall have no resource whatsoever against the City or its officials, boards, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Ordinance and the franchise granted pursuant hereto, or because of enforcement of this Ordinance and the franchise granted pursuant hereto.
SECTION 18: NONENFORCEMENT BY CITY
The Company shall not be relieved of its obligation to comply with any of the provisions of this Ordinance by reason of the failure of the City to enforce prompt compliance. Nor shall any action by the City be deemed to constitute a waiver of any provisions or requirements of this Ordinance and the franchise, or the right of the City to enforce this Ordinance and compliance with this franchise.
SECTION 19: TECHNICAL STANDARDS
Unless otherwise agreed between the City and Company, the Company’s Cable Television System shall be constructed and operated in compliance with all technical and other standards and requirements of the Federal Communications Commission.
SECTION 20: AMENDMENT TO FRANCHISE
This franchise Ordinance may only be amended by application from the Company and approved by the City.
SECTION 21: SEVERABILITY
If any section, sentence, clause or phrase of the Ordinance is held unconstitutional or otherwise invalid, such infirmity shall not affect the validity of the Ordinance, and any portions in conflict are hereby repealed; provided, however, that in the event the Federal Communications Commission declares any section invalid, then such section or sections shall be renegotiated by the City and the Company.
SECTION 22: EFFECTIVE DATE OF ORDINANCE
This Ordinance shall be in full force and effect from and after its passage and approval as provided by the law.
First Reading this 23rd Day of April, 2013
Second Reading this 14th Day of May 2013.
Richard Miller, Mayor
Tonya Perryman, City Clerk
Ayes: Moreland, Pilcher, Perkey-Ewing, Becker